NARANATHATTA UTHE AMMA Vs. MAVILA MANI AMMA

JUDGEMENT

(1.) The plaintiffs-appellants are two members of a Malabar tarwad who claim certain shares in properties which under a partition deed (Ex. A) fell to the share of one Kannan Nair. This partition was entered into on September 4, 1924 between Kannan Nair, his brother Koman Nair, bis sister Kunhi Uthamma Amma and her son Krishnan Nair. The two latter are the present plaintiffs. Ex. A divided their tarwad properties into four shares, three of them being main shares, so to say, allotted to the two brothers and the sister and the fourth, a smaller share allotted to the nephew. The document contains various provisions giving very large powers of disposition to the sharers in respect of the properties that fell to their respective shares and detailed provisions are made for the various shares bearing in proportion to the respective shares certain liabilities which were, therefore, joint. Towards the end of the document there is a clause in the following terms: If, while respective sharers are enjoying their property as they please in the manner aforesaid, any one sharer dies and if any properties of the deceased sharer are left behind, such properties shall devolve in equal shares on the others, out of us, living at the time.

(2.) Kannan Nair having got a share under this document executed a will on September 29, 1924 bequeathing these properties in favour of his wife and children who are defendants Nos. 1 to 6 in the present case. The 7 defendant is the other sharer Koman Nair. The plaintiffs contention is that under the terms of Ex. A, Kannan Nair had no power to dispose of his share by will and that on his death the property must be held to have devolved in three equal shares upon the plaintiffs and 7 defendant. The learned Subordinate Judge has declined to accept this construction of Ex. A. He has held that the power of disposition defined in Ex. A will include a power of disposition by will as well and that the clause above quoted will operate only upon such properties as remain wholly undisposed of, whether inter vivos or by will. Hence this appeal by the plaintiffs.

(3.) It is unnecessary to consider whether the clause will be inoperative in law or will be void on the ground that it amounts to a gift over of an estate already given away in absolute terms. Whatever the difficulty may be of reconciling two such clauses in cases where a right is created in a person for the first time, clauses of this kind are well known in partition arrangements in one form or another; compare Nirunjan Singh V/s. Prayag Singh 8 C. 138 and Muthuraman Chettiar V/s. Ponnusamy Udayar 29 M L J 214 : 29 Ind. Cas. 549 : (1915) M W N 405 : 2 L W 533 : 18 M L T 124. The argument before us has accordingly proceeded on the assumption that the clause is not void in law and the contentions on both sides were directed to the construction of the words of disposition contained in the earlier portions of Ex. A. These words are that "the respective persons shall enjoy the property belonging to their respective shares with absolute right, such as purchase, sale etc., and by effecting improvements as they please, getting pattas of the respective shares and paying tirwa to the Sircar, hereafter one sharer shall have no manner of right interest, title or entry in the entire property allotted to the other sharer".