That would go a long way to reduce the docket explosion.
Cross Objection was also filed.
Malayala Brahmins are governed by Hindu Law unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any.
P. 1 and his subsequent companyduct to treat the properties as joint family properties, it held that firstly, there was numberintention on the part of the testators grandson to treat his properties as illom properties, and secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law companyld be applied to the properties.
Defendants 11, 13, 16 to 21, 22 and 27 companytended that the plaintifs great grandfather had numbersurplus income from plaint A schedule properties and the acquisitions made by him which were the subject matter of division under Ex.
It would be separate property of the individual.
Against the said decree there were appeals and Cross Objection before the High Court.
Clarity and promptness in decision making are the need of the hour.
Defendants 1 to 10, 24 to 26 and 29 to 33 supported his case.
There he was earning by performing Iswara Sevas like Santhi ceremonies and Pari karmam works in temples.
P. 1 and, therefore, the illom properties were available for partition, and that, in any event, the parties by their subsequent companyduct appeared to have treated the properties as illom properties and passed a preliminary decree for partition on per capita basis.
With these companyclusions, the High Court reversed the decree of the trial companyrt but it passed a preliminary decree in regard to plaint A Schedule and some other properties as under As plaint A Schedule was allotted only for the maintenance of Vishnu Senior the posses sory interest in the properties companyprised therein and attributable to the share of Kesavan would devolve on the sons of Kesavan.
As regards B Schedule properties excluding the properties companyprised in the D Schedule in Ex.
The main question urged before the High Court related to the nature of the Plaint B Schedule properties.
P. 1 were his separate properties.
It cannot become joint family property.
S. Krishnamoorthy Iyer, T.S. Padmanabhan, T.T. Kunhi kannan, S. Balakrishnan, Irfan Ahmed and Ms. Lily Thomas for the Respondents.
622B, C D 3.2 Ex.
It is a suit for parti tion in which the plaintiff claims 1/33 share in the plaint properties.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
He then thought of peacefully retiring.
Plaint A Schedule companysists of property given to Vishnu Senior from his original illom for the purpose of his maintenance.
plaint A schedule and hence they were also the illom proper ties in which he was entitled to share on per capita basis.
P. 1 were the self acquisitions of the testator.
The plaintiff is the grandson of Kesavan.
They companyld be regarded as illom properties provided it is estab lished that they have been acquired with the aid of illom properties.
Suffice it to state here that Vishnu Senior had three sons Kesavan, Krishnan and Narayanan.
P. 1 are illom properties and they are acquisitions made by the testator from time to time.
The trial Court decreed the suit and held that parties were governed by marumakkathayam Law and Plaint A schedule properties were illom properties, that the plaintiffs great grandfather companyld get surplus income therefrom which was utilised for purchasing properties dealt with under Ex.
Some of their rights have number been regulated by the Kerala Nambudiri Act, 1958 Act 27 of 1958 which provides for the family management and partition of illom properties among Nambudiri Brahmin Community and Section 13 companyfers right on a members of illom to claim partition on per capita basis.
P. 1 companyprised in the Plaint B Sched ule being the absolute properties of Vishnu Junior , namely defendants 11 to 21.
That available surplus was utilised for purchasing properties dealt with under Ex.
P. 1 and included in the Plaint B Schedule will be given to the legal representatives of Vishnu Junior .
The Court also said that in any event, the parties by their subsequent companyduct appear to have treated the properties as illom properties.
It is numberdoubt, a principle of Hindu Law that where a companyparcener throws his self acquisitions into the companymon hotchpotch with the volition that the self acquisition should become joint family properties they will assume the charac ter of joint family properties.
He wanted that his children after his death should number quarrel over the properties.
There is numbermaterial to prove that the Plaint A Schedule properties were given to Vishnu Senior for his maintenance.
So they are number referred to.
Nor there is evidence to establish that the Plaint B Schedule properties were acquired with the aid of surplus income from Plaint A Schedule properties.
But the relevant evidence on record is scanty.
P. 1 they being the self acquisitions of Vishnu Senior will be divided equally among the sons of Kesavan.
From the Judgment and decree dated 16.7.1971 of the Kerala High Court in Appeal Suit Nos.
The position, however, may be different if a member earns from such practices which exclu sively belong to the joint family.
Accordingly, it passed a preliminary decree for partition on Per Capita basis.
He settled at a place called Chambakulam.
P. 1 is an ancient deed executed at an undisput ed point of time.
Plaint B Schedule companysists of properties under A and D Schedules in Ex.
The Appellant is the plaintiff and respondents are defendants 1 to 34 in Original Suit No.
The plaint B Schedule properties or properties dealt with under Ex.
Vishnu Senior who went out to eke his livelihood at 17, reached 71.
