Varadaraja Iyengar, J.
1. This appeal is by the plaintiffs in a suit for partition of their branch tarwad properties which has been decreed in part and disallowed as regards the rest,
2. The plaintiffs 1 to 4 and the defendants 1 to 24 constitute the members of a branch of the Thekke Poovampillil Nair Tarwad in Edappalli in North Travancore. The 1st plaintiff, 1st defendant and the defendants 4 to 8 are the children of Lekshmi Amma deceased. They had a brother Govinda Pillai whose widow is the 25th defendant and children are the defendants 26 to 29. The plaintiffs 2 to 4 are the children of the first plaintiff, the defendants 13 and 14 are the children of ' the 6th defendant and defendants 2, 3 and 9 to 24 are the children and grand-children of the 4th defendant.
There are five schedules of properties A to E attached to the plaint and said to be owned by the branch tarwad of the plaintiffs 1 to 4 and defendants 1 to 24, on basis of three different sets of title (i.e.,) the A schedule as obtained in partition under Ext. A of 1095 from the main tarwad, the B, C and D schedules as constituting makkathayam acquisitions and the E schedule as contribution from joint tarwad funds.
The plaint averred that a prior partition in the family under Ext. I of 1105 was no legal impediment to the plaintiffs' claim because that partition did not take in either all the sharers particularly the 1st plaintiff or all the properties except the B schedule items 1 to 3. This suit was accordingly laid on 8-6-1121 as for partition by metes and bounds of plaintiffs' 4/28 or 1/7 share in all the A to E schedule properties. It should be added that the plaintiffs did not want and indeed could not have a division in this suit of the corpus of items 2 and 3 of the A schedule inasmuch as those properties lay in the foreign jurisdiction, at that time, of Cochin.
But the plaintiffs nevertheless impleaded the defendants 38 to 48 who comprised the four other branches of the main tarwad and were co-owners, of those two items along with the plaintiffs' branch, in view to certain relief in regard to those items as follows. Ext. A partition deed bad provided a 1/5 share for the plaintiffs' branch in equality with those four branches in the rents due under a lease of A schedule item 2 and similarly for a sum of Rs. 12 per year as rents in respect of A schedule item 3.
These rights under the leases along with the accrued arrears of rent for a period of six years and due from the present lessees, viz., the sakhas of the 43rd defendant and defendants 38 to 42 respectively, were included in the A schedule 2 and 3 for purpose of partition herein. - The defendants 30 to 37, and 49 were impleaded as alienees of some of the plaint properties.
3. The contest was raised by various defendants mainly on the footing that there were no properties appertaining to the branch tarwad as alleged or at all and the plaintiffs 2 to 4 had therefore no locus standi in the suit. However there was no objection to partition of the 1st plaintiff's 1/8 share in A schedule item 1. For, according to the defence Lekshmi Amma when she participated in Ext. A partition arrangement in the main tarwad and obtained that item represented only herself and not her thavazhi and as heir to her mother 1st plaintiff could make claim to no more than the 1/8 share aforesaid.
The inclusion of relief in respect of A schedule items 2 and 3 was objected to because it lay more properly in the Cochin Court. As regards B schedule items, the contention was that items 1 to 3 .alone thereof apart from items 4 and 5 constituted the operative gift by Aiyappa Menon, the husband of Lekshmi Amma and father of the 1st plaintiff and others, in favour not of his wife's thavazhi but of Lekshmi Amma and her children alone, so conferring a 1/8 share in B schedule items 1 to 3 on the 1st plaintiff. But even that 1/8 had long, ago been partitioned off in her favour under Ext, I of 1105.
It was no doubt true that the 1st plaintiff was not a party to Ext. I under influence of her husband hut that did not affect the matter. For, the partition was complete when the properties were apportioned by mutual consent. Anyhow the partition arrangement was later ratified by acceptance by the 1st plaintiff, of the income which accrued from her allotted share and further questioning of Ext. I was therefore not permissible. Finally, in respect of C to E schedule properties, the contesting defendants denied that they ever belonged to the branch tarwad or even in share to the 1st plaintiff.
