HIGH COURT OF KERALA
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(1.) Plaintiffs 2, 3 and 5 to 11 in O. S. No. 66 of 1965 of the Sub Court of Alleppey are the appellants. The suit is one for partition. Acharu Janaki the Ist plaintiff was subsequently transposed as additional 38th defendant.
(2.) As per the plaint allegations, the plaintiffs and defendants are the members of an undivided Ezhava Marumakkathayam tarwad. Defendants 1 to 5 and the 1st plaintiff Acharu Janaki are the children of deceased Acharu. The 2nd plaintiff and defendants 6 to 10 are the children of the 38th defendant Acharu Janaki. Plaintiffs 3 to 10 are the children of the 2nd plaintiff Sarada and the 11th plaintiff is a granddaughter of the 2nd plaintiff. Defendants 11 to 15 are the children of the 8th defendant while defendants 16 to 18 are the children of the 9th defendant. 19th defendant is the daughter of the 2nd defendant and defendants 20 to 24 are the children of the 19th defendant. Additional 38th defendant, defendants 6 to 18 and the plaintiffs are the members of the tavazhi of the additional 38th defendant who was originally the 1st plaintiff. Defendants 2 and 19 to 24 are the members of the tavazhi of the 2nd defendant. The plaint schedule properties belonged to the deceased Acharu and in the year 1098 Acharu executed Ext. P1 gift deed regarding this property in favour of the 1st plaintiff and defendants 1 to 5 and Krishnan, Gopalan and Vamadevan. All the donees were the children of the said Acharu and Krishnan, Gopalan and Vamadevan died subsequent to Ext. P1. The allegation in the plaint is that the gift was intended to enure to the benefit of the tarwad of the donees of which the 1st defendant is the karnavan and the 3rd defendant is the next senior member. Plaintiffs and defendants alone are the members of the said sakha tarwad in which altogether there are 35 members out of which 24 belong to the tavazhi of the Ist plaintiff. So, according to the plaintiffs, the Ist plaintiff's tavazhi is entitled to get 24 out of 35 shares in the plaint schedule properties. There are 10 members in the tavazhi of the 2nd plaintiff including herself and plaintiffs 2 to 11 are entitled to get 10/24 out of 24/35 share of the tarwad properties. The further allegation in the plaint is that the plaint schedule properties are in the possession of defendants 1 and 3 to 5 and they are not paying anything for the maintenance of the plaintiffs. It is also alleged in the plaint that there are altogether 8 adult members in the tavazhi of the Ist plaintiff and among them defendants 6 to 9 have given their consent for the filing of the partition suit and hence there is the required majority of the adult members of the tavazhi for filing a suit for partition. Arrears of maintenance and future mesne profits are also claimed from the Ist defendant the karanavan and from the person in possession.
(3.) Defendants 2 to 5, 6, 10, 22 to 24, 25 to 29, 31 to 37 and 38 have filed written statements. The contentions in the joint written statement filed by defendants 2 to 5 are that Ext. P.1 the gift deed of 1098 was not in favour of the sakha tarwad and that it was only in favour of the donees mentioned therein and hence the Ist plaintiff and defendants 1 to 5 alone are entitled to the plaint schedule properties and plaintiffs 2 to 11 and the other defendants have no right over the properties. It is also contended in the written statement that the properties were never treated by the parties as sakha tarwad properties and that each of the donees who were alive on the date of the suit is entitled to 1/6 share of the properties. Defendants 2 to 5 also contend that the suit is not maintainable and that the plaintiffs have no cause of action as they are not entitled to claim partition. The contention of defendants 6 to 10 is that Ext. P1 gift deed was not in favour of the sub tarwad and the donees alone were intended to be benefited by the document. In the written statement filed by the guardian of minor defendants 22 to 24 the case put forward is that among the plaintiffs the Ist plaintiff alone is entitled to get a, share and defendants 1 to 5 together are entitled to 5/6 share. Since the minor defendants 22 to 24 are the grand children of the 2nd defendant, they are entitled to 1/6 share. Defendants 25 to 29 and 31 to 37 in their joint written statement also contend that the suit is to be dismissed.;
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