Vasantha vs V.M. Anantha Lakshmi Venketachalam and Others

Thottathil B. Radhakrishnan, J.—First defendant in a suit for partition is the appellant. The second defendant is arrayed only because he was a tenant. He is not a necessary party to this appeal. Mahadeva Iyer and Ammukutty Ammal had three sons and three daughters. The three daughters are the plaintiffs. One son, Venkiteswaran, released his rights in the co-parcenary property to father Mahadeva Iyer and brothers Krishnan and Ramanathan under Ext.B1. Later, the father, Mahadeva Iyer, died on 29.6.1954. This brought his entire share in the co-parcenary to Ammukutty Ammal. This means that she held the 1/3rd right of Mahadeva Iyer. The further 2/3rds could go in equal shares to Ramanathan and Krishnan. Krishnan thereafter died in 1960 unmarried and issue-less. That brought the share of Ammukutty Ammal to be 2/3rds and Ramanathan is continuing to hold 1/3rd. The appealing first defendant is the daughter of Ramanathan.

With the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, co- parceners stood with shares; Ramanathan holding 1/3rd and Ammukutty Ammal holding 2/3rds. The 1/3rd of Ramanathan will go to the first defendant, she being the sole heir of Ramanathan. In so far as Ammukutty Ammal''s 2/3rds are concerned, that have to be divided into four shares equally to the three plaintiffs and the first defendant representing the estate of Ramanathan, that is to say, the daughter of a deceased son. Therefore, the first defendant is entitled to the aforesaid 1/3rd available to her as the heir of Ramanathan and 1/4th of 2/3rds which was available to Ammukutty Ammal. Plaintiffs would get 1/4th each of 2/3rds in the entire property.

In the result, the impugned preliminary decree is vacated and a preliminary decree for partition is hereby passed ordering partition of the plaint schedule property into six shares, three out of that to be allotted to the first defendant and 1/6th to be allotted to each of the plaintiffs. The first defendant, who is in possession, is liable for the quantum of mesne profits; quantum being left open for determination in the final decree proceedings. Any of the sharers is at liberty to apply for a final decree within one month from the date of this preliminary decree and in that event, an Advocate Commissioner will be deputed to effect partition. Cost should come out of the estate. Plaintiffs are entitled to get mesne profits from the date of the suit till realisation or possession is given or for three years from the date of the suit or possession is given whichever is earlier. The parties are directed to suffer their respective costs.