APPU AATIYOTI Vs. KRISHNAN NAMBIAR

JUDGEMENT

(1.) This second appeal arises out of a suit for partition of a maru-makkathayam tarwad consisting of the plaintiff, defendants 1 to 48, 84 to 86 and 90. Defendant 1 is the present karnavan. One Kelappan Nambiar, who is now dead, was the karnavan before him, and defendant 80 is the widow of the said Kelappan Nambiar and defendants 49, 81 and 82 are his children by her. The other defendants in the suit were the wives and children of two other deceased members of the tarwad and persons who have obtained alienation of certain tarwad properties which are sought to be cancelled or avoided in the suit. As all the parties to the suit except defendants 49 and 80 to 82 have acquiesced in the preliminary decree for partition passed by the court of first instance and confirmed in appeal by the lower appellate court and defendants 49 and 80 to 82 alone have filed this second appeal, it will be enough to refer here only to the contentions of defendants 49 and 80 to 82.

(2.) Their contentions were two, namely, (1) that before his death Kelappan Nambiar had effected a severance of joint status and attained a Status of division from the other members of the tarwad by declaring his intention to get separated and he also was therefore entitled to get a share of the tarwad properties in partition and his rights had devolved after his death on defendants 49 and 80 to 82 and they were therefore entitled to get the share Kelappan Nambiar was entitled to, and (2) that they were entitled to a reservation of a special right in plaint B schedule items 4 and 47 on account of two leases, Exts. A 6 and All dated 26-10-1945 and 7-11-1945 respectively, executed by defendant 1, after he became the karnavan in favour of defendant 49. Both these contentions have been concurrently found against by the courts below; and after negativing them the court of first instance has passed preliminary decree for partition directing a division of the partiable properties into 52 shares and awarding one share each to the plaintiff and defendants 1 to 4, 18 shares to defendants 5 to 10, 18to 28 and 85 jointly 25 shares to defendants 11 to 16,29 to 45,84, 86 and 90 jointly, and 4 shares to defendants 17 and 46 to 48 jointly and the lower appellate court has confirmed that decree dismissing the appeal which defendants 49 and 80 to 82 filed as regards the rejection of their claims. The preliminary decree proceeds on the basis that defendant 90 who was bom subsequent to the institution of the suit has to be left out of account in reckoning the number of sharers. Against the dismissal of their appeal by the lower appellate court defendants 49 and 80 to 82 have filed the present second appeal.

(3.) Two circumstances were relied upon by the appellants in the lower court in support of their case that Kelappan Nambiar had attained divided status before his death. According to them, in 1937 another member of the tarwad, Raman Nambiar who also is now dead, claimed partition of his share and in consequence of that claim all the members of the tarwad including Kelappan Nambiar agreed to a partition and dw. 1 and another person were appointed as mediators for effecting the actual division of the properties by metes and bounds.This mediation, however, proved futile, and no partition was effected in pursuance of it. Again, in 1943, defendant 3 sent a notice to Kelappan Nambiar demanding partition, and to that notice Kelappan Nambiar sent a reply, Ext. B 13 dated 18-3-1943. In that reply notice also Kelappan Nambiar expressed his desire and readiness to effect a partition. These two circumstances were relied upon by the appellants in the courts below as evidencing an unequivocal declaration on the part of Kelappan Nambiar of his intention to become separate from his tarwad and as effecting a severance of his joint status. Dw. 1 gave evidence in support of the appellants' case that the members of the tarwad had agreed to a partition in 1937 and appointed him and another person as mediators to effect the division. According to him, a schedule of properties was also actually drawn up during the course of the mediation in the hand writing of dw. 14 who is the husband of defendant 11 - Plaintiff and other members of the tarwad denied that there was any mediation as alleged by dw. 1, and dw. 14 also denied it and deposed that he had not drawn up any schedule. The first court disbelieved the evidence of dw. 1 on the grounds that being related to the husband of defendant 82 he was interested in the appellants and that there were several improbabilities in his evidence, and believing the evidence of dw. 14, it found that the alleged mediation "was nothing but a figment of imagination of dw. 1". Regarding the notice, Ext. B 13, the first court's finding was that it did not contain an unequivocal expression of Kelappan Nambiar's intention to get separated from the tarwad and that even if it was assumed that it contains such an expression the notice was insufficient to confer a divided status on him as it was addressed only to defendant 3 and not to the other members of the tarwad. Relying on the opinion of Viswanatha Sastri, J, in Katheesumma v. Beechu ( AIR 1951 Mad. 561 ) which was referred to him in consequence of a difference of opinion between Sathyanarayana Rao and Pancha-pakesa Sastri, J J., who first heard that case, the lower appellate court held that to confer a divided status it was not necessary that the expression of the intention of the member making the unilateral declaration should be communicated to all the members of the tarwad, but on the questions whether there was an actual mediation and whether Ext. B 13 contained an unequivocal declaration of Kelappan Nambiar's intention to effect a severance of status it agreed with the findings of the first court. It is urged by the respondent's counsel that these findings relate to pure questions of fact and cannot be disturbed in second appeal.