Point of Law: Section 39 of Travancore Nair Act reads nature of right to tarwad property before partition.

JUDGMENT :

The preliminary decree in a suit for partition is under challenge by the 11th defendant.

2. The plaintiffs and the defendants are the successors of one Bhargavi Amma who was a member of one Arackal Tarwad. The plaint schedule consists of 13 items of properties. The plaintiffs claim the properties to be family/thavazhi properties and seek for partition.

3. The 11th defendant(the appellant), who is the son of Bhargavi Amma claimed the properties to be the separate property of their mother Bhargavi Amma. He claimed exclusive title over plaint item Nos.5 and 6 on the strength of Exts.B3 and B4 Settlement Deeds, items 10 and 11 on the strength of Ext.B2 Gift Deed and item 7 under Ext.B5 Will, all executed by Bhargavi Amma. It was also contended that, plaint item No.8 is not partible since Bhargavi Amma had alienated the same to the 13th defendant under Ext.A10 Sale Deed.

4. The trial court held plaint item Nos.1 to 4 and 12 to be family properties. Plaint item Nos.5 to 11 and 13 were held to be the self acquisitions of Bhargavi Amma. The trial court held against Exts.B2 Gift Deed, Exts.B3 and B4 Settlement Deeds and Ext.B5 Will. It is aggrieved thereby that the 11th defendant is in appeal.

5. Heard Sri.T.V.George and Jimmy George the learned counsel for the appellant, Sri.S.V.Balakrishna Iyer, the learned Senior Counsel and Sri.P.Haridas, learned counsel on behalf of the contesting respondents.

6. The points that arise for determination are :-

(i) Are plaint item Nos.1 to 4 and 12 the family properties of Bhargavi Amma ?

(ii) Are plaint item nos.5 to 11 and 13 the self acquisitions of Bhargavi Amma ?

(iii) There being no specific challenge against Ext.A10 Sale Deed, are the plaintiffs entitled to seek for partition ignoring the document ?

(iv) Can Exts.B3 and B4 Settlement Deeds hold good in respect of the properties covered thereunder if the properties included therein are found to be family properties ?

(v) Did Bhargavi Amma have the right to execute Ext.B2 Gift Deed, if the properties covered thereunder are family properties ?

(vi) Proof of Ext.B5 Will executed by Bhargavi Amma ?

7. Firstly I proceed to consider whether plaint item Nos.1 to 4 and 12 are the family properties of Bhargavi Amma. For an easy understanding of the status of parties the genealogical tree is given hereunder :

Karthiyayani Amma is the mother of Bhargavi Amma, the predecessor-in-interest of the plaintiffs and defendants. In the year 1122 M.E, Ext.A1 Partition Deed was executed between Karthiyayani Amma and her children. In the said partition, 'A' schedule property was allotted to Karthiyayani Amma and 'D' schedule property was allotted to Bhargavi Amma. Karthiyayani Amma executed Ext.A2 Will, registered as No. 5 of 1960, bequeathing the property to Bhargavi Amma. In Narayani Amma v Parameswaran Pillai 1963 KLT 630 a Division Bench of this Court relying on the full bench of the Travancore-Cochin High Court in Paravathi Amma Kalliani Amma v Padmanabha Pillai Krishna Pillai 1956 KLT 803(FB) held that, a gift in favour of a marumakkathayee would enure to the taravad/tavazhy. It is not in dispute that the properties obtained by Bhargavi Amma in Ext.A1 family partition and also from her mother Karthiyayani Amma under Ext.A2 Will are imprinted with the nature of family properties. Items 1 to 4 are family properties and the trial court has rightly held so.

8. Now I proceed to consider the nature of plaint item Nos.5 to 11 properties, as to whether they are family properties or the self acquisitions of Bhargavi Amma.

9. Plaint item Nos.7 and 8 were acquired by Bhargavi Amma under Ext.A5 document No.1503 dated 15.07.1988 and plaint item No.9 was acquired by her as per Ext.A6 document No. 1060 dated 28.03.1994. The acquisition under Exts.A5 and A6 being after the abolition of joint family system, there could be no dispute that the acquisitions thereunder are the sel