Decided on July 12,1955



- (1.) This appeal is directed against the judgment and decree passed by the learned Additional District Judge of Trichur in O.S. No. 178 of 1122, dismissing that suit. That was a suit for partition instituted by a member of a Nambudiri illom.
(2.) On 12.2.1116, Krishnan Nambudiri (the original plaintiff), the then seniormost member of the Pozhichovvur illom relinquished his management of the illom affairs as the result of a compromise arrived at in O.S. 70 of 1113 on the file of the Trichur District Court. The decree passed in that suit provided that he should be given 60 paras of paddy a year towards maintenance, charged on the illom and premises. On 21.7.1120, 14 out of the 16 members of the illom entered into a partition arrangement under which the illom properties were divided into five units, the first unit to be owned and enjoyed by Nos. 1 to 9 in the deed of partition (Ext. V), the second unit by Nos. 10 and 11, the third unit by No.12, the fourth by Nos. 13 and 14 and the fifth unit by one Narayanan Nambudiri whose whereabouts were then unknown. Krishnan Nambudiri was not a party to this partition, but he was grouped along with Nos.1 to 9 and he was to receive the maintenance fixed for him under the decree in O.S. 70 of 1113 from the managing member of that group. The division was effected on a per capita basis but the partition deed calls the different groups Thavazhies. As the burden of paying the maintenance allowance to Krishna Nambudiri was thrown on the group designated as first thavazhy, some additional properties were allotted to that group, but the provision in the deed was that after Krishnan Nambudiris death those properties should lapse to the Thavazhi. The partition deed followed the lines of an award (Ext. V(a), dated 30.3.1120) passed by certain arbitrators whom the parties had appointed to effect a division. In Mithunam 1120, Narayanan Nambudiri, whose whereabouts were not known at the time of the award and the partition, returned from his wanderings and claimed the share set apart to him under the partition deed. He was given his share to token whereof he passed a receipt, Ext. V(b), dated 19.11.1120, to the executants of Ext. V.
(3.) Over one year afterwards, to be exact on 24.7.1122, Krishnan Nambudiri caused a notice (Copy, Ext. D) to be issued to the other members of the illom claiming a share by outright partition of the illom properties and his claim was repudiated by a reply notice, Ext. C, dated 16.10.1122. The purport of the reply was that Krishnan Nambudiri was not entitled to anything more than the maintenance fixed for him under the decree in O.S. 70 of 1113. Soon afterwards, on 4.12.1122, the suit giving rise to this appeal was instituted by Krishnan Nambudiri, for a one-sixth share of the illom properties together with mesne profits thereof. He died pending the suit and pursuant to the bequest made under his Will (Ext. E, dated 23.10.1123) his widow got herself impleaded as the legal representative and prosecuted the suit. The lower court eventually dismissed the suit. Hence this appeal.;

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