Varkey Kuriakko vs Ouseph Ouseph and Another

Joseph, J.—The question referred for opinion is "Whether the respective senior-most members of the different tavazhles of an undivided tarwad by themselves can effect a division among the tavazhles?"

The tarwad in question is an Ezhava Marumakka-thayam tarwad and the division is alleged to have taken place in the year 1071 M.E., long before the Travancore Ezhava Act was passed. The question therefore has to be considered in the light of customary Marumakkathayam Law. The appellant relies on the decision of a single Judge of this Court, Kunhiamma v. Appu Nair (1962 Ker LT 99) --a decision in which the question has been answered in the affirmative. The respondent challenged the correctness of this decision and the question has therefore been referred to us for opinion.

Sundara Iyer, in his treatise on Malabar and Aliya-santhana Law, observed:

"The law must thus be taken to be settled that there can be no partition unless all the members of the tarwad consent." (page 14)

This conclusion is based on decisions of the High Courts of Madras, Travancore and Cochin and it is unnecessary to make an exhaustive reference to the case law on the subject.

M. P. Joseph, in his commentary on the Principles of Marumakkathayam Law, says:

Tarwad property is in theory impartible. No one member can claim a specific share of the property nor could partition be effected without the consent of all members. The principle on which this theory is based is probably that partition would break up the family which is considered as a social unit in Malabar. Partition would materially affect the wealth and status of the tarwad. The tarwad is considered to be a corporation with perpetual succession and every effort should therefore be made to prevent extinction and disintegration of the family. This idea of perpetuating the family or tarwad is so inborn in Maiabar that we see adoption invariably made when there is fear or danger of the tarwad becoming extinct,

But in practice, tarwad property is divisible and it is not unusual to find registered deeds of partition in tarwads when tarwads have become so unwieldy owing to the number of the members to be maintained, and the difficulty of providing shelter for every single member in the tarwad house. But no member has any right to demand a share or for compulsory partition. All the adult members of the tar-wad must consent before a partition could take place in a Malabar tarwad. The Courts have also recognised severance of Interest by a course of conduct for years". (p. 306)

The learned commentator refers to what Dr. Ormsby said in his Outline of Malabar Law:

"The normal state of the tarwad is that of union nor can division take place without the consent of all the members of the family."

Reference may also be made to the observations ot Sadasiva lyer, J. in Authlchan Easwaran v. Easwaran Narayanan 24 Trav LR 189, extracted in the order of reference wherein the approval of all the adult members for division of a tarwad is stressed. The question was again considered by a Full Bench of the Travancore High Court in Bhagavati Amma v. Ramalekshmi, 19 Trav U 1233, and the following passage from the decision of a Full Bench in A.S. No. 517 of 1087 (Trav.-Co.) is quoted with approval in the judgment:

"It is an undoubted proposition of Marumakkathayam Law that for the partition of Tarwad properties there must be the consent of all the adult members of the tarwad. . . . of course the consent of the adult members need not always be In writing but may be implied from their conduct, such as by their acquiescing in it when there were opportunities for impeaching it or by their subsequent dealings from which an inference that they admitted the validity of the partition, necessarily arises. Under what circumstances consent would be implied is a question which would depend upon the facts of each particular case."

The learned Judges held;

"The karnavan''s powers are essentially those of management and he can do only such things as are necessary for the proper management of the affairs of the corporation. Permanent alienation of the corpus of the tarwad or other arrangement by which one member or branch is given properties absolutely and that member or branch renounces his or their right over the other properties can be effected only with the consent of the other members of the tarwad. It is unnecessary to refer to other reported cases, and the proposition that the consent of all the adult members is necessary for partition of tarwad may be accepted as settled law.

The question arises whether the seniormost members of the different tavazhies are competent to partition the properties of the tarwad among the tavazhies. In 1952 Ker LT 99 it is held that they are, and the appellant relies on this decision. We are unable to accept the proposition. The learned Judge held;

"Partition is a transaction among co-sharers. If the co-sharers be individuals, all the individuals concerned must joint in it; but if the co-sharers be branches of a family, only the branches concerned need participate in it."

In arriving at this conclusion the learned Judge relies mainly on principles of Hindu Law and extracts the following passage from Mayne''s Hindu Law (11th Edition):

"Where a partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties." (P. 561)

Cases decided under Hindu Law are also referred to and relied on.

We do not think this rule of Hindu Law can be applied to parties governed by Marumakkathayam Law. The rule itself is founded on the Mitakshara I, ii, 2 as pointed out by Mayne:

"A Hindu father under the Mitakshara law can, it has been held, effect a partition between himself and his sons without their consent and this is rested on the Mitakshara I, ii, 2. This text has been held to apply not only to property acquired by the father himself but also to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sons inter se." P. 547.

Raghavachariar in his treatise on Hindu Law (4th Edition) has summarised the decisions on the point thus:

"According to Hindu law it is competent to a father to make a partition during his life and the partition so made by him binds his sons, not because the sons are consenting parties to the arrangement, but because it is the result of a power conferred on him, though subject to certain restrictions imposed in the interests of family. In cases like this the question is not whether such partition is a contract, like a partition made among brothers after their father''s decease, but whether It is a legal transaction, concluded in conformity to the Hindu Law''. Thus the father is in his lifetime competent to effect a separation in the family even without the consent of his sons provided the snares allotted to'' himself and the sons are equal and the mere fact that the share of one son is not separated by metes and bounds does not affect the status split up by the father by a deed of partition giving separate shares to the sons. But a partition by a father giving unequal snares to the sons, or a share to an absolute stranger, except when it could be supported as a bona fide compromise of a disputed claim, or when it is effected under his will is Invalid unless assented to by the sons. The father''s power to effect a severance in his joint family both as between himself and his sons and as between the sons inter se is a right inherent only in the father as a survival of the patria potestas and is not exercisable by any other ancestor as for instance a grandfather with reference to his grandsons". PP. 346-347.

The position of a karnavan of a marumakkathayam tarwad cannot be equated to that of a father in itakshara law as the latter has special rights and powers which are not available to the former. Such powers as a father has under Hindu Law are available to him, not because he is the manager of the family but because of his position as father with power to bind the Interests of his sons, me position of a father in Hindu Law is peculiar to that system of law. The karnavan of a tarwad need not always be the maternal uncle of the junior members; in certain cases he may be the eldest brother and in the absence of an adult male member, karnavanship may vest in the senior-most female member. It is not safe to import considerations which are peculiar to Mitakshara Law into Marumakkathayam Law.

We do not consider it proper to assume that the seniormost member of a tavazhi is competent to represent the tavazhi when the division is among the tavazhies, merely because the karnavan is its ''head, manager and mouth-piece". It was Holloway, J., who observed:

"A Malabar family speaks through its head and in all Courts of justice, except in antagonism to its head, can speak in no other way".

This has reference to the power of the karnavan to represent the tarwad in a Court of law or to the outside world and cannot be stretched to hold that absolute powers including the power of representing the other members in transactions such as partition are vested. It is pointed out by Sundara lyer:

"The position of the karnavan is accurately expressed by saying that it is the same as of a manager of a Hindu Mitakshara family with such modifications as the rule of impartibility necessarily implies." P. 34 The fact that the division is among tavazhies only and not among the Individual members does not make any difference so far as the power of representation is concerned because the integrity of the tarwad is destroyed and the status and rights of individual members are affected in either case. These do not come within the power of management of the karnavan of the tavazhi as pointed out in 19 Trav LJ 1233 referred to earlier.

We therefore answer the question in the negative.