IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH OCTOBER 2007 / 2ND KARTHIKA 1929 AS.No. 576 of 1992(A) & CROSS OBJECTION --------------------------------------------------------------- OS.92/1988 OF ADDL.SUB COURT, THALASSERY. .................... APPELLANTS/ DEFENDANTS 12 & 24: ------------------------------------------------------ 1. A.M. PADMINI AMMA, D/O. KRISHNAN NAMBIAR, OLACHERI HOUSE, POST CHALAD, CANNANORE. 2. A.M. SATHYABHAMA, D/O. KUNHIKANNAN NAMBIAR, C/O. T.L. NAMBIAR, 125, SHIVAJI NAGAR, NAGPUR. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.), ADV. SMT.PRABHA R.MENON, ADV. SRI.M.KRISHNAKUMAR, RESPONDENTS/ APPELLANTS & DEFENDANTS 1 TO 11, 13 TO 23 & 25 TO 18: --------------------------------------------------------------------------------------------------------------- 1. VIJAYALAKSHMI AMMA, D/O. AMMUKUTY AMMA, RESIDING AT VANAMALI VIHAR, POST WEST PONNIAM, KADIRUR, TELLICHERY. 2. V.P. MURALEEDHARAN, S/O. VIJAYALAKSHMI AMMA, RESIDING AT VANAMALI VIHAR, POST WEST PONNIAM, KADIRUR, THALASSERY. 3. V.P. VANAJA, D/O. VIJAYALAKSHMI AMMA, RESIDING AT NEW DELHI. 4. V.P. MADHUSUDHANAN, S/O. VIJAYALAKSHMI AMMA, MECHANIC, NOW RESIDING AT NEW DELHI. 5. V.P. VINEETHA, D/O. VIJAYALAKSHMI AMMA, RESIDING AT VIJAYA NIVAS, WEST PONNIAM POST. A.S. NO. 576/1992: 6. V.P. ANOOP, S/O. VANAJA, AGED 17 (MINOR), THROUGH THE NEXT FRIEND MOTHER VANAJA 3RD RESPONDENT. 7. V.P. BHARATH KUMAR, ALIAS B.K. NAMBIAR, S/O. AMMUKUTTY AMMA, MEDICAL SUPERVISOR, RESIDING AT MADRAS. *8. V.P. AMMUJAM, D/O. AMMUKUTTY AMMA, RESIDING AT BOMBAY. *(DIED). *IT IS RECORDED THAT R.8 IS DEAD AND THAT R.9 TO R.11 ARE HER LEGAL HEIRS - VIDE ORDER DATED 04/10/06 ON I.A. 3803/05. 9. P.V. DINESH NAMBIAR, S/O. V.P. AMMUJAM, DOCTOR, NOW RESIDING AT BOMBAY. 10. V.P. LATHA MENON, D/O. AMMUJAM, RESIDING AT U.S.A. 11. V.P. SURESH NAMBIAR, S/O. AMMUJAM, ACCOUNTANT, NOW RESIDING AT U.S.A. 12. V.P. PADMAJAVALLY, D/O. AMMUKUTY AMMA. RESIDING AT KUWAIT. 13. V.P. SHIBANI, D/O. PADMAJAVALLY, NOW RESIDING AT MADRAS. 14. V.P. AJAY NAMBIAR, S/O. PADMAJAVALLI, NOW RESIDING AT KUWAIT. 15. V.P. MALLIKA RANI, D/O. AMMUKUTY AMMA, NOW RESIDING AT MADRAS. 16. V.P. SANGEETHA, D/O. MALLIKA RANI, NOW RESIDING AT MADRAS. 17. V.P. SANJAY, S/O. MALLIKA RANI. 18. V.P. RADHAKRISHNAN, S/O. AMMUKUTTY AMMA, STOREKEEPER, NOW RESIDING AT KUWAIT. RESPONDENTS 3, 4, 6, 7, 13, 15, 16 AND 17 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER MR. V.P. MURALEEDHARAN, S/O. VIJAYALAKSHMI AMMA, RESIDING AT VANAMALI VIHAR, POST WEST PONNIAM, TELLICHERRY - 2ND RESPONDENT. RESPONDENTS 8, 9, 10 AND 11 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER MR. K.N. MADHAVAN NAMBIAR, OTHAYOTH HOUSE, POST BRUVATTY, (VIA) KADIRUR. A.S. NO. 576/1992: RESPONDENTS 12, 14, AND 18 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER MR. K.T. SREEKUMAR, VIJAYA NIVAS, POST WEST PONNIAM. **19. V.P. KUNHIKANNAN NAMBIAR, S/O. PARVATHY AMMA, OLACHERI HOUSE, POST CHALAD, CANNANORE (DIED). **THE IMPLEADING OF THE FIRST APPELLANT AS THE SOLE LEGAL HEIR OF DECEASED V.P. KUNHIKANNAN NAMBIAR (19TH RESPT.) IS RECORDED SUBJECT TO THE RIGHT OF THE CONTESTING RESPONDENTS TO ARGUE WHEN THE APPEAL IS HEARD THAT ALL THE LEGAL REPRESENTATIVES HAVE NOT BEEN IMPLEADED - VIDE ORDER DATED 24/08/95 IN C.M.P. NO. 2496/95. #20. V.P. SATHYAPALAN, S/O. AMMUKUTTY AMMA, PLEADER, RESIDING AT LAKSHMI NIVAS, KAVANISSERI, POST CHERUKUNNU (VIA) CANNANORE. (DIED). 21. V.P. SAILENDRANATH, S/O. AMMYKUTY AMMA, AGED 47, MEDICAL REPRESENTATIVE RESIDING AT `SUPRIYA', POST KALOOR, COCHIN - 17. 22. A.C. KALLIANIKUTTY AMMA, W/O. MADHAVAN NAMBIAR, RESIDING AT `DWARAKA' POST BRUVATTY (VIA) KADIRUR. 23. A.C. JALAJA, D/O. KALLIANIKUTY AMMA, C/O. N. NARAYANAN NAIR, PERSONNEL ASSISTANT, HEAD POST OFFICE, BADAGARA. 24. P.K. RUGMINI AMMA, W/O. GOVINDANKUTTY NAMBIAR, RESIDING AT GOKULAM POST, KADIRUR. 25. P.K. GIRIJA, D/O. GOVINDANKUTTY NAMBIAR, RESIDING AT GOKULAM, POST KADIRUR. 26. P.K. GOPINATH, S/O. GOVINDANKUTTY NAMBIAR, RESIDING AT GOKULAM, POST KADIRUR. 27. A.M. LAKSHMYKUTTY AMMA, D/O. KRISHNAN NAMBIAR, RESIDING AT VIMALA SADAN, KUNHIMANGALAM (VIA), KANNUR. #28. A.M. RAGHAVAN NAMBIAR, S/O. KRISHNAN NAMBIAR, RESIDING AT DOOR NO. 20, DELHOUSY COLONY, NEW DELHI - 12. A.S. NO. 576/1992: 29. A.M. PADMANABHAN NAMBIAR, S/O. KRISHNAN NAMBIAR, RETD. MECHANIC, 202, AIR INDIA HOUSING COLONY (DIED). 30. A.M. CHANDRAMATHI AMMA, D/O. KRISHNAN NAMBIAR, RESIDING AT VIMALA SADAN, POST KUNNIMANGALAM. 31. A.M. RAVINDRAN NAMBIAR, S/O. KRISHNAN NAMBIAR, P.B. NO. 341, KUWAIT, ARABIAN GULF - (DIED) 32. A.M. AMMUJAM, D/O. KRISHNAN NAMBIAR, RESIDING AT C-21/186, GANDHI NAGAR, BANDRA EAST, BOMBAY -51. 33. A.C. MADHAVI AMMA, D/O. NARAYANAN NAMBIAR, RESIDING AT KELOTH HOUSE, POST ERUVATY, KADIRUR. 34. A.C. KALLIANIKUTTY AMMA, D/O. NARAYANAN NAMBIAR, RESIDING AT `DWARAKA', POST ERAVATTY, KADIRUR (STRUCK OFF) 35. A.C. MEENAKSHIKUTTY AMMA, D/O. NARAYANAN NAMBIAR, `SREENILAYAM', BEHIND THE CHAMBER OF COMMERCE, THAZHETHORU, CANNANORE -2. 36. A.C. LAKSHMIKUTTY AMMA @ CHINNAMMA AMMA, D/O. NARAYANAN NAMBIAR, RESIDING AT RAJAPURAM, ERUVATTY. 37. A.C. SAVITHRI AMMA, D/O. NARAYANAN NAMBIAR, KELOTH HOUSE, POST ERUVATTY. 38. A.C. PADMINI AMMA, D/O. NARAYANAN NAMBIAR, KELOTH HOUSE, POST ERUVATTY. 39. A.C. BALANARAYANAN NAMBIAR, S/O. NARAYANAN NAMBIAR, RETD. TEACHER, RESIDING AT KELOTH HOUSE, POST ERUVATTY. 40. A.C. MADHAVANKUTTY, S/O. NARAYANAN NAMBIAR, RESIDING AT `DWARAKA' POST ERUVATTY. 41. A.M. RATHI, D/O. KUNHIKANNAN NAMBIAR, OLACHERI HOUSE, CHALAD AMSOM, CANNANORE. @ 42. P.K. GEETHA, D/O. P.N.N. NAMBIAR, EMPLOYED IN STATE BANK OF INDIA, CANNANORE, RESIDING AT PAYYAMBALAM, CANNANORE. (STRUCK OFF) A.S. NO. 576/1992: 43. O. RADHAKRISHNAN, S/O. C.K. MENON, BANK EMPLOYEE, RESIDING AT JAYANTHI ROAD, CHALAT, SREENIVAS, CANNANORE. 44. P. VIJAYAN, JOINT ACCOUNTS OFFICER, TELEPHONES, CANNANORE. 45. K. RAMACHANDRAN, OFFICE OF THE DISTRICT MANAGER, TELEPHONES, CANNANORE. 46. P. JANAKI, W/O. RAVINDRAN, RESIDING AT JAWAHAR HOUSING COLONY, POST THOTTADA, CANNANORE. 47. P. SOBHANA, D/O. RAVINDRAN, RESIDING AT JAWAHAR HOUSING COLONY, POST THOTTADA, CANNANORE. 48. P. PRADEEP, S/O. RAVINDRAN, CLERK, JAWAHAR HOUSING COLONY, POST THOTTADA, CANNANORE. 49. P. DILIP, S/O. RAVINDRAN, RESIDING AT JAWAHAR HOUSING COLONY, POST THOTTADA, CANNANORE. 50. A.M. SATHYANATHAN, S/O. KUNHIKANNAN NAMBIAR, RESIDING AT OLACHERI HOUSE, CHALAD, CANNANORE. 51. T. SAROJA, W/O. A.M. PADMANABHAN NAMBIAR, RESIDING AT VIJAYASREE DURGA HOUSING SOCIETY, BLOCK NO. 34, 6TH ROAD SANTACRUZ EAST, BOMBAY-55. 52. T. ANOOP, CLERK, RESIDING AT VIJAYASREE DURGA HOUSING SOCIETY, BLOCK NO. 34, 6TH ROAD, SANTACRUZ EAST, BOMBAY-55. 53. T. ANIL, CLERK, RESIDING AT VIJAYASREE DURGA HOUSING SOCIETY, BLOCK NO. 34, 6TH ROAD, SANTACRUZ EAST, BOMBAY - 55. 54. T. ASHA, RESIDING AT VIJAYASREE DURGA HOUSING SOCIETY, BLOCK NO. 34, 6TH ROAD, SANTACRUZ, EAST BOMBAY-55. A.S. NO. 576/1992: #ADDL. R. 55 TO 57 AND R.58 TO 62 IMPLEADED: 55. MRS. T. VINODINI, W/O. LATE V.P. SATHYAPALAN, RESIDING AT `LAKSHMI NIVAS, KAVINISSERY, POST CHERUKUNNU, KANNUR DISTRICT. 