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Raman Nambiar Vs. Krishnan Nambiar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 222 of 1954 (E)
Judge
Reported inAIR1958Ker265
ActsHindu Law; Transfer of Property Act, 1882 - Sections 8 and 10
AppellantRaman Nambiar
RespondentKrishnan Nambiar and ors.
Appellant Advocate T.S. Venkiteswara Iyer,; C.S. Ananthakrishna Iyer,; P.V.
Respondent Advocate V. Narayana Menon, Adv. for Respondents 1, 2, 6 and 8,; C.S. Padmanabha Iyer, Adv. for Respondent 12,
DispositionAppeal allowed
Cases ReferredIn Damodaran v. Kumaran
Excerpt:
.....to enjoy different sets of properties as if each formed a separate tarwad .theprovision insisting on the joinder of all the members of the tarwad for contradicting debts and prohibiting the incurring of debts by members so as to bind the properties allotted to them would certainly indicate the reverse of partition. clause 5 read in the light of the provisions referred to in paragraph 5 above clearly indicates that the intention of the executants of ext. clause 5 perfectly fits in with the entire scheme of the arrangement under ext. these two provisions are perfectly consistent with an allotment for maintenance also......and recovery of possession of 8/26 shares in the plaint properties which they claimed were their tarwad properties.the suit was contested principally by defendants 1 to 8, and their main contention was that there was no undivided tarwad consisting of the plaintiffs and defendants 1 to 18 as alleged in the plaint. according to them, the original tarwad had become divided into three separate branches having no community of interest with each other under the partition deed. ext. a, executed in 1093, and so, the plaintiffs' suit was not maintainable. generally speaking, the branch of defendants 9 to 18 supported the plaintiffs' case, but one member of their branch, namely, defendant 13, supported the contention of defendants 1 to 8 that the tarwad had become divided in 1093, the lower.....
Judgment:

Kumara Pillai, J.

1. This is an appeal against a decree dismissing a suit for partition. The parties are governed by the Cochin Marumakkathayam Act, XXXIII of 1113. According to the plaintiffs, there are three branches in their tarwad. One branch consists of plaintiffs 1 to 8, another of defendants 1 to 8, and the third defendants 9 to 18. Plaintiffs prayed for partition by metes and bounds and recovery of possession of 8/26 shares in the plaint properties which they claimed were their tarwad properties.

The suit was contested principally by defendants 1 to 8, and their main contention was that there was no undivided tarwad consisting of the plaintiffs and defendants 1 to 18 as alleged in the plaint. According to them, the original tarwad had become divided into three separate branches having no community of interest with each other under the partition deed. Ext. A, executed in 1093, and so, the plaintiffs' suit was not maintainable. Generally speaking, the branch of defendants 9 to 18 supported the plaintiffs' case, but one member of their branch, namely, defendant 13, supported the contention of defendants 1 to 8 that the tarwad had become divided in 1093, The lower court upheld this contention and dismissed the suit.

Plaintiffs have therefore filed this appeal. There were other contentions also in the suit. On some of them the lower court has recorded findings and some others it has left open. At the time of hearing in this court, it was represented toy both sides that the parties in the lower court were primarily concerned during the trial with the main question in the suit, namely, whether there was a partition in 1093 or not, and they had not bestowed sufficient attention to the other Issues, and that the suit might therefore be remanded to the lower court for a fresh consideration and decision of all the other issues in the case if it was found here that there was no partition in 1093 and the plaintiff's claim for partition was sustainable.

After hearing both sides we have come to the conclusion that there was no partition in 1093 and that the plaintiffs are entitled to get a preliminary decree for partition. Therefore on account of the joint submission of both sides referred to above we do not propose, to refer to and consider in this judgment the other contentions in the suit.

2. The parties are agreed that there were three branches in the tarwad at the time of the execution of Ext. A and that Ext. A was executed by all the adult members in the three branches on 26-7-1093. They are also agreed that, before the execution of Ext. A, the tarwad affairs were being managed as per the provisions of a maintenance arrangement, Ext. XXIV, which was executed in 1064. According to the plaintiffs and defendants 9 to 11 and 16 to 18, Ext. A also is only an arrangement for maintenance executed in furtherance of Ext. XXIV and is not an outright partition.

According to defendants 1 to 8, Ext. A is an outright partition between the three branches and not a maintenance arrangement and so there is at present no undivided tarwad consisting of the three branches as alleged by the plaintiffs. The short question, therefore, for decision in the appeal is whether Ext. A is an outright partition as contended by defendants 1 to 8 or is only an arrangement for maintenance as contended by the plaintiffs.

3. In paragraph 6 of its judgment the lower court has given a brief summary of the clauses in Ext. A which tend to support the defendant's contention that it is an outright partition and the clauses which tend to support the plaintiff's contention that it is only a maintenance arrangement. That paragraph is extracted below:

'I shall first enumerate the provisions which go to show that the arrangement is an out and out partition:

1. Clause 2. The tarwad has decided to disrupt into 3 branches.

2. Clause 4, Each branch is to have separate possession of specified properties, separately managing its affairs and discharging the specified debts, with the income of the allotted items. The surplus income, if any, must be used reproductively at their own discretion.

3. Clause 6. The movables also are divided between the three groups.

4. Clause 7. Though renewals must be in the name of the common karnavan, the dues and the renewal fee if any must go to the branch separately.

5. Clause 8. The special expenses of each branch must be met by that branch alone.

6. Clause 9. The tax and michavaram must be paid by the branches,

7. Clause 11. The 3 groups are to live in three different places and to mess separately.

8. Clause 20. This arrangement cannot be invalidated whether by some or by all the members of the tarwad.

Now I will group the clauses in Ext. A which bespeak of a maintenance arrangement.

(1) Clause 5. The branches have no power to encumber or to alienate the properties allotted, to them and if any contrary act is done the present and future members of the tarwad will have the right to set them aside.

(2) Clause 6. The movables also cannot be alienated or damaged.

(3) Clause 7. Litigation on behalf of the tarwad must be by the common karnavan and the branch karnavan jointly. Renewals also mustbe in the name of the common karnavan except when he is unwilling to act.

(4) Clause 9. It any branch defaults to pay the tax and jenmi dues and thereby causes damage to any other branch, the damnifiedbranch can recoup by proceeding against the income of the properties of the defaulting branch.

(5) Clause 10. The patta and the other documents of the tarwad must be in the possession of the succeeding karnavans to be shown to the others whenever required.

(6) Clause 11. As the 2nd branch has no residential quarters a suitable site may be purchased in the name of the common karnavan with funds supplied by the branches separately.

(7) Clause 13. The successive common karnavans must manage the family devaswom by collecting the income of the Devaswom assets.

(8) Clause 14. The present karnavan and senior ananthiravan and their successors-in-status must be paid an amount each for special expenses.

(9) Clause 20. If a managing member or other members of the branches commit any acts irresponsibly and to the prejudice of the tarwad, the majority of the members can remove the irresponsible manager from management and the irresponsible members will be entitled only to 12 paras of paddy and nothing else.'

4. After giving this summary, in paragraphs 7 to 12 the lower court took up one by one each of the clauses tending to support the plaintiffs' case of non-division, starting with the clause prohibiting encumbrance and alienations of properties without the concurrence of all the adult members, and then proceeded to show with reference to decided cases that each of these clauses by itself was no bar to Ext. A being treated or considered as an outright partition. After thus disposing of the clauses relied upon by the plaintiffs in support of their case of non-division and relying on the other clauses referred to in the above extract, the lower court finally came to the conclusion that Ext. A was not a maintenance arrangement but an outright partition.

The clause relating to prohibition of encumbrances and alienations without the concurrenceof all the adult members was brushed aside on the short ground that being a clause in restraint of alienations it was void and of no consequence. To our mind this was not a proper approach to the question whether Ext. A was an outright partition or only a maintenance arrangement. The right approach would be to read the document as a whole, not to read each clause as an isolated provision, and to construe the document in the light of ail the provisions therein, trying as far as possible to give effect to all the provisions and seeing whether the apparently conflicting provisions could be reconciled with each other and rejecting only such provisions as are really inconsistent with the intentions of the parties as gatherable on a reading of the whole document. Reported decisions are uniform that the real teat as to whether a document is a partition or only a maintenance arrangement is the intention of the parties who executed it and that their intention has to be gathered on a reading of the document as a whole and not by reading isolated passages. One of the latest cases on this subject is Kochukutty Amma v. Bhargavi Amma, ILR 1953 Trav-Co. 943: (AIR 1954 Trav-Co. 169) (A), wherein it has been held that intention is the real test in such cases. In Krishnan v. Narayanan, 24 Trav LJ 295 (B), it has been held:

'In interpreting a document an inference should not be drawn from isolated passages of the document but the document as a whole should be looked into. There is an equally important principle and that is when the document has bearing on the intention of the parties, the customs, habits and the sentiments usually current among the classes or communities to which the parties belong should be taken into consideration. In interpreting a document words and expressions should, as far as possible, be given the natural meaning they ordinarily bear and no interpretation ought to be accepted which reduces the purport of the document to an absurdity.

