The main legal point established in the judgment is the nature of the interest of a sole surviving coparcener over the properties of the coparcenary under Mitakshara Hindu Law, and the validity of a deed of settlement executed by the 1st defendant in favor of other family members.

1. This is an appeal made by defendants 1, 3 and 4 against the preliminary judgment and decree of the Second Judge, Nagercoil District Court, dated 28th Vrischikam 1122 (13th December 1946) directing partition and delivery of a halfshare in some of the properties described in the schedule to the plaint to the plaintiff (1st respondent) setting aside a deed of settlement (Ex. A) executed by the 1st defendant in favour of defendants 3 and 4 and their mother (2nd respondent) who was the 2nd defendant in the court below.

2. The parties are Hindus. They belong to a special sect called 'Krishnan Vaka'. It is admitted that they are governed by Mitakshara Hindu Law The sub joined geneological table shows the relationship of the parties.

3. Marthanda died in the year 1096, leaving him surviving his widow Neelammal (D. 1), two sons, Perumal and Kulasekhara and a daughter, Perumal Pillai (D. 2). Plaintiff is the widow of the elder son Perumal who died issueless in the year 1100. The younger son Kulasekhara died in the year 1103.

4. On 5-8-1119 the 1st defendant executed a deed of settlement (Ex. A) in favour of her daughter Perumal Pillai (D. 2) and the two grand-sons (Ds. 3 and 4). Within three months of this deed, that is on 26-10-1119, the suit out of which this appeal arises, was filed. In the plaint the plaintiff averred that after Perumal's death she, pursuant to the custom prevalent in the community lived with Kulasekhara as his wife till his death whereupon she, as the widow of the last surviving coparcener of the family and in whom vested the family properties succeeded thereto as his heir, in which capacity she was in possession. The 1st defendant was at best entitled only to a claim for maintenance from out of the properties as the widow of a predeceased coparcener. The deed of settlement executed by her as though she had title to and right to possession of the properties is invalid being beyond her competence which was accordingly sought to be set aside. The 1st defendant's possession of the properties was accounted for by attributing it to trespass committed in plaintiff's absence. Recovery of possession of all the properties with mesne profits was claimed. The mortgage right over item No. 2 in the deed of settlement as also in the schedule to the plaint was claimed by the plaintiff as her own.

5. The 1st defendant denied the averment that plaintiff lived with Kulasekhara as his wife. It was stated that soon after Perumal's death the plaintiff abandoned her husband's house, went back to her father's house and lived there thereafter, without having ever come to or having had any enjoyment of the family properties which were in the 1st defendant's possession ever since Marthanda's death as at that time both the sons were minors. It was contended on these facts that the suit was barred by limitation and adverse possession. Whether any of the sons attained majority is not clear upon the evidence nor is it material for purposes of this case. That there was no division between the sons is the common case of both the parties. Plaintiff's claim to the mortgage right over item No. 2 as her own was admitted.

6. The learned judge found that though the custom alleged by the plaintiff prevailed among the community, the plaintiff's claim to having lived as the wife of her husband's brother had no foundation in fact. The relief that was sought as Kulasekhara's widow was therefore refused.

7. The plaintiff filed a memorandum of objections against this part of the decree but it was not pressed at the hearing. The finding by the judge therefore remains and Kulasekhara should be taken to have died unmarried.

8. The relief that the learned judge granted to the plaintiff was, as already stated, one for partition and delivery of a share of the family properties. This relief however, was neither sought in the plaint nor was it even consistent with the only ground on which the reliefs sought were based. Kulasekharas's full ownership of the fam