SUBRAMONIA IYER Vs. RAMAKRISHNA IYER

JUDGEMENT

(1.) The suit out of which this Second Appeal arises was instituted by three plaintiffs, for and on behalf of the Tamil Brahmin Community of Vellangallore Desom, with the necessary sanction obtained under O.1 R.8, CPC for a declaration that the suit property belongs to the aforesaid community and that documents relating to it brought about by the defendants are not valid, and for the recovery of possession of the property. Defendants 1 to 6 contested the suit on the ground, that the property did not belong to the community, but only to the family of defendants 1 and 2, and the documents are valid. The District Munsiff at Irinjalakuda decreed the suit, and in appeal by defendants 1 to 6, the Additional District Judge at Trichur dismissed the suit. The legal representatives of the first plaintiff and the third plaintiff have preferred this appeal.

(2.) The only question which arises for determination is, whether the suit property belonged to the community represented by the plaintiffs, or to the family of defendants 1 and 2. The property originally belonged to Vazhappilli Mana which assigned its rights under Ext. I dated 5th Mithunam, 1102, in favour of the first defendant. On the same day, the Mana assigned several items of properties under Ext. C in favour of the first defendant, his nephew the second defendant and Subramania Iyer, another member of their family. The plaintiffs' case is, that the suit property was being used by the members of their community for a long time as the burning ghat for cremating their dead, and that Ext. I was taken in the name of the first defendant, a leading member of the community on their behalf. The defendants' case is that a plot of 28 cents in the property on the south, was alone used as the cremation ground, by the family of defendants 1 and 2. The question is, which of these versions is true.

(3.) There had been several transactions in the past, between Vazhappilli Mana and the family of the first defendant, and these were settled and adjusted by the execution of the sale deed Ext. C. The differences between Ext. C and I, taken on the same day, can scarcely be ignored, and must throw considerable light on the purpose for which Ext. I was executed. As observed, Ext. C was in the names of three members of the joint family, the first defendant being described as its manager, while Ext. I was in the name of the first defendant only. At the foot of Ext. I, after the schedule of property was set out, apparently for the purpose of registration, the first defendant's description was stated, as a member of the Tamil Brahmin Community, aged 60, his occupation being family management. Though Ext. I purported to be for a consideration of Rs. 50/-, it was expressly given up. It recited, that the property was being used as a cremation ground from time immemmorial. There were no operative words in Ext. A to indicate, that the transferee was to enjoy full proprietorship with the right to effect alienation and mutation of names, D. W. 4, a nephew of the first defendant, a vakil by profession and one who is certainly interested in the family, offered the explanation that, being a gift, the property was not included in Ext. C. As suggested by the learned counsel for the plaintiffs, it was safer for the first defendant to include it in Ext. C which was a sale deed brought about in settlement of prior transactions, considering that there were minor members in the transferor's family, suffice it to say, that the explanation offered by D. W. 4 is the least convincing. His evidence on many points is unacceptable. The second defendant conceded that the first defendant was a leading member of the community at the time.