4. The Court below, by a Judgment that cannot be characterised as particularly clear or logical, upheld the defence contentions in the main, so as in the result to grant a preliminary decree for partition of the plaintiff's 1/7 share in A schedule item 1 and of the 1st plaintiff's share in B schedule item 2 as per Ext. I partition deed of 1105, and dismissed the suit altogether as regards A schedule items 2 and 3, B schedule items 4 and 5 and C, D and E schedule items. In the circumstances of the case all parties were directed to bear their costs.
5. The plaintiffs have accepted the decree of the Court below as regards C, D and E schedules and have appealed herein only to the extent that the rest of the decree is against them. The defendants for their part have not questioned the grant in favour of all the plaintiffs of 1/7 share in A schedule item 1 as prayed for in the plaint instead of 1/8 in favour of the 1st plaintiff alone as contended by them. The 34th defendant (83rd respondent) has filed cross appeal in regard to his costs disallowed.
6. The points that therefore arise for consideration are three-fold,
(i) Whether and if so how far, are B schedule items 4 and 5 available for partition in favour of the plaintiffs;
(ii) Whether Ext. I partition deed is binding on the plaintiffs. If not what alternative arrangement should be made as regards B schedule items 1 to 3; and
(iii) Whether the plaintiffs cannot be granted relief in this suit as regards A schedule items 2 and 3,
7. Of these, the third point does not admit of any serious controversy and could be disposed of immediately. For, there could be no objections to the grant of relief to the plaintiffs in regard to A schedule items 2 and 3, just in the same manner and to the same extent as A schedule item 1.. Indeed the only objection raised by Mr. Madhavan Nair, the learned counsel for the 1st defendant, was that his party should not be made personally liable for the rents concerned because he had not collected them. We agree and accordingly grant to the plaintiffs a preliminary decree for partition of their 1/7 share in the arrears of rent and future rent under the leases concerning A schedule items 2 and 3.
8. Taking up now the first point: Ext. B is the settlement deed of 1087 by which Aiyappa Menon, the husband of Lekshmi Amma and the father of the 1st plaintiff and others, initially made the gift of the B schedule items 1 to 5 and other properties in favour of his wife and children. Subsequently, under Ext. VI sale deed of 1095, the settlor assigned the B schedule items 4 and 5 and the other properties in favour of his eldest son Govinda Pillai and that absolutely, for the more convenient discharge of his debts as provided for in Ext. B.
Govinda. Pillai in due course paid off the debts with the help of the other items and died leaving B schedule items 4 and 5 unencumbered, The question is whether Ext. VI was intended to confer absolute tide in Govinda Pillai, personally, in regard to the properties covered by it. It is the contention of the defence that Ext. VI was so intended while the plaintiffs contend to the contrary. It is no doubt true that Aiyappa Menon reserved to himself under Ext. B the power to revoke it as regards items 1 to 4 therein, viz., the present B schedule items 4 and 5 and other properties if the donees under the settlement, for any reasons, displeased him.
But that contingency did not happen and in fact Ext. VI was not executed in exercise of that power. There was, on the other hand, an absolute gift of these B schedule items 4 and 5 just in the same way as B schedule items 1 to 3 in favour of the wife and children, under Ext. B. Only, the settlor had retained for himself the usufruct therefrom and also a power to encumber up to five hundred rupees and also provided that three items of his debts amounting to Rs. 1,315 should be paid thereout by alienations effected by Govinda Pillai and himself.
It was only because this conjoint exercise of power of alienations became inconvenient, that Ext, VI came at all into being. There was no question of taking out properties covered by Ext, B and making any fresh gift in favour of Govinda Pillai. Such preference as Aiyappa Menon had for his male children Govindan and Kesavan (1st defendant) had already been shown under Ext. B itself. We hold accordingly that Ext. VI was not intended to give Govinda Pillai any more property for his own sake. The result is that B schedule items 4 and 5 also enure to the benefit of the donees under Ext. B and are not the personal properties of] Govinda Pillai.
