CHAKKINGAL TAVAZHI THARAVATHIL KUNHAMMA S DAUGHTER, NAKU AMMA; C NAKU AMMA; CHAKKINGAL PARU AMMA Vs. CHAKKINGAL TAVAZHI THARAVATHIL RAGAVA MENON; CHAKKINGAL KOMU AMMA; CHAKKINGAL KUMMU AMMA

JUDGEMENT

(1.) These appeals relate to the property known as Kula Chumatu, The first question is, whether this property belongs to Naka Amma alone or to her tavazhi and I have no doubt that the Subordinate Judge s conclusion on this question is the right one. Exhibits XXXIV and XIV make it clear that the gift was to her and her children and I find no warrant for construing a gift so expressed as conferring on the donee an absolute title to the property given where, as here, the donee is the wife of the donor and a member of a Marumakattayam tarwad. And it seems to me to make no difference that the karnavan of the tavazhi joined in the gifts. The next question, with which I propose to deal, is whether or not the plaintiffs in Original Suit No. 45 of 1907 can maintain the suit for maintenance against Naka Ammah. The contention is that they are bound to sue the karnavan of their tarwad. Now, whatever, be the rights of members of a twazhi in the tavazhi property, I think there can be no doubt that one of them is to look to the income of the property for maintenance if they are in need of it.

(2.) In the present case, I proceed on the footing that the karnavan of the tarwad is unable to maintain the members. He has said so and Mr. Anantakrishna Iyer did not contend that he is not telling the truth on that point. The members of the tavazhi, therefore, have to look to the tavazhi property or to their private property for their maintenance. It has not been shown--I do not say that it would have made any difference if it had been shown but it has not been shown--that any of the tavazhi members now seeking maintenance has private means sufficient to provide for him an adequate maintenance without the necessity of recourse to the tavazhi property. Therefore, the members have to look to their tavazhi property and, I have no doubt, have a right, if maintenance is denied to them by the managing member, to sue that member for it. I can see no ground on which that right can be denied to them where the circumstances are those of this case. There is no direct authority on this question but we are bound by authorities to hold that putravakasam property is held by the members of the tavazhi to which it belongs, with the ordinary incidents of tarwad property, and no reason has been suggested why in the circumstances of the present case the right to sue for maintenance out of the income, which is the right of a member of a tarwad when maintenance is denied to him, should not be given to the members of the tavazhi. It is not suggested that maintenance has not been refused by Naku Amma. The suit is, therefore, good.

(3.) The property being tavazhi property, the next question is as to the amount of the income. It is contended by the appellant that it should be reduced by the amount of the interest on a debt of Its. 1,500 which, it is claimed, should be held to be a debt binding on the tavazhi. Another sum of Rs. 1,500, which was dealt with in the Court below, is also said by Mr. Anantakrishna Iyer to be a debt binding on the tavazhi, but it was contracted after the period for which maintenance has been claimed in this suit, and he does not contend that the interest payable on that should be deducted from the income out of which maintenance is payable for the period to which these appeals relate. I will, therefore, deal only with the Rs. 1,500 which was taken from Parasurama Patter under Exhibit XIII on the 12th March 1901. On the date of Exhibit XIII, Rs. 500 were paid in cash. Exhibit XIII recites that this sum was intended to pay arrears of rent due by the 2nd defendant and to pay off debts due to the 3rd defendant s husband for money paid by him to the 2nd defendant. The Subordinate Judge is of opinion that all these recitals are collusive and that this sum of Rs. 503 is not a charge of which the tavazhi property ought to be made liable. I find the evidence insufficient to support that conclusion. There is no evidence that no money was borrowed on the 12th March 1904; on the other hand, there is the evidence of Exhibit XXI which, I think, may be accepted as genuine that some rent was paid to Kuttu Bava Rowthen to the extent of about Rs. 300. It is said that even if it was paid, it ought to have been paid out of the tavazhi income and not from borrowed money, but I do not think that this contention can be accepted. Naku Amma is not now being called on to account for her management from its commencement and, if it be shown that she actually paid rent which was due with borrowed money. I think it may be rightly held that the tavazhi is liable to re-pay the debt so borrowed. Then as regards the remainder, about Rs. 130 was paid for a decree debt. Exhibits II and III show that there was a decree against the 2nd defendant which was binding on the plaintiffs. The 2nd and 6th witnesses for the defence are called to show that the money was paid and to explain the circumstances under which it was paid. The 6th witness is, no doubt, the husband of the 2nd defendant s grand-daughter, but there is the fact that there was a decree in that year and I see no sufficient reason for discrediting the evidence that it was paid off as alleged by borrowing money. No doubt, it may possibly be that the endorsement of payment was fabricated afterwards as evidence for this suit but I do not know that that is very important. The decree was there; the money was paid and there is evidence that the payment was made out of the money borrowed under Exhibit X[II. I do not know whether the fact, if fact it be, that the endorsement was, subsequently, concocted greatly affects the question. As regards the sum of Rs. 500, it seems to me to have been proved that they are debts binding on the tavazhi.