Sulochana and others v. Rajamma Balakrishnan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 AS.No. 331 of 1998(C) --------------------OS.49/1992 of SUB COURT, CHERTHALA .................... APPELLANT(S)/PLAINTIFFS: --------------------------------------- 1. SULOCHANA, . W/O. BHOUMAN, RESIDING AT THAYYILKARIL, THAMALAKKAL P.O., KARUVATTA, HARIPAD. 2. GIRIJA, W/O. RAMAKRISHNAN, AT KOLLUVEDU, S.N. PURAM P.O., CHERTHALA. 3. PADMAJA, W/O. SUSEELAN, SHAJI BHAVAN, MAYITHARA P.O, CHERTHALA. BY ADV. SRI.K.S.HARIHARAPUTHRAN RESPONDENT(S)/DEFENDANTS: --------------------------------------------- 1. RAJAMMA BALAKRISHNAN, WIDOW OF LATE BALAKRISHNAN, RESIDING AT PUTHENPARAMBIL HOUSE, KANDASHANKADAVU P.O., THRISSUR DISTRICT. (DIED) 2. GEETHA, PUTHENPARAMBIL HOUSE, OF -DO- -DO- 3. HARISHIKESH OF -DO- -DO- 4. SHEEBA OF -DO- -DO- 5. SIBY OF -DO- -DO- 6. AMBULAKSHY, W/O. BHASKARAN NEDUMCHIRAYIL, THANEERMUKKOM SOUTH, MUHAMMA. (DIED) 7. SAROJINI, W/O. RAGHAVAN, NEDUMCHIRAYIL OF -DO- -DO- 8. RAJAMMA, W/O. MANIDHARAN, RANDUKANDATHIL, ARYADU NORTH. 9. PURUSHOTHAMAN, W/O. RAGHAVAN, RESIDING AT NEDUMCHIRAYIL, THANEERKUKKO, SOUTH VILLAGE, MUHAMMA. 10. PROMOD, S/O. RAGHAVAN, RESIDING AT -DO- -DO- R2 TO R5 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED R1 AND R8 IS RECORDED AS THE SOLE LEGAL HEIR OF DECEASED R6 AS PER ORDER DATED 15.2.2008. IN MEMO DTD. 8.2.2008 (C.F.795/08) ADV. SRI.P.R.VENKETESH FOR R2 TO 5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON 17.8.2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 331 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011. ## **JUDGMENT** The plaintiffs, who were non-suited in O.S.49 of 1992 before the Sub Court, Cherthala are the appellants. They sought to have Exts.A2 and A3 documents dated 13.3.1956 and 15.10.1982 respectively set aside. The relief was declined. 2. Ext.A1 dated 4.5.1120 M.E. is a gift deed executed by Govindan in favour of Cheeramma, Parvathy Amma, Vasu Panicker, Kunjachutha Panicker, Balakrishnan, Kumaran, Ambujakshy and Sarojini. Among them, Cheeramma is the wife of Govindan and Balakrishnan, Kumaran, Ambujakshy and Sarojini are the children of Parvathy Amma. The legal heirs of Balakrishnan are defendants 1 to 5. Kumaran died issueless and is not survived by any legal heirs. Ambujakshy is the sixth A.S.331/1998. 2 defendant and Sarojini is the seventh defendant. Eighth defendant is the sole issue of sixth defendant and ninth defendant is the son of the seventh defendant. So also the tenth defendant. Plaintiffs are the married daughters of the seventh defendant and sisters of defendants 9 and 10. 3. The plaint schedule property consists of two items of properties. Among the beneficiaries under Ext.A1, Cheeramma, Parvathy Amma, Vasu Panicker, Kunjachutha Panicker, Balakrishnan and Kumaran are no more. According to the plaintiffs, the persons to whom property was given under Ext.A1 enjoyed the properties in joint tenancies. They are incompetent to alienate or encumber the property in view of the recitals in the document, which are extracted in the plaint. According to the plaintiffs they recently came to know that defendants 1 to 5 have created false documents relating to suit properties affecting their rights. Those deeds are not binding on them. According to the plaintiffs, contrary to the terms of Ext.A1 defendants 1 to 5 with the connivance of defendants 6 and 7 created Ext.A2. A.S.331/1998. 3 They had no authority to do so and the said document is not a valid one. The plaintiffs have come to know that the defendants with ulterior motive created a release deed Ext.A3 dated 15.10.1982. Since these documents are executed by persons who are prohibited from doing so, the documents are not binding and are not legally valid. Hence the suit was laid. 4. Defendants 1 to 5 filed a joint written statement. They denied the allegations in the plaint. They contended that Exts.A2 and A3 are valid documents and are executed by competent persons. The plaintiffs were not even born at the time when Ext.A2 document was executed and hence they are incompetent to challenge the same. By Ext.A2 dated 13.3.1956 Parvathy Amma and Cheeramma relinquished the right obtained by them under Ext.A1 in favour of Balakrishnan, Ambujakshy and Sarojini. By Ext.A3 dated 15.10.1982 Balakrishnan relinquished his rights in favour of Ambujakshy and Sarojini. The executants of the respective documents had enough legal rights to execute A.S.331/1998. 