9. The question immediately arises as to who are these donees. Are they the members of the thavazhi of Lekshmi Amma as claimed by the plaintiffs so as to take them all in or are they confined to Lekshmi Amma and her children so as to include the 1st plaintiff alone among the plaintiffs, as the defendants contend and the lower Court has held. Mr. Ramanan, learned counsel for the plaintiffs-appellants, referred to the rule well-established in Travancora since the date of Narayanan Narayauan v. Parvathi Nangeli, 5 Trav LR 116 (A), that:
'The intention of the father of a Marumakkathayam family who makes a provision for the adequate maintenance of his children, and their mother by giving them landed property is that the donees should enjoy the properly in common by taking the usufruct of the property jointly, and that the property should, in all respects, be subject to the incidents of other similar property, held by them as members of the tarwad. This intention has invariably been respected by the people themselves, and has come to be regarded as a usage.' and urged that in the absence of and apart from legislation which intervened for the first time in 1088, any gift from the father or husband was to be treated as the tarwad property of the donees and of their thavazhi. Learned counsel contended that Ext. B settlement deed, having been made before 1088 must enure to the benefit of Lekshmi Amma and her descendants in the female line how low so ever. But the above rule is only in the nature of a presumption which could, by the use of apt Words, be rebutted.
In this case Ext. B says that the gift is made, to the persons expressly, named, viz., the wife and the children and directs them accordingly to take with absolute rights of enjoyment and alienation It provides again for a contingency depending on their good conduct. There is also nothing to indicate the extension of the gift in favour of the grandchildren through daughters or any expression connoting unity of ownership, possession and enjoyment in perpetuity. We hold therefore that the 1st plaintiff alone is entitled to participate in B schedule items 4 and 5 and on this basis the plaintiffs Will get 1/8 share of B schedule items 4 and 5.
10. We will now deal with the second point as to the binding nature of Ext. I partition deed of 1105. Now Ext. I recites that the 1st plaintiff was a consenting party to the partition arrangements recorded therein at all the relevant earlier stages but that she resiled at the last moment under the influence of her husband Krishna Menon and consequently her share as apportioned was left under the control, and custody of Govinda Pillai the Karnavan until such time as she accepted it.
According to the defence there was also a ratification of Ext. I by the 1st plaintiff by acceptance of the profits that accrued from her share from the hands of Govinda Pillai while he was. alive and later from the 2nd defendant who came in his place under the behests of the 1st defendant. The 1st plaintiff raised the question of the invalidity of the partition arrangement under Ext. I for the first time only towards the end of 1117, and when this was repudiated by. return post, viz., Ext. N, she chose to remain quiet.
It was only in 1121 Makaram by this suit that the question was seriously sought to be raised. Evidence in support of this case was also let in on the side of the defence. Learned counsel for the plaintiffs vehemently argues that in the absence of the draft allotment Schedules and of the partition deed both said to be in the handwriting of the 1st plaintiff's husband Krishna Msnon, it was impossible to accept the case of the defendants that there was a precedent consent of the 1st plaintiff.
Such case was in fact inconsistent with the suggestion made by the defendant's counsel during the examination of D.W. 1 that it was the fair copy of the partition deed that was read over to the 1st plaintiff and assented to by her while all the while her name was nowhere there in Exhibit I partition deed as we have it, as a party. In any event, according to learned counsel when once the partition was intended to be completed as between the parties to it by execution and registration, a consent at some previous stage, even assuming it was there, was of no significance in law and he relied upon the case in Thanu Pillai v. Mathevan Pillai, 1950 TC LR 70: (AIR 1951 Trav-C 98) (FB) (B), where it was observed:
'At partitions which involve not merely allotment of properties but settlement of disputes and claims amongst themselves, or the extent of tarwad debts and other equities in favour of minors and unmarried females etc., the usual course is to reduce them to writing and to be bound by their terms only when they are reduced to writing and registered. Ordinarily when negotiations are started and discussions progress, members have no intention of being bound by them until they are reduced to writing, signed and registered. with the common consent of all'.
