Kerala High Court

Doraswamy vs Sivasankaran on 3 June, 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

MONDAY,THE 17TH DAY OF FEBRUARY 2014/28TH MAGHA, 1935

AS.No. 252 of 2003 ( )
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AGAINST THE JUDGEMENT AND DECREE IN OS 460/1990 of SUB COURT, PALAKKAD
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APPELLANT IN A.S. - DEFENDANT NO.2 IN SUIT:
--------------------------------------------------------------------

DORASWAMY, S/O. LAKSHMI AMMA
RESIDING AT KOOLIMUTTOM, POLPULLY
AMSOM AND DESOM, PALAKKAD TALUK

BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.K.JAYAKUMAR
SRI.P.B.KRISHNAN

RESPONDENTS:
------------------------

1. SIVASANKARAN, S/O. THIRUNAVAKKURUSU
UDAYAR, RESIDING AT KOOLIMUTTOM
PULPULLY AMSOM AND DESOM
PALAKKAD TALUK

2. LAKSHMI AMMA, W/O. THIRUNAVAKKURUSU
UDAYAR, RESIDING -DO- -DO- (DIED. LRs RECORDED)

3. BALASUBRAMANIAN, S/O. LAKSHMI AMMAL IN -DO- -DO-

4. BHAGYALAKSHMI, W/O. SHINKALI
RESIDING AT VELLAMKULAM, SANKILI
ILLAM, POLPULLY AMSOM AND DESOM
PALAKKAD TALUK

5. SANTHI, W/O. RAJENDRAN AND D/O. LATE
PARVATHY, RESIDING AT VELLACHAMI
ILLOM, MANAPPARA ROAD, GUZILIAMPARA
DINDIGAL, ANNA DISTRICT

6. SANKILI, S/O. DORASWAMY, RESIDING AT
CHANTHAPETTA, PALLADAM ROAD, THIRUPPUR

THE 2ND RESPONDENT DIED AND IT IS RECORDED THAT APPELLANT, RESPONDENT
NOS. 1, 3 AND 4 ARE HER LEGAL REPRESENTATIVES VIDE ORDER DATED 03.06.2008
ON MEMO DATED 28.11.07-CF 5476/07 (VIDE ORDER SHEET)

AS NO. 252/2003 -2-

R4 BY ADV. SRI.D.KRISHNA PRASAD
R4 BY ADV. SRI.M.HARISHARMA
R1 BY ADV. SRI.T.M.SUNIL
R1 BY ADV. SMT.S.CHITHRA
R6 BY ADV. SRI.R.SURAJ KUMAR
R5 BY ADV. SRI.V.CHITAMBARESH (SR.)
R5 BY ADV. SRI.T.C.SURESH MENON
R5 BY ADV. SRI.JIBU P THOMAS
R5 BY ADV. SRI.APPU P.S.
R3 BY ADV. SRI.SAJAN VARGHEESE K.
R3 BY ADV. SRI.LIJU. M.P

THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30-10-2013, THE COURT ON
17-02-2014 DELIVERED THE FOLLOWING:

SD

S.S.SATHEESACHANDRAN,J.

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A.S. No. 252 of 2003

===========================

Dated, this the 17th day of February 2014

JUDGMENT

Preliminary judgment and decree in a suit

for partition passed by the learned Sub

Judge,Palakkad, is challenged in this appeal.

Second defendant is the appellant.

2. Sixteen items of immovable properties

were included in the plaint, initially, for

partition as belonging to the joint family of

plaintiff and defendants 1 to 3 seeking

division and allotment of 1/4th share to

plaintiff. Thirunavakarasu Udayar (for short

Udayar), father of plaintiff and defendants 2

and 3 and husband of first defendant, Kartha of

the joint family, had passed away. After his

death, plaintiff and defendants 2 and 3, his

A.S.252/2003 2

sons, and first defendant, his widow, are entitled

to 1/4th share in the plaint properties, was the

case of plaintiff. Later, plaint was amended to

state that some items included in the plaint

schedule were covered by a previous partition

(Ext.A1) entered by Udayar and two of his sons

(defendants 2 and 3), and, one more item of

property was added as available for partition to

sharers. Plaintiff was not a party to that deed.

