SARASWATHY WARASSIAR Vs. PARUKUTTY WARASSIAR

JUDGEMENT

(1.) Defendants 1 to 8 in O.S. 142 of 1976 of the Sub Court, Parur have filed this appeal. Pending appeal first appellant died and her legal representatives have been impleaded as respondents 13 to 17.

(2.) Plaintiffs filed the suit for partition alleging chat they along with defendants 1 to 8 belonging to Warriar community are members of a tavazhi tarwad governed by Mitakshara Law and plaint A schedule properties were allotted to the tavazhi tarwad under Ext. A1 partition deed dated 15-12-1959 and the plaintiffs are entitled to separation of 8/16 share therein, that plaint B schedule properties belonged to Padmanabhan Namboodiri, the husband of the first defendant and father of first plaintiff and defendants 2 to 5 devolved on them on his death and the first plaintiff is entitled to separation of 1/6th share with mesne profits. On the death of the fourth defendant, defendants 9 to 14 were impleaded as his legal representatives. Plaintiffs also challenged various alienations in favour of defendants 15 to 18. Defendants 1, 2, 3, 5 and 9 to 14 filed joint written statement contending that plaint A schedule properties belong exclusively to the first defendant and are not tavazhi tarwad properties and hence not partible, that the first defendant had executed settlement deed in favour of her children including the first plaintiff, first plaintiff has only 1/7 share in plaint B schedule properties and the second defendant is not liable to account mesne profits. Defendants 15 to 18 claimed to be in possession of portions of plaint B schedule property by various alienations and sought to support the same and alternatively contended that these properties should be allotted to the share of alienors in case of partition. The Trial Court held that plaint A schedule properties belong to tavazhi tarwad and not to the first defendant exclusively, that the plaintiffs are entitled to 8/16 share therein, that the first plaintiff is entitled to 1/7share in plaint B schedule properties, that the question of accountability and liability for profits and the claim for improvements of defendants 15 to 18 will be determined in the final decree proceedings and accordingly passed a preliminary decree for partition. This decree is now challenged.

(3.) According to learned counsel for the appellants, the allotment under Ext. A1 is only in favour of the first defendant and not to the tavazhi. The common ancestress of plaintiffs and defendants 1 to 8 was Madhavi Warassiar. She had one son and five daughters. First defendant is one of her daughters. First plaintiff and defendants 2 to 5 are the children of the first defendant. Defendants 6 and 7 are the children of the fifth defendant. Plaintiffs 2 and 3 are the children of the first plaintiff and the other plaintiffs are the children of third plaintiff. Defendants 9 to 14 are the legal representatives of the fourth defendant. Ext. A1 dated 15-12-1959 evidences partition deed entered into between the defendants of Madhavi Warassiar. No doubt, the document states that many of the properties were acquired in the name of Madhavi Warassiar, though some of them were acquired in the name of herself and the names of two children. But the document clearly states that the intention behind the acquisitions was that the same will go to Madhavi Warassiar and her children. Ext. A1 further states that parties entered into the partition deed so as to ensure that they enjoy the properties. Under the partition deed, properties described as C schedule therein were specifically allotted to the share of the third group of sharers. Plaint A schedule properties are included in the C schedule and the third group represents first defendant and her descendants. There can therefore be no doubt that the allotment was to the tavazhi of the first defendant and not to the first defendant exclusively. Therefore plaintiffs have share in the properties as one of upatavazhis.