56. T. JAYASREE, D/O. LATE DO- DO- DO- 57. T. JAYAPRAKASAN, S/O. LATE DO- DO- # LEGAL HEIRS OF THE DECEASED R.20 ARE IMPLEADED AS ADDL.R55 TO 57 - VIDE ORDER DATED 18/01/05 ON C.M.P. NO. 3870/97. 58. BEENA MOKERJI, D/O. LATE RAGHAVAN NAMBIAR, FLAT NO. 23, JAWAHAR BAUH, 108, UIU SONS HILL, NORVURY, LONDON, SW 163, EU. 59. ASHA BALAGOPALAN, D/O. LATE RAGHAVAN NAMBIAR, 94/F, POCKET NO. 4, PHASE I, MAYUR VIBOR, NEW DELHI. 60. SUNILKUMAR, S/O. LATE RAGHAVAN NAMBIAR, QUARTER NO. 499, SECTOR NO. 8, R.K. PURAM, NEW DELHI - 22. 61. GEETHA VIJAYAN, D/O. LATE RAGHAVAN NAMBIAR, KAMALALAYAM, , EDAT POST, PAYYANNUR, KANNUR. 62. PUSHPA SASIDHARAN, D/O. LATE RAGHAVAN NAMBIAR, PODOTH HOUSE, KUVERI, KANNUR. # LEGAL HEIRS OF THE DECEASED 28TH RESPONDENT ARE IMPLEADED AS ADDL. R.58 TO 62 VIDE ORDER DATED 13/01/05 ON I.A. 1116/03. BY ADV. SRI. N. VISWANATHA IYER, SRI.M.P.ASHOK KUMAR, SMT.VIDHYA. A.C, SRI.B.KRISHNAN, SRI.R.PARTHASARATHY. THIS APPEAL SUITS ALONG WITH CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 6/09/2007, THE COURT ON 24/10/2007 DELIVERED THE FOLLOWING: prv. ORDER ON C.M.P. NO. 7824/1992 IN A.S. NO. 576/1992 DISMISSED SD/- KURIAN JOSEPH, JUDGE. 24/10/2007. SD/- HARUN-UL-RASHID, JUDGE. //TRUE COPY// prv. KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ------------------------------------------------------------------ A.S.No.576 of 1992 & Cross- objections ------------------------------------------------------------------ Dated: October 24, 2007 JUDGMENT Harun-Ul-Rashid, J. This Appeal Suit arises from the judgment and decree dated 21.12.1991 in O.S.No.92/1988 on the file of the Sub Court, Thalassery. Defendants Nos.12 and 24 are the appellants herein. The plaintiffs and defendant No.3 have jointly preferred the memorandum of cross-objection challenging the finding of the court below in regard to item No.6 of the plaint schedule property. The parties herein are referred to hereafter as plaintiffs and defendants. 2. O.S.No.92/1988 is a suit for partition praying to pass a preliminary decree for partition of item Nos.1 and 2 in the plaint schedule properties into 25 shares, to allot 18 shares to the plaintiffs and for partition of item Nos.3 to 6 in the plaint schedule properties into 23 shares and to allot 18 such shares to the plaintiffs with the past and future profits and for such other consequential reliefs. 3. The facts necessary for the disposal of the appeal are as follows:- The plaintiffs and the defendants in the suit are the descendants of the common ancestress Velluva Puthiyaveettil Lakshmi Amma. The A schedule attached to the plaint is the genealogy of the parties. The plaint B schedule are the immovable properties belonging to the plaintiffs and the AS 576/1992 Page numbers defendants. The plaintiffs are some of the children and grandchildren of Ammukutty Amma who is the only daughter of Parvathi Amma. Parvathi Amma is the daughter of the common ancestress Lakshmi Amma. Parvathi Amma died in the year 1964. Ammukutty Amma died in the year 1949. The 1st defendant is the only son alive at the time of filing the suit amongst the children of Parvathi Amma and he was the eldest male member among the tavazhi members who became co-owners as a result of Act 30 of 1976. Till 1976 he was the Karanavan of the tavazhi and as the eldest male member, he was managing the properties. 