Eravi Pillai v. Valli Amma — 1952 DIGILAW 135 (KER)

Judgment :- 1. This is an appeal preferred by the plaintiff in O.S. No. 10 of 1121 on the file of the Nagercoil District Court. 16 items of properties are involved in the suit, and according to the plaintiff all these items belong to the tarwad of himself and the 1st defendant. These parties belong to the Krishnan Vaka community governed by Marumakkathayam Law and also by the Travancore Krishnanvaka Marumakkathayee Act (Act VII of 1115). It is by virtue of the right of partition conferred by this Act that the plaintiff has sued for partition and recovery of his half share out of the plaint items. The plaintiff had a sister by name Perumal Pillai and their mother was one Kali Amma who had no other children. Perumal Pillai died in the year 1086 leaving the 1st defendant as her only daughter. The 1st defendant was only two years of age at that time. Kali Amma died in the year 1115 and thereafter the plaintiff and the 1st defendant are the only two members in their tarwad. Regarding these facts there is no dispute between the parties. It is also conceded by the 1st defendant that one-half of items 1 and 2 and the whole of items 12 to 15 as also the equity of redemption of items 7, 8 and 16 of the plaint schedule belong to the tarwad of herself and the plaintiff and are liable to be partitioned as between them. The remaining half share of items 1 and 2 was also acquired in the name of the 1st defendant under Ext. F dated 21.4.1096. Items 3 to 6 were also acquired in her name under Ext. J. dated 10.10.1104. Items 7, 8 and 16 were outstanding on mortgage from the tarwad and this mortgage right had been taken assignment of in the name of the 1st defendant. Similarly item 9 is a mortgage acquisition made in the name of the 1st defendant, while items 10 and 11 are mortgage acquisitions in the joint names of the 1st defendant, and her grand mother Kali Amma. According to the plaintiff these acquisitions in the name of the 1st defendant were for and on behalf of the tarwad of himself and the 1st defendant and with tarwad funds and that the documents were merely taken benami in the name of the 1st defendant. According to the plaintiff these acquisitions in the name of the 1st defendant were for and on behalf of the tarwad of himself and the 1st defendant and with tarwad funds and that the documents were merely taken benami in the name of the 1st defendant. The 1st defendant, on the other hand, contended that the acquisitions standing in her name belong exclusively to her and that the plaintiff is not entitled to claim any share out of those items. Ext. Q is copy of the gift deed executed by her in respect of items 3 to 10 as also in respect of the half share of items 1 and 2, in favour of the 2nd defendant who is her second husband. The plaintiff has sought to set aside this gift deed on the ground that it is invalid and inoperative; while the defendants maintain that the gift is valid. The lower court has upheld the contentions of the 1st defendant and has found that the acquisitions standing in her name are her separate properties. Accordingly the plaintiff's suit for partition and recovery of one-half share in those items has been dismissed and a preliminary decree passed in his favour only in respect of the admitted tarwad properties ie., a half-share of items 1 and 2, the whole of items 12 to 15 and the equity of redemption of items 7, 8 and 16. On the basis of such a preliminary decree a final decree has also been subsequently passed. 2. The plaintiff's appeal is preliminary directed against the finding in the preliminary decree that the items acquired in the name of the 1st defendant are her separate properties in which the plaintiff is not entitled to claim a share. The sustainability of the final decree passed in respect of the remaining items alone has also been questioned by the plaintiff in this appeal. If the plaintiff succeeds in establishing his claim that the properties acquired in the name of the 1st defendant are also tarwad properties liable to be partitioned as between himself and the 1st defendant, the final decree, which has taken into account only a few of the tarwad properties, must necessarily go and a fresh final decree will have to be passed by allotting shares to the respective parties after a partition of all the items which may be found to belong to the tarwad. Thus the real question for decision in this appeal is whether the acquisitions standing in the name of the 1st defendant were made for her tarwad or whether they are separate properties belonging to her exclusively. 3. After examining the nature of the acquisitions standing in the name of the 1st defendant, the lower court has definitely recorded a finding that the consideration utilised for those acquisitions proceeded out of the funds belonging to her tarwad. She has not challenged the correctness of that finding by filing any objection. That finding is also seen to be fully warranted by the evidence on record. The earliest acquisition made in the name of the 1st defendant is the acquisition of the mortgage right under Ext. IX dated 2.3.1092 when she was only a minor aged 12. On the date of Ext. IX itself certain properties belonging to her tarwad had been sold under Ext. E for a consideration of 7000 fanams. This sale deed was executed by Mallan Pillai who was the then Karnavan of the tarwad along with the present plaintiff and his mother Kali Amma in her own capacity and also as the guardian of the 1st defendant. One-half of the sale consideration of 7000 fanams was satisfied by the vendee by his executing Ext. IX in the name of the 1st defendant. Thus there can be no doubt that the consideration for Ext. IX proceeded from the tarwad. In fact it was an acquisition made in exchange for the sale of certain items of tarwad properties under Ext. E. Similarly the consideration obtained under the sale deed Ext. A dated 9.5.1096 executed by Mallan Pillai and other members of the tarwad in favour of DW.1 and another in respect of certain other items of tarwad properties, was utilised for acquiring items 3 to 6 and a half share in items 1 and 2 in the