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Kandikkalle Purayil Pannan Mayankutti and ors. Vs. Kandikkale Purayil Pannan Kathiri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in86Ind.Cas.747
AppellantKandikkalle Purayil Pannan Mayankutti and ors.
RespondentKandikkale Purayil Pannan Kathiri and ors.
Cases ReferredMakhikeyi v. Kiloth Mammod
Excerpt:
malabar law - tarwad--maintenance--property allotted for maintenance of tavazhi--subsequent acquisition by tarwad--suit by some members of tavazhi for maintenance out of subsequently acquired property whether maintainable. - .....laid was not maintainable. the plaintiffs did not sue for maintenance for the whole tavazhi. the plaintiffs' suit as laid was for maintenance only for certain members of the tavazhi on the ground that the tarwad had acquired some additional property after the karar, ex. a was entered into. it was held in makhikeyi v. keloth mammod 16 m.l.j. 275 that, in order to sustain a suit of this nature, all the members of the tavazhi should sue for maintenance.2. the learned judges distinctly say 'a suit can be brought by the members for an increased allotment of lands on the property or for a money allowance.' here, the suit not being on behalf of all the members of the tavazhi, the subordinate judge rightly held that the suit was not maintainable. it is urged by the vakil for the appellant that.....
Judgment:

Devadoss, J.

1. The first point raised in this second appeal is that the suit is maintainable. The Subordinate Judge held that the suit as laid was not maintainable. The plaintiffs did not sue for maintenance for the whole tavazhi. The plaintiffs' suit as laid was for maintenance only for certain members of the tavazhi on the ground that the tarwad had acquired some additional property after the karar, Ex. A was entered into. It was held in Makhikeyi v. Keloth Mammod 16 M.L.J. 275 that, in order to sustain a suit of this nature, all the members of the tavazhi should sue for maintenance.

2. The learned Judges distinctly say 'a suit can be brought by the members for an increased allotment of lands on the property or for a money allowance.' Here, the suit not being on behalf of all the members of the tavazhi, the Subordinate Judge rightly held that the suit was not maintainable. It is urged by the Vakil for the appellant that Makhikeyi v. Kiloth Mammod 16 M.L.J. 275 has been wrongly decided. I am unable to accept this contention. Sitting as a Single Judge, the judgment of a Bench is binding on me. Even if I am prepared to listen to that argument, I do not think that the case has been wrongly decided. In a Malabar tarwad a member is entitled to be maintained out of its income, but he is not entitled to any specific share of the income. The karnavan is entitled to use the income in any way he likes and no member is entitled to ask for an account provided, of course, the karanvan does not misuse the income or refuse to maintain any member of the family. Here, under Ex. A, certain properties were allotted to the plaintiffs' tavazhi and some other properties were allotted to the maintenance of some other tavazhi. So long as the karar is in force, it is not open to the plaintiffs to come forward and say that they should be given maintenance out of some property which was not the subject of the karar.

3. Then the argument is advanced that the property which is acquired by one of the members or a tavazhi ought to enure for the benefit of both the tavazhis. Paragraph 12 of the karar is against such a contention. It distinctly stipulates that the property of any member should lapse to the tarwad. Therefore, this contention is also untenable.

4. The learned Vakil for the appellants asks for leave to amend the plaint to sue on behalf of the whole tavazhi. He has not asked for an amendment till now and I do not think that in the circumstances, I ought to allow an amendment at this stage. Various questions will arise for decision if such an amendment is allowed. It is open to the plaintiffs to bring a suit for the proper remedy, if any, and I do not think that they are entitled to ask for leave to amend the plaint in the circumstances of this particular case.

5. In the result the second appeal fails and is dismissed with costs.


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