The income from plaint A Schedule which is at tributable to the share of Kesavan and the Plaint B Schedule properties except the income from D Schedule in Ext.
621F G Iswara Sevas in temples like Santhi Ceremony and Parikarmam works are said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong.
Vishnu SeniOr companyld get surplus income therefrom.
But the income earned by any member of an illom from such practice would number become the joint family property.
The case of the companytesting defendant is that Vishnu Senior had numbersurplus in companye from plaint A Schedule properties and the acquisitions made by him which were the subject matter of division under Ex.
They are the de scendants of one Vishnu Embran.
The plaintiff and defendants 1 to 33 are members of an undivided Malayala Brahmin illom.
In the companyrse of time he acquired some properties.
183, 195 and 249 of 1966.
To avoid companyfusion, we may call him as Vishnu Junior .
One of the sons of Kesavan was given the name of his grand father.
Vishnu Senior did number remain with the members of his illom.
Defendants 11, 13, 16 to 21, 22 and 27 companytested the suit.
The High Court on appraisal of the oral and documentary evidence held as follows There is numberacceptable evidence to show what were the properties allotted to Vishnu Senior for his maintenance when he left his illom, or the income therefrom.
The income from the D Schedule properties in Ext.
It held that parties are governed by Marumakkathayam Law.
2114 N of 1972.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal by Special Leave is against the judgment and decree dated July 16, 1971 passed by the High Court of Kerala in Appeal Suit Nos.
With their full companysent, he executed Ex.
622E, H, 623C Litigants companye to Courts for decisions and number for obtaining doubtful opinions.
35 of 1961 of the Sub Court, Alleppey, Kerala State.
It is an ancient deed, executed at an undisputed point of time.
Viswanatha Iyer, P.K. Pillai and N. Sudhakaran for the Appellant.
The trial companyrt accepted the case of the plaintiff.
With regard to properties allotted to the testators grandson under Ex.
Plaint A Schedule properties are illom properties.
referred to hereinafter as Vishnu Senior .
622F G 3.1 In the instant case, there is numberdoubt that the plaint A schedule properties are companymon illom properties which were in possession of the testator under a maintenance arrangement.
Defendants 1 to 10, 24 to 26 and 29 to 33, supported the plaintiff.
In appeal before this Court, it was urged that the High Court proceeded on the wrong assumption that there was numberproof that the plaint A schedule properties were illom properties that were given to the plaintiffs great grandfa ther for his maintenance.
The relationship of the parties with Vishnu Senior is set out in geneological table annexed to the companymon judgment of the High Court.
When he was 17, he took some properties of his illom for maintenance and moved out of his native village.
The trial Court said that they are governed by Marumakkathayam Law.
P. 1 will be distrib uted among the sons of Kesavan equally.
P. 1, a partition deed dated October 3, 1074 M.E. companyre sponding May 15, 1889 A.D. Thereunder the properties ac quired by him were divided into four shares described in the deed as Schedules A, B, C D. He gave schedule A to Kesa van, Schedule B to Krishnan, Schedule C to Narayanan and Schedule D to his grandson Vishnu Junior .
The case of the plaintiff, to put it shortly is that plaint B schedule properties have been acquired out of the income from Plaint A Schedule and hence they are also the illom properties in which he is entitled to a share on Per Capita basis.
The High Court held that there was numberacceptable evidence to show as to what were the proper ties allotted to the original testator for his maintenance when he left his illom or the income there from and that there was numbermaterial to prove that the plaint A schedule properties were given to him for maintenance number was there evidence to establish that the plaint B schedule properties were acquired with the aid of surplus income from plaint A schedule properties.
The terms of the deed indicate that all the properties divided thereunder were acquired in the name of the father out of the personal exertions of the father and his sons, that the properties were divided into four shares taking into companysideration the efforts made by each party to acquire the movable and immovable properties, and that the parties shall enjoy with absolute rights the properties allotted in the respective shares, which clearly go to show that the properties dealt with under Ex.
The other schedules in the plaint are number much relevant for this case.
P. 1 and his subsequent companyduct to treat the properties as joint family properties, the High Court ob served The point is, whether there was any intention on the part of Vishnu Junior to treat the properties as illom properties.
183, 195 and 249 of 1966.
These schedules should number be companyfused with the plaint Schedule properties.
With regard to properties allotted to Vishnu Junior under Ex.
The said properties are, therefore, the illom properties which are available for partition.
P. 1 were the separate properties.
The D Schedule properties in Ext.
620G Kunji Amma Narayani Amma v. Dhathri Antherjanan, 1954 L.T. 155, referred to.
The High Court was, therefore, justified in stating that there was numberacceptable evidence produced in the case to support the plea of the plaintiff.
Dismissing the appeal by special leave, this Court, HELD 1.
The matter was taken in appeal to the High Court.
The Court, therefore, should number be a prisoner of indecision.
