KALU KUNJURAMAN Vs. UMMINI KUNJAMMA

JUDGEMENT

(1.) THE 3rd defendant is the appellant. THE appeal arises out of a suit for partition. THE plaintiffs and defendants 1 to 3 are members of an Ezhava tarwad of -which the plaintiffs and defendants 6 to 23 form one sakha and defendants 1 to 5 the other sakha. By an "anubhava udampady" dated. 9-1-1084 properties were allotted to the two Sakhas for maintenance. Defendants 1 to 5 have brought into existence a partition deed without the concurrence of the other sakha. On the strength of this deed certain alienations have also been effected by them. THE plaintiffs prayed for setting aside the partition deed and the latter alienations and for partition and recovery of their shares in tarwad properties. THE main defence was that the Udampady of 1084 was a deed of partition and that in any event the two sakhas had become divided by course of conduct. THE trial court held that the Udampady of 1084 was only a maintenance arrangement but that the two sakhas had attained a status of division by course of conduct. THE suit was accordingly dismissed except as regards item No. 12 in the plaint schedule which was omitted in the Udampady. THE plaintiff* were given a decree for partition and recovery of half share in that property subject to a mortgage charged on the same. On appeal, the Additional District judge of Trivandrum held that partition by course of conduct was not proved in the case. THE plaintiffs were accordingly given a decree as prayed for. THE 3rd defendant appellant, was supported by Respondents 22 and 42 to 46, the heirs of the 1st defendant.

(2.) THE main question for consideration is whether the tarwad has become divided. THE learned judge did not refer to the various transactions relied on by the defendants in support of their plea. THE defence case is that after the death of the common Karanavan Krishnan Andi, the two sakhas began to deal separately with the properties allotted to them under the deed of 1084, Ext. A. Before considering these transactions it may be stated that there was a provision in Ext. A that neither sakha should alienate the properties allotted to them without the concurrence of the other sakha. It was further provided that if either sakha redeemed any of the properties outstanding on mortgage, such sakha would have the right to encumber such property to the extent of the amount expended for the purpose of redemption. THE two sakhas were also directed to improve the properties allotted to them for maintenance. Ext. C is a deed of mortgage dated 27-2-1089 in respect of some of the properties allotted to the plaintiff's sakha. Pursuant to the direction in Ext. A the members of the other sakha also took part in the execution of the deed. THE common Karanavan died in the year 1090 or 1091. THE defence case is that the two sakhas thereafter intended to have a divided status. Ext.I is a mortgage effected by the plaintiffs' sakha on 21-9-1096 in respect of the southern half of items Nos. 2 and 3 in Ext. A for a consideration of 600 fanams out of which the sum of 450 fanams was utilised for redemption of an earlier mortgage Ext. 0. THE balance, viz. , 150 fanams was utilised for repairing their residential building. THE members of the other sakha are not parties to this transaction. Ext. F is a similar deed of mortgage executed by the defendants' sakha for half of item No. 3. THE plaintiffs' sakha was not associated with them in the execution of the deed. THE consideration of 700 fanams was received for putting up a building. Ext. VII is a release deed dated 11-9-1098 whereunder the defendants' sakha obtained a release of one-half of items Nos. 5 ,6 and 7 in Ext. A which were outstanding on mortgage under Ext. IX dated 7-9-1069. THE amount required for this purpose was raised by executing a hypothecation bond Ext. IV. THE plaintiffs' sakha did not join in the execution of this deed. Ext. II is a deed of mortgage executed by the plaintiffs' sakha for raising funds for redemption of the other half of items nos. 5 to 7. Under Ext. II they borrowed a sum of 1000 fanams in addition to the mortgage amount, for purchasing other properties. Ext. V is a purakkadam deed executed by the plaintiffs' branch alone. THE 1st plaintiff is one of the executants of that deed. In addition to the earlier mortgage amount charged on the property, a sum of 400 fanams was raised for erecting a building. Ext. VI is another deed of mortgage executed by the plaintiffs' sakha for a sum of 700 fanams. THEse transactions were followed by the partition deed Ext. E executed by the defendants' sakha in the year 1103. THEreafter they executed Exts. K, G, H and J on the strength of the partition. THE deeds executed before Ext. E are the transactions relied on by the defence to show that the two sakhas became separated. Although the two branches thus executed several mortgage deeds it has to be stated that there was no transaction amounting to sale of any of these properties. Another feature common to all these deeds is that the parties always traced their rights to Ext. A. It is no doubt true that the provision limiting the right of encumbering the properties only to the extent of the sums expended for redemption of earlier mortgages was transgressed in some of these transactions by receiving additional consideration. In Exts. IV to VII, ext. A was referred to as a deed of partition. THEse circumstances are in my opinion insufficient to hold that the parties decided to have a divided status. It is significant to note that no attempt was made by either sakha to obtain separate patta for the properties which all along remained as properties of the tarwad. In Kumaran Nadar v. Kesavan (1954) 9 D. L. E t-C. 122 it was observed: THE mete execution of documents by such individual members asserting their right to their separate shares in the tarwad properties will not result in a legal and valid division of the tarwad properties or in the several members attaining a divided status, even if such assertion is made by the vast majority of the members of the tarwad".

(3.) IN the result the decree of the lower appellate court is confirmed. The Second Appeal and the memorandum of cross-objections are both dismissed with costs.