PARUKUTTY AMMA Vs. CHELLAMMA

JUDGEMENT

(1.) This appeal arises out of a suit brought by a junior member of a Nair tarwad for cancellation of certain alienations of tarwad properties and a partition deed and for other allied reliefs. Ext. E is a copy of the partition deed sought to be cancelled. It was executed on 23.10.1117 by the plaintiff's mother, Lekshmi Amma who is now dead, and defendants 1 and 5. Defendant 1 is Lekshmi Amma's eldest daughter. Besides defendant 1 Lekshmi Amma had three more daughters, namely, the plaintiff and defendants 3 and 4. Defendant 2 is Lekshmi Amma's son and the brother of the plaintiff and defendants 1, 3 and 4. She had another son, named Sankara Pillai, who was younger to defendant 4, but he died before the institution of the present suit. Defendant 5 is Lekshmi Amma's husband and the father of the plaintiff and defendants 1 to 4 and the deceased Sankara Pillai. At the time of the execution of Ext. E the plaintiff and defendants 1 to 4 and Sankara Pillai were minors and therefore defendant 5 also joined Lekshmi Amma and defendant 1 in the execution of Ext. E, participating in its execution as the father and the guardian of the minors. Lekshmi Amma's thavazhi had got divided from their main tarwad in 1104 under the partition deed, Ext.A. In that partition Lekshmi Amma's thavazhi obtained the plaint schedule properties as their sub tarwad properties. Before any of her children came of age and while she was the only adult member of the sub tarwad Lekshmi Amma sold some of the plaint schedule properties, executing three sale deeds. The earliest of these sale deeds was executed in 1108 and Ext. B is a copy of it. Ext. I dated 23.1.1112 and Ext. II dated 22.8.1114 are the other two sale deeds. The sub tarwad properties remaining after the execution of these sale deeds were divided in 1117 under the partition, Ext. E, after defendant 1 became a major. In that partition separate shares were allotted to Lekshmi Amma defendant 1 and the plaintiff, and a common allotment was made to defendants 2 to 4 and the deceased Sankara Pillai. Subsequently Lekshmi Amma and defendant 1 alienated the properties they got under Ext. E and on behalf of defendants 2 to 4 and Sankara Pillai defendant 5 executed an exchange deed in favour of defendant 9, taking another property in exchange of the property which defendants 2 to 4 and Sankara Pillai got under that partition. The alienations sought to be set aside in the present suit are Exts. B, I and II and the alienations made by Lekshmi Amma and defendant 1 and the exchange deed executed by defendant 5 subsequent to Ext. E. The lower court upheld the validity of Ext. E and refused to set aside that partition deed. Consequently it upheld also the validity of the alienations subsequent to Ext. E which were made on the basis of that partition deed. Of the three alienations executed before Ext. E the lower court set aside Exts. I and II and dismissed the suit so far as Ext. B was concerned. The plaintiff has acquiesced in the finding regarding Ext. B and has filed this appeal against the portion of the lower court's decree dismissing the suit so far as Ext. E and the subsequent alienations are concerned. Defendant 9 has filed a memorandum of objections as regards the portion of the decree setting aside Ext. II and allowing the plaintiff to recover possession of the properties comprised in that deed with mesne profits.

(2.) The ground on which the appellant's counsel impugned the validity of Ext. E before us was that it was executed in contravention of S.10, 35 and 36 of the Travancore Nair Act of 1100. According to the learned Counsel the effect of the contravention of these sections would be to render the partition wholly void, and Ext. E has therefore to be set aside. At the time of the execution of Ext. E the plaintiff's tarwad consisted of Lekshmi Amma, defendant 1, the plaintiff and defendants 2 to 4 and Sankara Pillai. Of these persons, Lekshmi Amma and defendant 1 alone were adults, and the plaintiff and defendants 2 to 4 and Sankara Pillai were minors. Ext. E was executed by Lekshmi Amma and defendants 1 and 5. Defendant 5 joined in its execution for and on behalf of the minors and describing himself as their father and guardian. Under S.10(1) of the Nair Act of 1100 the father is the legal guardian of the person and property of his minor children, but the proviso to that clause enacts that his guardianship shall not extend to their right and interest in their tarwad property. The clause and the proviso are in the following terms:

(3.) Both these cases relate to alienations of minors' properties in favour of strangers. The instrument which is impugned in this case is not such an alienation but a partition deed in a Marumakkathayam tarwad assented to on behalf of the minors by their father. The effect of S.10(1) of the Nair Act of 1100 in such a case has come up directly for decision by a Full Bench of the erstwhile High Court of Travancore in Krishna Pillai v. Govindan Nair, XXXIII TLJ 71. Dealing with this question it has been said in that case: