1. The second defendant, the son of defendants 1 and 3, who lost before both the lower courts, is the appellant and plaintiffs 1 to 6 the contesting respondents 1 to 6 The seventh respondent. the fifth defendant, is the mother of the other respondents and is the wife of deceased Krishnan, the father of respondents 1 to 6 The fourth defendant, who is not a party to the second appeal, was the brother of Krishnan The suit which has given rise to the second appeal, was for declaration of title, partition and separate possession of six shares out of seven of the suit properties leaving the seventh share, the share of the seventh respondent. The respondents are Ezhavas governed by the Travancore Ezhava Act of 1100: and the appellant represents the decree holder-purchaser of the suit properties in court auction.
2. The suit properties originally belonged to Krishnan, who executed the gift deed evidenced by Ex. P-1 in 1104 in favour of his wife, the seventh respondent, who had then no children. The first respondent, the eldest of the children of Krishnan and the seventh respondent, is said to have been born a few months after the gift The gift was to the seventh respondent for the benefit of herself and the children to be born in her to the donor. Defendants 1 to 3 filed O S. No. 29 of 1115 against Krishnan, the fourth defendant and the seventh respondent on a debt due by Krishnan and the fourth defendant. The suit properties were attached and sold for the decree debt and purchased by defendants 1 to 3. Respondents 1 to 6 brought the present suit claiming that the decree and execution proceedings were not binding on them or their shares, since they were not parties to the suit.
Their claim was that the gift was to the seventh respondent and her children to be born in the future as a group; and that under section 32 of the Ezhava Act their shares were not liable for the debt. Hence, they claimed their six shares out of seven Defendants 1 to 3 claimed, inter alia that the gift could be valid only in so far as it was in favour of the seventh respondent, who alone was aliveon the date of the gift, and in so far as her subsequent born children were concerned, the gift was invalid. Their contention was that under Section 22 of the Travancore Nayar Act the doness took the properties as tenants-in-common and the same rule of interpretation must apply to Section 32 of the Travancore Ezhava Act. They raised other contentions as well like that the gift did not lake effect, that the suit was barred by limitation, etc., which were all found against by both the lower courts; and on those questions there is no controversy in second appeal.
The only question urged in second appeal is whether respondents 1 to 6, the after-born children of the seventh respondent, had any right in the suit properties given by Krishan. In other words, the question is whether the interpretation of Section 32 of the Ezhava Act should be on the same lines as the interpretation of Section 22 of the Nayar Act. This being an important question of law affecting the Ezahavas of erstwhile Travancore, the case has been referred to a Full Bench.
3. Though several decisions have been cited at the bar and discussion has also taken place on various aspects, the question to be decided is confined to fairly narrow bounds. The contention of the counsel of the appellant, put in a nut-shell, is that the interpretation of Section 32 of the Ezhava Act should be the same as the interpretation of Section 22 of the Nayar Act. He relies on a Division Bench ruling of this Court, viz., Sivasubramonia Pillai v. Kaliani Amma, 1957 Ker LT 785 arising under Section 22 of the Nayar Act and holding that under a gift falling under the said section the properties vest in the children as soon as the gift is made and such properties cannot be divested by the birth of other children later; that since any child is entitled to obtain a partition of such properties, if the after-born children are also to get shares, such partition will have to be reopened every time a child is born to the mother after partition; and that the wording of Section 22 does not warrant any postponement of the vesting of the shares till the mother dies or passes the child bearing age. The counsel also draws our attention to an observation of another Division Bench in a case arising under the Ezhava Act, viz., M M. Philip v. Kunju Kesavan, 1958 Ker LT 8, that the effect of Section 32 is that, ordinarily, makkathayam property obtained after the passing of the Act should be taken by the wife and children as tenants-in-common, even though the instrument by which the property was acquired stood in the name of one individual alone: but that if a contrary intention is expressed in the instrument, effect should be given to that intention From these two decisions the counsel of the appellant argues that just as donees under Section 22 of the Nayar Act take the properties as tenants-in-common, donees under Section 32 of the Ezhava Act also take as tenants-in-common. The counsel lays particular stress on the observation of Kumara Pillai J. to that effectin the second Division Bench ruling cited above.
