Decided on February 23,1953

3Rd Tavazhi Karnavansthi Pappikutty Appellant
2Nd Tavazhi Tarwad Karnavan And Manager Sankunni Nayar Respondents


Ramaswami, J. - (1.) THIS is a second appeal which has been preferred against the decree and judgment of the learned Subordinate Judge of Ottapalam in A. S. No. 100 of 1948 confirming the decree and judgment of the learned District Munsif of Chowghat in O. S. No. 11 of 1947.
(2.) THE facts are: The plaintiff and defendants 1 to 15 are members of one Kanakkasseri tarwad. In a partition in the tarwad evidenced by Ex. A. 1 dated 26 -8 -1955, the tarwad properties were put in possession of various thavazhis. The plaintiff is a member and karnavathi of the 3rd tavazhi. Defendants 1 to 12 form members of the 2nd thavazhi while defendants 13, 14 and 15 each represent one unit. According to the terms of the partition deed (Paras. 3 to 6) certain items scheduled as schedule I, which are the plaint items, are set apart in common to be kept in possession by the second thavazi under certain conditions. The conditions are that the second thavazhi has to, from out of the income of these items, pay Rs. 25 -8 -0 to the then karnavans ten days before the due date of the performance of certain ceremonies. The ceremonies are also detailed in the I schedule. They include the Thiruvathira Oottu in the Kazhuvilangu temple, Dharmadeva Pooja, Samkrama Pooja and Pooja in the serpent grove and also three "sradhas" of three deceased karnavans of the tarwad. The total expenses of all these ceremonies is fixed at Rs. 25 -8 -0 and the expenses for each is also given in the I schedule and these amounts have to be paid ten days before the ceremonies, to the karnavans. The karnavans have to perform the ceremonies and all the members are entitled to be present and witness the ceremonies. The other conditions are that none of the trees in the I schedule be cut, sold or damaged by the second thavazhi. The last condition is that the I schedule properties must not be transferred possession of by the thavazhi. The plaintiff complains that all the three conditions laid down in Ex. A. 1 have been violated by the thavazhi and that consequently she is entitled to recover possession as one of the members of the. tarwad. If it is found that there has been a breach of the conditions there is no doubt that the plaintiff can get possession as per the term's of Ex. A. 1. Defendants 1 to 5 deny that any breach has been committed by them, their contention being that they themselves have performed all the ceremonies under the directions of the karnavans, that they have not cut, damaged or sold any trees, and that no possession has been transferred to them. Both the lower Courts have held that there has been no breach of the conditions in the partition deed which made the defendants liable to surrender possession of the suit properties and hence this second appeal by the defeated plaintiff.
(3.) IT is contended by the learned advocate for the appellant Mr. Nambiar that there is no compliance with the terms of the partition deed and the trust created therein in regard to the performance of these ceremonies, if the sum of Rs. 25 -8 -0 is not paid Over to the karnavan or in the event of his being a pauper to the seniormost solvent anandravan ten days before the ceremonies and ensuring that these ceremonies are performed and that it is no answer to say that on account of the disruption of the tarwad there is no karnavan as such to be entrusted with the due performance of these ceremonies. In my opinion, both these contentions are correct and I shall deal with them in the next succeeding paragraphs.;

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