(NATUKENDI) PAKKARAN Vs. (VARAYALANKAND KANAYAMBATH) PATHUMMA UMMA

JUDGEMENT

(1.) In this case defendants 2, 3, 6, 7, 8 and 9 are the appellants before me. One Pakran had gifted certain properties to his wife and children. A creditor of one of the sons named Kunhi Poker attached the share of Kunhi Poker, when the question arose as to what exactly was the nature of the interest created in the children of Pakran in the properties gifted by Pakran to his wife and children. The question came up for decision before a Full Bench of this Court Chakkra Kannan V/s. Kunhi Pokker [1915J 39 Mad. 17, and it was decided that the properties gifted by Pakran were tavazhi properties of his wife and children and were governed by the incidents of Marumakathayam Law, and that none of the sons of Pakran had any such rights in the properties as could be seized or sold in execution of a decree obtained against him by one of his creditors.

(2.) The present suit was instituted by one of the daughters of Path Umma, a sister of the said Kunhi Poker, for a declaration that the partition deed Ex. A entered into on 27 August 1919 between defendant 4, defendant 1 (now deceased) and the children of his elder brother, named Ahmad Kutti, defendants 2 to 9, was not valid and binding on the plaintiff. The plaintiff's case was that the properties being governed by the Marnmakathayam Law, the children of Ahmad Kutti had no right to the same and consequently the arrangement evidenced by Ex. A under which they were given some properties would ipso facto be void and not binding upon the plaintiff who is a member of a Marumakathayam tavazhi. The plea of the contesting defendants was that it was in fact a family settlement, that prior to Ex. A, Ahmad Kutti had in conjunction with his younger brother Kimhi Poker and defendant 4 entered into a karar, which is a virtual partition of the tavazhi properties, under which Ahmad Kutti got his share, Kunhi Poker his share, and defendants 4 and 5, the share due in respect of their mother the deceased Patha Umma, that when the karar (Ex. 1) was presented for registration there were difficulties created by virtue of the provisions of the Malabar Moplahs Act, which had in the meantime come into force and that to clear up the disputes which thus arose among the persons interested, this family settlement Ex. A was entered into. The defendants accordingly relied upon Ex. A as a family settlement and contended that even if the plaintiff were able to prove now that defendants 2 to 9 would not under strict law be entitled to any rights, that is not a ground for upsetting a family settlement bona, fide entered into by all the members of the family. Both the lower Courts overruled the contention raised by defendants 2 to 9, decreed the plaintiff's suit, and granted the plaintiff a declaration that Ex. A was not valid and binding on the plaintiff or her puthravakasam tavazhi.

(3.) In this second appeal, Mr. K.P.M. Menon, the learned Counsel for the appellants, contended that the value of the property covered by the suit was beyond the jurisdiction of the District Munsiff's Court, and that neither the District Munsiff nor the Subordinate Judge had jurisdiction to entertain the suit or appeal, and that the plaint ought to have been returned for presentation to the proper Court. His attention was, however, drawn to the circumstance that though there was a vague allegation in the written statement para. 3, that the suit was not sustainable in this Court, no issue was raised in the trial Court on this question, and though the point seems to have been raised before the lower appellate Court, that Court, as I read its judgment ruled that the question could not be raised at that time as no issue had been taken in proper time. There is also a statements in para. 7 of the lower appellate Court's judgment to the following effect: I am of opinion that the court-fee paid and the jurisdiction value shown in the plaint are correct.