LAWS(KER)-1972-10-33

NARAYANA MENON Vs. KOCHUVAREED

Decided On October 10, 1972
NARAYANA MENON Appellant
V/S
KOCHUVAREED Respondents

JUDGEMENT

(1.) These two appeals are against the judgment of a learned Judge of this Court in Section A. No. 1362 of 1965 and Section A. No. 1364 of 1965. The suits which gave rise to these appeals are, respectively, O. S. No. 259 of 1961 and O. S. No. 258 of 1961 on the file of the Munsiff's Court, Cranganore. They were for recovery of possession with mesne profits. The plaintiffs in both the suits are the same, the defendant in each of them, being different. The suits were decreed by the trial Court, but dismissed on appeal by the lower appellate Court on the ground that the claim was barred by adverse possession and limitation. On second appeal, the judgment and decree of the lower appellate Court was sustained.

(2.) The properties involved in the two suits, belong to a Marumakkathayam tarwad, the Nambiyarveedu family. The ten members of the tarwad entered into a family karar or settlement, Ex. P-l, dated 10th Ma-karam 1095 M.E. (1920). The properties dealt with by the karar (family properties as well as the private properties of one of the members) were divided into four schedules as A, B, C and D. Executant Nos. 1, 2, 4 and 7 to 10 were allotted the A schedule properties and called the first tavazhi or branch; Executants Nos. 3 and 5, Ko-chunni Menon and Sreedhara Menon, were allotted the B schedule properties; one Balakrishna Menon who was away from the place at the time, was allotted the C Schedule properties; and the minor Executant No. 6 was allotted the D Schedule properties. Executants 3 to 6 were all male members and they together constituted the second tavazhi with rights to the B, C and D schedule properties. The first tavazhi consisted of three females namely Kunji Amma, (executant No. 2), her daughter Kochukutty Amma (Executant No. 4), and minor Ma-dhavi, (daughter of Executant No. 4). It is plain therefore that the chance of perpetuation of the family was only with the first tavazhi. The detailed provisions and the effect of Ext. P-l will be noticed later. It is enough for the present to state that it contained a provision that on the death of any of the members of the second tavazhi, his rights in the properties allotted to him should devolve equally on the rest of the members of that tavazhi, and on the extinction of all the members of the tavazhi, the rights in the B, C and D schedule properties, were to devolve on the first tavazhi. Sreedhara Menon (Executant No. 5) died first; a little later Kochunni Menon (Executant No. 3) became a sanyasi, renouncing everything in favour of Narayana Menon (Executant No. 6), under Exts. P-2 and P-3.

(3.) Balakrishna Menon returned to the place. At or about that time, O. S. No. 69 of 1105 had been filed by Executant No. 4 in Ext. P-l for removal of Executants Nos. 1 and 2. All the members of the family including Balakrishna Menon were parties. The C schedule properties were released to Balakrishna Menon. By Ext. P-13 compromise petition, Balakrishna Menon accepted and agreed to abide by the terms of Ext. P-l and took a portion of the B schedule properties by Ext. P-4 release deed. Ext. P-l was thus accepted by Batakrishna Menon also, who was not a signatory to it at the time of its execution. Balakrishna Menon seems to have sold certain properties in the C schedule under Ext. D-4 dated 19-7-1118 M.E. (1943) to the 1st defendant in O. S. 258 of 1961. He executed another sale-deed in respect of a portion of the B schedule properties in 1115 (1940); and by successive assignments the rights under the said document became vested in the 1st defendant in O. S. 259 of 1961 by Ext. D-10 dated 27-11-1121 (1946). Balakrishna Menon died on 15-5-1959. The suits were laid on 16-7-1960 by Narayana Menon, Executant No. 6, the surviving member of the second tavazhi. Pending the suits, by Ex. P-14 dated 15-6-1961 Narayana Menon assigned his rights in favour of the remaining supplemental plaintiffs 2 to 10 (members of the first tavazhi).