MUTHUVANA CHIRUTHA (DIED) Vs. MUTHUVANA VELAN (DIED)

JUDGEMENT

(1.) WE think that the legal effect of one of the provisions in the registered (sic), Exhibit A, executed by Thoori and the three then surviving members of his tarwal has not been properly constraed by the lower Courts. That provision is to the effect that Thoor "may appoint any person he likes as the heir" (or (sic)) to a certain property which was kept as "general tarwad property" by Thoor and the other three parties to Exhibit A. Exhibit A , is dated in August 1903. WE think [following Vasudevan v. The Secretary of State for India 11 M. 157 at p. 182.] that when the members of a Malabar tarwad speak of the appointment of an heir, they mean the present affiliation of a stranger into the tarwad and do not mean an alienation of the property by Will or gift-deed to take effect after the death of all the existing members.

(2.) WE, therefore, hold that Thoori was entitled to affiliate the 3rd defendant under the terms of Exhibit A into his tarwad, and not merely to give to her rights in the plaint property to come into existence after the death of all the four parties to the agreement, Exhibit A, and that by Exhibit XV (April 1908) he validly affiliated the 3rd defendant into the tarwad and that the 3rd defendant became co-owner of the plaint Paramba and the house thereon with the then survivors among the parties to Exhibit A. If so, the house being the ancestral family house of the tarwad, the karnavan (the 1st plaintiff) is . not entitled to eject the 3rd defendant therefrom, though he is entitled to get possession of the Paramba round the house as head of the tarwad from the defendants Nos. 1 and 2. The lower Appellate Court s decree will be modified, by-awarding a decree in ejectment to the 2nd plaintiff as against the defendants Nos. 1 and 2 alone as regards all the plaint property, the 2nd plaintiff to get into possession of the Paramba on behalf of the tarwad : and by dismissing the plaintiff s claim so far as it seeks to eject the 3rd defendant also from the house and by deleting the provision in the lower Appellate Court s decree directing her to pay the plaintiff s costs. The 2nd plaintiff after ejecting the defendants Nos. 1 and 2 from the house will be in joint possession of the same with the 3rd defendant s children. As the 3rd defendant supported in her written statement the validty of the devise to the defendants Nos. 1 and 2 by Thoori and has valued her second appeal memorandum on tha Paramba also, there will be no order as to costs of this second appeal.