Paru Kutty Amma (died) and Another vs Janaki Amma and others

Govinda Menon, J.—O. S. No. 60 of 1949 in the Court of the Subordinal Judge o'' South Malabar at Kozinkode was a suit, for partition

and recovery of possession of the share of the properties which fell to one Govindan Nair set out in schedules B. C and D to the plaint with the

liability mentioned in the C schedule in favour of the three plaintiffs and the 57th defendant. It was alleged that defendants 1 to 47 as well as

Govindan Nair and Kunhiraman Nair formed members of Kundumadam tarwad and before his death Govindan Nair and Kunhiraman Nair had

issued notices to the tarwad karnavan as also to the managers of the respective tavazhis claiming partition of their share and consequently a

severance in status had been created. Govindan Nair just before his death had executed a will bequeathing his share to the plaintiffs who are his

children and the 57th defendant, his widow. That is how the plaintiffs claim their share of the properties. Govindan Nair died on 25th May 1945.

Kunhiraman Nair and defendants 32 to 38 belong to the first tavazhi and defendants 1 to 12 and 31 belong to the second tavazhi. Minor

defendants 13 to 30 are the children of some of the members among the defendants 1 to 12 and as such they also belong to the tavazhi of

Govindan Nair, that is, to the second tavazhi. It is not quite necessary to detail the separate defences put forward by the respective defendants

except to say that the chief of them was to the effect that there was no undivided tarwad which could be the subject of partition. Defendants 31

and 32 who are the appellants in this appeal state that by Exs, B. 1 and B. 2 there was an outright division of the tarwad properties in 1928 and as

such the plaintiffs'' claim for a fresh division is unsustainable. Some of the defendants also pleaded that the Kundumadam tarwad as such does not

exist now. In the lower Court the main issues for consideration were whether the karar B. 2 dated 8th June 1928 operated as a partition or only as

a maintenance arrangement and whether the agreement for partition set up by some of the defendants, viz., B. 1 dated 20th February 1948

effected a division in status and if so thereafter whether an undivided tarwad as such existed. The learned Subordinate Judge considered the legal

import of Ex. B. 2 after analysing its provisions and came to the conclusion following the decision in Ammalu Amma v. Vasu Menon A.l.R. 1944

Mad, 108. that the document amounted only to a maintenance arrangement and cannot be understood as an outright partition.

We may at the very outset state that we have very serious doubts about the correctness of the decision by a single Judge in Muttathil Kuppu

Amma''s daughter Ammalu Amma and Others Vs. Muttathil Mamma Amma''s son Vasu Menon and Others, . Though the learned Judge has

discussed the document in question in that case in great detail it seems to us that he has not properly appreciated the trend of authority and has not

also correctly understood how such documents had been interpreted by learned Malabar lawyers. But, whatever that might be we are not called

upon in this case to overrule that decision because in the view we take about Ex. B. 1 the interpretation of Ex. B. 2 would take an absolutely

different turn.

Under Ex. B. 1 dated 20th February 1928 all the adult members of the tarwad except the 32nd defendant have entered into an agreement by

which they agreed to partition the tarwad properties into 24 equal shares, out of which two shares were to be allotted to the first executant,

Kunhiraman Nair and the remaining 22 shares were to be partitioned equally amongst the remaining 22 members inclusive of the minors who

constituted the then members of the tarwad and that a partition deed to that effect should be executed and registered within 15 days from that date.

It was further provided that if in consequence of malicious intention, any of the members did not agree to the said stipulations such of those

members and also the properties falling proportionately to their shares shall be entrusted as common properties to the members of any of the

thavazhis which the karnavan may choose and the karnavan and the remaining members who co-operate in this matter shall have the authority and

freedom to execute a partition deed and get the same registered in the regular manner. The reason why the 32nd defendant did not sign the

agreement was that he was not in the locality at that time but he has subsequently affirmed and ratified the agreement. As appellant here and as

defendant in the lower Court he has always stood by the Karar, Ex. B. 1 as effecting a division in status. D. W. 1 the husband of the 31st

defendant and who was examined on behalf of defendants 31 and 32 has deposed that the 32nd defendant did not sign the Karar as he was not in

the locality at that time. He further deposed that it was in pursuance of the agreement, Ex,B-1 that Ex, B-2 came to be executed. Therefore we

may take it that all the members of the tarwad had agreed on 20th February 1928 to have a partition of the entire properties of the tarwad into 24

equal shares. Further this Karar, Ex. B-1 has also been engrossed on stamp paper.

It has to be remembered that this agreement was entered into nearly five years earlier to the enactment of the Madras Marumakkattayam Act

when partition in the Marumakkattayam family was permitted only with the consent of all the adult members. Subsequent to the passing of the Act

as has been laid down in Karthiya-yini Kunchi Amma v. Minakshi Amma 59 Mad. 693 : 43 L.W. 111. the change in the law introduced by the

enactment of the Madras Marumakkattayam Act XXII of 1933 has made the doctrine of severance of status applicable to tavazhis under the

Marumakkattayam law as it is to persons under the Mitakshara law and for precisely the same reason. See also K.P. Madhavi Ammal and Others

Vs. M. Subramanian Nambudripad and Others, . Madhavi v. Nagappan I.L R. (1940) Mad. 1008 : 2 L.W, 721. and Madhavi Amma v.

Nagappan Nair 48 L.W. 868.

