JUDGMENT
Gopalan Nambiyar, J.
1. These two appeals are against the judgment of a learned Judge of this Court in Section A. No. 1362 of 1965 and Section A. No. 1364 of 1965. The suits which gave rise to these appeals are, respectively, O. S. No. 259 of 1961 and O. S. No. 258 of 1961 on the file of the Munsiff’s Court, Cranganore. They were for recovery of possession with mesne profits. The plaintiffs in both the suits are the same, the defendant in each of them, being different. The suits were decreed by the trial Court, but dismissed on appeal by the lower appellate Court on the ground that the claim was barred by adverse possession and limitation. On second appeal, the judgment and decree of the lower appellate Court was sustained.
2. The properties involved in the two suits, belong to a Marumakkathayam tarwad, the Nambiyarveedu family. The ten members of the tarwad entered into a family karar or settlement, Ex. P-l, dated 10th Ma-karam 1095 M.E. (1920). The properties dealt with by the karar (family properties as well as the private properties of one of the members) were divided into four schedules as A, B, C and D. Executant Nos. 1, 2, 4 and 7 to 10 were allotted the A schedule properties and called the first tavazhi or branch; Executants Nos. 3 and 5, Ko-chunni Menon and Sreedhara Menon, were allotted the B schedule properties; one Balakrishna Menon who was away from the place at the time, was allotted the C Schedule properties; and the minor Executant No. 6 was allotted the D Schedule properties. Executants 3 to 6 were all male members and they together constituted the second tavazhi with rights to the B, C and D schedule properties. The first tavazhi consisted of three females namely Kunji Amma, (executant No. 2), her daughter Kochukutty Amma (Executant No. 4), and minor Ma-dhavi, (daughter of Executant No. 4). It is
plain therefore that the chance of perpetuation of the family was only with the first tavazhi. The detailed provisions and the effect of Ext. P-l will be noticed later. It is enough for the present to state that it contained a provision that on the death of any of the members of the second tavazhi, his rights in the properties allotted to him should devolve equally on the rest of the members of that tavazhi, and on the extinction of all the members of the tavazhi, the rights in the B, C and D schedule properties, were to devolve on the first tavazhi. Sreedhara Menon (Executant No. 5) died first; a little later Kochunni Menon (Executant No. 3) became a sanyasi, renouncing everything in favour of Narayana Menon (Executant No. 6), under Exts. P-2 and P-3.
3. Balakrishna Menon returned to the place. At or about that time, O. S. No. 69 of 1105 had been filed by Executant No. 4 in Ext. P-l for removal of Executants Nos. 1 and 2. All the members of the family including Balakrishna Menon were parties. The C schedule properties were released to Balakrishna Menon. By Ext. P-13 compromise petition, Balakrishna Menon accepted and agreed to abide by the terms of Ext. P-l and took a portion of the B schedule properties by Ext. P-4 release deed. Ext. P-l was thus accepted by Batakrishna Menon also, who was not a signatory to it at the time of its execution. Balakrishna Menon seems to have sold certain properties in the C schedule under Ext. D-4 dated 19-7-1118 M.E. (1943) to the 1st defendant in O. S. 258 of 1961. He executed another sale-deed in respect of a portion of the B schedule properties in 1115 (1940); and by successive assignments the rights under the said document became vested in the 1st defendant in O. S. 259 of 1961 by Ext. D-10 dated 27-11-1121 (1946). Balakrishna Menon died on 15-5-1959. The suits were laid on 16-7-1960 by Narayana Menon, Executant No. 6, the surviving member of the second tavazhi. Pending the suits, by Ex. P-14 dated 15-6-1961 Narayana Menon assigned his rights in favour of the remaining supplemental plaintiffs 2 to 10 (members of the first tavazhi).
4. The defence to the suits was that Ext. P-l was a partition and not a maintenance arrangement. The trial Court found that the document Ext. P-l was not a partition, nor a maintenance arrangement, but conferred a life estate on Balakrishna Menon, and after his death, the alienees were liable to be evicted. In the result it decreed the suits as prayed for. On appeal, the appellate Court held that Ext. P-l was only a maintenance arrangement and not a partition. Before the appellate Court a plea of limitation and adverse possession was, for the first time, raised; and the appellate Court held that the suits were barred. This view was sustained on second appeal by a learned Judge of this Court.
5. The first question that arises for consideration is the nature and the effect of
Ext. P-l document. The document in at last nine clauses expressly recites that the allotment of the properties made by it, is only for the purpose of enjoyment of the income alone for the purpose of maintenance. Indeed, it seems to protest, a little too loudly, that it is a maintenance arrangement. But what we have to see is whether such was its real effect and purport. It recites that the family properties are not sufficient for the maintenance of the members and that there was some disharmony among them. Clause
2 recites that executants Nos. 1, 2, 4 and 7 to 10 form the first tavazhi and executants
3 to 6, the second tavazhi. Clause (4) recites that certain properties belonging to executant No. 4 were also brought in for the purpose of the arrangement. Clause (5) provides that the A schedule properties have been set apart to the first tavazhi and the B, C and D schedule to the second tavazhi, only for the purpose of taking the income for maintenance; (and this, as we said, has been repeated several times in the remaining clauses). Clause 7 of the document is important and provides that on the death of any one of the members of the second tava-zbi, his right to the income from the pro-” perties allotted for maintenance would devolve equally on the rest of the members of that family, and that on the death of all the members of the second tavazhi, the B, C and D schedule properties would devolve on the first tavazhi. Clause (8) provides that renewals in respect of A to D schedule properties would be taken in the name of the eldest member of the first tavazhi and that the expenses for the renewals were to be incurred by the first tavazhi. Clause (13) provides for management of the properties allotted to the first tavazhi. Clause (14) authorises executants Nos. 1 and 2 to encumber the items in the A schedule only to the extent of Rs. 300/- on mortgage and no more. Clause (15) provides that executant No. 10 who was only eleven months old would attain majority in about 17 years and till attainment of majority or completion of seventeen years no alienation will be made in respect of the B, C and D schedule properties, except to the limited extent provided for by Clause (14). Clause (16) provides that any amount received by release of any of the items should be received by those to whom the properties are allotted under Ext. P-I along with the two eldest members of the first tavazhi and that with the proceeds properties are to be purchased in the name of the first tavazhi and enjoyed in accordance with Ext. P-I by the person to whom the property released was allotted. 6. Scanning the provisions of Ext. P-l, we feel that it cannot be regarded as a maintenance allotment pure and simple. The differing view points in regard to the document have been reflected earlier, at the two stages of the prior litigation in O. S. No. 401 of 1116 for appointment of a Receiver. The trial Court there by Ext. P-9 judgment found that Ext P-l was a partition. But the
appellate Court in Ext. P-ll found it waa only a maintenance arrangement. In the present litigation, the trial Court found Ext. P-l created a life estate in favour of Balakrishna Menon. The appellate Court found it was only a maintenance arrangement; and that view was sustained in second appeal. Ext. P-l takes in not only the family properties but even some of the private acquisitions of executant No. 4, a rather unusual feature in maintenance allotments in Marumakka-thayam tarwads. The object apparently was to quieten the male executants who were allotted the B to D schedule properties, so that at the end of their lives, their properties may come back to the first tavazhi. The absence of any provision at all in Ext. P-l for a re-allotment or re-distribution of income, depending on the growth or decline of members in the two tavazhies and the provision that on the death of any of the members in the second tavazhi, his right to the income from the properties allotted to him should devolve equally on the rest of the members of that taxazhi, all appear rather out of tune with a maintenance allotment stricto sensu. That is particularly so, as the first tavazhi consisted of three females (one of them only eleven months old) with prospects of augmenting the strength of the tavazhi. Then there is the provision that renewals of the properties should be taken in the name of the first tavazhi at its expense, even