JANAKI AMMA Vs. KUNJIKALI AMMA

JUDGEMENT

(1.) Defendants 1, 2 and 7 in O.S. No.214 of 1950 on the file of the Anjikaimal District Court have brought this appeal against the preliminary decree passed on 5.4.1955 directing a division into two equal halves of an item of immovable property, namely, item 1 in Schedule A of the plaint and some among the movables mentioned in Schedule B thereof. There are as many as five items of immovable properties mentioned in Schedule A. While claiming that she was entitled to a one-half share in all those item and in all the movable properties mentioned in Schedule B, in her plaint the plaintiff proceeded to state that to avoid unnecessary controversies she was abandoning her claim over items 3 to 5 of A schedule and that she would be content with a half share in the two remaining items in that schedule and a half share of the movables. The learned Additional District Judge who heard the suit found that item 1 of A schedule was divisible into two equal halves between the plaintiff and defendant 1, that item 2 was the separate property of defendant 1 and that the plaintiff was also entitled to a half share of such of the movables in B Schedule as were proved to be really in existence. Defendants 1 to 7 had contested the suit. Dissatisfied with the decree for division of item 1 of Schedule A and of some of the movables in schedule B, defendants 1, 2 and 7 have brought this appeal. The plaintiff has filed a memorandum of cross objection challenging the lower courts finding that item 2 of A schedule is not a divisible item.

(2.) The parties are Nairs. The plaintiff and defendant 1 are sisters and defendant 1 is the elder sister. Defendants 2 to 7 are the children of defendant 1 and defendant 8 is the husband of defendant 1 and the father of defendants 2 to 7. Item 1 of schedule A was acquired on 19.6.1082 as per Ext. 1, in the joint names of the plaintiff, defendant 1 and their mother Madhavi Amma, since deceased. On the date of the acquisition the plaintiff and defendant 1 were minors and according to the plaintiff, the source of the acquisition proceeded from her father, who was the father of defendant 1 as well. Defendants 1 to 7 would, however, have it that the said property was purchased for their branch tarwad by its then Karnavan (de facto) Parameswara Menon. The division in the main tarwad was in 1068 and on the date of the division, the branch with which we are concerned here consisted of Madhavi Amma (the mother of the plaintiff and defendant 1) and her three brothers, Rama Menon, Parameswara Menon and Kunjunni Menon. After the acquisition of the said item a building was put up there and the parties are also at variance as to who found the money for the construction. While according to the plaintiff the father provided the funds, the defendants case is that Parameswara Menon put up the building with his own or tarwad funds. It is common ground that the title deed for the acquisition of item 2 stands in the name of defendant 2 and that the consideration money thereof was found from Kuri and other amounts which stood in her name. The plaintiffs case is that those amounts belonged to the father, but that has been repelled by the lower court which accepted the defendants case that the amounts utilised for the acquisition of item 2 belonged exclusively to defendant 2.

(3.) The appeal originally came up for hearing before a Division Bench. The lower courts decision that item 1 was divisible into two between the plaintiff and defendant 1 is on the basis that the funds for its acquisition proceeded from their father. According to a long line of decisions in Cochin, commencing from Kuttikrishnan Nair v. Cheethamma, (1919) 10 Cochin Law Reports 401, in the absence of an express or necessarily implied intention to the contrary, the donees of Puthravakasam properties can only be regarded as coowners or tenants-in-common with regard to the same. Ext. I was taken in the names of Madhavi Amma and her two daughters and as per the above rule, each of them was entitled absolutely to a third share of the property. On the death of Madhavi Amma her one-third share devolved equally on her daughters. The lower court, therefore, upheld the plaintiffs claim for a half share in the property. When the appeal came up before a Division Bench, it was brought to its notice that certain other appeals in which the correctness of the rule of construction enunciated in Kuttikrishnan Nair v. Cheethamma was being canvassed and that those cases have been referred for an authoritative decision of this Court to a Full Bench. The challenge to the authority of the rule of construction enunciated in Kuttikrishnan Nair v. Cheethamma regarding the nature and incidents of Puthravakasam grants and bequests arose on account of a different rule adopted by the Madras and Travancore High Courts on that question. The learned Judges of the Division Bench before whom this case came up, therefore, referred this case also to be heard and disposed of by the Full Bench along with the other cases. Those other cases are A.S.121 of 1952 and A.S. 275 of 1952. This Full Bench heard all the three cases and took the view that the path of prudence lay in deciding each case on its own merits and in not attempting a reconciliation of the conflicting presumptions that obtained in the Cochin area on the one hand and in Travancore and Malabar on the other with respect to the matter. In our opinion, it was too late in the day to attempt to examine the comparative merits of the rival presumptions and seek to prefer one of them to the other.