Cherampennu and Others vs Neelan and Others

Joseph, J.—This second appeal arises out of a suit for partition of thavazhi properties. The parties are Kuravas. There are eight items of immovable property in the schedule attached to the plaint. The courts below have by concurrent decrees dismissed the suit in respect of items 5 to 8 which were gifted to the first defendant by his mother Kanni''s sister, Kochayya, on the ground that the first defendant had perfected title by prescription. As regards items 1 to 4 which were gifted by Kochayya to all the children of Kanni, the plaintiffs were given a decree for one-sixth share, on a stirpital basis. The plaintiffs have preferred this second appeal from the concurrent decrees in the suit. Madhavan Nair J. who heard the second appeal expressed the view that the plaintiffs were not entitled to any relief in respect of items 5 to 8 gifted to the first defendant under Ext. A dated 13-3-1111. The case was however referred to a Bench for decision as doubt was felt whether partition of items 1 to 4 was to be on a stirpital or per capita basis.

We concur with the view expressed by the courts below and Madhavan Nair J. as regards items 5 to 8 and hold that the suit must fail in respect of these items. The only question which remains is whether partition of the other items should be on a stirpital or per capita basis.

We have stated earlier that the parties are Kuravas of Travancore. They follow marumakkathayam law but unlike the major communities following that system, there is no statute governing succession, inheritance, partition, etc., and the case has therefore to be decided on principles of marumakkathayam law.

Our attention was not drawn to any decision governing the question of partition in the Kurava community, and we have therefore to follow the law as laid down in the decisions applicable to other communities following the marumakkathayam system of law who are not governed by any statute. In the case of such communities the High Courts of Travancore and Travancore-Cochin have always held the view that partition should be on a stirpital basis, the several l thavazhies taking equal shares irrespective of the number of members in each thavazhi. Raman Sankara Wariaru v Rama Wariaru Rama Wariaru and others (6 T. L. T. 59 FB) is a decision of the High Court of Travancore. The parties were Variars and one of the questions was whether partition should be on a stirpital or per capita basis. It was held by the Full Bench that it was to be on a stirpital basis and that the properties were to be divided equally between two branches of the taiwad. Reference was made in this decision to a case decided by the Sadar Court of Travancore, Raman Neelaciuukn v Raman Raman and others (Govinda Pillai''s Select Decision, page 8). The view taken in 6 T. L. T. 59 was followed in Easwara Varier v. Parukutty Varassiar (1955 K. L. T. 495). Recently the question came up for decision in Abdul Kader v. Appu (1962 K. L. T. 340). The parties were Thandans, another minority community of Travancore. Velu Pillai J. held that partition was to be per stripes and not per capita. Reliance was placed on the view expressed by Dr. Krishna Pandalai in his thesis on Succession and Partition in Marumakkathayam Law. Dr. Pandalai has made exhaustive references to cases decided in Travancore before right of compulsory partition was given to major communities in Travancore and shown that partition per stirpes was the rule.

A contrary view has been held in certain decisions of the Madras High Court regarding partition in the Nair community of Malabar. In Sreedevi Nethiar v. Peruvunni (A. I. R. 1935 Mad. 71). Madhavan Nair and Ananthakrishna Iyer JJ. held that though partition should be on a stirpital basis, the quantum of share allotted to each thavazhi should depend on the number of members of that thavazhi. The decision of these two eminent Judges who were familiar with the system of law applicable to Nairs in Malabar must be given weight. However, with great respect, we have to differ, as the decision cannot be taken to govern other communities in other parts of Kerala. So far as the communities following the marumakkathayam system in the former State of Travancore and are concerned the established law was that partition was to be on a stirpital basis, and we do not consider it proper to upset that position on the ground that it would be more logical to effect partition on a per capita basis. Even if two views are possible we should follow the one which has been taken as the law by the Courts in the State for decades.

Madhavan Nair J. has referred to a recent decision of the Supreme court in Anna Cherian v. Achutha Menon (1962 K. L. T. S. C. 125:1962 K. L. J. 1105). That was a suit for cancellation of a sale deed executed by a mukthiar of the karnavan and all the adult members other than the karnavan of a tarwad in Malabar. It was urged on behalf of the appellant in that case that where all the members of the tarwad joined in the execution of a sale deed, the question of delegation by the karnavan did not arise. It was further argued that the property belonging to a tarwad was the property of all the male and female members composing it and that the karnavan had no greater personal rights in the property than the junior members thereof. After referring to this argument the Supreme Court observed: "In fact the family consists of individuals with equal rights". We do not think this observation has any bearing on the question for decision in this case. The observation has to be understood in the context in which it was made. It is true that so far as the right to get maintenance from the tarwad is concerned, all the adult members are entitled to get the same equally. The members of a marumakkathayam tarwad have the right to be maintained out of the income of the tarwad properties. This is quite different from saying that all the members are entitled to equal shares when the tarwad gets divided into thavazhies. We are unable to agree with the view indicated in the order of reference that "equal right of maintenance in all the members indicate the equality of shares of such members in the properties of the tarwad." We do not feel justified in departing from the established view as regards partition in marumakkathayam communities of Travancore who are not governed by any statute law. We therefore hold that the decree of the court below allowing the shares to the plaintiff on a stirpital basis, ignoring the number of members in the thavazhi, is correct and does not call for interference. The second appeal fails and is dismissed, but in the circumstances we direct the parties to bear their costs in this court.