Vaidialingam J.
1. Both these appeals by two sets of defendants raise the same question, viz., as to the nature of the estate taken by the 6th defendant, the mother
of the 1st plaintiff, under Exts. E and F dated 6--2--1079 and 22--10--1081 respectively.
The short points leading upto this litigation by the 1st plaintiff are as follows:
The 1st plaintiff is the daughter of the 6th defendant and the second plaintiff is the husband of the 1st plaintiff. Under Exts. E and F, the scope of
which will be considered later on, according to the 1st plaintiff, her mother the 6th defendant, got certain properties which are really the Tarwad
properties in the hands of her mother the 6th defendant. It is also alleged that the 6th defendant executed a gift deed under Ext. K. dated 11--3--
1115 in favour of defendants 1 to 5 who are the children of the sister of the 6th defendant and the said sister is the child of her mother by another
husband. The 13th defendant claims title to these properties in turn under Ext. III dated 27--3--1950. He claims to have purchased properties
from defendants 1 to 5.
2. According to the plaintiff, in view of the fact that the said properties are the sub-tarwad properties in the hands of her mother, the 6th defendant
has no power to execute a gift deed of the same and as such the gift deed is not valid and binding on her. Therefore the suit was to set aside this
gift deed evidenced by Ext. K.
3. The suit was contested by the defendants on the ground that the properties acquired by the 6th defendant under Exts. E and F, do not constitute
the sub-tarwad properties in the hands of the 6th defendant. According to them, the benefit of the sale in one case under Ext. E, and gift deed
under Ext. F, enure exclusively for the benefit of the 6th defendant. It is the further case that the 6th defendant was quite competent to execute the
gift under Ext. K without any reference to the 1st plaintiff in this case. They have also taken certain other objections to the effect that the 6th
defendant has no power to cancel the gift deed validly executed by her. They have also taken objection to the maintainability of the suit by the 1st
plaintiff on the ground that she has practically accepted the position that the property obtained by her mother was only in her own right and the
defendants have placed certain reliance on certain transactions which will be adverted to later on.
4. The 13th defendant also contended that the properties acquired by the 6th defendant belong exclusively to her under Exts. E and F and
therefore defendants 1 to 5 got valid title under Ext. K and in turn the 13th defendant has also obtained title under Ext. III.
5. The trial court accepted the case of the defendant and came to the conclusion that the property obtained by the 6th defendant under Exts. E and
F enure only for her benefit. The trial court was also of the view that the 6th defendant and her brother Kunjukrishna Pillai have partitioned the
properties on 31--1--1106 in their own right. The trial court makes a reference that the plaintiffs have not produced the said document before the
court, but any how it is now on record and that is Ext. V.
6. According to the trial court, after Ext. V, there was a partition in the tarwad to which the 6th defendant, the 1st plaintiff and the brother of the
6th defendant, viz., Kunjukrishna Pillai were parties and that partition is evidenced by Ext. I of 1112. According to the trial court, some of the
recitals and the way in which the shares were adjusted will clearly show that the 1st plaintiff, who was a party to Ext. I, has accepted the full title of
her mother to the properties obtained under Exts. E and F. The trial court was also of the view that a reading of Exts. E and F will only show that
the intention was to benefit only the two individuals mentioned therein, viz., the 6th defendant and her-mother and therefore the trial court was of
the view that the presumption u/s 41 of the Nair Act is sufficiently rebutted by the evidence in this case. On a consideration of these circumstances,
the trial court dismissed the plaintiff''s suit and held that Ext. K is valid and binding and the plaintiff is not entitled to have it set aside.
7. On appeal by the plaintiff, the learned District Judge of Alleppey, has differed from the conclusions arrived at by the trial court and reversed the
decree and judgment of the trial court. According to the learned Judge, a reading of Exts. E and F will clearly indicate that there was no intention to
show that the only two parties, viz., defendant 6 and her brother Kunjukrishna Pillai alone were intended to be benefited by this, on the other hand
the learned Judge finds no intention to the contrary in this document to apply the ordinary presumption arising u/s 41 of the Nair Act. The learned
Judge was also not impressed with the reliance placed by the trial court on the recitals in Ext. I to which the 1st plaintiff was admittedly a party.