4. Item Nos.1 and 2 were allotted to Lakshmi Amma and her descendants as per Ext.A1 partition karar dated 13.6.1933 entered into in the family by name Velluva Puthiyaveettil. In item No.1 there is a house in which the 1st defendant and his family members are residing. Item Nos.3, 4 and 5 originally belonged to Arathikandoth Kannan Nambiar and as per Ext.A2 registered will executed by him on 31.8.1924, the said properties were bequeathed to Parvathi Amma and all her children to be enjoyed as tavazhi. Kannan Nambiar died in 1929. Item Nos.3, 4 and 5 were enjoyed as tavazhi properties by Parvathi Amma and her descendants. Item No.6 is the last item of property scheduled as B schedule. Item No.6 was purchased by Parvathi Amma and her children as per Ext.A3 assignment deed dated 9.11.1942. According to the plaintiffs the consideration paid for item No.6 was out of the income from item Nos.3 to 5 which the tavazhi AS 576/1992 Page numbers got by Ext.A2 registered will dated 31.8.1924 and as such item No.6 also belongs to the tavazhi of Parvathi Amma and her descendants. In short, according to the plaintiffs, item Nos.1 and 2 belonged to the larger tavazhi of Lakshmi Amma and item Nos.3 to 6 belonged to the tavazhi of Parvathi Amma. Besides the aforesaid properties, the tavazhi also owned several other items of tenanted properties. The respective tenants purchased the right, title and interest of the tavazhi by separate proceedings before the Land Tribunal. The plaintiffs claim that defendants 1 and 2 had received Rs.20,000/- as purchase money which belongs to the tavazhi. The said amount of Rs.20,000/- is shown as C schedule and they have further claimed their share of the purchase money as well. 5. It is pleaded in the plaint that the plaintiffs now understand that the 1st defendant in collusion with the 2nd defendant had created some false documents to defeat the rights of the plaintiffs, that such documents are not binding on the plaintiffs and neither the 1st defendant nor the 2nd defendant are entitled to any sort of reservation with respect to any portion of items Nos.1 and 2 of the plaint schedule properties. In paragraph 9(b) inserted by way of amendment it is averred that the supplemental 25th defendant had assigned 30 cents of land in item No.1 in favour of supplemental defendants 26 to 29 during the pendency of the suit. Those documents are not binding on the plaintiffs and other members of the tavazhi. In paragraph 9(c) inserted it is further alleged that the gift deed AS 576/1992 Page numbers executed by the 1st defendant in favour of his son who is the supplemental 34th defendant is also a collusive document not binding on other members of the tarwad. In paragraph 10(a) inserted by way of amendment it is also pleaded that the 1st defendant had created some documents with respect to item No.1 in favour of his two daughters who are impleaded as supplemental defendants 24 and 25 in the suit. In paragraph 10(b) of the plaint as inserted, it is further stated that the special right claimed by the 1st defendant on the strength of lease deed in his favour dated 3.8.1960 (Ext.B1) is a fraudulent document not binding on the members of the tarwad, that the lessor is the father-in-law of the 1st defendant and that he had no right to lease the same, that the purchase certificate obtained by the 1st defendant making the 2nd defendant as the respondent is not binding on the tarwad and so also the purchase of items Nos.1 and 2 in the name of the 1st defendant was behind the back of other members of the tarwad and therefore special right claimed by the 1st defendant and others on the basis of the illegal lease and purchase certificate are not valid and binding on the plaintiffs. It is also alleged in paragraph 10(b) that the plaintiffs are entitled to get their share in the property with past and future profits ignoring all the documents put forward by the defendants to which they are not parties. 7. Defendants Nos.1 and 12 filed a joint written statement contending inter alia that the plaint item Nos.1 and 2 exclusively belong to AS 576/1992 Page numbers the 1st defendant, item Nos.1 and 2 are not partible, that plaint item No.1 originally belonged in jenm right to Velluva Puthiyaveettil tarwad, during March 1952 this property was orally leased by the then Karanavan of the tarwad Sri Krishnan Nambiar in favour of the 1st defendant on kuzhikanom right, that subsequently in the year 1960 Krishnan Nambiar executed a kuzhikanom pattadaram in favour of the 1st defendant as per Ext.B1 registered document No.1326/1960, that on the basis of the oral lease and subsequent lease deed (Ext.B1), he obtained purchase certificate in respect of item Nos.1 and 2 as per the proceedings in SM No.30/1983 and thus he was holding the properties on exclusive rights. It is also contended that the 1st defendant is residing in the house in item No.1 with his family members and that he has re-modelled the house therein. It is also alleged in the written statement that he had gifted 46.5 cents of land in favour of his daughter Sathyabhama as per document No.3062/1986 and in 1987 he had assigned 30 cents in favour of his daughter Rathi as per document No.717/1987. In the written statement the defendants have also stated that these defendants have no objection in partitioning item Nos.3 to 6 and they are also entitled to get their share with mesne profits in item Nos.3 to 6. It is also averred that the tenancy of the 1st defendant over item Nos.1 and 2 was admitted by the tarwad of the plaintiffs and the defendants and therefore it is submitted that item Nos.1 and 2 may be excluded from partition and there can be a decree for partition in respect of AS 576/1992 Page numbers the other items. In the additional written statement filed by the same defendants it is further averred that the right of the plaintiffs, if any, over item Nos.1 and 2 is barred by adverse possession and limitation in view of the 1st defendant's exclusive possession and enjoyment of the same. It is also pleaded in the additional written statement that item No.3 has lost its character as tavazhi property by virtue of document No.320 of 1929, that as per the said document item No.3 had been given on leasehold right to deceased Parvathi Amma and her children alone and the same cannot devolve upon her grandchildren and therefore the said item had to be divided into 4 equal shares which will devolve upon Parvathi Amma's four children by name deceased Madhavan Nambiar, Ammukutty Amma, Kunhikannan Nambiar and Govindankutty Nambiar. 