Decided on February 25,1962

Padmanabha Nadar Appellant
NARAYANAN Respondents


C.A.VAIDIALINGAM,J. - (1.) IN this appeal on behalf of the 15th plaintiff -appellant,Mr.L.Gopalakrishnan Potti,learned counsel attacks the decree and judgment of the learned District Judge of Trivandrum,dismissing the suit O.S.142/1953,filed by the appellant along with 14 other plaintiffs,for a partition and separate possession of the share of plaintiffs 1 to 14,namely 14/20th share in the suit property.
(2.) THE 15th plaintiff is not a member of either the main tarwad or any of the thavazhies,to which plaintiffs 1 to 14 belong.Plaintiffs 1 to 14 and defendants 5 and 6 belong to the thavazhi of one Kutti Kochupennu,and defendants 1 to 4 belong to the thavazhi of a sister of the former,namely Kutty Kochu Kunchu.The original ancestress was one Nangelikutty;and there appears to have been a partition among her children,namely one son and four daughters,among whom Kochu Kunchu and Kochu Pennu referred to above were two of the daughters.The partition as among the one brother and the four sisters is evidenced by Ex.D -1 of the year 1097.Though the properties were divided into five schedules and all these persons were given properties comprised in each of the schedules referred to in that document,so far as Kochu Kunchu and Kochu Pennu are concerned,there was a Common allotment of properties comprised in schedules B and C as and for their shares.I am parti­cularly referring to this aspect because as to what exactly is the interest obtained by these two sisters under the partition arrangement evidenced by Ex.D -1,is one of the matters which has been debated both before the lear­ned trial Judge as well as before this Court. As I mentioned earlier,plaintiffs 1 to 14 and defendants 5 and 6 are members of the thavazhi of Kochu Pennu.Plaintiffs 1 to 14 executed an assignment of their interest in the properties,namely 14/20th share,in favour of the 15th plaintiff,evidenced by Ex.P,dated 9th July 1953.Though no doubt Ex.P refers also to the share of defendants 5 and 6,there is no controversy that defendants 5 and 6 are not parties to this assignment deed.Two days later,namely on 11th July 1953,the present suit was filed by plaintiffs 1 to 14 and the appellant figuring as 15th plaintiff,claiming partition and sepa­rate possession of 14/20th share in the suit properties.There is particular reference in paragraph 14 of the plaint to the effect that plaintiffs 1 to 14 have agreed to sell the rights that they are to obtain as and for their share in the suit properties in favour of the 15th plaintiff and that the 15th plaintiff in turn has also agreed to purchase the same for good consideration.In the relief column contained in the plaint plaintiffs 1 to 14 have asked for a partition of their 14/20th share in the suit properties.They have also requested the court to direct the defendants concerned to deliver possession of the share that may be allotted to them in the suit,to the 15th plaintiff in the action.
(3.) THE contesting defendants in the lower court appear to be defendants 3 and 6.The 3rd defendant,as mentioned already,belongs to the thavazhi of Kochu Kunchu,and so far as the 6th defendant is concerned he belongs to the thavazhi,to which plaintiffs 1 to 14 belong.The 6th defendant no doubt was declared ex parte after he filed the written statement on 9th September 1958.So far as the 6th defendant is concerned,he has categorically stated in paragraph 13 of his written statement that plain­tiffs 1 to 14 have no right to demand partition of his share.He has also stated that he does not want his share to be worked out in this litigation.But ultimately he vanished from the picture and has not taken any part in the proceedings.So far as the 5th defendant is concer­ned,though a member of the thavazhi to which plaintiffs 1 to 14 belong,he also does not appear to have taken any interest in the litigation.Therefore,ultimately before the lower court the 3rd defendant was the sole contesting defendant objecting to the claim for partition made by the plaintiffs.;

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