The intention of the parties to a document must be gathered from the words and where such words ere definite and unambiguous the courts should not travel outside the words. Unless there be decisive provisions in an udampadi pointing to division, the indivisibility of the tarwad will be maintained wherever it is possible.'

In Bajrang Bahadur v. Bakhtrai Kuer, AIR 1953 SC 7 (C), the Supreme Court also has approved the principle that the intention of the executor of a document has to be gathered not by attaching importance to isolated expressions but by reading the document as a whole with all its provisions, ignoring none of them as redundant or contradictory. It is in the light of these principles that we propose to examine Ext. A and see whether it is an outright partition or only a maintenance arrangement.

5. Some of the provisions in Ext. A relevant for the decision of the question whether it is an outright partition or only a maintenance arrangement have been enumerated by the lower court in paragraph 6 of its judgment, extracted above. Besides those provisions the following salient features of Ext. A have also to be taken into consideration in deciding this question. To start with, Ext. A is styled a family karar and it is written on a stamp paper of one rupee which is the stamp required for an ordinary agreement.

The stamp duty payable for a partition deed has not been paid for Ex. A. The preamble to the document says that it was being executed to promote the interests of the tarwad and prevent further harm. In Clause 5 it is expressly stated that beyond the right to be in possession of the properties allotted to it and to maintain the members thereof from the income of such properties no branch shall have any further right to the properties allotted to it or have the right to encumber or alienate by itself the properties allotted to it. If any branch happens to encumber or alienate the properties allotted to it contrary to this provision and without the concurrence of all the adult members of the tarwad a right is reserved in Clause 5 to all the members of the tarwad to get such alienations cancelled; and such right can be exercised by any member.

In Clause 7 It is provided that renewals of kanams and leases of tarwad properties should be in the name of the common karnavan of the tarwad consisting of all the three branches and that the oppusoochi for the renewals should be taken by him and the balance renewal fee by the branch to which the property is allotted, it is also provided in that clause that litigations in respect of the properties allotted to each branch including even suits for recovery of rent, must be instituted jointly by the common karanavan and the karanavan of the branch to which the property has been allotted and that the expenses of such litigation should be met jointly by them.

6. When Ext. A is read as a whole there can be no doubt of the fact that the dominant idea of the executants thereof was not to disrupt the unity of their tarwad but to preserve it and that they executed Ext. A only to avoid internicine quarrels and disputes regarding the enjoyment of the tarwad properties and for the proper management of the tarwad affairs. In clauses 1 and 20 express reference is made to Ext. XXIV, the maintenance arrangement of 1064, and it is stated that Ext A was being executed in furtherance of Ext. XXIV and that both Ext. XXIV and Ext. A shall not be invalidated by any member of the tarwad.

Conveniently overlooking the reference in Clause 20 to Ext. XXIV and reading that clause as one directing that Ext. A alone was not to be invalidated, the lower court has construed clause 20 as a direction that the arrangement made under Ext. A shall be a permanent arrangement and taken it as furnishing proof of the fact that the parties intended Ext. A to be an outright partition. The permanency contemplated by Clause 20 was not a permanency of the arrangement under Ext. A alone but a permanency of the arrangement under Ext. XXIV also.

To some extent the provisions of Ext. XXIV were modified by Ext. A. The direction in Clause 20 is to the effect that Ext. XXIV is to continue in force even after Ext. A so far as the provisions not modified by Ext. A are concerned. Since clause 20 treats Ext. A only as a document executed in continuation or furtherance of Ext. XXIV, and since Ext. XXIV is admitted by all the parties to be only a maintenance arrangement and nothing more, it naturally follows from that clause that the parties had intended Ext. A also to be only a maintenance arrangement and not an outright partition.