8. Defendant Nos.4 and 5 in their written statement admitted that plaint B schedule properties belong to the plaintiffs and the defendants except item No.6. According to defendant Nos.4and 5, item No.6 was purchased by Madhavan Nambiar which was later assigned to Parvathi Amma and her children as per the assignment deed dated 9.11.1942 (Ext.A3), that the said property was not purchased out of the income from item Nos.3 to 5 and it does not belong to the tavazhi. According to the said defendants, item Nos.1 and 2 belonged to the larger tavazhi of Lakshmi Amma, item No.6 is not liable to be partitioned among the plaintiffs and the defendants, but is to be partitioned among defendant AS 576/1992 Page numbers Nos.1 and 4 to 8 and the legal heirs of Ammukutty Amma and that item No.3 exclusively belongs to the four children of Parvathi Amma etc. 9. Defendant No.24 in the written statement supported defendants Nos.1 and 12 and pleaded that he adopts the written statement filed by defendants Nos.1 and 12. Defendant Nos.2, 3, 6 to 8, 25, 26 and 27 also filed written statements supporting either the plaintiffs or defendant Nos.1 and 12. 10. On the basis of the pleadings the court below framed seven issues, the evidence of Pw.1 and Dws.1 to 3 are recorded and marked Exts.A1 to A8 and B1 to B20. 11. The court below, after examining the evidence on record, entered findings on all the issues raised. The court below held that Exts.B1 registered kuzhikanom pattadaram executed by the Karanavan of Velluva Puthiyaveettil tarwad Sri Krishnan Nambiar in favour of the 1st defendant, a member of the tarwad, and Ext.B2 kuzhikanom marupattom deed are not valid and binding on the plaintiffs and other members of the tavazhi and the suit properties. The court also held that Ext.B3 order of the Land Tribunal in SM No.30/1983 and Ext.B5 purchase certificate issued by the Land Tribunal to the 1st defendant are also not valid and binding and will not disqualify the plaintiffs and other members of the tavazhi from claiming partition of the suit properties. The court below did not accept the contention of the plaintiffs that item No.6 was purchased out AS 576/1992 Page numbers of the income from item Nos.3 to 5 and the fund left by deceased Kannan Nambiar and, therefore, held that item No.6 is not liable to be partitioned among the members of the tavazhi of Parvathi Amma. It held that item No.6 in the plaint B schedule property is only liable to be partitioned among defendants Nos.1 and 4 to 8 and the legal representatives of Parvathi Amma. The claim of defendants 1, 12 and 25 that the rights of the plaintiffs, if any, over item Nos.1 and 2 is lost by adverse possession and limitation was negatived. The court further held that the plaintiffs have title and joint possession over items 1 to 5 in the plaint B schedule and plaintiffs Nos.1, 7, 8, 12, 15 and 18 have title and possession over item No.6 and that the properties are available for partition. On the basis of the findings as stated above, the court below passed a preliminary decree for partition in the following terms: That item Nos.1 and 2 in the plaint schedule properties be partitioned into 25 equal shares by metes and bounds of which the plaintiffs together entitled to 18/25 shares; Defendants Nos.1 to 3 will be entitled to one such share each, defendants Nos.4 and 5 together entitled to get one such share . defendants 6 to 8 together entitled to get one such share, defendants 9 to 15 together entitled to one such share and defendants 16 to 23 together entitled to one such share. The remaining defendants are not entitled to get any shares in items 1 and 2. AS 576/1992 Page numbers That item Nos.3 to 5 in the plaint schedule property be partitioned into 23 equal shares by metes and bounds of which the plaintiffs together entitled to get 18/23 shares, defendants 4 and 5 together entitled to one such share and defendants 6 to 8 together entitled to get one such share. That