KUYYATTIL KUNDAN KUTTY Vs. VAYALPATH PARKUM NATUKANDIYILAKATH THARUVAI

JUDGEMENT

(1.) I regret to differ from my brother in a matter in which he has much greater experience than myself; but I came to a definite conclusion during the argument in this case, and subsequent reflection has not altered it.

(2.) My view is that Exhibit A was a gift to the four ladies absolutely, without the incidents of tarwad property. I do not base my opinion on the fact that there is no mention of the children of the donee in the instrument; I agree with Mr. Anantha Krishna Aiyar s argument that that consideration is irrelevant. Nor do I greatly rely on the fact that the donees in this case are not the wife, nor the wife and children of the donor, but his nieces; though I certainly think that the presumption in favour of a gift being subject to the incidents of tarwad holding is necessarily weaker when the objects of the gift are not the wife and children of the donor. I base my judgment on this; that the donor assigns to his nieces "in full all the rights I possess in respect of the lands aforesaid"; and that it is recited that he possessed "the right of holding with liberty to sell." This express right of alienation seems to me to be in direct conflict with the idea of the property being held with the incidents of tarwad tenure, the chief of which I understand to be that the property is inalienable. The respondents answer to this I understand to be that the words conferring power to alienate are merely inserted to negative the idea of a life-estate. I do not assent to this contention, which seems to me to be merely an attempt to save one artificiality by means of another. It is an inherent danger of case-law that a doctrine laid down in a i judgment is gradually expanded by succeeding decisions till the Court finds itself on the verge of a flat contradiction with the words of a Statute or the terms of an instrument. Somewhere short of that point the process must stop; and to my mind, the construction adopted by the lower Court oversteps the mark, and purports to convey an estate which is at once alienable and inalienable. I have studied with great care the judgments of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee 16 M. 201; 2 M.L.J. 226 and Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; 18 M.L.T. 255; (1915) M.W.N. 740, and I do not feel that my view of this case is in conflict with either of those decisions by which, of course, I am bound. In my opinion, the appeal should be allowed as to three-fourths of the property; but as my brother is of a different opinion, the appeal will be dismissed with costs. Kumaraswami Sastri, J.

(3.) Twenty-second defendant is the appellant. The 19th and 20th defendants and their deceased sisters Patha Kutti Umma and Ayisha got the kanem right in certain properties under the deed Exhibit A, executed by Ammotti Mayan in their favour. Though the deed purports to be a deed of sale in consideration of Rs. 5,348-8 both the District Munsif and the Subordinate Judge find that it was really a deed of gift with an illusory consideration. This finding is binding upon us and the case has, therefore, to be considered on the footing that these four sisters were donees from their uncle. 2.The operative part of the deed is as follows: "I have hereby assigned to you in full all the rights I possess in respect of the lands aforementioned, and have got the tenants to attorn to you and given the lands in possession and have herewith delivered to you in possession the kanom deed. Therefore you should hold (the same) in accordance with the provisions of the kanom deed aforesaid, pay Government assessment and enjoy (the lands)". 3.Plaintiffs and defendants Nos. 1 to 18 are the descendants of the four donees. The 21st defendant filed a suit and obtained a decree against defendants Nos. 19 and 20 and the deceased Patha Kutti Umma, Ayisha not being a party. In execution of the decree he attached the properties and brought them to sale, and the 22nd defendant was the purchaser. The plaintiffs, who are, the heirs of Ayisha (one of the donees), put in a claim under Section 278, Civil Procedure Code, objecting to the attachment but it was dismissed. They, therefore, filed the present suit for a declaration of their title to the property.