Decided on September 29,1955



- (1.) The plaintiff is the appellant. The parties are Ezhavas governed by the Ezhava Act. Defendants 1 and 3 are the children of the 2nd defendant. Defendants 4 to 10 are the children of the 3rd defendant. Besides the 1st defendant, the 2nd defendant had another son by name Sadasivan. He married the plaintiff in Makaram 1115 and left for Singapore on 2.11.1115. He had not been heard of ever since. It has therefore to be presumed that he is dead. The plaintiffs suit is for partition of the plaint schedule properties and for giving her the half share of the properties that Sadasivan would be entitled had he been alive, with past and future profits. The plaint A schedule properties belong to the sub tarwad of defendants 1 to 10 and Sadasivan. The plaint B schedule consists of properties given in the names of the 2nd defendant and her mother by the deceased father of the 2nd defendant and plaint C schedule properties are those which defendants 1 to 3 and Sadasivan obtained from their deceased father Sankaranarayanan. On 9.8.1120, the defendants effected a partition of the properties obtained by them. Sadasivan must be presumed to have become divided from the other members of the tarwad from that date. No separate properties had been allotted for his share at the time of partition. But there is a provision in the partition deed that defendants 1 to 10 should give, from the properties allotted to them under the partition, the share to which Sadasivan would be entitled, on demand by him after his return. There are ten members in the sub tarwad and there are four persons who are entitled to inherit the properties left by Sankaranarayanan. Since the plaintiff is Sadasivans wife and as it has to be presumed that he is dead she is entitled to ask for partition of the one-half share which she will get under the Ezhava Act in the properties belonging to Sadasivan. According to her 1/10 of the properties in Schedules A and B and 1/4 of the properties in Schedule C would be the legitimate share to which Sadasivan would be entitled. She is entitled to a half share in those properties so that she was to get 1/20 in A and B schedule properties and 1/8 share in the plaint C schedule properties. It was stated in the plaint that Sadasivan should be deemed to be dead from 2.11.1122, that is on the expiry of seven years from the date he was last heard of, and so she put forward a claim for mesne profits from 2.11.1122. She also stated that if the defendants had realised any sum from the outstandings mentioned in C schedule, she should be given her share in the amounts so realised by them.
(2.) The 1st defendant contested the suit. He put the plaintiff to prove that she had been legally married by Sadasivan. The 1st defendant admitted that plaint A schedule properties were obtained by the sub-tarwad in the partition in the main tarwad in 1102, that B schedule properties were those given by the 2nd defendants father to the 2nd defendant and her mother and that C schedule properties belonged to his father till his death. While admitting the execution of the partition deed on 9.8.1120 he denied that the defendants had effected an individual partition or decided to effect such a partition. He put the plaintiff to prove the fact that Sadasivan was alive on 9.8.1120 when the partition deed was executed. He contended that the reference to Sadasivan in the partition deed of 9.8.1120 did not confer on him any share in the properties or invest any right in respect of his share and that even if the plaintiff was Sadasivans wife she would not get any right in the plaint C schedule properties unless she proved that Sadasivan was alive after 5.12.1119 on which date his father died. It was further contended that the plaintiff could not get a share from B schedule properties unless she proved that Sadasivan was alive after 12.1.1120 when the 2nd defendants mother died and that the plaintiff would not get any right in the plaint A schedule properties unless it was proved that Sadasivan was alive on 9.8.1120. The 1st defendant also disputed the extent of the interest claimed by the plaintiff. According to him, under the gift by the 2nd defendants father one-half of the properties belonged exclusively to the 2nd defendant and the other half to the 2nd defendants mother and it was only the latter share that was inherited by her Thaivazhi under S.19 of the Ezhava Act. He contended that there were 13 members in the Thaivazhi including the 1st defendants three children at the time of the death of the 2nd defendants mother, and that the plaintiff could get only 1/26 of B schedule properties even if Sadasivan was alive on 12.1.1120. He therefore pressed for the dismissal of the suit. The court guardian appointed for the minor defendants 4 to 10 supported the 1st defendant. The plaintiff filed a replication reaffirming the plaint allegations.
(3.) The lower court found that the plaintiff was the legally wedded wife of Sadasivan by virtue of the marriage under the Ezhava Act on 27.6.1115. It was further held that the onus of proving that Sadasivan was alive on 5.12.1119, 12.1.1120 and 9.8.1120 was on the plaintiff, that she had not proved the same and so was not entitled to claim any share in the properties. Issues 2, 7, 12 and 14 were left open and the plaintiffs suit was dismissed. The parties were directed to bear their costs.;

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