Decided on March 08,1967



- (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 Ext. P1, 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 Ext. D1 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 Ext. 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 8 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, as been sold to her under Ext. P1 by the 13th defendant, and therefore the alienation under Ext. D1 to be unchallengeable by the plaintiff and defendants 2 to 8. The Subordinate Judge, who tried the case, held Ext. P1 to be a gift within the ambit of S.22 of the Travancore Nayar Act, 1100, enuring to plaintiff and defendants 1 to 8 equally and, as Ext. D1 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 Ext. P1 to be not a gift but an assignment for consideration enuring to the 1st defendant alone, and therefore the plaintiff to have no interest in the suit properties and dismissed the suit. Hence this second appeal by the plaintiff and defendants 6 to 8.
(2.) Ext. P1 recites that the properties involved therein are encumbered under three hypothecations for an aggregate amount of Rs. 6797.75p. Though the remainder is expressed to be worth Rs. 202.25p. 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 Ext. P1 for the remainder of property over the encumbrances and the same is not collected from the transferee, either directly or indirectly, the transfer under Ext. P1 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.
(3.) It is contended for appellants that the properties given under Ext. P1 had been converted into tarwad properties under Ext. P3, 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 Ext. P1, 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 affect only the properties specified to have been so converted in Ext. P3 which do not include the suit properties. The fact that certain specified properties among those acquired under Ext. P1 have been substituted for certain tarwad properties alienated for the benefit of the parties would not show that other properties acquired under Ext. P1 have also become tarwad properties. The argument fails.;

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