1. This appeal raises the question of the interpretation of certain sections in the Marumakkathayam Act (XXII of 1933). The appellants in this appeal were defendants in a suit for partition filed under this Act by the plaintiff who represented one tavazhi of a tarwad in South Malabar. The suit was filed on the 23rd October, 1933. Prior to filing that suit, the plaintiff had received notice of an application made under Section 43 of the Act, to the Collector for the registration of the tarwad as impartible. While the suit was pending, the Collector did register the tarwad as impartible on the 15th January, 1934. The question which then arose before the learned District Munsiff who was trying the suit as whether the order of the Collector registering the tarwad as impartible rendered the suit incompetent. The District Munsiff held that it did so render it but upon appeal to the learned District Judge, the opposite view was taken and the Judge remanded the suit for disposal upon its merits. This is now an appeal by the defendants against that order of remand.
2. The disposal of the appeal turns essentially upon the true construction of Sub-section (4) of Section 43 of the Act. Sub-section (3) prescribes the conditions under which the Collector can register the tarwad as impartible and then Sub-section (4) goes on to enact as follows:
On such registration, the provisions of Chapter VI shall not apply to such tarwad unless and until the registration is cancelled under Section 44.
3. The provisions of Chapter VI give to the members of the tarwad the right of partition. It is quite clear (see Kunchi Amma v. Minakshi Amma (1935) 70 M.L.J. 114 : I.L.R. 59 Mad. 693 that that right is actually exercised at the very moment when one of such members files a suit. In the present case, therefore, the rights granted by Chapter VI had already been exercised before the Collector registered the tarwad as impartible. It is argued that the order registering the tarwad as impartible should be read as referring back to the date of the application. It seems to me impossible to accept this view of the section on the plain meaning of the expression 'on such registration'. Mr. Sitarama Rao, however, argues that his contention is reasonable because the only point which the Collector has to decide is whether more than two-thirds of the members of the tarwad actually signed the application to him. I agree that the argument is a reasonable one if all the Collector has to decide is the intention and attitude of the members of the tarwad on the date of the application. But a further scrutiny of Section 43(3) will show that the Collector must also be satisfied that on the date when he does register the tarwad as impartible, they are of the same mind as they were when they signed the petition:
If, after giving notice to all the major members of the tarwad and making such enquiry as he deems fit, the Collector is satisfied that not less than two-thirds of the major members of the tarwad have signed the petition with their free consent and desire (it is to be particularly noted that the present tense is used here), the registration of the tarwad as impartible, he shall register the tarwad as impartible.
4. I am therefore clearly of opinion that the right to partition granted by Chapter VI cannot be taken away until the actual registration by the Collector under Section 43 and that any exercise of that right which has been carried into effect before registration is not affected by it. Finally Mr. Sitarama Rao argues that the whole question is subject to the provisions of Section 52 of the Transfer of Property Act. It is true that for certain purposes Section 45 does invest the Collector under this Chapter with the powers of a Court and declares that the proceeding before him shall be deemed to be a judicial proceeding. But I am not satisfied that there is sufficiently express language here used to bring the Collector's enquiry within the scope of Section 52 of the Transfer of Property Act. There is no authority yet available in support of this argument, and I see no reason why I should accept it.
5. In the result, the order of the learned District Judge seems to me to be right and this appeal fails, and is dismissed with costs.
6. Leave to appeal granted.