IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 SA.No. 265 of 1993(F) ------------------------------- AS.163/1991 of IIND ADDL. SUB COURT,THALASSERY OS.226/1989 of ADDL.MUNSIFF COURT,KANNUR .................... APPELLANTS/ APPELLANTS/ DEFENDANTS 1,5 AND 6. -------------------- 1. CHERIYANDI ABDUL AZEEZ, S/O. MARIYUMMA, PORT SECTION, P.N. NO. 267, ABUDABI, U.A.E., REP.BY THE POWER OF ATTORNEY KURIKKALATH CHERIYA PURAYIL SUHARA OF AZHIKODE KANNUR. 2. -DO- MUSTHAFFA, S/O. SAINAVA, V.K.HOUSE, CHAKKARAPARA, AZHIKODE, KANNUR 9. **3. UMMER KUNHI, S/O. SAINAVA, KARSANDA, BELLARD ROAD, CAMP BAZAR, KANNUR -1. (DIED). ADDL. A4 & A5 ARE IMPLEADED. 4. SHAMEER/K., S/O. LATE CHERIYANDI UMMER KUNHI KUNDIL HOUSE, ANAYIDUKKU, DIST. KANNUR. 5. SUBAIDA K., D/O. LATE CHERIYANDI UMMER KUNH\, DO. DO. ADDL. R4 & R5 ARE IMPLEADED AS THE LR'S OF THE DECEASED 3RD APPELLANT VIDE ORDER DT. 20.9.07 IN IA. 1276/07. BY ADV. SMT.A.C.VIDYA SRI.F.S.MANAVALAN RESPONDENTS/RESPONDENTS/ PLAINTIFFS DEFENDANTS 2 TO 4 AND 7 TO 54. ----------------------- *1 CHERIYANDI HAMSA, S/O. PATHUHI, CHIRAKULAM WARD, CANNANUR CITY, KANNUR. SA. NO.265/1993 2. CHEERIYANDI AHAMED, S/O. KHADEEJA, UMMA, RESIDING AT THAYATHERU, KANNUR. *3 -DO- ABDULSALAM, S/O. KHADEEJA, UMMA, RESIDING AT KANNUR KARARINAKAM THAYATHERU DESOM, KANNUR TALUK. 4. AMINAKUNHI, D/O. KHADEEJA UMMA, RESIDING AT -DO- -DO-. 5. SULAIKHA, -DO- -DO- 6. NOORJAHAN, D/O. AMINAKUNHI -DO- -DO- *7. NAZIR, S/O. AMINAKUNHI, DO. DO. 8. NAJHMA, D/O. AMINAKUNHI DO. DO. 9. REELAR, S/O. AMINAKUNHI DO. DO. 10. SHUMSHAD, S/O. AMINAKUNHI, KANNUR KARARINAKAM, THAYATHERU DESOM, KANNUR TALUK, DIST. KANNUR. 11. MUMTHAS, D/O. AMINAKUNHI, DO. DO. 122. RASHEED, S/O. AMINAKUNHI, POST BOX NO.5164 DUBAI, U.A.E. 13. ANZARI, S/O. AMINAKUNHI, KANNUR KARARINAKAM, THAYATHERU DESOM, KANNUR TALUK, DIST. KANNUR. 14. SHAMEEM, D/O. SULAIKHA, DO. DO. 15. SUBAIDA, D/O. NABEESA, DO. DO. 16. SUHARA, D/O. NABEESA, DO. DO. 17. ABDUL JABBAR, S/O. NABEESA, DO. DO. 18. MAHAMOOD, S/O. NABEESA, BUSINESS, DO. DO. 19. ASHARAF, S/O. NABEESA DO. DO. 20. MUHAMMAD KHALEEL, S.O. NABEESA, OFFICERS MESS, POST BOX NO.309 , ABUDABI, U.A.E. SA. NO.265/1993 21. RUBEENA, D/O. NOORJAHAN, KANNURKARARINAKAM, THAYATHERU DEOSM, KANNUR TALUK, DIST. KANNUR. 22. THESNEEM, D/O. NOORJAHAN, DO. DO. 23. RISVANA, D/O. NOORJAHAN, DO. DO. 24. SAJIDH, S/O. NAJMA, DO. DO. 25. SAJIL (MINOR) 17 YEARS, S/O. NAJMA DO. DO. 26. SANJIR, (MINOR) 15 YEARS, DO. DO. 27. SAJNA, (MINOR 13 YEARS), D/O. NAJMA, DO. DO. 28. (MINOR 8 YEARS), DO. DO. 29. 11TH RESPONDENT'S CHILDREN- SHYJLAL, (MINOR 7 YEARS), DO. DO. 30. 14TH RESPONDENTS CHILDREN SAFFAR (MINOR 8 YEARS) DO. DO. 31. SABIR (MINOR 5 YEARS). 32. AHAMMAD RAJI, S/O. SUBAIDA, BUSINESS, KANNUR KARARINAKAM, THAYATHERU DESOM, KANNUR TALUK, DIST. KANNUR. 33. FOUSIA, D/O. SUBAIDA, DO. DO. 34. AYSHA, DO. DO. 35. FATHIMA, D/O. SUBAIDA, DO. DO. 36. MURSHID S/O. SUBAIDA, P.B. NO.3597 SHARJA, U.A.E. 37. ASHIK, S/O. SUBAIDA, NO OCCUPATION KANNUR KARARINAKAM THAYATHERU DESOM, KANNUR TALUK, DIST. KANNUR. 38. ARIFA, D/O. SUHARA, DO. DO. 39. C.H.SUHAIL, S/O. SUHARA, P.B. NO.6260 DAMMAN, 31442, KAS. SA. NO.265/1993 40. NADHAR, S/O. SUHARA, KANNUR KARARINAKAM, THAYATHERU, KANNUR TALUK DIST. KANNUR. *41 SHAKEEL, S/O.SUHARA, DO. DO. (DIED) 42. NISHANA, D/O. SUHARA, DO. DO. 43. AZZENA, D/O. ASMA, DO. DO. 44. ANEEZ, D/O. ASMA, DO. DO. 45. AJINA, D/O. ASMA, (MINOR 17 YEARS), DO. DO. 46. 33RD RESPONDENT'S CHILDREN FIROSE, MINOR 17 YEARS, DO. DO. 47. FEBINA, (MINOR 15 YEARS. 48. FAYAZ, (MINOR 11 YEARS 49. 34TH RESPONDENTS CHILDREN NOUFEL, MINOR 15 YEARS. 50. NOUFEERA (MINOR 13 YEARS). 51. SHAHEENA (MINOR 11 YEARS). 52. 35TH RESPONDENTS DAUGHTER RAJNA,(MINOR 8 YEARS. 53. 