M. Madhavan Nair, J. -
(1.) FIRST defendant is the wife of the 13th defendant, and plaintiff and defendants 2 to 8 are their children. They are Nayars governed by the Travancore Nayar Act. On Medom 27, 1109 M.E., the 13th defendant conveyed the suit properties and some others to the 1st defendant, as per Ex. P.1, directing her to discharge three hypothecations on the properties and to take the remainder for herself and her children. Subsequently, on Edavom 25, 1118, defendants 1 and 13 sold the suit properties under Ex. D. 1 to Augustine Leone, whose widow is the 9th defendant and children the defendants 10 to 12. The plaintiff, claiming the suit properties to belong to him and defendants 1 to 8 in equal shares, has instituted this suit to cancel Ex. D1 as regards his 1/9 share and to recover separate possession thereof from the alienees with mesne profits. Defendants 2 to 5 by one written statement and defendants 6 to S by another supported the plaintiff in the cause and claimed their shares also to be partitioned and given to them. Defendants 9 to 12 contended the properties to have belonged to the 1st defendant alone, has been sold to her under Ex. P. l by the 13th defendant, and therefore the alienation under Ex. D. l to be unchallengeable by the plaintiff and defendants 2 to 8. The Subordinate Judge who tried the case held Ex. P. 1 to be a gift within the ambit of Section 22 of the Travancore Nayar Act, 1100, enuring to plaintiff and defendants 1 to 8 equally and, as Ex. D. l did not even purport to convey the plaintiff's interests, the plaintiff to be entitled to decree as prayed for. On appeal by defendants 9 to 12, the District Judge, held Ex. P.1 to be not a gift but an assignment for consideration enuring to the 1st defendant alone, and therefore the plaintiff to have no interest is the suit properties and dismissed the suit. Hence this Second Appeal by the plaintiff and defendants 6 to 8. Ex. P. 1 recites that the properties involved therein are encumbered under three hypothecations for an aggregate amount of Rs. 6797 -75 p. Though the remainder is expressed to be worth Rs. 208.25p, nothing further is said about that, and the properties are given absolutely to the 1st defendant who is expected therein to discharge the hypothecations and take the remainder along with her children. The deed does not recite a consideration for the transfer of properties to the 1st defendant. That the liability to discharge the encumbrances on the properties is not the consideration for the transfer is clear from the recital in the deed where a value is set for the remainder over the encumbrances. He who takes an immovable property has to discharge the encumbrances thereon: it is only an incident of the property taken, not a consideration therefor, unless the property is assigned to him for a definite sum with a direction to pay that sum to the encumbrancers. As a definite value is set in Ex. P. l for the remainder of property over the encumbrances and the same is not collected from the transferee, either directly or indirectly, the transfer under Ex. P. l is strictly a gift. I affirm the finding of the Subordinate Judge to that effect and reverse that of the District Judge to the contrary.
(2.) IT is contended for appellants that the properties given under Ex. P. l had been converted into tarwad properties under Ex. P. 3, which is an alienation of tarwad property by the 1st defendant, acting for herself and her children, in conjunction with the 13th defendant, to discharge the encumbrances on the properties gifted under Ex. P. l, wherein it is provided that certain properties of the latter category would be taken by the 1st defendant and her children instead of the former properties lost to their thavazhi. The conversion or transformation so made can effect only the properties specified to have been so converted in Ex. P.3 which do not include the suit properties. The fact that certain specified properties among those acquired under Ex. P. l have been substituted for certain tarwad properties alienated for the benefit of the parties would not show that other properties acquired under Ex. P. 1 have also become tarwad properties. The argument fails. Counsel for the alienees contends that a gift under Section 22 of the Travancore Nayar Act, 1100, enures to the donee and her children by the donor who are alive on the date of the gift, but not to children born to them subsequently and relies on Thiruvedinatha Pillai v. Savithrikutty Amma, 1957 K.L. T. 765. in support therefor. In that decision it is categorically laid down:
According to this section the wife and children take equal shares in the property gifted by the husband to the wife or child or children after Act I of 1088 came into force. The question is whether the children contemplated in this section include those born after the date of the gift. The answer would depend on the point of time when the children acquire shares in such properties, if they obtained shares at the time when the gift is made it is clear that after -born children will not be entitled to shares. The property would in such a case vest in the children as soon as the gift is made and such properties cannot be divested by the birth of other children later. Any child is entitled to obtain a partition of such properties and if after born children are also to get shares, such partition would have to be reopened every time a child is born to the mother after partition. In other words, the vesting of the shares would have to be postponed till the mother dies or passes the child bearing age. The wording of the section does not warrant such a conclusion. The plaintiffs who were born after the properties were acquired are not therefore entitled to shares thereon, even if the properties be treated as a gift from their father.
