VELUMPI KUNJI Vs. VELAYUDHAN GOPALA PANICKAN

JUDGEMENT

(1.) This second appeal arises out of a suit for partition which was instituted in the year 1103 M. E. The parties to the suit are members of the Ezhava community and are governed by the Travancore Ezhava Act (Act III of 1100). As per the case put forward in the plaint, plaintiffs 1 to 8 and defendants 1 to 114 were members of an undivided Ezhava Marumakkathayam tarwad on the date of the suit. This tarwad is known by the name of Kollasseril or Kollasseril Kizhakkethu. The 1st defendant was the karanavan of this tarwad on the date of the suit. He died during the course of the suit and no additional party was brought on record as his legal representative. On the other hand, defendants 2 to 114 who were the other members of the tarwad excluding the plaintiffs who had attained a divided status with the institution of the suit, were recorded as the legal representatives of the 1st defendant. A geneological table showing the relationship of the several members of the tarwad was prepared by the plaintiffs and appended to the plaint as the A schedule. As per this geneology, the plaintiffs and defendants 1 to 114 trace their descent to one Chakki who was the female ascendant in the tarwad. Chakki had two daughters, Kunjuneeli and Velumbi, who represented the two main tavazhies in the tarwad. Defendants 90 to 114 are the members of Velumbis branch while plaintiffs and defendants 1 to 89 are members of Kunjuneelis branch. Kunjuneeli had four daughters Kojnali, Karumbi, Nangeli and Chakki who represented four thavazhies in the branch of Kunjuneeli. Plaintiffs and defendants 1 to 50 are members of the thavazhi of Kojnali, defendants 51 to 54 are members of the thavazhi of Karumbi, defendants 55 to 62 are members of the thavazhi of Nangeli and defendants 63 to 89 are members of the thavazhi of Chakki. The names of the sons of Kunjuneeli are also shown in the geneological table produced by the plaintiffs. Kunjuneelis sister Velumbi had a son Krishnan and two daughters Nangeli and Kochupennu. Kochupennus daughter Kurumba left no issues so as to project a thavazhi of her own, with the result that defendants 90 to 114 are members of the thavazhi of Nangeli. Krishnan or Krishna Panicken of this branch was the common karanavan of the tarwad till the year 1074. He was succeeded by Pappu Panicken who was the elder brother of the 63rd defendant. Since Pappu Panicken was a sickly person, the de facto management of the tarwad during his period of karanavanship was, with his consent, conducted by the 63rd defendant. On the death of Pappu Panicken in the year 1089 he was succeeded by Velumban Panicken of the thavazhi of Kojnali as the de jure karanavan, but since he was an incompetent karanavan, he was not able to oust: the 63rd defendant from actual management. The disputes between them about the possession of the tarwad properties led to a summary case (S.C. No. 4/1091 of the First Class Magistrates Court at Kayamkulam) and by the decision in that case possession of the properties was declared in favour of the 63rd defendant. Thus he continued to be the de facto karanavan of the tarwad and Velumban Panicken died towards the close of the year 1102 without being able to exercise his powers of management at any time. The 1st defendant succeeded him as karanavan of the tarwad and within a short time after that, the present suit was instituted by the plaintiffs. Out of the B schedule items, the building in item 21 was stated to have been put up by the 55th defendant with his own funds and as such belonging to him exclusively. Similarly, it was stated that the 6th plaintiff has a mortgage right over items 33 to 35 and that these items are to be partitioned subject only to the rights of the 6th plaintiff under the mortgage in her favour. All the other documents which have been brought into existence in favour of some of the defendants in the case were repudiated by the plaintiffs as conferring no rights in favour of these defendants in respect of the plaint items.

(2.) In the written statement filed by defendants 7, 16, 34, 36, 43, 44, and 45 to 50 they supported the case of the plaintiffs and admitted the correctness of the relationship of the parties as shown in the geneological table filed by the plaintiffs. Defendants 92, 96, 103 and 111 also accepted this geneology as correct, but disputed the plaint claim that all the items in the B schedule belong to the common tarwad. They claimed special and exclusive rights in respect of items 62 to 64 and items 66 to 68 and 74 and 75. The real contest in the suit was by defendants 63, 64, 65 and 74. They questioned the correctness of the geneology as shown in plaint A schedule and contended that plaintiffs and defendants 1 to 62 are not members of the Kollasseril or Kollasseril Kizhakkethil tarwad and that they have no right to claim any share out of the B schedule items 1 to 21 and 24 to 75. It was further contended that this tarwad consists of two thavazhies, one represented by defendants 63 to 89 and the other represented by defendants 90 to 114. Plaintiffs and defendants 1 to 62 were stated to be members of a different tarwad known by the name of Kollasseril Padeettathil, and items 22 and 23 were stated to belong to this tarwad. However, it was conceded that these two tarwads were known to have remained joint originally and to have become divided in interest some time prior to 1000 M. E. and to have conducted as separate tarwads for more than a century prior to the date of the suit. - Special rights were also set up by these defendants in respect of items 1, 3, 10, 15, 16, 36 to 43, and 46 to 50. The special right conceded in the plaint in favour of the 55th defendant in respect of item 21 was denied by these contesting defendants. It was further contended by these defendants that even if the plaintiffs and defendants 1 to 62 are found to be members of an undivided branch in the Kollasseril tarwad, they were excluded from the possession and enjoyment of these properties by the 63rd defendant and the members of his branch for more than the statutory period of time and on account of such adverse possession and limitation, the plaintiffs branch lost all the rights in these properties. The suit brought by a few of the members only out of the members in the thavazhi of Thevi, was contended to be not maintainable in view of the restrictive nature of the right of partition recognised by the Travancore Ezhava Act.

(3.) As a result of the trial of the suit, the first court found that items 27, 29, 74 and 75 of the B schedule are the separate properties of the sakha of defendants 90 to 104 and that the plaintiffs are not entitled to claim any share out of these items. The special rights put forward by these defendants as also by the other contesting defendants in respect of some of the other items in the B schedule, were all negatived, with the result that all the items excepting items 27, 29, 74 and 75 were held to be partible properties belonging to the common tarwad of Kollasseril. The geneology shown in the plaint A schedule was found to be correct. The plea of adverse possession and limitation set up by the contesting defendants was negatived and it was held that plaintiffs and defendants 1 to 114 continued to be members of the Kollasseril tarwad and that all of them were entitled to their respective shares in the properties found to belong to this tarwad. The objection to the maintainability of the suit on the basis of the relevant provisions of the Travancore Ezhava Act, was not pressed at the time of arguments and accordingly, the Trial Court discarded that objection and held that the plaintiffs suit for partition is maintainable. A preliminary decree for partition was passed in favour of the plaintiffs and provision was also made for payment of mesne profits due in respect of their shares. Against that decree an appeal was preferred to the District Court by defendants 63 & 64. Both of them died during the pendency of the appeal and by the order on C. M. P. 514971952 respondents 78 and 72 who are defendants 85 and 79 respectively, were allowed to prosecute the appeal and they were accordingly transposed as additional appellants 3 and 4. Defendants 92 and 96 filed an objection memorandum against the decision of the Trial Court negativing the special claims urged on behalf of their sakha in respect of items 10 to 14, 16, 51 to 66 and 69 to 72.