Issue No.
1 , Kalliyanikutty and Lakshmikutty.
2 a sum of Rs.
The evidence of DW 1 mother of the Defendant No.
Firstly, the question as to whether the leasehold of properties companyprised in Items 8 to 16 belonged to the puthravakasam tavazhy of the Defendant No.
2 preferred an appeal before the High Court of Kerala being A.S. No.
The facts necessary for the disposal of this appeal are the following One Narayanan Nair and his wife Cheethamma had 3 dauahters, namely, Bhargavi Defendant No.
Defendant No.
5 had 3 dauahters, namely, defendants 12 to 14 while the plaintiff had one daughter who was plaintiff No.
2 to the aforesaid properties was denied by the Trial Court which passed a decree as prayed for by the plaintiffs.
issue No.
The parties were governed by Marumakkathayam law.
100/ .
The third set companysisted of the properties shown as Item Nos.
2 which was at variance with the case set up by the plaintiffs and other defendants was that the leasehold properties Item Nos.
2 also pleaded that he was never Karanavan of the tavazhy and that he was never in management of the family properties.
Whether B schedule movables belong to the thavazhi What is the quantum of profits Whether the suit is bad for partial partion Addl.
Whether the 2nd defendant has any independent tenancy right over the plaint schedule item No.
The plea of defendant No.
4 had 5 dauahters and it sons, who were defendants 5 to 11 in the suit, the youngest daughter being the plaintiff.
1 whereas the defendant No.
2 companytended that the leasehold did number belong to the tavazhy at all, since they were his self acquired properties from his own earnings.
Shri T.L.V. Iyer, learned senior companynsel appearing on behalf of the appellants before us submitted that the High Court has companymitted two clear errors.
Defendants 1 and 3 to 14 were also entitled to 13/17 share and the second defedndant was entitled to l/17th share from the partible plaint schedule properties.
2, who was the real companytesting defendant, was also entitled to only one share out of 17.
In the instant appeal we are only companycerned with the branch of Bhargavi, the eldest of the dauahters.
2 that he took them on lease for himself was found against him, But while deciding that the leasehold belongs to the tavazhy of the first defendant, the question has to be necessarily asked as to how the property has to be divided in terms of the law governing the parties.
An appeal was preferred by defendant No.
The Defendant No.
The dispute is only in relation to Item Nos.
8 to 16 of the plaint were his self acquired properties and, therefore, number partible.
1 to 7 were the family properties inherited by the grandmother of the plaintiffs, on partition.
In this manner defendant No.
Item Nos.
Secondly, he submitted that the High Court was in error in holding that in the facts and circumstances of the case Section 48 of the Madras Marumakkattayam Act, 1932 applied.
1 to 7 and 17 to 20 of the suit properties, it modified the preliminary decree for partition so far as it related to Item Nos.
8 to 16, and setting aside the decree granted by the Trial Court and companyfirmed by the learned Single Judge, passed a preliminary decree for partition of those items into four shares and directed allotment of one out of four shares each to defendants 1, 2, 3 and 4 only.
2 which came to be disposed of by a Division Bench of the High Court.
Since Marumakkathayam law provided for devolution of interest per capita, each member of the tavazhy was entitled to share equally.
8 to 16 clearly supported the plaintiffs companytention that these items were acquired for the purpose of the tavazhy.
Thus, Items 8 to 16 belonged exclusively to him and the remaining defendants as well as the plaintiffs had numberpartible interest therein.
100/ by way of loan.
100/ which was paid to the erstwhile tenant for taking the aforesaid items on lease was taken for and on behalf of the tavazhy.
The case of defendant No.
Thus the claim of defendant No.
8 to 16 of the plaint schedule properties.
She had 2 sons defendants 2 and 3 and a daughter defendant No.
In the instant case we are really number companycerned with the suit schedule properties Items 1 to 7 and 17 to 20.
8 to 16 of the suit schedule properties.
The Trial Court held that the second defendant was in possession of the plaint Schedule Item Nos.
The aforesaid defendant No.
8 to 16 be modified and held that only defendants 1, 2, 3 and 4 were entitled to equal shares in those properties.
The appeal was, therefore, allowed to that extent.
The Trial Court framed the following issues in the suit Whether items 1 to 7 of A schedule are thavazhi properties Whether D2 had ever been in possession and management item 1 to 7 either as Karanavan or behalf of the thavazhi or on his individual behalf Whether items 8 to 20 and 23 of A schedule and the building in item 15 belong to the thavazhi and are available for partition.
The finding was rendered by the land tribunal that it belonged to tavazhy of defendant No.
According to the evidence of DW 1 mother of defendant No.
While companyfirming the preliminary decree for partition in respect of properties at Item Nos.
1 was a question which did number arise for companysideration at all.
2 was a youngster about 15 years old.
The companyrt declared that the plaintiffs were entitled to get 3/17th share after partitioning the plaint schedule properties by metes and bounds.
2 was that these items were taken on lease in his individual capacity which did number find favour with the Trial Court and the learned Single Judge of the High Court.
The High Court companysidered the evidence on record and came to the companyclusion that at the time when Item Nos.
The daughter defendant No.
2 in the suit.
The plaintiffs claimed 3/17th share in the suit property, which included the share of the child in the womb of the second plaintiff.
215/1989 which came up for disposal before a learned Single Judge of the High Court.
l00/ was a substantial amount and it was number probable that the appellant who was only a youngster in those days companyld have raised Rs.
Her daughter defendant No.
8 to 16 in the plaint were companycerned they were his self acquired properties and were number tavazhy properties.
The plaintiffs were supported by all the defendants except defendant No.
Items 8 to 16 were taken on lease on 9.6.1943 from the family of 15th defendant for a sum of Rs.
Thus he acquired the properties at Items 8 to 16 out of his own self earnings which were wholly unrelated to the income of the family.
8 to 16 and 17 to 20 The relevant issues are Issue No.
3 and addl.
So the amount of Rs.
The plaintiffs filed a suit for partition claiming 3/17th share in the family properties.
1 and belonged to him exclusively in which the plaintiffs and other defendants had numberpartible interest.
The family properties companysisted of 3 sets of properties.
8 to 16 were taken on lease in the year 1943 the defendant No.
1 and the claim of defendant No.
100/ paid by way of munpattam for acquiring plaint properties at Item Nos.
Subject to certain modifications, with which we are number companycerned, the appeal was disposed of by the learned Single Judge negativing the claim of defendant No.
2 was number accepted by any of the companyrts including the High Court in appeal.
2 pleaded that so far as properties shown as Item Nos.
Having accepted plaintiffs case and rejected the claim set up by the defendant No.
8 to 16 properties as a tavazhy Karanavan and it was number taken on lease by the 2nd Defendant in his individual capacity.
The plaintiffs were supported by the remaining defendants except defendant No.
The case of defendant No.
17 to 20 in the schedule to the plaint which were taken on lease from the family of the 16th defendant.
Having so formulated the question which arose for his companysideration, the learned Judge held after appreciating the evidence on record that the leases were obtained in the year 1943 and in those days Rs.
The case of the plaintiffs was that the leasehold belonged to tavazhy of defendant No.
P. Singh, J. This appeal by special leave is directed against the judgment and order of the High Court of Kerala at Ernakulam in AFA No.
103/1992 whereby a Division Bench of the High Court while setting aside the companycurrent findings recorded by the companyrts below partly allowed the appeal.