38TH RESPONDENT'S CHILDREN ALKASHARBANI MINOR 9 YEARS. MINOR RESPONDENTS 25 TO 28 BY GUARDIAN 8TH RESPONDENT. MINOR 29 RESPONDENT BY GUARDIAN 11TH RESPONDENT. MINOR RESPONDENT 30 TO 31 BY GUARDIAN 14TH RESPONDENT. MINOR RESPONDENTS 44 AND 45 BY GUARDIAN 43RD RESPONDENT. MINOR RESPONDENTS 46 TO 48 BY GUARDIAN 33RD RESPONDENT. MINOR RESPONDENTS 49 TO 51 BY GUARDIAN 34TH RESPONDENT. MINOR RESPONDENT 52 BY GUARDIAN 35TH RESPONDENT. MINOR RESPONDENT 53 BY GUARDIAN 38TH RESPONDENT. *ADDL. R54 TO 59 IMPLEADED ADDL. 60 TO 64 IMPLEADED ADDL. R65 TO 69 IMPLEADED. 54. M.T.SUBAIDA, AGED 60 YEARS, RESIDING AT ''SUBAIDABAD'', KOTTAKKE THAZHE WARD, KANNUR CITY, KANNUR. 55. M.T.JAMEELA, AGED 46 YEARS, RESIDING AT DO. DO. SA. NO. 265/1993 56. M.T.ASHRAF, AGED 38 YEARS, RESIDING AT DO. DO. 57. M.T.SHARIF, AGED 35 YEARS, RESIDING AT DO. DO. 58. M.T.ASMA, AGED 40 YEARS, RESIDING AT DO. DO. 59. M.T.SAHEENA, AGED 30 YEARS, RESIDING AT DO. DO. ADDL. 54 TO 59 IMPLEADED AS THE LR'S OF DECEASED FIRST RESPONDENT VIDE ORDER DT. 2.8.07 IN CMP. 2593/99. 60. KADEEJA, AGED 50 YEARS, RESIDING AT KANOTH HOUSE, COCHIPALLI WARD, ANAYIDUK GATE, KANNUR CITY, KANNUR DIST. 61. S/O. PRODECEASED IST WIFE K.HARRIS, AGED 34 YEARS, RESIDING AT DO. DO. 62. HINAYAT, S/O. KADEEJA, AGED 23 YEARS, RESIDING AT DO. DO. 63. JASEELA, D/O. KADEEJA, AGED 20 YEARS, DO. DO. 64. SAJEEDA, D/O. KADEEJA, AGED 10 YEARS(MINORT) (REP.BY MOTHER AND GUARDIAN KADEEJA, RESIDING AT KANOTH HOUSE, COCHIPALLI WARD, ANAYIDUK GATE, KANNUR CITY, KANNUR DIST.) ADDL. R 6O TO 64 ARE IMPLEADED AS THE LR'S OF DECEASED 3RD RESPONDENT VIDE ORDER DT. 2.8.07 IN CMP. 37/2000. ADDL. RESPONDENT SOUGHT TO BE IMPLEADED. 69. ITTAKATH THASEERA, W/O. SHAKEEL, AGED 19 YEARS, BHOOTHAPARA, AZHIKODE P.O., KANNUR DIST. THE DEATH OF THE 41ST RESPONDENT RECORDED R 16, 38, 39 AND 40 ARE RECORDED AND ADDL. R 69 IMPLEADED AS THE LR'S OF THE DECEASED 41ST RESPONDENT VIDE ORDER DT. 20.9.07 IN CMP. 34/00. BY ADV. SRI. M.P.ASHOK KUMAR SRI.SUDHEESH THAROL SRI.K.V.SOHAN SMT.VIDHYA. A.C THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 265 OF 1993 ............................................ DATED THIS THE 18th DAY OF JANUARY, 2008 JUDGMENT Defendants 1, 5 and 6 in O.S.226 of 1989 on the file of Munsiff Court, Kannur are the appellants. Respondents 1 and 2 are the plaintiffs. The other respondents are the other defendants in the suit. The suit was filed seeking partition and separation of the share of plaintiffs. Plaint Schedule property admittedly originally acquired in the name of Kuttiali. Kuttiali, Ayissa Kunhi and Ebrahimkutty are the children of Abdu Rahiman. The case of plaintiffs is that though the acquisition was in the name of Kuttiali, it was for and on behalf of the thavazhi consisting of Ebrahimkutty, Ayissa Kunhi and Kuttiali and their children and the children of the daughters and subsequent to the death of Kuttiali, his son, Padikkal Mahamood claimed exclusive right contending that it is not a thavazhi property and instead the property of only Kuttiali. There was a settlement whereunder Ext.A4 kanam deed was executed jointly by Ebrahimkutty, Ayissa Kunhi and others in favour of Padikkal Mahamood whereunder Padikkal Mahamood had withdrawn his claim that the property does not belong to the thavazhi but to SA 265/1993 2 Kuttiali exclusively. Instead recognising the thavazhi character of the property, Mahamood accepted the kanam deed which provided that on payment of the kanam amount, any member of the thavazhi is entitled to redeem the same. It was contended that subsequently defendants 5 and 6 filed O.S.450 of 1983 seeking partition of the properties which was dismissed for default and by institution of the suit, there was a severance of the status of the thavazhi and any child born thereafter is not entitled to claim a share by birth and in 1983, there were 56 members in the thavazhi and therefore plaint schedule property is to be divided into 56 equal shares and plaintiffs are entitled to two such shares and each of the defendants are entitled to one share. First respondent, the daughter of Mariyumma, one of the daughters of Ayissa Kunhi filed written statement contending that the property was not acquired by Kuttiali for the thavazhi and instead, it