Decided on December 15,1955



- (1.) Plaintiffs 1 and 2 are the children of one Easwaran Padmanabhan and his wife Peruma Pillai. They had a daughter Chempakakutty and the 3rd plaintiff is her daughter. Besides these three, Easwaran Padmanabhan and Peruma Pillai had two sons Nilakantan and Easwaran. The 3rd defendant is the widow of Nilacantan and the other defendants are his lineal descendants. On the date of suit, the 1st plaintiff was the Karnavan of the sub tarwad of the plaintiffs. The plaintiffs' case was that all the properties in the plaint schedules belonged to their sub tarwad. Item No. 1 in schedule A was alleged to be a property belonging to the sub tarwad of the plaintiffs and the building in it was stated to have been put up by Easwaran Padmanabhan for his children. Item No. 2 in schedule A was stated to be the Makkathayam property of the plaintiffs. The other items were said to have been acquired by Padmanabhan Nilacantan for the benefit of the sub tarwad. Padmanabhan Nilacantan died on 20.2.1113. His wife and children were living in the building in item No. 1. According to the plaintiffs, the defendants were obstructing the peaceful enjoyment of the properties by the plaintiffs and they sought recovery of possession of the properties with mesne profits on behalf of their sub tarwad. Defendants 2 to 7 contested the suit. According to them all the properties belonged absolutely to Padmanabhan Nilacantan. Their case was upheld in respect of all the properties other than items 1 and 2 in schedule A. The plaintiffs were given a decree for recovery of items 1 and 2 in A schedule subject to payment of a sum of 3500 fanams which was due under a mortgage executed by Padmanabhan Nilacantan and which was redeemed by the defendants. The suit was dismissed in respect of the other items. Defendants 2 and 4 to 7 have preferred this appeal from the decree relating to items Nos. 1 and 2. Though the respondents had entered appearance in this court they were neither present nor represented by counsel at the hearing of the appeal.
(2.) The appellant's case regarding item No. 1 may be considered first. This item is a plot of land 4 cents in extent together with the buildings thereon. The defence case according to the written statement was that this item was obtained by Padmanabhan Nilacantan and his brothers under a partition deed Ext. IV, dated 15.10.1108 and that subsequently they divided the property by an oral arrangement whereby each party got the site on which he had put up a building. The building in item No. 1 was stated to have been put up by Padmanabhan Nilacantan. The definite case pleaded in Para.5 of the written statement is that the oral division was effected after the date of Ext. IV. The court below found that the case of oral division was not proved. It was urged on behalf of the appellants that Padmanabhan Nilacantan and his brothers were in possession of specific plots even before the date of the partition deed and that such possession continued even after the date of the partition deed. As the main tarwad itself got divided only under Ext. IV, there could not have been any division among the members of the branch before that date. The evidence on record is insufficient to hold that there was an oral division as pleaded by the defendants. The appellants relied on Ext. V, a sale deed dated 27.9.1107, executed by Padmanabhan Easwaran, a brother of Padmanabhan Nilacantan to the 3rd plaintiff to substantiate their case that item No. 1 belonged to Nilacantan. Ext. V shows that it was only the building that was conveyed by Easwaran and not the site. This shows that even though the building which was sold under Ext. V belonged to Padmanabhan Easwaran, he had no saleable interest over the site. The appellants must therefore fail in respect of the site comprised in item No. 1 in A schedule. As regards the building, it was contended that it could be seen from Ext. IV that the building belonged to Padmanabhan Nilacantan. In describing the various plots allotted to the sharers under Ext. IV, the building purchased by the 3rd plaintiff was described as belonging to her. However, the other buildings were described as the buildings of parties 1 onwards. Ext. IV by itself cannot therefore lead to the conclusion that the building in item No. 1 belonged to Nilacantan. The 2nd defendant who was examined as Dw. 1 had no direct information as to when and by whom the building was put up. All that he was able to say was that he was born in that building. This is not unlikely since Padmanabhan Nilacantan was living there with his wife and children. The building was erected on tarwad property and the evidence adduced by the defendants is too meagre to support the case that Padmanabhan Nilacantan put up the building. The conclusion reached by the lower court in respect of item No. 1 in A schedule must therefore be upheld.
(3.) The case regarding item No. 2 stands on a different footing. The plaintiffs' case is that item No. 2 was conveyed by Easwaran Padmanabhan to his son Padmanabhan Nilacantan on behalf of the sub tarwad while the defence is that Nilacantan got it from his father as his exclusive property and that the sub tarwad had no right over the same. Ext. A dated 22.9.1063 is the deed under which this item was conveyed by Easwaran Padmanabhan to his son Nilacantan. The latter was a minor on that date but he was however the prospective Karnavan of that sub tarwad, being the eldest son. Thus Ext. A is a conveyance by a Marumakkathayee father to his eldest son long before the notion of private property of male members descending from father to children became known to the community. The question for decision is whether this should be deemed to be acquisition on behalf of the sub tarwad of which Nilacantan was the Karnavan. Though Ext. A is styled as sale deed, it is clear from the deed that it was intended as a gift. From very early times, courts in Travancore have treated property obtained by gift or otherwise by the eldest son from the father as property belonging to the sub tarwad of which the donee was the Karnavan. Narayanan Narayanan v. Parvathi Nangeli (5 TLR 116) is the earliest reported decision on the point. It was held: 'Gifts by the father known in Travancore as Makkathayam, and, in British Malabar, as Puthravakasom, are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of this 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 of 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.';

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