NEELAKANTA KURUP Vs. SIVARAMA KURUP AND OTHERS

JUDGEMENT

(1.) IN this appeal arising out of a suit for partition the main question for decision is whether the tarawad sought to be partitioned was an undivided tarwad on the date of the suit or whether a partition had been effected in that tarwad long before the suit. The lower court decided this question against the plaintiff and dismissed the suit, and so he has filed the appeal. According to the plaint allegations, Plaintiff and defendants 1 to 9 belong to the 1 to 9 belong to an undivided Nair tarwad which itself was a branch of a bigger tarwad which had become divided into four separate branches under a partition deed, Exhibit B, executed on 4 -11 -1088. Of the four separate branches into which the main tarwad became divided under Ext. B, one was known as the Trivandrum Branch and another was the Quilon Branch. Plaintiff and defendants 1 to 9 belong to the Trivandrum Branch and the plaint properties are the properties which that Branch got under Ext. B. Plaintiff's case is that on the execution of Ext. B the Trivandrum Branch became a separate tarwad by itself and that the said tarwad was undivided on the date of suit and he is entitled to get 1/10 of the properties belonging to it as his share in the tarwad properties.

(2.) THERE are four tavazhis in this tarwad, i.e. the Trivandrum Branch. Plaintiff and defendants 5 to 9 belong to one tavazhi, and another consists of defendants 1 and 2. Defendant 3 is the sole member of the third tavazhi and defendant 4 is the sole member of the fourth tavazhi. It was said in the plaint that there was a maintenance allotment in the tarwad, i.e. the Trivandrum Branch, after Ext. B partition and that under the maintenance allotment the different tavazhis were in separate possession and enjoyment of the tarwad properties. The various properties in the possession of the different branches were also specified in paragraph 6 of the plaint. Plaintiff claimed that he was entitled to get Rs. 152 per year on account of his share in the mesne profits of the tarwad properties, and he prayed that from the said amount the income of the properties in his possession might be deducted and he might be allowed to recover the balance amount on account of mesne profits. Defendant 10 is a mortgagee under defendant 2. Plaintiff impugned his mortgage as lacking in consideration and necessity binding on the tarwad and also sought to set it aside.

(3.) ONE of the branches which had become divided under Ext. B filed a suit in 1106 for partition of the main tarwad on the basis that Ext. B itself was not a partition but only a maintenance allotment. That suit, O.S. 39 of 1106 of the Trivandrum District Court, was dismissed with the finding that Ext. B was an outright partition and that the Branches had become divided thereunder from each other and had formed into separate tarwads. On the dismissal of that suit the Quilon Branch filed another suit, O.S. 156 of 1123 of the Trivandrum District Court, for setting aside the decree therein and for partition of the main tarwad, and it was while O.S. 156 of 1123 was pending that the plaintiff filed the present suit. Defendant 1 filed a written statement stating that the present suit was premature on account of the pendency of O.S. 156 of 1123, that there was an oral partition in the Trivandrum Branch soon after the execution of Ext. B, that if the court took the view that there was no such partition and there was only a maintenance allotment, he had no objection to a fresh partition being made, and that in that case he too might be given a decree for partition and recovery of possession of his share. Defendant 2 supported the plaintiff's case and claimed his share, and defendant 10 contended that his mortgage was valid and not liable to be set aside. The guardian of some of the minor defendants also filed a written statement supporting the plaintiff's case. Defendants had other contentions also such as that some of them had special rights over certain properties etc. Those contentions have been dealt with only in a very perfunctory manner in the judgment of the lower court, probably because of its finding on the main contention that there was no undivided tarwad consisting of the plaintiff and defendants 1 to 9 and the suit had to be dismissed as a result of that finding. We do not therefore propose to deal with those contentions in this judgment, and consider that in the interests of justice they should be left open to be considered and decided afresh by the lower court if our decision on the main question is different from the lower court's finding.