KUNJUNNI PILLAI Vs. BHASKARAN PILLAI

JUDGEMENT

(1.) This Second Appeal has been referred to a Full Bench on account of a conflict of opinion revealed by the reported decisions of the erstwhile Travancore High Court on the question whether a member or a branch of a Malabar tarwad to whom is allotted properties for purposes of maintenance is entitled to claim compensation for improvements before dispossession of those properties in connection with a suit for partition or otherwise. The facts are these: In the year 1065 there was an arrangement in the tarwad of the parties wherein the properties were divided into three. One portion was put in possession of one of the two sakhas of the tarwad and another in the possession of the other Sakha. Plaintiff and the defendants belong to the said two Sakhas respectively. The third division of property was meant for the maintenance of the karnavan of the tarwad for the time being as also for meeting the expenses of certain charities which were being conducted by the tarwad which the karnavan for the time being was to conduct thereafter. Neither of the two sakhas was accountable for the income of the properties out in their possession nor was the karnavan accountable for the income derived from the other group of properties. The first defendant became karnavan of the entire tarwad in the year 1095. He was also, therefore, the karnavan of the defendants' sakha. A house was put up in the property allotted to that sakha which is item No. 4 in the plaint. Other improvements were also effected upon those properties. In answer to the suit which was one for partition of all the properties of the tarwad the first defendant in his written statement claimed that his sakha effected various improvements in the property for which the sakha is to be compensated. The 4th defendant in a separate written statement made a similar claim on behalf of his sakha. The 4th defendant did not appear thereafter in the case which proceeded without him. The first defendant when examined as DW 4 said that the house as also the other improvements were put up and effected by him at his own cost. The Munsiff decreed partition with the direction that the site on which the building, item No. 4 in the plaint, stands would if possible be allotted to the defendant's sakha. As regards the other improvements he found that no value could be given therefor. In appeal by defendants 1 and 4 together the District Judge upheld their claim for improvements and fixed their value at a certain figure. Both the courts below concurrently found that the plea of the defendants that the arrangement of the year 1065 was an outright partition cannot be accepted. The 4th defendant by this second Appeal challenges that finding and claims enhanced compensation for the improvements. The first defendant died pending the appeal in the court below. The plaintiff has filed a memorandum of cross objections challenging the decree given by the lower appellate court for improvements. The question of the character of the arrangement of the year 1065 having been concurrently found by the courts below the only point pressed before us and before the learned Judge who made the reference related to the question whether value of improvements could be claimed by the sakha of the defendants who were upon the concurrent finding holding the properties only on an arrangement for maintenance.

(2.) There are three decisions of the erstwhile Travancore High Court reported in 29 TLJ 220, 30 TLJ 754 and 30 TLJ 737, the first and the last of which took the view that an allottee of properties for the purpose of maintenance is not entitled to claim compensation for improvements. The case in 30 TLJ 754 though reported at a later page was in fact decided before the case reported at P. 737 and the view taken in the second case was different from the earlier view. No reference is seen made to the first case in the second nor is reference made to the second in the third. There have been three decisions of this Court, the first of which is reported in 1949 KLT 143 (FB). That was a case where the Karnavan of a tarwad who was in management of tarwad properties claimed compensation for improvements alleged to have been effected by him upon tarwad properties. The claim was disallowed saying that:

(3.) The allottee of tarwad properties for purposes of maintenance, whether a member or a branch, is in possession of the properties allotted as a member or members of the tarwad. This is to say, the allottee is in possession of his own property, the income whereof he is entitled to appropriate for his maintenance. There is no scope for any claim arising on account of the improvements made by him in that property because if he improves property and has to claim value therefor he has to make the claim against himself. It is only when the holder of a property has an interest independent of and apart from the person against whom the claim is to be made it is possible to think of a claim for value of improvements. If, for example, a junior member is an allottee of tarwad property under the tarwad or a branch of the tarwad is a lessee then the possession of that member or that branch is not qua member or members of the tarwad and they hold the property as lessees just like a stranger would do. That will not be the case when members of a tarwad are put in possession of tarwad properties as such members for purposes of their maintenance. In our judgment there is no scope for doubt upon this question as it appears to us to be clear that a claim for improvements by a maintenance holder cannot be sustained.