According to the learned Judge, the properties have been ultimately allotted to the group forming the 1st plaintiff and her mother the 6th defendant
and therefore the recitals as such cannot be put against the 1st plaintiff. A reference to Ext. V really shows that all the properties in the hands of the
6th defendant was only a Sakha property of the 6th defendant and not a separate exclusive property of the 6th defendant. The learned Judge was
not also inclined to accept the reliance placed by the trial court on Exts. D and L. Under Ext. D dated 18--5--1115, the 6th defendant purported
to have cancelled the deed of gift Ext. K dated 11--3--1115. According to the trial court, the 1st plaintiff must have had a hand in these recitals
and therefore those two documents will have to be put against the present claim made by the plaintiff.
8. The learned Judge on the other hand was not inclined to place any reliance on the recitals in Exts. P and L. Admittedly the plaintiff was not a
party to these two documents. As he was satisfied in view of the recitals contained in Exts. E and F, that there was no contrary intention so as not
to apply the ordinary presumption u/s 41 of the Nair Act, he came to the conclusion that the properties obtained by the 6th defendant under Exts.
E and F are tarwad properties and not properties belonging exclusively to her. In this view, the appellate court set aside Ext. K as prayed for. In
sequence of Ext. K falling to the ground, naturally the consequence of the same was that Ext. III, the document of sale in favour of the 13th
defendant, also automatically stood discharged.
9. Against the decree and judgment of the learned District Judge, these appeals have been filed. S.A. 183/56 is by the 13th defendant who is the
purchaser from defendants 1 to 5 under Ext. III. Defendants 3 to 5, in whose favour the gift deed was executed by the 6th defendant, are the
appellants in S.A. 306/56.
10. The arguments in these two appeals were advanced by Mr. T.S. Krishnamurthi Iyer, counsel for the appellants in S.A. 306/56 and Mr.
Parameswaran Nair Learned Counsel appearing for the 13th defendant in S.A. 183/56 supported in full the contentions of Mr. T.S. Krishnamurthi
Iyer.
11. According to Mr. T. S. Krishnamurthi Iyer, the right obtained by the 6th defendant under Exts. E & F enure only for her exclusive benefit and
there is nothing in the recitals in the two documents to show that, excepting these two peoples, nobody else was intended to be benefited.
Therefore the Learned Counsel contented that there is a contrary intention expressed in Exts. E and F and therefore the ordinary presumption
mentioned in Section 41 of the Nair Act will not apply. The Learned Counsel also contended that in respect of the properties obtained as a gift
under Ext. D and owned by the father and also by the father''s brother, there is no scope for the operation of the presumption u/s 41. This aspect
of the matter was also stressed by Mr. Parameswaran Nair appearing for the 13th defendant.
12. Mr. Krishnamurthi Iyer also contended that the plaintiff has, by his conduct accepted the position that the properties obtained by her mother
under Exts. E & F belong exclusively to her and that she has also proceeded on the basis that it is not a sub-tarwad property available for the 1st
plaintiff also. The Learned Counsel also stressed that the 1st plaintiff, though aware of the nature of the partition under Ext. V has not taken any
step to make any claim in respect of the properties which Kunjukrishna Pillai got under Ext. V and which has gone to his wife and children. If the
properties obtained by the 6th defendant and her brother Kunjukrishna Pillai under Exts. E & F are sub tarwad properties, the plaintiff would not
have certainly left off properties allotted to the share of Kunjukrishna Pillai under Ext. V. He also relied upon the case set up by the 1st plaintiff to
the effect that the properties obtained in partition by the 6th defendant under Ext. B dated 31-1-1106 constitute the sub-tarwad properties in the
hands of the 6th defendant.
13. The Learned Counsel also stressed that the 1st plaintiff was admittedly a party to the tarwad partition evidenced by Ext. I, which related only
to a partition of the tarwad properties. But after allotment of the share in the tarwad properties to the 6th defendant was made, the 6th defendant
was prepared to transfer one such item in favour of Kunjukrishna Pillai, her brother and got in exchange an item given to him under Ext. V. This,
according to the Learned Counsel, amounts to recognition by the plaintiff of the fact that the 6th defendant and Kunjukrishna Pillai got the
properties in their right as tenants-in-common under Exts. E and F. The Learned Counsel also placed some reliance upon the recitals contained in
Exts. D and L. The recitals in the various documents will be considered presently.
