PARAMESWARA IYER Vs. SIVARAMAN NAIR

JUDGEMENT

(1.) The 2nd defendant appeals. The suit property originally belonged to the 3rd defendant who gifted it under Ext. P. 1 dated 30-1-1109 to his wife, the 4th defendant. Plaintiffs 1 to 4 are the children of defendants 3 and 4. Before the gift, the 3rd defendant had hypothecated the property to the 1st defendant who sued to enforce the same in O. S. No. 152 of 1120 on the file of the District Judge, Alleppey, which culminated in an execution sale of the property in his favour. When the property was about to be delivered possession to the court auction purchaser the plaintiffs have instituted the suit for a declaration that the decree and the execution sale are not binding on them, that the property by virtue of S.22 of the Travancore Nayar Act belongs to them and the 4th defendant as tenants in common, and that the plaintiffs not being made parties to the litigation their interests could not be affected by the court sale. The 2nd defendant, who in the meanwhile got the interests of the 1st defendant in a partition in the tarwad of both, contended that the gift was for the sole benefit of the 4th defendant and that the plaintiffs have no interest in the suit property. The Subordinate Judge found the gift to enure to the 4th defendant and the plaintiffs 1 to 4 as tenants in common and therefore set aside the decree and the execution sale in regard to the 4/5th shares thereof. Hence this appeal by the 2nd defendant.

(2.) S.22 of the Travancore Nayar Act, 2 of 1100, provides that a gift or bequest of immovable property to a wife enures to herself and all her children in equal shares unless there be a contrary intention expressed in the instrument itself. Counsel contends that the recitals in the instrument of gift that the gift was a provision for the maintenance of the donee and conferring powers of disposal on her are only mere reiterations of the normal incidents of the gift and are therefore of no special significance. Normally a gift carries with it the right to enjoy the subject of the gift and its fruits by the donee and a power of alienation absolute in terms. In an ordinary gift therefore a recital to the above effects, viz., entitling the donee to take the usufruct of the property or to alienate the property in whatever manner he pleases is of little significance. The very conveyance in gift involves them. But the gift by a Nayar husband to his wife is not such a normal gift because of the legislative provision in S.22 of the Nayar Act. A gift of the above kind normally does not enure to the donee but gives her only a partial interest in the subject of the gift and gives the other part thereof to her children not named in the instrument. In that context a provision in the deed that the donee named in the instrument is to take the entire profits of the property for herself or empowering her to dispose of the property at her will are not mere reiterations of the incidents of the gift but special provisions which would not have followed the gift otherwise. If the gift enured to the wife and children, it goes without saying that the wife could not take the entire profits of the property for herself or alienate the property by herself. When it is particularly mentioned in the instrument that the entire property is to be enjoyed by her for her maintenance and that she may dispose of the property as she pleased, it is a negation of the gift enuring to her children also as codonees. It is therefore an expression of an intention contrary to what has been indicated in S.22 of the Act. A further indication is seen in Ext. D7 wherein the 4th defendant had claimed the property as her own and offered it as security for her liabilities under a lease to her landlord. That deed was attested to by her husband, the donor. It was contended by counsel that attestation cannot imply a knowledge of the contents of the document, much less than approval thereof. But when a husband attests a deed executed by his wife, the attestation is normally presumed to have been made to record the husband's approval to the transaction itself. This is particularly so when the property involved is what the husband had given to the wife.

(3.) In the result, I hold that the gift under Ext. P. 1 enured to the donee 4th defendant only, and that the plaintiffs do not get any interest in the suit property under it. The appeal is thus allowed, and the suit dismissed with costs throughout.