RAMAN NAMBIAR Vs. KRISHNAN NAMBIAR

JUDGEMENT

(1.) THIS is an appeal against a decree dismissing a suit for partition. The parties are governed by the Cochin Marumakkathayam Act, xxxiii of 1113. According to the plaintiffs, there are three branches in their tarwad. One branch consists of plaintiffs 1 to 8, another of defendants 1 to 8, and the third defendants 9 to 18. Plaintiffs prayed for partition by metes and bounds and recovery of possession of 8/26 shares in the plaint properties which they claimed were their tarwad properties. The suit was contested principally by defendants 1 to 8, and their main contention was that there was no undivided tarwad consisting of the plaintiffs and defendants 1 to 18 as alleged in the plaint. According to them, the original tarwad had become divided into three separate branches having no community of interest with each other under the partition deed, Ext. A, executed in 1093, and so, the plaintiffs' suit was not maintainable. Generally speaking, the branch of defendants 9 to 18 supported the plaintiffs' case, but one member of their branch, namely, defendant 13, supported the contention of defendants 1 to 8 that the tarwad had become divided in 1093. The lower court upheld this contention and dismissed the suit. Plaintiffs have therefore filed this appeal. There were other contentions also in the suit On some of them the lower court has recorded findings and some others it has left open. At the time of hearing in this court, it was represented by both sides that the parties in the lower court were primarily concerned during the trial with the main question in the suit, namely, whether there was a partition in 1093 or not, and they had not bestowed sufficient attention to the other issues, and that the suit might therefore be remanded to the lower court for a fresh consideration and decision of all the other issues in the case if it was found here that there was no partition in 1093 and the plaintiff's claim for partition was sustainable. After hearing both sides we have come to the conclusion that there was no partition in 1093 and that the plaintiffs are entitled to get a preliminary decree for partition. Therefore on account of the joint submission of both sides referred to above we do not propose to refer to and consider in this judgment the other contentions in the suit.

(2.) THE parties are agreed that there were three branches in the tarwad at the time of the execution of Ext. A and that Ext. A was executed by all the adult members in the three branches on 26-7-109

(3.) SOME of the provisions in Ext. A relevant for the decision of the question whether it is an outright partition or only a maintenance arrangement have been enumerated by the lower court in Para. 6 of its judgment, extracted above. Besides those provisions the following salient features of Ext. A have also to be taken into consideration in deciding this question. To start with, Ext. A is styled a family karar and it is written on a stamp paper of one rupee which is the stamp required for an ordinary agreement. The stamp duty payable for a partition deed has not been paid for Ext. A. The preamble to the document says that it was being executed to promote the interests of the tarwad & prevent further harm. In Clause. 5 it is expressly stated that beyond the right to be in possession of the properties allotted to it and to maintain the members thereof from the income of such properties no branch shall have any further right to the properties allotted to it or have the right to encumber or alienate by itself the properties allotted to it. If any branch happens to encumber or alienate the properties allotted to it contrary to this provision and without the concurrence of all the adult members of the tarwad, a right is reserved in Clause. 5 to all the members of the tarwad to get such alienations cancelled; and such right can be exercised by any member. In Clause. 7 it is provided that renewals of kanams and leases of tarwad properties should be in the name of the common karanavan of the tarwad consisting of all the three branches and that the oppusoochi for the renewals should be taken by him and the balance renewal fee by the branch to which the "property is allotted. It is also provided in that clause that litigations in respect of the properties allotted to each branch, including even suits for recovery of rent, must be instituted jointly by the common karanavan and the karanavan of the branch to, which the property has been allotted and that the expenses of such litigation should be met jointly by them. .