item No.6 be partitioned into four equal shares by metes and bounds of which the 1st defendant is entitled to get one such share, defendants 4 and 5 together entitled to one such share, defendants 6 to 8 together will be entitled to get one such share and plaintiffs 1, 7, 8, 12, 15 and 18 and defendants 2 and 3 together entitled to get one such share. The plaintiffs and other defendants are entitled to get share of mesne profits from the 1st defendant in respect of item No.1 and the quantum of the same will be decided in final decree proceedings. The quantum of mesne profits and the liability of paying the same in respect of item Nos.3 to 6 is left open and the same will be decided in the final decree proceedings. 12. The suit is one for partition of the plaint B schedule items 1 to 6. It is the common case of the parties that item Nos.4 and 5 in the plaint B schedule belongs to the tavazhi of the plaintiffs and the defendants and those items are available for partition. The dispute is only with respect to items 1, 2, 3 and 6 in the plaint B schedule. Defendants Nos.12 and 24 who are the appellants in the above appeal attacked the findings of the court below that items 1 and 2 are partible, the findings on the question of AS 576/1992 Page numbers adverse possession and ouster and also attacked the findings of the court below in respect of item 3 and claimed that the appellants are also entitled to a share in item No.3. 13. It is an admitted fact that items 1 and 2 were originally belonged to the tarwad of the plaintiffs and defendants 1 to 23 and that the plaintiffs and defendants 1 to 23 are the descendants of the common ancestress Velluva Puthiyaveettil Lakshmi Amma and items 1 and 2 in the plaint B schedule were allotted to the share of the aforesaid Lakshmi Amma and her descendants under Ext.A1 partition karar. It is the case of the plaintiffs that items 3 to 5 originally belonged to Palathikandoth Kannan Nambiar and he bequeathed the properties under Ext.A2 will in favour of Parvathi Amma and her children and that properties belong to the tavazhi of Parvathi Amma. The plaintiffs also pleaded that item No.6 was purchased under Ext.A3 assignment deed with the income from items 3 to 5 and therefore item No.6 property also partakes the character of tavazhi property. It is also the case of the plaintiffs that the 1st defendant is the Karanavan of the tavazhi, that he is residing in the house situated in item No.1 with his family members and that he is in possession and enjoyment of the properties for and on behalf of other members of the tarwad. The plaintiffs contended that items 1 and 2 are liable to be partitioned among the members of the larger tavazhi and items 3 to 6 among the members of the sub-tavazhi of Parvathi Amma. Defendants Nos.1, 12 and 24 opposed AS 576/1992 Page numbers the claim of the plaintiffs and other supporting defendants in items 1and 2. The 1st defendant claimed exclusive right and possession of items 1 and 2. According to him items 1 and 2 were orally leased by Krishnan Nambiar, the then Karanavan, in the year 1952 in his favour and subsequently Krishnan Nambiar executed Ext.B1 kuzhikanom pattadaram in his favour and on the same day he executed Ext.B2 marupat and ever since he is in exclusive possession and enjoyment of the properties on absolute right. According to him, on the strength of the oral lease and Ext.B1 kuzhikanom pattadaram he obtained Ext.B5 purchase certificate in respect of items 1 and 2.