Velu Pillai, J.
1. These two appeals have arisen out of two suits for partition under the provisions of the Madras Marumakkathayam Act, 1932 and have been referred to a Full Bench for decision, and though they are between different parties, they raise similar questions and may be conveniently disposed of by this common judgment.
2. The facts which pertain to A. S. 354 of 1953 (M) may first be stated. Meenakshi Amma deceased had two daughters, the plaintiff and Madhavi Amma deceased, and a son Saukunny Nair. The plaintiff has three sons, Narayanan Nair, Sivaraman Nair and Krishnan Nair. Madhavi Amma'sdaughter is the first defendant and defendants 2 to 7 are the latter's children. On a partition of their main tarwad which took place in the year 1941 evidenced by Ext. B-10, Sankunny Nair and the plaintiff's sons, each took his share separately, but the plaintiff and defendants 1 to 7 took theirs, as one group.
In the year 1948, the plaintiff executed a deed of gift, Ext. B-7, for all her properties in favour of the first defendant. O. S. 39 of 1950 in the Court of the Subordinate Judge at Ottapalam, out of which this appeal arises, was instituted for partition of the plaintiff's share, stated to be 1/8, of the properties allotted to her group under Ext.B-10, and of those said to have been acquired with their income and of the moveables, on setting aside Ext. B-7, as vitiated by fraud and misrepresentation.
The plaintiff instituted also three other suits for partition of her share in properties acquired by her jointly with others, which were also covered by the disposition in Ext. B-7. It has now been found by the Subordinate Judge by whom the suits were tried, that though Ext. B-7 was not vitiated by fraud or misrepresentation as pleaded, and was valid, it could not operate on the plaintiff's undivided share of the properties in this suit, as they were held to belong to her and to defendants 1 to 7 as a tavazhy.
Accordingly, a preliminary decree for partition of 1/8 share in the suit properties was passed in favour of the plaintiff, and is the subject of this appeal, by defendants 1 to 7. In the appeals which have arisen out of the connected suits between the plaintiff and others, the finding that Ext. B-7 is valid, has been affirmed by this Court. The only question which survives for determination and which was agitated before us, was, whether the plaintiff and defendants 1 to 7 took their share of properties under Ext. B-10 as a tavazhy, or as tenants-in-coroniOn.
3. The facts which pertain to L. P. A. 72 of 1956 (M) may now be stated. This appeal has arisen out of O. S. 51 of 1951 in the Munsiff's Court at Kozhikode in which the first plaintiff and her children plaintiff's 2 and 3, sued for partition of their share, in properties allotted jointly to the first defendant and some of her children, who are the first plaintiff and defendants 1 to 6, under the final decree in O. S. 1832 of 1943 on the file 08 the same Court.
Under that decree which related to the partition of the main tarwad and to which the first defendant and all her children were parties, two of her sons, and one of her daughters and the latter's children, who are not parties here, were allotted their shares separately and they got themselves divided from the first plaintiff and defendants 1 to 5, to whom properties were allotted as one group.
The controversy between the contesting parties in this appeal, is whether plaintiffs 2 and 3 are entitled to any share and this depends on whether the first plaintiff and defendants 1 to 5 took their properties as a tarwad or tavazhy, or as tenants-in-common. The trial Court, and the District Judge on appeal, have held, that they are tenants-in-common and plaintiffs 2 and 3 have therefore no share and this view was confirmed on Second Appeal by a learned Judge of the Madras High Court. The appeal is directed against his judgment.
4. Dealing with A. S. 354 of 1953 (M), it seems to us, that the question chiefly turns on the construction of Ext. B-10. According to defendants 1 to 7 under Ex. B-10, not only Sankunny Nair and the sons of the plaintiff, who took their shares individually, were divided between themselves and from the rest of the tarwad, but also, the plaintiff too got divided from defendants 1 to 7, and agreed to put her share with that of defendants 1 to 7 in the same schedule.
This contention, if established, is sufficient to sustain this appeal, but its only basis is, that in making the allotment under Ext. B-10, the share of each individual was ascertained. This in itself means nothing more than that the division wasper capita; as observed in Madhava Menon v. Kunchi Amma, 29 Cochin LR 503 it was only
'a notional separation for the purpose of ascertaining the quantum of the share of each member.'