4 the documents and the documents are valid. The plaintiffs were aware of the execution of the document long ago and infact the properties had been mortgaged by the defendants to a Co-operative Bank. The suit, according to them is frivolous and vexatious and they are entitled to compensatory costs. On the basis of these contentions they prayed for a dismissal of the suit. 5. The eleventh defendant filed a written statement challenging the competency of the plaintiffs to sue for the reliefs they have sought for. He claimed to be residing in the property situate on the western side of the property. Various other contentions were also raised, which are not very relevant for the present purpose. Suffice it to say, he too prayed for a dismissal of the suit. 6. On the basis of the the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts. A1 to A11 from the side of the plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B5 marked. The court below A.S.331/1998. 5 on an evaluation of the evidence in the case came to the conclusion that the plaintiffs are not entitled to succeed in the suit and dismissed the same. 7. Learned counsel appearing for the appellants raised two points for consideration. They are (i) the trial court has omitted to note that the property at the hands of the beneficiaries under Ext.A1 has the characteristics of a tavazhy property and (ii) if that be so, execution of Exts.A2 and A3 are by incompetent persons and they are not valid. 8. Learned counsel for the appellants referred to the recitals in Exts.A2 and A3 and contended for the position that it is clear that the property obtained under Ext.A1 is a tavazhy property. Attention was drawn to the fact that Cheeramma is the wife of Govindan, who was one of the donors in Ext.A1 and that the settlement was in favour of his wife and her siblings and others. Such a settlement acquires the character of tavazhy property and going by Section 32 of the Travancore Ezhava Act, the statute by which the parties are governed, it is clear that the property is a tavazhy A.S.331/1998. 6 property. In support of his contention, learned counsel relied on the decisions reported in **Kallianikutty Amma v. Devaky Amma** (1950 K.L.T. 705), **Gouri Amma v. Sivaraman Nair** ((1954) 9 D.L.R. 41), **Dr.Govinda Pillai v. Lekshmikutty Amma** (1956 K.L.T. 860), **Raghavan v. Soumini Amma** (1957 K.L.T. 558), **Philip v. Kunju Kesavan** (1958 K.L.T. 8), **Narayani Amma v. Parameswaran Pillai** (1963 K.L.T. 630), **Kesavan Vasukutty v. Kochali Kochikka** ((1964) K.L.R. 41), **Mary v. Bhasura Devi** (1967 K.L.T. 430), **Mathew v. Kunjika Bharathi** (1967 K.L.T. 133), **Madhavi v. Kumaran** (I.L.R. 1970(2) Ker. 624), **Madhavi v. Kumaran** (1971 K.L.T. SN 6), **Gopala Menon v. Sivaraman Nair** (AIR 1979 1345) and **Yesoda v. Sankunni** (1979-85 KUC 614). 9. Learned counsel appearing for the appellants pointed out that this vital aspect has been omitted by the court below and that vitiates the decree passed by the court below. 7 A.S.331/1998. 10. Learned counsel appearing for the respondents pointed out that the contention now taken regarding the character of the property as tavazhy property finds no place in the pleading of the plaintiffs and the plaint proceeds on the basis that Exts.A2 and A3 were not valid because of the restrictive and prohibitive clause contained in Ext.A1. At no point of time it was claimed that the beneficiaries were not entitled to deal with the property as they did. It was also pointed out that if the case of the plaintiffs was that it was a tavazhy property, the proper thing would have been for them was to sue for partition and not to have the document set aside. Even in the present suit there is no prayer for partition. The case built upon the nature of the property as tavazhy property appears for the first time before this court and there was no issue in that regard before the trial court. 11. Before going into the merits of the case, one may now have a look at the assailed documents. Ext.A1 is an admitted document. By Ext.A2 dated 13.3.1956 A.S.331/1998. 8 Cheeramma and Parvathy Amma, who were beneficiaries under Ext.A1 released their rights in favour of Balakrishnan who was the predecessor in interest of defendants 1 to 5 and defendants 6 and 7. As per the said document, A schedule was set apart to Balakrishnan and B schedule was set apart to Balakrishnan and defendants 6 and 7. As per Ext.A3 Udampady, Balakrishnan had released his rights in B schedule in favour of defendants 6 and 7. 