name of the 1st defendant. In this document also the 1st defendant was represented by her grandmother Kali Amma as guardian. Ext. A was for a consideration of 28,000 fanams. A few days prior to the date of Ext. A, Ext. F sale deed in respect of the half-share of items 1 and 2 had been taken in the name of the 1st defendant for a consideration of 4400 fanams. Ext. A was for a consideration of 28,000 fanams. A few days prior to the date of Ext. A, Ext. F sale deed in respect of the half-share of items 1 and 2 had been taken in the name of the 1st defendant for a consideration of 4400 fanams. A nominal amount of 200 fanams alone was paid on the date of the sale deed. Even at that time the 1st defendant was only a minor and was living under the protection of the karnavan of the tarwad. Naturally therefore the sum of 200 fanams paid under Ext. F must have been paid by the karnavan. Ext. A sale deed was executed by the karnavan and other members of the tarwad. The vendee under this document was directed to pay off the balance amount of 4200 fanams that remained due under Ext. F. The vendee accordingly paid off that amount and obtained Exts. G and H release deeds. Thus the acquisition under Ext. F was also made with tarwad funds. A sum of 18,800 fanams out of the consideration due under Ext. A was made good by the vendee by executing the hypothecation bond Ext. I in the name of the 1st defendant. This amount was realised by the plaintiff and his mother Kali Amma by executing the release deed Ext. II dated 24.10.1096. They executed this deed as the guardians of the 1st defendant. On the same day this amount of 18,800 fanams together with an additional amount of 200 fanams was invested under another hypothecation bond Ext. III taken in the name of the first defendant. The amount was subsequently realised by the 1st defendant on 10.9.1104 by executing the receipt Ext. VII. On the same date the mortgages under Exts. B and C were taken in the joint names of the 1st defendant and Kali Amma in respect of items 10 and 11 for 5500 fanams and 7000 fanams respectively. The balance available out of the amount obtained as per Ext. VII receipt was utilised for taking the sale deed Ext. XVI or Ext. J in respect of items 3 to 6 in the name of the 1st defendant. Out of the sale consideration of 14,000 fanams due under Ext. J a sum of 7000 fanams alone was paid as ready cash and for the balance the hypothecation bond Ext. VII receipt was utilised for taking the sale deed Ext. XVI or Ext. J in respect of items 3 to 6 in the name of the 1st defendant. Out of the sale consideration of 14,000 fanams due under Ext. J a sum of 7000 fanams alone was paid as ready cash and for the balance the hypothecation bond Ext. E was executed by the present plaintiff in favour of the vendor. This was subsequently released under Ext. L. Thus it is clear that items 3 to 6, half of items 1 and 2 and the mortgage right over items 10 and 11 were acquired with tarwad funds and also with the funds contributed by the plaintiff who had become the karnavan of the tarwad by the time of Exts. E and F. 4. Then there are the assignments Exts. N, O and XXIV taken in the name of the 1st defendant in respect of the mortgage rights over items 16, 7 and 8 respectively. There is no reliable and independent evidence to show that the 1st defendant had any funds of her own or other independent source of income to be utilised for taking these assignments. On the other hand it is seen that a substantial portion of the mortgage amount due under Ext. C had been obtained by her by executing the release deed Ext. M, within a few days of her taking the assignments under Ext. O and XXIV. The natural and irresistible inference is that the funds obtained under Ext. M as also the other tarwad funds available to her must have been utilised for taking the mortgage rights over items 7, 8 and 16. 5. The next aspect to be considered is whether the above mentioned acquisitions can be treated as the separate properties of the 1st defendant. In upholding the 1st defendant's contention to that effect, the lower court has involved the aid of the doctrine of advancement known and applied under the law of England. Even under the English law this doctrine has only a limited application and only in the case of acquisitions made by a person in the name of his wife or children a presumption is drawn that the acquisitions were intended for their benefit. But this doctrine is not recognised in India as being applicable to the different communities in this country. But this doctrine is not recognised in India as being applicable to the different communities in this country. It has been ruled by the Privy Council in Gopeekrist Gosain v. Gangapursad Gosain (6 MIA 53) that the doctrine of advancement will not apply to the acquisitions made by a Hindu in the name of his sons or other relations. Similarly it was ruled in Moulvia Sayyud Uzhur Ali v. Mussumut Bubee Ultaf Fatima (13 MIA 232) that this doctrine is not applicable to Muslims also. In Palani Mudaliar v. M. Natarajan (AIR 1942 Madras 503) it was ruled that the doctrine of advancement is not applicable to Indian Christians also. The position under Marumakkathayam Law is somewhat different in this respect. Even though the theory of advancement may not as such be applicable to a Marumakkathayee, the Marumakkathayam Law has recognised a presumption that the acquisition made by a marumakkathayee husband or father in the name of his wife or children, are intended to be for the benefit of the sub-tarwad consisting of the wife and children. But no such presumption arises in the case of acquisitions made by a karnavan in the names of the junior members of the tarwad. The karnavan is not under any special obligation to provide for such junior members. On the other hand, his obligation is only to maintain the junior members out of the tarwad funds to the extent justified by such funds. It follows therefore that no presumption is available in favour of the 1st defendant that the acquisitions found to have been made in her name with funds belonging to her tarwad, were intended for her exclusive benefit. 