Items 3, 6 and 9 to 13 and 17 in the plaint are

properties allotted in Ext.A1 partition deed as

'A' schedule to the father, Udayar, and after his

death, his widow and sons, all of them, have got

equal share in those items, was the case in the

amended plaint. Defendants 1 to 3, all of them,

resisted the claim for partition over the items

covered by 'A' schedule in Ext.A1 deed allotted to

Udayar contending that he had executed Ext.B3 will

over those items in favour of three persons, widow

of Sankaly Udayar(predeceased son of Udayar),

second defendant's son and third defendant as A to

A.S.252/2003 3

C schedule respectively reserving life interest of

his widow, first defendant in all the above

properties.

3. Widow of Sankali Udayar and also daughter of

a predeceased daughter of Thirunavakarasu Udayar

got impleaded in the suit as additional 4th and 5th

defendants respectively. Son of second defendant

also got impleaded as additional sixth defendant.

4. Additional sixth defendant adopted the

contentions of his father. Additional 5th defendant

claimed share in the properties as the daughter

of Parvathy, predeceased daughter of Udayar and

first defendant. Additional fourth defendant

impeaching the validity of Ext.A1 partition deed

contended that she was entitled to 1/5th share in

the properties covered by that deed also. She was

not made a party to Ext.A1 and also not provided

with share, and therefore the partition effected

was not binding on her, was her case. She

contended that Ext.A1 was entered only for

escaping from payment of levy and she did not

A.S.252/2003 4

object to its execution since share of profits had

been given to her. She also filed a petition with

a schedule including all properties divided under

Ext.A1 for division in the suit with other items

and allotment of her share in all items.

5. Plaintiff filing a rejoinder disputed the

genuineness of Ext.B3 will contending that his

father had no capacity to execute the will and it

was created fradulently by defendants 1 to 3.

Challenge against Ext.A1 partition deed was also

resisted by him contending that except 'A' schedule

in the deed allotted to his father the other items

allotted to other sharers are not available for

partition.

6. The court below framed the following issues

for adjudication.

1. Whether all the properties

included in the plaint schedule are

partible?

2. Whether 2nd and 3rd defendants are

entitled to any right over plaint A

A.S.252/2003 5

and B schedule properties by virtue

of the alleged will stated to have

been executed by deceased

Thirunavukarasu Udayar?

3. If the suit bad for non-joinder

of necessary parties?

4. Whether plaintiff is entitled to

get any share from plaint schedule

property, if so, what is the

quantum?

5. Reliefs and costs?

The evidence consisted of PW1 and Exts.A1 to A5

for plaintiff, and DW1 to DW3 and Exts.B1 to B3

for defendants.

7. With the impleadment of additional

defendants 4 to 6 in the suit issue raised over

nonjoinder of necessary parties became reduntant.

Other issues 1, 2 and 4, all of them, were

considered together, and, learned Sub Judge

entered findings thereof that Ext.A1 partition

deed executed by Udayar with his sons, plaintiff

A.S.252/2003 6

and defendants 2 and 3, was invalid since

additional fourth defendant, widow of Sankaly

Udayar, (predeceased son of Udayar,) was not a

party to such deed and also not provided with her

share in the joint family properties divided.

Properties described in the schedule filed by

additional fourth defendant, all items covered by

Ext.A1 partition deed, according to learned Sub

Judge, are to be divided and allotted to the

parties-members of the joint family. Ext.B3 will

executed by Udayar by which he made bequests over

the properties covered by 'A' schedule in Ext.A1

partition deed was held to be valid, but, limited

to the extent of his share in the joint family

properties. On such reasoning learned Sub Judge

held that the 1/5th share of Udayar in the

properties i.e 60/300 shares would devolve upon

his legatees under Ext.B3 will (defendants 2, 3

and 6), each of them getting 20/60 out of 300 in

the joint family properties. Taking into account

the death of first defendant pending suit it was

A.S.252/2003 7

held that her shares would devolve on her legal

heirs, namely, plaintiff, 2nd, 3rd and 5th

defendants. On the above conclusions formed

learned Sub Judge held that plaintiff will get

67.5/300 shares, second defendant 87.5/300

shares, and third defendant 87.5/300 shares and

fourth defendant 30/300 shares, 5th defendant

7.5/300 shares and 6th defendant 20/300 shares in

the properties described under the plaint and also

items covered by the schedule produced by

additional fourth defendant. A preliminary decree

was passed allotting shares as indicated to the

respective sharers stating that share of

defendants 3, 5 and 6 are to be allotted on

payment of requisite court fee in the final decree

stage. That preliminary decree is challenged in

this appeal by the second defendant.