14. On the other hand Mr. Subramaniam, Learned Counsel appearing for the plaintiff, contended that the view expressed by the lower court is
correct and there was a wrong approach by the trial court. The Learned Counsel pointed out that there is no sort of admission or recognition of the
6th defendant''s exclusive right by the 1st plaintiff at any stage whatsoever. The Learned Counsel also pointed out that even the recitals in Exts. E
and F will show that the intention was not to benefit the 6th defendant and Kunjukrishna Pillai and that really the properties were intended to be
given to them as tarwad properties. The fact that there is also the uncle introduced in the gift deed Ext. F along with the father of the 6th defendant
and her brother, does not in law affect the decision to be arrived at, because the presumption applicable in such cases has been extended even
regarding gifts and bequests by any near relations. According to the Learned Counsel that presumption has not been restricted only to a father or
husband.
15. In dealing with the tarwad properties under Ext. I, on which considerable reliance has been placed by Mr. T.S. Krishnamurthi Iyer, Mr.
Subramaniam pointed that though there may be some loose recitals in the document, ultimately the properties are allotted in one common schedule
to the sixth defendant and her daughter viz., the 1st plaintiff and it is out of that common allotment that one property was taken and given to
Kunjukrishna Pillai and from him another property was obtained and put in the common schedule. The Learned Counsel contended that the
position has been made clear by the 1st plaintiff herself in Ext. C dated 23--10--1114. Under Ext. C, the 1st plaintiff has executed an agreement in
favour of her husband, the second plaintiff, authorising him to manage the properties in her possession. It has been stated very clearly that the
properties in her possession comprised properties obtained by her mother under Ext. V and also by herself and her mother under Ext. I and there
is also a very significant recital to the effect that these properties belonged to the Sakha of her mother. By these contentions the Learned Counsel
supported the judgment of the lower court. Both the Learned Counsel have drawn my attention to certain decisions of Travancore and Kerala
High Courts. Though these decisions are relied upon for coming to a conclusion, regarding the construction of the recitals in Exts. E and F,
ultimately the final decision must rest upon the impression that is gathered by the recitals in Exts. E & F. The relative provision of the Nair Act is
that contained in section 41. Section 41 of the Travancore Nayar Regulation, II of 1100 is to the following effect:--
Property acquired by gift or bequest from the father or husband before Regulation I of 1088 came into force shall, for the purpose of this Chapter,
in the absence of evidence to the contrary, be treated as the Tarwad property of the donees or devisees and of their thavazhee.
Therefore under that, it will be seen that ordinarily all properties acquired by gift or bequest from the father or husband before Regulation I of 1088
came into force shall, for the purpose of this chapter in the absence of evidence to the contrary, be treated as the Tarwad property of the donees
or devisees and of their Thavazhee. Therefore ordinarily by virtue of this provision, the gift or bequest from the father to the children or from
husband to his wife will be considered to be Tarwad property, in the absence of any evidence to the contrary. Therefore the point that I have now
to consider is whether there is anything in Exts. E and F, which have come into existence prior to Regulation I of 1088 of any intention to the
contrary. If I am not able to find any such evidence to the contrary in these two documents, naturally the inference and presumption applying
section 41 will be that the properties are obtained as the tarwad properties in their hands.
