The plaintiffs are in appeal.
2. The appellants/plaintiffs approached the trial court for partition of the plaint schedule properties by metes and bounds and for getting 60/156 share in the plaint schedule property claiming that Ext.A1 document executed by one Kesava Panicker of Mangayil family in favour of Palliyil Ikkavamma and her children enure to the benefit of all the members including the children to be born in the thavazhi of Ikkavamma of Palliyil Tharawad. The appellants point out that in view of the Joint Hindu Family (Abolition) Act, 1975, the plaintiffs and defendants, who were born prior to the commencement of the said Act, are entitled to claim share in the plaint schedule property.
3. The respondents, who resisted the suit, contended that Ext.A1 document is not for the benefit of thavazhi of Ikkavamma; and defendants 1 to 5 and children of Ikkavamma executed a partition deed in the year 1972 in respect of plaint schedule property; and thereafter, the 2nd defendant, the mother of the plaintiffs, along with the plaintiffs executed a sale deed in respect of the property obtained by them as per the partition deed; and hence, the plaint schedule property is not liable to be partitioned.
4. The trial court granted a decree for partition of the plaint schedule property as prayed for in the plaint. However, defendants 1, 3, 4, 6 to 9 and 11 to 18 took the matter in appeal before the first appellate court, which reversed the decree holding that the plaint schedule property is not liable to be partitioned. It is in this background, the appellants/plaintiffs have come up before this Court.
5. I have heard the learned counsel for the appellants and the learned counsel for the respondents.
6. The dispute centers around the interpretation of Ext.A1 document executed by Kesava Panicker of Mangayil family in favour of Palliyil Ikkavamma and her children. While the appellants/plaintiffs allege that the same would enure to the benefit of the entire members including the children to be born in the thavazhi of Ikkavamma of Palliyil Tharawad, the respondents would contend that it is not for the benefit of thavazhi of Ikkavamma. In this context, it is profitable to extract the relevant recitals in Ext.A1, which read as follows;
R¾B{áæ¿ ÄÞÕÝß ÄùÕÞ¿á ÕµÏßW 1_Þ¢ ÈdOùáµÞøæa èµÕÖJßÜᢠ¥ÈáÍÕJßÜᢠ§øßAáKÄᢠ¥ÄáB{ßçzW ¾BZAáU ØµÜ ÕßÇÎÞÏ ¥ÕµÞÖBZAᢠµâ¿ß ÉâVHÎÈTÞæÜ ædÆ µ. ÄàùáÕßÜ ÈßÖíºÏߺî ÄàùáÕÙµZ È¿Jß èµÕÖÕᢠÄK ÄàùáÕßÜ 75_©¢ ÈßBç{Þ¿áU ØíçÈÙÕÞrÜc¢ ÈßÎßJ¢ §AÞÕNÏíAᢠçÎWÉùE µáGßµZAᢠçÎÜßW §AÞÕNÏíAáIÞµáK ØLÞÈBZAᢠ¥ÈáÍÕßAÞX Õµ æÕºîí Q
7. The trial court granted a decree in favour of the plaintiffs relying on Section 64 of the Cochin Nair Act XXIX of 1113 ME. The fact that Ext.A1 took effect immediately on execution of the deed is not disputed by the parties. Ext.A1 was registered in the year 1107 ME. Therefore, the said document is governed by the provisions of Cochin Nair Act of 1095 ME, which was then in force. Section 43 of the said Act deals with the construction of bequests, gifts etc. to wife and children, which reads as follows;
“Property obtained from the husband, or father, by the wife or widow, and child or children, by gift, inheritance or bequest, or purchased for their benefit shall, unless, in the case of gift, bequest or purchase a contrary intention appears from the instrument of gift or will or purchase deed, belong to the wife or widow and each of the children in equal shares, they holding it as tenants-in-common with right to individual partition.” (emphasis added).
Section 43 makes it clear that the parties holding the property are to be treated as tenants-in-common with the right to individual partition unless a contrary intention appears on the instrument. In other words, in the absence of a contrary intention, the donees or legatees can only be reckoned as co-owners or tenants-in-common with regard to the subject matter of a gift or a bequest.
8. The learned counsel for the appellants relied on an admission of DW1 in cross-examination that the parties were following the Marumakkathayam law of inheritance and argued that the intention of the execution of Ext.A1 was to assign the property to the thavazhi of Ikkavamma as could be discerned from the then existing circumstances. Here, Ext.A1 does not contain an indication either express or by necessary implication that the intention of the donor was that the property should be enjoyed by the thavazhy as contended by the appellants/plaintiffs. Under such a circumstance, it would be an exercise in futility to search for extraneous circumstances to attribute a different intention to Ext.A1.
9. The gift under consideration in the present case, which was made in the year 1107 ME, must be held to be governed by Section 43 of the Act of 1095. Ext.A1 though styled as a deed, is actually a gift deed as could be discerned from the recitals of the deed. The recitals would say that the persons named in the document have to enjoy the property as co-owners or tenants-in-common. It can also be seen from the records that after the death of Kesava Panicker and Ikkavamma, partition has been effected by the children and further alienation of the property has also been effected by the parties as evident from Exts.B2 and B3 documents. The said alienation has been effected by the 2nd defendant, who is none other than the mother of the plaintiffs.
On an anxious consideration of the entire materials now placed on board, I have no hesitation to hold that the lower appellate court has arrived at a correct conclusion giving the correct interpretation to Ext.A1 and answering the question of law correctly. The impugned judgment does not call for an interference of this Court, in second appeal.
Therefore, the appeal fails; and accordingly, it is dismissed. No costs.
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A.V. RAMAKRISHNA PILLAI, JUDGE //True copy// PA to Judge