MATHEVAN VASINI Vs. HANEEFA ASITYIA UMMAL

JUDGEMENT

(1.) This second appeal has been referred to a Division Bench, in view of the importance of the question of law involved. One Perumal Sankaran executed a will Ext. XI dated 17-1-1100 M.E., conveying properties to his wife Perumal Appi. Appi had a daughter Janaki and a son Vasavan (3rd defendant). Janaki's children are the plaintiff, the 4th defendant and the 5th defendant, in the suit out of which this second appeal arises. After the death of Appi and Janaki, the third defendant as guardian of the minor plaintiff, along with defendants 4 and 5, and also on his own behalf, executed Ext. P1 sale deed in favour of the Ist defendant on 23rd Vrichigom 1125. The 1st defendant subsequently mortgaged the property in favour of the 2nd defendant on 14-3-1959 (Ext. P2). The plaintiff sued to set aside the sale and the mortgage as not valid and binding on his 'tavazhi'. The suit was decreed by the Trial Court. On appeal, the appellate court held that the plaintiff is only a tenant in common in respect of the property, entitled to a one sixth share, and therefore granted a decree for recovery of possession only of a one sixth share, setting aside Exts. P1 and P2 to that extent, and allowing the plaintiff recovery of his share, after division by metes and bounds. Defendants 2 to 6 and 12 were held entitled to the value of improvements effected by them on the plot to be plotted to the plaintiff. The plaintiff has preferred the above second appeal.

(2.) The parties are Ezhavas governed by the Travancore Ezhava Act of 1100. The question argued before us was whether the conclusion of the lower appellate court that the plaintiff was only a tenant in common in respect of the property, was correct. The contention of counsel for the appellant was that the properties covered by Ext. X1 will were taken by the parties concerned as tavazhi properties. S.4 of the Ezhava Act defines a 'tavazhi of a female' as meaning a group of persons consisting of the female and her issues how low so ever in the female line or such of that group as are alive. The definition opens with the words that it is to have the effect "unless there is something repugnant in the subject or context." Part IV of the Act deals with 'Intestate Succession'. S.18 therein reads as follows:

(3.) We think the lower appellate court was right in holding that the properties of Perumal Appi on her death, devolved on her issues under S.18 of the Act, as tenants in common, and not as a "tavazhi". It seems opposed to the notions of marumakkathayam law to conceive of a tavazhi composed of descendants of the male issues, which is the effect of Explanation 2. The group contemplated by Explanation 2 cannot constitute a 'tavazhi' as defined in S.4(3), which limits it to the issue how low so ever in the female line. In Nambu Kali Kallyani v. Krishnan Gopalan (1945 TLR 122) a Division Bench of the Travancore High Court considered the argument that it could not have been the intention of the legislature to create a tavazhi for Ezhava intestate females which was unknown elsewhere in Kerala, and dealt with it as follows: