KALIANIKUTTY AMMA Vs. DEVAKY AMMA

JUDGEMENT

(1.) This is an appeal by defendants 79 to 84 in O.S. No. 16 of 1120 on the file of the Anjikaimal District Court. The appeal is directed against the preliminary decree for partition passed by that Court on 26th Thulam 1123. Plaintiffs 1 to 3, defendants 1 to 78 and defendant 92 are, or were members of a Nanjanad Vellala family settled down at Ernakulam. In 1102 there was a partition in the family. That is evidenced by the partition deed Ext. A, dated 27th Vrischigam 1102. The present suit is to set aside that partition and to effect a division de novo. On the date of Ext. A the three plaintiffs were minors. Defendants 79 to 84, the appellants before us, are the widow and children of Velayudhan Pillai who was the Karnavan when the division was effected. He died in Kumbhom 1119 bequeathing all his properties to the appellants. Defendants 85 to 91 are the legal heirs of one Chakyat Narayana Menon, deceased, to whom Velayudhan Pillai had assigned a portion of one of the items he got in partition. The plaintiff's claim to have the partition arrangement under Ext. A set aside and to have a fresh division of the plaint schedule properties found favour with the Court below and that Court accordingly passed a preliminary decree for partition after declaring Ext. A to be not valid and binding. Defendants 79 to 84 who were the main contesting defendants in the suit have hence preferred this appeal.

(2.) Besides the appellant No. 78, one of the surviving brothers of Velayudhan Pillai, and defendant No. 87, the senior male member among the heirs of Narayana Menon, the vendee of a portion of the plaint properties from Velayudhan Pillai, contested the suit. All other defendants remained ex parte. Defendant 78, who in his written statement supported the partition arrangement under Ext. A, ceased to make his appearance after a certain stage and he was therefore declared ex parte. Defendant No. 87 while supporting the main defence raised by defendants 79 to 84 also claimed by way of equitable relief that in case the Court were to direct a fresh division, the property his father purchased should be set apart to the share of the vendor, the deceased Velayudhan Pillai and that in any event, the value of improvements effected after the property came into his father's hands should be awarded to defendants 85 to 91. The preliminary decree provides that in dividing the properties the portion in the possession of defendants 85 to 91 should as far as possible be allotted to the share of Velayudhan Pillai and that the question of value of improvements will be gone into if and when it is found that such a division is not possible. Defendant No. 87 was content with that relief and he has not therefore preferred any appeal.

(3.) According to the plaintiffs the partition effected under Ext. A was neither fair nor legal. The properties dealt with thereunder belonged to their Marumakkathayam tarwad and to have divided them per stripes instead of per capita was clearly wrong and opposed to marumakkathayam tenets and practices. The second ground of attack on Ext. A was that there were gross inequalities in the division and that while the shares allotted to Velayudhan Pillai, defendant 78 and the latter's younger brother Lekshmanan Pillai were undervalued, the shares allotted to the two female branches of the tarwad were overvalued. Another ground alleged as a circumstance to vitiate the partition was that bogus, or at any rate debts for which certain members alone were liable were treated as tarwad debts and division effected accordingly. Besides these three main grounds the plaint also contained very many other grounds of attack such as fraud, undue influence, coercion, etc. to invalidate the partition. But as the three main grounds alone found favour with the Court below it is unnecessary for our present purposes to enter into the details of the other grounds mentioned in the plaint.