APPAKANNU MUHAMMED HANEEFA Vs. NARAYANI PILLA THANKAMMA PILLA

JUDGEMENT

(1.) These second appeals arise out of two suits disposed of together by both the lower courts. The appellants are the defendants in one of them, which was for declaration of title and partition. The contesting respondent, Thankamma Pillai, was the plaintiff in the other, which was for redemption. Both the lower courts dismissed the suit of the appellants and decreed the suit of the contesting respondent.

(2.) Two sisters belonging to the Thala Nair community, Mamaperumal and Mamalakshmi, had properties; and Thankamma Pillai, the lineal descendant in the female line of Mamaperumal, and two others, who were themselves lineal descendants in the female line of Mamalakshmi, partitioned the properties under Ext. D-1 in 1115 (February 1940). Thankamma Pillai had two twin brothers Padmanabhan Nair and Velayudhan Nair, who were also parties to one of these suits. It was believed at the time of the partition that properties belonging to women among Thala Nairs were inherited only by their daughters and lineal descendants in the female line and not by male descendants. Ext. D-1 proceeded under that belief. More than nine years after, on 20th December 1949, Thankamma Pillai executed Ext. D-4, which is captioned a settlement deed, but contains provisions of a gift deed. The document recites that out of love and affection for her twin brothers Thankamma Pillai gifted nine items of properties for the donees' maintenance. One of the items in Ext. D-4 was an item taken by Thankamma Pillai under Ext. D-1 and the other eight items were her separate or self acquisitions. About ten years after, in 1959. one of the brothers, Padmanabhan Nair, conveyed his share in the suit item, another item in Ext. D-1, under Ext. P-1 to one of the appellants; and both the appellants now claim title to such share conveyed by Padmanabhan Nair.

(3.) The lower courts, more so the lower appellate court, thought that unless Padmanabhan Nair was prepared to surrender the benefit he obtained under Ext. D-4, he or his assignees could not claim his share in the tarwad properties, which came to Thankamma Pillai under Ext. D-1. It is this decision that is being challenged in these second appeals.