Judgement

JAGANNATHA SHETTY, J.:- This appeal by Special Leave is against the judgment and decree dated July 16, 1971 passed by the. High Court of Kerala in Appeal Suits 183, 195 and 249 of 1966.

2. The Appellant is the plaintiff and respondents are defendants 1 to 34 in Original Suit No. 35 of 1961 of the Sub Court, Alleppey, Kerala State. It is a suit for partition in which the plaintiff claims 1/33 share in the plaint properties. The plaintiff and defendants 1 to 33 are members of an undivided Malayala Brahmin illom. They are the descendants of one Vishnu Embran. (referred to hereinafter as Vishnu (Senior)). The relationship of the parties with Vishnu (Senior) is set out in geneological. table annexed to the common judgment of the High Court. Suffice it to state here that Vishnu (Senior) had three sons : Kesavan, Krishnan and Narayanan. The plaintiff is the grandson of Kesavan. One of the sons of Kesavan was given the name of his grand father. To avoid confusion, we may call him as Vishnu (Junior).

3. Vishnu (Senior) did not remain with the members of his illom. When he was 17, he took some properties of his illom for maintenance and moved out of his native village. He settled at a place called Chambakulam. There he was earning by performing Iswara Sevas like Santhi ceremonies and Parikarmam works in temples. In the course of time he acquired some properties.

4. Vishnu (Senior) who went out to eke his livelihood at 17, reached 71. He then thought of peacefully retiring. He wanted that his children after his death should not quarrel over the properties. With their full consent, he executed Ex.P. 1, a partition deed dated October 3, 1074 M.E. corresponding to May 15, 1889 A.D. Thereunder the properties acquired by him were divided into four shares described in the deed as Schedules A, B, C & D. He gave schedule A to Kesavan, Schedule B to Krishnan, Schedule C to Narayanan and Schedule D to his grandson Vishnu (Junior). These schedules should not be confused with the plaint Schedule properties. Plaint A Schedule consists of property given to Vishnu (Senior) from his original illom for the purpose of his maintenance. Plaint B Schedule consists of properties under A and D Schedules in Ex.P. 1. The other schedules in the plaint are not much relevant for this case. So they are not referred to.

5. The case of the plaintiff, to put it shortly is that plaint B schedule properties have been acquired out of the income from plaint A Schedule and hence they are also the illom properties in which he is entitled to a share on per capita basis.

6. Defendants 1 to 10, 24 to 26 and 29 to 33, supported the plaintiff. Defendants 11. 13, 16 to 21, 22 and 27 contested the suit. The case of the contesting defendant is that Vishnu (Senior) had no surplus income from plaint A schedule properties and the acquisitions made by him which were the subject matter of division under Ex.P. 1 were his separate properties.

7. The trial court accepted the case of the plaintiff. It held that parties are governed by Marumakkathayam Law. Plaint A Schedule properties are illom properties. Vishnu (Senior) could get surplus income therefrom. That available surplus was utilised for purchasing properties dealt with under Ex. P 1. The said properties are, therefore, the illom properties which are available for partition. The Court also said that in any event, the parties by their subsequent conduct appear to have treated the properties as illom properties. Accordingly, it passed a preliminary decree for partition on per capita basis.

8. Against the said decree there were appeals and cross objections before the High Court.

9. The main question urged before the High Court related to the nature of the plaint B Schedule properties. The High Court on appraisal of the oral and documentary evidence held as follows :

There is no acceptable evidence to show what were the properties allotted to Vishnu (Senior) for his maintenance when he left his illom, or the income therefrom. There is no