P. Subramonian Poti, J.
1. A few facts alone need be stated for the purpose of this second appeal as only two questions are raised in this appeal though in the suit several other questions also arose for decision. The suit out of which the second appeal has arisen was one for recovery of possession of the suit properties. The plaintiff as karanavan of his tarwad, has sued to recover the properties on the allegation that these properties belong to his tarwad and were set apart to one deceased Ittirarippa Menon and Ittiachi Kutty Amma in a deed of maintenance arrangement in the tarwad. The defendants claim under some disposition alleged to have been made by these persons and it is claimed in the plaint that the allottees were incompetent to make it in view of the fact that the arrangement was only for maintenance. The allottees being dead the plaintiff claims to be entitled to recover t'he property on behalf of his tarwad. The plea in answer is that the arrangement was not one of maintenance but an outright partition of the properties and therefore the allottees could dispose of them as they liked. The suit properties comprised only of the few items allotted and these are mentioned as properties belonging to the Avvappan Dewaswom of the plaintiff's Kozhikot tarward. In regard to some properties other than these Devaswom properties the other branch which partook in the maintenance arrangement or partition as the case may be, executed a surrender in the year 1930. four years after that arrangement. That is Ext. A-1. The courts below have found that the arrangement is one of maintenance and in support of that Ext. A-1 has been relied on. That has been taken by the predecessors-in-interest of the defendants and they have unequivocally accepted the arrangement of 1926 as one for maintenance. Therefore the plea that the arrangement is one of outright partition as contended by the defendant cannot be urged with any force.
2. It was contended before the courts below that the defendants were the legal representatives of deceased Ittirarappa Menon who is a member of the tarwad and therefore defendants are entitled to inherit to that share which would have fallen to him immediately preceding his death had there been a partition in the tarwad. This is based on Section 7 of the Hindu Succession Act 1956. It is urged that Ittirarappa Menon died after the commencement of that Act. It is contended by the defendants that ifthey are found to be entitled to the share of Ittirarappa Menon they will be co-owners in possession of property and another co-owner, namely the tarwad. cannot recover the property but can only sue for partition. That a co-owner in possession cannot be evicted from the property by another co-owner is a position well settled. I need, in this connection, refer only to the decision of this Court in Avanthika v. Sita Bai. (1963 Ker LJ 1164). The courts below seem to think that though this is the general rule, this is inapplicable to a case of possession by persons claiming to inherit a share of a Hindu under Section 6 or 7 of the Hindu Succession Act, 1956. Apparently reliance has been placed upon certain passages in Mulla's Hindu Law for this view. In the case of an alienee from a Hindu coparcener the position is apparently different. Mulla at page 293 of his Treatise on Hindu Law 13th Edition observes in regard to this as follows:--
'If the purchaser (from an alienating coparcener) has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including the vendor. The purchaser is not entitled in such suit to an order for partition either of the specific property sold to him or of the joint family properties in general; he must, if he wants to realise his vendor's interest, bring a suit of his own for a general partition'.
The courts below seem to think that this rule relating to alienees from coparceners must be extended to the case of a person succeeding to the interest of a member dying after the commencement of Hindu Succession Act. I have to see how far the courts below are right in this approach to the question.
3. Section 6 of the Hindu Succession Act 1956 reads as follows:
'6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act:--
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1:-- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that wouldhave been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2:-- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenery before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein'. The courts below referred to the commentary to this section in same text seen at page 780 of the same edition and that is as follows:--
'Explanation I:-- This explanation defines the expression 'the interest of the deceased in the Mitakshara coparcenery property' and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenery are left undisturbed and the joint family can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs. But the operation of the notional partition and its inevitable corollaries and incidents is to be only for the purposes of this section namely, devolution of interest of the deceased in coparcenery property'.
I do not think that there is anything in this passage which would justify the view that the rule as to an alienee from a coparcener must apply to the successor-in-interest of the deceased member.
