DEVAKIAMMA Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) BOTH these appeals are against the final decree passed in O. S. 112 of 1114 of the District Court, Quilon. Plaintiffs 9 to 17 are the appellants in A. S. 825 of 1120, and defendants 26, 28, 29, 31 to 40, 77, 78 and 81 to 83 are the appellants in A. S. 251 of 1121. The suit in the lower court was for partition. The parties are governed by the Travancore Nair Act. A preliminary decree had been passed in the case and that had been confirmed in appeal. There was also another suit O. S. 592 of 1101 filed in the Munsiff's court, Quilon, by defendants 71 to 74 of the present case. That suit also was for partition, and there the preliminary decree and the final decree had been passed. The final decree was passed in 1112. But there was a direction in that final decree by the trial court that those defendants who wanted their shares might pay the court fees and apply for the same. Present defendants 1 and 3 had already paid the court fees and the final decree allowed them also their shares. While the matter was pending on the motion of some of the parties, the high Court transferred that suit also to the District Court. In the District court it was numbered as O. S. 77 of 1116. The reliefs claimed by some of the defendants in that case were considered in the present suit O. S. 1112 of 114 and a judgment passed.

(2.) THE matters that arise for consideration in this appeal (A. S. 825/1120) are of a limited character. THEre was an Udampady in the tarwad of the parties in 1077, Ext. A. THE several members of the tarwad were thus in possession of the tarwad properties. THE sub-branch of plaintiffs 9 to 17 were in possession of items 20, 21, 23 to 27 and a portion of item 75 in A schedule. THEy stated that these properties when allotted to their branch were paddy lands, that they converted some of them into garden lands and planted them with cocoanut trees, that the value of these properties was thereby considerably increased, and that they were therefore entitled to the value of improvements effected on these properties. THE respondents opposed these claims put forward by the plaintiffs. Another objection of the plaintiffs was that while item 54 in A schedule was really two acres and 35 cents in extent, the commissioners divided only one acre and 60 cents out of the same so that 75 cents had been left out. THEy stated that this should also be divided, and if no other member was anxious to get a share the excess area might be allotted to them. A third objection related to item 34 in A schedule. Its extent shown in the plaint was 25 cents. THE appellants would say that its extent was really 55 cents and that the whole area should be taken into account. THEy also filed a petition C. M. P. 1177 of 1123 urging certain other reliefs as well. THEy had been allotted 659 cents in A schedule item 75. THEy said that they should be allowed access to the public road from this property. THEre was also a prayer that properties which still remained un-allotted under the final decree should also be allotted to all the parties. By this they meant that the branch of defendants 69 and 70 had become extinct and that the shares which they would have got had they been alive should be distributed among the remaining members of the tarwad. THEse were the only objections that were urged before us at the time of argument.

(3.) THE question whether allottees for maintenance in a marumakkathayam tarwad were entitled to the value of improvements effected by them on the properties allotted to them had come up for consideration in narayana Pillai v. Raman Pillai (29 T. L. J. 220); Narayani Amma v. Lekshmi Amma (30 T. L. J. 754) and in A. S. 664 of 1120 (T ). THEre was also another case, Raman pillai v. Raghavan Pillai (30 T. L. J. 737) where the principle adopted in 29 t. L. J. 220 had been followed. In 29 T. L. J. 220 and A. S. 664 of 1120 (T), the claims of the allottees for maintenance, for value of improvements effected by them on the properties allotted to them had been negatived. Mr. Justice G. Parameswaran Pillai who had written the leading judgment in that case had stated that the properties of the tarwad under such circumstances were in the possession of the several members of the respective branches on behalf of the tarwad and were enjoyed by them as properties belonging to the tarwad. THE improvements were effected on the tarwad property, and while it is possible that equitable considerations may prevail when a rearrangement or re-adjustment is brought about, no claim can be legally enforced against the tarwad to recover the value of improvements effected on the property in the course of such enjoyment, unless there is an express understanding to the effect that such improvements will be compensated for in the event of any disturbance of possession or enjoyment. This principle had been adopted in 30 TLJ 737 and A. S. 664 of 1120 (T ). Mr. Justice Sankarasubba Aiyar who was a party to the judgment in 29 TLJ 220 and 30 TLJ 737 had expressed a contrary view in 30 TLJ 754. 30 t. L. J. 754 does not make any reference to 29 TLJ 220. Though the decision in 30 t. L. J. 737 was after that of 30 TLJ 754, no reference was made to 30 TLJ 754 in 30 TLJ 737. A Division Bench of this Court had considered these rulings in A. S. 664 of 1120 (T) and had adopted the principle laid down in 29 T. L. J. 220. Thus, on the question of law also, the appellants are not entitled to succeed. THEre is also the absence of pleadings on this question. So we do not allow the plaintiffs any compensation for the improvements said to have been effected by them.