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Radhakrishna Menon Vs. Village Officer - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtKerala High Court
Decided On
Case NumberO.P. 283 of 1974
Judge
Reported inAIR1977Ker19
ActsMarumakkathayam Law
AppellantRadhakrishna Menon
RespondentVillage Officer
Appellant Advocate T.R. Govinda Warrier and; K. Ramakumar, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases ReferredMahalinga Bhatt v. State of Kerala
Excerpt:
property - agreement - marumakkathayam law - whether there will be severance of joint family status from date of agreement between members of 'tarwad' for dividing 'tarwad' properties or same will be postponed to actual division of properties by metes and bounds - severance in status be effected by declaration by members of 'tarwad' for partition - severance in status takes place from date of agreement. - - though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal, one not intended to be acted upon but was conceived and executed for an ulterior purpose. ' in the above decision it is further said :so far, therefore, the law is well settled, namely, that a..........of the tarwad for dividing the tarwad properties and whether there will be a severance of the joint family status from the date of agreement or the same will be postponed to the actual division of the properties by metes and bounds. if there is a severance of the joint family status from the date of the karar, it goes without saying that the petitioner who was only a member of the tarwad cannot be asked to measure levy in respect of any property which is not set apart to his share.2. as early as 30th november 1970 the petitioner and the other members of the tarwad entered into ext. p-4 karar for partitioning the tarwad properties. in ext. p-4 the petitioner was put in charge of the management of the properties till a partition deed is got executed. the 1st respondent-village.....
Judgment:
ORDER

K.K. Narendran, J.

1. The petitioner in this original petition was a junior member of a Marumakkathayam tarwad who was put in charge of the management of the properties as a stop-gap arrangement in view of Ext. P-4 karar, entered into between the members of the tarwad, for partition. The grievance of the petitioner is against Exts. P-1, P-3 and P-6 orders insisting that the petitioner should measure the levy in respect of the tarwad properties. The question that arises for consideration is as to what is the effect of an agreement between the members of the tarwad for dividing the tarwad properties and whether there will be a severance of the joint family status from the date of agreement or the same will be postponed to the actual division of the properties by metes and bounds. If there is a severance of the joint family status from the date of the karar, it goes without saying that the petitioner who was only a member of the tarwad cannot be asked to measure levy in respect of any property which is not set apart to his share.

2. As early as 30th November 1970 the petitioner and the other members of the tarwad entered into Ext. P-4 karar for partitioning the tarwad properties. In Ext. P-4 the petitioner was put in charge of the management of the properties till a partition deed is got executed. The 1st respondent-Village Officer, Karimpuzha issued Ext. P-1 levy notice to the petitioner demanding 32 quintals and 5 kgs. of paddy in respect of 8 acres and 9 cents of properties belonging to the tarwad for the 1973 Kanni crop. The petitioner filed Ext. P-2 objections making it clear that Ext. P-4 agreement for partition of the tarwad was already entered into by the members of the tarwad and in pursuance of the above agreement the properties were actually put in possession of the respective sharers, himself keeping possession of only 1 acre. The names of the members of the tarwad to whom properties were allotted in pursuance of Ext. P-l agreement were also given in Ext. P-2 objections. But the 2nd respondent-Taluk Supply Officer, Otta-palam by Ext. P-3 rejected the petitioner's objections mainly on the ground that the whole cultivation was done by the petitioner. Thereupon, the petitioner filed Ext. P-5 appeal before the 3rd, respondent-District Supply Officer, Palghat But the same was dismissed by Ext. P-6 order. It was under the above circumstances that the petitioner has approached this Court with this original petition. A counter-affidavit has been filed by the 3rd respondent-District Supply Officer, Palghat. The petitioner has also filed a reply affidavit.