Further, a provision for permanency of the arrangement by itself is not a decisive factor as to whether a document is a partition or a maintenance arrangement. Permanency is, no doubt, on essential feature of an outright partition, but as pointed out by Subramonia Iyer, J. in ILR 1953 Trav-Co 943: (AIR 1954 Trav-Co 169) (A), it does not follow that every permanent arrangement is a partition. Permanent arrangement for maintenance was not uncommon among the Marumakkathayees especially before the enactment of the statutes conferring the right to compulsory partition. Usually, arrangements for maintenance were made by the karnavan, and such arrangements were also liable to be changed by him from time to time according to the changing conditions of the tarwad.

But when a deed is executed by all the adult members of a tarwad making an arrangement for maintenance, it is something of the nature of a curb on the karnavans powers agreed to by him and all the other members of the tarwad, and in such a case it is only natural to make a provision that the arrangement will not be changed at the sweet will and pleasure of the karnavan alone and can be changed only with the consent of all the members. A permanent arrangement for maintenance does not mean anything more than this and cannot constitute a bar to the exercise of the right to compulsory partition subsequently conferred on the members of the tarwad by the Statute.

In our opinion, not only is Clause 20 no bar to Ext. A being a maintenance arrangement but the reference therein to Ext. XXIV shows positively that the intention of the execution was thatit should only be a maintenance arrangement and not a partition at all.

7. That at the time of the execution of Ext.A the members of the tarwad had no intention to effect an outright partition and that their intention was to continue united in the same tarwad is also clear from the provisions made in it regarding the karnavanship of the common tar-wad. Under the Marumakkathayam Law the karnavan is the head and mouthpiece of the tarwad, all the properties of the tarwad vest in him, and he is the person entitled to be in possession of such properties and subject to arrangements for maintenance which might have been made, he manages tarwad affairs, and all tarwad transactions are usually carried on in his name.

Acquisitions for and on behalf of the tarwad are usually made in his name, and it is he who sues and conducts litigations for and on behalf of the tarwad. Ext. A provides not only for the continuance of a common titular karnavan for the whole tarwad but also for the effective continuance and discharge of all the rights and duties of the karnavan. Not only were the properties belonging to the tarwad at the time of the execution of Ext. a to continue to remain in the name of the common karnavan but new acquisitions also -- even acquisitions meant primarily for the benefit of one alone of the three branches -- were to be in his name.

By Ex. a separate houses for residence were allotted to branches 1 & 3 but no house was given to branch 2. It was therefore provided in Ex. A that the other two branches should contribute certain amounts and purchase a residential property for the use of branch No. 2. The provision in Clause 11 was that this new property to be acquired for the residence of branch No. 2 was to be purchased in the name of the common karnavan. Even after the execution of Ex. A, the pattas of the tarwad property were to continue, and actually continued, in the name of the common karnavan.

Renewals and leases of the tarwad properties were to he taken in the name of the karnavan and part of the renewal fee namely the oppusoochi was to be paid to him and only part to the branch to which the property was allotted. Even suits for arrears of rent in respect of properties allotted to the different branches were to be instituted in the joint names of the common karanavan & the branch karanavan, and the expenses of such suits were to be met jointly by the two karanavans

If, after the execution of Ext. A the properties did not belong to the common tarwad and belonged only to the branch to which they were allotted for maintenance, this provision regarding litigation expenses would not have been made at all. In Damodaran v. Kumaran, 1951 Ker LT 424: (AIR 1952 Trav-Co. 277) (D), the present Chief Justice of this court (Koshi J., as he then was) has said:

'The main features as indicative of an intention to divide are the absence of a provision for a common karanavan, a per capita distribution of the assets and liabilities among the several disintegrating units, and the permanency of the arrangement.'

Here, not only is provision made for the continuance of a common karnavan even after the execution of Ext. A but the karanavan is to be no titular head and has been asked to discharge allthe important functions which the Marumakkathayam Law ordinarily assigns to him.

8. The respondent's counsel referred to certain decisions in which it has been held that when, under a deed, some properties are divided between the several thavazhies of a tarwad and some properties are directed to be held in common, the continuance of the common kavanavan is only for the purpose of managing the common properties and cannot be taken as indicating an intention of the members to continue undivided even after the execution of the deed, and pointed out that under Ext. A also certain properties are directed to be held in common.

It is true that the tarwad of the plaintiffs and defendants 1 to 18 has a family devaswom, and that it is provided in Ext. A that this devaswom and the properties pertaining to it are to be in the possession of the common karanavan and managed by him. But Ext. A assigns to the common karanavan not only the duty of managing the common devaswom and the devaswom properties but also assigns to him important rights and functions in respect of other tarwad properties including properties allotted to the different branches and even properties to be acquired in future.

9. The distribution of the assets and liabilities under Ext. A was also not on the per capita basis; nor were they divided evenly between the three branches. The annual income from the properties allotted to the first branch consisting of nine members on the date of Ext. A was 940 paras of paddy and Rs. 50, the annual income from the properties allotted to the second branch consisting of seven members was 610 paras of paddy, and the annual income from the properties allotted to the third branch consisting of four members was 259 paras of paddy and Rs. 60.

No explanation is forthcoming for this unequal division, and so, the only possible inference from it is that, being an arrangement for maintenance, the allotment was made on the basis of the actual needs of the members of the different branches. Yet another circumstance tending to prove that there was no actual division or partition is that the right given to each branch to recoup losses or damages caused to it by another branch or the other two branches is not to recoup such losses or damages from the corpus of the properties allotted to the branch or branches causing the loss or damages but to recoup the same from the income of such properties.

The properties were not made liable for the damages because they belonged to the common tarwad and not to the branch or branches causing the damages, and the income was made liable because after the maintenance arrangement the right to take the income belonged to the branch and not to the tarwad so long as that arrangement was in force.

10. The clause prohibiting alienation of properties except with the common consent of all the members of the tarwad also provides a definite indication as to whether Ext. A was intended to be a deed of partition or only an arrangement for maintenance. The lower court has brushed aside this clause on the ground that it is a clause in restraint of alienation and is, therefore, void. In Krishnanv. Narayanan, 30 Trav LJ 433 (E), it has been held:

'Separate residence and enjoyment of properties separately are per se insufficient to establish division because such a state of things is not necessarily inconsistent with a state of non-division. The most decisive circumstance that will make out a status of division is the power given by the deed or family arrangement to the allottees to deal with the properties allotted to them without any reference to the others as if they are constituted absolute owners of those properties.

In other words, each branch must be authorised by the deed to enjoy different sets of properties as if each formed a separate tarwad .............. Theprovision insisting on the joinder of all the members of the tarwad for contradicting debts and prohibiting the incurring of debts by members so as to bind the properties allotted to them would certainly indicate the reverse of partition.'

In the present case not only is there no provision in Ext. A authorising the different branches to alienate, encumber or otherwise deal with the properties allotted to them but they are expressly prohibited from doing so except with the consent of all the members of the tarwad. Clause 5 cannot be brushed aside at the very outset as a clause in restraint of alienation; for in a maintenance arrangement it is natural and proper to provide that the different branches shall have no right to the properties allotted to them except to take the income thereof and that they shall not alienate or encumber, the properties without the consent of all the members of the tarwad

Whether Ext. A was an outright partition or not has to be decided with reference to all the clauses in the document and in considering the question whether it was an outright partition or not the presence of a provision enabling or prohibiting the different branches to deal with the properties allotted to them by themselves is a very important factor. If, after consideration of all the clauses, the conclusion arrived at is that the deed is one of partition and not a maintenance arrangement, then, of course the clause can be brushed aside as one in restraint of alienation.

It was wrong on the part of the lower court to have construed the document after first brushing aside Clause 5 as a clause in restraint of alienation. Clause 5 read in the light of the provisions referred to in paragraph 5 above clearly indicates that the intention of the executants of Ext. A was to make a maintenance arrangement and that therefore they prohibited the different brandies to alienate by themselves the properties allotted to them. Clause 5 perfectly fits in with the entire scheme of the arrangement under Ext. A and is not a clause in restraint of alienation.

Except for the provisions that the three branches are to reside separately in three different houses an5 that each branch is to be in possession of the properties allotted to it there is practically nothing in Ext. A which would support the defendant's contention that it was on outright partition. These two provisions are perfectly consistent with an allotment for maintenance also. As pointed out in 30 Trav LJ 433 (E), they are not necessarily inconsistent with the state of non-division.

11. For the reasons stated above, we hold that Ext. A is only a maintenance arrangement and not an outright partition and that the plaintiffs and defendants 1 to 18 form an undivided marumakkathayam tarwad and that the plaintiffs are entitled to get a decree for partition. The judgment and decree of the court below are, therefore, set aside and the suit is remanded to the lower court for a fresh disposal according to law and in the light of the observations made above after considerating the remaining issues in the case.

The appeal is allowed as above, and the parties are directed to bear their costs in this court except the court fee paid on the memorandum of appeal which will be refunded to the appellant's counsel.


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