Decided on May 23,1968



- (1.) These appeals arise out of O. S. No. 294 of 1960 on the file of the Munsiffs Court, Kanjirapally. S. A. No. 1569 of 1964 is by the 12th defendant; and the other appeal is by the 10th defendant. The plaintiffs are eight minors; and the suit was instituted by one Madhavan Pillai, who is an uncle of the 1st plaintiff, as next friend of the minors. Defendants 2 to 8 and the 1st plaintiff are the children of the 1st defendant. The next friend, Madhavan Pillai, ana the 10th defendant are brothers of the 1st defendant. Plaintiffs 2 to 4 are the children of the 5th defendant; and plaintiffs 5 to 8 are the children of the 3rd defendant. They belong to the Nayar community, and are governed by the Travancore Nayar Act 2 of 1100. The main relief claimed in the suit is a declaration of the title and possession of the plaintiffs' tarwad for the two items of immovable properties described in the plaint schedule. Item No.1 is a garden land in Sy. No. 404/1, 2 and 4 in Cheruvally Village, Kanjirapally Taluk, having an area of 1.40 acres. Item No. 2 is a one third share in a residential building situate in the adjoining land bearing Sy. No. 404/3 in the same Village.
(2.) The allegations in the plaint, in so far as they are relevant for the decision of these appeals, are the following. The plaint properties belonged to the 1st defendant's tarwad. There was a partition in the tarwad in 1102 as per Ex. P 1. In that partition, the 1st defendant's tavazhi got these properties; and accordingly, they belonged to the tarwad consisting of defendants 1 to 9 and the plaintiffs. As the 1st defendant and her children were residing far away from the properties, and as her mother, Gouri Amma, had not sufficient means for livelihood, she was allowed to take the income of the first item of the plaint properties. Gouri Amma was also residing in the building mentioned as item No. 2. She was taking the income with the help of the 10th defendant; and after her death in 1132; the 10th defendant has been continuing his possession of item No. 1 as a care taker. The land in which the building mentioned as item No. 2 is situate along with a one third share in the said building fell to the share of one Meenakshi Atnma under the partition, Ex. P 1. The 11th defendant, who is the 10th defendant's wife, purchased the said land and the one third share in the building from Meenakshi Amma. Accordingly, defendants 10 and 11 have been residing in the said building. In 1950, defendants 1 and 2 along with others executed a deed of gift, Ex. D 2, giving the plaint properties and other properties to the 3rd defendant and her husband. Ex. D 2 was executed on the assumption that the plaint properties belonged to defendants 1 to 3. As per Ex. D 4 dated 5-10-1960, the 3rd defendant and her husband sold the first item to the 12th defendant. Neither the 3rd defendant and her husband nor the 12th defendant have got possession of the properties as per Ex. D 2 or Ex. D 4. These transactions were not for any tarwad necessity, nor supported by consideration. They are, therefore, invalid and not binding on the plaintiffs' tarwad. On the above allegations, the plaintiffs prayed for -- (a) declaration of title and possession of the plaintiffs' tarwad to the plaint properties; (b) demarcating the boundary of the first item from the land lying on the eastern side; (c) an injunction against the 12th defendant from reducing to his possession the first item, and against the 10th defendant from permitting any other person to take possession of the said property; and (d) relieving the 10th defendant of his rights in the first item as care taker thereof. The plaint was subsequently amended, by which the plaintiffs prayed for the additional reliefs of setting aside Ex. D 2 and D 4 and recovery of possession of the first item from the 12th defendant with mesne profits at the rate of Rs. 50/- per year, in case it was found that he was in possession of the said property.
(3.) The suit was contested by all the defendants, except the 11th Defendants 1 to 9 filed a joint written statement; and the 3rd defendant also filed a separate written statement. The contentions of defendants 1 to 9 and 12 are common. I shall briefly state their contentions. The 1st plaintiff is residing with and. is being looked after by his parents; and his father, who is a Vakil practising at Shertallai, is the guardian of the 1st plaintiff. Similarly plaintiffs to 4 and 5 to 8 are residing with and are being looked after by their respective parents; and their fathers are their guardians. The 3rd defendant and her husband along with their children, plaintiffs 5 to 8, are residing far away from the plaint properties; and it was not possible to manage them. Hence they wanted to sell the said properties; but the 10th defendant, taking undue advantage of the above situation and the fact that he was living in the house mentioned in item No. 2, planned to purchase the said properties for a very cheap price. The 3rd defendant and her husband sold the first item alone to the 12th defendant for a much higher price. The 10th defendant got offended and infuriated; and he attempted to trespass and forcibly take away the income from the said property. Thereupon, the 12th defendant complained to the police; and the police started proceedings against the 10th defendant and his companions under S.107, Criminal Procedure Code, for security for keeping the peace. Madhavan Pillai, who has instituted this suit as next friend, is a brother of the 10th defendant. The next friend is a pauper, and a person hired by the 10th defendant for instituting this suit to save him from the above proceedings. The next friend has no concern with the minors; and the suit is detrimental to their interest. He is not, therefore, entitled to institute this action for the minors. Regarding the tarwad partition, Ex. P 1, they contended that defendants 1 to 3 got the plaint properties to their individual shares, and that they did not form a tavazhi under the said partition. Hence the tarwad consisting of defendants 1 to 9 and the plaintiffs had no right in the said properties, and defendants 1 to 3 are the absolute owners thereof. Regarding the deed of gift, Ex. D 2, they contended that it was executed as part of a family settlement, along with Ex. D 1, a deed of settlement, and that it was valid, even if the plaint properties belonged to the tarwad. It was also contended by them that under the partition deed, Ex. P 1, Meenakshi Amma had only a one sixth right in the building mentioned in the second item of the plaint schedule, that the 11th defendant has got only the said right, and that the remaining five sixth share in the building was owned by the 3rd defendant and her husband as per Ex. D 2. They further contended that the 10th defendant was not a care taker of the first item at any time' that he had no manner of a right in the said property, and it was in the possession of the 12th defendant pursuant to the sale deed, Ex. D 4.;

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