In Chellamma ,v. Meeya Pillai, 11; TLT 127, the Travancore High Court had ruled, that there is no presumption, that in, every case of partition o a tarwad, a group of members to whom properties are allotted on partition take them as tenants-in-common; they: may have become separate from the rest of the members of the tarwad, but as to their jointness inter se, the instrument of partition or the decree which effects partition, must furnish the best evidence. In Lakshmikutty Amma v. Gopalakrishna Menon, 38 Cochin LR 5 (FB) the Cochin High Court applied a similar rule, to a case of partition into groups, in which eighteen out of twenty-four members of a tarwad branched off into three separate groups, leaving the mother, the karnavan and four others behind, as one group, which was held to take jointly. There is no reason to apply a different rule to the group consisting of the plaintiff and defendants 1 to 7 to which the allotment was made as a tavazhy under Ext. B-10. In this view, whatever be the other contentions of the parties, there is no scope for inferring any division of interest between the plaintiff on the one hand and defendants 1 to 7 on the other, any more than as between defendants 1 to 7 inter se. We are also satisfied, that the partition Ext. B-10, was one in which four of the members of the tarwad, being Sankunny Nair and the plaintiffs three sons, Separated themselves from the tarwad, leaving the rest of the members to continue as joint.
5. In the appeal under Letters Patent, the two sons of the first defendant therein who had separated, had claimed their individual shares in their written statement; this was so adjudged in the preliminary decree itself. As for the first defendant and the rest of her children, by their written statements they wanted to continue as a tavazhy and the preliminary decree has to be deemed to have granted this prayer, but by the final decree, one of her daughters too separated herself from the tavazhy with her children.
Applying the above tests, as in the case of the partition deed, Ext. B-10 in A. S. 354 of 1953 (M), the reasonable view to take is, that with the separation of two of the sons and a daughter of the first defendant with the latter's children, the rest of the members of the first defendant's tavazhy, remained as a tavazhy, though a 'truncated' tavazhy it was, comprising only some of her children but not all, or all her descendants in the female line.
6. But two propositions were urged for our acceptance, first, that in Marumakkathayam Law as in Hindu Law, on the separation of a member of the tarwad or family, there is no presumption that the others remain joint, the question being one of fact in each case, and second, that a tavazhy cannot be created ad hoc with some members only of a group consisting of a female, her children and all her descendants in the female line.
The first proposition may now be taken to be well-established in Hindu Law, with the pro-nouncement of the Supreme Court in Bhagwati Prasad v. Rameshwari Kuer, AIR 1952 SC 72, and no exception can be taken to the second in the form in which it is stated. But we are of the opinion that the first proposition cannot be extended to Marumakkathayam tarwads, in which the right of compulsory partition did not exist, and which, when conferred by Statutes, was hedged in with conditions and limitations, the like of which has no parallel in Hindu Law, until perhaps they were relaxed in the case o the Malabar District quite recently, by Section 9 of the Madras Marumakkathayam (Amendment) Act, 1958 replacing by a new provision, Sec. 38 of the Madras Marumakkathayam Act, 1932, which conferred originally the right of partition.
The provisions of the Travancore and Cochin-Statutes still remain unamended. The notion, that the separation of a single member of a tarwad has an impact on the joint status of the rest o the members, even so much as to introduce a rule of burden of proof as in Hindu Law, is, in our view, so opposed to the spirit of Marumakkathayam tarwads and o the community, that unless compelled to do so, we do not propose to depart from the Current of decisions of the former Travancore and Cochin High Courts which have definitely laid down, that whatever be the rule in Hindu Law, the separation of one or more members of a Marumakkathayam tarwad, does not ipso facto bring abou't a disruption of the tarwad. Velayudhau Pillai v. Neelakanta Pillai, 10 T. L. T. 778, decided by a Full Bench of the Travancore High Court, Kunhikrishna Menon v. Rama Menon, 18 Cochin LR 521, decided by a Full Bench, 29 Cochin LR 503, and 38 Cochin, LR 5 (FB) cited already, of the Cochin High Court, are some of the cases in point. In the Madras High Court too, in Veettil Vellachi v. Gopalan, AIR 1944 Mad 407, Horwill, J., observed:
'It is rather a different matter where certain members of a tavazhy divide themselves off from the tavazhy. By dividing themselves off, some children cannot compel their mother to divide herself from those children who prefer to remain joint with her.'
We cannot therefore find our way to accept the first proposition contended for by the learned counsel and we prefer to hold, that the presumption of jointness of the rest of the members of the tarwad is not affected by the separation of some of the members.
7. In our opinion, the second proposition formulated above does not arise in this case. As an instance of its application may be mentioned, the category of cases in which a gift is made in favour of some members Only, who do not by themselves constitute a tarwad or a tavazhy, that is a corporate unit or entity known to Marumakkathayam Law; purchase of property in the names of some of them is another instance in point. Kalianikutty Amma v. Devaky Amma, 1950 Ker. L. T. 705, was such a case of gift in favour of the children and grand-children to the exclusion, of the mother, who did not constitute a tarwad or tavazhy and could not hold as such. The principle is stated thus, in Moithiyan Kutty v. Ayissa ILR 51 Mad 574: (AIR 1928 Mad 870).
'It is not open to any man, by his own act to create a corporate unit not known to law and enable it to hold property with the incidents confined to such recognised units only.'
8. But, these cases in which a group is created by gift or purchase or agreement must be differentiated from others in which there is already a pre-existing nexus binding the members of a tarwad or a tavazhy, though some of its members had cut themselves off from it, it being difficult to hold in Manimakkathayam Law as held above, that in that process of cutting off, the nexus of those that remained had also been cut asunder.
The precise point arose In two cases decided by the former Cochin High Court. In 29 Cochin, LR 503, referred to earlier, on a tarwad partition, two members remained joint as one group, while their three sisters and their children divided themselves into three groups, and the question was, whether the share of one of the two members who remained joint, could be proceeded against in execution. T, S. Narayana Ayyar, J., observed thus:
'It is true that a 'tavazhy' as such cannot be created by mere agreement among the members of a tarwad. Consequently where property is acquired by some alone of the members of a tarwad, who are incapable of constituting a tavazhy or corporate unit as understood in Mainmokkathayam Law they do not hold such property with the incidents of ordinary tavazhy property. But that is not the case here. The question rather is whether the shares of defendants 1 and 3 in the tarwad property which vested in them jointly as members of the undivided tarwad are held in severally after the partition......'
and it wag answered in the negative. This case was followed by a Full Bench in 38 Cochin LR 5, also referred to, in which Koshi, J., as he then was, agreed with Narayana Ayyar, J. In that case the tarwad of the second defendant was partitioned, three daughters of the second defendant! and their children forming themselves into three groups, and the second defendant and the rest of her children and grand-children forming another group. Koshi, J., applying the rule in 20 Cochin LR 503, came to the conclusion that the second defendant's group took as a tavazhy; the other Judge concurred.
In 1950 Ker. LT 703, cited above, Koshi, J., referred to 29 Cochin, LR 503, but being a case of gift to some members of a tarwad, applied the principle, that a tavazhy could not be created ad hioc. Neelakanta Pillai Mathevan Pillai v. Bagvathi Pillai Thankachy, 1952 Ker. LT 140: (AIR 1952 Trav-Co. 452) was of course a case of partition, but was decided partly on the concession of counsel that a tavazhi cannot he created by agreement of parties, and partly on 1950 Ker LT 705. without noticing the distinction. In Central Banking Corooration v. Padmanabha Fillai Sankara Pillai, ILR (1955) Trav-Co. 723 too, a case of partition, the question was not raised in the present form and the distinction was not kept in view.
At the same time, 29 Cochin LR 503, which was referred to, was not dissented from, andKoshi, C. J., was a party to the decision. We therefore hold, that though a thavazhi cannot be created ad hoc, on separation of one or more members from a tavazhi, the remaining members may: continue to remain joint, as members of a 'truncated' tavazhi.
9. In the present case, both under Ext. B-10 in A. S. 354 of 1953 (M), and under the decree for partition in O. S. 1832 of 1953 in L. P. A. 72 of 1956 (M), the groups in question took each as a tavazhi. In Ext. B-10, this was expressly recited, and as already stated, in the decree for partition in the other case, the claim made by the first defendant and her children was for an allotment to them as a tavazhi, and the preliminary decree must be deemed to have granted it. Such allotment cannot be equated with the creation of a tavazhi by agreement or act of parties.
10. In A. S. 354 of 1953 (M) the learned counsel attempted to argue that a gift of an undivided share in a Manimakkathayam tarwad is valid, but the argument was not pursued and was given up as unsubstantial. In L. P. A. 72 of 1959 (M) it was agreed, that for allotting shares to plaintiffs 2 and 3 the consent of the first defendant is not needed, in view of the provisions of the Madras Marumakkathayam (Amendment) Act, 1958.
11. We therefore dismiss A. S. 354 of 1953. (M) with the direction, that the costs of the plaintiff's legal representatives in this Court also shall come out of the estate, but that defendants 1 to 7 shall bear their costs. In L. P. A. 72 of 1956 (M) the preliminary decree passed by the Principal District Munsiff, Kozhikode in O. S. No. 51 of 1951 is modified, by declaring that the three plaintiffs are entitled to 3/8 share; we further direct, that the costs of the plaintiffs therein, hitherto incurred in all the Courts including this Court, shall come out of the estate, and that the other parties shall bear their costs.