12. The question which arises for consideration is whether the property obtained by Cheeramma, parvathy Amma and others under Ext.A1 executed by Govindan and Acharu, who are brother and sister has the characteristics of a tavazhy property in the hands of the beneficiaries. As already noticed, Cheeramma is the wife of Govindan, who is one of the executants under Ext.A1. 13. The lower court found that as on the date of execution of Ext.A2, the plaintiffs were not even born and therefore they had no right to assail the said deed. Even though there was no pleading in the plaint that the property A.S.331/1998. 9 obtained by the beneficiaries under Ext.A1 had the characteristics of tavazhy property, the lower court seems to have gone into that issue and found against the plaintiffs. It went on to hold that the beneficiaries under Ext.A1 document took the properties as tenants in common. 14. One may now refer to Section 32 of the Travancore Ezhava Act. It reads as follows: _“32. Except where a contrary intention is expressed in the instrument of gift or bequest, if any, Makkathayam property acquired after the date of the passing of this Regulation shall be liable to be divided among the wife and each of the children in equal shares:_ _Provided that, in the partition of Makkathayam property, the issue how-low-so-ever of a deceased child shall be entitled to only such shares as the child itself, if alive, would have taken.”_ 15. A reading of the above provisions shows that unless the deed of gift or bequest contains an intention to the contrary, Makkathayam property obtained subsequent A.S.331/1998. 10 to the commencement of the Regulation shall be liable to be divided among the wife and children in equal shares. The proviso may not be very relevant for the present purpose. The contention now taken is that Ext.A1 executed by Govindan and Acharu evidences the intention to the contrary contemplated under Section 32 of the Act and therefore it has the characteristics of tavazhy property. 16. Attention was drawn to the recitals in Ext.A1 to the following effect: “....ഞങള�ട� മരണ�നര� മ �തല �� . ടതങ�കള�ല പ�വ�ശ�ച� കക�ശ� �ച� ആദ�യ� എ��ക�നത�ന� അച�രക� അ�ക�ശ� ഉണ�യ�ര�കതക�ണ��� അച�ര�ട� മര�ണ�നര� മ�തല ആ ടതങ�കളക)�� അ�ക�ശട�ട�ര�വകണത�കയ�ല കക�ശ� �ച� ആദ�യ� എ� �ക�നത�ന�മ�പതമല�ടത ആ �സ�ത�കള ആരക �� ബ�ദ/തട0� �ത�ടക���ക�നത�വന� വരഖ�മ)ല��� അല�ടതയ �� അന/കക�ശ� ��ട�ടക���ക�നത�വന� അച�രക � അ�ക�ശ� ” ഇല�തത��..... Attention was also drawn to the recitals in Ext.A2, which reads as follows: A.S.331/1998. 11 “ഞങള�ല സ�ത45 �ഴ� സന�നങള മ�പത� അന7ധ5നട0��ത�ടത �ട�ക�സ�ത�കള അന�ഭ��ച� ടക�ള�നത�ന��മറ�� ���ര�ച�� ” ...... It is the above recitals which was taken aid by learned counsel for the appellants to contend for the position that the intention of the donor under Ext.A1 was very clear that the property should devolve on the female alone. That the recitals in Ext.A1 was accepted is evidenced by the recital in Ext.A2. It is therefore clear, according to the learned counsel that the property in the hands of the beneficiaries under Ext.A1 is the tavazhy property. 17. Even though there was a contention before the trial court that Ext.A1 evidences a Will and not a gift, the trial court held that it is a gift. This contention taken before the court below by the plaintiffs is not pursued before this court. 18. Now one may refer to the decisions relied on by the learned counsel for the appellant. In **Kalianikutty** A.S.331/1998. 12 **Amma v. Devaki Amma** (1950 K.L.T. 705) it was held as follows: _“When a gift is given to specified persons, in the absence of an express or necessarily implied intention to the contrary, the Cochin High Court has always held that the donees take the properties as co-owners or tenants-in-common even though the donees or both the donor and donee may belong to a Marumakkathayam community.”_ 19. In the decision reported in **Gouri Amma v. Sivaraman Nair** ((1954) 9 D.L.R. 41) it was held as follows: _“Where the settlement of properties was made in favour of the members of the Marumakkathayam tarwad particularly in the names of the female members of their near relation and at a time when the parties were governed by the ordinary notions and sentiments prevailing among the members of the community, the general presumption arising from such a settlement is that the testator intended the legatees to take the properties for and on behalf_ A.S.331/1998. 13 _of their respective collateral thavazhis and not absolutely for such legatees alone individually.”