MATHEN MATHEW Vs. KUNJIKA BHARATHI

JUDGEMENT

(1.) The second defendant, the son of defendants 1 and 3, who lost before both the lower courts, is the appellant and plaintiffs 1 to 6 the contesting respondents 1 to 6. The seventh respondent, the fifth defendant, is the mother of the other respondents and is the wife of deceased Krishnan, the father of respondents 1 to 6. The fourth defendant, who is not a party to the second appeal, was the brother of Krishnan. The suit, which has given rise to the second appeal, was for declaration of title, partition and separate possession of six shares out of seven of the suit properties leaving the seventh share, the share of the seventh respondent. The respondents are Ezhavas governed by the Travancore Ezhava Act of 1100; and the appellant represents the decree holder-purchaser of the suit properties in court auction.

(2.) The suit properties originally belonged to Krishnan, who executed the gift deed evidenced by Ext. P1 in 1104 in favour of his wife, the seventh respondent, who had then no children. The first respondent, the eldest of the children of Krishnan and the seventh respondent, is said to have been born a few months after the gift. The gift was to the seventh respondent for the benefit of herself and the children to be born in her to the donor. Defendants 1 to 3 filed O. S.No. 29 of 1115 against Krishnan, the fourth defendant and the seventh respondent on a debt due by Krishnan and the fourth defendant. The suit properties were attached and sold for the decree debt and purchased by defendants 1 to 3. Respondents 1 to 6 brought the present suit claiming that the decree and execution proceedings were not binding on them or their shares, since they were not parties to the suit. Their claim was that the gift was to the seventh respondent and her children to be born in the future as a group; and that under S.32 of the Ezhava Act their shares were not liable for the debt. Hence, they claimed their six shares out of seven. Defendants 1 to 3 claimed, inter alia, that the gift could be valid only in so far as it was in favour of the seventh respondent, who alone was alive on the date of the gift, and in so far as her subsequent born children were concerned, the gift was invalid. Their contention was that under S.22 of the Travancore Nayar Act the donees took the properties as tenants-in-common and the same rule of interpretation must apply to S.32 of the Travancore Ezhava Act. They raised other contentions as well like that the gift did not take effect, that the suit was barred by limitation, etc., which were all found against by both the lower courts; and on those questions there is no controversy in second appeal. The only question urged in second appeal is whether respondents 1 to 6, the after-born children of the seventh respondent, had any right in the suit properties given by Krishnan. In other words, the question is whether the interpretation of S.32 of the Ezhava Act should be on the same lines as the interpretation of S.22 of the Nayar Act. This being an important question of law affecting the Ezhavas of erstwhile Travancore, the case has been referred to a Full Bench.

(3.) Though several decisions have been cited at the bar and discussion has also taken place on various aspects, the question to be decided is confined to fairly narrow bounds. The contention of the counsel of the appellant, put in a nut-shell, is that the interpretation of S.32 of the Ezhava Act should be the same as the interpretation of S.22 of the Nayar Act. He relies on a Division Bench ruling of this Court, viz., Sivasubramania Pillai Thiruvadinatha Pillai v. Kallani Amma Savithrikutty Amma ( 1957 KLT 765 ) arising under S.22 of the Nayar Act and holding that under a gift falling under the said section the properties vest in the children as soon as the gift is made and such properties cannot be divested by the birth of other children later; that since any child is entitled to obtain a partition of such properties, if the after-born children are also to get shares, such partition will have to be reopened every time a child is born to the mother after partition; and that the wording of S.22 does not warrant any postponement of the vesting of the shares till the mother dies or passes the child bearing age. The counsel also draws our attention to an observation of another Division Bench in a case arising under the Ezhava Act, viz., M. M. Philip v. Kunju Kesavan ( 1958 KLT 8 ), that the effect of S.32 is that, ordinarily, makkathayam property obtained after the passing of the Act should be taken by the wife and children as tenants-in-common, even though the instrument by which the property was acquired stood in the name of one individual alone; but that if a contrary intention is expressed in the instrument, effect should be given to that intention. From these two decisions the counsel of the appellant argues that just as donees under S.22 of the Nayar Act take the properties as tenants-in-common, donees under S.32 of the Ezhava Act also take as tenants-in-common. The counsel lays particular stress on the observation of Kumara Pillai J. to that effect in the second Division Bench ruling cited above.