CHEETHA ALIAS AMMUKUTTY Vs. SANKARANKUTTY NAIR

JUDGEMENT

(1.) This appeal is by the plaintiffs in a suit for partition which has been decreed, though not to the full extent claimed.

(2.) The 1st plaintiff and defendants 6 and 7 are the children of Lekshmikutty Amma deceased, through her husband the 8th defendant, Raman Nair. The plaintiffs 2 to 4 are the children of the 1st plaintiff. The 1st defendant Madhavikutty Amma is the sister of Lekshmikutty Amma abovesaid and defendants 2, 3 and 4 are her children through the 8th defendant who married her subsequent to the death of Lekshmikutty Amma. The 5th defendant is the child of the 3rd defendant. The plaint averred that the plaintiffs 1 to 4 and the defendants 1 to 7 were members of an undivided marumakkathayam tarwad, to which the B schedule items 1 to 36 immovable properties and C schedule movables appertained and the plaintiffs accordingly claimed a per capita division of their 4/11 shares therein. We are concerned in this appeal mainly with B schedule items 4 to 36. In respect of items 4 to 35 of these, the court below by its preliminary decree held that the group of the plaintiffs I to 4 and 6 and 7 on the one side and that the 1st defendant on the other were each entitled to one-half share on basis of stirpital division and that inside the plaintiffs group, the plaintiffs 1 to 4 for themselves were entitled to only a one-fourth share. As regards B schedule item 36, the court below disallowed the plaintiffs claim altogether on the footing that it belonged to the 8th defendant exclusively. The plaintiffs in this appeal have reiterated their claim as laid in the plaint. They have also raised the question that their maintenance claim as per E schedule in the plaint should have been allowed in full. The defendants 2, 4 and 6 have, by their cross objections, questioned the grant of any maintenance at all.

(3.) Taking up, first, the question of B schedule items 4 to 36, these items along with others were bequeathed in favour of Lekshmikutty Amma and Madhavikutty Amma and their three sisters, Parukutty, Nanikutty and Meenakshikutty and also their mother Kalliani, under Ext B-l joint Will of 1918 executed by Krishna Menon their father and his mother Cheethamma and a later Will Ext. B-2 of 1930 executed by Cheethamma alone after the death of Krishna Menon, Kalliani and Lekshmikutty. The exact extent of the rights obtained by these sisters under the Wills was the subject matter of a suit O. S. 52 of 1956 of the Ottapalam Sub-Court. That was a suit for partition filed by the defendants 1 and 2 and the 1st plaintiff and defendants 6 and 7 against the other seven members of their tarwad comprising Parukutty and Nanikutty and Meenakshikutty and her children. The plaintiffs in that suit claimed a per capita division of not only their tarwad properties but also the properties covered by the Wills. The court, however decided that the properties covered by the Wills devolved upon the five sisters and their issue on the stirpital principle as contrasted with the per capita basis which governed the tarwad properties. Vide Ext B-6 judgment and B-7 preliminary decree dated 31-3-1938. But before final decree was passed by the court, the parties to that suit entered into a partition arrangement under Ext. B-9 dated 28-3-1941, so as to allocate the B schedule items 4 to 35 herein of the properties covered by the Wills, towards the 2/5th share of the group of the plaintiffs in that case. B schedule items 1 to 3 represented their 5/12 share in the tarwad properties. The management of these properties on behalf of the group was left to the 1st defendant. In describing the plaintiffs group, Ext. B-9 partition deed used the words sakha and thavazhi. And so the 1st defendant had carried on until the date of the suit styling herself as karnavathi and manager. It is, based upon this group allotment and subsequent conduct, that the plaintiffs claimed that B schedule items 4 to 35 were divisible among the present members of the group on per capita basis.