Janaki Amma and Another vs Padmavathi Amma and Another

Govinda Pillai, J.—Three members of a Nair Tarwad filed the suit for partition of the tarwad properties and obtained a preliminary decree for the same. One of these three members by name Padmanabhan Nair died while the appeal against the preliminary decree was pending in the High Court. His wife and child applied to get themselves impleaded in the appeal as legal representatives of Padmanabhan Nair. The remaining Plaintiffs who were Respondents in appeal objected to the same as according to them, Padmanabhan Nair had no definite share in the properties. The status of the Petitioners as the legal wife and child of Padmanabhan Nair was also questioned. Giving the remaining Plaintiffs the right to agitate this matter in the trial Court, the High Court impleaded the alleged wife and child in appeal. When the matter came back to the lower Court for the passing of the final decree, the alleged wife and child filed a petition for Padmanabhan Nair''s one-third share in the properties that would be allotted to the three Plaintiffs and claimed it to be divided by metes and bounds as according to them he had under law a right to such share. The objections raised by the Plaintiffs in the High Court were repeated by them The learned Judge, therefore, held an enquiry as to the status of the Petitioners as well as the question whether Padmanabhan Nair had any definite share. He came to the conclusion that before his death Padmanabhan Nair had claimed his share in the tarwad properties, that he had, therefore, attained a divided status, that his Bhare would, therefore, go to his legal representative and that Petitioner 1 was the legal wife of the deceased Padmanabhan Nair and Petitioner 2 was the legitimate child by that union. They were, therefore, allowed the share in the properties which would have gone to Padmanabhan, Nair had he been alive. It is against this order that the present appeal is filed by the two remaining Plaintiffs.

In the objection petition filed by the Plaintiffs there was no denial of the status of the Petitioners as the wife and child of the deceased'' Padmanabhan Nair. The only contention was that they were to prove their status. P.W. 4 had sworn that Petitioner 1 was the legal wife of the deceased Padmanabhan Nair and the child was born of that marriage. The status also was not seriously disputed before us in argument. We would, therefore, confirm the findings of the lower Court that the Petitioners are the legal representatives of the deceased Padmanabhan Nair.

It is settled law in Cochin that if a member of a Nair ''Tarwad expresses in unequivocal terms his intention to get himself separated from the other members that would constitute partition so that he can claim his share in the properties. When a number of members of a tarwad join as Plaintiffs in a suit there is no presumption that they intend to sever their status as between themselves unless a contrary intention is expressed by making a claim for their individual shares. Vide Vasudevan Unni v. Kannan Unni 20 KER L. R. 388. Even after a decree for partition jointly in favour of several members if applications for the separate shares are made by the Plaintiffs that would also constitute a partition among the Plaintiffs inter se and the Court is competent to allot the shares to the Plaintiffs who make such applications. This principle is also accepted by a Full Bench in Krishnan Paltar v. Ganapathi Iyer 84 KER L. B. 831. It was conceded that if Padmanabhan Nair had demanded his share to the knowledge of other Plaintiff''s then his legal representatives would get that share. From the evidence in this case, it was seen that before the preliminary decree was confirmed by the High Court, Padmanabhan Nair had claimed his share and that he had engaged P. Ws. 1, 2 and others as mediators. P. W. 1 is a respectable person owning properties worth about Rs. 12,000. He is a Panchayat President and he swore that at the instance of Padmanabhan Nair he had approached the other Plaintiffs and Defendant 1 the Karnavan of the tarwad to give Padmanabhan Nair his separate share. According to him these persons agreed to the same but Defendant 1 stated that it could be affected only after the High Court decision. P. W.-2 was another mediator whose joint family properties are worth Rs. 60,000. He also supported the Petitioners'' case and said that in 1120 Medom he had approached the Plaintiffs and Plaintiff 2''s husband Krishnan Nair for the purpose. These persons agreed to the partition. P. W. 3 also supported the Petitioners it was, therefore, clear that before his death Padmanabhan Nair had claimed his share in the ''tarwad properties so that his legal representatives could claim what he would have got had he been alive. The Petitioners are, therefore, competent to claim Padmanabhan Nair''s share and the order of the lower Court is correct. In dividing the properties, the accounts between the Plaintiffs would be settled and a final decree passed. We, therefore, confirm the order of the lower Court and dismiss the appeal with costs.