GOPALAN Vs. RAJENDRAN NAIR

JUDGEMENT

(1.) Defendant No.1 is an assignee from defendant No. 2, the mother of plaintiffs 1 to 4 and defendants 3 to 5. The property in question was gifted to defendant No. 2 by her brother as per Ext. A1 reserving a right to receive Rs. 100/-. That right was also relinquished and given in favour of defendant No. 2 as per Ext. A2. Thus defendant No. 2 became absolute owner of the property. At the time of gift plaintiffs 1 to 4 were not born to defendant No. 2. In other words plaintiffs 1 to 4 are children born to defendant No. 2 after the said gift deed. Defendant No. 2 later assigned a portion of property to defendant No. 1 as per Ext. A3 on 26.10.77. The plaintiffs, the children born to defendant No. 2 after the date of the said gift, have come up with this partition suit. Defendants 2 to 5 remained ex parte. Defendant No. 1, the assignee from defendant No. 2 alone contested the suit. His contention was that the plaintiffs did not have any right over the property gifted to defendant No. 2 when she was minor. That gift shall be covered in terms of S.22 of the Travancore Nair Act (2 of 1101) in which case the children born to donee will not have any right to the properties. So the plaintiffs 1 to 4 cannot seek partition. Defendant No. 2 was perfectly justified, as she was only a minor unmarried girl when the gift was so made, to dispose of the property as it was her own. But the Courts below did not accept the contention of defendant No. 1 and decreed the suit concurrently. Therefore, the Second Appeal at the instance of defendant No. 1 raising a question of law as to whether the said gifts, Ext. A1 and Ext. A2, are not covered by S.22 and by reason of such gift made before her marriage, whether the defendant No. 2 shall not become the absolute owner of the property so gifted. Arguments were addressed based on this question of law.

(2.) S.22 of the said Act reads as follows:

(3.) The second question of law is whether the property gifted in favour of defendant No. 2 by her brother when she was an unmarried minor girl could be treated as her own property. Even if it is taken as so when she attains majority, she becomes head of a Thavazhy. Whatever property held by her will enure to the benefit of entire members of the Thavazhy, certainly it will be covered by Travancore Nair Act until the enforcement of Act 30 of 1976.