Restrictive partition clause devolving Thavazhi share to junior male member upheld as valid will; self-acquisitions require proof of Thavazhi benefit.

JUDGMENT

The plaintiff in a suit for partition non-suited concurrently by the Additional Munsiff Court - II, Kozhikode, in O.S. No.62 of 2003, as well as by the Additional District Court -II, Kozhikode, has come up in the present appeal.

2. The plaint schedule items, twenty-three (23) in number, were divided in favour of two Thavazhis, one belonging to Parvathi Amma and another belonging to Kalyani. Madhavi Amma, along with her children, Raghavan Nair, Parvathi Amma, and Damodaran Nair, formed one Thavazhi, whereas Kalyani, her sister, formed another Thavazhi with Krishnan Nair and Velayudhan. Item Nos. 1 to 21 of the plaint B schedule properties were allotted to the Thavazhi of Madhavi Amma in Ext.B1 partition deed. There was a restrictive clause in Ext.B1, wherein it was stated that on the death of Madhavi Amma, her share will devolve upon Raghavan Nair. Item No.22 is an independent acquisition of Raghavan Nair by virtue of a mortgage. Item No.23 of the plaint schedule relates to 96 cents, which came vested with Raghavan Nair by virtue of a partition deed executed between himself and Parvathi Amma. The derivation of title leading to Ext.B3 is described as an absolute acquisition of Madhavi Amma, Damodaran Nair, Raghavan Nair, and Parvathi Amma by virtue of a court auction. Though the plaintiffs contended that the said item was originally vested with Madhavi Amma under a gift deed and that the subsequent partition between Parvathi Amma, Raghavan Nair, and Damodaran Nair, without the junction of the plaintiffs who were born prior to 1976, the evidence in this regard is totally lacking. Going by the tenure of Ext.B3 partition deed, it is clear that an independent title is traced to 96 cents in favour of Raghavan Nair and another 96 cents in favour of Parvathi Amma, the mother of the plaintiffs.

3. As stated above, item Nos.1 to 21 were the subject matter of Ext.B1 partition deed, whereas item Nos.22 and 23 were included by mistake by the plaintiffs in the suit. Subsequently, they sought an amendment of the schedule by filing I.A. No.1057 of 2007 in tune to bring it with the mortgage deed No.1436/45, which was disallowed. Notwithstanding the same, the trial court went into the details regarding the acquisition made by Raghavan Nair in terms of Ext.A1 deed and found that it cannot be for the benefit of Thavazhi and that it is an independent acquisition because Raghavan Nair had obtained mortgage rights over item No.22 of the plaint schedule property. Therefore, notwithstanding the dismissal of the application for amendment, the claim of the plaintiffs was negated on merits.

4. In this appeal, the plaintiffs/appellants basically contended that the clause in Ext.B1 cannot operate to the detriment of the members of Thavazhi, which admittedly had the mother of the plaintiffs/Parvathi Amma as one of the members. But the infirmity in the argument appears to be that the grandmother of the plaintiffs, namely Madhavi Amma, had consciously agreed that after her death, her share in the property would devolve upon her son Raghavan Nair. That be so, the conclusion reached by the courts below that Ext.B1 partition deed in fact operates as a Will to the extent of bequeathing the property in favour of Raghavan Nair does not appear to be flawed.

5. Coming to the claim of the plaintiffs/appellants to item Nos.22 and 23, though this Court was inclined to take a view that the rejection of the application for amendment was not proper and that the first appellate court ought to have remanded the matter back to the trial court for a fresh consideration. However, going by the derivation of title to item No.22 of the plaint schedule, it is evident that there is a subs