4. It is by the provisions of the Statute that the share of an undivided member becomes heritable. In fact he is deemed to have a heritable share only by virtue of Section 6 in the case of Mitakshara coparcenery and Section 7 in the case of property of a Marumakkathayam or Namboodiri tarwads or Illoms. Section 7 provides that the interest of the member devolves by testamentary or intestate succession under the Hindu Succession Act. Therefore it is the Statute which creates ownership in the successor-in-interest in regard to that share of the divided member that would have fallen to him immediately previous to his death had there been a partition. The rule thatan alienee from a coparcener will not be able to sustain his possession as against a non-alienating coparcener need not be extended to the succeasors-in-interest under Section 6 or Section 7 of the Hindu Succession Act. That is so for more reasons than one. The statute itself does not impose any such disability on them. Moreover an alienee of a coparcener in regard to any one item of the coparcenery may not have right in all the properties of the joint family. He cannot claim to be in joint possession with the other coparceners. That is not the case with the persons who succeed to the interest of a member under Sections 6 and 7 of the Hindu Succession Act as they inherit to the share of the member in all the properties of the family. While alienees from coparceners have been treated as strangers whom, the Hindu Law does not recognise as persons qualified to hold the property jointly with the other coparceners, the heirs under Section 6 or 7 need not be treated as such strangers unless there is some compelling reason to do so, and apparently there is none. I see neither reason nor logic in extending the rule with regard to the alienees from coparceners to persons who claim to inherit under the Hindu Succession Act 1956 to the share of the undivided member. If so the courts below, which found that the defendants are the legal representatives of the deceased Ittirarappa Menon and are therefore entitled to the share claimed, were not right in directing that such share can be worked out only in another suit and in this suit plaintiff must get a decree for possession notwithstanding the interest of the defendants as co-owners of the property.
5. This would have been sufficient to dispose of this case. I should have either directed a proper suit to be filed by the plaintiff or if the relief of partition could be granted on the pleadings in the case I should have adopted such a course. But there is yet another difficulty in the case. It was urged even in the plaint that the properties belong to the Ayyappan Devaswom of the plaintiff's tarwad. This was not, in terms, refuted in the written statement, though there is a vague denial therein. Ext. B-8 has been produced in the case to show that the patta for these items excepting item 2 is in the name of the Devaswom and the plaintiff's tarwad is shown only as Coralans. Before me counsel for the plaintiff attempted to sustain the decrees of the courts below on the plea that if the properties belong to Devaswom as contended by the plaintiff there is no question of succession in regard to these properties because Ittirarappa Menon. the eldest member off the tarwad. had only a right to enjoy these items during his lifetime and on his death it must revert back to thetarwad of which plaintiff now claims to be the karanavan.
According to the plaintiff these properties are those which vest in a trust for the purpose of the Devaswom or to put it in another form, these are Devaswom properties and must be considered to be trust properties. In that event, it is the counsel's plea, there can be no inheritance under the Hindu Succession Act. This is a plea on which though there is controversy, the courts below had no occasion to go into properly. Since the ultimate decision must necessarily turn on this question too, it is necessary for the court to find one way or the other in regard to this plea. It is true that plaintiff has not unequivocally pleaded that being Devaswom properties they must be considered as trust properties not available for succession under Section 7 of the Hindu Succession Act 1956. Whether actually the properties are that of a trust is not evident. Mere description of the property as Devaswom properties may not by itself be sufficient when the plaint itself shows that the Devaswom. was owned by the plaintiff. Whether Devaswom is a trust and the properties are trust properties have to be decided on the evidence in the case, which. I must say, is very scanty. But all the same since the ultimate decision must turn upon a finding on this question I think I should agree to the request of counsel for plaintiff that an opportunity should be given to adduce evidence on this point.
I must make it clear that the findings on all other questions have become final so much so there is no reason to reopen those questions. The trial court to which I am remitting the case will consider whether the properties are trust properties as now contended and therefore whether Ittirarappa Menon cannot be said to have died possessed of an interest in these properties as tarwad properties. On a consideration of this question after allowing the parties to adduce evidence if they so desire, the court will dispose of the matter afresh subject to what I have said herein. The suit, now returning to the trial court, being a fairly old one, the court will give an expeditious disposal to it and at any rate, the suit will be disposed of within six months from the date of receipt of records by the trial court. I direct that, in the circumstances of the case, parties will bear costs in this second appeal.