8. The findings entered by learned Sub Judge

that Ext.A1 partition deed is not valid is

assailed by appellant (second defendant)

contending that though plaintiff and additional

A.S.252/2003 8

fourth defendant are not parties to the partition

deed, both of them accepting that deed have

continued in enjoyment of the benefits

thereunder and, thus, they are incompetent to

impeach its validity. Without framing a separate

issue validity of Ext.A1 was considered and

decided by the court, and, invalidating that deed

partition covered by that deed was reopened,

according to appellant. Reopening of the partition

covered by Ext.A1 is assailed as unsustainable.

Share division made among the parties to the suit

is also impeached contending that where Ext.B3

will was found to be genuine full effect of the

bequests made under that testament should have

been given effect to, but that was not done while

passing the preliminary decree.

9. I heard the counsel on both sides.

10. At the time of hearing the thrust of

challenge put forth by senior counsel for

appellant was over the finding made by learned Sub

Judge on the genuineness of Ext.B3 will and giving

A.S.252/2003 9

effect to the bequests made under that will in the

share allotment of the properties, that too

forming a conclusion that Ext.A1 partition deed

was not valid and partition made thereunder

cannot be recognised since additional fourth

defendant was not a party and share not provided

to her under that deed. When Ext.A1 partition

deed has been found invalid Ext.B3 will executed

by Udayar with respect to A schedule property

allotted to him under that deed could not have

been acted upon is the submission of learned

counsel relying on
Mohd.Amin and others v. Vakil

Ahmed and others
(1952 SCR 1133).
Reliance is also

placed on an unreported decision rendered by a

learned single Judge of this court in S.A.707/1993

(K.G.Jayachandra Shenoy v. K.G. Hari and others)

by judgment dated 4.4.2002, whereunder the

decision of the the apex court referred to was

followed, to buttress the challenge against the

decree on the argument canvassed. No sustainable

challenge is available to the appellant to impeach

A.S.252/2003 10

the decree and it does not warrant any

interference is the submission of the respective

counsel appearing for respondents.

11.Perusing the records it is noticed that

learned Sub Judge has passed the preliminary

decree for partition over items of properties not

covered by plaint, nor asked for plaintiff, but

included in a schedule filed by one of the

defendants (additional fourth defendant).

Plaintiff has sought division only of the items

covered by plaint schedule viz seventeen items of

properties. Partition over item Nos 1, 2,4, 5, 7,

8, 14, 15 and 16 was sought as joint family

properties and, the others, item nos 3,6 and 9 to

13 and 17 as properties allotted to Udayar as 'A'

schedule in Ext.A1 partition deed, which, on his

death, according to plaintiff,devolved upon his

legal heirs, his widow and three sons. Additional

fourth defendant widow of Sankaly Udayar, eldest

son of Udayar, who predeceased him, contended

that Ext.A1 partition deed was invalid and all

A.S.252/2003 11

items covered by that deed should also be

partitioned among the members of the joint family.

She filed a schedule including all items in

Ext.A1 for partitioning them also as joint family

properties. Learned Sub Judge forming a

conclusion that Ext.A1 partition deed was invalid

since additional fourth defendant was not made a

party and allotted share in the properties,has

passed a decree for division of those items also,

but, at the same time, recognising the bequests

made by Udayar under Ext.B3 will to the extent of

his share in the joint family properties. Udayar

who obtained 'A' schedule properties in Ext.A1 had

executed Ext.B3 will bequeathing those properties

to some among his legal heirs reserving life

interest of his widow over them. Invalidating

Ext.A1, but, upholding the genuineness of Ext.B3

will, and, repelling the challenge of plaintiff

that it was fabricated, learned Sub Judge held

that properties divided under Ext.A1 are to be

partitioned, and, share of Udayar in the joint

A.S.252/2003 12

family properties would devolve upon his legatees

in Ext.B3 will. A preliminary decree was

thereupon passed declaring the share allotment of

parties directing division of the properties

included in the plaint and schedule of additional

fourth defendant in terms thereof in final decree

proceedings.