3. Shri T. R. Govinda Wariyar, learned counsel for the petitioner, contends that the effect of Ext. P-4 karar entered into in November 1970 is that there was an actual severance of joint family status as soon as it was executed even though the properties were divided into metes and bounds only later. Learned counsel also contends that the fact that Ext. P-4 was not registered is im-material. According to the learned counsel, even if the petitioner did the cultivation in the whole of the properties in question, that cannot be a reason to make the petitioner liable for measuring the levy as because of Ext. P-4 the petitioner ceased to have the power to dispose of the paddy obtained from the properties allotted to the other members of the tar-wad. Learned counsel also has a contention that even if the contention of respondents 2 and 3 that actual partition of the tarwad had not taken place before the crop in question is accepted, the petitioner cannot be made liable for the levy since he was not the karnavan of the tarwad. In support of his contentions, learned counsel relies on three decisions of the Supreme Court and a Bench decision of this Court. In Rukhma-bai v. Laxminarayan (AIR 1960 SC 335) it is said :

'A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal, one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immoveable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact.'

In the above decision the Supreme Court has further said:

'Doubtless an unregistered document can effect separation in status.'

In Kashinathsa Yamosa Kabadi v. Nar-singhsa Bhaskarsa Kabadi (AIR 1961 SC 1077) it is said:

'The agreement between the members of the joint Hindu family to appoint arbitrators for dividing the family properties amounts to severance of the joint family status from the date of the agreement: Once reference is made, joint family status is severed and it is not postponed until the division of the property by metes and bounds.'

In Raghavanima Chenchamma (AIR 1964 SC 136) it is said:

'It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and en-joy his share in severally.'

In the above decision it is further said :

'So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should, be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts.'

In Jose Philip Thayyil v. Taluk Supply Officer, Kottayam (O. P. No. 1869 of 1973) a Bench of this Court dealing with the question that when the property is owned by more than one person as tenants-in-common, whether the liability to measure levy for the whole property can be fixed on any one of them alone, said :

'We have no doubt that the seizure of the paddy from the kalam of the petitioner was unlawful in view of the admitted fact that the paddy land in question belonged in Oodukur to 4 persons including the petitioner ..... This Court has pointed out on more than one occasion that it is illegal to make one of the tenants in common liable for the entire levy.'

In the above decision the following passage from Mahalinga Bhatt v. State of Kerala (1969 Ker LT 792) is seen extracted :

'The question therefore is whether the petitioner can be said to have disposing power over the share of the paddy collected from the shares of the sons who obtained it under the partition deed. It is not sufficient that the cultivation was done by any paricular person who is one of the sharers under the partition deed; But that person even if he cultivated, harvested and collected the entire paddy from the various sharers must also have the disposing power of that paddy which he collected from the shares belonging to other persons. It is not possible to postulate that such is the case when each member in the partition deed is entitled to the paddy that was obtained from his share.'

4. Learned Government Pleader contends that though Ext. P-4 karar was executed in November 1970, it was not being acted, upon till the issue of Ext. P-1 levy notice and hence the contention of the petitioner that he is not liable to measure the levy in respect of the entire properties of the tarwad which he culti-vated cannot be accepted. Learned Government Pleader points out that in res-pect of all previous crops the petitioner measured levy for the whole of the properties belonging to the tarwad. Learned Government Pleader also has a conten-tion that, Ext. P-4 karar was drawn up to evade levy. Learned Government Pleader points out that Exts. P-3 and P-6 orders were passed after necessary enquiries and after being convinced of the fact that none of the members of the petitioner's tarwad had the power of dispo-salover the paddy harvested in the crop in question.

5. There is some force in the contention of the learned counsel for the petitioner. It is to be noted that the respondents have no case that Ext. P-4 karar is a sham document. If so, the question is what will be the effect of an agreement like Ext. P-4 by which the members of a tarwad agree for a partition. It is settled law that a severance in status can be effected by a clear declaration by the members of a tarwad for a partition. A severance in status takes place from the date of the agreement. It is not postponed till an actual division of the property by metes and bounds is made. The fact that the petitioner did the actual cultivation cannot make the petitioner liable for the levy in respect of any land not set apart to him as per Ext. P-4 karar. Moreover, the petitioner was doing the cultivation as he was appointed as the Manager as a stop-gap arrangement. He is not the karnavan of the tarwad. But that question does not arise as a severance in status took place on the date of Ext. P-4 karar itself. I set aside Exts. P-1, P-3 and P-6. But it is made clear that the authorities will be free to proceed against the individual members of the tarwad if it is possible under law.

6. The original petition is allowed. There will be no order as to costs.


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