NARAYANI AMMA Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) DEFENDANTS 2, 3, 5 and 7 to 9 are the appellants and the plaintiff and defendants 1, 4 and 6 are the respondents. The suit was for partition. The first respondent, the plaintiff, claimed an one-third share in the plaint property. This property was gifted (the parties had treated Ext. P-1, the document in question, as a gift deed and we too proceed on that basis)in favour of one Lekshmi Amma, the mother of the first respondent, defendants 1 and 2 and a deceased brother of theirs, Kochunarayana Pillai, who died in 1117. Ext. P-1 is the gift deed and is dated 26th Edavam 1087. This gift deed was executed by two members of the Thannippilly Tarwad. The second defendant is the sister of the first respondent, the first defendant and the deceased kochunarayana Pillai. DEFENDANTS 3 to 5 are the children of the second defendant and defendants 6 to 9 are the children of the fifth defendant.

(2.) THE first respondent contended that the above gift deed enured to the benefit of the three sons and daughter, the second defendant, of Lekshmi Amma. Lekshmi Amma, the mother, and Kochunarayana Pillai having died before the Nayar Act of 1088 (Act I of 1088) came into force, it was urged that the plaintiff and defendants 1 and 2 were each entitled to a third share in the property. Defendants 1 and 4 remained ex parte. Defendants 2, 3 and 5 to 9 by means of a joint written statement, urged that the gift enured to the benefit of the tavazhi of the said Lekshmi Amma and that the first respondent was, therefore, entitled only to a tenth share in the plaint property. This contention was negatived by the court below and a preliminary decree for a third share was passed in favour of the first respondent.

(3.) AS early as the decision in Narayanan v. Nangali 5 tlr. 116 it has been ruled that the intention underlying such gifts was "that the donees should enjoy the property in common by taking the usufructs of the property jointly, and that the property should in all respects, be subject to the incidents of other similar properties Held by them as members of the tarwad " The gift in question in that case was by the father in favour of the mother. The principle of that decision has been extended to a case of gift in favour of any one of the children. Kunji Kalliani v. Kunhipennu lekshmi 11 TLR. 139, Mathevan Kunju Kunju v. Raman Krishnan 13 TLR. 72, padmanabhan v. Kumaran 18 TLR. 215, Koshy Thoma v. Narayanan Krishnan 22 TLR. 239. (F. B.)