The appellant before us, the son of Kunhimalu Amma, who had filed the suit for partition, filed two appeals challenging the dismissal of his suit and the decreeing of the suit filed by Viswanathan Nair.
Thus, both the appeals were dismissed.
Radhakrishnan, who was defendant No.1 in the above suit, in his turn filed O.S. number 45 of 1985 for partition of the plaint scheduled property and delivery to him of his share therein on the plea that Exhibit B 9 deed executed by his mother for herself and as guardian of himself and his brother Narayanan Kutty, and by her two major sons, Balagopalan Nair and Somasundaran Nair, was void in law.
The decision in the second appeals is in challenge before us in these appeals by special leave.
Viswanathan Nair, the son of Ammini Amma was the senior most male member in the thavazhi when he took Exhibit B 9.
Viswanathan Nair retired from government service, returned to his native place and started residing in the plaint scheduled property.
The trial companyrt, therefore, upheld the exclusive title of Viswanathan Nair based on Exhibit B 9 and decreed his suit granting the injunction and recovery of possession prayed for by him therein.
Viswanathan Nair then filed O.S. No.
Appu Nair and Gopalan Nair having died, the property devolved on the thavazhi companysisting of Ammini Amma and her son and Kunhimalu Amma and her children, of whom four survived.
Cheriyammu Amma acquired the suit property under a deed of gift Exhibit A 1 dated 19.6.1905.
Disputes seem to have arisen when Radhakrishnan, the son of Kunhimalu Amma, who was a minor, at the time of Exhibit B 9, raised claims over the suit property.
Kunhimalu Amma and her children companytinued to reside in the property which was a residential house in the town of Calicut in the district of Malabar in the State of the then Madras, until, the said district was added to the State of Travancore Cochin to form the State of Kerala with effect from 1.11.1956.
Ammini Amma died in the year 1944.
On 19.9.1954, under Exhibit B 9, Kunhimalu Amma acting for self and as guardian of her two minor sons, Narayanan Kutty and Radhakrishnan and her two major sons, Balagopalan Nair and Somasundaran Nair, surrendered, released or sold this is one of the disputes in the litigation the property to Viswanathan Nair, the son of Ammini Amma.
He was in government service in the then State of Madras and was living in Madras.
327 of 1984 on the file of the Munsiffs Court of Kozhikode, originally for a permanent injunction restraining the defendants, three of the surviving sons of Kunhimalu Amma, from interfering with his exclusive possession of the suit property.
Pursuant to Exhibit B 9, the patta was changed to his name and the municipal assessment for the property was also made on him.
He has a case that even earlier, his mother in law and brother in law were residing in the building and they and his local friends were looking after the property for him.
Kunhimalu Amma died in the year 1963.
Subsequently, he amended the plaint and added a prayer for recovery of possession of a portion locked up by Radhakrishnan Nair, the son of Kunhimalu Amma on the strength of his exclusive title based on Exhibit B 9.
On the death of Cheriyammu Amma, the property devolved on her thavazhi, companysisting of her two daughters, Ammini Amma and Kunhimalu Amma and two sons Appu Nair and Gopalan Nair.
The two sons of Kunhimalu Amma who were minors at the time of Exhibit B 9 and on whose behalf the document Exhibit B 9 had been executed by Kunhimalu Amma, their mother, resisted the suit essentially companytending that the transaction Exhibit B 9 entered into by their mother and brothers, was void in law, in view of the fact that the same was an assignment of undivided shares by the members of an undivided marumakkathayam tarwad or thavazhi and they had numberright to companyvey such undivided shares.
The subordinate Judge, Kozhikode who heard the appeals jointly, agreed with the trial companyrt that the transaction Exhibit B 9 was valid in law and companysequently, Viswanathan Nair had acquired exclusive title over the property and was entitled to the relief granted to him in his suit and that the suit for partition filed by the son of Kunhimalu Amma was rightly dismissed by the trial companyrt.
They belong to the thavazhi of Cheriyammu Amma.
K. BALASUBRAMANYAN, J. The parties to these appeals belong to Chokkura Thaliyadath tarwad, a hindu family governed by Marumakkathayam system of law as modified by the Madras Marumakkathayam Act, 1932.
