Rama Kurup Krishna Kurup vs Rama Kurup Achuta Kurup

Govinda Piliai, J.—Defendant 5 is the Appellant. The appeal is against an order passed in execution allowing the Plaintiff to realise the decree amount by proceeding against some of the properties attached. The Plaintiff is the brother of Defendant 4 and another sister who is not a party to the suit. For monies due to the Plaintiff and realised by Defendant 4 while the Plaintiff was a minor the suit was filed and a decree obtained against Defendant 4. Defendants 5 to 10 are the children of Defendant 4 and the Plaintiffs claim for a decree against the sub-tarwad of Defendant 4 was negatived by the trial Court. The Plaintiff, Defendant 4 and the sister had obtained certain properties from their father both before the Nair Act of 1088 and subsequently. These properties were divided in 1105 under Ex. I partition deed. Since the properties obtained before 1088 were also divided and since the children of Defendant 4 and the sister were entitled to those properties, the children also were made parties to the partition deed. It was stated therein that the properties before 1088 were divided on a per capita basis taking into account the grand-children of the donor in the female line. The properties obtained after 1088 were divided in equal shares between the plaintiff, Defendant 4 and the other sister. It was 60 mentioned in Ex. I. But in allotting the properties, it was stated that schedule I was given to Defendant 4 and her children. Three items of properties were now attached. The first item was S. No. 95/1 with a building thereon. The second item was money directed to be paid by the sister to Defendant 4 under the partition deed Ex. I.

The third item was paddy due to Defendant 4 under a chitty transaction. As regards the paddy there cannot be any doubt or dispute, for that was the amount due to Defendant 4 and hence liable for the present decree-debt. The immovable property S. No. 95/1 and the money provided therein for being paid to Defendant 4 stood on a different footing. It was Defendant 5''s contention that these were the sub-tarwad properties so that the Plaintiff could not attach the same. The Court below overruled this objection and allowed the Plaintiff to proceed against them also.

It was contended on behalf of Defendant 5, Appellant, that though the grand-children of the donor were not entitled to a share in the properties acquired after 1088, the grouping of the properties into three schedules and allotting them to different sharers would indicate that the daughters of the donor intended to give up their separate rights over the properties of the latter category so that the children also would become entitled to the same. The wording in Ex. I is not conclusive on the matter though it is possible to put on such an interpretation on some of the clauses in the partition deed. The other portions of the partition deed would indicate that Defendant 4 and her sister were given properties in lieu of their share and over which they had full powers of disposal. For the purpose of adjustment, certain monies were directed to be paid by Defendant 4''s sister to Defendant 4 and also by Defendant 4 to the sister. If those monies were not paid, it was stated that the same could be realised from the sister and her properties obtained on division. [The portion in Malayalam is omitted here. Its purport is given below (Second executant {i e. 4th Defendant''s sister} and properties obtained on division will be responsible) Ed.] Similarly regarding the money due to the sister it was stated. [Portion in Malayalam is omitted here. Its purport is given below (Second executant has got power to recover that and such, other amount from the first executant (i.e the 4th Defendant) and properties set apart to her share.) -Ed .] The intention of the parties was therefore not clear from the provisions of the partition deed.

The Respondent''s learned Advocate had drawn our attention to the two rulings Philipose v. Ouseph 2 T. L. T. 802 and Naina Pillai and Others Vs. Daivanai Ammal and Another, In the first case it was a partition between certain Christian brothers and their children. The Plaintiff in that case was the son of Defendant 1. Under the partition deed there, Defendant 1, his four surviving brothers, the sons of his deceased brother and the Plaintiff effected a partition of their family properties under which a share was allotted to Defendant 1 and the Plaintiff. The Plaintiff claimed to be entitled to a moiety of the above share and on that basis sought for a partition. It was held that as the Plaintiff had expressly admitted that he had no pre-existing rights over the plaint properties before the date of the partition deed that document could not create any valid title in his favour. In the present case the properties over which Defendant 5 and others had no right and those over which he along with others had the rights were divided. It was not clear from the partition deed as to the properties which Defendant 4''s children obtained because of their rights over the properties acquired before 1088. Equally so was the case as to Defendant 4''s share in the properties acquired after 1088. The law, therefore, as stated in Philipose v. Ouseph 2 T. L. T. 802 could not be applied, at any rate without more evidence as to the attainment of the two categories of the properties.

In the Madras case, the often quoted comment on the Hindu Law by Mayne was extracted and followed. It ran as follows:

.....property which was originally self-acquired may became joint property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it. This doctrire has been repeatedly recognised by the Privy Council. Perhaps the strongest case was one where the owner had actually obtained a statutory title to the property under the Oudh Talukdars Act, I of 1899. He was held by his conduct to have restored it to the condition of ancestral property. The question whether he has done so or not is entirely one of fact, to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection.

The intention of the parties is, therefore, the main test and when the provisions of the document are not clear enough to express the intention it is always proper to take evidence as to the surrounding circumstances and the conduct of the parties to evidence the intention. The parties had not proceeded on this basis and both sides were complaining that their whole evidence had not been taken. The learned Advocates on both sides told us that each of them had some documents with them to show the Intention of the parties or to indicate that some of the observations made by the learned Judge In the Court below were not correct. We do not, '' therefore, decide the question here. We set aside the order passed by the lower Court and send back the case for fresh disposal after giving an opportunity to the parties to call fresh evidence if they desire to do so. In the circumstances we do not make any order as to the costs of this appeal.