NARAYANA KURUP SARASWATHY AMMA Vs. BHAVANI RAJAMMA

JUDGEMENT

(1.) LATE Padmanabha Kurup, Kesava Kurup, Narayana Kurup, ramakrishna Kurup, Nani Amma and Janaki Amma were brothers and sisters and members of a Nair family. The family had some ancestral property. Padmanabha kurup had acquired some properties on his own. The members of the family including the children of the female members entered into a partition evidenced by Ext. Al in the year 1956. For purposes of partition, apart from the family properties, the acquisitions of Padmanabha Kurup were also put in the hotchpots and treated as family property. Padmanabha Kurup who was a bachelor, and his brother Narayana Kurup were together allotted the 'a' Scheduled properties. Bhavani Amma, a daughter of Nani Amma and her children were together allotted the 'h' scheduled to the partition deed. B, C, D and E scheduled properties were set apart to Kesava Kurup, Ramakrishna Kurup, Nani Amma and Janaki Amma respectively. The F Scheduled property was allotted to Janardhana Kurup, one of the sons of Nani Amma and G and I schedules to Govinda Kurup and Kamalakshi amma, two other members of the family respectively. Ext. Al is a copy of the partition deed. Clause 8 reads:

(2.) THE A Scheduled property m the partition deed consists or 67 cents or land in Survey No. 3459 in Navayikulam Village and the buildings therein. This property is the subject matter of the suit. Plaintiffs who are the respondents in this appeal are the children of Bhavani Amma, the allottee of H Schedule in the partition deed. By the suit, they sought recovery of possession of the plaint schedule property on the basis of their title by virtue of the provisions of clause 9 in the partition deed noticed above. Padmanabha Kurup, the first party to the partition deed, died in the year 1976. Narayana Kurup, the third executant to the partition deed, died on 17. 8. 1979. Plaintiffs claimed that on the death of executants 1 and 3 in the partition deed, the provisions in clause 9 came into effect and they became entitled to the property. THE property is in the possession of the defendants who are the legal representatives of Narayana Kurup, the third executant. THEy resisted the suit. Defendants 1, 3. 5, 6,9 and 10 filed a joint written statement. 4th defendant filed a separate written statement. THE defendants contended that by the provisions in clause 8 of the partition deed, the property had been set apart to executants 1 and 3 with absolute rights and so, the subsequent clause that the A Schedule property will merge with the H schedule on the death of executants 1 and 3 had no legal effect. It must be ignored as a mere pious wish of the parties. Defendants also contended that Padmanabha Kurup executed a will in favour of Narayana Kurup on 8. 8. 1975 and Narayana Kurup in turn executed a will in favour of the 4th respondent on 4. 8. 1979 before his' death on 17. 8. 1979. Defendants also contended that they had effected valuable improvements in the property.

(3.) IN appeal to this court, the learned single judge also came to the conclusion that executants 1 and 3 gifted their right in the A schedule property in favour of the allottees of H Schedule reserving only a right for themselves to enjoy that property till their death with the further provision that the 25 cents portion would be enjoyed by Bhavani Amma and her lineal descendants in the female line, without any right of alienation.