P C UNNIKRISHNA MENON Vs. KOZHIKKOTT NARAYANA MENON

JUDGEMENT

(1.) A few facts alone need be stated for the purpose of this second appeal as only two questions are raised in this appeal though in the suit several other questions also arose for decision. The suit out of which the second appeal has arisen was one for recovery of possession of the suit properties. The plaintiff as karanavan of his tarwad, has sued to recover the properties on the allegation that these properties belong to his tarwad and were set apart to one deceased Ittirarippa Menon and Ittiachi Kutty Amma in a deed of maintenance arrangement in the tarwad. The defendants claim under some disposition alleged to have been made by these persons and it is claimed in the plaint that the allottees were incompetent to make it in view of the fact that the arrangement was only for maintenance. The allottees being dead the plaintiff claims to be entitled to recover the property on behalf of this tarwad. The plea in answer is that the arrangement was not one of maintenance but an outright partition of the properties and therefore the allottees could dispose of them as they liked. The suit properties comprised only of the few items allotted and these are mentioned as properties belonging to the Ayyappan Devaswom of the plaintiff's Kozhikkot tarwad. In regard to some properties other than these Devaswom properties the other branch which partook in the maintenance arrangement or partition as the case may be, executed a surrender in the year 1930, four years after that arrangement. That is Ext. A1. The courts below have found that the arrangement is one of maintenance and in support of that Ext.A1 has been relied on. That has been taken by the predecessors in interest of the defendants and they have unequivocally accepted the arrangement of 1926 as one for maintenance. Therefore the plea that the arrangement is one of outright partition as contended by the defendant cannot be urged with any force.

(2.) It was contended before the courts below that the defendants were the legal representatives of deceased Ittirarappa Menon who is a member of the tarwad and therefore defendants are entitled to inherit to that share which would have fallen to him immediately preceding his death had there been a partition in the tarwad. This is based on S.7 of the Hindu Succession Act 1956. It is urged that Ittirarappa Menon died after the commencement of that Act. It is contended by the defendants that if they are found to be entitled to the share of Ittirarappa Menon they will be coowners in possession of property and another coowner, namely the tarwad, cannot recover the property but can only sue for partition. That a coowner in possession cannot be evicted from the property by another coowner is a position well settled. I need, in this connection, refer only to the decision of this Court in Avanthika v. Sita Bai (1963 KLJ 1164). The courts below seem to think that though this is the general rule, this is inapplicable to a case of possession by persons claiming to inherit a share of a Hindu under S.6 or 7 of the Hindu Succession Act, 1956. Apparently reliance has been placed upon certain passages in Mulla's Hindu Law for this view. In the case of an alienee from a Hindu coparcener the position is apparently different. Mulla at page 293 of his Treaties on Hindu Law 13th Edition observes in regard to this as follows:

(3.) S.6 of the Hindu Succession Act 1956 reads as follows: