Amba Thampuratti v. Kerala Varma Thampuran — 1954 DIGILAW 24 (KER)

Judgment :- 1. The 2nd defendant is the appellant. Originally there were only the plaintiff and defendants 1 and 2 on the party arrary. On the death of the 1st defendant, defendants 3 to 6 were impleaded in the case as additional defendants. Subsequently, the fourth additional defendant died and the seventh additional defendant was added as his legal heir. All these persons are the members of the Panthalam Kottaram. The plaintiff stated that the plaint property belonged to Valia Koikkal, the tarwad of the plaintiff and defendants, that the 1st defendant was the karnavan and manager of that tarwad and that Valia Koikkal tarwad, at the time of the suit, had three branches viz., Vadakkae Kottaram, Srambikal and Thekkedam. The plaintiff belonged to the Srambikkal branch while defendants 1 and 2 belonged to the Vadakkae Kottaram branch. The 2nd defendant was the 1st defendant's direct neice. The 1st defendant had, on 31.1.1113, executed a superior mortgage for the plaint property for Rs. 1500. The property was then outstanding on a mortgage for Rs. 1385. It was alleged that the document had no consideration to the extent of the additional amount said to have been received or given credit to and that this document, copy of which is Ext. K, was invalid and liable to be set aside. It was urged that the 1st defendant, by himself, was incompetent to execute this mortgage deed under the provisions of the Kshatriya Act, that the document had no consideration or family necessity, that the plaintiff or the other members of the family had not consented for the execution of the document, and that the 1st defendant's object was to create the evidence to show that the property belonged to his branch exclusively. It was, therefore, prayed that Ext. K. may be set aside to the extent of the additional consideration recited in the document. 2. The 1st defendant died before filing any written statement. The 2nd defendant contended that, as the plaintiff had filed the suit as a test case, he was to pay court fees on the market value of the property and that the property did not belong to Valia Koikkal. The Panthalam family, because of the increase in the number of members, separated into two branches known by the names of Vliya Koikkal and Kochu Koikkal. Valia Koikkal again separated into two branches, Thekkedam and Vadakkeadom. The Panthalam family, because of the increase in the number of members, separated into two branches known by the names of Vliya Koikkal and Kochu Koikkal. Valia Koikkal again separated into two branches, Thekkedam and Vadakkeadom. The plaintiff and defendants 1 and 2 belonged to Vadakkedam branch. The Vadakkedam branch itself subsequently separated into four branches, Neerazhikettu, Naithalloor, Vadakkey Kottaram and Srambikal. This separation took place even before 1000 M.E. The 2nd defendant belonged to Vadakkae Kottaram sub-branch, and the plaintiff to Srambikal. The plaint property was acquired by Chithira Nal Ramavarma Thampuran of her branch, under a sale deed of 12.7.1032 for 1100 Razis. On his death in 1036, this property was inherited by the Vadakkae Kottaram sub-branch and no other branch had any right over the same. It was also contended that her branch Karnavan Thiruvathira Nal Rajaraja Varma Thampuran had mortgaged it on 30.1.1071 under Ext. II, that there were subsequent mortgages on this property so that the total consideration came to Rs. 1385, that, on reciting Rs. 115 more, the plaint mortgage was executed in her favour with a direction to redeem the previous mortgage, that this sum of Rs. 115 had been reserved for improving the property and for meeting the expenses of registration, that the document was, therefore, supported by consideration and proper necessity, and that the plaintiff was not entitled to any relief. 3. The plaintiff filed a replication. The 2nd defendant's case regarding the branches of the tarwad was said to be not correct. It was stated that the Valia Koikkal tarwad separated into Thekkedam, Vadakkey Kottaram. Neerazhikettu, and Thekkekettu, that Neerazhikettu branch became extinct in 1045 M.E. that there was no branch known by the name of Vadakkedom, that defendants 1 and 2 belonged to the Vadakkey Kottaram branch and the plaintiff to Thekkekettu branch, which was also known as Srambikal, that Naithalloor was only a sub-branch of the plaintiff's Thekkekettu and that this sub-branch became extinct in 1094 M.E. Though the members of the family lived separately in different places for purpose of convenience, they had not become divided in interest. The property was not acquired on sale, as mentioned in the written statement. There was no person by name Chithira Thirunal Rama Varma Thampuran in the defendants' branch. The property was not acquired on sale, as mentioned in the written statement. There was no person by name Chithira Thirunal Rama Varma Thampuran in the defendants' branch. It was stated that the above allegation was made in order to appropriate the property to the branch of defendants 1 and 2 exclusively. Even if the 2nd defendant proved her contention as to the source of acquisition, the property would lapse to the main tarwad on the death of the said acquirer. The mortgage of 1071 was executed by Thiruvathira Nal as the common Karnavan of the tarwad. The plaint mortgage deed had no consideration or necessity and hence it will not bind the Valia Koikkal family. 