NANGELI AMMA Vs. GOVINDAN NAMBISSAN

JUDGEMENT

(1.) Defendants 2 to 4 are the appellants. Plaintiff (1st respondent) filed the suit for partition claiming 1/18 share in the plaint schedule property. The Munsiff, Thaliparamba dismissed the suit holding that the property conveyed under Ext. A1 was intended for the enjoyment 3 of the tavazhi-tarwad of Devaki Amma and her children through her second husband Raman Nambissan and that the plaintiff who is her grand son through her first husband is not entitled to claim any share in the property. Allowing plaintiff's appeal the suit was decreed by the Sub . Judge, Payyannur.

(2.) The case of the plaintiff is that the plaint schedule property was jointly acquired by his mother Devaki Amma and her three children in her second husband Raman Nambissan as per Ext. A1. document dated 24th July 1905 and that he as the son of Lakshmi Amma, daughter of Devaki Amma in her first marriage is entitled to 1/18 share. Defendants 2 to 4 filed written statement contending inter alia that the property was acquired for the benefit of the tavazhi of Devaki Amma and children in her second husband, that it has all the characteristics of puthravakasam and that the plaintiff who is not a member of the said tavazhi cannot claim any right over it.

(3.) The Munsiff relying on 'Kalliani v. Anandan 1962 KLT 234 held that a tavazhi constituted by a marumakkathayi woman and her children by the donor husband excludes her children by another and so Lakshmi Amma, daughter of Devaki Amma in her first husband could not have obtained any right in the property and consequently plaintiff cannot claim partition. The above ruling has no application to the facts of the case in hand as there is no evidence to hold that Raman Nambissan husband of Devaki Amma had any role to play in the acquisition of the property. Property acquired as per Ext. A1 sale deed cannot be declared as puthravakasam property and it cannot be held that Devaki Amma and her children in her second husband alone are entitled to it to the exclusion of plaintiff' and defendants 5 and 6 who are the children of .Lakshmi Amma daughter of Devaki Amma in her first husband/ There is nothing in Ext. A1 to suggest that Raman Nambissan had anything to do with the transaction. There is no recital in the document that the consideration emanated from Raman Nambissan. He has no role even as an identifying or attesting witness in Ext. A1. Contention of the appellants-defendants that under Marumakkathayam Law, the acquisition of a woman, in the absence of evidence to the contrary are to be presumed to have been made out of funds supplied by her husband for the benefit or his wife and children to the exclusion of others and hence plaintiff's claim has to be rejected out right has no merit as it is not an acquisition by Marumakkathayi woman alone. It is conceded by the plaintiff's counsel that if Ext. A-1, property has the characteristics of puthravakasam plaintiff cannot have any share.