Achuthan alias Rattan Nair and Others vs Anandavalli Amma and Others

Vaidialingam, J.—This is an appeal by defendants 1, 2, 4 and 6 against the decrees of both the subordinate courts decreeing the suit of the plaintiff for maintenance from Edavam 1123 M. E. to 28-8-1951. The short point that arises for decision in this Second Appeal is as to whether the plaintiff can recover any arrears of maintenance, without taking any steps to challenge the partition deed, Ext. B1, dated 28--8--1951, in which, she, as minor, was represented by the Karnavan of the tarwad. In my opinion, the objection regarding the maintainability of the suit on this ground is to be accepted and the Second Appeal allowed.

The plaintiff filed the suit for recovery of arrears of maintenance from the first defendant personally and from the alleged tarwad properties of the minor plaintiff and defendants. In this litigation, the minor plaintiff is represented by next friend, her father. Plaintiff is the daughter of one Janaki Amma, who is the sister of defendants 1 to 4. According to the plaintiff, she and the defendants, are members of a Marumakkathayam tarwad and her mother died about 3 years after her birth. Ever since, she has been staying only in her own house with her father, and she has not received any maintenance from the tarwad. It is specifically stated in the plaint that, as and when a suit for partition is to be instituted by her, full particulars of the properties owned by the tarwad would be given.

Defendants 1, 2, 4 and 6 contended that the suit was not maintainable. They also contended that there has been already a partition in the tarwad, evidenced by Ext. B1 dated 28--8--51. In the said partition, the minor plaintiff was represented by the Karnavan of the tarwad, who is, in law, entitled to represent her as guardian, and properties from their share have been allotted to all the parties, including the plaintiff. Without seeking any relief as against the partition as such, it is not open to the plaintiff to ask for maintenance prior to the date of Ext. B1. They also took up certain special pleas on the merits.

Defendants 3 and 5 contended that the plaintiff was not entitled to claim any relief and her only remedy was to institute a suit for partition. They also raised certain pleas on the facts.

The trial court was of the view that there are a large number of circumstances which will go to indicate that the partition evidenced by Ext. B1 is not an equitable one and that it is detrimental to the interest of the minor plaintiff. Then the trial court discussed the various circumstances connected with the partition deed and came to the conclusion that the present suit is maintainable, without setting aside the partition deed, Ext. B1. The trial court was not prepared to go to the extent of holding that it is not incompetent for the first defendant, the Karnavan, to act as the guardian of the minor plaintiff in the partition transaction. But the trial court was of the view that the first defendant represented the minor in the partition, ignoring the father of the minor, with a view to get more property for his share. The trial court then referred to certain decisions and came to the conclusion that it is not necessary for the plaintiff to ask for setting aside the partition document.

Having held that the suit was maintainable, the trial court went into the question of income of the tarwad properties and ultimately held that the plaintiff is entitled to maintenance at the rate of Rs. 10/- per month, beginning from Edavom 1123 M. E. up to the date of the plaint from the tavazhi properties. The trial court also made the first defendant personally liable for maintenance due to the plaintiff.

On appeal by defendants 1, 2, 4 and 6, the learned Subordinate Judge of Ottapalam made a slightly different approach, but confirmed the decree of the trial court in favour of the plaintiff, awarding maintenance at the rate of Rs. 10/- a month from Edayam 1123 M. E. till 28--8--51. But the learned Subordinate Judge set aside the personal decree passed, as against the first defendant.

According to the learned Subordinate Judge, it is not necessary for the plaintiff to attack the partition deed at all, and that the claim of the plaintiff can be disposed off even otherwise, because it related only to a period prior to the date of Ext. B1. Therefore, the appellate court was of the view, that it is not necessary to consider the question whether the suit is maintainable without setting aside the partition deed. Here again, the learned Subordinate Judge was faced with the circumstance that the father could not have acted as the legal guardian of the minor plaintiff in the tarwad partition, and the learned Judge also recognised the position, that under the Madras Maruraakkathayam Act, it is the Karnavan who is to act on behalf of the minor members. But the learned Judge further stated that he is not going into the question whether the partition is valid and binding on the plaintiff and that the said question may be considered in a suit, if any, to be filed by the plaintiff. The learned Judge further stated that there is a partition deed, Ext. B1, and its effect may be considered only in another proceeding. According to the learned Judge, "this partition cannot be used against the plaintiff in any view to deprive her of her claim for maintenance till that date".

In this appeal, on behalf of the defendants 1, 2, 4 and 6, Mr. N. Sundara Aiyar, Learned Counsel, contends that both the subordinate courts have not fully appreciated the position arising out of the minor plaintiff being represented in the partition document, Ext. B1. According to the Learned Counsel, the plaintiff was represented by the proper person who could represent her, namely, the first defendant, as karnavan, in the partition deed. All claims outstanding as against the tarwad as on that date, have been taken into account, and there has been a division of the property among the parties entitled to such division. The plaintiff has also been allotted a share in the said partition. There has been no reservation in favour of the plaintiff for getting maintenance up to that date in Ext. B1. The right to maintenance given to a member of the tarwad, u/s 35 of the Madras Act XXII/1933, is a right on the property of the tarwad. There can be a partition in spite of there being minor sharers and such a partition would ordinarily be binding on the minors, but, on attaining majority, it may be open to them to re-open the partition, if they are able to satisfy the court that they have been prejudiced by such partition. In this case, there is absolutely no attack on the partition as such by the plaintiff. In fact, the plaintiff has specifically stated in the plaint that she will give the necessary particulars about the tarwad properties in a suit for partition that she will be instituting. In the absence of any attack on the partition as such, the trial court committed a serious mistake in law in ignoring the partition and decreeing the plaintiff''s suit.

