LAWS(KER)-1964-10-6

ABHIMANYU Vs. KUMARU

Decided On October 07, 1964
ABHIMANYU Appellant
V/S
KUMARU Respondents

JUDGEMENT

(1.) This is an appeal from the decree dismissing O. S. No. 33 of 1951 of the Additional Subordinate Judge's Court of Trivandrum. Plaintiffs 1 and 2 are the appellants.

(2.) The facts necessary for the decision of this case may be stated. The plaintiffs and defendants 10 to 20 and 32 to 35 are members of an Ezhava sub tarwad. Besides these, there were 18 other members in the sub tarwad on the date of suit. The members of the sub tarwad are the descendants of one Chakki Kali who died in the year 1032. Her husband was Kunchena Narayanan who died in 1069. They had four children, Narayanan Krishnan, Narayanan Velayudhan, Kali Kali and Kali Nagaru. Of these, Kali Kali died without issue. The members of the sub tarwad are the descendants of Kali Nagaru. Narayanan Krishnan who died on 16-6-1113 had executed a will Ex. T dated 2-1-1931 (13-5-1106) bequeathing properties to his wife and children. He had married thrice and two of them survived him. Defendants 1 to 5, 6 to 9 and 21 to 24 are his descendants by the first marriage. The 10th defendant is the second wife and defendants 11 to 20 are his children and grand children by that marriage.. His third wife is the 25th defendant and defendants 26 to 29 are her children. The will Ex. T dealt with 23 items of property. According to the plaintiffs; these properties were acquired by Narayanan Krishnan with the surplus income of the tavazhi properties, and he was therefore incompetent to dispose of the same in favour of his wife and children. Their case is that the tavazhi had some ancestral properties besides which it got some property on the death of Kali Narayanan. His properties were, divided under Ex. J dated 26-9-1069 between his Marumakkathayam and Makkathayam heirs. Similarly, after Narayanan Velayudhan's death in 1094, there was a partition deed Ex. G dated 3-6-1095 under which also the tavachi got immovable property and money. According to the plaintiffs the tavazhi had a surplus income of Rs. 500A-per year in those (days Narayanan Krishnan is alleged to have been the karanavan and manager since 1057 when he is stated to have attained majority. It is the plaintiffs Case that the tavazhi had a right over items 24 to 28, the equity of redemption over which was purchased by Narayanan Krishnan in the names of defendants 25 to 29 with tarwad funds. Similarly items 31 and 32 are stated to have been purchased by him in the name of 5th defendant. The suit was for a declaration that the plaint properties belonged to the tavazhi, for cancellation of Ex. T and a further declaration that items 24 to 28 and 31 and 32 were acquired with the tavazhi funds for recovery of these items from the defendants who were in possession with mesne profits, for recovery of Rs. 2056/- with interest from defendants 1 to 9and their properties, and Rs. 1,500/- with interest from the 5th defendant and their properties, and for recovery of the various amounts collected by defendants 1 to 24 on the strength of Ex. T

(3.) Defendants 1, 5 and 10 filed a joint written statement. Their main contentions were that Narayanan Krishnan was not in possession of the tavazhi properties that he never assumed management of those properties which remained in the possession of his mother was acting as manager that the tavazhi had no surplus income for making acquisitions but that from early time .Narayanan Krishnan who had lucrative contract work was earning money arid acquiring properties by his own efforts and that the items dealt with under Ex. T belonged to Narayanan Krishnan alone. They further contended that items 31 and 32 were not purchased by Narayanan Krishnan and that the 1st defendant provided funds for the acquisition of the same. There wag an earlier suit O. S. No. 113 of 1106 by the members of the tavazhi for cancellation of a gift deed executed by Narayanan Krishnan in respect of properties which were claimed by the tavazhi on identical grounds. That suit was dismissed by the Trial Court as well as the High Court of Travancore and it was contended that the decision operated as res judicata. According to these defendants the will was valid and was not liable to be set aside. Defendants 25 and 27 to 29 filed a separate written statement raising, more or less the same contentions and further contended that item 24 to 28 were purchased by the 25th defendant with her own funds. It was also urged that if Narayanan Krishnan had any right to these items such right was barred by limitation and adverse possession. The 31st defendant was an alienee of item No. 10. He contended that that item was the self acquisition of Narayanan Krishnan.