But that decision does not mean that in no case where there was a registered partition deed, there could be no completed partition at earlier stage by common consent, as evidenced by acceptance all round, of the items of tarwad properties as apportioned. There is after all, no prohibition in law against oral partition and if it is clear in a particular case that the parties all agreed to specific arrangement for division, the mere fact that at the time of recording and registering the same, some party stood recalcitrant and did not join, would not affect the matter.
In this case there can be no doubt that the 1st plaintiff had knowledge of the execution by the others and the registration of Ext. I for it was presented for registration in the house in B schedule item 1 where the. 1st plaintiff and her husband were then residing along with the rest of the members of the family. The first written protest late in 1117 was clearly half-hearted for no suit followed soon after.
The 1st plaintiff did not examine herself. Nor was her husband Krishna Menon who was alive for a period of about 4 years after suit, examined in the case. Krishna Menon was for some time a vakil's clerk and could not have been unaware of the legal significance of the matters involved, To say that the tarwad continued joint to all intents and purposes may be easy for the 1st plaintiff- but it is not so, easy to accept from the mere fact that she was living in . the tarwad house and receiving some monthly remittances between 1112 to 1114. Vide Ext. VIII.
For Ext. I itself contemplates such stay until some money payment is made by other co-sharer and the remittances, may for all we know, represent the income due to the 1st plaintiff, in respect of her partitioned share. Having heard the parties and looked into the whole evidence^ we are inclined to believe the defence case that the 1st plaintiff, was a consenting party to the original allotment and that the withdrawal from the execution and registration of the partition deed was only an after thought, at the instance of her husband. We have also not been shown any unfairness attending the partition arrangement under Ext. I as far as the 1st plaintiff is concerned, except possibly that B schedule items 4 and 5 were excluded from its purview.
But this omission can be made good without disturbing Ext. I and indeed we have done so while considering the first point. We therefore, along with the Court below affirm Ext. I arrangement as binding on the 1st plaintiff. Now Ext. I besides granting the 1st plaintiff a share in B schedule item 2 provides for certain money compensation from the C and G schedules share-holder thereunder. We direct that this also will be made good under the final decree.
11. Before closing this part of the case we should not omit to notice the argument raised by Mr. K. Rama Iyer, learned counsel for some of the defendants in support of Ext. I that it is not open at all to a recalcitrant minority of co-sharers like the 1st plaintiff to block a voluntary partition among the rest and the only remedy of the objectors if at all was to prove unfairness of such partition and get their deficiency made good by suit. In our opinion however this argument is totally unacceptable. It may be that a tenancy-in-common is lacking for the most part in that intimate union which exists between joint tenants. But there is one point on which the tenants-in-common are united (i.e.) the right to possession.
Each has an equal right with another to the possession of the whole land. The occupation is undivided and no. party can point to a particular part of the land which represents his share. The determination of the tenancy-in-common and the making of each co-tenant separate owner over a specific portion of the land is effectuated only by a partition which can be either voluntary or compulsory (i.e.) with consent or through Court. It must follow that the rule by majority however large it may be has no place. But really this aspect does not touch the present case.
12. In the result we allow this appeal to the extent indicated above, viz., as regards (i) A schedule items 2 and 3, (ii) B schedule items 4 and 5,and (iii) money compensation as under Ext. I. Theappeal will stand dismissed and the decree of theCourt below confirmed in all other respects. Theparties will bear their respective costs in this Court.
13. The 33rd respondent's cross appeal in regard to costs disallowed is dismissed but without costs.