12.The whole approach made by learned Sub

Judge to the issues involved for adjudication and,

particularly, over the contention raised by

additional fourth defendant demanding inclusion of

all items covered by Ext.A1 in the suit for

partition instituted by another was erroneous and

patently unsustainable. In a suit for partition if

a defendant filing a schedule ask for inclusion of

some additional items also for partition with the

properties described and included in the plaint

contending those items are also available for

partition among the sharers, parties to the suit,

to what extent it can be entertained has to be

considered. If such a case is presented by one of

A.S.252/2003 13

the defendants in the suit, can the court pass a

decree for division of those items also without

amending the plaint schedule including such items

and without the plaintiff agreeing to and seeking

amendment of his plaint to include such items. At

best defendant in a suit for partition who has a

grievance that all items are not included, and as

such the suit is bad for partial partition, can

raise such a contention seeking inclusion of

those items as well for division and allotment to

the sharers. Plaintiff is the master of the suit

and he is to decide what are the items to be

included for partition. In his suit defendants

can raise a challenge that it is bad for partial

partition would not enable them to seek inclusion

of other items for division also unless plaintiff

concedes to do so. In a case where plea of

partial partition is set up by defendant seeking

inclusion of items not included, if possible,

court can consider it as a preliminary issue and

then pass appropriate orders. Even if any such

A.S.252/2003 14

order is passed in the suit for including other

items not covered by plaint schedule, but, over

which parties are having joint rights, only

plaintiff can amend the plaint to include them. If

the plaintiff does not desire to include those

items for division no defendant without seeking

transposition as plaintiff and amendment of plaint

including such items, and, if only that is

permitted, can have division of such items of

properties.. Defendants in a suit for partition

are eo-nominee plaintiffs, but, the plaintiff who

instituted the suit continues to be its

master.Other than taking a contention that suit is

bad for partial partition, if all items available

for partition are not included in the suit,

defendants are incompetent to set up any

counterclaim for inclusion of some more properties

not included in the plaint for division in the

suit instituted by another sharer.

13. Learned Sub Judge in the present case

accepting the contention raised by additional

A.S.252/2003 15

fourth defendant that all properties covered by

Ext.A1 are also available for partition and acting

upon the schedule of such properties filed by that

defendant has passed a preliminary decree

declaring the shares of parties over such items

directing division and allotment of such

properties to the parties. A schedule with a

petition describing some more properties not

included in plaint was filed by the additional

fourth defendant after filing her written

statement. That does not form part of the

pleadings of parties. Though learned Sub Judge

has granted a preliminary decree over those

properties decree drafted by the court below is

confined to plaint schedule properties alone.

When the plaint has not been amended including the

items covered by the schedule filed by additional

fourth defendant and no counterclaim by defendants

in a suit for partition for inclusion of other

items which are stated to have been omitted for

division is possible, decree can be only in

A.S.252/2003 16

respect of items described in the plaint schedule.

Where subject matter of a suit is an immovable

property mandatory prescription is that the

plaint should contain description of that

property with all necessary particulars for its

identification. That is not an empty formality.

Description of the property given in the plaint

has to be entered in the suit register maintained

by court which has to be kept as permanent

record. A decree passed in a suit involving

immovable property, where it is the subject

matter, invariably should contain description of

that property as described in the plaint

schedule. Without taking note of the above

safeguards insulated under
the Code of Civil

Procedure
and rules prescribed under the Civil

Rules of Practice, and also the incompetency of

defendant in a suit for partition to get a decree

for division of properties not included in the

plaint without including them by amendment of

plaint, other than contending that the suit is

A.S.252/2003
bad for partial partition, if that is so, the

court below has passed a preliminary decree

directing division of items included in the

schedule filed by additional fourth defendant, all

items covered by Ext.A1, holding that such deed

is void. Preliminary decree so passed is not only

irregular but patently erroneous.

