Decided on March 14,2003



- (1.) Against the Judgment and decree in O. S. No. 593/1983 on the file of the Sub Court, Trichur, this appeal is preferred by the plaintiff. During the pendency of the appeal, the first respondent died. Respondents 2 to 4 were recorded and additional respondents 5 and 6 were impleaded as the legal representatives of the 1st respondent. The plaintiff filed the suit for partition and separate possession of his 1/4 share over the plaint schedule property by metes and bounds. Plaintiff and defendants 2 and 3 are the children of deceased first defendant and 4th defendant. The property originally belonged to late Koru, father of late Krishnan, Kumaran, Balan and Prabhakaran. The first defendant and his brothers entered into a partition in the year 1956 and as per partition deed plaint A schedule property was allotted to the share of first defendant Krishnan. The plaintiff and defendants were in joint possession and enjoyment of the said properties. While so the first defendant has alienated some portions of A schedule property for meeting the marriage expenses of the sisters of the plaintiff. The remaining portion is scheduled in the plaint. The plaintiff and the defendants were born in Chavakkad Taluk in Malabar and they are governed by the Hindu Law. The male members in the family will get right by birth in the ancestral properties. It was the system prevalent among their community. The sisters of the plaintiff were given in marriage after giving them ornaments and amount for purchasing vessels. They have no manner of right over the plaint schedule properties. The plaintiff is entitled to get 1/4th share in the plaint schedule properties which are ancestral properties. Hence the suit.
(2.) Defendants 1 to 3 filed a joint written statement. According to them, the parties are governed by customary law and not by Hindu Mitakshara Law as claimed by the plaintiff. Nobody had any right by birth over the property. The first defendant is the absolute owner in possession of the plaint schedule property. The plaintiff and other defendants have no manner of right or possession over the same. The plaintiff was given education by spending huge amount and he was also given properties and amounts for construction of a new building. The mother of the plaintiff has executed a sale deed in favour of the wife of the plaintiff for a property worth more than Rs. one lakh receiving only Rs. 500 as consideration. No ornaments or amount were given to the other daughters of the first defendant at their marriage. The other daughters of the first defendant are also necessary parties in the suit. The plaintiff is not entitled to get a decree for partition.
(3.) The 4th defendant filed a written statement supporting the contention of the other defendants.;

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