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Madras High Court
Chitharath Othayath Chalery … vs Chitharath Othayath Koran … on 22 August, 1890
Equivalent citations: (1896) 6 MLJ 411


JUDGMENT

1. There is no material difference between the facts in this case and those in Narayanan v. Kannan (1884) I.L.R. 7 M. 315. Here a decree having been obtained against the 1st and 2nd defendants certain property was sold as being the share of the 2nd defendant in lands given by his father to him and his sisters. The plaintiffs, being the children of one of those sisters now deceased, charge that the 2nd defendant’s share in the estate is not capable of being sold. According to the decision above cited, a share of property is obtained by a gift made to persons who are members of one tarwad, and even if made with the intention that the property should be impartible descending to the heirs in the female line as tarwad property it may be sold in execution of a decree against one of the donees. Whatever may be the intention of the [397] donor he cannot in our opinion alter the fact that property acquired by gift is not in the hands of ‘ the original donees ancestral property to which the incident of .. impartiality attaches. The decision in Narayanan v. Kunnan was followed in S.A. 1328 of 1887 and it is not correct to say as the District Judge observes that a different view of the matter was taken in S.A. 708 of 1884, for in that case an entirely different question arose. The question then was whether the children of one of several donees under a gift similar to that in the present case was entitled to challenge a mortgage made by those of the surviving donees which was found to be merely colourable and collusive. It was held that they were so entitled because a gift had been made to their mother and her brothers and sisters as to a tarwad. There was no decision, and it was not necessary to decide as to the nature of the interests of the survivors. The decree of the District Judge is right and we must therefore dismiss the appeal with costs.


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