14. Where the decree passed is shown to be

improper and not sustainable, normally, setting it

aside the case has to be remitted for fresh

disposal. Still, I have looked into the question

whether in the given facts of the case and

materials produced a remission is called for. A

remission is to be ordered only if it is shown

that the suit of plaintiff is bad for partial

partition in as much as the items covered by Ext.A1

partition deed have not been included for

partition. Such a case of partial partition can be

sustained only where it is shown that the

contention raised by additional fourth defendant

that Ext.A1 is void and not binding on her is

A.S.252/2003
unimpeachable. I may also point out that plaintiff

in his plaint has also raised some allegations that

it is not binding on him since he was not made a

party when division was effected over some of the

properties of joint family by his father Udayar

and two sons, second and third defendants. That

case canvassed by him has no merit is amply

demonstrated by his acceptance of the properties

given to him under Ext.A1 partition deed

including 'A' schedule properties in that deed,

which was allotted to his father, that alone, for

division among the sharers with other undivided

properties of the joint family in the suit. So

the challenge raised against the validity of Ext.A1

by additional fourth defendant alone requires to be

examined. Additional fourth defendant who was not

made a party to the suit got herself impleaded

moving an application I.A.252/2003. In the

affidavit sworn to in support of her application

for impleadment as a party to the suit her case was

that she being the widow of Sankaly Udayar is

A.S.252/2003
entitled to a share in 'A' schedule property

obtained by his father Udayar under Ext.A1.

Written statement filed by her would reveal she had

knowledge of the partition deed Ext.A1 on its

execution by father and two of his sons after the

death of her husband and she did not object to the

division since they had agreed that they would not

do any act harmful to her interest in the

properties. She was also provided with share of

the income collected from the properties was her

further case. Ext.A1 was executed to avoid payment

of levy and the property continued to be joint even

after division under the deed was her case. After

impeaching Ext.A1 in the lines indicated as above

as not binding on her, when trial proceeded, it is

seen, resisting the challenges against Ext.B3 will

executed by Udayar the bequest made in her favour

under that testament was sought to be sustained.

Udayar had executed Ext.B3 will in respect of

properties obtained by him as 'A' schedule under

Ext.A1 deed. If Ext.A1 deed goes she could not

A.S.252/2003
claim the bequest under Ext.B3 will executed by

Udayar over 'A' schedule obtained by him under that

deed. Additional fourth defendant has no challenge

against the decree passed by the Sub Judge holding

that Ext.B3 will is genuine. Ext.B3 will of Udayar

would also show that additional fourth defendant

continued to be a member of the joint family and

was taken care of by Udayar and his sons providing

her shelter and meeting all her needs. She had

knowledge of Ext.A1 partition deed on its

execution. She had not objected to the division

of properties under that deed though not made a

party and was entitled to share as widow of

Sankaly Udayar. That being the case,I find

challenge raised by her questioning the validity of

Ext.A1 partition deed and seeking division of

properties covered by that deed also, contending

that such properties continue to remain as joint

and, thus, liable to be divided among the members

of joint family, is unworthy of merit.

A.S.252/2003 21

15. Where all parties concede that there was a

previous partition under Ext.A1 deed, validity of

which alone is disputed by additional fourth

defendant, normal presumption if that deed is

found valid is that partition is complete in all

respects as regards the person and property. That

presumption is one of fact and not of law and its

strength must vary with the circumstances presented

in the case. Severence of joint status may be

partial or complete. The members of a joint family

mauy effect division and severence only in respect

of a portion of the estate retaining the status as

joint family and holding the rest of the properties

as that of a joint family. Since all parties

concede that even after Ext.A1 deed joint family

continued and properties not covered by Ext.A1

continued as joint estate whether there was any

disruption of the family after Ext.A1 does not

arise for consideration in the case. Partition of

a portion of a joint family property by itself does

not result in the disruption of a joint family and

A.S.252/2003
whether there was any disruption has to be examined

with reference to the intention of parties. When

that is taken into account the properties left and

undivided even after execution of Ext.A1 as there

is no intention by parties to disrupt the joint

family status continued as the joint estate of the

family.

