NARAYANAN KUTTY NAYAR Vs. KALLIANIKUTTY AMMA

JUDGEMENT

(1.) These appeals arise out of two suits instituted by the plaintiff now deceased, who may referred to as the plaintiff and is represented by two of his children, who are the respondents. O. S. 162 of 1951, the earlier suit was filed in the Crangauore Munsiff's Court for eviction of the two defendants who are the appellants in these appeals from the part of a building alleged to be in their possession as tenants, and O. S. 253 of 1951, the later suit was filed in the Anjikaimal District Court for a declaration of the plaintiff's title and possession in respect of the remaining part of that building, viz., the central room and of an area of 1 acre 40 cents of the paramba on which the building stands. They were both transferred and renumbered as O. S. 190 of 1955 and O. S. 187 of 1955 of the court of the Subordinate Judge at Irinjalakuda and were tried and disposed of jointly. The title of the plaintiff, to the paramba and the building which may be referred to in this judgment wherever necessary as the suit property, has been declared and he has been allowed to recover possession by the subordinate Judge, though the tenancy set up in O. S. 190 of 1955 has been found against. A. S. 601 of 1957 is directed against the decree in O. S. 190 of 1955 and A. S. 602 of 1957 is directed against the decree in O. S. 187 of 1955. It is convenient to refer to the appellants as defendants 1 and 2 according to their rank on the array of the defendants in O. S. 187 of 1955, the first defendant being the wife of the 2nd defendant.

(2.) The parties are Nairs. The plaintiff had three brothers and three sisters, one of his sisters Karthiayani Amma the mother of the 1st defendant having predeceased him, and the other two being Kunjipilla Amma and Madhavi Amma, There was a partition of their properties between the plaintiff, his brothers, the two surviving sisters and the first defendant by Ext. L on Mithunam 6, 1106, in which the plaintiff's mother, who may be referred to as Pappi Amma (senior) and the plaintiff look their share as one group in schedule A. Item 1 in that schedule was the kudiyiruppa which consisted of a paramba and the building thereon, and has been referred to in the evidence as tarwad property though really no property was partitioned as tarwad property. After the death of Pappi Amma (senior), by Ext. III dated Mithunam 5, 1109 the plaintiff conveyed item 1 of A schedule in Ext. L to Madhavi Amma and her two daughters, to the first defendant and her sister Pappi Amma (junior) now no more, and to their sons on account of natural love and affection. Later by Ext. IX dated Karkatakam 12, 1111 the first defendant and her son conveyed the 2/7 share which they had under Ext. III to Kunjipilla Amma. It is the first defendant's case, that Ext. III was executed by the plaintiff to pacify some of the female members and Ext. IX was executed by the first defendant, but at the instance of the plaintiff to pacify Kunjipilla Amma, because they had a grievance that all was not fair with Ext. L. The case of the first defendant is also, that in consideration of her having parted with her right and the right of her son by Ext. IX, the plaintiff orally sold the suit property to the first defendant. The defence to the suits was that the 1st defendant has thus obtained title to the suit property and been in possession as full owner.

(3.) The first and most important question for decision in these appeals is whether the suit property including the building, was orally conveyed to the first defendant as pleaded. The properties divided under Ext. L were those which were said to have been acquired in the name of his mother and one of the brothers and those which had been bequeathed by the plaintiff's father. The evidence is not clear, what the specific objections were of the female members to the partition or who the objectors were, nor is it necessary to pronounce upon the merits of the objections; the evidence is also discrepant when such objections were raised, whether before or after the execution of Ext. L. But the fact that Ext. III was executed by the plaintiff notwithstanding a clause in Ext. L that the properties allotted in schedule A would vest in the plaintiff absolutely after the death of his mother, and after a prior attempt by him to lease that property by Ext. II dated Idavam 10, 1109 had failed, is suggestive that there was grumbling by some of the female members about the allotment, which was patched up thereby. Kunjipilla Amma's exclusion from the benefit under Ext. III and the subsequent transfer in her favour by Ext. IX are indicative, that her grievance came to be redressed only by the latter. There is good reason to think, notwithstanding the protestations of the plaintiff to the contrary, that Ext. IX was executed at the instance of the plaintiff. So far the first defendant appears to be on firm ground, but it seems to me on a balancing of the opposing considerations she cannot put her case higher than this.