_ 20. In the decision reported in **Dr.Govinda Pillai v. Lekshmikutty Amma** (1956 K.L.T. 860) we get the relevant recitals in paragraph 5 of the decision. On the terms of the recital it was held as follows: _“The gift was intended to ensure to the entire thavazhi constituted by the mother and her children and children's children in the female line how low so ever. The extension of the gift in favour o the grand children through daughters combined with the expressions connoting unity of ownership, possession and enjoyment in perpetuity, makes it perfectly clear that the gift was intended not to the wife and children alone but to the thavazhi as a whole.”_ 21. In the decision reported in **Raghavan v. Soumini Amma** (1957 K.L.T. 558) on the facts of the case we get the relevant recitals discussed in paragraph 6 of the judgment. On the basis of the recitals it was held as follows: 14 _“First in regard to the thavazhi character of item 1 of the B schedule. This question depends upon the construction of Ext.A32 deed of acquisition in respect of the item and also the subsequent conduct of the parties. Ext.A32 stands in the name of the plaintiffs mother's mother Makkam and her minor children Raghavan (the defendant) and Damayanthi the plaintiffs' mother. It was conceded by the defendant examined as D.W.1 that his father Kannan paid the consideration for purchasing the property. The court below relied on this admission to hold that the acquisition was in the nature of a puthravakasam gift in favour of Makkom and her descendants in the female line. For, the law alike in Malabar, and Travancore, though differently from Cochin is well settled that the presumption in cases of gift of his character is that the property enures to the thavazhi and is not in the nature of a tenancy in common as among the donees. Learned counsel for the appellant has, on this aspect, only to say that his client being only a child at the date of Ext.A32 could not be expected to speak from personal knowledge when he made the admission in the box. But this clearly is not a_ A.S.331/1998. 15 _circumstance referred to in S.17 of the Evidence Act which will hinder a statement from being regarded as an 'admission' under law. The defendant had also executed Ext.A2 mortgage of B schedule item 1, so late as 23.6.1947 in his capacity as thavazhi karanavan and manager and as id for meeting thavazhi necessities. No doubt the recital in the document as to title was rather inconsistent but that does not deprive the document of its overall effect from the instant point of view. There is no reason in the circumstances to differ from the conclusion of the court below that item 1 of B schedule is thavazhi property of the parties.”_ 22. In the decision reported in **Philip v. Kunju Kesavan** (1958 K.L.T. 8) Section 32 of the Travancore Ezhava Act, Act III of 1100 was considered. It was held as follows: _“The effect of S.32 is that, ordinarily, Makkathayam property obtained after the passing of the instrument by which the property was acquired stands in the name of one individual alone, but if a contrary intention is expressed in_ A.S.331/1998. 16 _the instrument effect should be given to that intention.”_ 23. In the decision reported in **Narayani Amma** **v. Parameswaran Pillai** (1963 K.L.T. 630) the gift deed of a Nair woman in Travancore area was considered and it was held as follows: _“It is clear that at least so far as the Travancore area is concerned, there is a presumption, when a Marumakkathayee governed by the notions and concepts of the Marumakkathayam system of law executed a gift in favour of a Marumakkathayee, that the donor intended to benefit not merely the donee eo nomine mentioned in the gift deed, byt his intention was that the property should be enjoyed by the donee and his or her tavazhi with all the incidents of tarwad property.”_ 24. In the decision reported in **K.Vasukutty v. Kochikka** ((1964 (1) K.L.R. 41) the position as obtained before the Travancore Ezhava Act, Regulation III of 1100 was considered. It was held as follows: A.S.331/1998. 17 _“The character of the acquisition has to be determined in accordance with the law which was understood to be prevalent before the date of the Ezhava Act. The acquisitions of a Marumakkathayam woman in the absence of evidence to the contrary to be presumed to have been made out of the funds supplied by the husband for the benefit of his wife and children and is to be treated as their Tharwad property. This dictum has been followed in later cases. In the latest case on the subject a distinction was made with regard to the acquisition made after the date of Travancore Ezhava Act on the ground that notions which prevailed among the members of the community as to the acquisitions in the name of Marumakkathayee woman in the olden days cannot be held to apply in recent times after the statute has made inroads into the old law. But this decision too has not declared any alterations in the antecedent law as laid down in 10 T.L.R.136. In the face of these pronouncements it is now too late in the day to contend that the rule of presumption is to be limited to cases where questions of inheritance arise. There is no meaning in this distinction.”_ 18 A.S.331/1998. 25. In the decision reported in **Mary v. Bhasura Devi** (1967 K.L.T. 430) an entirely different aspect was considered. The question that arises for consideration in the said decision was whether by the birth of a child, a female who had obtained property in partition, will the property in the hands of that female will acquire the characteristics of a tavazhy property. It was answered in the affirmative. The decision may not have much relevance to the facts of the case on hand. 26. In the decision reported in **Mathew v. Kunjika Bharathi** (1967 K.L.T. 133) Section 32 of the Travancore Ezhava Act was considered. It was held as follows: _“Some discussion has taken place at the bar regarding the group of persons who will be entitled to take shares under S.32 of the Ezhava Act, in other words, regarding the effect of the proviso to the section. The question is whether all the issue how-low-so-ever, both in the male and in the female lines, will be entitled to share or only the members of the tavazhi, namely, the issue in_ A.S.331/1998. 19 _the female line alone, will be entitled to share. From the wording of the proviso it appears fairly clear that the legislature intended to give the entire group of persons, issue both in the female and in the male lines, the right to share. This intention will be clear if we return to S.19 of the Act. Explanation II of that section says that the expression “children” in the case of an intestate male and the expression “tavazhi” in the case of an intestate female, shall, for the purpose of Part IV of the Act, include issue of such intestate female or male how-low-so-ever. It may be argued that the Explanation gives that special meaning only for the purpose of Part IV of the Act and not for the other Parts. But, we are inclined to think that the intention of the legislature could not have been different regarding Part VII dealing with partition, because the proviso uses the word “child” to mean “issue how-low-so-ever of a deceased child”. This, in our opinion, indicates that the issue how-low-so-ever of a child, both in the male and in the female lines, is entitled to share in a partition under S.32._ ” A.S.331/1998. 20 27. On going through the decisions, it can be seen that the decisions may not have much relevance in the case on hand. 28. In the decision reported in **Madhavi v. Kumaran** (ILR 1970 (2) Kerala 624) on the terms of the deed it was held that the division in the said decision could be only on per capita basis. It was observed as follows: _“The donors have expressed their intention that the property should be enjoyed by the three donees and the “santhanams” of Madhavi, the daughter. Thus the line of succession has been indicated in the document itself. The document has to be read and construed as a whole and the intention of the donors has to be gauged from such construction, and that intention has to be given effect to. This is puthravakasom or makkathayam gift in the normal or conventional sense and the devolution can only be as laid down in the marumakkathayam system and in the event of partition, the division can only be on per capita basis._ ” 21 ## 29. In the decision reported in **Madhavi v. Kumaran** (1971 K.L.T. SN 6) it was held as follows: _“When a marumakkathayee executes a puthravakasam gift the property gifted will have to be taken by the donees with all the incidents of tarwad property. In the instant case the donors have expressed their intention that the property should be enjoyed by the three donees and the “santhanams” of one of them, the daughter. Thus the line of succession has been indicated in the document itself. The restrictive clause no doubt comes only subsequently. But the document has to be read and construed as a whole and the intention of the donors has to be gauged from such construction and that intention has to be given effect to. The gift is perfectly valid and the donors were competent to execute it conferring the property on the donees as an item of tarwad property. This is a puthravakasam or makkathayam gift in the normal or conventional sense and the devolution can only be as laid down in the marumakkathayam system and in the event of partition, the division can only be on per capita basis_ .” A.S.331/1998. 