in respect of the B, C and D schedule properties; and if any of the properties be released, the cosideration is to be invested for the purchase of properties in the name of the first tavazhi. There are no express words nor any express clause prohibiting alienation of the B, C and D schedule properties. But we do get in Clause (14) in regard to the A schedule, a limitation of the right to encumber, which is allowed only to the extent of Rs. 300/- by way of mortgage and no more. And Clause (15) prohibits alienation except to the limited extent contemplated by Clause (14), during the minority of the 10th executant or for a period of seventeen years, not only in respect of the A schedule properties, but even in respect of the B to D schedule properties. All things considered, we are of the opinion that Ext. P-l created only a life estate in the members of the second tavazhi with a provision for reverter to the first tavazhi on the extinction of the second. Although the matter may not be binding or conclusive, it is of some interest to notice that Balakrishna Menon himself seems to have understood Ext. P-l as conferring a life estate on him. Shortly after acceptance of Ex. P-l he executed Ext. P-16 kaichit to the Irinjala-kuda Devaswom in respect of the C schedule properties. The Devaswom brought Ex. P-17 suit for arrears of rent. In his written statement Ex. P-l8, Balakrishna Menon prayed for instalment payments and stated that unless the request was allowed, the life estate (“jeevanamsom”) allowed to him was liable to be sold. We have referred to Exs. P-9
and P-ll judgments rendered by the trial Court, and on appeal, in O. S. 401 of 1116. The suit was by two members of the first taxazhi against Balakrishna Menon and Narayana Menon of the second tavazhi, alleging waste and praying for appointment of a Receiver to manage the properties. Ext. P-6 is the plaint. Paragraph 2 thereof refers to Ext. P-l karar and to Ex. P-13 compromise, and states that as per these documents the properties belonged to the defendants in life interest (‘jeevanamsom’) and after their lifetime, was to devolve on the plaintiff’s tavazhi. In Balakrishna Menon’s written statement (Ext. P-8) he seems to view Ex. P-l as a partition, but it is of some significance that in one paragraph he took the plea that as the plaintiffs are not the “immediate reversioners”, they are not competent to sue — a plea that received some acceptance from the trial Court in Ex. P-9 judgment, and which provoked a spirited comment from the appellate Court in Ext. P-ll judgment.
7. If Ext. P-l conveyed a life estate to the second tavazhi and to Balakrishna Menon, there can be no question of adverse possession or limitation. Balakrishna Menon was alive till 15-5-1959 and the suits were filed in 1961. Balakrishna Menon, by reason of the life estate conveyed by Ex. P-l was entitled to possession of the properties of the second tavazhi. He was competent also to convey his life estate. By the impugned sales he no doubt purported to convey absolute rights. But the possession of the alienees (under Ext. D-4 and the prior sale that resulted in Ext. D-10) could well be traced to their lawful title, namely, to the life estate of Balakrishna Menon which he was competent to convey. So understood the possession of the alienees is not adverse from the date of alienation, but becomes so ,only on the death of Balakrishna Menon. To such a situation, it is not possible to apply the rule that a voidable alienation coupled with transfer of possession makes possession adverse from the date of the transfer. That principle was recognised by a Full Bench of this Court in Mathew v. Ayyappankutty, 1962 Ker LT 61 = (AIR 1962 Kcr 164) (FB) and was re-affirmed by a later Full Bench in Gopalan Thanthri v. Ittira Kelan, 1970 Ker LT 462 = (AIR 1970 Ker 305) (FB). But those were the cases where, while the mortgagee was in possession, the karanavan of the mortgagor tar-wad conveyed the equity of redemption also to the mortgagee in circumstances under which the same was not justified. It was nevertheless held that possession was adverse from the date of the transfer. But here, although Balakrishna Menon purported to convey the entirety of rights, the transfer could well pass his life estate, and possession of the alienee could be referred to the same. As the suits were filed a little over one year after Balakrishna Menon’s death, the alienees had not perfected title by adverse possession or limitation.
