KUNHANANDAN NAMBIAR Vs. KUNHAPPA NAMBIAR & OTHERS

JUDGEMENT

(1.) THIS appeal was preferred by the first defendant, the karnavan of Kalliatt tarwad against a preliminary decree for partition of its assets. One of his contentions in the suit was, that some of the properties in B schedule of the plaint belonged to five private devaswoms which are owned by the tarwad and of which he, as the karnavan was the ooralan, and that they are not partible. This contention was repelled by the Subordinate Judge at Tellicherry by whom the suit was tried. In this appeal, the first defendant had reiterated this contention. On his death his widow and children were impleaded as additional appellants 2 to 12. Afterwards, the 122nd defendant who had been impleaded in this appeal as the 121st respondent and who was next in succession to the karnavan -ship and who claimed to be the next ooralan, applied to be transposed as an appellant to enable him to press the contention of the first defendant as to the partibility of the aforesaid properties. The transposition has been ordered by us on C. M. P. 4814 of 1959 and he has been impleaded as the additional 13th appellant. His learned counsel pressed this appeal only with regard to the portability of these properties. The devaswoms claimed by the 1st defendant to belong to the tarwad are, Kalliatt, Mamanikunnu, Perummanna, Varayilkavu and Kavinisseri. The learned counsel for the 13th appellant did not press his case with regard to the properties claimed to belong to the last two of these devaswoms, which may therefore be left out of account. Of the others, the most important is the Kalliatt devaswom; most of its properties were stated to have been obtained by it or on its behalf under various documents of acquisition. The first defendant had specified the items of properties as belonging to the devaswom in paragraphs 27 and 28 of his written statement. By I. A. 3520 of 1951, the first defendant applied for the amendment of paragraph 27 by the inclusion of other properties also as belonging to the devaswom and this was ordered. We called for the original of the above application and the order thereon and have perused the same. We are satisfied; that the effect of the amendment was to include the additional properties also, as those claimed by him to belong to the devaswom, though, as seen from the original written statement in Malayalam and the printed written statement in English, the amendment is incorporated in the wrong place in paragraph 27. It has to be taken, that the claim of the first defendant extends also to the additional properties so included. It was brought to our notice at the hearing, that the documents of acquisition relied on for the 13th appellant might take in more properties than had been claimed by the first defendant himself; on this, we hold that the 13th appellant standing in the shoes of the first defendant cannot be permitted to claim any property in addition to what had been claimed in paragraph 27 as amended and in paragraph 28 of the first defendant's written statement. It may be mentioned, that though the properties covered by the documents of acquisition have been specified by the first defendant in his evidence with reference to the plaint schedule and had been noted by the learned Judge in his judgment, in the view which the learned Judge took on the merits of this controversy, it did not become necessary for him to determine whether the items in the documents corresponded to the items mentioned in the plaint schedule. In considering these documents, we propose to refer to the items mentioned in them; if at a later stage of the proceedings in the Court below, the parties are at variance as to the identity of the properties covered by these documents with the items specified in the schedule of the plaint, it shall be open to the Court at the time of passing the final decree to specify the items in the plaint schedule in terms of the finding which are being recorded in this judgment. With these observations we shall now proceed to consider the documents as far as possible in their chronological order.

(2.) EXT . B61 dated December 3, 1877, is an otti in favor of Kalliatt Kammaran Nambiar described as the ooralan of Kalliatt devaswom for a sum of Rs. 1000/ -. It stated specifically, that the otti was being granted to the devaswom and that the mortgage amount belonged to it and the devaswom was directed to pay the dues periodically to the jenmi. Clearly this was an acquisition for and on behalf of the devaswom; it is said to relate to five items of the suit properties. Ext. B62 dated May 13, 1885 is an assignment of jenmom right to Kammaran Nambiar described as ooralan of Kalliatt devaswom. It recited prior possession with Kammaran Nambiar on kanom and kuzhikanom for Rs. 40/ -. A payment of Rs. 150/ - was made to the vendor on the date of the document which was for a consolidated sum of Rs. 190/ -. The document having been taken by Kammaran Nambiar as Ooralan and the prior right having become merged in the larger right acquired, we hold that this acquisition including the prior right enured to Kalliatt devaswom.

(3.) EXT . B 65 dated February 10, 1908, is the next document of acquisition, being a sale deed by one Chaladath tarwad to Narayanan Nambiar of Kalliatt tarwad, who was described both as karnavan of the tarwad and Ooralan of Kalliatt Devaswom. It was for items 1 to 6 and one -half of items 7 to 15 in that document, for a total consideration of Rs. 26,540/ - There had been an earlier mortgage under Ext. B60 of the year 1872 in favor of one Kammaran Nambiar for a sum of Rs. 6,980/ -; It recited earlier documents taken by a prior karnavan of the tarwad and by Kammaran Nambiar and consolidating all these, including Ext. B60, the sale deed, Ext. B65 recited the prior otti and puramkadaom rights in favor of Kalliatt tarwad at Rs. 11,876/ - It may be mentioned here, that items 1 to 9 of Ext, B60 corresponded to items 7 to 15 in Ext. B65. Whatever construction is possible on the terms and provisions of Ext. B60 and whatever ambiguity may arise therefrom, must be deemed to have been superseded and cleared by Ext. B65, by which the prior otti and puramkadam right of the tarwad was settled at Rs. 11,876/ -. The operative part of Ext. B65, that Kalliatt devaswom may enjoy the properties conveyed on jenmom must be understood subject to the above right and to relate only to items 1 to 4 on full right and to the equity of redemption over items 5 and 6 and one -half of items 7 to 15 in that document.