Natukendi Pakkaran and Others vs Varayalankandi Kanayambath Pathumma Umma and Others

Anantakrishna Ayyar, J.—In this case defendants Nos. 2, 3, 6, 7, 8 and 9 are the appellants before me. One Pakran had gifted certain

properties to his wife and children. A creditor of one of the sons named Kunhi Poker attached the share of Kunhi Poker, when the question arose

as to what exactly was the nature of the interest created in the children of Pakran in the properties gifted by Pakran to this wife and children. The

question came up for decision before a Full Bench of this Court: Chakkra Kannan v. Kunhi Pokker 30 Ind. Cas. 755 : 39 M. 317 : 29 M.L.J. 481

: (1915) M.W.N. 740 : 18 M.L.T. 255, and it was decided that the properties gifted by Pakran were tavazhi properties of his wife and children

and were governed by the incidents of Marumakathayam Law, and that none of the sons of Pakran had any such rights in the properties as could

be seized or sold in execution of a decree obtained against him by one of his creditors.

The present suit was instituted by one of the daughters of Path Umma, a sister of the said Kunhi Poker, for a declaration that the partition deed

Ex. A entered into on 27th August, 1919, between defendant No. 4, defendant No. I (now deceased) and the children of his elder brother, named

Ahmad Kutti, defendants Nos. 2 to 9, was not valid and binding on the plaintiff The plaintiff''s case was that the properties being governed by the

Marumakathayam Law, the children of Ahmad Kutti had no right to the same and consequently the arrangement evidenced by Ex. A under which

they were given some properties would ipso facto be void and not binding upon the plaintiff who is a member of a Marumakathayam tavazhi, The

plea of the contesting defendants was that it was in fact a family settlement, that prior to Ex. A, Ahmad Kutti had in conjunction with his younger

brother Kunhi Poker and defendant No. 4 entered into a karar, which is virtual partition of the tavazhi properties, under which Ahmad Kutti got his

share, Kunhi Poker his share and defendants Nos. 4 and 5 the share due in respect of their mother the deceased Patha Umma, that when the karar

(Ex. 1) was presented for registration there were difficulties created by virtue of the provisions of the Malabar Moplahs Act, which had in the

meantime come into force and that to clear up the disputes which thus arose among the persons interested, this family settlement Ex. A was entered

into. The defendants accordingly relied upon Ex. A as a family settlement and contended that even if the plaintiff were able to prove now that

defendants Nos. 2 to 9 would not under strict law be entitled to any rights, that is not a ground for upsetting a family settlement bona fide entered

into by all the members of the family. Both the lower Courts overruled the contention raised by defendants Nos. 2 to 8, decreed the plaintiff''s suit,

and granted the plaintiff a declaration that Ex A was not valid and binding on the plaintiff or her Puthravakasam tavazhi.

In this second appeal, Mr. K.P.M. Menon, the learned Counsel for the appellants, contended that the value of the property covered by the suit

was beyond the jurisdiction of the District Munsif''s Court, and that neither the District Munsif nor the Subordinate Judge had jurisdiction to

entertain the suit or appeal, and that the plaint ought to have been returned for presentation to the proper Court. His attention was, however,

drawn to the circumstance, that though there was a vague allegation in the written statement para. 3, that the suit was not sustainable in this Court,

no issue was raised in the trial Court on this question, and though the point seems to have been raised before the lower Appellate Court, that

Court, as I read its judgment, ruled that the question could not be raised at that time as no issue had been taken in proper time, There is also a

statement in para. 7 of the lower Appellate Court''s judgment to the following effect:

I am of opinion that the Court-fee paid and the jurisdiction value shown in the plaint are correct.

The learned Counsel argued that, being a question of jurisdiction, he is entitled to raise it even for the first time in second appeal and that the

lower Appellate Court was not right in not having properly considered this objection. Toe learned Counsel wanted to distinguish the Full Bench

decision of this Court in the case reported as Naduvil Edom Karnavan v. Cheriya Parvathi Nettiyar 73 Ind. Cas. 87 : AIR 1924 Mad. 6 : 46 M

631 18 L.W. 1 : 45 M.L.J. 135 : (1923) M.W.N. 489 : 33 M.L.T. 5 stating that in this case hisright of appeal was really affected, and that he

could have in case of proper valuation, come straight to the High Court in first appeal when he would be in a position to address the High Court on

facts and he also stated that even the right of appeal to the Privy Council would be prejudiced if the decision of the Bench in Naduvil Edom

Karnavan v. Cheriya Parvathi Nettiyar 73 Ind. Cas. 87 : AIR 1924 Mad. 6 : 46 M 631 18 L.W. 1 : 45 M.L.J. 135 : (1923) M.W.N. 489 : 33

M.L.T. 5 is applied to such a case. After considering the question, I am inclined to think that the learned Counsel is not entitled to raise this

question of jurisdiction for the first time in second appeal. If I agree with his contention, I will have to remand the case to the first Court for

recording findings after raising a specific issue on the question and after recording fresh evidence on the point. The general allegation in the written

statement to the elect that the suit is not maintainable in this Court is too vague to raise this question, and in any event, could not, unless followed by

the necessary steps by way of framing a specific issue, and letting evidence thereon, be made the basis of a contention in second appeal that the

question of jurisdiction based upon facts should be allowed to be taken here for practically the first time. It may be that, if I go into the question, I

may not be able to satisfy myself that the observation of the lower Appellate Court in para. 7 of its judgment (quoted by me, that ""it was not shown

that the value was not correct,"" should be accepted by me as the record stands. I propose to rest my judgment on the ground that the question

relating to valuation ought to have been specifically raised in proper time and it not having been so raised, it could not be allowed to be raised for

the first time in second appeal I, therefore, overrule the contention on that point.

