DEVAKI SARADA Vs. TRIVANDRUM PERMANENT FUND LTD

JUDGEMENT

(1.) These two appeals arise from two separate suits instituted by two different Banking institutions to enforce their debts charged on same immovable property of their common debtor. As they involved similar question of construction of deed, they were heard together and are being disposed of by this single judgment.

(2.) Now Ext.D Udampadi takes the form of a mutual agreement between Govindan an Ezhava father and Devaki, one of his ten children. Under the deed, Devaki gives up her future right to a share of the inheritance in all her fathers estate in return for a present gift by the father in her favour of some of his properties. Exhibit D in terms provide for Devaki to take the property, apply for mutation, obtain patta in her name and enjoy the property with all absolute rights, The document recites that the occasion for the gift was Devakis own request in the matter made apparently with a view to help her husband to obtain bank facilities under Ext. A. And it would appear that the rest of the children got similar gifts though at various other points of time. There can be no doubt that on the wording of Ext. D Devaki can claim to be the exclusive owner of the property and entitled as such to execute the suit hypothecation bond. But it is contended on behalf of Devakis children that the mere fact that the gift was given in the name of Devaki did not mean that she should alone get the benefit of it but the gift must enure to the sub-tarwad of Devaki and her children. The argument is that in conformity with the Marumakkathayam usage in the matter which must be deemed to have still governed him, the donor should be held to have intended to make the gift for the benefit of the group as distinguished from an individual component thereof and if so it did not matter in whose name the gift was made. When once the gift was made it partook of the nature of sub-tarwad property over which the donee acquired no special interest as against the unnamed or even unborn persons who constituted the tarwad. There is, in our judgment, no substance whatever in this submission. For one thing there was no rule even in the days when pristine Marumakkatha-yam law prevailed that under no circumstances could a gift be made by a Marumakkathayam father to his daughter so as to constitute her the sole and absolute owner of his bounty. And with the transfer of emphasis from group to individual ownership brought about by the statutory innovations, there is less scope than ever for gifts in favour of sub-tarwads. For another, the best that the donor himself would say on behalf of the children, whom he was out to support as Dw. 1, was that the gift was intended for their support also. But beyond all, there is the express language of Ext. D Udampadi and the surrounding circumstances which gives a quietus to a contention of this kind. The finding of the court below that Devaki was the absolute owner of the property under and by virtue of the terms of Ext. D Udampadi is therefore perfectly right and the decree in favour of the bank on foot of this construction must be held to be unassailable.

(3.) Before closing we must notice an ingenious argument addressed to us by Mr. T K. Narayana Pillai (Parur), appearing for the children, in the connected appeal based upon the definition of Makkathayam property in S.4 clause (11) and the rule as to divisibility of Makkathayam property contained in S.32 of the Ezhava Act, III of 1100. S.4(11) says.-