APPA Vs. KACHAI BAYYAN KUTTI

JUDGEMENT

(1.) The only question that arises for decision in this second appeal is whether Ex. 16 effected a partition between the thavazhi of the plaintiffs on the one hand and that of defendants 1 to 10 on the other. The claim petition filed by the plaintiffs when the suit properties were attached in execution of the decree in O.S. No. 85 of 1918 against the karnavan of the thavazhi of defendants 1 to 10 was dismissed by the District Munsif on the ground that the plaintiffs thavazhi had become divided from that of defendants 1 to 10 by virtue of Ex. 16, and that the plaintiff had therefore no interest in the properties that were attached. In the suit which the plaintiffs filed under Order 21, Rule 63, Civil P.C., which was heard by another District Munsif he held that Ex. 16 evidenced only a maintenance arrangement and did not amount to a partition. On appeal the Subordinate Judge of Tellicherry came to a different conclusion holding that Ex. 16 worked out a partition between the thavazhis of the plaintiffs and of defendants 1 to 10. In the present second appeal preferred by the plaintiffs, the question for decision is which of those two views is correct.

(2.) Exhibit 16 is dated 22 November, 1877. On that date there were eight adult members in the Tarwad No. 1, the karnayan of the tarwad was given some properties for his maintenance; No. 2, the senior Anandravan, was also given some property for his maintenance. Of the remaining 6 numbers, 3 and 7 were the issue of No. 1--Kunhatty--and numbers 4 and 8 were the issue of No. 6--Ummanga,--Kunhatty and Ummanga being the two sisters of No. 1.

(3.) Some properties were left in the possession of Nos. 1 and 2 respectively, who were to maintain themselves with the income thereof with no power of alienation. Half of the remaining properties was put in the possession of one branch and the other half in the possession of the other branch. Of the two houses belonging to the tarwad one house was put in the possession of one branch and the other house in the possession of the other. A moiety of the debts due by the tarwad was charged on the properties of one branch and the other moiety on the properties of the other branch. A moiety of the revenue payable in respect of the properties of the tarwad was to be payable by one branch and the other moiety by the other. On the death of No. 1, the properties allotted for his maintenance were to be partitioned and taken" by the two branches equally. There was also a substantially similar provision with reference to the "partition" of the property allotted to No. 2 on his death. Each branch was given a right to sue in Courts separately (without reference to the other branch) if litigation should become necessary with reference to the properties in its possession. The personal acquisitions of Nos. 3 and 4 should go to the respective thavazhis of each. After the death of No. 3 or his removal from management, the management of affairs of his thavazhi should be conducted by the members of his thavazhi; similar provision was made with reference to No. 4. It was provided that Nos. 3, 5 and 7 and the members of their family were to form one set," and Nos. 4, 6 and 8 and the members of their family another "set," and that: all maintenance of the members of each set should be looked after by the members of that set from the annual income of the properties in their respective schedules.