Decided on July 20,1955



- (1.) The second and third plaintiffs in a suit for cancellation of a decree and certain deeds are the appellants here. They are the sons of the deceased first plaintiff. When this appeal came up for hearing before Justice Joseph Vithayathil it was referred to a Division Bench, the order of reference being as follows:- 'This second appeal raises a question of law of considerable importance. The question is whether in case of an acquisition by a Marumakkavazhi ezhava and his sister before the date of the Ezhava Act (Travancore) with funds that belonged to their father the presumption will be that they acquired the property as tenants-in-common or for the sub-tarwad constituted by them. I think that it is desirable that the question is considered by a Division Bench. I, therefore, refer this second appeal to a Division Bench.' The circumstances leading to this appeal are as follows: The plaint schedule properties belonged to one Krishna Panicker. He had executed a mortgage in 1069. On 29.3.1080, Ext. A, superior mortgage, was executed in favour of the first defendant and his sister, the first plaintiff they being directed to redeem the prior mortgage. A release deed was obtained as per Ext. B dated 4.2.1084 in favour of the first plaintiff and the first defendant. On 26.5.1108 the first defendant executed a lease with premium stipulating a period of six years as per Ext. E with regard to a portion of the plaint schedule property in favour of the second defendant. The second defendant filed OS 120 of 1115 alleging that the first defendant had stolen the cocoanuts from the leasehold item and praying for recovery of the price of the same as well as the premium amount. In pursuance of the decree granted in his favour 40 cents of the property was sold in court auction. Another mortgage was executed by the first defendant on 23.11.1096 as per Ext. F with regard to a portion of the property in favour of the third defendant's father. A second lease was executed as per Ext. G with regard to a portion in favour of the 4th defendant. The plaintiffs claimed that all these transactions were invalid as the first defendant was not competent to execute the mortgage and leases by himself as the rights under Ext. A accrued to the sub-tarwad of the 1st plaintiff and the first defendant, the consideration which passed thereunder being out of funds received from their father. The defendants two onwards contended that the plaint schedule property belonged solely to the first defendant and that in any way he was entitled to a half share in it which he was competent to alienate. The Trial Court held that though the evidence went to indicate that the mortgage right under Ext. A was acquired out of paternal funds the first plaintiff and the first defendant took the rights under it as tenants-in-common with separate alienable moiety interest in the same. So it held that as the property sold in court auction was only the share of the first defendant the plaintiff cannot challenge those proceedings. It also held that the mortgage in favour of the third defendant's father was supported by consideration and was binding on the plaintiffs. As regards the lease in favour of the 4th defendant the finding was that the lease had not come into force. The plaintiffs filed an appeal before the District Court of Alleppey which was also dismissed.
(2.) Thus the main question that arises for consideration is whether the rights under the mortgage, Ext. A, passed to the sub-tarwad as such of the first defendant and first plaintiff. The Trial Court has come to a definite finding under issue (1) that the consideration for Ext. A was satisfied out of paternal funds. The lower appellate court also has come to the same conclusions as can be seen from Para.4 of its judgment. The concurrent findings on this point cannot be challenged, the same being based upon proper consideration of the evidence. So we have to see, what is the character of the property obtained by the utilisation of funds received from a father, the parties being Ezhavas. With regard to properties gifted by an Ezhava male to his wife and children the relevant section in the Ezhava Act (III of 1100) of Travancore, viz., S.32, is as follows:- 'Except where a contrary intention is expressed in the instrument of gift or demise Makkathayam property acquired after the date of the passing of the Regulation shall be liable to be divided among the wife and each of the children in equal shares.' The transactions here are prior to the Ezhava Act. In the Nair Act of 1100, S.41 says that all property acquired by gift or bequest from the father or husband before the Nair Act of 1088 came into force shall be treated as tarwad property of the donees or demisees and of their thavazhi in the absence of evidence to the contrary. There is no such provision in the Ezhava Act. But it is clear that the principle on which S.41 of the Nair Act was based, namely, that under the general Marumakkathayam law gift by a father enured to the benefit of the sub-tarwad consisting of the mother and children and not to the donees alone, is equally applicable with regard to the gifts among Ezhavas before statute intervened. The character of properties bequeathed to the wife and children by a marumakkathayaee male has come up for consideration in several cases of the Madras High Court as well as of courts in our State. Thus in Kunchacha Umma v. Kutti Mammi Hajee (16 Madras 201) when dealing with the bequest of a Marumakkathayee Muslim at 206 it was observed as follows:- 'The properties in question originally belonged to one Taruvai, and they were given after his death to his wife Ayissumma and his children in accordance with his orally expressed wish. The question referred to us is whether Ayissumma and her children took the properties with the incidents of property held by a Tarwad. In the case before us the donor expressed no intention as to how the properties should be held by the donees, and in the absence of such expression, the presumption is that he intended that they should take them as properties acquired by their branch or as the exclusive properties of their own branch with the usual incidents of Tarwad property in accordance with Marumakkathayam usage which governed the donees. This view is in accordance with the principle laid down by the Privy Council in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick and Mohommed Shumsool v. Shewakaran.' Again, the question came up for consideration when a reference was made to a Full Bench of the Madras High Court in Chakkrakannan v. Kunhi Pokker (39 Madras 317). There at page 332 it is observed as follows:- 'In the absence of express provision the presumption is that the property is to be enjoyed by the mother and her issue in the way in which property is customarily held and enjoyed among the followers of Marumakkathayam Law. The decision proceeded on the authority of two decisions of their Lordships of the Judicial Committee which laid down that the law governing the parties is one of the circumstances to be taken into consideration when ascertaining the intention of the donor. As pointed out in the judgment of one of the Judges who made the reference to the Full Bench the presumption was arrived at in consideration of what were known to be the notions and wishes of persons in the possession and also of the ordinary incidents of property in the district. This view was accepted by the Full Bench of four Judges two of whom, Muthuswami Iyer and Wilkinson, JJ. were well acquainted with Malabar and that it was well founded is suggested by the fact that the decision has not only been accepted but has been given a considerable extension in the neighbouring State of Travancore as pointed out during the argument by my learned brother speaking from his experience as Chief Justice of that State.' The character of gifts by a Nair male came up for consideration before this High Court in Padmanabhan Nair v. Kalliani Amma (1950 TCLR 449). There the entire case law on the point is dealt with. In Para.5 of the judgment it is observed:- 'In order to appreciate correctly the application of S.41 of the Nair Act in the matter of construction of gift deeds executed before Act I of 1088 came into force, it is worth while to look into the pre existing law in regard to Makkathayam gifts when Act II of 1100 came into force. From very early times courts in Travancore treated property acquired by gift from the father or the husband as the sub-tarwad property of the donees and of their thavazhi. The earliest decision on the subject is Narayanan v. Parvathi Nangeli, where Narayana Pillai and Kunhiraman Nair, JJ. observed as follows:- 'Gifts by the father known in Travancore as Makkathayam and in British Malabar as Puthravakasam are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of gift, though usually registered or acquired in the name of the mother, are held by the mother and children in common under the management of the mother or the next senior competent male or female among the donees. The manager of such property acts for the benefit and as trustee of all parties interested in the property and is commonly allowed the same powers and privileges as the karnavan of a tarwad.' In another portion of the judgment the learned Judges observed:- 'The intention of the father of a Marumakkathayam family who makes the provision for the adequate maintenance of his children, and their mother by giving them landed property is that the donees should enjoy the property in common by taking the usufruct of the property jointly and that the property should, in all respects, be subject to the incidents of other similar property held by them as members of the tarwad. This intention has invariably been respected by the people themselves, and has come to be regarded as usage. We do not see why the Court should refuse to respect the well known usages of the country.' This decision based as it was on the well known usage of the people was uniformly followed in later decisions.' The principles laid down in the aforesaid decisions are equally applicable to the Ezhavas as has been held in Kunjukunju v. Padmanabhan Nair (8 DLR Travancore - Cochin 501). There the nature of gifts by an Ezhava before the coming into force of the Ezhava Act came up for consideration. At page 502 it is observed as follows:- 'These acquisition were made long before the Ezhava Act (Act 3 of 1100 of Travancore) came into force. Items 1 to 5 in the plaint schedule are therefore Makkathayam properties obtained before the passing of Ezhava Act. Under the rules of Marumakkathayam Law governing the parties such Makkathayam properties have in the absence of evidence to the contrary to be treated as the tarwad properties of the donees and of their thavazhies. There is absolutely no evidence to the contrary in this case. Therefore as observed in Aiyappan Raman v. Velayudhan Krishnan (13 TLJ 452 at 460): 'The donees and the defendants of the female donees in the female line how-low-soever constituted a sub-tarwad, partaking of the character and incidents of an ordinary tarwad. Naturally therefore all the members of such a tarwad, including the children and grand children, acquired vested rights in the property.' Properties acquired out of paternal funds which, as pointed out above, have sub-tarwad character can be only sub-tarwad properties. So we hold that in the case of an acquisition by a Marumakkavazhi Ezhava brother and sister before the date of the Ezhava Act of Travancore, with funds that belonged to their father the presumption will be that they acquired the property for the sub-tarwad constituted by them and not as tenants in common.
(3.) As pointed out before, here Ext. A right was acquired out of paternal funds. Hence it follows that it was clearly a sub-tarwad asset which the first defendant karnavan by himself had no right to alienate or deal with when there was the first plaintiff in their sub-tarwad. It hence follows that all the deeds executed by the first defendant are invalid and not binding on the sub-tarwad. The decree and execution proceedings arising from such transactions also are ineffective as against the sub-tarwad. So the plaintiffs' right to get the decree in OS No. 120 of 1115 and subsequent proceedings based upon the same as well as the deeds executed by the first defendant cancelled is to be upheld. Thus the plaintiffs are entitled to all the reliefs prayed for in the suit.;

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