8. Counsel for the respondents drew our attention to a large number of decisions which have held that a maintenance allottee in a marumakkathayam tarwad has no transferable interest, and that transfer of such interest is prohibited by Section 6 (d) and Section 6 (dd) of the Transfer of Property Act. We think it unnecessary to survey these decisions in view of our conclusion that Ext. P-l does not evidence a maintenance allotment. Counsel for the respondents contended that even a life estate, if it is meant for maintenance, will be hit by the above two provisions of the Transfer of Property Act. He relied on the decision in Lachhmeshwar Sahai v. Mt. Mod Rani Kunwar, AIR 1939 PC 157. But there, the Privy Council, on a construction of the document, held that it was not a life estate but a mere arrangement for maintenance which fell squarely within the ban of Section 6 (d) of the Transfer of Property Act The decision has no application. The decision in Raman Nair Madhavan Nair v. Kuruvila Devasya, (1115) 14 Trav LT 358 ruled that the possession of a court auction purchaser of the rights of a maintenance allottee of a marumakkathayam tarwad was adverse from the date of the sale. That was because in the Travancore area of this State — and also in the Cochin area — the prevailing view seems to have been that a maintenance allottee has no transferable interest A different view has prevailed in Madras. (See Muttathil Damodara Menon v. Ramakrishna lyer, AIR 1925 Mad 624 and Ammalu Amma v. Vasu Menon, AIR 1944 Mad 108). In the view that we take it is unnecessary to decide whether the interests of a maintenance allottee are transferable of not.
9. The Full Bench decision of the Travancore High Court in Kanaku Easwaran Parameswaran v. Krishnan Krishnan, (1928) 16 Trav LJ 488 = (2 Trav LT 481) (FB) has again no application. The question referred to the Full Bench was:
“Where property allotted for maintenance to a member or members of a Naif tarwad is improperly alienated and possession thereof is transferred to the alienee, is any other member of the tarwad entitled on behalf of the tarwad to recover possession of such property during the lifetime of the allottee or allottees and if so under what conditions?”
The Full Bench, by majority held that in such circumstances any other member of the tarwad is entitled to sue and recover possession on behalf of the tarwad even during the lifetime of the allottee for maintenance, subject to payment of compensation to the alienee for improvements, if any, effected by him. We are not strictly concerned with that question here. Nor, with the decisions in Kanakku Thanukrishna Pillai v. Kanakku Thanumalaya Perumal Filial Mathavan Pillai, (1912) 2 Trav LJ 51 and Padmanabhan
v. Velayudhan, 19 Trav LR 165, to which our attention was called. These are all decisions dealing with the alienability or attach-ability of the interests of a maintenance allottee in a marumakkathayam tarwad.
10. We have looked at the records of the litigation in the suit O. S. No. 401 of 1116 to see if the plaintiffs who were parties to Ext. P-l, could not be fixed with notice of the impugned alienation, and of the adverse possession of the alienees. Ext P-6 dated 11-6-1116 (1941) is the plaint in the suit. Executants Nos. 7 and 8 in Ext P-l were the plaintiffs. The 1st defendant was Balakrishna Menon, and the 6th defendant was Narayana Menon, the present 1st plaintiff. The supplemental 7th defendant was the D-10 alienee. Ext P-6 does not at all mention about the alienation, which ultimately came to vest under Ext D-10, in the 1st defendant, in O. S. No. 258 of 1961. The alienee was, at a later stage, joined as a party to the suit. But we do not know on what allegations he was joined; and we are not in a position to impute any knowledge of the adverse possession of the alienee to any of the plaintiffs. Ext. P-7 is the written statement of Balakrishna Menon, and Ext. P-8, of the additional 7th defendant (the alienee). These are all unhelpful to fix the plaintiffs with notice of the adverse possession of the alienees.
11. The learned Judge in deciding the second appeals, relied on the decision of Madhavan Nair, J. in Narayana Pillai v. Balakrishna Pillai, 1967 Ker LT 1142. It was there ruled that the income derived by members of the tarwad to whom the properties were allotted for maintenance was the income of the tarwad; and if the same is invested in the purchase of property, the property is tarwad property. The decision of the learned Judge was reversed by a Division Bench — See 1970 Ker LT 995. We arc also of the opinion that the principle of these decisions cannot have much application here.
12. We are therefore of the opinion that the finding of the lower appellate Court and of the learned Judge in second appeal that the suits for recovery of possession were barred by adverse possession and limitation cannot be sustained. We allow these appeals, and, in reversal of the decisions of the learned single Judge and of the lower appellate Court, restore the decision of the trial Court with costs throughout.