MEENAKSHIKUTTI AMMA Vs. UNNIKRISHNAN

JUDGEMENT

(1.) Defendants in a suit for partition are the appellants in this appeal. The sole plaintiff in the suit is the respondent.

(2.) The plaint schedule property originally belonged to the tharwad of the father of the plaintiff, one Kunhikrishnan Nair under Ext.A1, a deed of partition dated 11.3.1113 (ME). The tharavad got itself divided into three thavazhies. At the time of partition, the father of the plaintiff was the karanavan of the tharavad and there were altogether 17 members in the tharavad. The recitals in Ext.A1 would show that the properties were allotted to the three thavazhies on a per capita basis taking note of the number of members belonging to each thavazhy. Further, one additional share was allotted to the then karanavan of the tharavad, namely, the father of the plaintiff taking note of the services rendered by him as karananvan of the tharavad. Thus, the thavazhy of Kunhikrishnan Nair, father of the plaintiff, though consisting of only four members including himself, was allotted properties equal to five shares together in one schedule. The suit out of which the appeal arises was filed by the son of Kunhikrishnan Nair claiming 2/5 share in the plaint schedule property on the basis that one share allotted to his father in addition to his one share as member of his thavazhy under Ext.A1 is a separate property of his father. The suit was resisted by the defendants, who are the children of Lakshmi Amma, one of the sisters of Kunhikrishnan Nair and who was party No. 2 in Ext.A1. They resisted the claim contending that as son of late Kunhikrishnan Nair, plaintiff can only claim 1/4 share in the plaint share property as after partition his father is legally entitled to claim only 1/4 share of the property as one of the four members of the thavazhy. It was submitted that even though an additional share was allotted to the thavazhy taking note of the special services rendered by him as karanavan of the tharavad, so long as the additional share was allotted to the thavazhy jointly, Kunhikrishnan Nair could not have claimed any special right in the property allotted to the thavazhy. So long as there was no individual petition, allotment and separation of two shares to Kunhikrishnan Nair, neither Kunhikrishnan Nair nor plaintiff as his son can claim an additional share treating the same as one allotted to Kunhikrishnan Nair exclusively in a partition of tharavad into thavazhies. It was also contended that during the lifetime of Kunhikrishnan Nair, he has himself treated the property allotted to the thavazhy as per Ext.A1 partition as thavazhy property alone. During his life time, he has not claimed any special right in the property allotted to the thavazhy.

(3.) The Trial Court, on a construction of Ext.A1 and taking note of the other documentary and oral evidence in the case, upheld the contentions raised by the defendants and passed a preliminary decree for partition of the properties into four equal shares and allotment of one such share to the plaintiff. It took the view that 5/18 share allotted under Ext.A1 to the thavazhy consisting of plaintiff's father and three others enured to the benefit of all the members of the thavazhy equally even though 1/18 share was allotted to the father of the plaintiff taking note of the special services rendered by him. On appeal, the learned single Judge reversed the decree of the Trial Court and decreed the suit as prayed for taking the view that the additional 1/18 share allotted to the thavazhy of plaintiff's father was intended to ensure exclusively to the plaintiffs father and as such plaintiffs father was entitled to claim two shares in the property allotted to the thavazhy. In other words, the learned single Judge took the view that the plaintiffs father was entitled to claim an additional share allotted to the thavazhy as one allotted to him individually and exclusively. The question to be considered is how far the view taken by the learned single Judge is sustainable in law.