MADHAVAN Vs. KARTHIANI

JUDGEMENT

(1.) THE first defendant is the appellant.Plaintiffs 1 to 3 and the defendants 3 to11 are the respondents.The second defendant died during the pendency ofthe suit in the Trial Court and her legal representatives are as defendants 7 to11.This appeal is filed against the Judgment of the Principal Sub Judge,Kottayam delivered in A.S.No.64 of 1993,wherein the Judgment of the TrialCourt,which passed a preliminary decree for partition in O.S.No.795 of 1.989(Principal Munsiff,Kottayam ),was confirmed.

(2.) THE Plaintiffs filed the suit before the Munsiff on the following grounds:The suit property measuring 1 acre 19 cents originally belonged to the motherof plaintiffs by name Kunju Pennu.On the death of Kunju Pennu,the plaintiffsand the defendants 1 and 2 obtained the property by succession.Thedeceased second defendant is the sister of plaintiffs as well as the firstdefendant.The above Kunju Pennu died on 10th July 1989.The plaintiffs areentitled to 1/5 share each in the suit property.The first defendant is entitled to1/5 share and the defendants 7 to 11 who are the legal representatives of thesecond defendant together entitled to 1/5 share.There are buildings in itemNo.1 in which also plaintiffs are entitled to 3/4 share.The plaint item No.1 aspointed out above is 1 acre 19 cents and the plaint items 2 to 5 are thebuildings.Since the first defendant was not amenable for a partition,the suitwas filed against the respondents defendants for partition,mesne profits etc.

(3.) IN the Trial Court Exts.B -1 to B -8 were marked.On the plaintiffs 'side thefirst plaintiff was examined as PW 1.On the defendants 'side the firstdefendant and one Scaria were examined as PWs 1 and 2.The PrincipalMunsiff,Kottayam on examining the evidence adduced on both sides passeda preliminary decree for partition that the plaintiffs are entitled to 3/5 share inthe plaint schedule properties and also for recovery of the same.It alsodecreed that the first defendant is entitled to only 1/5 share and thedefendants 7 to 11 being the legal heirs of the deceased second defendantare together entitled to 1/5 share,leaving mesne profits to be decided in thefinal decree proceedings.Challenging the above Judgment of the PrincipalMunsiff,Kottayam,the first defendant filed an appeal before the Principal SubJudge,Kottayam as A.S.No.64/93,as noted above.