belonged to Kuttiali alone and as per an oral will, he bequeathed the property to his sister Ayissa Kunhi alone and therefore on the death of Kuttiali, only Ayissa Kunhi had right in the property and she had four daughters, Pathunhi, Mariyumma, Khadeeja and Sainaba. Defendants 5 and 6 are the children of Sainaba. At the time of marriage of Mariyumma, Ayissa Kunhi SA 265/1993 3 had given Sthreedhanam being building No.T.K.276 and 277 (new numbers 380, 382 and 283) and the entire property on the rear side of the shop rooms and Pathunhi was in exclusive possession of the building and on his death it devolved on first defendant and her sister Nabeesu and on the death of Nabeesu, her right devolved on her children who are defendants 16 to 21 and building No.T.K.280 and 281 and the property on its rear side were given to Mariyumma as Sthreedhanam and she has been in exclusive possession of the property and after her death, it devolved on first respondent and he has been in possession of the property and therefore the property is not available for partition. 2. Defendants 5 and 6 filed a joint written statement reiterating the contentions raised by first defendant and contending that Ayissa Kunhi had given T.K.No.278 and 279 with new numbers 378 and 379 in favour of her daughter Kadeeja and the said property exclusively belongs to Kadeeja. It was also contended that building Nos. T.C.273, 274 and 275 with new numebers 384, 385 and 386 and the land on its rear side were given to Sainaba at the time of her marriage with Aboobacker and since then the property has been in exclusive SA 265/1993 4 possession of Sainaba and thereafter on her death, with respondents 5 and 6 and Ayissa Kunhi had given the property as Sthreedhanam as it is her own exclusive property and if it was a tarwad property she could not have been given the property as Sthreedhanam and under the Marumakkathayam tarwad, Sthreedhanam had to be given by the karanavan and as there were male members older to Ayissa Kunhi at that time, she could not have been given Sthreedhanam to the daughters and from the date of Sthreedhanam, respective properties were in their possession for the last more than 50 years and therefore rights of the thavazhi if any is lost by adverse possession and therefore the suit is to be dismissed. 3. Learned Munsiff, on the evidence of DW1, Exts.A1 to A20 and B1 to B118, found that Ext.A4 establish that Ayissa Kunhi herself admitted that plaint schedule property is a thavazhi property and contention of defendants that plaint schedule property is the exclusive property which belonged to Kuttiali and as per oral will he bequeathed the property in favour of Ayissa Kunhi and she in turn granted Sthreedhanam in respect of portions of the property and appellants have got exclusive right in those properties is not sustainable. Learned SA 265/1993 5 Munsiff found that plaint schedule property belonged to the thavazhi which had 56 memebers in 1983 when defendants 5 and 6 filed O.S.450 of 1983 claiming partition whereunder the status of the tarwad was disrupted. Therefore it was found that plaint schedule property is to be divided into 56 equal shares and each of the member of the tarwad is entitled to one share. A preliminary decree was passed. Appellants challenged the judgment before Sub Court, Thalassery in A.S.163 of 1991. Learned Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1) Is the finding of courts below that plaint schedule property is the thavazhi property of Ayissa Kunhi, legally sustainable in the light of the evidence on record. 2)Is the finding of courts below that property given as Sthreedhanam, is only a maintenance arrangement, and not an absolute gift is warranted on the evidence. 3)Whether the suit is bad for partial partition. 