MANARI PARVATHI AMMA Vs. NELLIKKAL PARVATHI AMMA

JUDGEMENT

(1.) A common question as to the correctness of the decision of a learned Single Judge of this Court reported in Balakrishna Menon v. Rajagopala Menon (1974 Ker LT 85) is raised in both these Second Appeals.

(2.) Defendants 2 and 5 are the appellants in S. A. No. 749 of 1977. The suit is for partition of one item of property as belonging to the Manari tavazhi of Nellikkal tarwad. Plaintiffs and defendants 1 to 5 are the members of the tavazhi and the 1st defendant is its karanavan. The plaintiffs seek partition ignoring Ext. B3 lease dated 13-1-1958, granted by the prior karanavan kannan Nair to his niece the 2nd defendant. The suit was contested by defendants 3 and 5. According to them the plaintiffs are not members of the Manari tavazhi. The lease Ext. B3 is valid and that in any event, the 2nd defendant is entitled to the benefits of Section 7 of Kerala Act 1 of 1964 as amended by Act 35 of 1969. Both the Courts below have concurrently found that the plaintiffs are members of the Manari Tavazhi, Ext. 83 lease is invalid as opposed to Section 33 of the Madras Marumakkathayam Act, and the 2nd defendant being a member of the tavazhi in possession of the suit property is not entitled to the benefits of Section 7 of Kerala Act 1 of 1964 as amended by Act 35 of 1969. On the question as to the applicability of Section 7 the courts below have relied on the decision of this court in Balakrishna Menon v. Rajagopala Menon (1974 Ker LT 85).

(3.) Defendants 2 to 5 are the appellants in section A. No. 1121 of 1977. The suit is for recovery of two items of properties on behalf of the tavazhi consisting of the plaintiffs and defendants 1 to 5. Both the items were allotted to the tavazhi as per Ext. A1 karar in the main tarwad. The prior Karanavan Rama Kurup granted a lease of a portion of item 1 to the 2nd defendant as per Ext. B3 dated 23-9-1952. Ext. A2 is the counter-part of Ext. B3 executed by the 2nd defendant in favour of Rama Kurup. The documents, recite a prior oral lease of item. 1 by Rama Kurup to the 2nd defendant. The remaining portion of item 1 was assigned by the 2nd defendant to defendants 3 to 5 as per Ext. B32 D/-63-1952. Rama Kurup granted a renewal of the oral lease relating to the portion covered by Ext. B32, as per Ext. B33 dated 11-11-1952. Ext. A3 is the counterpart of Ext- B33 lease granted by Rama Kurup to defendants 3 to 5 in renewal of the prior oral lease. Item 2 was outstanding in possession of tenants and Rama Kurup the prior karanavan executed a Kanam deed Ext. A4 dated 22-121952, in favour of defendants 1 and 2. The plaintiffs seek recovery of possession of both the items on behalf of the tavazhi ignoring the leases granted by Rama Kurup as beyond his powers, under the Madras Marumakkathayam Act.