MADHUKUMAR Vs. GOPALA MENON

JUDGEMENT

(1.) DEFENDANTS 3, 4, 7 and 9 to 14 in O. S. No. 631 of 1993 on the file of the first addl. Sub Court, Ernakulam are the appellants in A. S. No. 563 of 1999. Defendants 15 to 17 are the appellants in R. F. A. No. 43 of 2008. The aforementioned suit was one for partition and separate possession of the plaintiffs' 8/16 shares over two items of immovable properties described in the plaint. Plaint A schedule item No. 1 is shown as having an extent of 70 cents. Plaint A schedule item No. 2 lying comprised in two survey numbers has a total extent of 3. 51 acres. Plaint A schedule itemno. 1 is in Poonithura Village and itemno. 2 is in Thrikkakara North Village of ernakulam District. PLAINTIFFS' CASE

(2.) THE case of the plaintiffs can be summarised as follows: plaint schedule properties belonged to the Marumakkathayam tarvad of the plaintiffs 2 to 8 and defendants 1 to 14 known as Andipillil Tarvad. In the year 1950 a partition took place in the said tarvad as evidenced by Ext. A-1 partition deed dated 1-11-1950 and plaint A schedule item No. 1 was allotted to the tavazhi of Parukutty amma. The said partition was between defendants 1, 7 and 8 and Neelakanda menon and their mother Parukutty Amma. The plaint A schedule item No. 2 was acquired by the tavazhi of Parukutty Amma as per Ext. A-2 usufructuary mortgage dated 7th Edavam 1096 (corresponding to the year 1921) executed by Parvathy amma, the mother-in-law of Parukutty Amma. Plaintiffs 2 to 8 are the children of padmavathy. Amma who was one of the daughters of the first defendant Narayani amma who in turn was one of the daughters of Parukutty Amma. Parukutty Amma and Padmavathy Amma are no more. Defendants 2 to 4 are the other children of the first defendant, Narayani Amma. Defendants 5 and 6 are the children of the 2nd defendant. Thus, plaintiffs 2 to 8 and defendants 1 to 14 are the members of the tavazhi of Parukutty Amma who was the common ancestress of the tarvad. The plaint A schedule properties belonged to the said tavazhi. The properties are in the joint possession of the plaintiffs 2 to 8 and defendants 1 to 14. The plaintiffs were given their share of income from the properties up to December 1991. The assignment deed executed by defendants 2 and 8 in favour of strangers are void and not binding on the plaintiffs. Even though the plaintiffs demanded partition and separate possession of their share the defendants have not acceded to their demand. The properties will fetch an annual income of Rs. 10,000. The plaint schedule properties may, therefore, be divided into 16 shares and the plaintiffs may be allotted 8 shares over the same with share of profits at the rate of Rs. 5,000 per annum. THE DEFENCE

(3.) THE suit was resisted by defendants 1, 3, 4, 7, 9, 11 and 12 raising the following contentions: the plaint allegation that the plaint A schedule item No. 1 property belonged to andippillil Tarvad is false. It was the property belonging to Andippillil Krishnan menon. The said Krishnan Menon gifted the property in favour of 11 persons as per a gift deed of the year 1099 ME (corresponding to the year 1924 ). Out of the 11 persons Ravunni Nair and Madhavi Amma died. The remaining 9 co-owners partitioned the properties as per Ext. A-1 partition deed dated 1-11-1950. The plaint A schedule item No. I was allotted to defendants 1, 7 and 8 and their brother neelakanda Menon and their mother Parukutty Amma. It was not a tavazhi property and, therefore, subsequently born children in the Andipillil tarvad have no right over the property. Plaint A schedule item No. 2 also did not belong to Andippillil tarvad. The said item belonged to Kandangad Sankaran Padmanabhan, the husband of parukutty Amma and the father of defendants 1, 7 and 8 and deceased Neelakanda menon. On the death of Sankaran Padmanabhan, the half share he had over the property devolved upon his wife Parukutty Amma and children, Narayani Amma (D-1), Karunakara Menon (D-8), Neelakanda Menon and Ammukutty Amma (D-7 ). The other half share devolved on Sankaran Padmanabhan's mother Parvathy. She gifted her share to the wife and children of Sankaran Padmanabhan as per document no. 3177/1096 M. E. of S. R. O. Alangad. The plaintiffs have no right over the said property. The share of Neelakanda Menon in the suit properties was assigned in favour of the 8th defendant as per Ext. B-1 sale deed of the year 1116 and B-2 sale deed dated 21-10-1955. Parukutty Amma died in the year 1972. Thereafter as per ext. B-3 partition deed dated 28-10-1981 of S. R. O. Tripunithura, defendants 1, 7 and 8 partitioned the properties among themselves. 8th defendant Karunakara Menon assigned 10 cents of property in favour of the 15th defendant and his wife the 16th defendant as per sale deed. By his Will dated 15-7-1989 Karunakara Menon bequeathed his property to his children who are defendants 10 to 14. The first defendant gifted her share over the properties to her daughter Kamalakshi @ thankam the 2nd defendant as per Ext. B-4 gift deed dated 4-3-1983. The 2nd defendant in turn assigned the same to her children namely defendants 5 and 6. Defendants 5 and 6 assigned the property to strangers. The plaintiffs have no right over the plaint schedule properties. The plaint allegation that the plaintiffs were given their share of income from the properties till December 1991 is false. The properties will not fetch Rs. 10,000 per annum as alleged. At the most they may fetch Rs. 100 per annum. The suit may be dismissed with costs.