16. When it is shown that Ext.A1 partition

deed is unassailable, is there any merit in the

challenge canvassed by plaintiff over the

genuineness of Ext.B3 will executed by Udayar has

to be examined. He alone has questioned the

genuineness of that will. Ext.B3 will has been

proved by DW3 an attestor to that testament.

Materials tendered in the case clearly establish

that Udayar had testamentary capacity when Ext.B3

will was executed and it was made voluntarily and

on his free will. No specific challenge has been

raised impeaching the genuineness of Ext.B3 will in

the appeal, but, finding made by learned Sub

Judge over its genuineness after holding that

A.S.252/2003
Ext.A1 partition deed is void that alone, is

impeached relying on the decisions referred to

above. In view of the conclusion formed that Ext.A1

partition deed is valid and binding on all parties

including additional fourth respondent challenge

raised canvassing support from the above referred

decisions to impeach the finding of learned Sub

Judge that Ext.B3 will is valid after holding that

Ext.A1 as invalid, has got only academic value.

Further more, it is also noticed, the decisions

have no application to the facts involved in the

case.
The Apex Court in
Mohd. Amin and others v.

Vakil Ahmed and others
(1952 SCR 1133)considered

validity of a settlement deed which was challenged

on a ground referable to the competency and

authority of person who represented as guardian

of a minor whose interest in the property was also

transacted under the deed. On the finding formed

that the person who represented the minor, in the

deed as his guardian was incompetent and had no

authority to do so, it was held that the settlement

A.S.252/2003
was void not only against the minor but against all

the parties including those who are so juris.
The

above decision was followed in the unreported

decision in Jayachandra Shenoy's case in which also

challenge was over the validity of a settlement

deed where one among the parties having interest

over the property was not a party to the deed. The

two decisions referred to have no application in

examining the testamentary succession made by a

Hindu in disposing his property by will.

Explanation of Section 30 of the Act recognise

right to dispose by will or other testamentary

disposition the interest of a male Hindu in a

Mitakshara coparcenary property. So much so, even

assuming that Ext.A1 partition deed, for any

reason, is found to be void, that by itself would

not invalidate the disposition made by Udayar

under Ext.B3 will. However, as already pointed out

earlier, where Ext.A1 deed has been found to be

valid challenge raised to impeach Ext.B3 on the

finding entered by Sub Judge based on the above

A.S.252/2003
decisions has only to be discarded as of no

consequence.

17.I have already found that the finding of

learned Sub Judge that Ext.A1 partition deed is

void is wrong. Under Ext.A1 partition deed Udayar

had obtained 'A' schedule properties and Ext.B3

will was executed by him over such properties

making bequests in favour of third defendant,

fourth defendant and additional sixth defendant,

(son of second defendant) reserving the life

interest of his wife (first defendant). When

Ext.B3 will is found to be genuine the legatees

under the will in terms of the bequests made in

their favour have right over 'A' schedule property

in Ext.A1. So item no.3, 6, 9 to 13 and 17

included in the suit which are covered by 'A'

schedule in Ext.A1 and Ext.B3 are not available for

partition, and are to be excluded.

18. What is available for partition among the

sharers, members of the joint family, is only item

nos.1,2,4,5,7,8,14,15 and 16 scheduled in the

A.S.252/2003
plaint. Those properties alone remained as joint

estate after division of the other items of joint

family under Ext.A1 partition deed. In effecting

division of such items among the parties shares

available to them in the properties has to be

fixed. Though additional fourth defendant was not

made a party in Ext.A1 partition deed entered by

Udayar and his two sons, her entitlement as a

sharer being the widow of Sankaly Udayar,

predeceased son of Udayar, over the items which

continue to remain as joint cannot be disputed.

