JANAKIKUTTY AMMA Vs. KESAVAN UNNITHAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for recovery of possession of property with past and future mesne profits. Defendant 9 is the appellant. The suit was brought by two plaintiffs who are father and son plaintiff 1, Kesavan Unnithan, being the father and plaintiff 2 the son plaintiff 1 had an elder brother, Krishnan Unnithan by name, who died in kumbhom 1121. Defendants 5 and 8 are Krishnan Unnithan's widows, and defendants 1 to 4, 6, 7 and 9 to 12 are his children.

(2.) KRISHNAN Unnithan and plaintiff 1 belonged to an ancient and aristocratic (Matampi) Nair family. The seat of their sub-tarwad house was Valiaveettii purayidom, a compound in Paravoor Pakuthy measuring 1 acre 50 cents and bearing survey No. 3177. In 1106 when these two brothers were the only surviving members of their tarwad, they executed a partition deed, Ex. A, whereby they divided most of their tarwad properties between them each brother taking the properties allotted to his share as his absolute and separate property, and also made certain provisions with respect to the remaining properties. Clause. 7 of Ext. A related to Valiaveettil purayidom (Survey No. 3177 ). It was said in that clause that the said compound was in the joint possession and enjoyment of the two brothers and was not included in the schedules to Ex. A but KRISHNAN Unnithan had taken for enjoyment the eastern 71 cents in it and the building in the said 71 cents and plaintiff 1 had taken for enjoyment the western 79 cents in accordance with their joint rights and that in future also they would hold the compound as per that arrangement. The clause reads: The suit property is the plot of 71 cents in the eastern portion of Survey No. 3177 Valiaveettil purayidom, and the house mentioned therein in the above clause. Until KRISHNAN Unnithan's" death he was living in it, in pursuance of the above arrangement, with his wives and children, defendants 1 to 12. About five years after his death Kesavan Unnithan (plaintiff 1) and his son (plaintiff (2) brought the present suit for recovery of possession of the suit property from defendants 1 to 12. Defendants 13 to 18 are persons living in, or in occupation of portions of, the suit property under defendants 1 to 12.

(3.) TAKING the view that Krishnan Unnithan and plaintiff 1 had not obtained a status of division in respect of the plaint property and had continued to be members of an undivided tarwad so far as that property was concerned, the lower court repelled defendant 9's contentions and decreed the suit with some modifications regarding the claim for mesne profits and subject to the direction that defendants 12 to Hand 18 were at liberty to remove within a specified time certain structures put up by them. Defendant 9 has, therefore, filed this appeal.