4. Defendants 3 to 7 were impleaded after this replication. The 3rd defendant who is a member of the plaintiff's branch, filed a written statement supporting the plaintiff, whereas the 5th defendant, a member of the 2nd defendant's branch, supported the 2nd defendant as to the nature and source of acquisition. He however stated that Ext. K had been executed by the 1st defendant without the consent of the members of his branch and that the same was not a matter for consideration in this suit by the plaintiff, who had no right to the property. 5. Suit O.S. 268 of 1115 was tried along with a similar suit O.S. 267 of 1115 filed by the same plaintiff. With the consent of the parties, the whole evidence was recorded in O.S. 267 of 1115, the second appeal from which is S.A.152 of 1125. The evidence referred to here will be with reference to the documents exhibited in that case. The 2nd defendant had produced Exts. XIII and XIV in support of the title of her branch. They were said to be documents taken by Chithira Nal Thampuran in the year 1032. 6. The trial court found that Exts. XIII and XIV had not been properly proved, that the plaint property, therefore, belonged to the Valia Koikkal family, that Ext. K, executed by the 1st defendant in favour of the 2nd defendant was against the provisions of the Kshatriya Act and that the same was, therefore, liable to be set aside to the extent of the additional consideration mentioned therein. The suit was, therefore, decreed with costs. 7. K, executed by the 1st defendant in favour of the 2nd defendant was against the provisions of the Kshatriya Act and that the same was, therefore, liable to be set aside to the extent of the additional consideration mentioned therein. The suit was, therefore, decreed with costs. 7. In appeal A.S. 89 of 1121, the learned Second Judge of Quilon came to the conclusion that Exts. XIII and XIV were genuine, that the plaint property was acquired by the deceased Chithira Thirunal Thampuran of the 1st defendant's branch, while he was a junior member of that branch, that this will not however confer an interest on the branch of defendants 1 and 2 as, according to the law applicable to the parties in 1036, this property should be deemed to have lapsed to the main tarwad and not to the branch of the acquirer and that, in this way, the decree of the trial court could be supported. The appeal was, therefore, dismissed with costs. 8. In this second appeal, the 2nd defendant questions the correctness of the law applied by the lower appellate court. The lower appellate court had definitely entered a finding that the plaint property was acquired by Chithira Nal Ramavarma Thampuran of the 1st defendant's branch while he was a junior member of that branch. This finding is not objected to by the respondents. There is also good evidence to show that this was the acquisition of a member of the 2nd defendant's branch. Exts. XIII and XIV were produced to show that this property was acquired in 1032 by the said Chithira Nal Ramavarma Thampuran. It is seen that Ext. XIV had been produced in the Settlement enquiry case relating to the plaint property. Ext. XI is a copy of the proceedings. 9. One Atham Nal Thampuran of the plaintiff's branch and who also happened to be the senior-most male member in Valia Koikkal applied for Patta for the property. He was then residing in the Thekkekettu of Vadakkey Kottaram. In a letter dated 21.3.1079 written by him to the settlement authorities he had stated that he was the karnavan of the tarwad and that he should be given Patta. He had engaged a Vakil by name Padmanabhan Krishnan who had given a statement before the settlement authorities on 17.12.1079. The Thandapper for this property stood in the name of one Picha Nayinaru. He had engaged a Vakil by name Padmanabhan Krishnan who had given a statement before the settlement authorities on 17.12.1079. The Thandapper for this property stood in the name of one Picha Nayinaru. Vakil Padmanabhan Krishnan had stated that the property must have been obtained on sale by the Karnavan of his client, that he did not know from whom the sale was taken or the name of the Karnavan who took the sale, that the property was in the enjoyment of one Sankaran Narayanan under a mortgage executed by Thiruvathira Nal Thampuran, the deceased karnavan of his client, that his client was the Karnavan, that Chathayam Nal Thampuran residing in Puthan Kottaram was his client's Samavakasi, that the document obtained from the Thandapper-holder was not in the possession of his client, that the same may be with the said Chathayam Nal Thampuran, that his client was not willing to take a joint Patta with Chathayam Nal Thampuran and that he did not know whether the sale deed was in a Vellola or an ordinary stamp Cadjan. 