The plaintiff in a suit for partition is the appellant.

The plaint relates to A and B schedule properties. The

issue involved in the appeal is confined to plaint A

schedule property.

2.

That the property sought to be partitioned

originally belonged to Devasi, the predecessor-in-interest

of the parties, is not in dispute. Devasi had married

twice, the second marriage being contracted on the

death of the first wife. Between the legal heirs of Devasi,

there was a partition in the year 1953 as Partition Deed

No.1034/1953, which is marked as Ext.A4. Therein,

partition was effected into two, one share to the heirs

under the first marriage and the other share with

different properties to the heirs under the second

marriage. The present suit for partition relates only to

properties so allotted to the branch under the second

wife, Kochumariyam.

3.

The only question that arises for determination

in this appeal is as to whether under Ext.A4 partition,

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Kochumariyam became a sharer or was she a signatory

therein only as representing her minor children, in her

capacity as guardian. The relevant recital in Ext.A4 reads

thus:

"ടടി ദദേവസടിയയുടട മക്കൾ കകൃഷടി ഇരയുപതടിരണയു വയസസ

കയുഞടിചച്ചാക്കയു സസ്വന്തനടിലയടിലയുലും അനയുജനച്ചാർ മമനർകൾ കയുരടിയൻ

പപൗദലച്ചാസയു

ഇവർക്കയു

ദവണടി

രക്ഷകർതച്ചാവയു

സച്ചാനതയുലും

സസ്വന്തനടിലയടിലയുലും ജനനടിയയുലും ടടി ദദേവസടിയയുടട ദേസ്വടിതതീയ ഭച്ചാരര്യയയുമച്ചായ

നസസച്ചാണടി സസതതീ ഗകൃഹദജച്ചാലടി അമ്പതയു വയസസ ടകച്ചാചസ മറടിയവയുലും

കകൂടടി രണച്ചാലും നസമ്പകച്ചാരച്ചായയുലും"

4.

A reading of Ext.A4 makes it clear that

Kochumariyam was a signatory to Ext.A4, not only in her

capacity as a guardian of the minor children but also in

her individual capacity. Therefore, it admits of no doubt

that under Ext.A4, she also becomes a sharer. Even

assuming that prior to Ext.A4, on the premise that the

Travancore-Cochin Christian Succession Act was

applicable wherein the widow had only a maintanence

right, she did not have any share in the property, it is

always open to the parties to have a share given to her

under the partition, which under law would have the

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effect of a gift to a non-sharer. Suffice to notice that,

under Ext.A4 she also became a sharer.

5.

That if, Kochumariyam is also a sharer under

Ext.A4, the plaintiff as a legal heir would be entitled to

1/8 share in the plaint A schedule property, is not in

dispute. In view of the finding above that Kochumariyam

is also a sharer under Ext.A4, the plaintiff is entitled to

1/8 share over the plaint A schedule property.

In the result, the appeal is allowed. The decree and

judgment passed by the trial court, in so far as it relates

to plaint A schedule property, will stand modified, and a

preliminary decree for partition is passed declaring 1/8

share of the plaintiff over the plaint A schedule property.

The decree and judgment of the trial court will stand

confirmed in other respects.

Sd/-

SATHISH NINAN

rsr

JUDGE