The main legal point established in the judgment is the binding nature of the Ext. I partition deed of 1105 and the entitlement of the 1st plaintiff alone to participate in B schedule items 4 and 5.

Headnote:
partition - branch tarwad properties - Ext. I partition deed of 1105 - binding nature of Ext. I - A schedule items 2 and 3, B schedule items 4 and 5, and money compensation as under Ext. I - Travancore Law Reports 116 - rule of presumption for gift from father or husband as tarwad property - usufruct and power to encumber - oral partition - minority co-sharers blocking voluntary partition - tenancy-in-common and right to possession
Fact of the Case:

The appeal is by the plaintiffs in a suit for partition of their branch tarwad properties which has been decreed in part and disallowed as regards the rest. The plaintiffs and defendants constitute the members of a branch of the Thekke Poovampillil Nair Tarwad in Edappalli in North Travancore. The suit was laid for partition by metes and bounds of plaintiffs' 4/28 or 1/7 share in all the A to E schedule properties. The court below upheld the defence contentions and granted a preliminary decree for partition of the plaintiff's 1/7 share in A schedule item 1 and of the 1st plaintiff's share in B schedule item 2 as per Ext. I partition deed of 1105, and dismissed the suit altogether as regards A schedule items 2 and 3, B schedule items 4 and 5 and C, D and E schedule items. The plaintiffs appealed only to the extent that the rest of the decree is against them. The 33rd respondent's cross appeal in regard to costs disallowed is dismissed.
Finding of the Court:

The court found that the 1st plaintiff alone is entitled to participate in B schedule items 4 and 5, and Ext. I arrangement is binding on the 1st plaintiff. The court affirmed Ext. I arrangement as binding on the 1st plaintiff and directed that the money compensation as under Ext. I will be made good under the final decree. The appeal was allowed to the extent indicated above, and the decree of the court below was confirmed in all other respects.
Issues: The issues considered by the court were: (i) Whether and how far B schedule items 4 and 5 are available for partition in favour of the plaintiffs; (ii) Whether Ext. I partition deed is binding on the plaintiffs and what alternative arrangement should be made as regards B schedule items 1 to 3; and (iii) Whether the plaintiffs cannot be granted relief in this suit as regards A schedule items 2 and 3.
Ratio Decidendi: The court held that the 1st plaintiff alone is entitled to participate in B schedule items 4 and 5, and Ext. I arrangement is binding on the 1st plaintiff. The court also discussed the rule of presumption for gift from father or husband as tarwad property, usufruct and power to encumber, oral partition, minority co-sharers blocking voluntary partition, and tenancy-in-common and right to possession.
Final Decision: The appeal was allowed to the extent indicated above, and the decree of the court below was confirmed in all other respects. The 33rd respondent's cross appeal in regard to costs disallowed was dismissed.

Judgment :-

1. This appeal is by the plaintiffs in a suit for partition of their branch tarwad properties which has been decreed in part and disallowed as regards the rest.

2. The plaintiffs 1 to 4 and the defendants 1 to 24 constitute the members of a branch of the Thekke Poovampillil Nair Tarwad in Edappalli in North Travancore. The 1st plaintiff, 1st defendant and the defendants 4 to 8 are the children of Lekshmi Amma, deceased. They had a brother Govinda Pillai whose widow is the 25th defendant and children are the defendants 26 to 29. The plaintiffs 2 to 4 are the children of the first plaintiff, the defendants 13 and 14 are the children of the 6th defendant and defendants 2, 3 and 9 to 24 are the children and grand-children of the 4th defendant. There are five schedules of properties A to E attached to the plaint and said to be owned by the branch tarwad of the plaintiffs 1 to 4 and defendants 1 to 24, on basis of three different sets of title (i.e.) the A schedule as obtained in partition under Ext. A of 1095 from the main tarwad, the B, C and D schedules as constituting makkathayam acquisitions and the E schedule as contribution from joint tarwad funds. The plaint averred that a prior partition in the family under Ext. I of 1105 was no legal impediment to the plaintiffs' claim because that partition did not take in either all the sharers particularly the 1st plaintiff or all the properties except the B schedule items 1 to 3. This suit was accordingly laid on 8.6.1121 as for partition by metes and bounds of plaintiffs' 4/28 or 1/7 share in all the A to E schedule properties. It should be added that the plaintiffs did not want and indeed could not have a division in this suit of the corpus of items 2 and 3 of the A schedule inasmuch as those properties lay in the foreign jurisdiction, at that time, of Cochin. But the plaintiffs nevertheless impleaded the defendants 38 to 48 who comprised the four other branches of the main tarwad and were co-owners of those two items along with the plaintiffs' branch, in view to certain relief in regard to those items as follows. Ext. A partition deed had provided a 1/5 share for the plaintiffs' branch in equality with those four branches in the rents due under a lease of A schedule item 2 and similarly for a sum of Rs. 12 per year as rents in respect of A schedule item 3. These rights under the leases along with the accrued arrears of rent for a period of six years and due from the present lessees, viz., the sakhas of the 43rd defendant and defendants 38 to 42 respectively, were included in the A Schedule.2 and 3 for purpose of partition herein. The defendants 30 to 37 and 49 were impleaded as alienees of some of the plaint properties.

3. The contest was raised by various defendants mainly on the footing that there were no properties appertaining to the branch tarwad as alleged or at all and the plaintiffs 2 to 4 had therefore no locus standi in the suit. However there was no objection to partition of the 1st plaintiff's 1/8 share in A schedule item 1. For, according to the defence Lakshmi Amma when she participated in Ext. A partition arrangement in the main tarwad and obtained that item represented only herself and not her thavazhi and as heir to her mother 1st plaintiff could make claim to no more than the 1/8 share aforesaid. The inclusion of relief in respect of A schedule items 2 and 3 was objected to because it lay more properly in the Cochin Court. As regards B schedule items, the contention was that items 1 to 3 alone thereof apart from items 4 and 5 constituted the operative gift by Aiyappa Menon, the husband of Lekshmi Amma and father of the 1st plaintiff and others, in favour not of his wife's thavazhi but of Lekshmi Amma and her children alone, so conferring a 1/8 share in B schedule items 1 to 3 on the 1st plaintiff. But even that 1/8 had long ago been partitioned off in her favour under Ext. I of 1105. It was no doubt true that the 1st plaintiff was not a party to Ext. I un

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Judicial Analysis