AYYAN DAMODARAN Vs. CHELLAMMA

JUDGEMENT

(1.) The plaintiff in O.S. No. 338 of 1980 on the file or the Court of Subordinate Judge, Kottayam is the appellant in S.A. No. 233 of 1987-C.

(2.) S.A. No. 231 of 1987 arises out of O.S. No. 82/81, which is filed by the 1st defendant in O.S, No. 338 of 1980. The plaintiff in O.S. No. 338/80 is the sole defendant in that suit. Since issues are involved, both suit were tried together.

(3.) The plaint schedule property belonged to one Ayyan, the father of the plaintiff and the 1st defendant in O.S. No. 338 of 1980. Ayyan died on 15-6-1942. At the time of the death of Ayyan, the plaintiff in O.S. No. 338 of 1980, his sister Pappy and the defendant in O.S. No. 338/80 who is the plaintiff in O.S. No. 82/81 were alive. Pappy died on 20-5-1944. The case of the plaintiff in O.S. No. 338/80 is that he is the sole heir of Pappy. According to the plaintiff in O.S. No. 338/80, he had 2/3 share in the plaint schedule property and the 1st defendant who is the plaintiff in O.S. No. 82/81 had 1/3 share. Ayyan executed a will on 3-1-1967. Plaint item 1 and 2 were not included in the will. Item 1 is not set apart to any parties in the will. Item 2 is an acquisition by the plaintiffs father Ayyan and deceased Pappy. That item is also not included in the will. The plaintiff in O.S. No. 338/80 prayed for a decree for partition and separate possession of his 2/3 share and also for an injunction, restraining the 1st defendant who is the plaintiff in O.S. No. 82/81 from trespassing into the plaint schedule item 1 and cutting trees there from. In the written statement filed by the 1st defendant in O.S. No. 338/80, she raised a contention that the 1st defendant and Pappy are not children of Ayyan by the same mother. On the basis of this, she contended that after the death of Pappy, her property should devolve on the plaintiff and the 1st defendant equally. In O.S. No. 82/81, the 1st defendant in O.S. No. 338/80 sought partition and allotment of 1/2 share to her on the basis of the same contention. Item No. 5 in O.S. No. 82/81 is Item No. 2 in O.S. No. 338/80. It is her case that since Pappy and Damodaran were not children of the same mother, she and Damodaran, the plaintiff in O.S. No. 338/80 are entitled to equal shares.