PRABHAKARA MENON Vs. GOPALA MENON

JUDGEMENT

(1.) This appeal arises from the preliminary decree in a suit for partition. The plaintiff sued for partition of the properties described in schedules A, A1, B and C appended to the plaint. The suit was allowed only in respect of the properties in schedule A; hence this appeal by the plaintiff.

(2.) The facts necessary for the decision of the appeal may be stated: The plaintiff and defendants 1 and 2 are the descendants of one Kunji Amma who had six sons, Raghavan Nair, Kannankutty Nair, Ramankutty Nair, Govinda Menon, Sekharan Nair and Madhavankutty Menon, and a daughter, Kallyani Amma. Kallyani Amma had two sons who are defendants 1 and 2 and a daughter, Kunhikutty Amma. The plaintiff is the only surviving son of Kunhikutty Amma. The properties in schedule A are those obtained by Kunji Amma's thavazhi in partition of the main tarvvad in 1927. B schedule represents properties alleged by the plaintiff to have been obtained by the thavazhi from Kunji Amma's husband, Gopala Menon. Part of B schedule properties was compulsorily acquired by the Government and the compensation due in respect of the same is included in schedule A1. C schedule represents the movables. At the time of suit, the three surviving members of the thavazhi were the plaintiff and defendants 1 and 2. The plaintiff sued for partition and recovery of one-third share in all the properties with profits, past and future.

(3.) Defendants 1 and 2 raised practically the same contentions. According to them, the properties in schedule A had been partitioned under Ext. B14 on 30-5-1950, the plaintiff being represented by the first defendant. As regards B schedule properties, it was contended that they belonged to Kunji Amma and her children and not to the thavazhi. After the death of three of the brothers, the remaining brothers and Kallyani Amma partitioned these properties under Ext. B68 dated 26-6-1939. Kallyani Amma took the shares of the rest and she bequeathed them to defendants 1 and 2 under a will, Ext. B67, executed on 4-4-1942. The plaintiff's claim to the properties in schedule B and the compensation money in schedule A1 was thus denied. As regards the movables it was contended that the same did not exist. Defendants 3 and 4 who claimed to be mortgagees of the second defendant supported defendants 1 and 2 and further contended that the amounts due to them under the mortgages should in any event be charged on the second defendant's share.