JUDGMENT

1. The defendants in a suit for partition are the appellants.

The suit was filed for partition of two items of properties included in the plaint schedule having an extent of 24.09 Ares and 32.37 Ares. As per the plaint allegations item No.1 property belongs to one Chellamma and Item No.2 belongs to one Ramakrishnan Nair, husband of Chellamma. The properties belonged to Chellamma were partitioned as per Ext.A2 Partition Deed dated 07.09.2004 and in which E schedule property was kept in common among the parties to the said document. Likewise, the properties belonging to Ramakrishnan Nair were partitioned as per Ext.A3 Partition Deed dated 09.08.2012, and the H schedule therein was kept in common. One of the parties in Ext.A2, i.e., Rugmini Amma died in the year 2009. Hence, there are 12 persons as parties to Ext.A2 and there are 11 persons as parties to Ext.A3. The plaintiffs are the wife and children of Raveendranatha Panicker who was the son of Ramakrishnan Nair and Chellamma have filed the suit. They sought partition of the plaint schedule properties and the same was opposed by the defendants and hence the suit for partition was filed. According to the plaintiffs, the plaintiffs are entitled to get 2/24 shares each over the plaint schedule item No.1 and

1/11 share each over the plaint schedule item No.2.

2. The defendants filed written statement opposing the suit prayers contending that the intention of the parties is to keep the property as common and hence the same is not partible. They also disputed the shares claimed by the plaintiffs. The defendants relied on Ext.B1 agreement which contains an undertaking among the parties that the properties shall be kept in common.

3. The Trial Court decreed the suit passing preliminary decree in accordance with the shares sought by the plaintiffs. Though the defendants 1 & 3 to 8 filed appeal before the First Appellate Court as A.S. No.37/2020 the same was also dismissed confirming the preliminary decree passed by the Trial Court.

4. I heard the learned counsel for the appellants Smt. Vidhya A.C. and also the learned counsel for the respondents Sri.

M. Narendra Kumar.

5. The learned counsel for the appellants submitted that the shares granted by the Trial court as well as the First Appellate Court are not correct. The property admittedly belonged to the father and mother and the same are liable to be partitioned equally among 8 children in accordance with the provisions of the Hindu Succession Act. Out of the 8 children, Viswanatha Panicker died, and his legal heirs are D1 and D2, another, Raveendranatha Panicker, died, and his legal heirs are plaintiffs 1 to 3. Each of these groups is entitled to get one share.

6. The learned counsel for the respondent submitted that there are specific recitals in Exts.A2 and A3 that the properties which are kept common therein shall belong to the parties therein and also the executant of the power of attorney equally.

7. I have gone through the recitals in Exts.A2 and A3. It is true that by Ext.A2 properties originally belonged to Chellamma were partitioned among her legal heirs. It was decided among the legal heirs that schedule E property shall be kept in common. It is specifically stated that the said property which is kept in common shall belong to parties 1 to 11 therein and also the executant of power of attorney equally. In view of the said specific recitals in Ext.A2, E schedule property therein has to be divided equally among the said 12 persons, each person taking 1/12 share. Likewise, in Ext.A3 also the properties belonging to Ramakrishnan Nair were partitioned among the legal heirs and H schedule property was kept in common. There also the specific recital is that H schedule property shall belong to the parties therein and the executant of the power of attorney. Since Rugmini Amma died, there are only 10 persons as parties to Ext.A3, and hence, H schedule property is liable to be partitioned among the said 10 persons, and the executan