KUTTY KOCHU Vs. RAMAN NARAYANAN AND ORS.

JUDGEMENT

(1.) THE 5th Defendant is the Appellant in this second appeal. The suit is to set aside a mortgage deed and for recovery of property. The Plaintiff's case is that the Plaintiff and Defendants 1 to 3 belong to an undivided Ezhava tarwad. There was an udampady in the tarwad on 29 -8 -1089 which is marked as Ex. B. Under that udampady properties belonging to the tarwad were divided equally among four sakhas for enjoyment. While the properties were being so enjoyed by the four sakhas one Mathevan Padmanabhan, the senior member of one of the sakhas, executed the plaint mortgage, Ex. A, on 26 -4 -1110 for Fs. 400 in favour of Defendant 4. According to the Plaintiff Mathevan Padmanabhan was not competent to execute the document, there was no consent of the members of the other three sakas for the execution of the mortgage, and the document is not supported by consideration and tarwad necessity. The Plaintiff therefore prays for the cancellation of Ex. A and for recovery of property on behalf of the tarwad.

(2.) DEFENDANTS 4 and 5 contested the suit. They contended that Ex. B was a partition and not a mere maintenance arrangement, that, in any case, by course of conduct the four branches have assumed a status of division, that Mathevan Padmanabhan who was the last surviving member of his sakha executed a gift deed, Ex. I, in respect of his sakha properties in favour of Defendant 5, his wife, that Ex. A is supported by consideration and tarwad necessity and that the Plaintiff is incompetent to impeach the same.

(3.) LEARNED Counsel for the Appellant did not contend for the position that Ex. B is a partition. He admitted that it was only a maintenance arrangement. His case is that from 1092 onwards the four sakhas attained a status of division by course of conduct.