(Koliyote) Mommad Kutti and Others vs Kizhakalagot Puthiyatath Kandi Rammunni Nair and Another

Devadoss, J.—Appeal No. 1543 of 1923: The only question in this case is whether the property in dispute is putravakasara property. The

property was purchased in the names of three brothers by their father. That is the finding of both the lower Courts. The question is whether the

property is putravakasam property in the circumstances of the case.

Mr. Govinda Menon''s contention is that inasmuch as the property was purchased by the father in the names of his sons, it must be understood

that the father gifted the property to the sons. There is no evidence to support that contention and both the Courts on the evidence have found that

the property was purchased by the father in the names of his three sons for the benefit of the family and there is evidence that the mother and the

daughters as well a; the three sons lived together as on family. The next contention is that the gifts to a son or daughter in Malabai families would

not enure for the benefit of the tavazhi or family, and reliance is placed upon Duja Bhandary v. Venku Bhandari [1915] 31 I.C. 854, and

Narasamma Hegadthi v. Billa Kesu [1915] 25 M.L.J. 637. In the case of gifts the terms of the document ought to be considered. If the terms of

the document are clear as in the case of Duja Bhandary v. Venku Bhandari [1915] 31 I.C. 854, and also Narasamma Hegadthi v. Billa Kesu

[1915] 25 M.L.J. 637, the Court would not be justified in treating the property as the property of the family. A father who is governed by the

Malabar law is entitled to make a gift of his property to anybody; it may be given to his daughter or his son and if his intention is to give it to anyone

absolutely nobody is entitled to claim the property for the benefit of the tavazhi or family, but where the intention as gathered from the conduct of

the parties as well as from the circumstances, was to benefit the family, it cannot be said, that because the property was purchased in the names of

only one or two children, that property ought to be considered as the separate property of such child or children.

In this case the finding is that it was purchased benami by the father. Evidently he wanted the property to stand in the names of his children for

his benefit and allowed the members of the family to enjoy the income of the property. In these circumstances the Court is certainly entitled to infer

that the intention of the father was that the family should have the property. Mr. Govinda Menon contends that the Subordinate Judge has not

recorded a finding to that effect. As I read the concluding portion of para. 3 of his judgment, I think he has made his meaning clear, namely, that

the purchase was for the benefit of the family.

It is next urged that Chakkara Kannia v. Kunhi Pokker [1915] 39 Mad. 317, does not apply to the present case. It is difficult to say how that

case could be distinguished from the present. Sir John Wallis, the learned Chief Justice, answers the question referred to the Full Bench in the

following terms:

The presumption is that the donees take the property with the incidents of tarward property including those mentioned. Persons subsequently born

into the tavazhi are entitled to be maintained, but not to claim partition. An individual cannot alienate his share nor can it be attached and sold in

execution of a personal decree against any of the members.

If that is so with regard to gifts, I fail to see how the case cannot apply to the case of a purchase in the names of his sons. The Subordinate

Judge is, therefore, correct in the conclusion he arrived at that the property is puthravakasam property.

The next contention is that the suit is ''barred by limitation. Mr. Govinda Menon wants to raise the contention that as the suit for declaration is

barred, the suit for possession is also barred. In the lower Court the contention raised was that Ravunni Menon enjoyed the property adversely to

the others and, therefore, the plaintiff''s suit was barred. That is now given up and he wants to raise a different point of limitation. Ha is not entitled

to do that. In the result the second appeal fails and is dismissed with costs.

Appeal No. 1544 of 1923.-As regards the first point whether the property is puthravakasam property, my judgment in the other appeal governs

this.

The only other point raised is that the plaintiff must pay the purangadam amount before he could get a redemption of the kanom. Purangadam

deed was executed in 1877. The Subordinate Judge found that the claim under the purangadam deed was barred by limitation. The contention of

Mr. Govinda Menon is that interest was being paid from michavaram and, therefore, the debt under the deed is not barred by limitation. That was

not the case set up by him in the written statement. He stated that interest was due from the very beginnings Ha claimed interest from the date of

the document. That being so, he cannot turn round and say that he appropriated the michavaram towards the, interest due on the purangadam

deed.

It is next urged that the learned Subordinate Judge has not considered Ex. 12-A which is an order of the Subordinate Judge setting aside the

judgment of the Village Munsif in 1886. Any observation in an order like that cannot be evidence in a subsequent case. I do not think the judgment

of the Subordinate Judge is in any way vitiated by his not specifically referring to, Ex 12-A.

The second appeal fails and is dismissed with costs.