1. This appeal arises out of a suit for partition. Defendants 1 and 3 to 6 are the appellants. The parties are Warriors by caste. Defendants 1 and 3 are brother and sister respectively, and defendant 2 is their mother. Defendants 4 to 6 are the minor children of defendant 3. Plaintiff 1 is the niece of one Soolapani Warrier, who is now dead and who was the father of defendants 1 and 3 and the husband of defendant 2, Plaintiffs 3 to 5 are the minor daughters of plaintiff 1. Plaintiff 2 also was palintiff 1's daughter, but she died after the institution of the suit, and the remaining plaintiffs are her legal representatives. According to the plaintiffs, plaintiff 1 is defendant 1's wife and plaintiffs 2 to 5 were born of their marriage. The defendants admit that plaintiff 1 was married by defendant 1 and that plaintiffs 2 to 4 were born of that marriage. But, according to the defendants, defendant 1 divorced plaintiff 1. in Chingom 1114 and plaintiff 5 was born subsequent to the divorce and is not defendant 1's child. In 1109, before the birth of plaintiffs 4 and 5 and defendants 5 and 6, Soolapani Warrier executed a settlement deed, Ex. B, in favour of defendants 1 to 4 and plaintiffs 1 to 3 giving to them and to the children that might be born to them subsequently the plaint properties in this case, and the suit was brought by the plaintiffs for partition and recovery of the shares they were entitled to get in those properties on the basis of this settlement deed. They claimed 5/11 share in the properties and also asked for past and future mesne profits in respect of the said share.
2. Defendants 1, 3 and 4 to 6 contested the suit. Their contentions were to the effect that defendant 1 had divorced plaintiff 1 in 1114 and plaintiff 5 was not his child, that Ex. B had constituted defendants 1 to 4 and plaintiffs 1 to 3 into one tarwad and under the law and usage governing the parties no member of the taiwad could claim partition as of right, that plaint A schedule items 1 and 2 were exclusive properties of defendant 1, that the chavadi building in item 5 was also put up by him with his own funds and was not therefore partible, that being the karnavan of the tarwad he was not liable to account for the mesnc profits to the other members of the tarwad and plaintiffs were not entitled to get any mesne profits and that the rate of mesne profits asked for was also high.
3. The lower Court found that the marriage between plaintiff 1 and defendant 1 was not dissolved and that plaintiff 5 was the legitimate issue of defendant 1 horn of their marriage, that to constitute a Marumakkathayam tarwad there should be a natural group composed of a mother and her children and their descendants in their female line and such a tarwad as a legal entity could not be created ad hoc and so the contention that the plaintiffs and the defendants together were formed into one tarwad by Ex. B could not be accepted, that plaint A schedule items 1 and 2 as well as the chavadi building in A schedule item 5 were not the exclusive properties of defendant 1 and were partible, that plaint B schedule items were the exclusive properties of defendant 1 and were not partible, and that the plaintiffs were therefore entitled to recover possession of 5/J1 of plaint A schedule items with mesne profits. It also directed defendant 1 to be given credit for certain sums-which were spent by him and accounts to be taken from the date of Ex. A and the plaintiffs to be given their share of the mesne profits on the basis-of such accounting. As a result of these findings the lower court passed a preliminary decree for partition in the following terms :
'(i) The plaintiffs are entitled to recover 5/11; share of plaint A schedule items.
(ii) The first defendant will render accounts of his management of A schedule items from 30-8-1109 till date of suit.
(iii) If any sums are found due to the plaintiffs on such accounting, they will have a charge for such aims on B schedule properties which they can enforce by execution.
(iv) Plaintiffs will be entitled to their share oF the mesne profits of A schedule at the rate specified under issue 9 from date of suit.
(v) Defendant will be given credit for Rs. 286/17/12 cash.
(vi) Defendants 3 and 4 to 6 will also be entitled to get their shares divided on payment o the necessary court-fees. They will also get their shares in the amounts if any found due on accounting from the first defendant and also to the mesne profits.
(vii) Plaintiffs will apply for a commission for the division of the A schedule properties within a month from this date.
(viii) Costs of this suit so far incurred, o all parties will come out of the estate and costs hereafter to be incurred will be provided for in the final decree.' The appeal is against this decree.
