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Kidangu Kettiya Ramdupurayil Kunhahomed Vs. Payoth Ramdupurayil Sara Umma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1925Mad1158; 90Ind.Cas.849; (1925)49MLJ121
AppellantKidangu Kettiya Ramdupurayil Kunhahomed
RespondentPayoth Ramdupurayil Sara Umma and ors.
Cases Referred and Pattu Neithiar v. Thazatha Meladath Dharman Achart
Excerpt:
.....as their guardians in the execution but the recitals in the document show clearly that it was an allotment for the maintenance of this lady, kunjathumma, and her descendants. here, we have recitals in the document which show clearly that the allotment was made to the tavazhi as such which would include not only the members then alive but also members born thereafter. i think it is perfectly clear from the recital and from, the various references to 'tavazhis' that the allotment was one made to the tavazhi, including future members. the clause relied on by the lower court is a statement in paragraph 5 that the 'stipulations according to this karar shall hold good until your death, but there is a subsequent provision that after the karnavan's death, it was open to the tavazhis to demand..........properties were allotted to them and their families for maintenance. the karar which refers to the tavazhi of plaintiffs' ancestress is filed as ex. i. it is executed by the karnavan's sister, kunjathumma and her nine children and also the children of these children. there are in all thirty-three executants who apparently comprise all the adult members of that tarwad. the minor children are not in terms parties to the karar and their parents do not purport to act as their guardians in the execution but the recitals in the document show clearly that it was an allotment for the maintenance of this lady, kunjathumma, and her descendants. both the lower courts have found that the karar was merely an allotment for the maintenance of the members of the tavazhi who were alive at its date. this.....
Judgment:

Phillips, J.

1. In this suit the plaintiffs claim maintenance from the karnavan of their tarwad. Both the Lower Courts found in their favour and have given a decree for maintenance. The 4th defendant, who claims to be the present karnavan of the tarwad, has filed this appeal, and it is contended on his behalf that the plaintiffs are not entitled to bring this suit without impleading the other members of the tarwad, or at any rate the other members of their tavazhi, because in 1886 the then karnavan, Kunhi Thooppan, entered into karars with his six sisters, under which certain properties were allotted to them and their families for maintenance. The karar which refers to the tavazhi of plaintiffs' ancestress is filed as Ex. I. It is executed by the karnavan's sister, Kunjathumma and her nine children and also the children of these children. There are in all thirty-three executants who apparently comprise all the adult members of that tarwad. The minor children are not in terms parties to the karar and their parents do not purport to act as their guardians in the execution but the recitals in the document show clearly that it was an allotment for the maintenance of this lady, Kunjathumma, and her descendants. Both the Lower Courts have found that the karar was merely an allotment for the maintenance of the members of the tavazhi who were alive at its date. This would be a rather curious position in a Malabar tavazhi of this size because a large number of the members are adult women and it may be ordinarily expected that children would be born shortly after the date of the karar, and it is unreasonable to conclude that after-born children are intended to be deprived of the benefits of this karar unless it is so stated. It must be remembered that at the time when this karar was entered into there had been disputes and litigation in the tarwad and the allotments for the maintenance were made in settlement of those disputes, and therefore it is unlikely that the intention of those parties was that this settlement should be subject to modification immediately other members were born. Here, we have recitals in the document which show clearly that the allotment was made to the tavazhi as such which would include not only the members then alive but also members born thereafter. In paragraph 2 which recites ' the properties set apart for ourselves and our children, etc.,' altogether sixty-nine in number ' now and others, ' the force of that word ' now ' seems to be that it contemplates a different number being in existence hereafter and that the words ' and others ' can only refer to children coming into existence thereafter. It obviously does not refer to strangers and it cannot refer to people in existence for they are said to be only sixty-nine in number. I think it is perfectly clear from the recital and from, the various references to 'tavazhis' that the allotment was one made to the tavazhi, including future members. The clause relied on by the Lower Court is a statement in paragraph 5 that the ' stipulations according to this karar shall hold good until your death, ' but there is a subsequent provision that after the karnavan's death, it was open to the tavazhis to demand increased maintenance if circumstances justified it, and it would be open to all the parties to these karars to take advantage of that condition and apply for enhanced maintenance if it was justifiable, although possibly they would have that right even without a special stipulation. The Lower Appellate Court has held that the karar was to be good only during the lifetime of Kunhi Thooppan and relies on a so-called admission of the deceased first defendant who was karnavan that the karar was not binding on the karnavans who are to succeed Kunhi Thooppan. It appears that the first defendant is a member of the plaintiffs' tavazhi and this statement of his is not one against his interest but it is one in his favour. I do not think in view of the written statement that he has filed which directly contradicts this admission, that much importance can be attached to it. It is not denied that after Kunhi Thooppan's death the members of the plaintiffs' tavazhi have remained in possession of the properties allotted to them in 1886, and we see from the judgment Ex. VIII that the karars entered into at the time of Ex. I continued in force after Kunhi Thooppan's death. It has been held in this Court that an arrangement for maintenance made by a karnavan cannot be set aside by his successor except for good cause [see Ramaswami Pattar v. Gopalan (1916) 33 MLJ 97. ] and it is not suggested here that this maintenance allotment was not a proper one ; consequently it would be binding on Kunhi Thooppan's successors until set aside by a fresh arrangement. I have already found that the document is intended to enure for the benefit not only of the members then in existence but also of persons born subsequently and consequently plaintiffs as members of the tavazhi are entitled to the benefits of the allotment and it appears from the District Munsif's finding on Issue 11 that plaintiffs have been obtaining that benefit, at any rate, until shortly before suit. That being so, if plaintiffs want to set aside the arrangement they must implead the other members of the tarwad, or at least the other members of their tavazhi who are in possession of tarwad properties in lieu of maintenance and claim enhanced maintenance if they think that the circumstances of their family warrant the claim but it is not open to them to have the benefit of an allotment for maintenance to their tavazhi and seek to add to it a separate allotment for each individual ignoring the benefits of which they are already receiving. , The cases relied on by the plaintiffs are Kelu Achart v. Lakshmi Nethyar Ammal (1913) 18 IC 234 and Pattu Neithiar v. Thazatha Meladath Dharman Achart (1913) 21 IC 755 In the former case it was held that a certain maintenance allotment which had not been fully acted upon was liable to alteration in view of altered circumstances. In the latter case, there was an allotment made to a tavazhi consisting of a certain number of persons and the maintenance was fixed at so much per head, it was there held that this was an allotment solely to the members then in existence and had no reference whatever to members who would be subsequently born. This was clear from the terms of the karar, and consequently it was held that other members of the tavazhi were entitled to separate maintenance. The facts of those cases are not identical in any way with the present case, and I hold that the plaintiffs are not entitled to bring this suit in this present form. They may be entitled to enhanced maintenance but in order to obtain it they must bring a suit in proper form impleading all the necessary parties and put the tarwad property in their hands at the disposal of the karnavan with a view to a reallotment for maintenance. The suit accordingly fails and is dismissed. Plaintiffs will pay appellant's costs of this appeal. Each party to bear his own costs in the Lower Courts.


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