Gopalan Nambiyar, Ag. C.J.
1. These two Second Appeals were heard together as they raised a common question. The defendants are the appellants in Second Appeal No. 743 of 1973 and the sole plaintiff is the appellant in the other Second Appeal. We shall first state the facts of Second Appeal No. 743 of 1973. It arises out of a suit for recovery of pos-session of the A schedule immoveable property and B schedule moveables, which belonged to the tarwad of the plaintiff and the defendants. The plaintiff was the karanavan of the tarwad, and the defendants are the wife and children of the previous karnavan, one Gopalan who died on 19-8-1965. The courts below held that the A schedule property belonged to the tarwad and granted a decree for recovery of possession. As far as the B Schedule is concerned the tarwad's title was found against, and the suit, in so far as it related to the moveables, was dismissed.
2. Second Appeal No. 1145 of 1973 arises out of a suit by the same karnavan of the tarwad against a son of Gopalan. It was for recovery of possession of an item of property, in respect of which the son claimed a lease-hold right under an oral arrangement, later confirmed by the execution of a registered marupat, Exhibit A-1 dated 9-10-1956. Both the courts below found against the oral arrangement set up. They also found that no possession passed to the defendant under the registered marupat Ext. A-1, and that the defendant was not entitled to set up any leasehold right on the basis of the said document. Nevertheless, the suit was dismissed on the ground that the defendant was a co-owner with the other members of the tarwad, and therefore entitled to remain in possession, and that a suit for recovery of possession against him cannot succeed. The unsuccessful plaintiff in the suit has filed the Second Appeal.
3. In both these appeals, on behalf of the defendants in the suits, the argument was that subsequent to the passing of the Hindu Succession Act, 1956 (Act 30 of 1956), there has been a devolution of interest of the deceased karnavan Gopalan on his personal representatives and that therefore they were co-owners with the rest of the members of the tarwad. Being so, it was contended that a suit for recovery of possession against them or any of them cannot succeed. Section 7(1) of the Hindu Succession Act reads :
'When a Hindu to whom the marumakkathayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkattayam or nambudri law.
Explanation.-- For the purposes of this sub-section, the interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.'
On the terms of the Section the interest of a deceased member in the property of a tarwad would devolve under the provisions of the Hindu Succession Act, and not according to the Marumakkattayam or Nambudri law. Whatever be the process of devolution, the heirs under the Hindu Succession Act cannot possibly form a tarwad with the rest of its members. The principle of joint tenancy, as has been held, is unknown except in the case of a joint Hindu family. The wife and children of a deceased member of karnavan cannot coalesce with the surviving members of the tarwad, so as to constitute the resultant entity into a tarwad. They could only be co-owners with the rest of the members of the tarwad.
This conclusion seems to follow from the principle recognised by the judicial decisions, to which our attention was drawn. In Unni Nayar v. Union of India, 1965 Ker LT 1149 : (AIR 1966 Ker 99) one of us, dealing with a question of estate duty in respect of the Mannarghat Moopil Nayar Sthanam, and speaking with respect to provisions of Section 7(3) of the Hindu Succession Act observed that there was a statutory fragmentation of the sthanam property immediately before the death of the sthanamdar. Section 7(3) of the Hindu Succession Act is as follows-:--
'(3) Notwithstanding anything contained in Sub-section (1), when a sthanamdar dies after the commencement of this Act, the sthanam property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family and the heirs of the sthanamdar shall be held by them as their separate property.
Explanation.-- For the purposes of this sub-section, the family of a sthanamdar shall include every branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed.'
The decision was no doubt reversed by a Full Bench on appeal, in Asst. Controller of Estate Duty v. Balakrishna Menon, 1967 Ker LT 148 : (AIR 1967 Ker 210). But the reversal was on a totally different principle and, in particular, on an amendment introduced in the statute in 1958. The principle of statutory fragmentation stated in Unni Nayar v. Union of India, 1965 Ker LT 1149: (AIR 1966 Ker 99) was, in no way detracted from. The ruling of the Full Bench was affirmed by the Supreme Court in M.K.B. Menon v. A. C. Estate Duty, (AIR 1971 SC 2392). In A. Balakrishna v. Inspecting Asst. Commissioner, (AIR 1969 Ker 1) a Full Bench of this Court had occasion to consider the position of a sthanamdar in a sthanam property vis-a-vis the provisions of the Kerala Agricultural Income-tax Act, and the liability to assessment under the Act of the income derived from the sthanam. Referring again to the provisions of Section 7(3) of the Hindu Succession Act, Raman Nayar J. (as he then was) speaking for the majority, observed:
'By reason of Section 7(3) of the Hindu Succession Act, when a sthanamdar dies after the commencement of the Act, the sthanam property held by him devolves on the members of the sthani's family and on his own heirs as if the property had been divided per capita immediately before his death among himself and the other members of the sthani family. In the share falling to him in that notional division, and devolving on his heirs, he must be regarded as having had a full estate, and that share, along with any other separate property he might have owned, would constitute his estate in the hands of his legal representatives.'
