HIGH COURT OF KERALA
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(1.) This is an appeal by the 1st plaintiff whose suit under O.21 R.103 CPC. has been dismissed by the courts below.
(2.) The 8th defendant is the mother of the plaintiffs and defendants 9 to 12. On 11-1-1089 she got a mortgage right assigned to her. The predecessor in interest of defendants 1 to 7 filed O. S. No. 1716 of 1113 on the file of the Munsiff, Trivandrum, to redeem that mortgage, and, after a fight upto the High Court, it has been decreed. The 8th defendant the eo nomine mortgagee and the 13th defendant a tenant on the property were parties to that suit. In execution of that decree the plaintiffs 1 and 2 obstructed delivery of possession claiming the mortgage right to belong to their tavazhi against which the decree obtained against the 8th defendant would not avail as it is not in conformity with the provisions of S.27 of the Ezhava Act. That obstruction having been repelled by the executing court plaintiffs have instituted this suit. The courts below concurred to find the mortgage right to be the separate property of the 8th defendant and therefore to dismiss the suit.
(3.) In this second appeal the plaintiffs contend that the acquisition of the mortgage right having been during coverture a presumption arose of its having been made with funds supplied by the husband and therefore of enuring to the tavazhi. Reliance was placed on a ruling of the Travancore High Court in Kaliamma Valliamma Pillai v. Kanakku Narayanan Pillai (10 TLR 136) and on another ruling of the Travancore Cochin High Court a shortnote of which appears in 1956 KLT page 42. Those two cases related to acquisitions of Nair women. It is trite knowledge that in Travancore, where the two cases have arisen, the vast majority of women among the Nairs did not, in olden days, work to earn, while the large majority of women among Ezhavas did work and earn. I think the peculiar circumstances that brought about the presumption enunciated in 10 TLR 136 in the case of acquisitions in the name of a Nair woman during coverture cannot be invoked to acquisitions of an Ezhava woman without great caution. The negation of resources of one's own implied in the presumption can apply only to an indolent community, but not to an industrious one. I think the presumption must be limited to cases where the woman has no other apparent means than the bounty of her husband. If that be the correct view, which I think it is, the presumption can have little application to the present case. Counsel submitted that the presumption must and has been applied by analogy to other marumakkathayee communities. Extension of a principle by analogy may often be helpful, but it may in many cases prove to be the most dangerous of snares. "(A)rguments by analogy may be misleading" observed Sinha, J., (as he then was) in AIR 1956 SC 559 , 568. Unless the facts and circumstances are identical it is not safe to extend principles by analogy. Where the rule in one is exception in the other the same principles may not hold good. I would therefore hold that the presumption that was enunciated in 10 TLR 136 to apply in the case of Nair women cannot normally be extended to the case of Ezhavas. There is little evidence in this case of the affluence of the plaintiffs' mother when she made the acquisition. The indication in the evidence is just to the contrary only. But, it is seen that the instant mortgage right originally belonged to the plaintiffs' father who assigned it to a third person from whom the mother got a reassignment. Ext. D, the assignment in favour of the mother, the 8th defendant, shows that its consideration was Rs. 300/- only, paid by herself, and that she appeared before the Sub Registrar to present the deed for registration. The concurrent finding of the courts below, which is more or less on a question of fact, that the acquisition has been the separate property of the 8th defendant, does not, in my view, require interference in this second appeal.
The second appeal fails and is dismissed, but I do not order costs here.;
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