5. Learned counsel appearing for appellant and contesting SA 265/1993 6 respondents were heard. The argument of the learned counsel is that when plaintifss did not adduce any evidence and DW1 was examined, courts below should not have found that plaint schedule property is a thavazhi property. It was argued that plaint schedule property admittedly originally belonged to Kuttiali, as it was acquired in his name and he was not the karanavan of the tarwad or thavazhi at that time and therefore acquisition of the property by a junior member cannot be for the thavazhi and hence the finding of courts below that plaint schedule property is a thavazhi property is not sustainable. Learned counsel also argued that evidence of DW1 establish that Kuttiali had orally bequeathed the property in favour of his sister Ayissa Kunhi, who alone has right to the property and though reliance was placed on Ext.A4, Ext.B14, the plaint in a suit instituted by Ayissa Kunhi against her son in law establish that he asserted that property belongs to her exclusively and therefore finding of courts below is not sustainable. Learned counsel further argued that in Ext.B5 to B8, koolichit executed by tenants in favour of the husbands of the daughters of Ayissa Kunhi establish that property belonged to them exclusively as the respective portions were given as Sthreedhanam property by SA 265/1993 7 the Ayissa Kunhi and therefore the finding of courts below that it is a thavazhi property and so it is available for partition is not sustainable. Learned counsel argued that in any case, evidence establish that for the last more than 50 years, daughters of Ayissa Kunhi were in exclusive possession of the property as they were given Sthreedhanam and on her death, their children were in exclusive possession of the property and even if the plaintiffs or other defendants have any right, it is lost by adverse possession and limitation and the preliminary decree is to be set aside. Learned counsel relying on the decision of a Division Bench of this court in Mariyakutty V. Noorjahan (2004(3) KLT 358) and of a learned Single Judge in Mammad V. Biyyathumma (1964 KLT 356) argued that when a property is given as Sthreedhanam, that property cannot be taken as a thavazhi property and instead, it exclusively belongs to the daughter to whom it is given as Sthreedhanam and therefore when in the plaint itself it is admitted that properties were given as Sthreedhanam, courts below should have found that the properties exclusively belong to daughters of Ayissa Kunhi and are not available for partition. 6. Learned counsel appearing for respondent argued that SA 265/1993 8 Ext.A4 conclusively establish that plaint schedule property is a thavazhi property. It was argued that after the death of Kuttiali, his son Mahamood raised a claim that the property does not belong to the Thavazhi as acquisition was not for the thavazhi and instead it exclusively belongs to him. That dispute was settled and Ext.A4 kanam deed was executed by the members of the thavahzi including Ayissa Kunhi, under whom appellants are claiming right. She was executant No.2 therein. It was argued that in Ext.A2 it was unambiguously admitted by Ayissa Kunhi that the acquisition was for the thavazhi and the properties belong to thavazhi and hence case of an oral will or gift by Kuttiali in favour of Ayissa Kunhi or the case that property belonged exclusively belonged to Ayissa Kunhi cannot be sustained and even if Ayissa Kunhi had given portion of the property as Sthreedhanam, it can only be maintenance arrangement as Ayissa Kunhi had no exclusive right over the plaint schedule property and therefore finding of courts below that plaint schedule property is available for partition is perfectly correct. It was argued that the fact that in 1983, there were 56 members in the thavazhi and each of the member is entitled to a share was not disputed and therefore appeal is only to be SA 265/1993 9 dismissed and substantial questions of law as formulated are not involved in the appeal. 