AKAVANDE MULANHUR VATAKETHIL KIZHAKKE NAYAR VEETTIL KARNAVASTRI SREEDEVI NEITHIAR Vs. AKAVANDE MULANHUR ELAYAT VATAKKE NAIR VEETTIL KARNAVAN PERUVUNNI NAIR

JUDGEMENT

(1.) Plaintiffs are the appellants. The suit out of which this Letters Patent Appeal arises was instituted by the plaintiffs for partition and recovery of their share of the plaint properties, together with mesne profits. The properties belonged to one Kunhu Neithiar who was the last member of a tarwad. The relationship of the parties will appear from the following genealogical table found in the Munsif's Judgment.

(2.) The plaintiffs and defendants Nos. 1 to 10 are the descendantsof Kummini Nethiar who was the deceased Kunhi Nethiar's mother's sister. Kummini Nethiar died leaving three children, the 1 defendant and the 1 plaintiff, daughters, and the 2nd defendant, a son. First defendant's descendants are defendants Nos. 3, 4,5 and 6 to 10. The 1 plaintiff's descendants are plaintiffs Nos. 2, 5, 6, 4, 7 to 9, 14 to 16, 3 and 10 to 13. The descendants of Kummini Netheiar devided themselves on per capita basis into three branches consisting of the plaintiffs, defendants Nos. 1 and 3 to 10 and the 2nd defendant by a deed of partition, Kummini Nethiar was the last to divide from the branch of the deceased Kunhu Nethiar. It is not now disputed that the heirs to Kunhu Nethiar's properties are the three divided tavazhies descended from Kummini Nethiar.

(3.) The plaintiffs form an undivided group of 16 members. They claimed that the properties of Kunhu Nethiar should be divided into 26 equal shares of which 16 shares should be allowed to their branch. Defendants Nos. 1 and 3 to 10 and the 2nd defendant claimed that the properties should be divided into 3 equal shares and that one share should be given to each of the branches. The contest between the parties relates to the question whether the division of the properties should be per capita, as contended for by the plaintiffs, or per stirpes as contended for by the defendants. If the plaintiffs contention is accepted, they will be entitled to a larger share of the properties than they would get according to the defendants contention.