KRISHNAN NAMBIAR Vs. RAMUNNI NAMBIAR

JUDGEMENT

(1.) This Second Appeal arises out of a suit for partition of a Malabar Tarwad known as 'Kuttambeth tarwad', of which plaintiffs 1 to 3, defendants 1 to 80 and 82 are the members. Defendants 1 to 36 formed one branch of this tarwad usually referred to as 'Chalapurath tavazhi'. This tavazhi claimed that a portion of plaint schedule item No. 11 and items Nos. 21 and 25 to 48 belonged separately to the tavazhi. According to the plaintiffs these properties are in the possession of the tavazhi only under a maintenance arrangement, and this action being one for general partition of the entire tarwad assets these properties are also to be included in the partition. The learned Munsiff found that there is no satisfactory evidence, oral or documentary in proof of the maintenance allotment to the tavazhi. He considered the conflicting claims of the parties to the title of the abovesaid items and held items 26 to 29, 31, 33 to 35, 37, 38, 40 to 46 and 48 to be the absolute properties of the tavazhi over which they had also perfected their title by adverse possession. The rest of the suit properties were held to belong to the tarwad, and as such partible among the plaintiffs and defendants 1 to 80 and 82. Obviously this decree indicates that the tavazhi is not divided off from the tarwad. Plaintiffs 1 and 2 appealed before the District Judge of North Malabar as regards the properties excluded from partition; and the 2nd defendant preferred cross objections as regards the properties which his tavazhi claimed as exclusively belonging to them but was not so found by the Trial Court. The learned District Judge found that there is no satisfactory evidence of a specific maintenance allotment of properties to the tavazhi at any particular time.v Since all the disputed properties except items 46 and 48 were registered in the name of the tarwad karnavan at the first settlement, the properties must be taken as having once belonged to the tarwad and subsequently come to the separate possession of the tavazhi who thereafter continued to be in exclusive possession of the same. But such possession being only as members of the tarwad would not confer absolute rights in the properties in the tavazhi. He, however, exempted items 29, 46 and 48 from partition as they were found belonging to the tavazhi itself. This Second Appeal is by the 2nd defendant who, at the time of the appeal, was the karnavan of the Chalapurath tavazhi. He having died, the next karnavan of the tavazhi, viz., the 18th defendant was recorded as his legal representative and was transposed as the supplemental appellant in this case.

(2.) It is significant to note that neither before the District Court nor in this Court, was there a contention that the Chalapurath tavazhi has been divided off from the Kuttambeth tarwad. There was no challenge of the decree of the Trial Court to divide the properties into 84 shares as among the plaintiffs 1 to 3 and defendants 1 to 80 and 82. It is also found that all the disputed properties that were not excluded by the lower appellate court were registered at the first settlement in the name of the karnavan of the Kuttambeth tarwad under Ext. A1 pattah implying therein that these properties were properties of the tarwad. No document of acquisition with regard to any of these properties has been produced by either side. Therefore the properties must be regarded as the ancestral properties of the tarwad. No doubt these properties are in the possession of the Chalapurath tavazhi. Possession of tarwad properties by a junior member or a tavazhi in the tarwad can only be under a maintenance arrangement or as tenants or encumbrancers under the tarwad. There is no case that the Chalapurath tavazhi was holding any encumbrance or tenancy under the tarwad in respect of the disputed items. As such the possession of the tavazhi in these properties can only be as allottees for maintenance, though the specific event, or transaction, of such allotment, with its details, has not been proved in this case. If the possession of the tavazhi of the abovesaid items is only as maintenance allottee, it is not disputed that the properties have to be included among the partible assets and divided among the parties in this case.

(3.) To make out the title of the tavazhi in the disputed items, the learned counsel for the appellant relied very much on the facts that at the resettlement pattah for the disputed items was registered in the name of the Chalapurath tavazhi, that the tavazhi has been in exclusive possession of these properties and that it had been dealing with the same for a considerable length of time and had been successfully resisting attempts on the part of the members of the Kuttambeth tarwad to oust the tavazhi from these items. These would not rebut the presumption that the possession of tarwad properties by members of the tarwad in the absence of any special rights, must only be as maintenance allottees. The holder of a maintenance allotment under the Marumakkathayam Law has a right to the exclusive possession of the properties allotted, and even the karnavan cannot disturb them from their possession and enjoyment of the allotted properties except under an alternative arrangement for maintenance or for partition. Such right of possession has been held to be an alienable right. See Damodara Menon v. Ramakrishna Aiyar ( AIR 1925 Mad. 624 ). So, the dealings by way of leases, counter leases or kanoms of the disputed properties by the tavazhi cannot indicate an absolute right in the properties in the tavazhi. If the properties have been in exclusive possession of the tavazhi it is also not impossible for them to take a pattah for those properties in their own name. That can be secured as members of the tarwad in possession of the properties.