Kumaran Nilacantan Nadar vs Kumaran Nadar Masilamoni Nadar and Another

Subramania Iyer, J.—The Plaintiff is the Appellant. His suit for declaration of his title to 12/13 of 1/6th of the plaint schedule property was decreed by the Munsiff but on appeal by the 1st and 9th Defendants, that decree was reversed and the suit dismissed by the District Judge.

The Plaintiff claimed under a sale deed dated 31-9-1116, Ex. A, by 12 out of 13 members of a sakha or branch in a Nair tarwad of which the 1st Defendant is the karnavan. The declaration is claimed on the basis that the members of the sakha got themselves divided as between themselves, the 12 members on one side and the 1st Defendant the only male member on the other. There is no document of partition. The Plaintiff claims that the division in status was created between the members as a result of conduct. The only conduct depended upon consists of two deeds of transfer, one Ex. B dated 24-10-1110 given by the 1st Defendant and the other, Ex. C dated 9-7-1112 given by the then remaining 11 members of the sakha. These transfers were given in respect of all the shares of the respective executants in certain other property. The transfers were given to the same vendee who was holding the property as a mortgagee of the year 1106 granted by the previous karnavan who died in the year 1110. The consideration for the mortgage was 3200 fanams and the total consideration for Exs. B and C was 3300 fanams, that is to Say, one hundred fanams in excess of the mortgage money. In Edavom 1112 the 1st Defendant filed O.S. 698 of 1112 for redemption of the properties in question of which the Plaintiff was mortgagee. Ex. VI is the decree in that case. It Shows that the 1st Defendant filed the suit and obtained the decree as karnavan, that is, for and on behalf of himself and the other members of his sakha. It is for the purpose of obstructing execution of this decree that the Plaintiff went in for the purchase as per Ex. A as is clear from the facts. Learned Munsiff reached the conclusion that Exs. B and C lead to the necessary inference that the executants got themselves divided in status on account of those documents.

It is true that the law allows a division in status being brought about by conduct of parties. But such conduct leading to such an inference must be clear and unequivocal. Even an expression of intention to divide must be unequivocal to lead to the result of creating a division in status. The conduct for this purpose can be relied upon as proof of the intention of the parties. The law does not say that if member''s of a tarwad happen to alienate an item of immovable property not by one document executed by all of them but by several documents executed by some of them so as to exhaust all the members, that circumstance must necessarily lead to the inference that the executants, that is, the members of the tarwad must have thereby or antecedent thereto become divided in status. There is no case alleged that the parties got themselves divided in status before Exs. B and C and the only case set up is that on account of Exs. B and C they got themselves divided in status because it is urged that division in status is the necessary and inevitable inference arising out of the execution of those two documents. Exs. B and C do not say that the parties have got themselves divided in status. The description of the 1st Defendant in Ex. VI as the karnavan of his sakha was after the execution of the second document. That shows that he was at any rate unconscious that he was not the karnavan of his sakha at that time. Indeed it was as karnavan of an undivided tarwad that he filed the suit and obtained the decree. No contest appears to have been entered by the present Plaintiff who was the Defendant in that case that the Plaintiff in that suit was not the karnavan.

It may be that even if the 1st Defendant had not been the karnavan but was only a co-owner with the other members of the tarwad from whom he got divided in status, the suit might have been maintainable. But in the absence of a contest by the Defendant (present Plaintiff) coupled with the conduct of the Plaintiff (present 1st Defendant) in styling him as the karnavan would indicate that the idea entertained by him at any rate was not that he would get himself divided in status from the other members when he executed Ex. B and even after the other members of the family executed Ex. C. Exs. B and C would appear to be transactions entered into for the purpose of preventing the mortgagee (from?) filing a suit and selling the properties and proceeding against other items of tarwad property for any balance decree amount that there might be. It was in the years of depression that the documents were executed and the excess consideration that they got over and above the mortgage money was the pittance of a hundred fanams. If a suit had been filed the cost incurred would have been far in excess of the consideration got for Exs. B and C. It is well known that if a property is sold in court auction it will not fetch the price which you can get by private bargain. They would rather appear to be a transaction entered into by the members of the family to avert the consequence of a suit by the mortgagee. This is the inference that can be drawn from the aforesaid description of the 1st Defendant in. Ex. VI. Even in Ex. A the transfer relied upon by the Plaintiff, it is not stated that on account of previous conduct the executants had got themselves divided from the 1st Defendant.

Under the circumstances there is no scope on the facts of this case, to apply the rule laid down in - ''Authitchan Easwaran v. Easwaran Narayanan 24 Trav LR 187 (A) that "a course of conduct clearly indicating a settled intention to be divided in interest will effect division." It appears to me clear on the facts that the members of the sakha never got themselves divided in status, as alleged on behalf of the Plaintiff, the only conduct relied upon being as aforesaid. Therefore the conclusion reached by the District Judge is correct and no interference with it is called for. The second appeal should be dismissed with costs.