4. On the other hand, the counsel of the contesting respondents brings to our notice some old decisions of the Travancore High Court like Narayanan Naravanan v. Parwathi Nangali, 5 Trav LR 117, Kunju Kalliani v. Kunjupennu Lekshmi, 11 Trav L R. 139 Mathevan Kunju Kunju v. Raman Krishnan, 13 Trav LR 72, etc. Those old decisions hold that gifts by a marumakkathayee father known in Travancore as makkathayam and in Malabar as puthravakasam are ordinarily intended to benefit all the children of the donor by the same mother, the properties which form the subject of Rift, though usually registered or acquired in the name of the mother, are held by the mother and children in common under the management of the mother or the next senior competent male or female among the donees, the manager of such properties acts for the benefit and as trustee of all parties interesed in the properties and compulsory partition of such joint or common properties cannot be allowed; that in respect of makkathayam properties among people following marumakkathyam law, the donees or beneficiaries form a separate tarwad, of which the senior male member among the donees or beneficiaries is the karnavan; and that the ordinary presumption arising from a makkathayam gift made by a marumakkathayce father is that the properties given by him art for the benefit of all the children inclusive of those to be born in the future.
The counsel also refers to some similar decisions of the Madras High Court and contends, on the strength of all these decisions, that the gift by a marumakkathayee father in favour of his wife and chlidren is to a Tavazht constituted by the wife and children. He argues that this applies to all gifts by marumakkathayee fathers. In other words, his contention amounts to that the Division Bench ruling relied on by the counsel of the appellant in Sivasubramonia Pillai's case, 1957 Ker LT 765 has not been correctly decided and requires reconsideration.
5. We do not think we need go to this extent in the case before us, because we feel that even if the said Division Bench ruling is correct in so far as Section 22 of the Nayar Act is concerned, still the position may not be the same under Section 32 of the Ezhava Act. Therefore, for the purpose of this case we are proceeding on the basis that the said Division Bench ruling is correct.
6. We shall now consider the historical background in which the Nayar Act and the Ezhava Act came to be passed The earliest Nayar Act was passed in 1088; and that was for the purpose of amending the law of marriage, succession and family management of Nairs. In 1100 the present Nayar Act (Act II of 1100) was passed to amend the Nayar Act of 1088 and to make provisions for partition in Nair tarwards. This Act was passed on 1st Medam 1100 corresponding to 13th April 1925 on the same day, viz., 1st Madam1100 corresponding to 13th April 1926 the Ezhava Act (Act III of 1100) was also passed to define and amend the law of marriage, succession, family management and partition among the Ezhavas. Prior to the said Act there was no statute for the Ezhavas. Section 22 of the Nayar Act appears in Chapter IV dealing with intestate succession, and Sub-section (1) of the section reads:
'Property acquired by gift or bequest by the wife or widow or child or children from the husband or father, as the case may be, after Act 1 of 1088 came into force, shall unless a contrary intention is expressed in the Instrument of gift or bequest, if any, belong to the wife or widow and each of the children in equal shares.'
Section 32 of the Ezhava Act appears in Part VII of the Act dealing with partition. Part VII is divided into two parts, one dealing with partition of tarwad property and the other dealing with partition of makkathavam property; and Section 32 is in the latter part. The section reads:
'Except where a contrary intention is expressed in the instrument of gift or bequest, any, makkathayam property acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares:Provided that, in the partition of makkathayam property, the issue how-low-so-ever of a deceased child shall be entitled to only such chare as the child itself, if alive, would have taken.'
We may also point out that the expression 'makkathayam property' is not defined in the Nayar Act, whereas the term is defined under Section 4(11) of the Ezhava Act as 'property obtained from the husband or father by the wife or child or both of them by gift. Inheritance or bequest'.
7. Evidently, the legislature which passed both the Nayar Act and the Ezhava Act on the same day, one after the other, seems to have deliberately treated the question involved. In Section 22 of the former and in Section 32 of the latter differently. The language of Section 22 of the Nayar Act is different from the language of Section 32 of the Ezhava Act. Section 22 of the formersays that the property acquired by gift, etc. shall belong to the wife or widow and each of the children in equal shares; and this section, as already stated, is included in the chapter relating to intestate succession. On the other hand, Section 32 of the lattersays that makkathayam property acquired after the date of commencement of the Act shall be liable to be divided among the wife and each of the children in equal shares
We reiterate that this provision is in the part dealing with partition and in the portion of that part dealing with partition of makkathayam property. And makkathavam property is defined by the Act as property obtained from the husband or father by the wife or child or both by gift, inheritance or bequest. The proviso to the section says that in thepartition of makkathayam property the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself, if alive, would have taken.
8. It is relevant to advert, at this stage, to two decisions. One is the decision already referred to, viz., 1958 Ker LT 8, a case in which Section 32 of the Ezhava Act came up for consideration and the other the decision of the Supreme Court in Kunju Kesavan v. M. M. Philip, AIR 1964 SC 164, being the decision in appeal against the former. In that case a Bhagavathi Parameswaran made a gift of a property to his wife, Bhagavathi Valli Amma, after the Ezhava Act. Bhagavathi Valli, who died two years after, had an only son by name Parameswaran Sivaraman, who married Parvathi Meenakshi and had a son named Vaasudevan. Sivaraman left Travancore several years before the gift; and it was taken for granted that he died subsequently. The question in the case was whether the gift by Bhagavathi Parameswaran in favour of Bhagavathi Valli was to her absolutely, or, in other words, whether there was a contrary intention expressed in the instrument of gift. Under the gift some property was given to Bhagavathi Valli and some other property was given to Vasudevan.
