KRISHNAN NAMBOODIRI Vs. CHERIA KESAVAN NAMBOODIRI

JUDGEMENT

(1.) This appeal is by the defendants 2, 3 and 11 against the judgment and decree of the lower court in a suit for partition in a Malabar Namboodiri family tailed Mankolathillam in Cheruthazham Amsom in Chirakkal Taluk and comprising the 1st plaintiff and defendants 1 to 10 except the 3rd defendant. Of these parties and the 11th defendant, defendants 1 to 3 are brothers. The 6th defendant is the wife of the 1st defendant and the 11th defendant is the wife of the 3rd defendant. Plaintiff 1 and defendants 4, 7, 8 and 9 are the children of the defendants 1 and 5 and the 6th defendant is the wife of the 4th defendant. The loth defendant is the son of the defendants 4 and 6. The defendants 4, 6, and 10 were transposed as plaintiffs 2, 3 and 4 pending suit. According to the plaintiff, the 3rd defendant had separated from the family under registered release Ext. A-6 dated 24-3-1939 but he was allowed to deal with the family properties and income by the 1st defendant karanavan though to the prejudice of the illom. The plaintiffs repudiated the claim to a share by the 3rd defendant; similarly by the 11th defendant who was married by the 3rd defendant long after Ext, A-6 date. The plaintiffs further denied that defendants 2 and 3 were entitled to any special interest in any of the properties of the illom. They accordingly claimed their 4/10 share in the properties scheduled, free of the special rights alleged by the defendants 2 and 3 or of the claim to shares put forth by the defendants 3 and 11. The suit was contested by the defendants 2, 3 and 11 on various grounds but the court below disallowed them all and decreed the suit almost as prayed for. We are concerned with two only of those contentions, viz., (1) that the defendants 3 and 11 were entitled each to a separate share in the illom properties, and (ii) that the suit as originally laid with 1st plaintiff, then minor, as the sole plaintiff was defective to the extent it had not been proved to be for his benefit.

(2.) Taking up first, the question of the 3rd defendants share. According to the 3rd defendant he had no doubt executed Ext. A-6 in 1939 but it was merely sham and had not come into effect. Alternatively there was a subsequent reunion among the members of the family under Ext. B-11 karar dated 8-2-1950. This alternative contention has not been persisted in before us and so need not be further considered. The court below in dealing with the main aspect found that Ext. A-6 release by the 3rd defendant did not stand by itself; there was for instance an earlier release Ext. A-5 dated 5-12-1938 by Govindan, brother of the 3rd defendant, and a later release Ext. A-7 dated 3-1-1941 executed by Draupadi widow of Iswaran, elder brother of defendants 1 and 3, all of them valuing alike the share released at Rs. 400. And just as Govindan did not figure among the members of the illom when the 3rd defendant executed his release Ext. 6, the 3rd defendants name did not appear in Draupadis release Ext. A-7. Exhibits A-5 and A-7 had not also been repudiated by the respective releasers. There was therefore according to the court below prima facie no reason why Ext. A-6 alone of the releases Exts. A-5 to A-7 should have come into effect. On the terms of Ext. A-6 the court below found that it was executed in pursuance to demand made on the rest of the members by the 3rd defendant himself for partition and allotment of his share in all the movable and the immovable properties belonging to the illom and that a sum of Rs. 400 was settled as the value thereof and that amount was paid in part to the extent of Rs. 226-10 As. by adjustment as against a promissory note of specified date executed by the 3rd defendant to the then Sridharan Namboodiri, the balance of Rs. 173-6 As. being paid in cash. The 3rd defendant examined as D. W. 3 while swearing that he did not receive consideration under Ext. A-6 was willing to admit that the karnavan undertook to and did pay off Rs.400 to a creditor of the 3rd defendant who had just before the release, obtained a decree against him and that he had also executed to the karnavan a pro-note as stated in Ext. A-6.

(3.) There was also no explanation offered by the 3rd defendant in the court below as to what exactly were the exigencies of the situation at that time" referred to by him in his second written statement when he pleaded that Ext. A-6 was sham. On the other hand he appeared to have placed great reliance on a finding entered in Ext. 45 judgment dated 6-2-1942 in suit by his creditor against Sridharan and himself, O.S. 32 of 1941 in the District Munsiffs Court of Taliparamba, that Ext. A-6 had been executed in fraud of creditors and again on the recitals in Ext. B-11 dated 3-2-1950 Nischayareka among the adult members of the illom, referring to the existence of the 3rd defendants rights in the properties of the illom. But the court below found the former of not much consequence particularly in the light of the rest of the evidence to contrary effect and the latter to be not binding on the minor members of the illom and in any event in conclusive because it did not itself create any rights. There was the plaintiffs complaint also in connection with Ext. B-11 that the 3rd defendant had got into the good grace of the karnavan 1st defendant and got it executed so as to prop up a claim in himself to manage the illom properties. The court below, on all this evidence, disallowed the 3rd defendants plea that Ext. VI was sham and that on the other hand it brought about his definite separation from the illom and he was accordingly not a cosharer at date of suit. Having heard learned counsel for the appellant and gone through the evidence, we are satisfied that the finding entered by the court below as above is perfectly justified and there is nothing to induce us to depart from it.