Mr. Unnikanda Menon, Who followed his learned senior, in regard to the other portions of the case, contended that the lower Appellate Court

has not properly under stood, much less kept in view, the law relating to family settlements. He argued that the policy of the law was in favour of

upholding family settlements and if the members acted bona fide when entering into the arrangement for the purpose of settling any disputes that

might have arisen in the family, then the validity of the claims put forward by each member should not be too much scrutinised. He also argued that

the word ""family"" occurring in the expression ""family settlement"" should be construed liberally, and though particular members may not be members

of the family in the strict legal sense, if they were relations, then according to the English decision the principle of ''family settlements'' should be

made applicable to a settlement made by persons including such members. He drew my attention to the leading case, Stapleton v. Stapleton White

& Tudor''s Leading Cases 1 Eq. 234

On behalf of the respondents it was argued that the evidence in the present case is that there was no dispute at all, much less a bona fide

dispute, and that Ex, I which is really alleged to the basis of the whole argument, has been found by both the Courts to be a concoction. On the

facts, it was submitted, no case arose for interference in second appeal.

To appreciate the facts, it is necessary to state that it was with reference to the very same tavazhi property that the High Court had to lay down

the law in the Fall Bench case, Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755 : 39 M. 317 : 29 M.L.J. 481 : (1915) M.W.N. 740 : 18

M.L.T. 255 , that the property is governed by the incidents of Marumakathayam Law. It is argued that there was no scope for any doubt at all

after that decision whether it was governed by Marumakathayam Law or Muhammadan Law, and whether Ahmad Kutti could be said to have a

right to claim his separate share in the property. Exhibit 1 was presented for registration after Ahmad Kutti''s death. It purports in fact to be a

partition deed entered into between Ahmad Kutti, his brother Kunhi Poker, and sister Pathumma''s children. The contention of the plaintiff was that

Ahmad Kutti did not sign this document and seeing that after Ahmad Kutti''s death his children could not possibly derive any, benefit from the

property of Ahmad Kutti''s branch, with a view to create rights in themselves they concocted Ex. 1, to make it appear that Ahmad Kutti had got

himself divided from the other members of the branch. Both the lower Courts have given prima facie good reasons for coming to the conclusion

that Ex. 1 was a concoction. I am bound by that finding. If Ex. 1 be a concoction, one fails to see having regard to the Full Bench decision already

referred to, how there could be a claim by Ahmad Kutti''s children which might be said to afford occasion for bringing into existence a family

arrangement in the shape of a karar like Ex. A. There is also the further fact that under Ex. E some moveable properties of this branch were

attached in execution of a decree obtained against a member, and it was held that the properties were not liable to be attached.

In these circumstances excepting the mere statement that there was a family settlement, I am not in a position to say that facts have been

established which would, in law, enable me to say that ""family settlement"" was come to, in the present case. The trial Court, whose finding has been

confirmed by the lower Appellate Court, has also referred to certain other facts which also go to prove against the bona fides of the arrangement

evidenced by Ex. A. Some properties were left out. It was mentioned that it was for the purpose of paying debts binding upon the tavazhi. If that

be so, one would expect that the debts would all be mentioned in the settlement and also the value of the property set apart, so that one may be

able to see that only as much property as was necessary to pay off the debts has been set apart for the purpose of seeing that the plaintiff was a

minor at the time. No doubt, the existence of a minor is no legal obstacle in the way of the other members entering into a bona, fide partition

arrangement, so long as the rights of the minor were properly safeguarded. In this case, as I have mentioned, the findings are that there was no

reasonable ground for entertaining any doubt about the nature of the property, and that the way in which the property was dealt with indicated that

the arrangement was not bona fide. The learned Advocate for the appellants, argued that even in such a case the only remedy of the minor would

be to claim the extra property to make good his due share, or '' seek any other relief that might be necessary to supplement the original allotment

made to him, and not to set aside the family arrangement as a whole. But the difficulty in the present case is that both the Courts have found that

there was no pretext for the assumption that the properties were governed by any law other than the Marumakathayam Law. If that be so, there is

justification for the finding of both the lower Courts that there was neither a bona fide claim nor a bona fide dispute, nor a bona fide settlement. The

children born of male members of a Marumakathayam tarwad are not members of that tarwad. Unless, therefore, there were facts from which

Courts could infer that there were some bona fide disputes which required settlement from the facts found in this case I am not in a position to say

that the lower Courts were wrong in finding that the circumstances in this case did not justify the application of the principles regarding family

settlements. This would be sufficient to dispose of the second appeal.

The learned Advocate next argued that the plaintiff asked for possession in respect only of some properties and for declaration in respect of

some other properties, and that the plaintiff ought to have prayed for possession in respect of all the properties. I do not find any discussion in the

lower Appellate Court''s judgment about this point. At the most the result of pursuing this objection would be to allow the plaint to be amended so

that the plaintiff may ask for possession in respect of all the properties after paying the necessary Court-fee. As I do not find the question discussed

in the lower Appellate Court''s judgment and as the issues framed are not specific on this point, I do not think I would be justified in allowing this

point to be raised here at this stage.

Seeing that the findings of fact recorded in the case conclude the matter against the appellants, I do not think it is necessary to pursue any

further the interesting questions relating to family settlements which were discussed before me by the learned Advocates on both sides. For the

above reasons, the second appeal is dismissed with costs. Leave refused. The Civil Revision Petition No. 449 of 1928 also is dismissed with

costs,