NEELATHUPURA SHAIKOYA Vs. MONTHRAPALLIPADIAPURA ATTAKOYA ANDORTH ISLAND
HIGH COURT OF KERALA
MONTHRAPALLIPADIAPURA ATTAKOYA ANDORTH ISLAND
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(1.) Defendants 5 to 8 in O.S.No.6 of 1982 on the file of the Sub Court, Lakshadweep are the appellants herein. The suit is filed by the plaintiff to declare that the gist deed executed by the first defendant in favour of defendants 5 to 8 is invalid and not binding on the plaintiff s thavazhi and for perpetual injunction against the defendants not to do anything on the basis of the gift deed and also for permanent injunction against defendants 1 to 4 from transferring the plaint schedule properties or other tharwad properties by way of executing gift deeds, assignments, lease, etc.
(2.) As per the plaint averments, the plaint schedule properties are the ancestral properties of Biyyammada tharwad of which the plaintiff, defendants 1 to 4 and 9th defendant are members. There are four sakhas to the Biyyammada tharwad and as per the agreement each sakhas are enjoying the income from the coconut trees in the Belliyazchu properties of the common tharwad as per a maintenance arrangement. Originally there were only three sakhas known as Biyyammada, Pokker Athiyammada and Monthrappalli. Subsequently Monthrappalli sakha was divided into two sakhas known as Monthrappalli and Monthrappalli padipura. The income of Monthrappalli sakha was then enjoyed by the above two sakhas. Though these four sakhas had the right to enjoy the income from the coconut trees and to plant new coconut trees and other improvements, the common tharwad properties had never been partitioned. When a sakha became extinct, the coconut trees set apart will revert back to the remaining sakhas. The Biyyammada sakha became extinct and the coconut trees set apart to that sakha were divided among the remaining sakhas. Similarly when Pokkar Athiyyammada became extinct, the coconut trees set apart to that sakha devolved on the remaining sakhs. There is no right of alienation of the common tharwad properties. There were suits when some members on earlier occasions attempted to alienate the properties and hose suits have been compromised accepting custom of the Islands. There were three Razi decrees in the year 1912, 1919 and 1933. As per the Razi decree, no one has any right to alienate the properties. Hence the suit is filed for declaration that the gift deed is not binding on the plaintiff s sakha and for an injunction against defendants 5 to 8 from doing anything in the property on the basis of the gift deed.
(3.) Defendants 1 and 5 to 8 filed a joint written statement denying the averments in the plaint. They denied that Biyyammada tharwad is a common tharwad and other sakhas are sakhas of Biyyammada tharwad. The allegation that the common tharwad properties were not partitioned and there were only arrangements for the purpose of enjoyment of the coconut trees as maintenance arrangement also was denied. The averments that the custom of the Island is that when one sakha became extinct, the coconut trees allotted them will revert back to other sakhas is denied. The suit with respect to Pokker Athiyyammada is still pending. The alleged proceedings with respect to Biyyammada and Pokker Athiyyammada are not binding on defendants 1 to 8 or the plaint schedule properties. Defendants 1 to 8 are not parties to the suit regarding Pokker Athiyyammada. The properties exclusively belonged to Monthrappalli tharwad consisting of defendants 1 to 4. The properties now in the possession of defendants 5 to 8 as per the gift deed executed by the first defendant at which absolutely belongs to him. The properties are partitioned as per partition deed dated 7.12.1980 among members of Monthrappalli tharwad. After partition, the respective parties are in absolute enjoyment of the properties allotted to them as owners. The first defendant has exclusive right in respect of the properties set apart to his share as per partition and he has absolute right of disposal. While so he had gifted the properties to defendants 5 to 8 on 10.3.1982. Monthrappalli and Monthrappalli Padippura tharwads have been orally partitioned in the year 1935. Plaint schedule properties exclusively belonged to Monthrappalli tharwad consisting of defendants 1 to 4. There is no custom as alleged in the plaint. As per the custom, the properties allotted as per partition can be disposed of by the allottees and the last surviving member can alienate the properties. From time immemorial there is a custom of out right partition. The Monthrappalli sakhs to which defendants 1 to 4 belonged, have absolute right of disposal of the properties as per custom and law of the Island. The other members of Monthrappalli Padippura are necessary parties and the plaintiff alone cannot maintain the suit.;
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