RAMA VARRIER KRISHNA VARRIER Vs. MADHAVI AMMA

JUDGEMENT

(1.) This appeal arises out of a suit for partition. Defendants 1 and 3 to 6 are the appellants. The parties are Warriors by caste. Defendants 1 and 3 are brother and sister respectively, and defendant 2 is their mother. Defendants 4 to 6 are the minor children of defendant 3. Plaintiff 1 is the niece of one Soolapani Warrier, who is now dead and who was the father of defendants 1 and 3 and the husband of defendant 2, Plaintiffs 3 to 5 are the minor daughters of plaintiff 1. Plaintiff 2 also was palintiff 1's daughter, but she died after the institution of the suit, and the remaining plaintiffs are her legal representatives. According to the plaintiffs, plaintiff 1 is defendant 1's wife and plaintiffs 2 to 5 were born of their marriage. The defendants admit that plaintiff 1 was married by defendant 1 and that plaintiffs 2 to 4 were born of that marriage. But, according to the defendants, defendant 1 divorced plaintiff 1. in Chingom 1114 and plaintiff 5 was born subsequent to the divorce and is not defendant 1's child. In 1109, before the birth of plaintiffs 4 and 5 and defendants 5 and 6, Soolapani Warrier executed a settlement deed, Ex. B, in favour of defendants 1 to 4 and plaintiffs 1 to 3 giving to them and to the children that might be born to them subsequently the plaint properties in this case, and the suit was brought by the plaintiffs for partition and recovery of the shares they were entitled to get in those properties on the basis of this settlement deed. They claimed 5/11 share in the properties and also asked for past and future mesne profits in respect of the said share.

(2.) Defendants 1, 3 and 4 to 6 contested the suit. Their contentions were to the effect that defendant 1 had divorced plaintiff 1 in 1114 and plaintiff 5 was not his child, that Ex. B had constituted defendants 1 to 4 and plaintiffs 1 to 3 into one tarwad and under the law and usage governing the parties no member of the taiwad could claim partition as of right, that plaint A schedule items 1 and 2 were exclusive properties of defendant 1, that the chavadi building in item 5 was also put up by him with his own funds and was not therefore partible, that being the karnavan of the tarwad he was not liable to account for the mesnc profits to the other members of the tarwad and plaintiffs were not entitled to get any mesne profits and that the rate of mesne profits asked for was also high.

(3.) The lower Court found that the marriage between plaintiff 1 and defendant 1 was not dissolved and that plaintiff 5 was the legitimate issue of defendant 1 horn of their marriage, that to constitute a Marumakkathayam tarwad there should be a natural group composed of a mother and her children and their descendants in their female line and such a tarwad as a legal entity could not be created ad hoc and so the contention that the plaintiffs and the defendants together were formed into one tarwad by Ex. B could not be accepted, that plaint A schedule items 1 and 2 as well as the chavadi building in A schedule item 5 were not the exclusive properties of defendant 1 and were partible, that plaint B schedule items were the exclusive properties of defendant 1 and were not partible, and that the plaintiffs were therefore entitled to recover possession of 5/11 of plaint A schedule items with mesne profits. It also directed defendant 1 to be given credit for certain sums which were spent by him and accounts to be taken from the date of Ext. A and the plaintiffs to be given their share of the mesne profits on the basis of such accounting. As a result of these findings the lower court passed a preliminary decree for partition in the following terms :