GOURI Vs. NARAYANI AND OTHERS

JUDGEMENT

(1.) THESE two appeals arise out of a suit of partition of an Ezhava Tarwad, A.S No. 251 of 1955 is by defendant 7 and A.S. No. 276 of 1955 by defendant 3. The tarwad in question consists of plaintiffs 1 to 6 and defendants 1 to 14. Defendant 1 is the common ancestress and defendant 2, who is her son, is the karnavan. Defendants 3 to 6 are defendant 2's brothers and the other sons of defendant 1. Plaintiff 1 and defendant 7 are defendant is daughters, and plaintiffs 2 to 6 are plaintiff is children. Besides plaintiff 1 and defendant 7, defendant 1 had another daughter, Parvathi by name, who is now dead. Defendants 8 to 14 are the descendants in the female line of Parvathi and defendant 7. Plaint A schedule properties are said to be properties belonging to the tarwad in Jenmom right and plaint B schedule properties are properties over which the tarwad has mortgage rights. C schedule items are said to be outstanding on mortgages etc. executed by members of the tarwad, and D schedule items are movables, decrees etc. belonging to the tarwad. Plaintiffs claim that all the immovable properties included in plaint A, B and C schedules, other than A schedule items 19 and 20, which are the same as items 9 and 10 in C schedule II, are properties obtained by their tarwad under a Will, Ext. B, executed in favour of defendants 1 to 7, plaintiff 1 and Parvathi on 17 - -5 - -1099 by the deceased Adichan Raman who was the first husband of defendant 1 and the father of defendants 2 to 7, plaintiff 1 and Parvathi. Defendant l's mother was married twice, and one Ayyappan Kumaran was her second husband. She had two children by Ayyappan Kumaran, but both of them and Ayyappan Kumaran are now dead. Before his death Ayyappan Kumaran had executed a gift deed, Ext. I in favour of defendant 1 on 18 - -11 - -1100 conveying to her A schedule items 19 and 20. According to the plaintiff, this gift deed enures to the benefit of defendant l's thavazhi which is the tarwad sought to be partitioned in this suit, and so A schedule items 19 and 20 also belong to the tarwad and are partible. Treating A schedule items 19 and 20 as belonging to her exclusively defendant 1 had executed a gift deed, Ext. II for those properties in favour of defendant 7 on 26 - -3 - -1123. Plaintiffs claimed the partition on the basis that this gift deed and certain other alienations in respect of some of the plaint properties made by other members of the tarwad were invalid and not binding on them. The ground on which plaintiffs impugned the validity of Ext. II and the other alienations was that they had been executed on the footing that the properties belonged only to defendants 1 to 7, plaintiff 1 and Parvathi and without the junction of all the major members of the tarwad, and without proper tarwad necessity and consideration.

(2.) DEFENDANTS 1 and 3 contended that the bequest under Ext. B was solely for defendants l to 7, plaintiff 1 and Parvathi and the other members of the tarwad had obtained no rights to the properties comprised in the will and that the said properties were not therefore partible and the alienations impugned by the plaintiffs were valid and not liable to be set aside. The lower court repelled these contentions, and upholding the plaintiffs' case passed a preliminary decree for partition of plaint A, B and C schedule items as prayed for by the plaintiffs. Defendants 3 and 7 have therefore filed this appeal.

(3.) PLAINTIFFS also have filed a memorandum of objections. That relates to mesne profits disallowed to them for the period between the date of suit and 15 - -3 - -1952 and the lower court's omissions to give any direction in its decree regarding certain decrees and amounts included in plaint D schedule as belonging to the tarwad.