NANU DIVAKARAN Vs. VELUMPI NANI

JUDGEMENT

(1.) The questions which arise for decision in this second appeal relate to succession to the self acquired and separate properties of an Ezhava female under S.18 of the Travancore Ezhava Act III of 1100. Plaint schedule items 1 and 2 are admittedly self acquired properties of one Karambi who was the mother of the 1st defendant. Karambi died after the Travancore Ezhava Act III of 1100 came into force, leaving a son and a daughter. The daughter is the 1st defendant, and the son was one Nanu who died in 1116. Plaintiff is the eldest son of the 1st defendant. Besides the plaintiff the 1st defendant has five more children. In 1115 the 1st defendant and Nanu mortgaged plaint schedule item No. 1 to the 2nd defendant for Rs. 50, and while the 2nd defendant was in possession of the properties the 1st defendant executed in favour of the 3rd defendant a puisne mortgage, Ext. A, in 1119, after Nanu's death. Both plaint items 1 and 2 were included in Ext. A. Possession of item No. 2 was given to the 3rd defendant on the date of the execution of that document, and she was directed to redeem the mortgage of 1115 and get possession of item I. Accordingly she was also obtained a decree for redemption of the mortgage of 1115 and recovery of possession of item 1. The plaintiff's case is that on the death of Karambi the plaint properties devolved on her thavazhee consisting of Nanu and the 1st defendant and the 1st defendant's children, that the plaint properties were therefore the sub tarwad properties of the said thavazhee, that Nanu was in possession of the properties till his death in 1116 as karnavan of the thavazhee or sub tarwad, that at the time of the execution of Ext. A plaintiff was the karnavan of the sub tarwad and the 1st defendant was therefore incompetent to execute the puisne mortgage, that Ext. A is also not supported by consideration and tarwad necessity binding on his sub tarwad, and that it should therefore be set aside and he should be allowed to recover possession of item 2 with past and future mesne profits. As plaint item 1 is outstanding on the mortgage of 1115 which is accepted by the plaintiff as a transaction supported by consideration and necessity and binding on his sub tarwad, recovery of possession of that item was not sought for in the plaint. The 3rd defendant contested the suit. She contended inter alia that the plaint properties were not the sub tarwad of properties of the plaintiff and that the suit was not maintainable in its present form. The Trial Court repelled this contention and decreed the suit practically in terms of the plaint. In the appeal which the 3rd defendant filed against the Trial Court's decree it was urged on her behalf, that under S.18 of the Travancore Ezhava Act III of 1100, on the death of an intestate Ezhava female her self acquired and separate properties would devolve on the entire group of all her descendants both in female line and the male line, that the children of her sons and the children of her daughters must of necessity belong to different tarwads, that these descendants would not, therefore, take her properties as persons belonging to any Marumakkathayam thavazhee or sub tarwad but only as tenants in common, that the plaint properties were not, therefore, the sub tarwad properties of the plaintiff, and that he was only entitled to a fractional share in them. It was urged that as the suit was brought on the footing that the plaint properties belong to the plaintiff's sub tarwad and not on the basis of his individual right in respect of them as one of the coheirs of Karambi, it was not maintainable and should be dismissed. These contentions found favour with the learned District Judge. Accordingly he allowed the appeal and dismissed the suit. Plaintiff, therefore, brought this second appeal, and it has been referred by one of us for decision by a Full Bench.

(2.) The questions of law which arise for decision in the case have been formulated as follows in the order of reference. "The question that arises is firstly whether Explanation 2 to S.19 of the Act will take in the children of male members of the thavazhee among the group of persons on whom the property devolves, and secondly assuming they also will come in, what exactly is the tenure under which the group of persons take the property, whether as tenants in common as held by the District Judge, or as joint tenants as is contended for on behalf of the plaintiff".

(3.) Intestate succession is dealt with in Part IV of the Travancore Ezhava Act III of 1100. That part bears the title "Intestate Succession". There are five sections in the part, viz., Ss.15, 16, 17, 18 and 19. Ss.15, 16 and 17 deal with Intestate Succession to an Ezhava male, and Ss.18 and 19 deal with Intestate Succession to an Ezhava female. S.18 enacts: