Properties acquired by a Karanavan are presumed to be Tarwad properties unless proven otherwise, and the Hindu Succession Act does not repeal Marumakkathayam Law.

J U D G M E N T

The suit for partition was dismissed by the trial court. The plaintiffs are in appeal.

2. One Lakshmikutty @ Malu Amma is the common ancestress of the parties. The plaintiffs and defendants are, the children or grand children or great grant children of Lakshmikutty. For the sake of convenience the genealogical tree, as given in the A schedule to the plaint is extracted hereunder :-

3. Plaint 'B' schedule consists of five items of immovable properties. They are sought to be partitioned. The plaint 'B' schedule items are claimed to be the thavazhi properties of Lakshmikutty. The contesting defendants dispute the same. They claim that the properties are the separate properties of Lakshmikutty.

4. The trial court held that the properties are the separate properties of Lakshmikutty and accordingly dismissed the suit.

5. I have heard learned counsel Sri.P.A.Harish on behalf of the appellant and Sri.N.M.Madhu on behalf of the contesting respondents.

6. The point that arises for determination is :-

“Is the finding of the trial court that the properties sought to be partitioned are the separate properties of Lakshmikutty, sustainable on the evidence?”

7. For the sake of convenience plaint 'B' schedule items are referred to as the plaint schedule items.

Plaint schedule item No.1 was allotted to Lakshmikutty in Ext.B1 Partition Deed of the year 1984. Plaint item No.2 was allotted to Padmanabhan Nair, the brother of Lakshmikutty in Ext.A1 Partition Deed of the year 1962. It was assigned by him in favour of Lakshmikutty as per Ext.B7 assignment deed of the year 1963. Plaint item No.3 was allotted to the said Padmanabhan Nair in Ext.A2 Partition Deed of the year 1961. It was assigned by him in favour of Lakshmikutty under Ext.B5 assignment deed of the year 1962. Plaint item No.4 consists of two items; item No.4-1 was allotted to Lakshmikutty in a partition of the year 1970. Item 4-2 was allotted to her brother Padmanabhan Nair in the said partition of the year 1970. It was gifted by him to Lakshimikutty under Ext.B10 settlement deed. Plaint item No.5 was allotted to Lakshmikutty, her children and grand children in Ext.A1 Partition Deed of the year 1962. The plaintiffs' contention is that, the assignments under Exts.B7, B5 and B10, and the properties obtained by Lakshmikutty under the partition deeds enure to her thavazhi.

8. It is deemed convenient to consider the nature of acquisitions by Lakshmikutty, document-wise. Firstly, coming to Ext.B1 partition of the year 1984, it deals with plaint item No.1. It is a partition between Lakshmikutty, her children and grand children who were alive as on 01.12.1976. It dealt with the property allotted to the branch of Lakshmikutty in Ext.A2 partition of the year 1961, and also the property that belonged to the husband of Lakshmikutty. In the said partition, 'A' schedule therein was allotted to Lakshmikutty separately. There could not be any dispute, and is not challenged that it is the separate property of Lakshmikutty. She conveyed the property to the 7^th defendant under Ext.B6. Therefore, the said property is not available for partition.

9. Exts.B5 and B7 are the kanam assignment deeds of the year 1962 and 1963 with regard to plaint items 3 and 2 respectively. The assignments are by Padmanabhan Nair, the brother of Lakshmikutty in favour of Lakshmikutty. The question is whether such acquisitions by Lakshmikutty partake the character of thavazhi properties.

10. K.Sreedhara Variar in his book, Marumakkathayam and Allied Systems of Law in the Kerala State, has relied on and quoted from Sri.Sundara Iyer's Malabar and Aliyasantana Law thus:-

“The position under the Marumakkathayam Law is stated as follows : 'As under the Hindu Law, so under the Marumakkathayam and Aliyasantana systems joint holding is the ru