Adam Haji Peer Muhammad Issac Sait vs Pattakkarantavita Kunkan and Others

Venkataramana Rao, J.—The question in this second appeal is what is the nature and extent of interest possessed by defendant 2 in certain

properties, one of which is a boat, the subject matter of this appeal, left by one Kunhikutti. The plaintiff, defendant 2, and the deceased Kunhikutti

formed members of a tavazhi following the Marumak-kathayam law. Before his death, the said Kunhikutti disposed of his properties by a

registered will dated 27th December 1923. His object was to benefit the members of his tavazhi. This is clear from the following preamble to the

will:

I should make certain settlements regarding the claimants who are to enjoy the ownership right of my self-acquired properties alter my death.

After stating that the property possessed by him was his self-acquired property and that it should be enjoyed by him till his death, he specifies

the persons to whom it should go after his death thus:

And after my death, my brother (1) Amabadi, (2) younger brother Chandu, (3) nephew Manickam''s son Raman alias Joseph Sadanandan, (4)

younger brother Kunkan, (5) younger brothel Ryru, (6) younger brother Sankaran, (7) Achuthan alias Benjamin Sadanandan, (8) nephew Kunhi

Pennu''a son Andi, (9) Kunhi Pennu, (10) Cheeru, (11) Korumbi, (12) Kunhi Pennu, (13) Kaliyani, (14) Madhavi and the Santhanama of the

female members among them who are already born and who are yet to be born, are the claimants of the said properties.

(No. 1 Amabadi is defendant 2 in the suit.) Then he provides for the maintenance and enjoyment of the said property thus:

My representative No. 1 is to hold the said properties and cause them to be held. He should pay the jenmi purappad, efiect renewals of the said

properties by entering into agreement with the jenmis, manage the odams (boats) and the nets, hold the mudaruthi pattam, collect the out standings

to be recovered, effect repairs to the nets whenever they get damaged, manage the Sardine Press and take the proceeds and protect the other

members according to the income and enjoy the said properties. And after the death of No. 1, the male members out of the members from No. 2

onwards aforesaid and after their death the male issues in the females who are now living and those that are to be born should manage the

properties according to their seniority. And in default of male issue, the females, according to their seniority, should hold the properties and cause

them to be held according to the Marumakkatbayam law of inheritance and take the income there from and enjoy the same. And when it becomes

necessary that a loan had to be raised, all the then members, both male and females who ''have attained their majority, should join together and

execute a document under their joint signatures. And all the debts and alienations otherwise incurred or effected will not be binding either en the

properties or on other members and they will not be liable there for. As the major income to protect the members aforesaid are to be derived from

the boats and nets, the male members and other than Nos. 3, 7 and 8 should exert themselves to the top of their capability in the management and

work and protect the members of the family as aforesaid. In case the remaining members are cot prepared to do so, such anandiravans should be

excluded from the properties by a registered notice executed jointly by all the remaining members. And if they are so excluded, they will be devoid

of any right over the said properties and on the annual income therefrom.

Nos. 3 and 7 referred to above are the sons of two of his nephews, namely Joseph Sadanandan and Benjamin Sadanandan who are Christians

by religion. On a reading of the will, there can be no doubt that what the testator intended was that the property should be owned and enjoyed by

all the members of the tavazhi to which he belonged and that it should be possessed and managed after the manner of tarwad property in

accordance with the rules of the Marumakkathayam law by which he was governed, with certain restrictions in regard to the management

regarding loans and alienations. It is also evident that the testator regarded the said Joseph and Benjamin as members of his tavazhi and intended to

benefit them. The question now is has defendant 2 any individual interest in the properties devised? Can defendant 1 seize and sell the boat in

execution of a decree obtained against defendant 2 ? The contention of the plaintiffs is that the properties are devised to the tavazhi as such, that

defendant 2 has no individual interest therein which could become the subject of sale and the attachment of this boat by defendant 1 is invalid Bad

inoperative. The crucial question is, was the property taken by defendant 2 and other legatees as tavazhi property or as tenants-in-common owning

a several share therein? This again is dependent on another question whether the legatees were members of a tavazhi. The lower Court answered

the question in the affirmative relying on Pathumma v. Raman Nambiar (1921) 8 AIR Mad 224. This is canvassed by Mr. Govinda Menon on

behalf of defendant 1. His argument is that two of the legatees, who are admittedly Christians on the date of the will cannot be members of the

tavazhi along with the other legatees; that they cannot together in law form a tavazhi and that the view of the lower Appellate Court that in spite of

the conversion to Christianity a person can continue to be a member of a tavazhi is unsound and the gift therefore is not to the tavazhi as such.