10. The next day, i.e., on 18.12.1079, one Narayanan Kesavan, Vakil of Chathayam Nal Thampuran gave a statement before the settlement officer. He stated that the property was obtained on sale on 12.7.1032 by his client's Valia Karnavan, the deceased Chithira Nal Thampuran, that his client's Karnavan had executed a mortgage and Purakkadam to Sankaran Narayanan of Valachithara house, that the document, obtained from the Thandapper-holder's house was produced and got back after retaining copy there, that it was not a tarwad property, and as such, the Patta was not to be given to Atham Nal Thampuran, that the Vellola sale deed obtained from the Thandapper-holders's family could not be traced, that the Arthapattucheettu was being produced and taken back after furnishing copy, that if the Thandapper¬holder raised any contention, further evidence would be produced, that there was one Nathrukan Nainar, as the heir of the Thandapper-holder and that his client was to get the Patta. 11. On 19.10.1079, the mortgagee had given a statement admitting the mortgage in his favour. 12. The Thandapper-holder's legal representative gave a statement on 15.1.1080 stating that the Thandapper-holder was his grandfather, that the property had been sold to Panthalam Kottaram, that he was the only legal representative of the Thandapper-holder and that the Patta may be given as applied for. 13. 12. The Thandapper-holder's legal representative gave a statement on 15.1.1080 stating that the Thandapper-holder was his grandfather, that the property had been sold to Panthalam Kottaram, that he was the only legal representative of the Thandapper-holder and that the Patta may be given as applied for. 13. On 8.3.1080 one Narayanan Narayanan had given a statement that the property was obtained on sale by the Vadakkey Kottaram of Panthalam, that Thiruvathira Nal Thampuran, the karnavan of that Kottaram had executed a mortgage on 25.12.1046 in his favour for 1501 Razis, that the mortgage deed No. 1726 was produced and got back, that Sankaran Narayanan, who gave the statement regarding the property was his Karnavan and that possession might have been entered in the name of the karnavan in his (Narayanan Narayanan's) absence. Ext. XI is copy of the settlement proceedings. 14. The settlement officer held that since the party in possession was holding the property under a mortgage obtained from Vadakkey Kottaram of Panthalam and the said Kottaram had obtained sale from the Thandapper-holder, Patta should be issued to Atham Nal Thampuran who was the senior-most male member of Vadakkey Kottaram. Since Atham Nal Thampuran was residing in the Thekkekettu of Vadakkey Kottaram the settlement officer might have thought that he was the senior most male member of the Vadakkey Kottaram. The statement in his decision that Patta was to be issued to "Panthalathu Vadakkey Kottaram Mooppu Atham Nal" was significant. The settlement officer also refers to the documents of title and the mortgage deed produced before him. The title deeds were produced by the representatives of the Vadakkey Kottaram. So, it is more or less an acquisition made by a member of Vadakkey Kottaram. 15. The 2nd defendant had, in paragraph 11 of her written statement, stated that Chithira Nal Thampuran, a member of her branch, had acquired the property on 12.7.1032. The answer to this was given in paragraph 6 of the replication where it was stated that the case relating to the acquisition was a concoction for getting right over the property. He had also put forward an alternative case that, even if the acquisition was as mentioned by the 2nd defendant, the property will revert to the main tarwad and not to the branch tarwad. The documents of title were in the possession of the Vadakkey Kottaram. Exts. He had also put forward an alternative case that, even if the acquisition was as mentioned by the 2nd defendant, the property will revert to the main tarwad and not to the branch tarwad. The documents of title were in the possession of the Vadakkey Kottaram. Exts. XIII and XIV which were rightly held to be genuine by the lower appellate court, were produced from proper custody and the 5th defendant (8th defendant in the connected case) who had been examined in this case as DW.1, had spoken to the proper custody of the same. The finding as to the acquisition, entered by the lower appellate court, was also not objected to in this court. So, we confirm the finding of the lower appellate court that the plaint property was acquired by Chithira Nal Ramavarma Thampuran of the branch of defendants 1 and 2, while he was a junior member of the main tarwad. 16. The next question is whether the property acquired by a junior member of a tarwad will lapse on his death to the main tarwad or to the branch to which he belonged or in other words whether the nearest heir will exclude the more remote one. No doubt, it was the practice at one time to treat the acquisition of a junior member as the acquisition of the tarwad. There is no statute for this. The above practice was as a result of the interpretation of the rules of Marumakkathayam law. 17. In Narayanan Kunjan v. Krishnan Govindan, 9 TLR 42, it was mentioned that, though the severity of the rule that the acquisition of individual members of a tarwad are in the eye of the law, the acquisition of the tarwad, has been relaxed in so far as to enable the acquirer to enjoy, during his lifetime the fruits of his own labour, the rule that such acquisitions revert to the tarwad as a whole, and fall, as all other tarwad property does, to the management of the eldest surviving male, was still considered the law of the country and must be enforced by the Courts. 18. 