Koroth Tanicheri Kunhikannan Nambiar vs Cheriath Cheeru and Others

Viswanatha Sastri, J.—Plaintiff is the appellant in this second appeal. His suit for recovery of arrears of rent by sale of the kuzhikanam and

other rights of the defendant-tenant in the property described in the schedule to the plaint has been dismissed by the Courts below. The property of

which the rent is now claimed was leased on kuzhiltanam by the karnavan of a tarwad to the predecessor-in-inteiest of the defendant. As the result

of the decree in a suit for partition filed under the Madras Marumakattayam Act, VII [7] of 1933 the members of the tarwad which granted the

lease became divided. Nevertheless, the plaintiff, the karnavan of the disrupted tarwad, claimed rent from the defendant on the footing that he

retained his status as karnavan to represent the members of the tarwad in respect of the property of which the rent is now claimed because this

property had not been partitioned among the members of the tarwad by the dncree. The defend ant tenant, resisted the claim on the ground that

the property had been allotted under a maintenance arrangement to a tavazhi and that he had paid the rent to the tavazhi karnavan. He also

pleaded that after the partition of the tarwad the plaintiff had no right to represent the tarwad and sue by himself for the rent due. The Courts below

have accepted the latter contention of the defendant and dismissed the plaintiff''s suit. Hence this sacond appeal.

Mr. Achuthan Nambiat for the appellant contends that since the item of property in respect of which the rent is now claimed was left out of the

partition decree, it continues to be tarwad property and the plaintiff continues to be the karnavan so far as this property is concerned and therefore,

his suit for rent was maintainable. It may be stated at the outset that the property in question was not included in the decree for partition by an

accidental omission and not as the result of any concensual arrangement between the parties to the suit.

It has been held by this Court that in the case of a Malabar tarwad a severance of status ia effected on the institution of a suit for parti"" tion

under the Madras Marumakatayarn Act of 1933 and after such severance of status it is not open to the erstwhile karnavan to represent the tarwad

and initiate proceedings in Court in respect of the tarwa! so as to bind the other members of the family who had unequivocally expressed their

intention to separate, in the suit for partition. It is open to the members of a Malabar tarwad as in the case of the members of a joint Hindu family

to effect a partition by metes and bounds or to effect a severance of interest in respect of a part of the joint estate retaining their status as a tarwad''

or as a joint family and holding the rest of the properties as the properties of a tarwal or an undivided Hindu family. This is in accordance with the

decisions of the Judicial Committee in Appovier v. Ramasubba Aiyar, 11 M. I. A. 75 : 8 W. R. 1 P. C. and Ramalinga Annavi v. Narayana

Annavi, 45 Mad. 489 : A. I. R. 1922 P. C. 201 and of this Court in C.T. Ramanathan Chettiar Vs. A.R.L.N.L.N. Ramanathan Chettiar, . The

mere fact that the members of a pint Hindu family divided among themselves a portion of the family aaaests does not by itself create or imply a

division in status among them and such intention to become divided in status must appear from the terms of the document effecting a partition, see

Appavu v. Manickam, I. L. R. (1946) Mad. 557 : A. I. R. 1946 Mad. 118. In Muthuswami Mudaliar v. Nallakulantha Mudaliar, 18 Mad. 418, it

was held by this Court that where a portion of joint family property is reserved for a future partition without any division of any kind, the previous

coparcenary continued quoad the property in question. In Gavrishawkar Parabhuram v. Atmaram Rajaram, 18 Bom. 611, it was held that the

circumstance that there has been a partition between the members of a joint Hindu family does not, in the absence of any special agreement

between them alter their rights as to the property still undivided. As to this they continue to stand to one another in the relation of members of an

undivided Hindu family. The decisions in Dagadu Govinda Bodake Vs. Sakubai Nana Bodake, in so far as they hold that where coparceners in a

joint Hindu family effect a partition and division of a portion of the joint property with the exception of some portions kept undivided, they are, in

the absence of any indication to the contrary tenants-in-common with reference to the excepted property in the absence of a special agreement to

hold the excepted property as joint tenants, may not be quite accurate and the criticism of these two decisions in Mayne''s Hindu Law (Edn. 11) p.

564 would appear to be justified.

In my opinion, where there has been a decree for partition in respect of the properties of a Malabar tarwad or a joint Hindu family, there is a

severance of status among all the members of the joint family or the tarwad who express a desire for partition by their pleadings in the suit or

among whom the decree effects a paitition. If by an accidental omission, one item of the joint family or tarwad property happens to remain

undivided by the decree, it cannot be maintained that the members of the joint family or the tarwad continue to remain undivided in status quoad

that item or that the erstwhile manager of the joint family or karnavan of the Malabar tarwad continues to represent the family and would be in a

position to exercise those rights which he could have exercised before the institution of the suit in respect of the omitted item. Unless the decree

itself provides to the contrary, it must be held that the suit and the desree effect a complete division in the status among the members desiring a

partition and a division by metes and bounds in respect of those properties which are actually divided under the decree. In this view, the conclusion

of the lower appellate Court that it was no longer open to the plaintiff to represent the tarwad after the passing of a decree for partition is correct.

It is contended by Mr. Aehuthan Nambiar for the appellant that I must remand the suit to the trial Court so as to give an opportunity to the

plaintiff to implead the other members of the tarwad who are interested in the property either as co-plaintiffs or aa defendants and prosecute the

suit. The objection as to the inojmpetenoy of the plaintiff to maintain the suit was taken in the trial Court, but no application was made either to that

Court or to the lower appellate Court to have the other members impleaded as parties. In these circumstances I do not consider I shall be justified

in reminding this case for the purpose of enabling the plaintiff to rectify the defect in the suit, especially when the addition of new parties after the

period of limitation for the suit is not likely to cure the defect.

The result is that this second appeal fails and is dismissed with costs. No leave,