1. These appeals relate to the property known as Kula Chumatu, The first question is, whether this property belongs to Naka Amma alone or to her tavazhi and I have no doubt that the Subordinate Judge's conclusion on this question is the right one. Exhibits XXXIV and XIV make it clear that the gift was to her and her children and I find no warrant for construing a gift so expressed as conferring on the donee an absolute title to the property given where, as here, the donee is the wife of the donor and a member of a Marumakattayam tarwad. And it seems to me to make no difference that the karnavan of the tavazhi joined in the gifts. The next question, with which I propose to deal, is whether or not the plaintiffs in Original Suit No. 45 of 1907 can maintain the suit for maintenance against Naka Ammah. The contention is that they are bound to sue the karnavan of their tarwad. Now, whatever, be the rights of members of a twazhi in the tavazhi property, I think there can be no doubt that one of them is to look to the income of the property for maintenance if they are in need of it.
2. In the present case, I proceed on the footing that the karnavan of the tarwad is unable to maintain the members. He has said so and Mr. Anantakrishna Iyer did not contend that he is not telling the truth on that point. The members of the tavazhi, therefore, have to look to the tavazhi property or to their private property for their maintenance. It has not been shown--I do not say that it would have made any difference if it had been shown but it has not been shown--that any of the tavazhi members now seeking maintenance has private means sufficient to provide for him an adequate maintenance without the necessity of recourse to the tavazhi property. Therefore, the members have to look to their tavazhi property and, I have no doubt, have a right, if maintenance is denied to them by the managing member, to sue that member for it. I can see no ground on which that right can be denied to them where the circumstances are those of this case. There is no direct authority on this question but we are bound by authorities to hold that putravakasam property is held by the members of the tavazhi to which it belongs, with the ordinary incidents of tarwad property, and no reason has been suggested why in the circumstances of the present case the right to sue for maintenance out of the income, which is the right of a member of a tarwad when maintenance is denied to him, should not be given to the members of the tavazhi. It is not suggested that maintenance has not been refused by Naku Amma. The suit is, therefore, good.
3. The property being tavazhi property, the next question is as to the amount of the income. It is contended by the appellant that it should be reduced by the amount of the interest on a debt of Its. 1,500 which, it is claimed, should be held to be a debt binding on the tavazhi. Another sum of Rs. 1,500, which was dealt with in the Court below, is also said by Mr. Anantakrishna Iyer to be a debt binding on the tavazhi, but it was contracted after the period for which maintenance has been claimed in this suit, and he does not contend that the interest payable on that should be deducted from the income out of which maintenance is payable for the period to which these appeals relate. I will, therefore, deal only with the Rs. 1,500 which was taken from Parasurama Patter under Exhibit XIII on the 12th March 1901. On the date of Exhibit XIII, Rs. 500 were paid in cash. Exhibit XIII recites that this sum was intended to pay arrears of rent due by the 2nd defendant and to pay off debts due to the 3rd defendant's husband for money paid by him to the 2nd defendant. The Subordinate Judge is of opinion that all these recitals are collusive and that this sum of Rs. 503 is not a charge of which the tavazhi property ought to be made liable. I find the evidence insufficient to support that conclusion. There is no evidence that no money was borrowed on the 12th March 1904; on the other hand, there is the evidence of Exhibit XXI which, I think, may be accepted as genuine that some rent was paid to Kuttu Bava Rowthen to the extent of about Rs. 300. It is said that even if it was paid, it ought to have been paid out of the tavazhi income and not from borrowed money, but I do not think that this contention can be accepted. Naku Amma is not now being called on to account for her management from its commencement and, if it be shown that she actually paid rent which was due with borrowed money. I think it may be rightly held that the tavazhi is liable to re-pay the debt so borrowed. Then as regards the remainder, about Rs. 130 was paid for a decree debt. Exhibits II and III show that there was a decree against the 2nd defendant which was binding on the plaintiffs. The 2nd and 6th witnesses for the defence are called to show that the money was paid and to explain the circumstances under which it was paid. The 6th witness is, no doubt, the husband of the 2nd defendant's grand-daughter, but there is the fact that there was a decree in that year and I see no sufficient reason for discrediting the evidence that it was paid off as alleged by borrowing money. No doubt, it may possibly be that the endorsement of payment was fabricated afterwards as evidence for this suit but I do not know that that is very important. The decree was there; the money was paid and there is evidence that the payment was made out of the money borrowed under Exhibit X[II. I do not know whether the fact, if fact it be, that the endorsement was, subsequently, concocted greatly affects the question. As regards the sum of Rs. 500, it seems to me to have been proved that they are debts binding on the tavazhi.