16. After hearing the Learned Counsel on both sides regarding the various recitals in Exts. E and F, in my opinion, there is no such contrary
intention expressed in either of these documents. In this connection I may state that Ext. E is a sale deed executed by third party in favour of the
6th defendant and her brother Kunjukrishna Pillai. The 6th defendant was admittedly a minor at that time. It was on 6--2--1079 and it related to
item 3 and also certain other items of properties which is not in dispute in the suit, the consideration for which was 1,400 panams. There is also a
recital to which Mr. Subramaniam has drawn my attention viz., that the consideration of these documents has been received from the mother of the
parties viz., the 6th defendant and Kunjukrishna Pillai. That according to Mr. Subramaniam goes a long way to show that it must have been
intended only for the benefit of the sub tarwad. On the other hand Mr. T.S. Krishnamurthi Iyer contended that the mother is not mentioned as a
party to the document; that is a very significant omission, which will clearly show that the intention under Ext. E was that 6th defendant and
Kunjukrishna Pillai must take the property as tenants-in-common and not as sub-tarwad property in their hands. Mr. Krishnamurthy Iyer also laid
some emphasis on the recitals to the effect that the properties have to be enjoyed in their right of management. In my opinion these two recitals by
themselves will not amount to an expression of a contrary intention in Section 41 of Nair Act. There is the significant fact that the mother has herself
provided consideration for this purchase. In Para 2 of the plaint, the plaintiff has specially stated that the properties acquired in Exts. E and F were
from the father and that it is the sub-tarwad properties in the hands of the 6th defendant. As against this, the 1st defendant filed a written statement
admitting that the properties were obtained by the 6th defendant and Kunjukrishna Pillai from their father and in the written statement there is
another aspect viz., that it enures only to the benefit of the 6th defendant and her brother. The fact that it has been obtained from the father is clear
from the admission of the 1st defendant in the written statement to the effect that the properties have come from the father. The second defendant,
whose legal representatives, the present appellants in S.A. 306/56 viz., defendants 3 to 5 adopted the written statement of the 1st defendant. He
also agreed to the position that the property comprised in Exts. E and F came from the father of the parties therein. Additional or supplementary
written statement was filed by the defendants 3 to 5 after they were brought on record and Mr. T. S. Krishnamurthy Iyer has taken me through the
same.
17. The recitals in Ext. F do not at all, also in my opinion carry the case of Mr. T.S. Krishnamurthi Iyer far. It is admittedly a gift by the father of
defendant 6 and the natural uncle and it is a gift deed which related to items 1 and 2 which are in the suit and certain other properties which again
are not comprised in these proceedings. There are only these ordinary recitals that the property owned by the father and his brother are given out
of love and affection to the 6th defendant and her brother. In my opinion, there is nothing which would give a contrary intention to show that the
father and his brother intended 6th defendant and her brother alone to benefit by virtue of that gift.
18. One particular contention raised by Mr. T.S. Krishnamurthi Iyer regarding Ext. F and supported by Mr. Parameswaran Nair appearing for the
13th defendant is to the effect that there is no scope for the application of the presumption u/s 41 regarding these gift deeds because admittedly it is
not a gift or bequest from father or husband alone. It is a gift by the father along with his brother and therefore the ordinary presumption available in
the other case u/s 41 should not be applied. So the matter has to be considered from the actual recitals in Ext. F and if Ext. F is read as a whole, it
will clearly show that only the 6th defendant and her brother were intended to be benefited. On the other hand, Mr. Subramaniam has drawn my
attention to certain decisions of the Travancore and Kerala High Courts to the effect that the presumption will also apply even in respect of gifts
and bequests from near relations including paternal nucles. I need only refer to the latest decision on this point of Mr. Justice Kumara Pillai and Mr.
Justice T. K. Joseph reported in 1958 KLT 310 = 1958 K.L.J. 256 (Lekshmi Gouri v Lekshmi Narayani). This aspect is considered by their
Lordships at pages 312 to 313 (K.L.T.). With respect, I agree with the reasoning of the learned Judges, and I hold that the same presumption will
have to be applied in considering the right obtained by the 6th defendant under Ext. F. As stated earlier, I have been able to find nothing in Ext. F
also indicating the intention that only the 6th defendant and her brother were contemplated to be benefited by that document.
