ACHARU Vs. RAPPAI

JUDGEMENT

(1.) The reference order passed by the learned Single Judge, before whom the second appeal came up for hearing in the first instance, reads as follows:

(2.) The first defendant in suit O. S. No. 164 of 1966 on the file of the Munsiff's Court, Irinjalakuda, is the appellant in the second appeal. The suit was one instituted by the 1st respondent herein, as plaintiff, for partition of the immovable properties described in the A and B schedules, and the movable properties described in the C schedule to the plaint, left behind by one Rappai who was the maternal uncle of the plaintiff, and the paternal uncle of the first defendant. The genealogy given in Para.4 of the judgment of the first appellate court will be helpful to understand the relationship between the contesting parties. The said Rappai, who died intestate on 19th August 1961 without leaving behind a widow or any issue to inherit his estate, was the son of one Antony who had five children, two sons (Rappai and Kuriappan) and three daughters (Mariam, Thressia and Annam). It is the admitted fact that Rappai's parents, brother and sisters had all predeceased him. The plaintiff in the suit is the son of the said Mariam, and the 9th defendant her daughter. The 1st defendant is the only daughter of Kuriappan, the brother of Rappai. The plaintiff and defendants 2 to 9 are the legal heirs of the said deceased Mariam, Thressia and Annam. The 10th defendant is the Receiver appointed in other proceedings between the parties, and the 11th defendant is an assignee in whose favour defendants 2 to 7 have transferred their purported shares in the plaint schedule properties. The plaint proceeded on the footing that on the death of the said Rappai, his estate had devolved on the plaintiff and defendants 1 to 9. It was also the case of the plaintiff that he was a panguvaram tenant under Rappai in respect of items 4, 6, 7, and a portion of item 5 in the A schedule. The defence of the 1st defendant was that the said Mariam, Thressia and Annam, through whom the plaintiff and defendants 2 to 9 traced their right to the plaint schedule properties, were not entitled to claim any share whatsoever in those properties inasmuch as they were all given in marriage and were paid Streedhanam during the lifetime of their father Antony. The panguvaram tenancy right claimed by the plaintiff also was denied by the 1st defendant. The Trial Court as per its judgment dated 8th April 1971 passed a preliminary decree declaring, inter alia, that the plaintiff was entitled to 15/120 share and the 11th defendant to 34/120 share in the plaint schedule properties. It also recorded to the effect that the case of the 1st defendant that Streedhanam was paid to Mariam, Thressia and Annam, the predecessors in interest of the plaintiff and defendants 2 to 9, was not established, and that the plaintiff was entitled to reservation of the panguvaram tenancy claimed by him with respect to items 4,6,7 and part of 5 in the A Schedule. On appeal by the 1st defendant, the court of the Subordinate Judge of Irinjalakuda, in the judgment, dated 17th September 1973 in A. S. No. 121 of 1971, while upholding the preliminary decree for partition passed by the Trial Court, has held, on reversal of the finding of the Trial Court, that Mariam, Thressia and Annam were all married and were all also paid Streedhanam during the lifetime of their father Antony, and also that the plaintiff was not entitled to claim reservation of any panguvaram tenancy right. There were also certain modifications in regard to the order as to costs in the judgment of the first appellate court.

(3.) Aggrieved by the decision of the 1st appellate court in so far as it relates to the confirmation of the preliminary decree for partition passed by the Trial Court, the 1st defendant, who was the appellant before the first appellate court also, has preferred the second appeal. In the memorandum of cross objections filed by the first respondent (plaintiff) the correctness of the findings of the first appellate court that Streedhanam was paid to the said Mariam, Thressia and Annam during the lifetime of their father Antony, and that the plaintiff was not entitled to reservation as panguvaram tenant has been canvassed.