Kuttyassan vs Mayan and Another

The District Munsif found that plaintiff was the karnavan of his tarwad and that the plaint property was the self-acquisition of the former

karnavan Kunhi Mayan, but that the so-called will (vasyat) was not valid since the property lapsed to the tarwad at Kunhi Mayan''s death in 1859

[Kallati Kunju Menon v. Palal Erracha Menon, 2 M.H.C.R. 162], and hence that the suit was barred.

On appeal the Subordinate Judge concurred with the District Munsif on the first two issues, but held on the authority of Alarmi v. Komu ILR 12

Mad. 126, and S.A. No. 39.5 of 1887, that the will was valid, inasmuch as Kunhi Mayan had a power of disposition by gift inter vivos, and

secondly, that the family had accepted and recognized the life interest of Ummaya and that limitation could only run against defendants from the

date of her death (1880); hence that the suit was not barred.

In the case of Alami v. Komu ILR 12 Mad. 126 the testator had no heirs of any kind, and the question was between his devisees and the

Crown in S.A. No. 395 of 1887, the question was between devisees and Attaladakam heirs only; and in both these cases the will was held valid.

But it is not necessary in the present case to decide whether the principle laid down in Alami v. Komu ILR 12 Mad. 126, would apply when

there were heirs in the tarwad itself, for, on referring to the vasyat (Exhibit A), we find that it purports to be a deed of gift and not a testamentary

disposition, though the gift is limited to a life-interest only. It purports, however, to come into effect at once, and thus must be regarded as a gift

inter vivos, and the Subordinate Judge is fully justified in finding on the evidence that the disposition has been recognized and accepted by the

tarwad.

Time will therefore run from the death of Ummaya in 1880, and, as it is found that defendants only got possession through this lady, the suit is

not barred.

The second appeal is dismissed with costs.