NEELAKANTAN NAIR Vs. NANGELI AMMA

JUDGEMENT

(1.) These appeals have been referred to the Full Bench on account of a dispute regarding the construction of S. 26 of the Nair Act (Travancore) of 1088. They arise out of two connected suits tried and disposed of together by the Temporary Second Judge of the District Court of Mavelikara. A.S. No. 883 of 1950 arises out of O.S. No. 100 of 1119, and A.S. No. 884 of 1950 arises out of O.S. No. 99 of 1119. The latter suit was treated as the main suit in the Trial Court, and the evidence for both was taken and the leading judgment written in it. The plaintiff in O.S. No. 99 of 1119, Narayanan Nair Kuttappan Nair and the plaintiff in O.S. No. 100 of 1119 Narayani Amma Nangeli Amma, as well as defendants 13 and 14 in O.S. No. 99 of 1119 and defendant 3 in O.S. No. 100 of 1119 belong to a Nair tarwad, known as Velumelethil, and defendants 1 and 2 in both suits are the sons of Narayanan Govindan, who was the karnavan of Velumelethil tarwad. Narayanan Govindan died in 1098. His wife, the mother of defendants 1 and 2, who pre-deceased him, died before the Nair Act (Travancore) of 1088 came into force. Some of the suit properties in both cases are claimed by defendants 1 and 2 as the self acquired and separate properties of their father, Narayanan Govindan, and to have been inherited by them after his death. Under the law governing Nairs before the enactment of the Nair Act of 1088, the widow and children of a deceased Nair male had no right of inheritance to his self acquired and separate properties. By S. 12 of that Act, they were given a right to inherit one-half of his self acquired and separate property left undisposed of by him. S. 26 of the Act provides that nothing in that Act shall confer any right on the children of a marriage dissolved before it comes into force. The dispute which has necessitated this reference is whether the word dissolved used in S. 26 has reference only to a dissolution by act of parties or through a court of law or whether it would include a natural termination of the marriage by reason of the death of one of the spouses. If the word would include also a natural termination of the marriage by reason of the death of one of the spouses, defendants 1 and 2 would not be entitled to any of the self acquired or separate properties of Narayanan Govindan left undisposed of by him.

(2.) According to the plaintiffs in both suits, the plaint properties in the two suits belonged to Velumelethil tarwad and were in the possession of Narayanan Govindan, who was the karnavan of the tarwad, till his death in 1097. After his death, his younger brother, Narayanan Neelakantan became the karnavan, and he was in possession of all the tarwad properties including the plaint properties in the two suits, till his death in 1109. Shortly after his death, some members of the tarwad filed a suit for partition in the Thiruvalla Munsiffs Court on 26.3.1109. Taking advantage of the internecine quarrels in the tarwad after Narayanan Govindans death, which led to the filing of the suit for partition, defendant 1, whose wife also belongs to Velumelethil tarwad, and his brother, defendant 2, executed certain documents on 25.3.1109, with a view to take forcible possession of the plaint properties. Exts. D and H are copies of two of the documents executed by them on 25.3.1109. Ext. D is a mortgage executed in favour of the 4th defendant in O.S. No. 100 of 1119 for a portion of plaint schedule item 3 in that suit and certain other properties, and Ext. H is a mortgage executed in favour of defendants 3, 4 and 5 in O.S. No. 99 of 1119 for a portion of plaint schedule item 1 in that suit. Since defendants 1 and 2 and their alienees attempted to take forcible possession of the properties after the execution of these documents, the then manager of Velumelethil tarwad, Narayanan Nair Madhavan Nair, instituted proceedings under S.128 of the Travancore Criminal Procedure Code (corresponding to S.145 of the Indian Criminal Procedure Code), in the Chengannur First Class Magistrates Court. That case was tried as M.C. 8 of 1109 and while it was pending, the members of Velumelethil tarwad executed a partition deed, copy of which is Ext. N, on 5.11.1100, where by the plaint properties in O.S. No. 99 of 1109 were allotted to the branch of the plaintiff in that suit (Narayanan Nair Kuttappan Nair) and the plaint properties in O.S.No.100 of 1109 were allotted to the branch of the plaintiff therein (Narayani Amma Nangeli Amma). On the execution of Ext. N, the First Class Magistrate dropped the proceedings in M.C. No.8 of 1109 holding that there was no further likelihood of a breach of the peace. But defendants 1 and 2 and their alienees were not parties to Ext. N, and the dispute between them on the one hand and the plaintiffs tarwad on the other hand had not been settled by the execution of that document. So the members of the plaintiffs tarwad objected to the Magistrates order in M.C. 8 of 1109 being given effect to, and thereupon he passed fresh proceedings under S. 128 of the Travancore Criminal Procedure Code and took up another case, M.C. 38 of 1111, in respect of the plaint properties in O.S. Nos. 99 and 100 of 1119. On 30.9.1117, the Magistrate disposed of M.C. 38 of 1111 holding that defendants 1 and 2 and their alienees were in possession of the properties and directing that their possession should be maintained until they were evicted in due course of law. After the revision petition which the members of the plaintiffs tarwad filed in the High Court against the Magistrates order was dismissed, the plaintiffs brought O.S. Nos. 99 and 100 of 1119 for declaration of the title of their branches to the properties and recovery of possession of the same with mesne profits after cancellation of Exts. D and H and certain other documents executed by defendants 1 and 2.

(3.) O.S. No. 99 of 1119, brought by Narayanan Nair Kuttappan Nair, relates to eight items of property got under the partition deed Ext. N. Plaint item 5 in O.S. No. 99 is 63 cents of land comprised in survey No. 163/1A of Aiyroor Pakuthy. Items 1, 2, 3, 4, 6, 7 and 8 are different plots in survey No. 169/1 of the same Pakuthy, and they measure 6 acres, 3 acres 50 cents, 3 acres 25 cents, 6 acres, 4 acres, 1 acre 50 cents, and 1 acre respectively. The documents sought to be cancelled in this suit are (1) Ext. H, mortgage executed by defendants 1 and 2 in favour of defendants 3, 4 and 5 for a portion of item 1 on 25.3.1109, (2) a sale deed executed by defendant 1 in favour of defendant 6 for a portion of items 1 and 2 on 4.8.1111, (3) Ext. J, sale deed executed by defendant 1 in favour of defendant 7 for a portion of item 4 on 6.7.1116, (4) Ext. M, a mortgage executed by defendant 1 in favour of defendant 8 for a portion of item 4 on 7.11.1118, and (5) Ext. K, sale deed executed by defendant 1 in favour of defendant 15 for a portion of item 8 on 6.7.1116.