VASUDEVA KURUP Vs. AMMINI AMMA

JUDGEMENT

(1.) The question is whether the plaintiffs have succeeded in proving that they were in possession of the properties in suit at the time they brought the suit. The first court found that they had not and dismissed their suit for an injunction restraining the defendants from entering on the properties and dispossessing them. The lower appellate court found the contrary and has decreed the suit. Hence this appeal by the 3rd defendant who alone of the seven defendants contested the suit.

(2.) It is the admitted case that the properties were in the possession of Kesava Kurup, the husband of the 1st plaintiff and the father of plaintiffs 2 to 6, at the time of his death in 1122 M.E. (1946-47 A.D.) Kesava Kurup had got the properties under Ext. A dated 4-7-1116 (18-2-1941), a Nischaya Udampadi, entered into between the members of his joint (Marumakkathayam) family. Under this deed, the properties in suit were allotted to Kesava Kurup and his brother, and, after the death of his brother, Kesava Kurup was in sole possession and enjoyment. Ext. A, apart from calling itself a Nischaya Udampadi and not a Bhagapatram, expressly states that the allotment of properties made therein between the five branches of the family was for purposes of maintenance and goes on to say that the only right conferred on the several branches was the right to enjoy the properties and that none shall have any right to encumber them or alienate them or even to cut down any trees excepting for certain limited purposes and then only with the consent of the two seniormost members of the family. The document also shows that the family itself got the properties only as a maintenance arrangement under an Udampadi of 1096 (1920-21) as a branch of a bigger family. And there is the further recital that the arrangement under the document is to continue in force until a fresh arrangement is made. In the face of all this it is abundantly clear that Ext. A was only a maintenance arrangement and not a partition and the circumstance that the allocation thereunder was made on a per capita basis - a logical basis for a maintenance arrangement - that provision was made for one branch getting the properties of another on the extinction of the latter (the latter being composed only of males and the branch to succeed being the nearest in relation to them), for periodical payments by one branch to another for equalisation of income, and for compensation for improvements effected by particular persons, can, by no means, spell out a partition. Therefore, with the death of Kesava Kurup, the sole surviving member of his branch, the properties should have reverted to the family and should have been taken possession of by the karnavan of the family on behalf of the family. It was indeed on the allegation that, after Kesava Kurup's death the 1st defendant, the karnavan of the family, and the remaining defendants, the heads of its various branches, were threatening to take forcible possession of the property from the hands of the plaintiffs who had got into possession on Kesava Kurup's death that the suit was brought; and there can be little doubt that Kesava Kurup was undivided from his family, that title to the properties remained with the family, and that the family was legally entitled to possession of the properties on Kesava Kurup's death.

(3.) The 1st defendant, the Karnavan of the family, is the father of the 1st plaintiff, and this suit was in the first instance dismissed by the Trial Court on the finding that the plaintiffs had no title to the property, that such possession as they had could only have been by permission of the 1st defendant, and that they were therefore not entitled to maintain the suit for an injunction against the true owners of the property, namely, the family of Kesava Kurup. This was affirmed in appeal. But on second appeal this court held that the courts below had erred in thinking that a person in peaceful possession of property albeit without title, could not maintain a suit for injunction against the true owner. In that view the suit was remanded to the first court for fresh decision after determining whether the plaintiffs were in possession on the date of the suit. What happened after the remand we have already seen.