6. In paragraph 26 of the written statement the 1st defendant has set up a definite case that the plaintiff as well as the prior karnavan Mallan Pillai had been recklessly alienating tarwad properties and it was with the object of validating such alienations that portions of the consideration obtained under such alienations were invested by them in making other acquisitions in the name of the 1st defendant. Even accepting this version as true, it will not in any way support the exclusive right claimed by the 1st defendant to the acquisitions standing in her name. Even accepting this version as true, it will not in any way support the exclusive right claimed by the 1st defendant to the acquisitions standing in her name. If the intention of the plaintiff and Mallan Pillai was to make out that their alienations were proper and valid, their object in making other acquisitions in the name of the 1st defendant could only be to make out that such acquisitions have been really to the benefit of the tarwad. The other circumstances disclosed by the evidence in the case are also such as to lead to the same inference. When the acquisitions were made in favour of the 1st defendant, Kali Pillai and the 1st defendant were the only female members in the tarwad. Kali Pillai had become advanced in age and so the members of the tarwad could hope to perpetuate the tarwad only through the 1st defendant. The idea of the disintegration of the tarwad came into prominence among the members of this particular community only in the year 1115 when the Krishnanvaka Marumakkathayee Act was passed. The acquisitions in question were made long prior to that date and at a time when the dominant idea among the members of the community was in the direction of maintaining the integrity of the tarwad with all the acquisitions made in the names of the members, particularly of the female members of the tarwad going to augment the assets of the tarwad. A series of documents have been produced on the side of the defendants to prove the extent to which tarwad properties were alienated by the present plaintiff as also the prior karnavan Mallan Pillai. It is suggested that the 1st defendant did not impeach those alienations because of the belief that the acquisitions made in her name, though with the aid of tarwad funds, were meant to be for her exclusive benefit. What she believed as to her right over these acquisitions, is a matter of no consequence in determining the nature of these acquisitions. Since it has been definitely found that all these acquisitions were made with funds belonging to the tarwad, there is really no scope for the application of the doctrine of advancement of any other presumption. There has only been a conversion of the funds belonging to the tarwad into immovable properties when these acquisitions were made in her name. Since it has been definitely found that all these acquisitions were made with funds belonging to the tarwad, there is really no scope for the application of the doctrine of advancement of any other presumption. There has only been a conversion of the funds belonging to the tarwad into immovable properties when these acquisitions were made in her name. In spite of such a conversion the properties will continue to be tarwad properties over which all the members of the tarwad will have equal rights. The plaintiff might have been guilty of having ruined this tarwad by recklessly alienating the tarwad properties as complained by the 1st defendant. If the 1st defendant was really aggrieved by the same, she should have applied for appropriate reliefs at the appropriate time so as to safeguard and protect the interests of herself and the tarwad. After having failed to do so, she cannot now turn round and say that the plaintiff is not entitled to get a share of the properties that are still left with the tarwad. As already stated, every member of the tarwad, even those who have been acting very much to the prejudice of the tarwad, is entitled to get his legitimate share at the time of partition, out of the assets then available for partition. The view taken by the lower court that the plaintiff by his own conduct has treated the acquisitions standing in the name of the 1st defendant as belonging to her exclusively, is therefore unsustainable. In view of the facts and circumstances already adverted to, we are definitely of opinion that all the acquisitions in the name of the 1st defendant made with the funds belonging to the tarwad, are acquisitions made for and on behalf of the tarwad and that all these properties are partible as tarwad properties. 7. From the findings recorded above it follows that the gift deed Ext. Q executed by the 1st defendant in favour of the 2nd defendant, her husband, is invalid and inoperative. Such a gift deed executed by a junior member of the tarwad in respect of tarwad properties cannot in any way affect the rights of the tarwad over those properties. The properties covered by Ext. Q also are to be partitioned just as the other items of tarwad properties. 8. Such a gift deed executed by a junior member of the tarwad in respect of tarwad properties cannot in any way affect the rights of the tarwad over those properties. The properties covered by Ext. Q also are to be partitioned just as the other items of tarwad properties. 8. In the result of this appeal is allowed with costs through out and a preliminary decree is passed in favour of the plaintiff for partition and recovery of his half share out of all the plaint items. The gift deed Ext. Q is set aside. The final decree passed by the lower court on the basis of the preliminary decree, which has now been modified, is also set aside. The lower court will take the necessary steps for passing a fresh final decree in accordance with the preliminary decree now passed in favour of the plaintiff-appellant. Defendant will suffer their costs throughout. The plaintiff will get mesne profits in respect of his half share of the properties covered by the gift deed Ext. Q from the defendants. No provision is made for mesne profits in respect of the other items because the plaintiff is admittedly in possession of some of these items. Allowed.