SOMAN Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) The plaintiffs, who are the children of Mathevan Lekshmi, an Ezhava woman governed by the Travancore Ezhava Act, III of 1100, instituted the suit out of which this second appeal arises, to set aside a sale deed Ext. A dated Edavam 2, 1112 M.E. executed by their father as their guardian in favour of the first defendant. The properties sold belonged originally to the tarwad of Mathevan Lekshmi and under a partition deed Ext. II of the year 1105 M.E. were allotted in Schedule.6 (b) thereof to Mathevan Lekshmi for discharging two items of tarwad debts with absolute powers of disposition. She discharged one of them and died before she could discharge the other. Ext. A was executed for a total consideration of 7000 fanams, of which a sum of 1900 fanams was applied for the redemption of a mortgage, a sum of 4750 fanams was adjusted towards the discharge of the other tarwad debt, which is evidenced by the decree Ext. VIII, the right to which had become vested in the first defendant, and the balance of 350 fanams was utilised for taking an assignment of a sub-mortgage. The Munsiff set aside Ext. A on the ground, that the properties sold belonged to the tarwad of the plaintiffs and that the father was not their legal guardian and was therefore incompetent to execute it. The Subordinate Judge in appeal held, that the properties did not belong to the tarwad, but were held after the death of Mathevan Lekshmi by the plaintiffs as tenants-in-common, that the father was their legal guardian and that the sale deed was competent and supported by consideration and necessity binding on them. On these grounds he dismissed the suit. Hence this Second Appeal by the plaintiffs.

(2.) There was no dispute that the allotment under Schedule.6 (b) of Ext. II to Mathevan Lekshmi was to her exclusively, and the properties became her own. This was not and could not be controverted. On her death, in accordance with S.18 of the Travancore Ezhava Act, 1100, they devolved on her tavazhi, which under Explanation II of S.19 includes in the case of an intestate-female, for the purpose of Part IV of the Act dealing with intestate succession, the issue of such intestate female how-low-so-ever. A full bench of the Travancore-Cochin High Court in Nanu Divakaran v. Velumpi Nani, 1954 KLT 812 , interpreting Explanation II of S.19 has held, that the word tavazhi in the above context is not used in the sense in which it is generally understood in Marumakkathayam law, but is used as a compendious expression to denote all issue how-low-so-ever both in the female line and in the male line of the intestate female. Since such a tavazhi would be composed of different tarwads, it was also held, that in the absence of any express provision in the Act, the persons referred to by that expression can take the properties devolving on them only as tenants-in-common, and not as joint tenants. I should have regarded this statement of the law by the full bench as furnishing a complete answer to the plaintiffs but Iravi Pillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, 1954 KLT 862 , decided by another full bench was pressed into service for contending, that though Mathevan Lekshmi took the properties for herself under Schedule.6 (b) in Ext. II, on her death they must be held to have acquired the character of tarwad property. The case relied on did not lay down any rule in support of this argument. The majority of the bench held, that property allotted to a Nair female on tarwad partition would be her separate property, but would become the property of her tavazhi on the birth of a child to her. This has nothing to do with the devolution of property of a female in accordance with S.18 of the Travancore Ezhava Act. The allotment under Schedule.6 (b) to Mathevan Lekshmi was not towards her share of the tarwad property, but was to pay off its debts. Two of the plaintiffs were already born on the date of Ext. II. There cannot be a transformation of the character of the property on her death. The devolution of that property is governed by the provisions of S.18 read with Explanation II of S.19 of the Ezhava Act to which there is no counterpart in the Nair Act under which the case cited was decided. The properties of Mathevan Lekshmi having devolved on her tavazhi under S.18 of the Ezhava Act, there is no reason to hold that they were tarwad properties in the hands of the plaintiffs. In accordance with Nanu Divakarans case, the plaintiffs must be deemed to be tenants-in-common and their father was their legal guardian. The objection to his competency to execute Ext. A must therefore fail.

(3.) On the question of consideration and necessity there was no dispute, that the first recital relating to the redemption of a mortgage for 1900 fanams was valid. Ext. VIII decree was a debt of the tarwad which Mathevan Lekshmi had undertaken to discharge. That decree was dated Vrischigam 28,1108, and was charged on properties. On a partition in the first defendants tarwad, the right to Ext. VIII decree was allotted to him and by Ext. A, an amount of 4750 fanams was adjusted in liquidation of this debt, though on that date the amount due under Ext. VIII amounted nearly to 8500 fanams. The third and the last recital represents the sum of 350 fanams for taking an assignment of a sub-mortgage. There is no reason to think that this recital is not supported by consideration and necessity so far as the minor is concerned. It was also stated before me that the original mortgagor had filed a suit for the redemption of the mortgage, impleading the sub-mortgagee and that the amount of the sub-mortgage is now in deposit in court which the plaintiffs could draw. It therefore follows, that the plaintiffs are not entitled to set aside Ext. A. The decree under appeal is right and is confirmed accordingly. The Second Appeal is dismissed with costs.