22 30. In the decision reported in **Gopala Menon v. Sivaraman Nair** (AIR 1979 SC 1345) while construing Section 48 of the Madras Marumakkathayam Act the expression “unless a contrary intention appears from the Will” is considered. It was held as follows: _“....Section 48 provides, in so far as relevant that where a person bequeaths any property to his wife alone, such property shall, unless a contrary intention appears from the Will, be taken as tavazhi property by the wife, her sons and daughters. The answer to the appellant's contention can be sought in the very terms of section 48. The property will be tavazhy property in in the hands of the wife, “unless a contrary intention appears from the Will”......”_ ## 31. In the decision reported in **Yesoda v. Sankunni** (1979-85 KUC 614) it was held as follows: _“When a gift or acquisition is made in favour of a marumakkathayee woman and all her children, a natural presumption would arise that the acquisition is for the benefit of the tavazhi. Of course, the presumption is capable of being_ A.S.331/1998. 23 _rebutted by other circumstances and evidence indicating an intention otherwise. The presumption is that they do not intended that the donees should take them as properties acquired by their branch with all the characteristics of tarwad properties in accordance with the marumakkathayam law applicable to them.”_ 32. Ext.A1 is an admitted document. By Ext.A2 dated 13.3.1956 Cheeramma and Parvathy Amma have released their rights in favour of Balakrishnan, the predecessor in interest of defendants 1 to 5 and defendants 6 and 7. In turn Balakrishnan executed Ext.A3 dated 15.10.1982 releasing his share over the property in favour of defendants 6 and 7. If one has to come to the conclusion that going by the recitals in Exts.A2 and A3 the property in the hands of the beneficiaries under Ext.A1 is tavazhy property, necessarily the appeal will have to be allowed and the matter will have to be sent back for fresh consideration. If the recitals as such indicate that the beneficiaries under A.S.331/1998. 24 Ext **.** A1 were donees under the document and children in the female line, then the finding of the trial court that the property is not tavazhy property cannot be sustained. 33. There is no pleading in the plaint that the property gifted as per Ext.A1 acquires the characteristics of a tavazhy property. The plaint only mentions that the clause in Ext.A1, which has been extracted in the plaint prohibited the donees from alienating the property and encumbering the property to anyone. In the plaint the recitals in Exts.A1 and A2 which has already been extracted have been referred to and no claim is made on that basis. It is true that a reading of the trial court judgment shows that at the time of argument the said case was advanced on behalf of the plaintiffs. But in the absence of pleadings and evidence in that regard, there was no question of considering the said plea. It is true that the discussion regarding this aspect by the trial court is not a very happy one. But the fact remains that the case now put forward has no foundation in the pleadings. A.S.331/1998. 25 34. One may also refer to the evidence in this regard. The first plaintiff was examined as P.W.1. No where in her chief examination does she say that the property acquired under Ext.A1 has the characteristics of a tavazhy property. She says that the 9[th] defendant is in possession of the suit property. It is will useful to refer to a portion of the deposition, which reads as follows: “ആധ�രങള കള��യ�� ക7ത7മമ�യ�� ഉണ�ക� എന��റയ�ന ക�രണ� ഞങളക� അന�ഭ��ക�ന ഉളത�ണ�.” 