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TMI Blog1971 (7) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... aration and possession of 1-7/8 share of the Archakam service in the temple and also to recover 1/8 share in the Inam village of Kelavikulam attached to the Archakam service in the third defendant temple. Other reliefs were also claimed relating to the fourth defendant temple which, however, do not survive in the appeal. 2. It will be of assistance to set out the following pedigree table: Subba Bhattar had bequeathed Ms share in the disputed properties and rights to his wife Parvathiammal. On November 20, 1929 Parvathiammal executed a deed of gift in favour of Duraiswamy who was described as her senior mother's son. The relevant part of the gift deed is as follows: I have conveyed to you under this deed the properties mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imal's husband Subba Bhattar. This was particularly so with regard to the pooja rights which, according to the contention of the plaintiff could have been gifted by Parvathiammal only to the plaintiff who was the immediate heir and not to Duraiswami who was a remoter heir. The trial Court dismissed the suit and its decree was affirmed by the first appellate Court. 3. Before the first appellate Court five points were agitated. Out of those only the second and the third may be mentioned. These are: (2) Is the gift by Parvathiammal valid? (3) Even if not valid is it valid as a family arrangement? As stated in the judgment of the first appellate Court the plaintiff's contention was that the will by Parvathiammal's husban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court and upheld the decision of the first appellate Court that the gift deed was valid. An appeal was filed under Clause 15 of the Letters Patent to a Division Bench by the plaintiff. Before the Division Bench the plaintiffs Counsel sought to raise a new point that the alienation relied upon, though termed as a deed of gift, was in fact an alienation for consideration and therefore invalid within the well established principles. This point was permitted to be raised because it was considered that the determination of the question did not depend upon the decision as to . facts which were in dispute. The bench referred not only to ext. B-9 which was the deed of gift but also to another document ext. B-28 dated January 16, 1921. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Court that the alienation evidenced by ext. B-9 by Parvathiammal was one by way of a gift and was without consideration. It was never pleaded, asserted or claimed by the plaintiff that any consideration had passed for the properties which were the subject matter of the gift by Parvathiammal in favour of Duraiswami. In such a situation it was not open to the Division Bench of the High Court to allow the question of consideration to be raised for the first time and that also without any amendment of the pleadings being allowed and without the defendants having a proper opportunity to meet the case. 6. It has been pointed out by learned Counsel for the defendants that the statements in ext B-9 did not in any way justify the view wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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