Parukutty Amma and Others vs Rama Menon and Others

Gangadhara Menon, J.—Defendants 10 to 17 are the Appellants. The suit was for partition. The main question that is agitated in appeal is in regard to the right of the Appellants to obtain their share of plaint A schedule properties on a partition by metes and bounds. According to the Plaintiff he and Defendants 1 to 9 are members of an undivided Nair tarwad. Defendants 10 and 11 who were originally members of the tarwad separated under Ex. A partition in the year 1103. In that partition plaint A schedule properties were left in common. Consequently, the thavazahi of Defendants 10 to 17 have 1/5 share in those properties. Excluding that the remaining 4/5 share in A schedule properties as well as plaint B to D schedule properties are liable to be divided between Plaintiff and Defendants 1 to 9. Plaintiff, therefore, claimed 2/25 share in plaint A schedule properties and 1 to 10 in plaint B to D schedule properties. Defts 10 to 17 while admitting that the paint A schedule properties were left in common under Ex. A partition, prayed that their 1/5 share may be allotted to them on a division by metes and bounds. Defendant 2 contended that under Ex. A partition plaint. A schedule properties fell to the branch of Plaintiff and Defendants 1 to 6 and Ors. , that the thavazhi of Defendants 10 to 17 have no right to get any share in those properties and that they had only the right to get 128 paras of paddy per annum as their share of the income from, those properties.

It was also contended that as per the provisions of Ex. A partition deed plaint A schedule properties could not be divided by metgs and bounds and that the Plaintiff can, therefore, get only a share of the profits. Agreeably with these contentions the learned Judge found that under Ex. A partition deed plaint A schedule properties

were also divided though not by metes and sounds but in the most beneficial form consistent with the best interests of the tarwad and the convenience of joint cultivation

and further that

these properties are riot liable to be physically divided by metes and bounds in view of the consistent provisions in Ex. XVI and A against such division, but that they are liable to be divided in the only mode consistent with the best interest of the tarwad and the common, concurrence of the sharers recorded in those documents, viz., by division and allotment of the ratable sharers (sic) of the net income thereof.

and passed a preliminary decree as follows:

There will be no physical division of the A schedule properties by metes and bounds, but their net annual income, less the 128 paras of paddy due to the branch of Defendants 10 and 11, will be divided into 10 shares, one share each being given individually to Plaintiff, Defendant 1 and Defendant 9 and the remaining seven shares being given to the branch constituted by Defendants 2 to 8;

Physical possession of the entire A schedule properties will be with Defendants 2 to 8, who will be responsible for their due maintenance, cultivation and income and for payment of the due shares to the other three sharers who, as well as Defendants 10 to 15 in respect of the annual 128 paras, will be entitled to collect them by way of a rent charge from these properties and from the branch of Defendants 2 to 8;

"The C schedule movables will be similarly divided as between Plaintiff, Defendants 1, 9 and 2 to 8, the share of Defendants 2 to 8 and Defendant 2 personally being liable to account for them or for their value as given in the C schedule;

"The share of the Plaintiff will go to his wife and children impleaded after his death as his legal representatives in the suit;

"The share of Defendant 9 who had died in the course of the suit, will go to his thavazhi constituted by Defendants 10 to 15 and 19;

"Defendant 2 personally, and the share of Defendants 2 to 8, will be liable to render accounts of collections and disbursements of the tarwad income from 2-12-1114, the date of the Karar Ext. B;

"The amounts found due on such accounting will be realized from the share of Defendants 2 to 8 in this division and from Defendant 2 personally; and such amounts and the amounts if any with the receiver will also be liable to division any payment as indicated in respect of the A and G schedule assets;

"The Plaintiff and Defendant 1 will also be liable to account for the income of the properties that had been in their possession from 1117 till surrender to the receiver;

"The money value of the arrears of the annual payment of 123 paras of paddy due to Defendants 10 to 15 under the partition of 1103 from the income of the A schedule properties, with interest at o per cent per annum thereon from the due, dates, will be deemed a first charge on the plaint assets, and division will be only of the balance remaining after payment thereof;

"The costs of Plaintiff and Defendant 1 will come out of the estate and be provided for in the final decree;

"The costs of Defendants 10 to 15 will be borne Defendant 2; and Defendants 2, 9, 16 and 17, and 19 will suffer their own costs.