To test the soundness of this contention, it is necessary to examine what the legal effect of the conversion of a member of a tarwad or tavazhi on

the holding of the property by such a tavazhi or tarwad is. A Malabar tarwad or tavazhi is a corporate unit just like the Mitakshara joint Hindu

family. The members are joint in food, worship and estate but the property held by them is impartible except with the consent of all the members.

No individual member has any definite share therein nor can he enforce a right to a share by partition. The mode in which the proprietary right is

enjoyed is by participating in the enjoyment of the family property, and provision is made sometimes for maintenance and other expenses which in

law are strictly in exercise of a proprietary right. The right of management is vested in the senior male member called karnawan who has got certain

rights of alienation analogous to the powers possessed by a manager of a joint Hindu family. His right to management is unrestricted except in

cases where he is guilty of waste or makes some alienations not for the benefit of the family when the junior members of the family have got a right

to interdict by taking appropriate proceedings in a Court of law. The right possessed by an individual member ensures only for his life. Neither the

principle of the right of representation nor the principle of survivorship as known to Mitakshara law exists, but the birth or the death of a member

may affect the other members in the extent of beneficial enjoyment of the tarwad property or the death of a member leaving property which lapses

to the tarwad may enable the other members to share in the enjoyment thereof also with the rest of the tarwad property. The rights and obligations

flow out of the status of being a member of a tarwad, Once it comes to an end by any means known to the law, they can neither be enjoyed nor

enforced. Conversion to any alien religion is one of the modes which puts an end to the status. The effect of conversion with reference to the

position of an undivided family governed by Hindu law is thus stated by their Lordships of the Judicial Committee in C. Abraham v. F. Abraham

(1861-63) 9 M.I.A. 195

The tie which bound the family together is, so fat as he is concerned, not only loosened, but dissolved. The obligations consequent upon and

connected with the tie must...be dissolved.

They again observe:

Parcenership, understood in the sense in which their Lordships here use the term, as expressing the rights and obligations growing out of the status

of an undivided family, is the creature of, and must be governed by, the Hindu law�. Parcenership may be put an end to by a severance effected

by partition; it must, as their Lordships think, equally be put an end to by severance which the Hindu law recognizes and creates.

It therefore cannot be disputed that the the which bound the tavazhi together, on conversion of the said two members, so far as they are

concerned, became dissolved and they could no longer be members of the tavazhi. Their rights and obligations incident to their status as members

of the tavazhi must therefore cease. If the strict Hindu law be applied, they would not only become divided in status but would forfeit all rights to

their tarwad property; but Act 21 of 1850 preserved their right to the property in that they could still continue to possess the rights incidental to

their ownership, that is, the right to have provision made for their residence and maintenance from and out of the property possessed by the tarwad

at the date of the conversion and any additions made thereto with the income thereon. But the Act does not preserve their status as a member of

the tarwad or the incidents appropriate is and dependent thereon. To illustrate, if a member of a tarwad dies leaving his self-acquired properties

un-disposed of, they lapse to the tarwad and any member of the tarwad gets the benefit of such acquisition but the convert by ceasing to be a

member of the tarwad cannot participate in the enjoyment of the said property by reason of the severance of the status. In Kunhichekkan v. Lydia

Arucanden (1912) M.W.N. 386,"" a Division Bench took the view that on conversion the incident of survivorship would no longer subsist, the

convert becomes a tenant-in-common and is entitled to claim partition. This view was dissented from in Pathumma v. Raman Nambiar (1921) 8

AIR Mad 224 where it was pointed out that Act 21 of 1850 does not enlarge the rights which a member had before conversion and what was

impartible cannot be rendered partible by reason of the conversion. The use of the terms, ''tenancy-in-common"" and ""survivorship"" with reference

to the members of a Malabar tarwad, if I may say so with respect, is not strictly accurate. What does really happen on conversion is that the joint

status is severed and the property possessed by the tarwad cannot thereafter be held by the remaining members of the tarwad along with the

convert as members of a tarwad. The decision in Pathumma v. Raman Nambiar (1921) 8 AIR Mad 224 does not lay down that in spite of

conversion, a member continues to be a member of a tarwad as assumed by the learned District Judge. Again, where there is no right to partition,

there is no right of survivorship. In a Mitakshara undivided family, it is the right to partition which determines the right to take by survivorship. The

right possessed by an individual member in a Malabar tarwad ceases with his life and there is no devolution of an undivided interest as in a

