Kesavan vs Raghavan and Others

Joseph, J.—The 1st defendant in a suit for partition of immovable properties is the appellant. The three plaintiffs who filed the suit are the widow and children of one Pappu Sankaran. Defendants 1 and 2 are brothers of Pappu Sankaran. Their father was one Karumpan Pappu who died in the year 1110. The 3rd defendant is a son of Karumpan Pappu by another wife. The plaintiffs, and defendants 1 to 3 are Paravars or Chozhavas and according to the plaintiffs, they are governed by the Makkathayom system of inheritance. The properties described in Schedule A of the plaint were acquisitions of Kochupothi Kalikutti, the maternal grand-mother of Pappu Sankaran and defendants 1 and 2. The plaintiffs claim 1/3rd share in these properties as heirs of Pappu Sankaran. The properties in schedule B are the acquisitions of Karumpan Pappu and in respect of these, the plaintiffs claim 1/4th share. The plaint claim is based on the assertion that Pappu Sankaran was entitled to such shares in A and B schedule properties. The main contentions of the 1st defendant were that the parties were not Makkathayees but Marumakkathayees following the Misravazhi system and that even in respect of properties obtained from the father, the children took the same as a group and that they did not get specific shares. The trial court upheld the defence contentions and dismissed the suit. The plaintiffs appealed to the District Court and the appeal was allowed in respect of B schedule properties. The learned Judge held that the children were entitled to definite shares in one-half of the properties left by their father and as the Marumakkathayam heirs of Karumpan Pappu had not come forward to claim one-half of B schedule properties, the plaintiffs were given a decree for recovery of 1/4th of those properties after setting aside an alienation in respect of the same to that extent. The decree of the trial court in respect of A schedule properties was confirmed. The 1st defendant has preferred this Second Appeal objecting to the decree in respect of B schedule properties and the plaintiffs have preferred a memorandum of cross-objections claiming a share in A schedule properties. As regards the law governing the parties, it has been satisfactorily proved by Exts. I to X that in respect of properties acquired by female members of the parties were followers of the Marumakkathayam system which excluded the children of male members from sharing such properties. The 1st plaintiff admitted as P.W. 4 that till the date of the Travancore Ezhava Act, the Ezhavas and Paravars were governed by the same system of inheritance. It cannot be disputed that in respect of tarwad properties the children of Pappu Sankaran would not have been entitled to claim shares if the parties were governed by the law applicable to Ezhavas before 1100. The courts below have therefore rightly dismissed the plaintiff''s claim for a share in A schedule properties. B schedule properties which belonged to Karumpan Pappu stand on a different footing. The High Court of Travancore had to consider the question of devolution of properties acquired by male members of this community in Palpu Velayudhan v Adicha Parvathi (22 T.L.R. 13). It was held that one-half of such properties were to devolve on the children and the other half on the Seshakars of the person who acquired the same. Karumpan Pappu''s children would thus be entitled to one-half of the properties described in schedule B. There remains the further question whether the children would take such property as tenants-in-common, each having a specific share or whether they would inherit the same only as a group. There is no decided case on this point. However there is the admission of the 1st plaintiff that the law governing them was the same as that applicable to Ezhavas before 1100. It was only in the year 1100 that the Travancore Ezhava Act was passed. Before that date of that Act the self-acquired property of an Ezhava male which devolved on his wife and children was taken by them as sub-tarwad. Raman Kochan v Ayukutti Chinna and 3 others (15 T.L.R. 50) is one of the earliest reported decisions of the High Court of Travancore on this point. This principle has been followed by the Travancore-Cochin High Court in Padmanabhan Kunju-kunju and others v Sankaran Padmanabhan and others (5 Dominion L.R. Travancore-Cochin 501). A change in the existing law was made by Section 32 of the Trvancore Ezhava Act which provided :

Except where a contrary intention is expressed in the instrument of gift or bequest, if any, Makkathayam property acquired after the date of passing of this Regulation shall be liable to be divided among the wife and each of the children in equal shares.

It was only by reason of this section that children of an Ezhava male got for the first time specific shares in their father''s self-acquired properties. Even this was restricted by the section to Makkathayam property acquired after the passing of the Act. The question is whether the change made by the statute in the customary law applicable to Ezhavas can be taken to have effected a similar change for Paravars who belonged to a different community, merely because in several respects they had a similar system of inheritance before the date of the statute. The learned Judge held that the change brought about by Section 32 of the Ezhava Act was applicable to Paravars also. From a question put in during a cross-examination he assumed that this position was admitted by the 1st defendant. The question was :

I do not see how this question can be taken to amount to an admission which is diametrically opposed to 1st defendant''s case. The form of this question is the only basis on which the learned Judge applied Section 32 of the Ezhava Act to Paravars also. In my opinion the learned Judge was not justified in assuming that the customary law governing Paravars was altered by the statute relating to a different community. The customary Marumakkathayam law regarding devolution of Makkathayam properties was similarly altered for the Nairs only by the Travancore Nair Act. In the absence of a similar statute applicable to this community, there is no justification in holding that the children of a deceased Parava got specific shares in their father''s properties.

The Learned Counsel for the plaintiffs-Respondents-attempted to support the decree on the ground that Karumpan Pappu had children by two wives and as those children could not form a sub-tarwad, it was argued that each child got a definite share in his father''s properties. It is true that a Marumakkathayam Tarwad or a Hindu coparcenary cannot be constituted by act of parties, but this does not mean that each child of a person governed by pure Marumakkathayam law would get a definite share in his father''s self-acquired properties if the father had married more than once but not if the father was monogamous. The children who form a natural group or thavazhy would get whatever they are entitled to as a thavazhy irrespective of the question whether any child by a different marriage would get a definite share or not in the properties. So far as this community is concerned, in a case of devolution of Makkathayam property on children by two wives, the two groups would be the joint donees, each group and not the individual members thereof taking separate shares. Merely because Karumpan Pappu married twice I am not prepared to hold that Pappu Sankaran and defendants 1 and 2 got separate shares in B schedule properties. The decree passed by the lower appellate court cannot therefore be upheld. In the result the Second Appeal is allowed setting aside the decree of the lower appellate court and restoring that of the trial court. The appellant will get his costs here and in the lower appellant court from the plaintiffs Respondents-who will bear their own. The memorandum of cross-objections is dismissed with costs.