KARTHYAYINI AMMA Vs. PARUKUTTY AMMA

JUDGEMENT

(1.) This appeal arises out of a suit for partition among the members of a Nair tarwad and the question is whether the only item of immovable property in respect of which the plaintiffs prayed for and court below granted a preliminary decree for partition is at all tarwad property available for purpose of partition.

(2.) The tarwad consists of the plaintiffs 1 to 11 and defendants 1 to 6. The 1st defendant Raman Nair, is the Karanavan of the tarwad. The 2nd defendant Karthiyayani Amma is his sister and also the mother though by separate husbands, of the 1st plaintiff and the 3rd defendant. Plaintiffs 2 to 11 are the members of the thavazhi of the 1st plaintiff while the defendants 4 to 6 are the children of the 3rd defendant. According to the plaintiffs case, the defendants 1 and 2, their mother Paru Amma and their elder brother Gopalan Nair who constituted in all the adult members of the tarwad in 1097, obtained Rs. 100 under Ext. A partition deed of that year in the main tarwad, in lieu of their tarwads share and settled down as Kudikidappukars in the property near by appertaining to the Illom of PW. 2, Gopalan Nair and the 2nd defendant also taking service in the illom. The plaint A schedule property which was part of the property so occupied was subsequently taken on Verumpattom lease in two stages, viz. under Ext. B of 1106 and Ext. C of 1120 both in the name of the 2nd defendant. The present building in the A schedule property was put up by joint efforts of the members of the tarwad in or about 1106 in place of a prior one which happened to be destroyed in the floods. However, claiming the A schedule property and the building therein to be her own, the 2nd defendant executed Ext. III assignment deed in 1121 in favour of the 3rd defendant but the sale deed cannot bind the plaintiffs as wanting in authority. The suit was therefore laid as for partition of the plaintiffs 11/17 share, in the A schedule property without reference to Ext. III alienation and also in a schedule of movables to the plaint as B schedule. But these movables were found by the court below to be non existent and the plaintiffs having acquiesced in the finding, we are not concerned with them further more.

(3.) The suit was resisted by defendants 2 and 3 on the footing that the plaint A schedule property was the separate property of the 2nd defendant having been acquired in her name by her third husband Kochukrishnan Nair deceased. The building in the A schedule had also been constructed by him for the 2nd defendants benefit. According to the defendants there was no question of any undivided tarwad of the parties after Ext. A partition arrangement of 1098. It was no doubt true that Rs. 100 was received thereunder in lump as compensation due to the tarwad for its share. But Gopalan Nair and the 1st defendant had taken their share in the amount then and there and separated themselves away from the rest. The fact that the 2nd defendants mother and children had been allowed to take residence with her and were further maintained by her could not invest them with any right in the A schedule property which belonged to her absolutely. Ext. III assignment deed was in the circumstances unquestionable at the hands of the plaintiffs thavazhee and the claim for partition whether ignoring Ext. III or otherwise was unsustainable. An alternative plea was also raised on the basis that along with Ext. III assignment deed in favour of the 3rd defendant, the 2nd defendant had executed Ext. II deed in favour of the 1st plaintiff assigning other property of hers constituting thereby a fair settlement aiming her children. So, if Ext. III gift was by some chance to be unsettled by the court Ext. II should share similar fate, at least should be taken into consideration in the allocation of the plaintiffs shares.