GOPALAKRISHNA PILLAI Vs. KUNJI AMMA

JUDGEMENT

(1.) One of the second appeals is by the first defendant in a partition suit, and the other by the 13th defendant. The deceased father of the latter was the brother of the former. The two brothers, plaintiffs 1 and 2 and others constituted a marumakkathayam Nair tarwad; and they partitioned the properties under Ext. P1 and P3 of 1114 and 1119 respectively. A sister of the first defendant and of the father of the 13th defendant by name Kochukarthiayani Amma was one of the sharers in the partitions. She had no children; and she died issueless. The controversy in the second appeals relates to the properties left by her appended to the plaint as schedules A and B. The former Kochukarthiayani got under Ext. P1, and the latter under Ext. P3. There were other properties also left by her and included in the suit; but the second appeals are confined to the A and the B schedules. The appellants claimed that in the properties left by Kochukarthiayani the other members had no right, and that the first defendant, Gopalakrishnan Nair, and the 13th defendant's father, Ramakrishna Pillai, alone had right... This contention has been concurrently rejected by the lower courts, and hence the second appeals.

(2.) From the facts stated above it is clear that the main question for consideration in the second appeals is the interpretation of Ext. P1 and P3. The recitals of these two documents are different; and therefore, I shall consider the documents one by one.

(3.) I shall first consider Ext. P3 relating to properties in schedule B. The relevant provision in the document is that the several sharers will enjoy their respective shares for all time in full right after getting mutation in their names and paying their shares of the taxes. The recital continues that since Kochukarthiayani has no children, Ramakrishnan and Gopalakrishnan will retain the properties in their possession, collect their income and properly maintain her after paying the revenue regularly; that if Kochukarthiayani is not satisfied with their management at any time, she has the right to collect the income direct or through her agent or by leasing the properties; that if necessary, she can take one year's advance rent; that if she wants more funds, she may get the amounts by charging the properties in conjunction with Ramakrishnan and Gopalakrishnan; and that if she encumbers the properties otherwise, the debt will not bind the properties. The recital proceeds that in case Kochukarthiayani marries and begets children, the share allotted to her will belong to her and her children in full right and that Gopalakrishnan and Ramakrishnan will have no further interest thereafter.