MATHEW THOMMAN Vs. PAILY ULAHANNAN

JUDGEMENT

(1.) These two appeals arise respectively from two connected suits O. S.515 of 1124 and O. S.48 of 1122 both on the file of the Muvattupuzha Munsiffs Court. They involve a common question as to the construction of a gift deed. Following the procedure adopted in the courts below the appeals were heard together. They are now being disposed of by this common judgment.

(2.) The suit property consists of a kanom holding which originally belonged to Thomman Mani. By Ext. A udampadi dated 13 - 3-1076 he made a gift of the property in favour of his sister Acha for support of herself and her two children Ulahannan and Thomman, then minors, subject to certain considerations. Acha and her children executed on 5-1-1099 Ext. B mortgage and in 1111 a purakkadom in respect of the property. These mortgage and purakkadom rights were Subsequently obtained assignment of, by Aley the wife of one of the sons, viz., Thomman. On 18-1-1114 Acha the mother executed by herself but with the attestation of her other son Ulahannan, Ext. A sale deed of portion of the property in favour of a stranger. This vendee has sought by the suit O. S.48 of 1122 herein for redemption and recover on payment of the mortgage and puravaippa amounts. Acha and her sons are the defendants 1, 3 and 4 and is the 2nd defendant in this suit. The suit was resisted by the 2nd defendant mainly on the footing that the plaintiffs sale deed was ineffective, in that Acha the vendor was, under the terms Ext. A gift not entitled to an absolute interest in any portion of the property. Subsequent to the institution of this suit Thomman the 4th defendant filed his own seperate suit O. S.515 of 1124 for declaration that Ext. A sale was incompetent and for consequential reliefs. In this later suit the vendee was the 1st defendant and Acha and Ulahannan were the defendants 2 and 3. The learned Munsiff of Muvattupuzha before whom the suits came on for joint trial and disposal held that the mother had exceeded her rights in. executing the sale deed Ext. A and accordingly dismissed the redemption suit while allowing the declaratory suit. The learned District Judge of Parur before whom separate appeals were taken by the vendee reversed the decisions of the Munsiff and passed decree to contrary effect. Hence these two appeals by Thomman the plaintiff in O. S.515 and Aley the 2nd defendant in O.S. 48 respectively.

(3.) The short question that arises for consideration in these appeals is as to the exact scope of Ext. I gift deed of 1076. The document is in Malayalam and its operative portion is extracted by the courts below. It is executed in favour of Acha and provides in effect that the property is to be taken for the support of the donee and her santhanoms. She was to attorn to the jenmi direct and pay michavaram and other dues. She was to enjoy the property for her life-time without in any way encumbering the same so that the properties will devolve upon the santhanams. Now there is no doubt that the intention of the donor was to see that the properties were conserved for the benefit of the mother and children as a group and that the children should get the property intact after the death of the mother. The argument on behalf of the mothers alienee which found favour with the learned Judge, was, on the other hand, that the clauses restricting alienation and also enjoyment were repugnant to an absolute interest initially created in the mother and children as coowners and were accordingly void under S.10 and 11 of the Transfer of Property Act, with the consequence that the mother was entitled to deal with her fractional 1/3 share independently of her children. It seems to me, however; that the restrictive clauses were intended rather as a qualification of the estate created by the document in favour of the mother so that what might otherwise be an estate of inheritance, was displaced in effect by the clauses. As expressed by their Lordships of the Privy Council in Tagore v. Tagore. 18 Suth W. R. 359 (365).