18. In the same volume at page 70 Aiyappan Krishnan v. Chempaka Raman Aiyappan, there is another decision which held that where a junior member of a Marumakkathayam tarwad acquired property, he had the right to dispose of it as he pleased during his lifetime and that on his death, the property would go to the tarwad to be managed by the eldest competent male member and not to the acquirer's nephews or other near relatives. 19. In Raman Govindan v. Raman Raman, 15 TLR 57, it was held that the self-acquisition of an individual member of a Marumakkathayam tarwad would, after his death, lapse to the main tarwad and not to his nephews, and that the acquirer may settle his acquisitions upon the members of his own branch during his lifetime. This was considered in Narayani Pilla v. Krishnan Narayanan, 22 TLR 278. The majority view was that, though the self-acquisition of a junior member would on his or her death, go to the tarwad of which he or she was a member, such acquisition would however go to the members of the sub-tarwad, if such a sub-tarwad claiming the acquirer as a member thereof intervened between him or her and the common tarwad. It was also mentioned there that the policy of the Marumakkathayam law unlike the archaic law, was to give a preferential right to near relations. 20. All the above decisions were considered by a latter Full Bench in Sakthi Kerulan v. Sakthi Sakthi, 24 TLR 102. Sadasiva Iyer, C.J., and Hund, J., agreed to overrule the decision in 15 TLR 57 and the decision in 22 TLR 278 so far as it affirmed 15 TLR 57. Muthunayagom Pillai, J., did not agree to the majority view. The majority view was that the self-acquisitions of a member of a branch tarwad lapsed on his death to his nearest Thavazhi and not to the common tarwad. This decision has stood the ground and it has never been dissented from. The principles laid down here were also adopted in later enactments affecting followers of Marumakkathayam Law. 21. Necessarily, therefore, the acquisitions of Chithira Nal Thampuran who was a member of the branch of defendants 1 and 2, must go to that branch. The learned judge thinks that the law was otherwise in 1036, when Chithira Nal Thampuran died. He is not correct in his view. 21. Necessarily, therefore, the acquisitions of Chithira Nal Thampuran who was a member of the branch of defendants 1 and 2, must go to that branch. The learned judge thinks that the law was otherwise in 1036, when Chithira Nal Thampuran died. He is not correct in his view. The law was the same all through and the only difficulty was that it had not been properly applied in the earliest decisions. So, the plaint property has to go to the branch of defendants 1 and 2. 22. It was argued, that, though a member of the 2nd defendant's branch claimed Patta at the time of the settlement enquiry, his claim was not accepted and the Patta was ordered to be given to the senior most male member of the tarwad at that time and that, therefore, the conduct of the 2nd defendant's branch not to pursue the matter further and set right the wrong issue of the Patta was an indication that the said branch did not lay any special claim to the property. The Patta did not confer any title. As mentioned already, the settlement office might also have been under the impression that Atham Nal Thampuran was a member of the Vadakkey Kottaram. Besides, the property was not in the possession of the family from 1046 onwards. The mortgage of 1046 is referred to in Ext. XI proceedings. It was renewed under Ext. II dated 30.1.1071, where credit is given for the amount received previously on the execution of a mortgage deed. A Melotti Ext. F was executed on 26.6.1087. Another Otti Ext. III dated 18.6.1089, directing redemption of Ext. F, was executed by Chathayam Nal Thampuran of Vadakkey Kottaram. In Ext. III there was an additional consideration of Rs. 45/-. It was stated therein that the property had been acquired by Chithira Nal Thampuran of the executant's branch and that it had been mortgaged by another karnavan of that branch. The plaintiff had admitted the validity of this document. He did not want to question the consideration mentioned therein. It was under Ext. K dated 31.1.1113 that the 2nd defendant go t the superior mortgage. The property was thus all along outstanding on mortgage from 1046 and the question of title to the property was raised for the first time in the present suit. He did not want to question the consideration mentioned therein. It was under Ext. K dated 31.1.1113 that the 2nd defendant go t the superior mortgage. The property was thus all along outstanding on mortgage from 1046 and the question of title to the property was raised for the first time in the present suit. So, nothing turns on the inaction on the part of the 2nd defendant's branch to set right the order relating to the issue of Patta. 23. On a consideration of the whole evidence in the case, we are of the view that the right to the property is still with the branch of defendants 1, 2 and 5 and that the plaintiff or other members of the collateral branch had no right to question any alienation of the plaint property. The decrees passed by the courts below are, therefore, not correct. We reverse the same, allow the appeal and dismiss the plaintiff's suit with costs throughout. Allowed.