4. As to the Rs. 1,000 which was taken in 1902 from Parasurama Patter, there is the evidence of the 3rd, 8th and 14th witnesses for the defence whose statements correspond with those of Parasurama Patter. They say that the money was spent on deepening a tank and reclaiming the Kulachumatu lands. It is true that Parasurama Patter was at that time in possession of those lands and, consequently, the Subordinate Judge thinks it highly unlikely that money would have been spent on them by the landlord. But, according to the conditions of this tenancy, Parasurama Patter was bound not to make improvements and, consequently, it was perhaps not unsafe for Naku Amma to spend money herself. I find it difficult to adopt the views of the Subordinate Judge that those documents are all collusive and that they ought not to be accepted as bona fide. It is, no doubt, easy to suggest suspicious circumstance in the transactions. But I find it hard to believe that in 1902, shortly before the first maintenance suit, Naku Amma was getting up these documents so as to reduce the value of the property to her children and grand-children. On the whole, I do not say the evidence is very strong. I think the allegations of collusion are not made out and that these debts should be taken as binding on the tavazhi. The amount of the interest on them is said to be Rs. 131 which will have to be deducted from the Rs. 774, which is found by the Subordinate Judge to be the income available for distribution. That will have to be done before the distribution, but subject to that the distribution will be made on same lines as the Subordinate Judge has made it.
5. There are only two other small points. As to the income from the sale of the tank water, the Subordinate Judge finds, and I think he is justified in finding, that it amounts to Rs. 175 a year on an average. That, I think, is a proper finding and I do not think I should interfere with it.
6. Then, it is suggested, that the distribution is improper; seeing that if the whole income is distributed, each member gets only a bare subsistence allowance if as much as that, I do not see how the Subordinate Judge could have done differently. He has allowed to the 2nd defendant a much larger allowance than he has given to the others. I think his distribution should not be interfered with; of course, as I have reduced the amount available for distribution, the amount which will be given to each member including the 2nd defendant will be reduced in proportion. With this slight modification, Appeals Nos. 129 and 255 wilt be dismissed, and as the appellant has failed on the principal questions, she must pay the costs of the respondents in Appeal No. 129 and 1st to 6th respondent's costs in Appeal No. 255.
7. Appeal No. 5 of 1910 relates to another item of property which is known as Komban patta. The only question in this appeal is whether that property is the absolute property of Naku Amma or belongs to the tavazhi. Exhibit XVIII is the document which evidences its transfer to Naku Amma and by that document the transfer is to her alone. That document is a month and a half after the document Exhibit XXXIV to which I have referred in dealing with the other two appeals; and an argument is based on the difference in the form of these two instruments. By the latter, Exhibit XXXIV, the gift of the property there dealt with was to Naku Amma and her children. By Exhibit XVIII, it is to Naku Amma alone. We are asked to hold that this difference proves that the gift under Exhibit XVIII was a gift of absolute property to Naku Amma. If these two documents had been executed on the same date and drawn up by the same conveyancer, no doubt, that would be strong evidence in favour of the contention. The greater the distance between the dates of the documents the less will be the weight which attaches to such difference. It appears that there was a month and a half between them and I think it can be legitimately suggested that an inference might be drawn in favour of Naku Amma from the difference; but at the same time it has to be remembered that ordinarily in a document conferring an absolute estate we expect to find some words to the effect that the property should be 'enjoyed by you and your sons and grandsons for ever and ever' or some similar words. Here there is nothing. It is only, that the gift is to the wife. Apart from any other consideration if I had Exhibit XVIII and nothing more before me, I should be inclined to hold that it was intended by the donor as a putravakasam gift, a gift for the benefit of Naku Amma and her children in the absence of words to show that he intended to give an absolute estate. Taking it with Exhibit XXXIV alone, I might be inclined to take a different view, but there is other evidence which discounts the effect of Exhibit XXXIV. In Exhibit F, we find that Naku Amma allowed one of her sons to claim a share in this as well as in other properties; and I do not think that it is satisfactorily explained on the ground that she was trying to shield her properties from his creditors for fear that the creditors might take advantage of there being no release of these properties and claim Naku Amma's property as that of Madhava Menon. Exhibit F, I think, may be taken to counter-act such inference as may be drawn from the difference between Exhibits XVIII and XXIV. We find also that the allegation of Naka Amma that she bought this property with her own money is contradicted by her evidence in a former suit, Exhibit G, wherein she lumps this property together with other properties as gifts from her husband, so that the case she originally made that this property was purchased by her for Rs. 200 fails. And as a gift, on the whole, I am unable to differ from the view of the Subordinate Judge that it was intended to be putravakasam gift.
