Nanikutti alias Narayani Kutti Amma and Others vs Kotale Patnihare Puthiyapuril Achutan Kutti Nair, Karnavan and Manager of the tarwad and Others

In view of the findings of the Lower Appellate Court in these cases Mr. C. Madhavan Nair, who appears for the appellants, has only questioned

the decision as regards the partition deed, Exhibit C. This raises a question of Malabar Law of some importance on which we have derived much

assistance from his argument, and those of Mr. K.P.M. Menon and Mr. C.V. Ananthakrishna Aiyar for various respondents. The division under

Exhibit C, is a division of the tarwad properties per stirpes, that is to say, allotting an equal share to each strip or tavazhi. It is of course well settled

in Malabar that there can be no partition at all, except by the consent of all the adult members. As regards the minor members of the tarwad it was

observed by Sankaran Nair, J., in Puzhakkal Thirupurath Veluthakkal Chirudevi daughters and Others Vs. Puzhakkal Thirupurah Veluthakal

Tarwad Karnavan and Manager Thillu Amma''s son Kelappan Nair and Others, ""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."" This appears to be an application of the similar principle which has been applied with regard to partitions on the East Coast. As to

such partitions Mr. Ananthakrishna Aiyar has referred us to the decision of Srinivasa Aiyangar, J., in Yechuri Ramamurthi Vs. Yechuri Ramamma

and Others, where it was pointed out : that partitions effected by the adult members of the family are binding on the minor members, in the absence

of negligence or fraud. The only question then is whether this partition, which is by consent, can be upset at the instance of certain members of the

tarwad who were minors on the ground that the division was per stirpes and not per capita. Now the authoritiest to which Mr. Ananthakrishna

Aiyar has called our attention show conclusively that partition per stirpes or what comes to be the same thing, partition by tavazhis, has, to say the

least, a greater body of authority in its favour than partition per capita. He has referred us to Strange''s Manual of Hindu Law, Section 389 where it

is said that where such divisions are made, they would naturally be by tavazhis. Mr. Orms by who was Chief Justice of Travancore, in his book on

Marumakkathayam Law, says, at page 2, paragraph 4, "" where division takes place it will usually be according to Taivaries, or number of

daughters of the original-ancestress. Each Taivari may similarly be sub-divided, should the members consent thereto, and so on until individual

proprietorship is arrived at. I am not aware that this rule has ever been questioned."" The fullest discussion of the question is to be found in Dr.

Pandalai''s Marumakkathayam Law, 1.914, page 146 (which was not referred to before us) where the same result is arrived at, and several

decisions of the Travancore High Court are referred to. In a recent case which came before the Privy Council Sulaiman v. Baiyatumma (1916) 32

M.L.J. 137 their Lordships alluded at page 141 to this method of division by tavazhis as the proper mode of division. They say that this division

was merely an application of the rule that division for the purpose of partition is stirpital, though as between the members of any one class it is

capital."" Mr. Madhavan Nair explained this by saying that it only meant that divisions should be by tavazhis, but did not lay down that each tavazhi

should have an equal share. But a division per stirpes which gave each stirp an unequal share depending on the number of members in it would be

very like a division per ,capita, and was not we think what their Lorships intended. This division by Exhibit C has been made in what appears upon

authority, to be the more approved form, and therefore we think that the plaintiffs can have no right to question a partition effected in this manner.

Further we have to bear in mind that a partition in Malabar depends upon the consent of all parties, and if we were to uphold the plaintiff''s

contention, the'' only result would be to set this partition aside and to restore the original state of unity, because division per capita would, in this

case, be without the consent of all the adult members. It appears that with regard to some of the property of this family, it was divided per capita

by Exhibit B. That division is not attacked in the present case and we have not to consider it. What is contended is that the partition under Exhibit

C should also have been per capita, and should be upset because it is per stirpes. We are clearly of opinion that there is no ground for this

contention.

Therefore the ""appeal fails and must be dismissed with costs. S.A. No. 1267 of 1917 is also dismissed with costs.

In Memorandum of Objections in S.A. No. 1267 of 1917.

We must allow the memorandum and increase the fee in the Lower Appellate Court from Rs. 20 to 95. There will be no order as to costs in this

Memorandum of Objections.