19. Therefore, in my opinion, Exts. E and F standing by themselves are covered by the presumption applicable u/s 41 of the Nair Act, of 1100 and
therefore it will have to be held that the property obtained by the 6th defendant and her brother Kunjukrishna Pillai under these documents were
obtained by them as sub-tarwad property. I shall refer to the conduct of the 1st plaintiff based upon Ext. I and Exts. D and L. In my opinion, I can
dispose off very easily Exts. D and L, because admittedly the 1st plaintiff was not a party to these two documents. They were only statements
made by the 6th defendant and in the absence of any material to show that the 1st plaintiff was admittedly connected with these recitals, these two
documents cannot be put against the 1st plaintiff and therefore the lower court was right in disregarding the recitals in these two documents. Then
the conduct of the 1st plaintiff in not laying any claim or proceedings against the properties allotted to Kunjukrishna Pillai and under Ext. V was
also commented upon. In my view the fact that the 1st plaintiff did not make any claim regarding the properties allotted to Kunjukrishna Pillai will,
in any way, affect his rights. Mr. Krishnamurthi Iyer contended that the 1st plaintiff has accepted the right of the 6th defendant and Kunjukrishna
Pillai in the partition as between themselves treating the property as their own. Under Ext. I, as stated earlier the 1st plaintiff, 6th defendant and
Kunjukrishna Pillai have divided the property. No doubt, one item of the properties allotted to the 6th defendant was given in exchange to
Kunjukrishna Pillai and that item which was got in exchange from Kunjukrishna Pillai happened to be an item of property which was given to
Kunjukrishna Pillai under Ext. V. Mr. Krishnamurthi Iyer contended that the 1st plaintiff was a party to Ext. T and she was also representing her
mother who was said to be deranged at that time and must be taken to have recognised the exclusive right of the 6th defendant as firm in Ext. V.
Though there is some force in this attack or criticism of the conduct of the 1st plaintiff, by Mr. T.S. Krishnamurthi Iyer, if the transaction evidenced
by Ext. I is considered a little more clearly, in my opinion this conduct will not assist Mr. Krishnamurthi Iyer in his contention. It is significant from
Ext. I that the properties were ultimately allotted in a common schedule in favour of the 6th defendant and the 1st plaintiff and it is also seen that
one item was taken out from that common schedule and given to Kunjukrishna Pillai and the property obtained from Kunjukrishna Pillai in
exchange was mixed up again in the common schedule. Therefore, no doubt the parties may have intended to have a per capita division as stated
by Mr. Krishnamurthi Iyer. Ultimately it is seen that the 1st plaintiff and the 6th defendant did not make any difference so far as the properties to be
allotted to them was concerned. So I should think that there was no occasion for the 1st plaintiff and the 6th defendant to make any distinction as
regards the properties that were being given in the common schedule enuring to the benefit of them. The matter is put beyond dispute in Ext. G by
the 1st plaintiff. Ext. G is an agreement executed by the 1st plaintiff on 23--10--1114 in favour of the husband for the management of the
properties. Though reference is made to properties obtained by her mother in Ext. V and Ext. I and also to properties obtained by the 1st plaintiff
in Ext. I, ultimately there are very clear recitals in it that all these properties are the Sakha properties of her mother, the 6th defendant.
20. There is only one aspect to be considered viz., the special plea of Mr. Parameswaran Nair, appearing for the 13th defendant, who is the
appellant in S. A. 183/1956. According to the Learned Counsel, his client is the purchaser for value without knowledge of the defect entitled on his
transferors, viz., defendants 1 to 5. I need not at all go into this matter because once I came to the conclusion that the document under Ext. K falls
to the grounds naturally the transfer effected by defendants 1 to 5 on the basis of Ext. K, viz., Ext. III also fails. It is also mentioned by Mr.
Subramaniam and there is no doubt about it that the 13th defendant gets the sale deed and as such there cannot be any benefits regarding his claim.
21. Mr. Parameswaran Nair, Learned Counsel appearing for the 13th defendant-appellant, in S. A. 183/1956 has stated that his client will be
entitled to the value of improvements under the provisions of Kerala Act XXIX of 1958. This is opposed by Mr. Subramaniam, Learned Counsel
appearing for the plaintiff on the ground that the appellant is not a bona fide purchaser for value and that he has not claimed the value of
improvements in any of the courts below. He has also taken a point that the provisions of the Act will not enable the party in the position of the
appellant to claim the value of improvements. On this question I express no opinion excepting to state that if the 13th defendant is so advised, it is
open to him to file the necessary application in the executing court claiming reliefs, if any, on the basis of this Act. Such an application, when filed,
will be disposed off after hearing all parties according to law. In the result, the decree and judgment of the lower appellate court are confirmed, and
these two appeals are dismissed. Appellants in S. A. 183/56 will pay half costs to plaintiff in this appeal and defendants 3 to 5, appellants in S.A.
306/56, will pay half the costs to the plaintiffs respondents in this appeal. No leave.