NARAYANA PILLAI Vs. BALAKRISHNA PILLAI

JUDGEMENT

(1.) THIS appeal is by defendants 1 to 4, 6, 8 to 13 and 15 to 23. The suit is for partition of a Nayar tarwad of two branches, one branch comprising defendants 1 to 23 and the other the plaintiff and defendants 24 to 83. The plaintiff claimed 1/84 share of all the properties. The main contest was by the 21st defendant, who contended that his branch became separated from the tarwad on the execution of Ex. D-2, in 1053 when some of the suit properties were given to them absolutely by the rest of the tarwad, that items 32 to 41, which belonged to Chamakkala tarwad, bad been given to his branch by its last survivor, that item No. 29 had been acquired by him and the 22nd defendant for themselves as a Puthuval registry in 1116 and that the rest of the suit properties are acquisitions of Neelakantan Kesavan of his branch. The munsiff accepted the defence and dismissed the suit. On appeal by plaintiff, the Subordinate Judge found that Ex. D-2 was neither a partition nor an absolute transfer, that the tarwad continued undivided and that all the suit properties belong to the tarwad, and decreed the suit in regard to items 3 to 41 only, as items 1 and 2 have been lost to the tarwad by virtue of a court-sale. Hence this Second Appeal.

(2.) THE properties involved in Ex. D-2 admittedly belonged to the common tarwad. Its executants represented the tarwad excepting the branch of defendants 1 to 23 who were the executees thereof. It recites that the properties are given to the branch for their routine expenses, to be enjoyed by them subject to the directions of the karnavan: It is very difficult to construe the document otherwise than as the Subordinate Judge has done. It is only an allotment of properties to a particular branch to be enjoyed by them for their maintenance and subject to control of the karnavan. No provision for permanency of the arrangement finds a place in the deed, nor is it stated that the properties will belong to the allottees in absolute rights. It follows that by virtue of Ex. D-2 the branch of defendants 1 to 23 did not separate from the tarwad, nor got the properties involved therein as their absolute properties; THE finding to the above effect of the Subordinate Judge is therefore accepted. As regards items 32 to 41, the gift or settlement alleged to have been made by Cha-makkala tarwad is not in proof here. Chamakkala tarwad was a distant kindred of both branches. THE Subordinate judge was therefore right in finding the properties to belong to the entire tarwad of plaintiff and defendants.

(3.) IN the result, the second appeal is allowed as regards suit item No. 29, which is declared hereby to belong to the acquirers, defendants 21 and 22, as their separate property. IN regard to the rest the second appeal fails and is dismissed. I make no order as to costs here.