KRISHNAN DAMODHARAN Vs. NARAYANAN KUMARAN

JUDGEMENT

(1.) THE plaintiffs 1, 2, 4 to 8, 10 to 22, 24 and 25 are the appellants. THE plaintiffs and defendants 1 to 10 were members of an Ezhava Tarawad consisting of two main branches. Plaintiffs and defendants 6 to 10 belong to one branch and defendants 1 to 5 to the other. THE plaint properties were said to be sub-tarward properties common to both the branches and the suit is for partition of these properties under the Ezhava Act on the per capita basis. THE plaintiffs stated that in 1096, the properties of this sub-tarawad were allotted for maintenance under an Anubhava Udampady Ext. A, that the branch of defendants 1 to 5 was allotted one-half of the properties, that the other half went to the branch of the plaintiffs, that defendants 15 and 16 had obtained some of the plaint properties on mortgage from the branch of defendants 1 to 5, that since these mortgages were executed to discharge the debts mentioned in Ext. A the plaintiffs admitted the same, that the plaintiff's branch had also executed a mortgage for Rs. 4,300/- to discharge a prior debt of the sub-tarward, that the plaintiffs admitted these debts, and that they were entitled to get their share from the plaint properties. Defendants 3, 6 to 13 and 16 filed written statements. THE 3rd defendant while admitting the relationship between the parties contended that Ext. A was an outright partition, that the subsequent conduct of the branches also would show that Ext. A was considered an outright partition, that the plaintiffs were not entitled to claim any share from the one-half of the properties allotted to the branch of defendants 1 to 5, and that the plaintiffs wee not entitled to any relief so far as the properties that came to his branch. THE 6th defendant a member of the plaintiff's branch adopted the contentions of the 3rd defendant and resisted the suit. Defendants 7 to 13 also supported defendants 3 and 6. THE 16th defendant stated that he got a mortgage from the 3rd defendant for some of the plaint properties, and that the same was valid as it was executed by the 3rd defendant who had got himself divided from the plaintiffs under Ext. A. THE plaintiffs filed a replication stating that Ext. A was only a maintenance allotment, that subsequently the properties obtained by the plaintiffs' branch were again allotted among the members of that branch for maintenance under Ext. VII, and that the plaintiffs were entitled to the reliefs claimed in the plaint.

(2.) AT first, one of the plaintiffs alone had filed the suit and on the objection of the defendants that such a suit for partition was not maintainable the remaining plaintiffs were also added, and the suit amended by paying court fees on the market value of the share which all the plaintiffs claimed. The lower court held that the suit as amended was maintainable, that proper court fee had been paid, that Ext. A was only an allotment for maintenance and not an outright partition deed, that after the execution of Ext. A the two branches became divided by course of conduct and that, therefore, the plaintiffs were not entitled to any reliefs. The suit was, dismissed with costs.

(3.) THE provisions, read together, would indicate that Ext. A was intended to be a maintenance allotment and not a partition deed. Because of the mention in Cl. 12 that no change in Ext. A or its provisions was to be made, it was argued for the respondents that the same indicated a permanent arrangement, and so Ext. A was a partition deed. In construing documents of this kind all the provisions are to be read together so as to know what the intentions of the parties were. As observed in Velayudhan v. Lakshmi Pillai (3 T.L.T. 160) and Atchuthan v. Mathevan (23 T.L.J. 1031 F.B.) it may not be profitable to rely upon other documents which, themselves ambiguous in their nature had become the subject matter of judicial decisions, though the legal principles enunciated in such pronouncements may be of utility for the purpose of guidance. It was also pointed out there that the intention of the parties to a document must be gathered from the words and when such words are definite and unambiguous, the courts should not travel outside the words. THE document which was the subject matter of interpretation in the Full Bench ruling in 23 T.L.J. 1031 was also practically like Ext. A. Under that document which was styled as a Nischayapatrom, properties were allotted to the different branches of an undivided tarawad separately, such allotments being more or less of an enduring nature. Limited powers of alienations were conferred on some of the members; but at the same time care was taken to see that the properties were not frittered away by independent dealings and the hold of each branch over the properties given to the other branches was maintained intact in order to prevent them from being lost to the tarawad. Provision was also made for averting revenue sales of the properties from negligence of the branches in possession. All alienations not expressly authorised by the documents were declared invalid. Rules were also laid down for the maintenance of a common Kalary and the performance of the ceremonies connected therewith by all the branches and also for conducting Thalikettu in the Tarawad. THEir Lordships unanimously came to the conclusion that the document read as a whole constituted only a maintenance allotment and not a deed of partition. In Karthyayani Pillai v. Govindan, 19 T.L.R. 178, one of the earliest decisions of this court in interpreting documents, it was stated that in documents allotting properties for maintenance it was usual to find a prohibition against alienation of tarawad properties. THE absence of such a prohibition in the document dealt with there as well as the omission to use the word "Nnehn\mbn" were considered to be two indications to treat the document as a partition deed. Some of the general principles that were to guide a court to interpret a document to know whether it evidenced an outright partition or an allotment for maintenance are laid down in 13 T.L.J. 432, 21 T.L.J. 652, 22 T.L.J. 40, 26 T.L.J. 235, 27 T.L.J. 404, 28 T.L.J. 72, 32 T.L.J. 709 and 16 T.L.T. 139. In 21 T.L.J. 652, though the learned Judges agreed to the decree to be passed in that case, they came to diametrically opposite conclusions as to the nature of the document interpreted there. Mr. Justice P.K. Narayana Pillai held that the provisions in the document evidenced only an allotment for maintenance, whereas Mr. Justice K. Parameswaran Pillai came to the conclusion that it evidenced a partition deed. If it was possible to conclude definitely that the parties to the document intended the arrangement to last for ever, it has to be held that it evidenced a partition deed. If the intention is short of this, it has to be held that it is only an allotment for maintenance, though some of the provisions in the document are not against those we find in an outright partition deed. With these observations, I shall examine the provisions is Ext. A.