Panur Veetil Edayillam Krishnan Nair and others vs Panur Veetil Edayillam Chathu Nair and others

Mack, J.—The appellants are 13 members of a Marumakkathayam family who filed a suit for partition against the first defendant as Karnavan and three other family members, defendants 2 to 4. The facts necessary for determination of this appeal are briefly these : The first defendant was an old man aged 80 at the time of the plaint and would now be 86 years old. The position he took in his written statement was that he had lived away from the tarwad house for the past 35 years and that the tarwad affairs were mostly managed by the first and fifth plaintiffs and that he was not bound to render any account of the management into which he did not enter. The previous karnavan was the father-in-law of the first plaintiff and was also the first defendant''s elder brother. He died in 1945. The learned Subordinate judge granted the plaintiffs a preliminary decree with findings resolving the various points of dispute.

The first point raised in the appeal is as regards the share of the 13th plaintiff, a male child born to his mother, the sixth plaintiff, on 2nd September 1943. He was in his mother''s womb on 16th June 1948, the date of suit, and was after he was born impeded as a supplemental plaintiff. There was a registered notice of partition, Ex. A. 1, issued to the first defendant, i.e., the karnavan, on 16th February 1948, in which there was a reference to a petition having been filed before the District Collector to cancel the registration of this tarwad as impartibly with a view to enable them to claim their shares from the tarwad. The plaintiffs case in the plaint was that even some months prior to that there was a panchayat for a partition in September or October 1947, as deposed to by the Village Shanbhogue. P.W. 2, and the Village Patel, P.W. 3, who corroborated the fifth plaintiff, who was examined as P.W. 1. The learned Subordinate Judge on the mere basis that such a panchayat took place held that there was a division in status and that the 13th plaintiff having been conceived subsequent to that was not entitled to any share. We are unable to accept the learned Judge''s finding on this point which was based on principles of Hindu Mitakshara Law which do not govern Marumakkathayam inheritance. Prior to the Marumakkathayam Act (XXII of 1933), the legal position was that the members of a tarwad had no right at all to enforce partition except by mutual consent of all. The Act recognized and created what were known as impartibly tarwards in a separate schedule. By S. 43 of the. Act not less than two-thirds of the major members of a tarwad may apply to the Collector to register a tarwad as impartible; and by S. 44, similarly, not less than two-thirds of the major members of a tarwad registered as impartibly may at any time present a petition to the Collector for the cancellation of such registration. It is common ground and is also apparent from the registered notice of partition, Ex. A. 1, that this tarwad was impartibly. We have no hesitation in taking the view that until the registration of an impartibly tarwad is cancelled under S. 44 of the Act, there can be no rights flowing from any partition or even severance of status; and that a registered notice of partition or even an agreement proved by either two-thirds or all the members of a tarwad will not suffice to create any severance of status until the registration of the impartibly tarwad is cancelled.

In Sundaram Aiyar''s Malabar and Aliyasanthana Law at page 16 there is authority for the position that the consent required by Marumakkathayam Law to enable the members of a tarwad to enforce partition by the mutual consent of all is "to a partition as arranged and not to divide in status and to the particular arrangement if possible." We find ourselves unable as the learned Subordinate Judge has done by importing principles of Mitakshara Law to infer a severance of status on a mere notice of partition or even an agreement by all the members to divide of which the outside world having business or commercial relations with the family may have no knowledge whatsoever. The appeal succeeds on this point and the 13th plaintiff will therefore be entitled to a 1/17th share along with the other members.

The second point raised by the appeal concerns a sum of Rs. 7500 which was alleged to have been in the possession of the first defendant at the time of the partition in September and October 1947. In this connection it is regret first defendant in his written statement, in the position of what we may call a de facto karnavan. The only account that the first defendant may have to render is of any moneys which the plaintiffs can prove had been received by him as karnavan.

The only modification we make in the lower Court''s judgment is as regards the share of the 13th plaintiff as found supra. In the result, the appeal is allowed in part and the memorandum of cross-objections is dismissed. The parties will bear their own costs in this appeal.

Krishnaswami Nayudu, J.

I am in complete agreement with the reasoning and conclusions of my learned brother in the judgment just delivered. The question which arises in the case is whether in the case of an impartibly tarwad, the impartiality having been created by statute, the principles of Hindu law applicable to Mitakshara family should be applied with all its implications to a Marumakkathayam family. The law as stated by Mr. Sundaram Aiyar in his book is that there can be no right in an individual member of a Marumakkathayam tarwad to enforce partition but there could be partition by common consent of all parties. It has not been stated that the right to partition by common consent of all parties would also entitle an individual member to get, a divided status by expressing his intention to be separate from the family. From the extract given by my learned brother from Sundaram Aiyar''s book on Malabar law it appears to be clear that what all the members of a Marumakkathayam family would be entitled to is to have partition of the properties and that too by common consent and it does not appear that even if all the members consent to partition, the right of the members is only to have a partition and not to have simply a divided status. But even assuming that a member of a Marumakkathayam family possesses such a right which is generally exercised by a member of a Mitakshara family under, the Hindu Law, such a right being a right relating to partition it cannot be exercised in respect of a property which had been registered as an impartible tarwad under the Marumakkathayam Act, XXII of 1933. In the present case at the instance of the majority of the members of the suit tarwad, the tarwad was registered as an impartibly one, by virtue of S. 43 of the Act and on the date of the alleged panchayat, i.e., in October 1947, the tarwad continued to be registered as an impartibly tarwad and as such even assuming that the members of the family in their entirety had a right to get divided in status without effecting actual partition that right could not be exercised in respect of a tarwad which was then impartibly. The right to partition and any right incidental thereto could only be exercised in respect of a property which is pitiable and since the tarwad continued to be registered as an impartibly tarwad no right relating to partition can be exercised by any member or even by all the members with their common consent. In that view, in any event, it cannot be said that there was any division prior to the cancellation of the registration which the members of the tarwad sought to effect by the notice sent to the Collector on 13th February 1948. The 13th plaintiff would therefore be entitled to participate in the family properties and I agree with my learned brother that he should be granted a decree for a share in the suit properties.