Defendants 10 to 17 have appealed against and his decree and the additional Plaintiffs 2 to 4 and Defendants 1 and 2 have filed memorandum of objections.

On a careful consideration of the provisions of Ex. A partition deed we are unable to agree with the learned Judge in his view that the plaint A schedule properties were also divided at the time of Ex. A partition deed. No doubt these properties are also included in Schedule A to that deed as items 11 to 37. But the reasons for such inclusion are clearly stated in the deed itself. Exhibit A makes it clear that items 11 to 37 were included in the A schedule for convenience of cultivation. There is nothing in the partition deed to indicate that the thavazhi of Defendants 10 and 11 relinquished their rights in these properties in favour of the branch of Defendants 1 to 6 and Ors. in lieu of the payment of 128 paras of paddy per annum. On the other hand the provisions of the deed make it abundantly clear that they retained their rights over those properties. The payment of 128 paras of paddy to the thavazhi of Defendants 10 and 11 is stipulated to be towards their share of the income after meeting the expenses of cultivation. It is stipulated in Ex. A that the provision regarding the share of the income of the thavazhi of Defendants 10 and 11 can be reviewed after the debts mentioned in the deed are discharged and that thereafter if there is an increase in the income they would be entitled to a proportionate share therein. The retention of she right of Defendants 10 and 11 to the income of their share of the properties is clearly indicative of the fact that Defendants 10 and 11 did not at all intend to relinquish their rights of ownership in favour of the branch of Defendants 1 to 6 Thus what was intended was to have the properties in common and to entrust the cultivation thereof to one of the branches. Therefore we are clearly of the view that that the parties intended under Ex. A partition deed was to leave the plaint A schedule properties in common as contended for by the Appellants and that they are entitled to 2/10 share of those properties

Next the question regarding the partibility of these properties in metes and bounds has to be considered. The properties are admittedly extensive paddy lands and there is nothing in evidence to indicate that their division by metes and bounds would adversely affect the proper cultivation of the land. It is not on this ground either that the learned Judge refuses the parties to have their shares allotted to them through division by metes and bounds. The learned Judge thinks that the parties are bound by the provision in Clause 6 of the partition deed that no member of the tarwad can claim an outright partition of these properties and that any member who wants to divide can get only his proportionate share of the income. This provision in Ex. A relied on by the Judge is repugnant to the provision in the Cochin Nair Act 29 of 1113 which gives the right to a member of a tarwad to an outright partition of his share in the tarwad properties and therefore we do not think that it could be enforced. Therefore we are of the view that the Plaintiff and the other members of his tarwad who claim their share as also, the Appellants are entitled to their share in the plaint A schedule properties allotted to them by a division by metes and bounds. There is no dispute between the parties with regard to the shares that the parties are entitled to if a division of the properties is directed.

It follows that the Appellants are entitled to 2/10 share of the plaint A schedule properties. The additional Plaintiffs 2 to 4 as the legal representatives of the deceased Plaintiff are also entitled to 2/25 share of those properties. Defendant 1 and the other members of the Plaintiffs tarwad who have claimed their share of the tarwad properties will also be entitled to their due share in those properties as well. It need hardly be said that the Appellants are entitled to their share of profit of A schedule properties as directed by the learned Judge in the preliminary decree till they are put in possession of their shares of the properties by a division by metes and bounds. We also make it clear that the Appellants in addition to the above 2/10 share of plaint A schedule properties will as the legal representatives of the deceased Defendant 9 also be entitled to his share of the tarwad properties inclusive of his 2/25 share in plaint A schedule properties.

Defendant 1 in his memorandum of objections contends that he is entitled to get credit for Rs. 100/- in lieu of the expenses that he incurred for the treatment of Sankara Menon who died in 1118. There is no reliable evidence regarding the expenses alleged and therefore we do not find our way to allow the claim. Defendant 2 contends that he had paid to Defendant 10. 90 paras of paddy under a receipt dated 28-10-1115. This receipt is not proved in the case. The question of this alleged payment is left open to be determined at the time of the final decree to be passed in the case. The learned Judge has given very valid reasons for disallowing Defendant 2''s claim for the movable C schedule items Nos. 35 to 45. We do not see any reason to interfere with that finding.

In the result in modification of the decree appealed against the appeal and the memoranda of objections are allowed to the extent indicated'' in paras. 5 and 6 above and dismissed in other respects. The Appellants will get their costs in this Court from Defendant 2.