The division of the property in the earlier decree was not under the Mitakshara law of inheritance, but rather an allotment to the three sons of Bapputty, and the defendants' arguments were barred by the principles of res judicata.

The defendants No.2 to 7 in O.S No.632/2010 for partition have preferred this second appeal, having lost their cause in the trial court and the First Appellate Court.

2. The case of the plaintiff is that in an earlier suit O.S.No.74 of 1977, the 1st Additional Munsiff’s Court, Kozhikode had passed a preliminary decree for partition of item No.1 of the plaint schedule into 3 equal shares and directed to allot one such share jointly to the plaintiff, her mother, 1st defendant and Mr.Chandrasekharan (husband of 1st defendant and father of defendants No.3 to 7 in the present suit). It is contended that the plaintiff and defendants are in joint possession and enjoyment of the property. The plaintiff filed the suit for partition and separate possession of her share including 1/4th share of her deceased mother.

3. According to the 1st defendant, the plaintiff is entitled to get 3/12th share, the 1st defendant is entitled to get 5/12th share, and defendants 2 to 7 together are entitled to get 4/12th share in the property. According to defendants No.2 to 7, the plaintiff and her mother are entitled to get 1/16th share each and the plaintiff is not entitled to get half share in the plaint schedule property as claimed.

The trial court observed that the plaintiff is entitled to get a decree for partition of the plaint schedule property. A preliminary decree for partition allotting 2/4 shares of the plaint schedule property to the plaintiff was passed by judgment dated 23.12.2011. Aggrieved by the allotment of shares, the defendants 2 to 7 preferred A.S No.28/2012, which was dismissed by the First Appellate Court, confirming the decree and judgment of the trial court. Hence this second appeal.

4. Even though notice before admission was ordered to the respondents, the second appeal had not been formally admitted on any substantial questions of law to this day. Since the case is of the year 2013, I deem it appropriate to proceed with the case based on the questions of law formulated in the memorandum of the second appeal, particularly since the respondents are put on notice of the same.

5. The following substantial questions of law have been formulated in the memorandum of appeal.

1. Whether the courts below were correct in holding that the properties involved in the suit are not joint family properties?

2. Have the courts below correctly interpreted Ext.B1 judgment in order to hold that the plaint schedule properties are not joint family property.

3. Whether the shares allotted in O.S.No.74/77 were per capita or per stirpes.

4. Whether the finding of the courts below with regards to shares available to each parties correct.

6. Heard both sides.

7. The plaint schedule property along with other properties were admittedly acquired by one Perachan. He bequeathed the property to his brother Bapputty. Bapputty had three children namely Gopalan, Chandukuty, and Choyikutty. On the death of Bapputty, the properties devolved on his sons. The parties are Thiyyas of Malabar following the Makkathayam law of inheritance. Chandukutty died in 1952 and Choyikutty died in 1965. Gopalan is stated to have died before the Hindu Succession Act . In O.S.No.74 of 1977, the property was directed to be partitioned between the respective branches of Gopalan, Chandukutty, and Choyikutty. The plaintiff and defendants R.S.A.No.1484 of 2013 belong to the branch of Chandukutty. Plot A in Ext.A2 decree in O.S.No.74 of 1977 was allotted to the share of the plaintiff and defendants, together. In O.S.No.74 of 1977, there was no prayer for separate allotment of the shares of the persons who were allotted plot A, which is the plaint schedule property in the present suit. Even though an application was filed for passing a supplementary final decree for partition among the sharers of plot A, the same was dismissed as per Ext.A5 order. A writ petition filed before this Court was dismissed finding that the remedy was to seek partition among the sharers of plot A. The present suit is