NEELAKANTA PILLAI Vs. MADHAVI AMMA

JUDGEMENT

(1.) efendant 1 in O. S. No 24 of 1952, on the file of the now defunct District Court of Mavelikara, has brought this appeal against the judgment and decree passed in that suit on 28th March, 1955 whereby a sale deed, Ext. II, dated 30-9-1117 in his favour and in favour of his brother, defendant 2, has been set aside on certain terms. Some time prior to the suit defendant 2 had made over his rights under Ext. II to defendant 1 and the latter alone contested the suit.

(2.) The property conveyed as per Ext. II belonged originally to one Puthuparambu tarwad in Amichakari Muri, Champakkulam Pakuthy, Ambalapuzha Taluk. That tarwad first got itself divided into different branches as per a partition deed in 1099 M.E. Later, on 25-10-1107 one of the branches effected a further division and we are in this appeal mainly concerned with that branch. Ext. D and Ext. II are copies of the partition deed in that branch Another branch of the Puthuparampu tarwad which got the property in question as per the partition of 1099 assigned the same to P.W. 2 on 4-5-1109 (Ext. A, copy), but on 18-2-1112 P.W. 2 sold the property to one Chellamma, a divided member of the branch first referred to - vide Ext. B, copy. Chellamma, defendant 3, Gopalan Nair and defendant 4, Janaki Amma were the children of one Nani Amma. The three plaintiffs in the suit are the daughters of defendant 4. At the time of the partition in their branch (1107), besides these six members there were two other members in the branch. They were Nani Ammas mother Kalyani Amma and the latters son Krishnan Nair (Nani Ammas brother). Krishnan Nair renounced his rights in the branch tarwad properties in lieu of money compensation and Kalyani Amma was content with a provision for her maintenance. The properties of the branch tarwad were therefore divided into six shares and each member took a separate share. Chellamma did not survive long after she took the sale deed of the property concerned in this litigation. She was unmarried at the time of her death and she died intestate. According to the Travancore Nayar Act, 1100 (Act II of 1100) which governs this case On the death of a Nayar female leaving no lineal descendants surviving her, the whole of the self acquired and separate property left undisposed of by her at her death shall devolve on her mothers thavazhi. S.18. At the time of Chellammas death her mother Nani Ammas thavazhi consisted of Nani Amma, her only son (defendant 3), her surviving daughter Janaki Amma (defendant 4) and the latters three children (plaintiffs 1 to 3). The sale deed impugned in this case is one executed by these six persons and Kalyani Amma. She joined the document as under the partition arrangement (1107) her maintenance stood charged on this property as well. All the three plaintiffs were minors when Ext. II was executed and their mother, defendant 4 besides acting on her own behalf also acted as the guardian of her children.

(3.) The plaintiffs sought to set aside Ext. II on the ground that the alienation evidenced by it was not supported by consideration or tarwad necessity and they therefore claimed to recover possession on behalf of their grandmothers thavazhi, together with mesne profits. Defendant 1 the appellant contended that there was consideration for the document, that there was tarwad necessity for the alienation and that there was no ground whatever to set it aside. He disputed his liability for mesne profits and further contended that he had effected various improvements on the property whose value he claimed in the event the court directed him to surrender the property. After an elaborate trial, the learned Additional District Judge, Mavelikara passed a decree setting aside Ext. II and permitting the plaintiffs to recover the property on behalf of their grandmothers thavazhi. The terms of the decree are set out below:-