7. It is admitted case that the plaint schedule property was acquired in the name of Kuttiali. It is also admitted that he was not the seniormost member of the tarwad at that time. Apart from Kuttiali, Ebrahimkutty and Ayissa Kunhi are the children of Abdu Rahiman. When plaintiffs contended that acquisition by Kuttiali was for the thavazhi, and therefore plaint schedule property is a thavazhi property, appellants would contend that the acquisition was by Kuttiali on his own right and not on behalf of the thavazhi and Kuttiali had, by an oral will, bequeathed the property in favour of Ayissa Kunhi and therefore it exclusively belonged to Ayissa Kunhi. As rightly found by courts below, in the light of Ext.A4 the argument cannot be accepted. Ayissa Kunhi was one of the executants of Ext.A4. Appellants are claiming right under Ayissa Kunhi. Hence they cannot be heard to contend that plaint schedule property is not a thavazhi property when Ayissa Kunhi asserted otherwise in Ext.A4. Ext.A4 prove that there was a dispute between Mahamood, son of Kuttiali and other members of the thavazhi as to whether the property acquired in the name of Kuttiali is a self acquisition of SA 265/1993 10 Kuttiali or an acquisition on behalf of the thavazhi. Ext.A4 establish that the said dispute was settled and Mahamood, son of Kuttiali withdrew his contention that it is not an acquisition for the thavazhi and instead accepted the case of executants including Ayissa Kunhi, that the property was acquired for the thavazhi by Kuttiali and though documents stand in the name of Kuttiali it is a property belonging to the thavazhi. As Mahamood had raised a claim to that property as a settlement he was given a kanam right, with a specific provision that any member of the thavazhi is entitled to redeem it. In the light of Ext.A4, it is futile for appellants to contend that the acquisition was not for the thavazhi or that there was an oral will by Kuttiali in favour of Ayissa Kunhi. If there was such an oral will or gift in her favour Ayissa Kunhi would not have stated a contrary fact in Ext.A4. DW1 has no personal knowledge about these aspects. Hence evidence of DW1 is not at all helpful to prove the existence of an oral will or a gift. Though reliance was placed on Ext.B14 copy of the plaint instituted by Ayissa Kunhi against one of her son in law, to prove that the property exclusively belonged to Ayissa Kunhi, in Ext.B14, there is no case that the property was orally gifted or bequeathed in favour of Ayissa Kunhi by Kuttiali and SA 265/1993 11 therefore property belongs to her exclusively and not a thavazhi property. Moreover, Ext.B14 suit was instituted subsequent to execution of Ext.A4. When in Ext.A4, Ayissa Kunhi admitted and asserted that it is a thavazhi property, she is not entitled to plead otherwise in Ext.B14 suit and relying on Ext.B14, it is not possible to hold that the acquisition was not for the thavazhi or that it is not a tavazhy property. 8. The argument of the learned counsel is that in the plaint itself, the fact that portions of the plaint schedule property was given as Sthreedhanam to the daughters of Ayissa Kunhi was admitted and therefore it is to be taken that plaint schedule property belongs exclusively to the respective daughters of Ayissa Kunhi. It is for that purpose, reliance was placed on the decision of Mariyakutty's case (supra) and Mammad's case (supra). Facts of those cases are entirely different. The question considered was when a Sthreedhanam property was given to a female, whether that property is having the characteristics of a thavazhi property and whether her children or other members of her thavazhi could claim a share in that property as a thavazhi property. It was held that the property obtained as Sthreedhanam exclusively belongs to the female member of the SA 265/1993 12 tavazhy and it cannot be claimed by other members of the thavazhi. It is not a case of a thavazhi property given as Sthreedhanam to another member of the thavazhi, by one among the members of the thavazhi as in