JANAKI ALIAS NANGELI AMMA Vs. KRISHNAN NAMBISSAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for partition. The parties are Marumakkathayees, and one Devaki Amma was their common ancestress. Devaki Amma's husband was one Vishnu Nambeesan, and they had eight children-five sons and three daughters. Defendants 1, 2, 3, 4 and 5 are their sons and defendant 6 one of the three daughters. The two other daughters, nangeli Amma and savithri Amma, are both dead, and plaintiff 1, Janaki alias nangeli Amma, is the only child of Nangeli Amma. savithri Amma has left no issue. Plaintiff 2 is plaintiff 1's minor son. Defendants 7, 8 and 9 are the sons of defendant 6, and defendants 10,16 and 20 her daughters. Defendants 11 to 15 are the minor children of defendant 10, and defendants 17 to 19 the minor children of defendant 16. Defendant 21 is defendant 20's minor son.

(2.) IN 1903, when he had only five children and plaintiff 1's mother (Nangeli Amma) and savithri Amma and defendant 5 were not born, vishnu Nambeesan executed a will, Ex. B3, bequeathing to his wife, Devaki Amma, and defendants 1 to 4 and 6 and the children who might subsequently be born of him to Devaki Amma the properties which he had obtained in his family partition; and the main dispute in this appeal is about the interpretation and effect of this will. After the execution of Ex. B3 and after the birth of plaintiff 1's mother and savithri Amma and Defendant 5, Vishnu Nambeesan died, and the plaintiffs' case is that after Vishnu Nambeesan's death the properties bequeathed under Ex. B3 belonged in common to Devaki Amma and her eight children, as tenants-in-common and each of them obtaining one-ninth right in the properties. IN 1936 Devaki Amma and her eight children executed a partition deed, Ex. Al, whereby certain properties oat of those comprised in the bequest under Ex. B3 were allotted to the shares of defendants 1, 2 and 3, and they were given separate possession of those properties, and the remaining properties, namely, items 8 to 14 in the will, were allotted to the shares of devaki Arnma and her remaining five children. subsequent to this partition, plaintiff 1's mother and savithri Amma died. Devaki Amma, the common ancestress, died in 1950 after both plaintiff 1's mother and savithri Amma had died. IN 1952 plaintiffs brought the present suit for partition of the properties left in common by Ex. Al for the shares of Devaki Amma and her five children, defendants 4,5 and 6 and plaintiff 1's mother and savithri Amma. They alleged in the plaint that Devaki Amma and defendants 4,5 and 6, plaintiff 1's mother and savithri Amma had each one-sixth right in those properties and the plaintiffs claimed partition and recovery of possession of (1) the one-sixth share which belonged to plaintiff 1's mother and which devolved on them by right of inheritance after her death, (2) one-fifth of the one-sixth share which belonged to savithri Amma on the ground that after savithri Amma's death her share devolved on Devaki Amma and defendants 4, 5 and 6 and plaintiff 1's mother, and plaintiff 1 had obtained by right of inheritance the share which her mother had, and (3) 2/23 of the one-sixth share which belonged to Devaki amma on the ground that after Devaki Amma's death her share in the properties had devolved under the provisions of the Marumakkathayam Act on plaintiffs 1 and 2 and defendants 1 to 21. Almost all the defendants entered appearance in the lower court and filed written statements. so far as the interpretation and effect of Vishnu Nambeesan's will were concerned, defendants 1 to 5 supported the plaintiffs' case. Defendants 6 to 22, on the other hand, contended that the bequest under Ex. B3 was not to Devaki Amma and her eight children alone but to devaki Amma's thavazhi as a whole, that Devaki Amma and her children were not, therefore, entitled to take the bequeathed properties as tenants-in-common and each of them had no separate rights to the properties, that Devaki Amma's thavazhi obtained the properties under the will as their sub-tarwad or thavazhi properties with all the incidents of tarwad properties under the marumakkathayam Law, that Ex. Al partition was invalid and not binding upon the members of the thavazhi, and that the suit brought on the basis that Devaki amma and her eight children got the properties under the will as tenants-in-common and had separate rights was therefore not maintainable. They also contended that, in as much as the plaintiffs had not claimed partition of the properties allotted to defendants 1, 2 and 3 under Ex. Al and had left out those properties in the plaint, the suit was bad as being one for partial partition. The lower court upheld these contentions and dismissed the suit, and so, the plaintiffs have come up in appeal. Defendants 6 to 22 as well as defendants 1 to 5 had various other contentions also. But the lower court has not considered and decided those contentions because of its finding that the suit was not maintainable on the interpretation it took about the will. If the lower court's finding is confirmed in this appeal there will be no necessity to consider those contentions, and if that finding is reversed the suit will have to be remanded to the lower court for consideration and decision of those contentions. Therefore, in either case, it is unnecessary to refer to and consider those contentions in this judgment.

(3.) WE may also say in this connection that, from the subsequent conduct of the parties also, it is clear that the members of the thavazhi themselves had understood and acted upon the bequest as one in favour of Vishnu Nambeesan's wife and children alone and not as one made in favour of their thavazhi as a whole. Ex. Al partition was effected on 25-7-1936. That partition deed was executed on the basis that the properties comprised in the will belonged only to the wife and children of Vishnu Nambeesan and that the other members of their thavazhi were not entitled to them. At the time of this partition, at least one son of defendant 6 was a major and some of her other children also became majors subsequently. Not only was defendant 6 a party to ex. Al but none of her children, neither the son who was a major at the time of its execution nor the other children who became majors subsequently, had taken any step to get that partition annulled before the date of this suit even though separate possession of the shares allotted to them under the partition deed was given to defendants 1, 2 and 3 and those defendants were in separate possession of the properties allotted to them from the date of the partition deed. Although defendant 6 alleged in her written statement that she joined in the execution of Ex. Al without knowing the nature of that document she has not gone into the witness box to speak to the truth of that allegation. In the circumstances, it has to be held that Ex. Al was executed with the full knowledge and consent of defendant 6 and that she and other members of her thavazhi had accepted and acquiesced in it, and they had no case that the bequest under Ex. B3 was to Devaki Amma's thavazhi as a whole till the plaintiffs came forward to claim their share. Their present contention must undoubtedly be due to the fact that there are 15 members in their thavazhi as against 2 in the plaintiff's thavazhi.