The court affirmed that property must be proven as tharavad to apply Marumakkathayam law, emphasizing community interest and unity of possession.

JUDGMENT :

This appeal has been filed at the instance of the 2nd defendant in O.S.No.809/2012 on the files of the Principal Sub Court, Irinjalakkuda. Respondents are the plaintiff and other defendants.

2. Heard the learned counsel for the appellant/2nd defendant and the learned counsel appearing for respondents 1, 3, 4 and 5 who are the plaintiff, defendant Nos.1, 3, 4 and 7 in the suit.

3. The parties in this appeal will be referred to as 'plaintiff' and 'defendants' with reference to their status before the trial court hereafter for easy reference.

4. The short facts are as under;

The plaintiff, who is the son of late Parukkutty Amma, instituted the suit claiming partition of the plaint schedule property, contending that the same is a property obtained by late Parukkutty Amma, as the sixth party in partition deed No.808/1959 of Nelayi SRO, as 'F' schedule thereon. After the execution of the partition deed, Sankarankutty also was born and thereafter on 03.05.2006, Parukkutty Amma died. According to the plaintiff, since the parties are Hindus governed by the Hindu Succession Act, the plaint schedule property is liable to be partitioned in between the plaintiff and defendants. Accordingly, the plaintiff and defendants 1 to 7 would get 1/9th share each and defendants 8 to 10 together would get 1/9th share.

5. The suit was strongly resisted by defendants 2, 8, 9 and 10. The main challenge raised in their written statement is that the 'F' schedule property, as per partition deed No.808/1959 relied on by the plaintiff, is tharavad property governed by Marumakkat ayam law. According to defendants 2, 8, 9 and 10, Sethumadhavan, Geetha and Sindhu are the children born to Gangadevi, the 2nd defendant/appellant herein, before 01.01.1976. Therefore the property, being tharavad property governed by Hindu Marumakkathayam law, will be partitioned among the plaintiff, defendants and the children of the 2nd defendant born before 01.12.1976. Accordingly, it was contended that the suit is bad for non-joinder of necessary parties. According to defendants 2, 8, 9 and 10, the property is liable to be partitioned into 15 shares and thereby the plaintiff would get 1/15th share and others would get 1/15th share each.

6. The trial court addressed the contentions and raised necessary issues. PW1 was examined and Exts.A1 to A5(b) were marked, on the side of the plaintiff. DW1 was examined on the side of the contesting defendants. Finally, the trial court negated the contentions raised by defendants 2, 8, 9 and 10 and held that the plaint schedule property is not tharavad property and therefore, Marumakkathayam law would not apply. Accordingly, preliminary decree of partition has been passed as under;

1. The plaint schedule property shall be divided into 9 equal shares by metes and bonds.

2. The plaintiff is entitled to get 1/9th share in the plaint schedule property.

3. Defendants 1 to 7 are entitled to get 1/9th share each in the plaint schedule property.

4. The defendants 8 to 10 being the children of late Sreedevi are jointly entitled to get 1/9th share in the plaint schedule property.

5. The plaintiff as well as the defendants are entitled to apply for passing a final decree.

6. The plaintiff is entitled to get the costs of the suit.

7. The plaintiff is entitled to get share of income and its quantum can be decided in the final decree proceedings.

8. The suit is adjourned sine die.

7. According to the learned counsel for the 2nd defendant, the recitals in Ext.A2 partition deed No.808/1959 would show that the entire properties are tharavad properties. He has given emphasis to the description in another partition deed No.237/1095, which describes the property as tharavad property. In this matter, as pointed out by the learned counsel for the plaintiff and other defendants, in the 'F' schedule of Ext.A2, the property allotted to Parukkutty Amma, the sixth party in the partition deed, is described as property in Survey No.590/2 in Sale Deed No.2781/1119. A copy of sal