8. An argument was also pressed that the decision in Original Suit No. 177 of 1902 concludes the question between the parties. The 4th defendant there is the person who is now the 1st plaintiff in Original Suit No. 45 of 1907. The plaintiffs in that case alleged that this Komban patta was the family property and the 4th defendant in that case supported that claim in the lower Court; but, in the appeal, the 4th defendant did not appear, but the plaintiffs admitted that Komban patta was the separate, absolute property of Naku Amma. It is suggested that the decision in that appeal on the decision of the Court of first instance that the property was Naku Amma's separate property binds the 1st plaintiff in Original Suit No. 45 in the present case. The Subordinate Judge holds that it is not so, and I think he is right, for in the appeal the 4th defendant made no admission, and in fact did not appear and the Court which tried that suit in the first instance was not competent to try the present suit. The issue whether this land was the sole property of Naku Amma was not an issue on which any relief was sought. It was an issue merely incidental to the question, what amount of maintenance, if any, should be decreed to plaintiffs. The District Munsif who tried that issue is not competent to try the present suit and, on that ground, I am of opinion that the decision in that suit does not bar the present suit.
9. It is hardly contended that the sale and mortgage to the 3rd defendant in Original Suit No. 45 of 1907 should be held good once it is found that the gift was a putravakasam gift enuring for the benefit of the tavazhi. Mr. Ramachandra Aiyar conceded that the gift of Rs. 500 out of love and affection made it impossible to press that contention; he suggested, no doubt, that the 3rd defendant might have a charge on the tavazhi property for a portion of the amount of Exhibit XVIII but that question does not arise in this case. This appeal fails and is dismissed with costs.
Abdur Rahim, J.
10. I agree in the judgment delivered by my learned brother in these appeals. 1 wish to add only a few words on the general question of law which has been raised by Mr. Anantakrishna Aiyar in Appeal No. 129 of 1909. That question is, whether as his contention is, a member of a tavazhi is not entitled to ask for maintenance from the karnavan of that tavazhi, at any rate, so long as there is a tarwad to which such member can look for his maintenance. His argument is that a member of a tavazhi who is also a member of a larger tarwad, is entitled to maintenance only from the tarwad property and in no case can he ask for maintenance from the tavazhi property. It seems to me that this contention is clearly unsound. Though there is no authority directly in point, there can he no question that all the members of a tavazhi have an interest in the tavazhi property. Then if they have an interest in the property, what is the nature of the interest or what is the benefit they are entitled to derive from that interest? When I put this question to Mr. Anantakrishna Aiyar, the learned Vakil went so far as to contend--and he had to go that length in order to make his contention good--that a member of a tavazhi could not look for any benefit from the property and that the income from the property must be accumulated in the hands of the karnavan. It seems to me that this is a proposition which cannot possibly be accepted. The members of a tavazhi, like the members of a tarwad, are not entitled to any share in the tavazhi property. If they have any interest in the tavazhi property at all, they must have what has been called a right of maintenance. It has been authoritatively laid down--and this is not denied--that a tavazhi property is subject to the ordinary incidents which attach to tarwad property. These incidents have not all been clearly defined; but there can be no doubt, whatever they may be, a member of a tavazhi is entitled to an allowance in the nature of maintenance from the tavazhi property. It is argued by Mr. Anantakrishna Iyer that no member of a tarwad is entitled to maintenance unless he resides in the tarwad house. That is, undoubtedly, so. Then he argues further that, unless the member of a tavazhi lives in the tavazhi house, he will not be entitled to maintenance, and suggests that, if we allow the members of a tavazhi the right of maintenance against the karnavan of their tavazhi, then in some cases, it may be difficult to work out their rights. I am not prepared to say that, in some cases, difficulties may not arise; but here we are not faced with any such difficulty, And further, in this case, the karnavan of the tarwad is unable to make any allowance by way of maintenance to the plaintiffs. But so far as at present advised, it strikes me that, even apart from the fact whether there is sufficient property of the tarwad to which a member of the tavazhi can look for maintenance, he has got a right to demand an allowance in the nature of maintenance from the tavazhi property itself. It has been decided, in the first place, that the maintenance which the member of a tarwad can claim is not a mere subsistence allowance. The allowance is to be according to the value of the tarwad property, the position of the members and is not confined to what is just sufficient to satisfy the needs of those members. It has also been decided that the fact that a member of a tarwad is possessed of private means is not a good ground for refusing all allowance to him out of the tarwad property. I think these two facts tend to show that, though the allowance which a member of a tarwad is entitled to receive from the tarwad property is generally called maintenance and is, to a great extent, in the discretion of the karnavan, the words must be understood in a very liberal sense. Thus, if a member of a tarwad is entitled to this allowance independently of whether he has private means or not, and if his right is not limited to mere subsistence allowance when the income of the property admits of more, then I can see nothing inconsistent or anomalous in allowing a member of a tavazhi allowances both from the tavazhi properties and the tarwad properties. On the other hand, if we are to give effect to the contention, which has been urged on behalf of the appellant, we should be reduced to this position, there may be a valuable property which the tavazhi owns and at the same time for years together there must be no use for that property and the income must go on accumulating. That, I think, would be clearly against public policy and certainly is against the spirit of the Malabar Law. This is all that I have to say and I agree on all the points with the judgment delivered by my learned brother.