If the dictum in the above quote is applied to the present case the appellants - -plaintiff and defendants 6 to 8 - -who are admittedly born subsequent to the date of Ex. P. l cannot claim any interest under that conveyance.
(3.) COUNSEL for appellants, relying on Mathew v. Kunjika Bharathi, 1967 K.L. T. 133 F.B. contends that Makkathayam gifts enure to future born children also. I am afraid this contention does not bear force. The dictum in Mathew v. Kunjika Bharathi, 1967 K.L. T. 133 F.B. does not in any way affect the authority of the dictum in Thiruvadinatha Pillai v. Savithrikutty Amma 1957K.L. T. 765. but distinguishes it on the difference in expression of the relevant personal law statutes of the communities concerned. The expression in the Nayar Acts - -The Travancore Act I of 1088 and the Act II of 1100 is that "the property obtained by gift by the wife from the husband shall belong to the wife and each of the children in equal shares." The expression in the Ezhava Act The Travancore Act 111 of 1100 is that "Makkathayam property (which by definition includes property obtained from the husband by the wife by gift shall be liable to be divided among the wife and each of the children in equal shares." (Both the statutes are expressed to be subject to contrary intention expressed in the instrument of gift.) It must be remembered here that under the pristine (pre -statute) law of both the communities Makkathayam property belonged to the thavazhi of the donee, with all the incidents of a tarwad property attached to it and as such all members of the thavazhi, irrespective of their date of birth, became interested therein and if ever it was partitioned it would be among all the members of the thavazhi on the date of such partition. Section 41 of the Nayar Act, 1100, preserves the old law for gifts before 10th Thulam 1088. But in regard to subsequent gifts a change was made by Section 22 of the Nayar Act that such property shall no more belong to the thavazhi of the donee but only to "the wife and each of the children in equal shares." As observed in Thiruvadinatha Pillai v. Savithrikutty Amma, 1957 K.L. T. 765. the moment the gift takes effect the property gifted belongs to the wife and each of the children in equal shares. The vesting under the gift is not on a fluctuating group of persons as in a thavazhi but on particular individuals. Once property has vested in particular persons, no other person can claim to partake it. The Ezhava Act, on the other hand, did nothing of the sort. It did not affect the vesting of the property under the gift and therefore left the law in that regard intact to continue. All that it provides is a mode of partition for such properties. In the pre -statute days, both among Nayars and Ezhavas, compulsory partition of thavazhi property was unknown. The Nayar Act, in providing that Makkathayam property "shall belong to the wife and each of the children in equal shares" has taken it out of the category of joint properties of a thavazhi and made it the tenancy in common of certain specific individuals. No particular provision for partition of such property is then needed; for, a statutory provision for partition must concern a right to divide and not to a processual division according to settled rights in other words, must relate to joint properties with fluctuating interests and not to properties held in tenancy -in -common with defined shares. As the Ezhava Act made no change in the nature or vesting of Makkathayam property, it continues to belong to the thavazhi of the donee, but the Act has, in providing for partition of all joint properties -of Tarwad property in Sections 28 to 31, and of Makkathayam property in Section 38 - -enacted that the Makkathayam property "shall be liable to be divided among the wife and each of the children in equal shares". It said nothing about the condition, nature or incidents of Makkathayam property before or till partition, it said only that Tarwad properties may, subject to certain conditions, be divided per capita among collateral thavazhees and members bereft of a thavazhee as such and that Makkathayam properties shall, without any restriction, be liable to be divided per stripes among the wife and children of the donor in equal shares. In the circumstances, the proposition laid down in Mathew v. Kunjika Bharathi, 1967 K.L. T. 133 F.B. for Makkathayam properties among the Ezhavas cannot be applied to Makkathayam properties among the Nayars to whom the dictum in Thiruvadinatha Pillai v. Savithrikutty Amma, 1957K.L. T. 765. applies.;