That being case we have to decide whether by Ex. B-l there has been a severance in status between the various members. Though the

document states that partition should be effected within 15 days of its coming into existence it is the case of D.W. 1 that it was in pursuance to Ex.

B-1 that Ex. B-2 came to be executed. Whatever that might be, no one has alleged that time is the essence of the contract in a matter like this and

that being the case if by Ex. B-l there is a severance in status effected then the fact that a partition dividing the properties by metes and bounds had

not been effected within the period mentioned would not nullify the effect of a division in status.

The learned Subordinate Judge took the view that because within 15 days of Ex. B-l a partition deed was not executed by which an out and out

division would take place, Ex. B-l could be ignored. He was also of the opinion that since the minors were not parties the document has not

sufficient basic value. Though one of the learned Counsel appearing in the lower Court contended that if there was a division in status by Ex. B.1

unless there was a re-union there cannot be an undivided tarwad, the learned Judge did not think it necessary to go into that question. In our view

he is wrong in considering that Ex. B-1 did not effect a severance in status. We are fortified in our conclusion by an unreported decision in S. A.

No. 1739 of 1918 by Sadasiva Aiyar and Spencer, JJ. What happened in that case was that the senior members of an undivided tarwad entered

into an agreement dated 5th May 1904 by which it was agreed to divide the assets and liabilities of the tarwad into 47 shares out of which three

shares were to be allotted to the tavazhi of executant No. 1, 14 shares to the tavazhi of executant No. 2. 17 shares to the tavazhi of executant No.

3, 9 shares to the tavazhi of executants Nos. 4 to 7, one share each to executants Nos. 8 and 9, one share to the minor who was under the

guardianship of the 8th executant and another share to the elder brother of executant No. 9. Subsequently when a suit was brought by one of the

members of the tavazhi of executant No. 3 claiming maintenance out of the properties of the undivided tarwad as it stood at the time of the

agreement, the contention was that a division in status was effected by this agreement and, therefore, the plaintiff could claim maintenance only

from the tavazhi of which he was a member, paragraph 8 of the agreement also stated that a schedule of debts and assets should be prepared and

that a partition deed be immediately drawn up in accordance with the stipulations contained in the agreement but no partition deed was executed

on that basis. Construing the document Sadasiva Aiyar and Spencer, JJ. observed as follows:

The partition agreement effected division of status between the 22nd defendant''s tavazhi (to which the plaintiff belongs) and the other tavazhis. The

plaintiffs are, therefore, not entitled to bring a suit for maintenance against a complex undivided tarwad (of several tavazhis) which no longer exists

and their claim lay only against the karnavan of their own tavazhi which has become a separate independent tarwad.

It is clear, therefore, from this decision that even before the enactment of the Madras Marumakkattayam Act if all the adult members

representing the tavazhis enter into an agreement to effect a division, that would constitute a division in status. The observations contained in

Sundara Aiyar''s Malabar law at page 16 also tend to the same view. We are, therefore, of the opinion that Ex. B-1 has effected a severance in

status.

The documents filed in the case show that even if Ex. B-1 did not amount to a partition Ex. B-2 in any event effected a partition Ex- A-1 dated

14th October 1943 is a registered notice sent by Govindan Nair to the other members of the tarwad wherein he admits the validity of the partition

and states that he has separated in accordance with law giving up the joint family status. Ex. B-6 dated 14th October 1943 is another notice

containing similar statements. Exs. A-2, A-3, and A-4 are all notices sent by Govindan Nair. In all these documents he admits that he is a divided

member. How the plaintiffs who are the legal representatives of Govindan Niar can now be heard to say that there was no division of the tarwad

properties has not been explained. In Ex. B-14 which is the written statement filed by the first plaintiff in O. S. No. 195 of 1940 on the file of the

District Munsif''s Court, Manjeri there is an unequivocal admission that Ex. B-2 has effected a partition and the will, Ex. A-6 executed by

Govindan Nair proceeds on the footing that there has been a partition and he has got his share. Such being the case it is too late in the day for the

plaintiffs to contend that an undivided tarwad exists. We have to take it, therefore, that in accordance with the division in status effected by Ex. B-1

a partition deed came to be executed under Ex. B-2 and whatever might be the terms of Ex. B-2 it cannot be said that it is a maintenance

arrangement. When once a division in status is effected unless there is a re-union, among the members, there cannot be an undivided family and

nobody thought of suggesting that by Ex. B. 2 there has been a re-union. That being the case reading Exs. B-1 and B-2 together the result comes

to this: In order to effectuate the recitals contained in Ex. B-1, Ex. B-2 came to be executed. If that is so, the plaintiffs cannot claim a share on the

footing that an undivided tarwad exists. The appeal by defendants 31 and 32, must, therefore, be allowed. But the plaintiffs have put forward an

alternative case in paragraph 14 of the plaint that if Ex. B-2 is to be construed as a partition deed then the tavazhi of Govindan Nair has become

partitioned and separated as a separate tavazhi tarwad consisting of defendants 1 to 32 and that the plaintiffs would be entitled to get Govindan

Nair''s share from that tavazhi. We think that the suit should not be dismissed thereby driving the plaintiffs to another suit. That being the case, while

allowing the appeal, we remand the suit to the trial Court for determining the share of Govindan Nair in accordance with the partition deed, Ex. B-

2 and for passing the final decree on that basis. The appellants are entitled to their costs in this Court from the plaintiffs-respondents. The court-fee

paid in the appeal memo will be returned.