Decided on November 22,1967



- (1.) The dispute in this case is now over a 1/60th share in 3 acres 84 cents of land. Yet the parties have thought it worth while to come up to this court, for which, perhaps, they may be forgiven having regard to the interesting nature of the question raised.
(2.) The property belonged to one Padmanabha Pillai, a person governed by the Travancore Nayar Act. By Ext. P1 dated 20-5-1098 M. E. (4-1-1923 A. D) Padmanabha Pillai gifted the property to his wife, the 1st defendant, and his four children then in existence, namely, the 2nd defendant, Purushothaman by name Prabhakaran (described in the judgments of the courts below as deceased, though I am told he is very much alive), Sivan and Chembakakutty. No intention to the contrary within the meaning of S.22 (1) of the Nayar Act was pleaded, and therefore it follows that the 1st defendant and her four children took the property in equal shares as tenants in common. Subsequent to the gift, another child, namely, the 3rd defendant, was born to the 1st defendant. It is obvious that this child got no share in the property by birth, and the 1st defendant's claim that she (the 3rd defendant) got a 1/6th share is obviously unsustainable and cannot conceivably be read as a plea to the effect that she and her children took the property gifted as a thavazhee. Two of the 1st defendant's children, Sivan and Chembakakutty, died unmarried. So far as the son, Sivan's, 1/5th share was concerned that devolved on the 1st defendant in her individual right under S.13 of the Nayar Act. And so far as the daughter, Chembakakutty's 1/5th share was concerned that devolved under S.18 of the Act on the 1st defendant's thavazhee. There being no plea that the 1st defendant's children were divided from her, it seems to follow that the true position is that the 1/5th share of Chembakakutty devolved on the 1st defendant's thavazhee as a joint family, in other words, on the 1st defendant's thavazhee tarwad or subtarwad as it is often described. (Under S.18 of the Nayar Act, on the death of a Nayar female leaving no lineal descendants surviving her, the whole of the self acquired and separate property left undisposed of by her at her death shall devolve on her mother's thavazhee. The word, "thavazhee" used in relation to a female means a group of persons consisting of that female and her issue howlowsoever in, the female line, or such of that group as are alive that is what the definition of the phrase, "thavazhee" of a female" in S.2(3) of the Act really means; the phrase as such is not used anywhere in the Act, and, in this connection, comparison may profitably be made with the definition of "tavazhi" in S.3(j)(1) of the Madras Marumakkattayam Act. S.18 does not say that the property shall devolve on the members of the mother's thavazhee as tenants in common. The group of persons composing the mother's thavazhee as defined takes the property, and it follows that if this group is an undivided group, in other words, a joint family, it takes it as a joint family, whereas, if the members of this group are divided, then they take the property in severality). There was thus no question of Prabhakaran, the precise quantum of whose alienable interest in the suit property is the question for decision he sold what he described as a 1/3rd share to the predecessor of the plaintiffs by Ext. P2 dated 29-7-1124 (13-3-1949) having any alienable interest in the 1/5th share of Chembakakutty which devolved on the 1st defendant's thavazhee as a joint family so that he was in truth competent to alienate only the separate 1/5th share he got under his father's gift." (Even assuming that Chembakakutty's 1/5th share devolved on the members of the 1st defendant's thavazhee as tenants in common, there was no question of a finding to the effect that Prabhakaran had the 1/3rd share he claimed in the property. For, there was neither pleading nor evidence that the 3rd defendant was conceived only after Chembakakutty's death so that it would appear that she also would be entitled to a share in Chembakakutty's share, the burden being on the plaintiffs to establish their right to the 1/3rd shard they claimed. In other words, Prabhakaran would be entitled only to a 1/4th share in Chembakakutty's 1/5th share, the number of members in the 1st defendant's thavazhee at the time of Chembakakutty's death being for, namely, the 1st defendant herself and her three children, the 2nd and 3rd defendant's and Prabhakaran). Unfortunately for the contesting defendants they conceded, probably in ignorance of the true position, that Prabhakaran inherited a separate Share in the 1/5th share of Chembakakutty and Sard that, at best, he would be entitled to a 1/4th share in the entire property; On the basis of this concession it would follow that apart from the 1/5th share he got under Ext. P1 itself (which was all the separate alienable interest he really had) Prabhakaran got a 1/20th separate share on the death of Chembakakutty, making in all a 1/4th separate share which was virtually conceded by the contesting defendants. He got nothing more, and the courts below were wrong in awarding the plaintiffs a 4/15th share on the assumption that the 3rd defendant was conceived only after Chembakakutty's death because the defendants did not prove the contrary, forgetful of the fact that no burden in this regard lay on them.
(3.) The defendants also claimed contribution in respect of an Otti on part of the property and also in respect of the redemption by them of a melvaipa lease in respect of another part. These contentions were rejected by the first court, but the lower appellate court; although saying in its judgment that the contention in so far as the otti was concerned should be considered in thermal decree proceedings, by its decree actually left to be considered in those proceedings only the question of mesne profits. Both sides are now agreed that the question of contribution in respect of the redemption of the melvaipa lease and in respect of the Otti, as also the question of mesne profits, may be determined in the final decree proceedings and I order accordingly.;

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