Sankaly Udayar who predeceased his father died in

1967.
Section 6
of Hindu Succession Act 1956, for

short the Act, as it stood before the amendment

under Act 39 of 2005, and applicable to the

present case, spells out that on the death of a

Hindu having an interest in a Mitakshara

coparcenary property, after the commencement of

the Act, if he had surviving a female relative

specified in class I of the Schedule or a male

relative specified in that class who claims

A.S.252/2003
through such female relative, his interest in the

Mitakshara coparcenary property shall devolve by

testamentary or intestate succession and not by

survivorship. So, when Sankaly Udayar predeceased

his father leaving behind his widow, additional

fourth defendant, and, his mother, first

defendant, a deemed partition over the properties

of the family has to be recognised, and given

effect to,for devolution of his share in the

properties which were available immediately before

his death to his heirs aforementioned. At the time

of his death joint family consisted of Udayar and

his four sons as coparcenaries. On the death of

Sankaly Udayar a deemed partition having taken

place over the joint family properties, his widow

and mother, his successors falling under Class I

of the Schedule, both of them together, would take

1/5th share(60/300) in the properties. First and

fourth defendant as legal heirs of Sankaly Udayar

would get 30/300 shares each in the properties.

On the death of Udayar in 1976 his rights in the

A.S.252/2003
properties would devolve upon his widow, three

sons (plaintiff, first defendant and second

defendant)and widow of predeceased son

( additional fourth defendant) and daughter of

predeceased daughter(additional fifth defendant),

all of whom are his heirs falling under Class I of

the Schedule. Additional sixth defendant, son of

second defendant, not being a heir under Class I

will not be entitled to succeed to the interest

left behind by Udayar. So 1/5th share available to

Udayar is to be divided equally among plaintiff

and defendants 1 to 5 (60/300/6) i.e 10/300 for

each of them. Pending suit first defendant, widow

of Udayar, has also passed away. Her share in the

property which she had obtained as one among the

two heirs of Sankali Udayar, her predeceased son

(30/500), and Udayar, her husband, as one among

his six heirs (10/500), both together forming

40/300, would devolve upon her heirs determinable

under
Section 15(a)
of the Act. The heirs who

are entitled to succeed her are her sons,

A.S.252/2003
(plaintiff and defendants 2 and 3) and daughter of

predeceased daughter( additional fifth defendant),

all of them getting equal share (40/300) i.e

10/300 each. Share allotment of parties to the

suit in the properties which are found partible

as belonging to the joint family namely, item nos

1,2,4,5,7,8,14,15 and 16 would be thus:- Share of

plaintiff, second and third defendant, each of

them, 80/300, fourth defendant, 40/300 and fifth

defendant 20/300.

The decree passed by the court below fixing

the shares of the parties and directing division

of all items in the plaint schedule and also

schedule filed by the fourth defendant is set

aside. A preliminary decree is passed in the suit

declaring that plaintiff, second and third

defendants, each of them, are entitled to 80/300,

fourth defendant 40/300 and fifth defendant 20/300

in plaint item nos 1,2,4,5,7,8,14,15 and 16.

Additional sixth defendant is not entitled to any

share. The other items in the plaint, covered by

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'A' schedule in Ext.A1 partition deed, item

nos.3,6,9,10,11,12,13 and 17 are not available for

partition and legatees under Ext.B3 will alone, in

accordance with the bequests made,have right over

such items. The legatees have to enforce their

rights over those items, if need be, in

appropriate proceedings, and no decree is passed

or granted over those items. Direction of court

below to defendants who have not paid court fee

to remit fees in final decree proceedings to have

allotment of their share, which is not proper, is

modified fixing a time limit of three months from

today to remit the fees to claim their share in

the suit.

Plaintiffs and defendants, who have paid

court fee for getting division and allotment of

their shares, and other defendants who are given

time for payment of court fee, on doing so, can

apply for passing of final decree. Equities, if

any, are available to the parties can be canvassed

by them, and decided, when actual division is

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effected in final decree proceedings. If any

equity is claimed by one or other party court

below shall consider it and pass appropriate

orders thereof.

Appeal is disposed of as indicated above

directing both sides to suffer their costs.

S.S.SATHEESACHANDRAN
JUDGE

tpl/-

A.S.252/2003 32

S.S.SATHEESACHANDRAN,J.

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A.S.No.252 of 2003

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JUDGMENT

17TH FEBRUARY,2014

A.S.252/2003 33