Mainly from this circumstance the High Court as well as the Supreme Court held that there was a contrary intention expressed in the instrument of gift indicating that the property given to Bhagavathi Valli was to enure to her absolutely. It was in considering this question that Kumara Pillai J., who spoke for the Division Bench, observed in paragraph 7 of the judgment that:
'The effect of this section (Section 32) is that, ordinarily, makkathayam property obtained after the passing of the Act should be taken by the wife and children as tenants-in-common even though the instrument by which the property was acquired stands in the name of one individual alone.' etc.
Evidently, this observation was obiter, because the stage was not reached in that case to consider the nature of the estate taken by the donees, whether as tenants-in-common or as joint tenants. In other words the Division Bench held that there was a contrary intention expressed in the instrument of gift with the result that the two donees mentioned therein took the properties given to them separately It was not because in every gift where no contrary intention was expresed the donees took as tenants-in-common by reason of Section 32 that the particular result followed in that case, but because there was a contrary intention expressed in the instrument of gift that the two donees mentioned therein should take their shares separately as absolute owners that that result followed Therefore, no importance need be attached to this observation of the Division Bench.
9. Now about the decision of the Supreme Court. The Supreme Court has said in paragraph 11 of the judgment dealing with Section 82:
'What the law did was to define the rights on partition of makkathyam property and laid down that on partition the shares would be equal unless a contrary intention was expressed.'
The Supreme Court has also pointed out that Section 32 is in the part dealing with partition: and as an inference therefrom, it follows that the equality of shares is on partition, unlike under Section 22 of the Nayar Act wherein the equality of shares is on succession, since the expression used is shall belong.
10. Now we shall revert to the consideration of the difference in language between Section 22 of the Nayar Act and Section 32 of the Ezhava Act. As already pointed out, Section 22 of the Nayar Act says that the property shall belong to the wife or widow and each of the children in equal shares, whereas Section 32 of the Ezhava Act says that the property shall be liable to be divided among the wife and each of the children in equal shares. The former section thus deals with the ownership of the property. 'shall belong' is the expression used The latter section deals with the shares to be taken by the parties on partition: 'shall be liable to be divided' is the expression used. In this connection, we reiterate that Section 22 of the Nayar Act is contained in the chapter relating to intestate succession, while Section 32 of the Ezhava Act is in the part relating to partition. Therefore, it is clear, especially in view of the fact that both the Acts were passed on the same day, that the intention of the legislature must have been to have two different effects for the two sections of the two Acts
11. Some discussion has taken place at the bar regarding the group of persons who will be entitled to take shares under Section 32 of the Ezhava Act. in other words, regarding the effect of the proviso to the section. The question is whether all the issues how-low-so-ever, both in the male and in the female lines, will be entitled to share, or only the members of the tavazhi, namely, the issue in the female line alone, will be entitled to share. From the wording of the proviso it appears fairly clear that the legislature intended to give the entire group of persons, issue both in the female and in the male lines, the right to share This intention will be clear if we turn to Section 19 of the Act.
Explanation II of that section says that the expression 'children' in the case of an intestate male and the expression 'tavazhi' in the case 'f an intestate female, shall, for the purpose of Part IV of the Act, include issue of such intestate female or male how-low-so-ever. It may be argued that the Explanation gives that special meaning only for the purpose of Part IV of the Act and not for the other Parts But, we are inclined to think that the intention of the legislature could not have been different regarding Part VII dealing with partition, because the proviso uses the word 'child' to mean 'issue how-low-so-ever of adeceased child'. This, in our opinion, indicates that the issue how-low-so-ever of a child, both in the male and in the female lines, is entitled to share in a partition under Section 32.
12. The decision of the lower courts is correct: in other words, the gift was to the seventh respondent and her children to be born in the future as a group; and the shares of the donees will be defined only at the time of partition. The second appeal is therefore dismissed with costs of the contesting respondents 1 to 6.
Raman Nayar, J.
13. I wish to add a few words to the judgment my learned brother, Raghavan J. is pronouncing on behalf of thebench.
14. Section 32 of the Travancore Ezhava Act is a very difficult section and I do not pretend to understand what it really means. The best I can make of it is this. Unlike the Travancore Nayar Act, Sections 22 and 41, the Ezhava Act enacts no presumption as to how or by whom what it calls Makkathayam property shall be held. The definition of Makkathayam property in Section 4(11) is wide enough to include all property 'obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest', irrespective of the disposition actually made by the husband or father And, as my learned brother has emphasized, Section 32 enacts no presumption regarding the disposition but only lays down how, in the absence of any direction in the instrument of gift or bequest, such property is to be divided on partition, although. by saying that it shall be divided among the wife and each of the children in equal shares, it presupposes that the wife and all the children are joint owners of the property.
