MARIAMMA Vs. CHARAGHAN

JUDGEMENT

(1.) THESE two appeals are by the common plaintiff in two suits for partition, viz. O. S. 55 of 1947 of the Ottappalam Sub Court and O. S. 204 of 1122 of the Trichur District Court. The Ottapppalam suit which was the earlier of the suits and also led to the earlier appeal concerned properties in malabar while the Trichur suit concerned properties in Cochin. The appeal A. S. 752 of 1952 had been filed before the Madras High Court and was pending on its file and with the passing of the States Re-organisation Act was transferred to this court. A cross-appeal has been taken therein by the 17th respondent-16th defendant. As these appeals involved common question of law and fact they were heard together and are being disposed of by this single judgment. It will be convenient to state the facts with reference to the parties and properties as arrayed in O. S. 55 of 1947 to begin with and we will accordingly be doing so.

(2.) THE A Schedule to the plaint in O. S. 55 of 1947 gives the pedigree of the parties as follows: Table:#1 THE wife of lyyavu the ancestor is Thandamma, deceased and their children included three more daughters elder to the plaintiff and not shown in the pedigree. THE plaintiff Mariam was thus the last of 7 children born to Iyyavu of whom 3 inclusive of the 1st defendant Pathu were males and 4 were females. Iyyavu died on 12-1-1909 leaving behind him his 7 children and his wife and also considerable properties. THEre is a controversy between the parties as to whether he left also an unregistered will dated 9-1-1908 and filed as Ex. B3, providing for the devolution of his entire estate in favour of his three sons exclusively subject only to their paying certain legacies in favour of their uncle's wife and their mother & sisters inclusive of the plaintiff. Anyhow the brothers did not get the will probated but obtained Ext. B-4 sammathapatrom dated 11-2-1908 from the legatees under the will above mentioned agreeing to the provisions of the will which was practically incorporated in it. THE plaintiff who was then a minor about ten years old was represented in Ext. B4 by her mother Thandamma. THE brothers did not divide the estate but the eldest of them, Ittoop was allowed to manage it on all their common behalf.

(3.) O. S. 204 of 1122 of the Trichur District Court is concerned with 91 items of immovable properties. After several settlements with various defendants pending suit the plaintiff laid claim to only 31 items, of which items Nos. 1, 2, and part of 3 and 4;10 & part of 3 & 4;16, 76 and 77 were with the contesting defendants 11, 18, 22, 26 and 27 respectively. The contentions of the plaintiff were the same as in the Ottapalam suit except as regards the question of res judicata which in the nature of the differing jurisdictions could not be and was not raised. According to the contesting defendants the devolution of the properties left by Iyyavu was governed by the Will of 9-1-1908 filed in the Ottapalam suit as Ex. B 3 and copy of which was filed as ex II in the case. Anyhow under special custom which they alleged was being followed by Jacobite Syrian Christians of Cochin, daughters were not entitled to any share in their father's estate and this effectively shut out the plaintiff. They also set up adverse possession and limitation and waiver. The general questions that thus arose for consideration in the Trichur suit were (i) the genuineness of the Will; (ii) the law governing the devolution of deceased Iyyavu's properties; and (iii) limitation and adverse possession and waiver. There was also the particular question in respect of some of the items as to whether they appertained to Jyyavu's estates. Ultimately the trial court held that it was not any special custom but the Indian Succession Act that governed the devolution but the plaintiff had to fail because firstly the Will in question was genuine (particularly in the light of the samma-thapatrom of 11-2-1908), copy of which was filed as Ex. XIII) and could also be proved by the defendants in the absence in Cochin of any rule corresponding to S. 213 of the Indian Succession Act, and secondly the suit was barred by limitation, adverse possession, abandonment, ouster and laches. The court below also entered finding that in case the plaintiff was entitled to a share she could get only 1/8 share in the items, items 4, 16, 76 and 77 in the possession of the contesting defendants and also in such of those items as were in the possession of the ex parte defendants. In the result the court below dismissed the suit. Hence the appeal by the plaintiff in A. S. 82 of 1955. A. S. 752 of 1952