JANARDHANAN PILLAI Vs. KALIAMMA

JUDGEMENT

(1.) THE first defendant in a suit on the file of the Subordinate Judge of padamanabhapuram, the decision in whose favour was reversed on appeal by the district Judge, Kanyakumari, is the appellant in the second appeal. Though the relief in the suit is one for partition, the substantial question involved is the validity of a family arrangement entered into during the minority of the plaintiff by the plaintiff's mother as guardian. The suit properties were held as joint family properties by the plaintiff's father Aiyappan Pillai Madhavvan Pillai who died on 17th January 1949. He died leaving Janardhanam Pillai the appellant who is the son by his first wife, the plaintiff his daughter by his second wife, and the second wife Lakshmi the second defendant in the suit. On 15th July 1958 on behalf of the plaintiff her minor daughter and on her own behalf the second defendant entered into the family arrangement evidenced by a registered deed of partition (Ex. A 1 registration copy), whereunder the suit properties were divided principally between the first defendant and the plaintiff. Nine items roughly about a fourth share in the properties were allotted for the plaintiff and her mother the second defendant. Of these the second defendant' was given a right of enjoyment for life in respect of our items the said item to go to the plaintiff after her lifetime. The remaining five items of property were to be taken by the plaintiff on her attaining majority and during her minority these items were to be managed by the second defendant. The deed provided that from out of the properties allotted the maintenance and marriage expenses of the plaintiff should be met. There was a provision in the deed permitting the second defendant to raise money on security of the properties for the purpose of making ornaments for the plaintiff and meeting her marriage expenses. The absolute title of the plaintiff to the properties given to her was recognised. The first defendant himself undertook to discharge the encumbrance if any on the properties that were allotted to the plaintiff. The document recited the circumstances which necessitated the family arrangement. A number of obligations had cropped up between the parties. The first defendant claimed that he was the sole heir of his father and he had instituted a suit O. S. 688 of 1965 challenging the claim of the plaintiff and her mother to shares in the properties of the deceased. Competing mortgages over some properties were made by the parties and this had resulted in hotly contested litigations between the creditors and the parties. It is in these circumstances that on the advice of relations of the parties and respectable persons of the locality the settlement is stated to have been arrived at providing maintenance for the widow for her life and provision for the marriage and maintenance expenses of the plaintiff. It is agreed on both sides that the plaintiff and the second defendant are in possession of the properties that have been allotted to them under the deed of family arrangement.

(2.) THE basis of the suit is the claim by the plaintiff that under the customary law prevalent in the Krishnavagakar community to which the parties belonged the plaintiff was entitled to a half share in the family properties, and that show had been deprived, of her lawful share in the properties under the family arrangement entered into by her mother acting in collusion with the first defendant.

(3.) IN the second appeal the existence of the custom pleaded is the only question that falls for consideration. It is not in dispute that the family of Mathavan Pillai belonged to the Krishnavagakar community following Makkavazhi. In this community according to the plaintiff when a man has two wives on his death his issues share the estate per stripes according to number of wives and not per capita, the children of one wife taking among themselves one half share and the children of the other wife taking the other half share, that is, sharing according to a custom of Pathinibhagam. The plaintiff would have it that this custom extended to a case where one wife had a son and the other wife had only female issues; even in such a case the son or sons by one wife will take a half share and the daughter or daughters by the other wife will take the other half share. The learned subordinate Judge in the court of first instance, on a careful consideration of the evidence in the case regarding the custom, held that the plaintiff has not succeeded in proving the custom in the community of a daughter by one wife succeeding to the family properties along with a son by another wife. He found that there was no proof of any fraud in the execution and registration of the deed of family arrangement, and that there was no case for holding that the mother had acted against the interests of her daughter. In the circumstances, he saw no reason for setting aside the family arrangement and found that it was valid and binding on the parties.