4. Although a ground was taken in the appeal memorandum to the effect that the properties gifted under Ex. B were not partible, the appellants' counsel did not press, that ground, and in our opinion he did so rightly, in view of the Full Bench decision in Kalianikutty Amma v. Devaky Amma, 1950 Ker LT 705 (A). The contentions which were urged before us at the time of hearing in this court are dealt with below:
5. It was urged by the appellants' counsel that A schedule items 1 and 2 belonged exclusively to defendant 1 and that they were not therefore partible. According to the appellants, Soolapani Warrier had only a mortgage right over these items and before the execution of Ex. B the equity of redemption was sold in execution of a decree obtained against the mortgagor and was purchased by defendant 1. In pursuance of that Court sale there was a delivery, and Ex. V is the delivery kychit in favour of defendant 1. Soolapani Warrier is an attestor to Ex. V. On the strength of this document it was contended, that what was delivered under it was the full right in the property including the possessory right and not merely the equity of redemption and that therefore it must be deemed that Soolapani Warrier had made a gift of items 1 and 2 to defendant 1 even before the execution of Ex. B. But Ex. V does not expressly say that it was the full right in the property that was delivered under that document. Since the, equity of redemption alone was purchased in the name of defendant 1 nothing more than that right could have been delivered over to the auction purchaser under Ex. V. The mere fact that in the description of the properly in Ex. V it is not expressly stated that the equity of redemption alone was being delivered over would not confer upon the auction purchaser a right to anything more than what he had purchased under the court sale. As pointed out by the lower court defendant 1 was only a student at the time of Ex, V and the money for purchasing the property at the court auction must have been that of Soolapani Warrier. Soolapani Warrior had included plaint items 1 and 2 in Ex. B and it was presented for registration and accepted by defendant 1 without demur. These facts would conclusively show that in order to prevent a merger of the mortgage right with the equity of redemption Soolapani Warrier had caused the property to be purchased at the Court sale in the name of defendant 1 who was his eldest son and that the benefit of the auction purchase was intended to enure to Soolapani Warrier and not to defendant 1. In these circumstances the lower court was right in holding that plaint A schedule items 1 and 2 were not in the exclusive possession of defendant 1 and were liable to be partitioned.
6. In view of the fact that there is now another suit pending between defendant 1 and the lessee of the chavadi building in plaint item 5 and in that suit also the question arises for consideration as to who has put up that chavadi building it was urged by the appellants counsel that the question whether the said building was put up by defendant 1 or not should be left open in this suit. The finding in this case may not bind the lessee as lie is not a party here. But the lessee has been examined in this suit as Pw. 5 and on the evidence in the case it is absolutely clear that the chavadi was not put up by defendant 1. There is therefore no necessity to leave this question open.
7. Regarding the share awarded by the court below to the plaintiffs the appellants' counsel urged that the plaintiffs were entitled only to 3/7 and not 5/11. Since it has been found that the donees under Ex. B do not constitute a tarwad they are entitled to take the gift only as co-tenants. In that case the gift to the after-born persons would be invalid. At the time of the execution of Ex. B only defendants 1 to 4 and plaintiffs 1 to 3 were alive. So the plaintiffs are entitled to get only 3/7 as their share and not 5/11. The share which plaintiff 2 had obtained under Ex. B devolved on her death on the other plaintiffs. The decree of the court below in regard to the plaintiffs' share has therefore to be modified.
8. The appellants' counsel also complained about the rate of mesne profits awarded. In view of Ex. XIV and the oral evidence in the case we do not think there is any substance in this complaint so far as A schedule items 1 and 2 are concerned. Ex. XII lease deed shows that the annual rent of plaint A schedule item 3 was only Rs. 10. The lower court has awarded Rs. 100 in respect of this item on the ground that defendant I has not produced the subsequent lease deeds.
As the lease deeds were registrered it is open to the plaintiffs also to produce them, and since the burden of proof in regard to this matter was upon the plaintiffs it was the duty of the plaintiffs to produce those lease deeds. The lease deed produced, namely, Ex, XII, shows the rent of plaint A schedule item 3 to be only Rs. 10 per year; and we accept that to be the correct rate, in regard to that item,
9. For the reasons stated above we modifythe decree of the court below to the followingextent, namely, that the plaintiffs are entitled torecover only 3/7 of plaint A schedule items andnot 5/11, and the plaintiffs will be allowed to getmesne profits in respect of their shares on the basisthat the annual mesne profits of plaint A scheduleitem 1 is 150 paras of paddy, of A schedule item2 -- Rs. 60/-, of A schedule item 3 -- Rs. 10/-,and of plaint A schedule items 4 and 5 -- Rs.660/-; and we confirm it in other respects. Subject to this modification the appeal is dismissedand the appellants are directed to pay one-half ofthe costs which the plaintiffs-respondents have incurred in this court.