Nanikutty Amma and Another vs Kunhiraman Adiyodi and Others

T.S. Krishnamoorthy Iyer, J.—Defendants 2 and 3 are the appellants and the second appeal arises out of a suit instituted by the plaintiffs for recovery of possession of the plaint schedule property after avoiding Ex. A1 lease granted by the first defendant in respect of the same in favor of defendants 2 and 3. Defendants 2 and 3 are the widow and the son of the first defendant. Though the suit was dismissed by the trial court the lower appellate court decreed the same in reversal of the decree of the trial court. The plaint schedule consists of two items of properties. It is admitted that the plaintiffs and the first defendant are members of a tavazhi by name Othayoth Tavazhi. The first defendant was the Karnavan of the tavazhi. It is the admitted case of the parties that the plaint schedule items belongs to the tavazhi. Under Ex. A2 Karar dated 20-1-1913 it was agreed that the management of the tavazhi should be carried on by the eldest male and female members of the tavazhi. Subsequent thereto Ext. A3 agreement was executed among the members of the tavazhi on 6-3-1940. Under the said agreement properties have been allotted for the maintenance of the members of the tavazhi. The first executant in Ex. A3 is the mother of the first defendant and the second executant is the first defendant. The 6th executant is the first plaintiff and the second plaintiff is the son of the first plaintiff. The suit is instituted by the plaintiffs on the ground that the plaint schedule properties have not been allotted for the maintenance of any of the parties to Ex. A3, they continued to be in the management of the 1st defendant and his mother and Ex. A1 executed by the first defendant in favor of defendants 2 and 3 is not binding on the tavazhi and has therefore to be set aside. The first defendant died after the institution of the suit.

The learned counsel appearing for defendants 2 and 3 raised before me four grounds. (1) The plaint properties have been allotted under Ex. A3 for the maintenance of the first defendant and his mother and 1st defendant is therefore competent to execute Ex. A1 and it cannot be questioned during the lifetime of the first defendant. (2) The first defendant died after the Hindu Succession Act and his share in the tavazhi properties has developed upon defendants 2 and 3 and their rights arising therefrom should have been taken into account by the courts below (3) Ex. A3 is not a mere maintenance allotment but is a partition deed and the plaint schedule items have been allotted to the share of the first defendant and the plaintiffs cannot impeach Ex. A1 (4) Ex. A1 is not an improvident transaction.

I shall now take up the first Ground. The plaint is based on the ground that there was no allotment of the plaint properties for the maintenance of the first defendant and his mother in Ex. A3 and they continued to be in the possession of the first defendant and the mother as the senior members of the tavazhi on the basis of Ex. A2. According to the learned counsel appearing for defendants 2 and 3 there was an allotment of these properties for maintenance to the first defendant and his mother. The appellate Judge would find that ''the recitals in Ex. A3 would indicate that the plaint properties were allotted to numbers 1 and 2 of the executants of the documents for their maintenance till their death.'' This, statement was challenged by the learned counsel appearing for the plaintiffs. After allotting certain properties for the maintenance of some of the members of the tavazhi Ex. A3 proceeds

refers to plaint item 1. The learned counsel appearing for the plaintiffs would contend that under the passage above referred to there is no allotment of the property for maintenance to the first defendant and his mother. I do not agree with this contention. P.W. 1 the second plaintiff has also deposed thus:

Item 1 was set apart for the maintenance of Nos. 1 and 2 in Ex. A3.

It is clear from the recital that plaint item I has been allotted to the first defendant and his mother subject to the right of residence in favor of parties 1, 2, 7 and 8 in Ex. A3. But there is no reference to plaint item 2. On a perusal of Ex. A3 it is seen that item 2 has not been allotted for the maintenance of any of the parties in Ex. A3 and therefore it continues to be in the possession of the first defendant and his mother on the terms of Ex. A2.

The suit was instituted during the lifetime of the first defendant. A member, of a marumakkathayam tarawad to whom properties have been allotted for maintenance can execute a ''lease in respect of the same and it will be in force during his lifetime if arrangement is not altered. That cannot be questioned by any member of the tarawad on the ground that it is improvident so long as the maintenance arrangement stands and the maintenance holder is alive. The first defendant died only after the institution of the suit. The learned counsel for the plaintiffs pointed out that if the lease deed is not binding upon the tavazhi it is open to his clients to institute a suit during the lifetime, of the maintenance holder for a declaration that the lease is not binding upon the tarawad. The lease deed shows that it has been executed by the first defendant only in his capacity as a maintenance holder. No interest of the tarawad is sought to be affected by the execution of Ex. A3 and therefore the suit in respect of the plaint item I during the lifetime of the 1st defendant is not maintainable. It is clear from Ex. A1 that the lease cannot bind the interest of the tavazhi in plaint item 2 and the decree of the lower appellate; court allowing recovery of plaint item 2 has to be upheld. It clear from the pleadings that plaint item 2 is only a tank and is not capable of yielding any profit. P.W. 1 who is the second plaintiff has sworn that item 2 is a kuni and the coconut trees planted there are only subsequent to the date of Ex. A1. It is therefore not possible to award mesne profits in respect of item 2. In the nature of my findings it is unnecessary to consider the other questions Raised. As to how far the lease executed by the first defendant in respect of item I will be binding upon the tavazhi after his death is an aspect which need not be considered in this suit and leave the question open. In the result I modify the judgment and decree of the court below by confirming the same only to the extent it has allowed the plaintiff''s recovery of plaint item 2, and in all other respects they are set aside. The second appeal is thus partly allowed and the parties will bear their costs throughout.