ACHUTHAN NAIR Vs. CHINNAMMU AMMA

JUDGEMENT

(1.) This appeal by certificate raises the question whether a certain property, described as Chalakkode property, is the property of the Tavazhi of which the appellant and his mother are members or the separate property of the appellant.

(2.) Plaintiffs in O. S. No. 108 of 1948 in the Court of the Subordinate Judge, Palghat, and the defendants in the said suit are members of a Malabar tavazhi; originally it was a branch of a tarwad, but separated itself from the said tarwad on July 13, 1934 under a decree in a partition suit. The said tavazhi owns a number of properties. The plaintiffs filed the suit against the tavazhi, represented by its manager and others, for arrears of maintenance due to them and for other reliefs. In the plaint it was alleged that the said Challakkode nilam property was the property of the tavazhi and, therefore, they were entitled to maintenance from the income of the said property also. The defendant in their written-statement denied that the said property was the property of the tavazhi, but alleged that it was purchased from and out of the private funds of defendant 1 and her son, defendant 4. One of the issues raised was whether the property referred to in paragraph 5 of the plaint was tavazhi property from which maintenance could be claimed. The learned Subordinate Judge held that the said property did not belong to the tavazhi but it was the personal property of defendants 1 and 4. In the result in giving a decree for maintenance, he did not take into consideration the income from the said property. On appeal a Division Bench of the Madras High Court, having regard to the relevant presumptions under the Malabar law, held that the said property belonged to the tavazhi; in the result, it allowed the appeal and remanded the suit to the Court of the Subordinate Judge for fixing the rate of maintenance after taking into account the income from the said property also. The 4th defendant, after obtaining the certificate from the High Court, has preferred the present appeal to this Court against the judgment of the said Court. In this appeal, the plaintiffs, the first defendant and other defendants have been impleaded as respondents.

(3.) The only question in the appeal is whether the said property is the property of the tavazhi or is the self-acquired property of the first respondent and her son, the present appellant.