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Kizhakkepat Palat, deceased Lakshmi Kutty Amma's daughter Kunhilakshmi Amma and Ors. Vs. Kizhakkepat Palat, deceased Lakshmi Kutty Amma's children Tavazhi Karnavan and Manager, Krishna Menon and Ors. (20.03.1939 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1939Mad799; (1939)2MLJ287
AppellantKizhakkepat Palat, deceased Lakshmi Kutty Amma's daughter Kunhilakshmi Amma and Ors.
RespondentKizhakkepat Palat, deceased Lakshmi Kutty Amma's children Tavazhi Karnavan and Manager, Krishna Meno
Excerpt:
- .....it is only the property of the tarwad which has been registered as impartible, that is to say, the tarwad properties, that are removed from the operation of chapter vi of the act relating to partition till the registration is cancelled. it would not have been intended to affect in any way the specific provisions of section 41 which say that the provision of the chapter relating to partition shall apply to every tavashi possessing separate properties as if it were a tarwad. we are therefore unable to accept the view of the court below on this point.3. the finding of the lower court on the first issue to the effect that the suit for partition is not maintainable is set aside. we find that the suit is maintainable under section 41 of the act in spite of the registration of the main tarwad.....
Judgment:

Pandrang Row, J.

1. The only point that arises in this appeal is whether after a Marumakkathayam tarwad has been registered as impartible under Section 43 of Marumakkathayam Act (XXII of 1932), a tavazhi of that tarwad which possesses separate properties is not governed by the provisions of Chapter VI of the Act which permits a partition of such properties as if the tavazhi were a tarwad - vide Section 41 of the Act. It is clear from the Chapters V and VI that in the case of tavazhies possessing separate properties, the provisions of the two Chapters are made applicable to such tavazhies as if they were tarwads - vide Sections 37 and 41 of the Act, and the reason is obvious because where there are separate properties belonging to a tavazhi, so far as the management of the properties and their partition is concerned, there is no reason for making any difference between tavazhies possessing separate properties and tarwads. Section 41 runs as follows:

The provisions of this chapter shall apply to every tavazhi possessing separate properties as if it were a tarwad,

and it is clear from Section 38 that any sub-tavazhi represented by the majority of its major members may apply for partition of such tavazhi properties. This is a right given in express terms by Sections 41 and 38 of the Act, and there is therefore no scope for the application of Section 50(b) of the Act. It has not been contended before us that Section 50(b) has any bearing on the present case, once it is found that, under Sections 41 and 38, the right of partition exists in this case. Reliance is however placed on the respondents' side by Mr. Venkatarama Sastri on the provision contained in Section 43(4) which runs 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.

2. He contends that the word 'tarwad' here means not merely the tarwad as defined in the Act but every branch of it, so that once a tarwad is registered as impartible, no tavazhi can have its separate properties partitioned between members of the tavazhi itself or between its sub-tavashies. There is, in our opinion, no warrant for this construction. In the first place, it is not reasonable to support that the Legislature meant to give to members of the tarwad a voice in deciding whether the separate properties of a tavazhi in which they have no concern as such should be partible or impartible. Secondly, the word 'tarwad' is defined in the Act itself as the group of persons forming a joint family with community of property governed by the Marumakkathayam Law of inheritance. There is not the usual clause 'unless the context shows otherwise' in this definition, nor does the context in Section 43(4) show that the word 'tarwad' is used in any other sense. It is clear that 'tarwad' in Clause (4) of Section 43 means the tarwad which was actually registered as impartible and nothing more; that, in other words, it is only the property of the tarwad which has been registered as impartible, that is to say, the tarwad properties, that are removed from the operation of Chapter VI of the Act relating to partition till the registration is cancelled. It would not have been intended to affect in any way the specific provisions of Section 41 which say that the provision of the Chapter relating to partition shall apply to every tavashi possessing separate properties as if it were a tarwad. We are therefore unable to accept the view of the Court below on this point.

3. The finding of the lower Court on the first issue to the effect that the suit for partition is not maintainable is set aside. We find that the suit is maintainable under Section 41 of the Act in spite of the registration of the main tarwad as impartible. The appeal is therefore allowed and the suit is remanded to the Court below for disposal according to law after deciding the other issues, as the Court below dismissed the suit on the preliminary ground that the suit was not maintainable and the other issues have not been decided. The costs in the Court below will be provided for by the Court below in its revised decree. The appellants are entitled to their costs of this appeal to be paid by respondents 1, 8 and 25. The court-fee paid on the memorandum of appeal will have to be refunded to the appellants.


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