Mr. Sundara Iyer further contended that the approach made by the learned Subordinate Judge is also not correct. There cannot be a claim for maintenance prior to the date of the partition, outstanding in a member, after the date of the partition, unless, that right is specifically reserved. In this case, if the plaintiff had a claim for maintenance, it would have been a liability and provided in the partition deed. There is no such provision. The learned Judge, according to the Learned Counsel, was in the wrong in holding that a claim for maintenance can be considered, notwithstanding the partition deed.

On the other hand, Mr. D. Narayanan Potti, Learned Counsel for the plaintiff, has contended that there has been no waiver or abandonment of the plaintiff''s claim for maintenance prior to the date of the partition deed. Therefore, the question of the plaintiff''s right could be gone into without adverting to the partition transaction at all.

After considering the contentions of the Learned Counsel on both sides, I am of the view, as stated earlier, that the decision of both the subordinate courts cannot be sustained. The trial court committed a very serious mistake in going into the question of the validity or otherwise of the partition deed, Ext. B1, when, even the plaintiff has not chosen to attack the same, and even in the absence of an issue regarding the validity and binding nature of the partition document, The trial court appears to have proceeded on the basis that the present suit is one for setting aside Ext. B1 itself, and it is on this basis, it has considered very elaborately the question of the validity of the partition arrangement. The trial court missed a very important aspect, in the decisions relied upon by that court, because, in almost all those decisions, there was a direct attack on the transaction entered into by the guardian, when the plaintiff was a minor.

The learned subordinate Judge has also, in my opinion, committed an error in proceeding on the basis that the plaintiff''s claim could be considered even apart from the partition document.

Whether the partition is good or bad, on its merits, is a totally different point. The plaintiff has been represented in the partition deed by the person who, in law, is entitled to represent her, namely, the karnavan, the first defendant. This position has been practically accepted by both the courts. The legal position appears to be fairly clear that it is open to the members of a coparcenary or tarwad to enter into partition of the family properties and it is open to them to divide the family properties among themselves.

Such a partition would ordinarily be binding on the minors, but, if on attaining majority, they are able to show that they have been prejudiced, that partition could be re-opened so far as they are concerned and they would be awarded the share which should have been set apart for them; but, subject to this the partition is final as between those who were parties to it.

See the decision of Coutts Trotter and Seshagiri Ayyar JJ., in Veluthakal Chirudevi v Veluthakal Tarwad Karnavan (31 MLJ 879 at 881). This position has also been approved in a later decision by Sir J. Wallis, Chief Justice, and Mr. Justice Spencer in Nanikutti v Achuthan Kutti Nair (36 MLJ 529 at 530).

Their Lordships of the Privy Council, in the decision reported in Dalkishen Das v Ram Narain Sahu (ILR 30 Cal 738), observe at page 752 as follows:

There is no doubt that valid agreement for partition may be made during the minority of one or more of the coparceners. If an agreement for partition could not be made binding on minors, a partition could hardly ever take place. No doubt, if the partition was unfair or prejudicial to the minor''s interests, he might, on attaining majority, by proper proceedings, set it aside so far as regards himself.

Again, in a partition, to ascertain the assets actually existing on the date of the disruption of the joint status or the properties available for division and before the division of the joint estate is made, it is necessary to make provision for the liabilities of the joint estate, such as the debts due or claims against the family -- (See Mayne''s Hindu Law and Usage, 11th Edition, paragraph 415 at page 514). If the liability of the family to meet the claim of the plaintiff for maintenance was sought to be reserved, it would have been so mentioned in the partition deed. Such a recital is not found in the document, whereas, other liabilities of the family are mentioned in the document. It may be that the plaintiff is entitled to challenge the partition deed, on this ground also, namely, that her claim for maintenance, if any, up to that date, has not been provided for in that document, Ext. B1. But that is a different aspect of the matter altogether which will have a bearing on a direct attack against the partition as such.

I cannot accept the contention of Mr. D. Narayanan Potti that, unless there is a specific recital of waiver or abandonment of the claims of the plaintiff for maintenance prior to the date of the partition, the plaintiff would be entitled to claim maintenance prior to the date of Ext. B1.

On the other hand, in my opinion, the question is really whether a reservation has been made in Ext. B1 allowing the plaintiff''s right to claim arrears of maintenance, if any, prior to the date of Ext. B1. A partition takes into account the assets and liabilities of the properties to be partitioned as on that date. In this view, it follows that the suit as framed is not maintainable. In the result, the Second Appeal is allowed; the decrees and judgments of both the subordinate courts are set aside and the suit dismissed with costs throughout. No leave.