SANKARA WARRIER Vs. SREEDEVI WARRASYAR

JUDGEMENT

(1.) Defendants 2 and 4 to 6 are the appellants. The plaintiffs sued for partition of their 7/9 share in the A schedule properties and B schedule movables and for recovery of shares with mesne profits. The 1st plaintiff is the mother of plaintiffs 2 to 5 and additional plaintiffs 6 and 7 were born to the 1st plaintiff subsequent to the institution of the suit. 1st plaintiff and the second defendant are sister and brother and the 1st defendant is their mother. The parties are Variyars by caste. The 4th defendant is the wife and defendants 5 and 6 are the children of the 2nd defendant. Third defendant is the lessee of the plaint A schedule properties from the 2nd defendant. Plaintiffs and defendants 1 and 2 constituted a Variyar Tarwad. A schedule properties were obtained by the tarwad under partition of the family properties on the 5th of Makaram 1106. Besides plaintiffs 2 to 7, the 1st plaintiff had two other children, Babu and Baby (twins) who died in 1960. With the death of Baby and Babu their 2/9 share devolved in the 1st plaintiff. Thus the plaintiffs are entitled to 7/9 share. On 18-2-59, the 1st defendant executed a gift deed in favour of the 2nd defendant. This document is void as she was not competent to execute such a document. On the date of the gift deed the 1st plaintiff was carrying, and the twins were born in May 1959. They were thus entitled to definite shares in the property. Even if the gift deed is valid and binding, it is valid only to the extent of 1/9 share of the 1st defendant and not the 1/6th as stated in the gift deed. The lease deed executed by the 2nd defendant in favour of the 3rd defendant is not a bona fide transaction and is not binding on the plaintiffs and their share of the properties. They are, therefore, entitled to a declaration that the document is invalid and not binding on them. No possession was obtained by the third defendant. The plaintiffs have applied for an injunction to restrain the defendants from entering upon the properties.

(2.) The second defendant contended that be is the Karnavan and manager of the tavazhi and that the tarwad has not attained the status of division as alleged in the plaint. The 1st plaintiff married a Nair and went out of the tarwad. The 4th defendant Ambika Devi was married by the 2nd defendant in the Kudivaippu form on the 10th Medom 1134 and from that date Ambika Devi had become a member of his tarwad. The children born to them are also members of the tarwad. The sub tarwad became partible only after the Kudivaippu. Even though the plaintiff can claim partition, she cannot claim per capita partition. The 2nd defendant and his wife and children constitute one Sakha and are entitled to one half of the properties and the other members are entitled to the other half. He has no objection to the plaint properties being divided and one half allotted to himself and his children. A schedule item No. 3 belongs exclusively to the 1st defendant and she was competent to execute the gift in his favour. The debts cleared by him should be made a charge on the properties. The 1st plaintiff is not competent to question the validity of the gift deed. The 3rd defendant has been put in possession of the properties under the lease. The 1st plaintiff is not entitled to claim maintenance as she has married out of caste and is living elsewhere. The second defendant's wife and children are necessary parties to the suit.

(3.) The 1st defendant supported the 2nd defendant in all his contentions. She has stated further that the 2nd defendant performed the Kudivaippu with Ambika Devi and the ceremony bad her concurrence. The plaintiff in her replication reiterated her contentions and stated further that even if Kudivaippu was performed, the ceremony never had the concurrence of the other members of the tarwad and as such it is not valid and binding.