35. No where in her evidence does she say that the property acquires the characteristics of a tavazhy property by virtue of the recitals in Exts.A1 and A2. In cross examination she says that she has not gone through the written statement filed by defendants 1 and 2 and she has not verified the details mentioned therein. It was suggested to her that the rights obtained by her mother and sisters under Ext.A3 was released by them. She feigns ignorance regarding the said aspect. However, she admitted that a mortgage had been created in respect of the properties by A.S.331/1998. 26 the parties under Exts.A2 and A3. It is seen stated as follows: “...ര�ജമയ�� ന�ങള�� വ@രനത�യ� �റയ�ന ഒര� ഭ�ഗഉ����� 2-ം� ന�ബര �സ�ത� ടസ�കസറ� കക�ശ� ആയ�ര�ന) എന��റഞ�ലന�വGധ�ക�വമ�. അറ�യ�ല.(A)ഞ�ന അവന4G�ച�ട�ല. അന7ം�യ�ട�ക 1-ം� ന�ബര �സ�ത���ല വ�ല�യ�ധന ക ���ക��0� അ�ക�ശ� ആടരങ�ല �� ��ല�ക� ��ങ�വച� (Q) ആവര� ��ങ�ച�. വ�രറ�യ�ല. P.Ws. 2 and 3 are casual labourers. 36. The oral evidence adduced by the plaintiffs are absolutely of no help to them. Nowhere in her evidence P.W.1 asserts that the property obtained under Ext.A1 acquires the characteristics of a tavazhy property and that being the position, the assignments or the transactions as per Exts.A2 and A3 were invalid. Going by the plaint it is seen that reliance is placed only on the prohibitive clause in Ext.A1 and not on the recitals in Ext.A1 which is not taken aid of to characterise the property obtained under Ext.A1 as a tavazhy property. 27 A.S.331/1998. 37. By Ext.B2 executed by Balakrishnan he released his rights in favour of Ambujakshy and Parvathy Amma over B schedule to Ext.A2. By Ext.B3 document defendants 6, 7 and 8 mortgaged the property to Muhamma Service Co-operative Bank. It is relevant to note the tracing of title in that document. Ext.B5 is a kudikidappu given to one person from the plaint schedule property. This is admitted by the plaintiffs and also spoken to by P.W.1 at the time of giving evidence. 38. Apart from the fact that there is no pleading in the plaint regarding the characteristics of the property or regarding the fact that the property in the hands of the donees have acquired the characteristics of a tavazhy property, there is also no evidence in that regard. It must be noticed that Ext.A2 is of the year 1956 and the suit was brought only in 1990. There is also no evidence to show that at any point of time the plaintiffs had enjoyed possession of the property or taken income from the property. As rightly pointed out by the lower court, there is no prayer for A.S.331/1998. 28 partition also. All that the plaintiffs wanted is to have Exts.A2 and A3 set aside on the ground that Ext.A1 prohibits the parties from alienating the property or encumbering the property. The lower court found that that is not a valid clause. Moreover the court below has also found that at the time when Ext.A2 was entered into the plaintiffs were not even born. 39. Faced with the above situation, learned counsel for the appellants made a fervent plea that the matter may be remanded so as to enable the plaintiffs to claim partition on the basis that the property obtained by the beneficiaries under Ext.A1 has the characteristics of a tavazhy property. 40. It is too late in the day to make such a prayer. Even when the appeal was filed there was no attempt to have the plaint amended and only when the appeal was taken up for hearing in 2011 such a plea is made. There is not even a whisper in the plaint or in the evidence of the plaintiffs that they had ever treated the properties as A.S.331/1998. 29 tavazhy properties. Their only case was that since Ext.A1 contains a clause that the beneficiaries are not entitled to encumber or alienate the property, Exts. A2 and A3 are bad in law and therefore they are entitled to have it set aside. All that is stated is that the plaintiffs too have a right in the property. They have no case that they had acquired rights in the property because it had the characteristics of a tavazhy property by virtue of the recitals in Exts.A1 and A2. 41. The plaint as it now stands cannot be treated as one entitling the plaintiffs to claim a right in the property as if it was a tavazhy property. At the risk of repetition one may notice that at the time of his evidence also the plaintiffs did not have such a case. It was long thereafter at the time of hearing such a case was developed, which was rightly rejected by the trial court. 42. On the basis of the evidence adduced in the case, the finding entered into by the trial court appears to be perfectly justified. No grounds are made out to interfere with the judgment and decree of the trial court. A.S.331/1998. 30 This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.