THAYYULLATHIL KUNHIKANNAN Vs. THAYYULLATHIL KALLIANI

JUDGEMENT

(1.) This appeal is by defendants 3 to 6 in a suit for partition. Admittedly, the plaint A schedule properties belonged to one Pokken, who had two sons, Kumaran and Kunhikannan (3rd defendant) and three daughters, Devu, Ammalu and Kalyani, who are defendants 1 and 2, and the plaintiff, respectively. Defendants 4 to 6 are the children of the 3rd defendant. Pokken died on March 12, 1968; his wife Chirutha on May 30, 1977, and son Kumaran, on September 4, 1974 (vide Ext. B27). Pokken had two sisters Matha and Kalyani, of whom Kalyani had two sons, Kunhikannan and Gopalan.

(2.) The plaintiff filed the suit for partition and separate possession of her 1/3 share in the two items of plaint A schedule properties, and the B schedule movables, with the allegation that Pokken had executed a registered will on August 31, 1953 bequeathing these properties to his three daughters, to be held by them in equal shares, and that therefore she was entitled to a 1/3 share therein. By the Will (a registration copy of which is Ext. A1) Pokken bequeathed the eight items of properties specifically mentioned, to his sons (Kumaran and the 3rd defendant), sister Matha, and nephews Kunhikannan and Gopalan. In particular, item No. 7 of the will, which was Pokken's share in a joint family property, was bequeathed to his sister Matha, and nephews, Kunhikannan and Gopalan in moieties. All the other assets of Pokken, not named in the Will, (which include the plaint schedule properties) were bequeathed to the three daughters, plaintiff and defendants I and 2, subject to a life interest in favour of the wife Chirutha, to be in possession, and to enjoy the usufructs during her life time, without any right to deal with the same. Chirutha died on May 30, 1977. The plaintiff thereafter became entitled to possession of 1/3 share in the properties, and she claimed partition and separate possession of this share in the suit.

(3.) Defendants 1 and 2, the other two daughters of Pokken, support the plaintiff and claim 1/3 share each in the plaint schedule properties. On the other hand, defendants 3 to 6, namely, Kunhikannan, (a son of Pokkeh) and his children, oppose the plaintiff's claim, with the contention that they are entitled to 3/6 share in the properties. They admit that the plaint A schedule properties belonged to Pokken, and that Pokken had executed the Will Ext. A1; but they contend that the Will had been revoked by Pokken, by the compromise petition Ext. X1 (copy Ext. B1) in the suit O.S.No. 1020 of 1955 on the file of the Munsiffs Court, Badagara filed by him against his son, Kumaran. The Will Ext. A1 was therefore inoperative. Pokken died intestate, and the plaint A schedule properties devolved on his wife, two sons and three daughters in equal shares. The third defendant thus had 1/6 share in the properties on the death of Pokken. Chirutha, the wife of Pokken, assigned her 1/6 share in the properties to one Nanu on March 31, 1973 and he, in turn, assigned his rights to the third defendant. Kumaran, to whom 1/6 right in the properties belonged, bequeathed his share to defendants 4 to 6 by his will executed on February 23, 1972. Defendants 3 to 6 thus became entitled to 3/6 share in the plaint A schedule properties. The children of Pokken had executed a nischayapathram in the year 1961, by which it was provided that the properties belonging to them, were to be held and enjoyed in common. After Pokken's death, his children divided his properties, and other belonging to them, by a deed of partition dated November 20, 1971. The plaint A schedule properties and one Chorodankandy paramba were however left undivided and kept in common for Chirutha to enjoy the income therefrom during her life time. Plaintiff and defendants 1 and 2 were parties to these documents. They had agreed and accepted that the plaint A schedule properties belonged in common to all the heirs of Pokken. They were therefore estopped from contending otherwise in the suit.