(1.) This second appeal arises out of a suit for partition of a Nair tarwad. According to the plaint allegations plaintiff and defendants 1 to 9 are members of an undivided Nair tarwad of which Elayachi Narayani Amma was the common ancestress. Plaint items 1 to 4 are properties gifted to the said Narayani Amma by her husband in 1073; items 5 and 6 are acquisitions made by the first defendant who, according to the plaintiff, is the karnavan of the tarwad; and item 7 is an acquisition in the name of the second defendant. Plaintiff's case is that Narayani Amma's husband gifted items 1 to 4 for the benefit of the whole tarwad and that items 5 to 7 were acquired with tarwad funds and belonged to the tarwad. Plaintiff brought the suit for partition and recovery of possession of her one twentieth share in the tarwad properties. Defendants 1, 2, 20, 27 to 30, 31, 32, 33 and 34 filed written statements and contested the suit. Their contentions were to the effect that the gift of 1073 was not intended to benefit the whole tarwad but only Narayani Amma and her children, that the said items were not therefore tarwad properties, that items 5 and 6 are the separate properties of the first defendant and item 7 is the separate property of the second defendant, that there was a partition in the tarwad in 1098 and that it was not, therefore, open to the plaintiff to claim, a second partition. It may be stated here that Narayani Amma had six children and that the original plaintiff, who died during the pendency of the suit in the Trial Court, was only her grant daughter by one of her daughters. The additional second plaintiff was the daughter of the original plaintiff. The courts below concurrently found that plaint items 1 to 4 were tarwad properties, that items 5 and 6 were acquisitions made by the karnavan, the first defendant, with tarwad funds and that item 7 was the separate property of the second defendant. The Trial Court held that the partition of 1098 was not a partition binding on the tarwad as it effected a division of the properties only between the six children of Narayani Amma and did not take into account the shares of the other members of the tarwad i.e., Narayani Amma's grant children by her daughters. Consequently it gave the plaintiff a preliminary decree for partition of plaint items 1 to 6 and recovery of possession of her one twentieth share with past and future mesne profits. Ext. C is a copy of the partition deed of 1098. The lower appellate court held that Ex. C partition was binding on the members of the tarwad as it was a bona fide family settlement effected by all the adult members of the tarwad, and dismissed the plaintiff's suit with costs in both courts. The additional second plaintiff is now dead. Her heirs have filed this second appeal against the decree of the lower appellate court dismissing the plaintiff's suit.
(2.) As the courts below have concurrently found that plaint items 1 to 6 belonged to the tarwad and item 7 was the separate property of the second defendant, the only question that was argued in this Court was whether Ext. C partition deed would be binding on the members of the tarwad or not. It was contended by the appellants' counsel that Ext. C partition deed was executed only by the six children of Narayani Amma, that shares have been allotted under that partition deed only to the executants thereof, that in making the allotments the shares due to the other members of the tarwad have not been taken into account at all, and that the other members of the tarwad have consequently been prejudiced by the partition. It was admitted at the time of hearing in this Court that the executants of Ext. C were the only adult members of the tarwad at the time of the execution of the partition deed and that all the other members of the tarwad were then minors. The learned District Judge's view that Ext. C was a bona fide settlement made by all the adult members of the tarwad appears to me to be correct. .The law applicable to makkkathayam gifts made before 1088 was in a very unsettled state at the time of the execution of Ext. C. S.17 of the Nayar Regulation of 1088 provided: .
(3.) For the reasons stated above, the decree of the lower appellate court is confirmed and this second appeal is dismissed with costs.