15. Now a gift--confining ourselves to the case of a gift by the husband or father to the wife or child or both--can be to the donees named in the deed in their individual personal capacity, in other words, for themselves alone. In that case they would take the property severally as tenants-in-common and their respective shares would be determined by the terms of the gift deed. Each donee would take his share as his separate property; the division on partition would be in accordance with the respective shares just as in a partition between other kinds of tenants-in-common; and there would be no question of Section 32 coming into play.
16. The gift can be to the named donees as representing the group of persons composed of the wife and the children then in existence as contemplated by Section 22 of the Nayar Act as that section has so far been understood. In that case too the actual donees would take the property severally in equal shares and Section 32 would have no application
17. The gift can be to the named donees as representing the thavazhee of the wife as contemplated by Section 41 of the Nayar Actand Section 48 of the Madras Marumakkathayam Act. In that case it would be the tarwad property of the thavazhee, divisible as such between the members of the thavazhee in accordance with sections 28 to 31 of the Act which provide for the partition of tarwad property. Here again, there would be no question of Section 32 coming into play -- the proviso thereto which contemplated the issue of a deceased child, whether male or female, taking the share the child would have taken, precludes the construction that the section only plays the part played by the proviso to Section 48 of the Madras Marumakkathavam Act which enjoins a division per stirpes instead of the per capita division of real tarwad property.
18. The gift can be to the named donees as representing the group of persons composed of the wife and children including children to be born. Such a gift can be made only through the machinery of a trust, the named donees holding as trustees for themselves and the other beneficiaries. It seems to me that Section 22 of the Nayar Act could well have been construed as enacting a presumption to that effect--see 5 Trav LR 117 where it is suggested that in a Makkathayam gift, the named donees take as trusties for the entire body composed of the wife and children--and that Section 82 of the Ezhava Act proceeds on the basis of such a presumption. That, latter section seems to take it for granted that, in the absence of a contrary intention expressed in the deed, if any, Makkathayam property belongs beneficially to the wife and all the children whether already born or to be born -- and that would ordinarily be the intention of the donor.
And when it comes to a partition of such property, the body of the section enacts that, unless the deed otherwise directs, an equal share shall be allotted to the wife and each of the children (whether dead or alive), the proviso (which takes the place of Sub-section (2) of Section 22 of the Nayar Act) enacting that, in the case of a deceased child, the issue how-low-so-ever of that child shall take the share allotted to that child but no more-- it must be remembered that, in the per capita division of tarwad property contemplated by Section 31, the issue of a deceased child might take more than what the child if alive would have taken in an equal division between the wife and children. The rules of intestate and testamentary succession in Parts IV and V of the Act do not apply to the interest of a child who dies; but, on partition, the issue, how-low-so-ever of the child will take the share which the child would have taken if alive. What their rights inter se are, the section does not say and luckily that question does not arise in this case.
19. In this case the gift was to the wife there were no children then, at least none born--but the deed expressly stated that the gift was for the benefit of the wife and the issue that might be born to her and the donor. Now, if full effect is to be given to this provision -- and full effect must, if possible, be given instead of the provision in favour of the issue being ignored at a void provision making a gift to unborn persons--it can only be by construing the gift as a gift to the thavazhee of the wife, or as a transfer to the wife in trust for herself and the children to be born to her and the donor. In neither case would the appellant get mort than the 1/7th share of the wife which he has been given.
Gopalan Nambiyar, J.
20. I share the difficulty which my learned brother Raman Nayar, J. seems to have entertained, of evolving a completely satisfactory construction of Section 32 of the Travancore Ezhava Act. In so far as it provides that Makkathayam property shall be liable to be divided among the wife and each of the children in equal shares, it can be understood as a provision defining, not the ownership of the property or the manner, in which it is to be held, but only the mode of its division. To that extent, a constitution different from Section 22 of the Nayar Act extracted by my learned brother, Raghayan J. seems to be indicated and justified. The proviso to the section, conceding in unqualified terms, a share to the issue how-low-so-ever of a deceased child, whether male or female, in Makkathayam property seems to be at variance with the conception of tavazhi property. The provision for devolution of shares in joint-family property on the personal representatives of a deceased co-parcenor is perhaps not altogether unknown. (See the provisions in the Hindu Succession Act). In that view, the proviso to Section 32 of the Travancore Ezhava Act, is not altogether inconsistent with the conclusion that the property in the present case is to be regarded as the property of 7th respondent and her children.