ERAVI PILLAI Vs. VALLI AMMA

JUDGEMENT

(1.) This is an appeal preferred by the plaintiff in O.S. No. 10 of 1121 on the file of the Nagercoil District Court. 16 items of properties are involved in the suit, and according to the plaintiff all these items belong to the tarwad of himself and the 1st defendant. These parties belong to the Krishnan Vaka community governed by Marumakkathayam Law and also by the Travancore Krishnanvaka Marumakkathayee Act (Act VII of 1115). It is by virtue of the right of partition conferred by this Act that the plaintiff has sued for partition and recovery of his half share out of the plaint items. The plaintiff had a sister by name Perumal Pillai and their mother was one Kali Amma who had no other children. Perumal Pillai died in the year 1086 leaving the 1st defendant as her only daughter. The 1st defendant was only two years of age at that time. Kali Amma died in the year 1115 and thereafter the plaintiff and the 1st defendant are the only two members in their tarwad. Regarding these facts there is no dispute between the parties. It is also conceded by the 1st defendant that one half of items 1 and 2 and the whole of items 12 to 15 as also the equity of redemption of items 7, 8 and 16 of the plaint schedule belong to the tarwad of herself and the plaintiff and are liable to be partitioned as between them. The remaining half share of items 1 and 2 was also acquired in the name of the 1st defendant under Ext. F dated 21.4.1096. Items 3 to 6 were also acquired in her name under Ext. J. dated 10.10.1104. Items 7, 8 and 16 were outstanding on mortgage from the tarwad and this mortgage right had been taken assignment of in the name of the 1st defendant. Similarly item 9 is a mortgage acquisition made in the name of the 1st defendant, while items 10 and 11 are mortgage acquisitions in the joint names of the 1st defendant, and her grand mother Kali Amma. According to the plaintiff these acquisitions in the name of the 1st defendant were for and on behalf of the tarwad of himself and the 1st defendant and with tarwad funds and that the documents were merely taken benami in the name of the 1st defendant. The 1st defendant, on the other hand, contended that the acquisitions standing in her name belong exclusively to her and that the plaintiff is not entitled to claim any share out of those items. Ext. Q is copy of the gift deed executed by her in respect of items 3 to 10 as also in respect of the half share of items 1 and 2, in favour of the 2nd defendant who is her second husband. The plaintiff has sought to set aside this gift deed on the ground that it is invalid and inoperative; while the defendants maintain that the gift is valid. The lower court has upheld the contentions of the 1st defendant and has found that the acquisitions standing in her name are her separate properties. Accordingly the plaintiff's suit for partition and recovery of one half share in those items has been dismissed and a preliminary decree passed in his favour only in respect of the admitted tarwad properties ie., a half share of items 1 and 2, the whole of items 12 to 15 and the equity of redemption of items 7, 8 and 16. On the basis of such a preliminary decree a final decree has also been subsequently passed.

(2.) The plaintiff's appeal is preliminary directed against the finding in the preliminary decree that the items acquired in the name of the 1st defendant are her separate properties in which the plaintiff is not entitled to claim a share. The sustainability of the final decree passed in respect of the remaining items alone has also been questioned by the plaintiff in this appeal. If the plaintiff succeeds in establishing his claim that the properties acquired in the name of the 1st defendant are also tarwad properties liable to be partitioned as between himself and the 1st defendant, the final decree, which has taken into account only a few of the tarwad properties, must necessarily go and a fresh final decree will have to be passed by allotting shares to the respective parties after a partition of all the items which may be found to belong to the tarwad. Thus the real question for decision in this appeal is whether the acquisitions standing in the name of the 1st defendant were made for her tarwad or whether they are separate properties belonging to her exclusively.

(3.) After examining the nature of the acquisitions standing in the name of the 1st defendant, the lower court has definitely recorded a finding that the consideration utilised for those acquisitions proceeded out of the funds belonging to her tarwad. She has not challenged the correctness of that finding by filing any objection. That finding is also seen to be fully warranted by the evidence on record. The earliest acquisition made in the name of the 1st defendant is the acquisition of the mortgage right under Ext. 9 dated 2.3.1092 when she was only a minor aged 12. On the date of Ext. 9 itself certain properties belonging to her tarwad had been sold under Ext. E for a consideration of 7000 fanams. This sale deed was executed by Mallan Pillai who was the then Karnavan of the tarwad along with the present plaintiff and his mother Kali Amma in her own capacity and also as the guardian of the 1st defendant. One half of the sale consideration of 7000 fanams was satisfied by the vendee by his executing Ext. 9 in the name of the 1st defendant. Thus there can be no doubt that the consideration for Ext. IX proceeded from the tarwad. In fact it was an acquisition made in exchange for the sale of certain items of tarwad properties under Ext. E. Similarly the consideration obtained under the sale deed Ext. A dated 9.5.1096 executed by Mallan Pillai and other members of the tarwad in favour of DW 1 and another in respect of certain other items of tarwad properties, was utilised for acquiring items 3 to 6 and a half share in items 1 and 2 in the name of the 1st defendant. In this document also the 1st defendant was represented by her grandmother Kali Amma as guardian. Ext. A was for a consideration of 28,000 fanams. A few days prior to the date of Ext. A, Ext. F sale deed in respect of the half share of items 1 and 2 had been taken in the name of the 1st defendant for a consideration of 4400 fanams. A nominal amount of 200 fanams alone was paid on the date of the sale deed. Even at that time the 1st defendant was only a minor and was living under the protection of the karnavan of the tarwad. Naturally therefore the sum of 200 fanams paid under Ext. F must have been paid by the karnavan. Ext. A sale deed was executed by the karnavan and other members of the tarwad. The vendee under this document was directed to pay off the balance amount of 4200 fanams that remained due under Ext. F. The vendee accordingly paid off that amount and obtained Exts. G and H release deeds. Thus the acquisition under Ext. F was also made with tarwad funds. A sum of 18,800 fanams out of the consideration due under Ext. A was made good by the vendee by executing the hypothecation bond Ext. I in the name of the 1st defendant. This amount was realised by the plaintiff and his mother Kali Amma by executing the release deed Ext. 2 dated 24.10.1096. They executed this deed as the guardians of the 1st defendant. On the same day this amount of 18,800 fanams together with an additional amount of 200 fanams was invested under another hypothecation bond Ext. 3 taken in the name of the first defendant. The amount was subsequently realised by the 1st defendant on 10.9.1104 by executing the receipt Ext. 7. On the same date the mortgages under Exts. B and C were taken in the joint names of the 1st defendant and Kali Amma in respect of items 10 and 11 for 5500 fanams and 7000 fanams respectively. The balance available out of the amount obtained as per Ext. 7 receipt was utilised for taking the sale deed Ext. 16 or Ext. J in respect of items 3 to 6 in the name of the 1st defendant. Out of the sale consideration of 14,000 fanams due under Ext. J a sum of 7000 fanams alone was paid as ready cash and for the balance the hypothecation bond Ext. E was executed by the present plaintiff in favour of the vendor. This was subsequently released under Ext. L. Thus it is clear that items 3 to 6, half of items 1 and 2 and the mortgage right over items 10 and 11 were acquired with tarwad funds and also with the funds contributed by the plaintiff who had become the karnavan of the tarwad by the time of Exts. E and F.