Aggrieved by the concurrent findings and the

preliminary decree for partition granted by the

Trial Court (Munsiff's Court, Kayamkulam) in

O.S.No.48/2010

and

the

First

Appellate

Court(Addl.District Judge-II, Mavelikara) in A.S.No.

68/2012, the defendants 1 and 2 came up with this

appeal.

2. It is a suit for partition of the property

by the widow of one Velayudhan Pillai, the son of

one Pappiamma. She was having two other children by

name Balakrishnan Pillai and Kesava Pillai.

Admittedly,

all

these

three

sons

were

pre-deceased Pappiamma, who died on 15/03/2009.

Kesava Pillai died intestate, unmarried and

issueless. The plaintiff is the widow of Velayudhan

Pillai. The first defendant is the widow of

Balakrishnan Pillai and second defendant is the son.

The property was obtained by Pappiamma under EXt.A1

partition deed. The specific case advanced by the

defendant is that though the property was allotted

RSA.No. 1351 of 2013 3

to the share of Pappiamma under Ext.A1 document, it

was really allotted to the Thavazhi of Pappiamma.

As such Velayudhan Pillai, Balakrishnan Pillai and

Kesava Pillai, three sons of Pappiamma obtained

right over the property by birth. It was accepted

by both the Trial Court and First Appellate Court,

based on interpretation of Ext.A1 partition deed and

decreed the suit granting preliminary decree.

3. The questions came up for consideration are:

1. Whether the Courts below construed Ext.A1

document in its correct perspective and whether it

would satisfy a division of property to a

Thaivazhi ?

2. Whether the Courts below justified in construing

Ext.A1 document and the allocation therein to a

Thaivazhi and granting a preliminary decree for

partition ?

4. The question principally came up before the

Trial Court and the First Appellate Court, is

whether the plaintiff is entitled to claim partition

over the property and whether she is a legal heir

entitled to any share over the property being the

widow of one of the deceased son. There is no much

RSA.No. 1351 of 2013 4

dispute with respect to the fact that all the

children of Pappiamma pre-deceased her. The dispute

is with respect to the nature of the property and

both the court below proceeded with the suit under

the impression that the property involved is a

Thaivazhi property. Ext.A1 was brought to the notice

of this court. There is nothing expressed in Ext.A1

document to show that what is divided between the

parties to the partition is a Thavazhi property.

But, there are Grey portions in the said document

amenable for more than one interpretation showing

the character of the property either as a Thavazhi

property or as a self acquired property of the

father and mother of the parties to the document.

Hence, it is too difficult to arrive at a conclusion

merely on the recital contained in Ext.A1 document

regarding the legal nature of the property.

Needless to say that when there is a Thavazhi

property and when self acquired property or other

properties were mixed up/blended along with the

Thavazhi property, the entire property blended would

acquire the character of Thavazhi property. But,

there should be evidence to show that what is

RSA.No. 1351 of 2013 5

involved in the partition includes Thavazhi property

and there is blending of or mixing up of self

acquired property or property acquired by the father

along with the Thavazhy property. As discussed

earlier the recital in the Ext.A1 document may leads

to two possible inference. One is favoring the case

advanced by the plaintiff and other is favoring the

case advanced by the defendant regarding the

existence of Thavazhi property. In the said

circumstance, it is fit and proper to afford an

opportunity to the parties so as to show the nature

of the property involved in Ext.A1 document for

which additional evidence can be permitted. The

decree and judgment of the Trial Court