BHASKARAN THIRUMULPAD Vs. KAVUNNI THIRUMULPAD

JUDGEMENT

(1.) This appeal is directed against the decree and judgment of the Court of the Subordinate Judge of Ottapalsm in O. S. No. 85 of 1944, a suit filed by the appellants for partition and for delivery of possession to the plaintiffs and their mother, defendant 14, of their 7/20 share in the tarwad properties described in the plaint B schedule. Before us, learned counsel appearing for the parties did not cover the entire field of disputes occupied in the court below. It would, therefore, be sufficient if the necessary facts relevant to the questions raised were stated.

(2.) Defendants 1, 2, 6, 9 and 12 to 14 are the children of Kunhikutti Kolpad and her husband Kunhan Nedungadi. Plaintiffs are the children of defendant 14. The other defendants are the children of defendants 2, 6 and 9. Originally, Kunhitcutti Kolpad and her children were members of a tarwad called Mandilakkottil. In 1914 there was a partition among the members of the 'tarwad', and Kunhikutti Kolpad and her children separated themselves and constituted a different 'tarwad'. Kunnan, the husband of Kunhikutti Kolpad, was also in affluent circumstances. The B schedule properties were his self-acauisitions. Though this fact was disputed in tlie court below, it is conceded before us. He purchased the 'kanom' right in items 1 to 47 of the plaint B schedule, excluding items 16 to 21, in the name of his wife Kunhikutti Kolpad, items 16 to 21 in the name of his two children, defendants 1 and 14, and the leasehold interest in the items 51 to 53 in the names of his wife Kunhikutti Kolpad and four of her children. He acquired the 'jenm' right in items 48 to 50 in his own name under Ex. B. 8. Kunhikutti Kolpad died in 1919, and Kunhan died in 1932. Long before his death, on 15-11-1923, Kunhan executed a will Ex. B. 23 bequeathing to his seven children all the properties belonging to him exclusively. On the same day, he and his seven children executed a settlement deed, Ex. B. 24, in regard to items 1 to 47. After the death of Kunhan, in the year 1934, his children defendants 1, 2, 6, 9 and 12 to 14 partitioned the properties they got from their father, under Ex. B. 31 on stirpital basis. As regards the properties belonging to their 'tanvad', the 14th defendant and her children instituted O. S. No. 72 of 1938 on the file of the Walluvanad District Munsif's court. Pending the suit, the parties settled their dispute by executing the partition deed Ex. B. 72. The suit was dismissed. At the time Ex. B. 31 was executed the plaintiffs 1 to 4 were minors and the plaintiffs 5 and 6 were not born. After two of the plaintiffs became majors, they filed O. S. No. 85 of 1944 for partition of the B schedule properties on 'per capita' basis. Their case is that the B schedule properties belong to their 'tavazhi' and the partition under Ex. B. 1 effected during their minority as per stirpital basis is illegal and would not bind them. The learned Subordinate Judge held that under Exs. B. 23 and B. 24, defendants 1, 2, 6, 9 and 12 to 14 took the properties as tenants-incommon and, therefore, the plaintiffs have no right to reopen the partition on that basis. On that finding, he dismissed the suit. The plaintiffs preferred the above appeal.

(3.) The main question raised in the appeal by the learned counsel for the appellants turns upon the construction to be put on Exs. B. 23 and B. 24 dated 15-11-1923. Before we advert to the question raised, it would be convenient to clear the ground by disposing of some of the incidental questions argued in the case. One of the points urged by the respondents is that Section 48, Madras Marumakattayam Act, Act 22 of 1923, would govern the construction of the documents before us. Section 48 reads: