NANIKUTTY AMMA Vs. KUNHIRAMAN ADIYODI
HIGH COURT OF KERALA
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(1.) Defendants 2 and 3 are the appellants and the second appeal arises out of a suit instituted by the plaintiffs for recovery of possession of the plaint schedule property after avoiding Ext.A1 lease granted by the first defendant in respect of the same in favour of defendants 2 and 3,Defendants 2 and 3 are the widow and.the son of the first defendant.Though the suit was dismissed by the Trial Court the lower appellate court decreed the same in reversal of the decree of the Trial Court. The plaint schedule consists of two items of properties.It is admitted that the plaintiffs and the first defendant are members of a tavazhi by name Othayoth Tavazhi.The first defendant was the Karnavan of the tavazhi.It is the admitted case of the parties that the plaint schedule items belongs to the tavazhi.Under Ext.A '2 Karar dated 20 -1 -1913 it was agreed that the management of the tavazhi should be carried on by the eldest male and female members of the tavazhi.Subsequent thereto Ext.A3 agreement was executed among the members of the tavazhi on 6 -3 -1940 Under the said agreement properties have been allotted for the maintenance of the members of the tavazhi.The first executant in Ext.A3 is the mother of the first defendant and the second executant is the first defendant.The 6th executant is the first plaintiff and the second plaintiff is the son of the first plaintiff.The suit is instituted by the plaintiffs on the ground that the plaint schedule properties have not been allotted for the maintenance of any of the parties to Ext.A3,they continued to be in the management of the 1st defendant and his mother and Ext.A1 executed by the first defendant in favour of defendants 2 and 3 is not binding on the tavazhi and has therefore to be set aside.The first defendant died after the institution of the suit.
(2.) The learned counsel appearing for defendants 2 and 3 raised before me four grounds.( 1)The plaint properties,have been allotted under Ext.A3 for the maintenance of the first defendant and his mother and 1st defendant is therefore competent to execute Ext.A1 and it cannot be questioned during the lifetime of the first defendant.( 2)The first defendant died after the Hindu Succession Act and his share in the tavazhi properties has developed upon defendants 2 and.3 and their rights arising therefrom should have been taken into account by the courts below(3)Ext.A3 is not a mere maintenance allotment but is a partition deed and the plaint schedule items have been allotted to the share of the first defendant and the plaintiffs cannot impeach Ext.A1(4)Ext.A1 is not an improvident transaction.
(3.) I shall now take up the first Ground.The plaint is based on the ground that there was no allotment of the plaint properties for the maintenance of the first defendant and his mother in Ext.A3 and.they continued to be in the possession of the first defendant and the mother as the senior members of the tavazhi on the basis of Ext.A2.According to the learned counsel appearing for defendants 2 and 3 there was an allotment of these properties for maintenance to the first defendant and his mother.The appellate Judge would find that 'the recitals in Ext.A3 would indicate that the plaint properties were allotted to numbers 1 and 2 of the executants of the documents for their maintenance till their death.'This statement was challenged by the learned counsel appearing for the plaintiffs.After allotting certain properties for the maintenance of some of the members of the tavazhi Ext.A3 proceeds.
.xxx xxxxx xxx... refers to plaint item 1.The learned counsel appearing for the plaintiffs would contend that under the passage above referred to there is no allotment of property for maintenance to the first defendant and his mother.I do agree with this contention.P.W.1 the second plaintiff has also deposed thus: "Item I was set apart for the maintenance of Nos.1 and 2 in Ext.A3 ";
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