The principle here stated appears to be the same as what was stated in Unni Nayar v. Union of India, 1965 Ker LT 1149: (AIR 1966 Ker 99). There is nothing contra in the two decisions of the Supreme Court, viz., the one referred to earlier in M. K. B Menon v. A. C., Estate Duty, (AIR 1971 SC 2392) and the other in the Inspecting Assistant Commr. ofAgricultural Income-tax and Sales Tax (Special) Kozhikode v. V. K. Ramunni Panikkar, (AIR 1971 SC 2513). In the latter of these decisions, it is expressly stated that by virtue of the deeming provision of Section 7(3) of the Hindu Succession Act the sthanam property would stand divided amongst the sthani and the members of his tarwad.
In a Full Bench ruling of this Court in Rama Pai v. Kurian, 1963 Ker LT 971: (AIR 1964 Ker 125) talking with respect to Section 6 of the Hindu Succession Act and the two explanations thereto, it was stated that the result of the explanations would be that the deceased's share in the coparcenery property must be deemed to have been partitioned out immediately before his death and to have devolved on his heirs. We think that the same position must follow in regard to Section 7(1) of the Hindu Succession Act. The result would therefore be that the wife and children of the deceased karnavan Gopalan would be in the position of co-owners with the rest of the members of Gopalan's tarwad. A suit for recovery of possession by one or some of the co-owners against the other would not be maintainable.
4. Counsel for the respondent argued that even as between co-owners the plaintiff in the suits out of which these Second Appeals arise, has the right to be in possession of the entire co-ownership property and that there was a wrongful dispossession of the co-owner in possession by the defendants in these actions. In such cases, it was argued, a suit even for a recovery of possession by the dispossessed co-owner against the wrong-doer would be maintainable. A line of decisions was cited to us, viz., Kuldip Chaube v. Jaganadan, (AIR 1923 All 363), Ram Harakh Pandey v. Chunni Singh, (AIR 1923 All 446), Anghar Ali v. Govind Lal, (AIR 1964 All 195) etc. We entertain some doubt in regard to the correctness of the principle stated in these decisions. It is unnecessary to pronounce finally on this aspect, as the principle of these decisions has no application to the case before us.
It cannot be said that the defendants in this case are in wrongful possession. There was a statutory devolution of the share of Gopalan on them, so that their induction into the co-ownership along with the rest of the members of the tarwad was only lawful, and not wrongful, possession. Again, by reason of the operation of Section 7(1) of the Hindu Succession Act, thekarnavan who succeeded Gopalan cannot, and does not, get possession of the share of Gopalan which statutorily devolves eo instanti his death, on his personal representatives. There is therefore no dispossession of the karnavan by the heirs of Gopalan. On this ground again, the decisions cited are not applicable.
5. Counsel for the appellants brought to our notice, the recent Kerala Joint Hindu Family System (Abolition) Act, 1975. Sections 2 and 4 of the Act in particular were referred to. Section 4(1) reads as follows:
'4. Joint tenancy to be replaced by tenancy in common.-- (1) All members of an undivided Hindu family governed by the Mitakshara law holding any co-parcenery property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof:
Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenery property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed.'
It was contended on the strength of the provision of the Act that the last vestige of the joint family had been destroyed and that there is no room whatsoever to hold that the defendants in this case were anything other than co-owners along with the rest of the members of Gopalan's tarwad. We think the argument must prevail. However, even apart from this, the appellants are entitled to succeed.
6. We allow S. A. No. 743 of 1973, set aside the judgments and decrees of the courts below, and direct that the suit O. S. No. 499 of 1967, Munsiffs Court, Tellicherry, shall stand dismissed. The parties will bear their costs.
7. S. A. No. 1145 of 1973 would stand dismissed with no order as to costs.