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1. A few facts alone need be stated for the purpose of this second appeal as only two questions are raised in this appeal though in the suit several other questions also arose for decision. The suit out of which the second appeal has arisen was one for recovery of possession of the suit properties. The plaintiff as karanavan of his tarwad, has sued to recover the properties on the allegation that these properties belong to his tarwad and were set apart to one deceased Ittirarippa Menon and Ittiachi Kutty Amma in a deed of maintenance arrangement in the tarwad. The defendants claim under some disposition alleged to have been made by these persons and it is claimed in the plaint that the allottees were incompetent to make it in view of the fact that the arrangement was only for maintenance. The allottees being dead the plaintiff claims to be entitled to recover t'he property on behalf of his tarwad. The plea in answer is that the arrangement was not one of maintenance but an outright partition of the properties and therefore the allottees could dispose of them as they liked. The suit properties comprised only of the few items allotted and these are mentioned as properties belonging to the Avvappan Dewaswom of the plaintiff's Kozhikot tarward. In regard to some properties other than these Devaswom properties the other branch which partook in the maintenance arrangement or partition as the case may be, executed a surrender in the year 1930. four years after that arrangement. That is Ext. A-1. The courts below have found that the arrangement is one of maintenance and in support of that Ext. A-1 has been relied on. That has been taken by the predecessors-in-interest of the defendants and they have unequivocally accepted the arrangement of 1926 as one for maintenance. Therefore the plea that the arrangement is one of outright partition as contended by the defendant cannot be urged with any force.

5. This would have been sufficient to dispose of this case. I should have either directed a proper suit to be filed by the plaintiff or if the relief of partition could be granted on the pleadings in the case I should have adopted such a course. But there is yet another difficulty in the case. It was urged even in the plaint that the properties belong to the Ayyappan Devaswom of the plaintiff's tarwad. This was not, in terms, refuted in the written statement, though there is a vague denial therein. Ext. B-8 has been produced in the case to show that the patta for these items excepting item 2 is in the name of the Devaswom and the plaintiff's tarwad is shown only as Coralans. Before me counsel for the plaintiff attempted to sustain the decrees of the courts below on the plea that if the properties belong to Devaswom as contended by the plaintiff there is no question of succession in regard to these properties because Ittirarappa Menon. the eldest member off the tarwad. had only a right to enjoy these items during his lifetime and on his death it must revert back to the tarwad of which plaintiff now claims to be the karanavan.

According to the plaintiff these properties are those which vest in a trust for the purpose of the Devaswom or to put it in another form, these are Devaswom properties and must be considered to be trust properties. In that event, it is the counsel's plea, there can be no inheritance under the Hindu Succession Act. This is a plea on which though there is controversy, the courts below had no occasion to go into properly. Since the ultimate decision must necessarily turn on this question too, it is necessary for the court to find one way or the other in regard to this plea. It is true that plaintiff has not unequivocally pleaded that being Devaswom properties they must be considered as trust properties not available for succession under Section 7 of the Hindu Succession Act 1956. Whether actually the properties are that of a trust is not evident. Mere description of the property as Devaswom properties may not by itself be sufficient when the plaint itself shows that the Devaswom. was owned by the plaintiff. Whether Devaswom is a trust and the properties are trust properties have to be decided on the evidence in the case, which. I must say, is very scanty. But all the same since the ultimate decision must turn upon a finding on this question I think I should agree to the request of counsel for plaintiff that an opportunity should be given to adduce evidence on this point.