RAMA RAO Vs. KRISHNAMMA

JUDGEMENT

(1.) This appeal arises out of a suit for rectification on account of fraud, of certain partition arrangements in a tarwad. The appeal is by the 18th defendant whose subsequent purchase of some of the items on basis of the partition has been ignored while granting the rectification by the court below.

(2.) The plaintiffs 1 to 8 and the defendants 1 to 11 represent a branch of the Polunnal Nair tarwad at Kottarakara in Travancore. This branch had Makkathayam properties covered by schedule 1 to the suit and also properties obtained in partition from the main tarwad under Ext. C dated 28-11-1103 and listed as items 1 to 26 of the schedule 2 to the plaint. These 2 sets of properties were partitioned among the members of the branch for the time being, respectively under Ext. B dated 27-5-1103 and Ext. D dated 14-11-1105. It is the rectification of the allotments in favour of the plaintiff's group under Exts. B and D partitions that formed the subject - matter of this suit. We are concerned in this appeal only with the rectification as regards Ext. D and that again to the extent it affects items 4 to 10 and 26 of the schedule 2 which had been subsequently purchased by the 18th defendant. It is the plaintiffs' case that item 26 of those is only an accession of item 4 and registered as such in the name of a prior karnavan of the tarwad, Parameswaran Pillai, and so had been continuously enjoyed by the tarwad.

(3.) There were 7 adults and 5 minors who were parties to Ext. D partition arrangement. The adults consisted of 3 sisters, Kunhikutty, Gouri and Janaki of whom the first two were issueless and Janaki's four children, namely the 1st defendant Narayanan Pillai, Karnavan of the branch, Parukutty the 2nd defendant, Kamalakshi the 5th defendant and Meenakshi the 6th defendant. The minors consisted of defendants 3 and 4, children of Parukutty, plaintiffs 1 and 2, children of Kamalakshi and the 7th defendant, the child of Meenakshi. It is the plaintiffs' case and has been so found by the court below that on the date of Ext. D, the 3rd plaintiff, Sadasivan Nair was a child in womb of their mother Kamalakshi. The plaintiffs 4 to 8 had then been neither conceived nor born. According to the plaintiffs, Ext. D partition deed was void and ineffective as against the 5th defendant's group inclusive of the plaintiffs 1 to 3 and indeed against those of the 2nd and 6th defendants' group also, because it has been brought about by the 1st defendant in fraud of the others and in view only to his own self aggrandisement at the expense of the other cosharers. The plaintiffs laid their suit on 15-2-1123 when, it was claimed, the plaintiffs 1 and 2 had not passed three years after attaining majority. The 17th defendant was impleaded as the alienee from the 1st defendant under Ext. I dated 22-7-1117, of items 4 to 10 of the A portion of the II schedule which had fallen to his share under Ext. D. The 17th defendant had also obtained sale separately of item 26 under Ext. XVII dated 25-7-1117, from Kamalakshi, daughter of Parameswaran Pillai the prior karnavan abovesaid, on the assumption that that item belonged to her under Parameswaran Pillai's gift deed of 1106. But this document according to the plaintiffs was an attempt to make out an extenuous title by the 17th defendant who had obtained possession of item 26 along with item 4 under Ext. I itself. The 18th defendant was impleaded as transferee from the 17th defendant of all his rights in items 4 to 10 and 26 under Ext. III dated 22-2-1122.