Mitakshara family. Even if the principle of survivor, ship is held applicable to a Malabar tarwad, it can only subsist so long as the undivided status

subsists. As observed by their Lordships of the Privy Council in Katama Natchiar v. The Raja of Shivaganga (1861-63) 9 M.I.A. 539 , according

to the principles of Hindu law, there is coparcener ship between the different members of a untied family and survivorship following upon it, (The

italics are mine). From this, it follows that if there is no united family, there can be no survivorship. This is also the view of the Division Bench in

Kunhichekkan v. Lydia Arucanden (1912) M.W.N. 386 where the learned Judges observe at page 390 thus:

The incident of survivorship was one which attached to the property on account of its being owned by the members of a joint Hindu family, When

the Hindu family ceased to exist, the incident of survivorship ceased to exist.

Act 21 of 1850 cannot preserve the right which is contingent and dependent on the continued subsistence of a particular relationship which is

not saved by the Act. The observation of Wallis Pathumma v. Raman Nambiar (1921) 8 AIR Mad 224 that survivorship is not lost is obiter and if

I may say so with respect, not correct. Thus the correct legal position occupied by the members of the tavazhi to which the testator belonged on

the date of the will is that the two members who became converts do not belong to the said tavazhi and the legatees specified in the will together

cannot and do not form a tavazhi. Where there is a gift to persons who are members of a Malabar tarwad, a presumption is raised that the donees

are intended to take the property with the incidents of tarwad property: Chakkra Khannan v. Kunhi Pokker (1916) 3 AIR Mad 391. As Sriniyasa

Ayyangar J. points out in that case, which was a case of a gift by a member of a Malabar tarwad to his wife and children :

It is not the giving of properties by a person to his wife and children that constitutes them a tarwad or tavazhi, but that if properties are given to a

wife and children following the Marumak-kathayam law, they as a tavazhi hold those properties with the incidents of tarwad property.

The gift under such circumstances is presumed to have been made to an entity which is called a tarwad or tavazhi. In the present will, there are

no express words conferring the property on the tavazhi as such. Of course all the legatees mentioned therein, but for the conversion of the two

members, will together constitute the tavazhi. But if in law they could not form a tavazhi, the presumption should not be given effect to. The

operative portion of the gift must therefore be construed as a gift to certain named or existing legatees and persons to be born. The gift to unborn

persons cannot take effect but the gift cannot fail on that account. The named legatees and such of the children of the female members who were

alive on the date of the death of the testator will take the properties as tenants-in-common. Though the primary intention may have been to benefit

the members of the family as such, there is also a secondary intention to benefit those who can take. The limitations and restrictions in regard to the

holding and enjoyment of the property would be invalid as the testator cannot by any act of his constitute certain members into a tavazhi for the law

would not permit such a thing and it is not open to him to tie up the property in the manner ha has chosen to do. In this view, defendant 2 will be

entitled to a several share and whether it is 1/14th or still less will depend upon whether there was any issue born to the female legatees who were

alive on the date of the death of the testator.

In this view it is unnecessary for me to consider the argument based on Section 39 of the Marumakkathayam Act which confers a right of

partition on individual members of a tarwad in oases where there is any change of religion. Mr. Krishnamurti advanced a contention that even

assuming the two convert members could not be members of the tavazhi after their conversion, the rest of the members constitute a tavazhi and

must be deemed to have continued as such and the gift therefore must be construed as a gift to the tavazhi and the two converts. I am not inclined

to agree with this contention. From the language employed in the will it is clear that no distinction was drawn between the members who were

converts and the other members in regard to the nature of the gift and there was no intention to treat the members other than the two convert

members as an entity. In the result, I set aside the decree of the learned District Judge and hold that defendant 1 is entitled to attach and sell

defendant 2''s interest in the suit property in execution of the decree obtained against him. The respondents will pay the costs of the appellant here

and in the Court below.