this case. When it is found that plaint schedule property is a thavazhi property, by birth, the daughters of Ayissa Kunhi are entitled to an equal share like the mother, Ayissa Kunhi. Moreover, Ayissa Kunhi had no exclusive right over the thavazhi property. If at all Ayissa Kunhi could only transfer her share in favour of her daughters as Sthreedhanam. Apart from the share thus given by the mother Ayissa Kunhi, four daughters of Ayissa Kunhi or their daughters cannot claim that plaint schedule property exclusively belong to them as Sthreedhanam, as long as they have no case that plaint schedule property was given to them as Sthreedhanam by their tavazhy. The case could have been appreciated if the case is that as per the custom prevailing in their community, there is a practice of payment of Sthreedhanam by the tavazhy at the time of marriage and as per that obligation karanavan or the members of the tavazhy had given portions of the property as Sthreedhanam and hence those portions of the property is not having the characteristics of the thavazhi property as held by this court in SA 265/1993 13 Mariyakutty's case. That is not the case herein. What was pleaded was that plaint schedule property belongs to Ayissa Kunhi exclusively and Ayissa Kunhi had given portions of the property as Sthreedhanam property. The right of Ayissa Kunhi is claimed not under the tavazhy, but based on the alleged oral will or gift. There is no case that Sthreedhanam was given by the thavazhi and therefore other members of the thavazhy cannot claim any right over those portions of the property. As long as Ayissa Kunhi, who had allegedly given the property as Sthreedhanam has only one share, like any other member of the thavazhy, appellants cannot claim any exclusive right in derrogation of the right of the other members of the thavazhi. Therefore courts below rightly found that appellants are not entitled to claim exclusive right and plaint schedule property being a thavazhi property is available for partition. 9. Though learned counsel argued that the suit is bad for partial partition and such a contention was raised in the written statement, trial court specifically found that no evidence was adduced to prove that any other thavazhi property is available and even DW1 did not give any evidence on that aspect. It is seen from appeal memorandum filed by appellants before the SA 265/1993 14 first appellate court that the said finding was not challenged. What was contended before the first appellate court was only that trial court should have found that if there is any other property other than plaint schedule property, it is also available for partition and not that there are other properties available for partition and therefore suit is bad for partial partition. Even if there are other properties, which could be claimed as thavazhi properties, appellants are entitled to claim partition in a separate suit. So long as there is no case that partition of the plaint schedule property alone will cause prejudice or result in inequitable partition, suit cannot be dismissed on the ground of partial partition. 10. Though learned counsel appearing for appellant also argued that in any case courts below should have found that right of the other thavazhy members was lost by adverse possession and limitation, it is seen that first defendant has not raised such a contention in the written statement. Though defendants 5 and 6 raised a contention in written statement that right of plaintiff is lost by adverse possession, there is no plea of ouster. So long as appellants are members of the tarwad and thus coowners unless there is a plea of ouster, plea of adverse SA 265/1993 15 possession will not stand. There is no merit in the appeal. It is dismissed. But considering the fact that even plaintiffs admitted that daughters of Ayissa Kunhi were given portions of the property as Sthreedhanam by their mother though it is a family arrangement,