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Elayat Karthiyayini Kunchi Amma and ors. Vs. Minakshi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtChennai
Decided On
Reported inAIR1936Mad155; 160Ind.Cas.594; (1936)70MLJ114
AppellantElayat Karthiyayini Kunchi Amma and ors.
RespondentMinakshi Amma and ors.
Cases ReferredDeo Bunsee Koer v. Dwarkanath
Excerpt:
.....of its own share in the joint family property, and all the other tavazhis must submit to it whether they like it or not. 16. he lays stress upon the words 'at any time'.his contention appears to be that by reason of these words any suit brought by a tavazhi under section 38 can be defeated by a petition under section 43 even if the suit under section 38 had been filed before the petition under section 43. mr......that they did.6. that case was one in which the propriety of appointing a receiver for the tarwad properties after the institution of a suit for partition was in question and his lordship the chief justice decided the point on other grounds.7. the case in narayana moosad v. raman moosad : air1935mad552 has not, we think, any bearing on the point before us. in that case venkatasubba rao, j., was dealing with an application by nambudri brahmin for leave to sue in forma pauperis. the learned judge pointed out that under the nambudri act section 26, 'nothing contained in this act shall be deemed to affect any law, custom or usage applicable to nambudri brahmins, except to the extent expressly laid down in this act'. he went on to show that since before the passing of the act a.....
Judgment:

Burn, J.

1. This is a petition to revise the order of the learned District Munsif of Alatur in I.A. No. 184 of 1934 in O.S. No. 444 of 1933. This is connected with I.A. No. 183 of 1934 in O.S. No. 2 of 1934. The suits were filed by the karnavan of a Malabar Marumakatayam tarwad. The learned District Munsif's order shows that one suit was for a separate share in the tavazhi properties and the other suit is for his share in another tavazhi which is said to be a Puthravakasam tavazhi. The plaintiff sent a registered notice demanding partition and executed a will in favour of his wife and children bequeathing to them his share in both these sets of properties. Then he filed two suits and it is said that he executed another will in favour of his wife and children thereafter. Then he died and his widow and children put in these applications I.A. Nos. 183 and 184 of 1934 to be impleaded as the legal representatives of the deceased plaintiff.

2. It was contended on behalf of the defendants that on the death of the plaintiff both the suits abated and therefore no legal representatives can be brought on record. This contention vas based on the peculiarities of the Marumakattayam Law. The suits were filed in pursuance of Section 38 of the Madras Marumakkattayam Act XXII of 1933. Section 50(b) of the same Act provides that:

Nothing contained in this Act shall be deemed to affect any rule of Marumakkattayam Law, custom, or usage, except to the extent expressly laid down in this Act

3. If the parties had been Hindus governed by the Mitakshara law it is not disputed that the filing of the suits by the plaintiff would have effected a division in status between him and the other members of the joint family and it would have been possible for his legal representatives to be brought on record and to continue the suits. Under the Marumakkattayam law the contention is that this theory of division in status being effected by the filing of a suit for partition is not tenable, and Section 50 of the Marumakkattayam Act is relied upon as indicating that this peculiar feature of the Mitakshara law is not to be imported into the Marumakkattayam law in the absence of an express provision in the Act itself.

4. When this petition came on for hearing it was admitted by Mr. Kuttikrishna Menon, Advocate for the petitioners, that there was no express ruling on the point. This we think is a fact which ought to have prevented the petitioners from bringing this petition at all. It cannot be said that the learned District Munsif's decision is so clearly wrong in law that his order impleading the widow and children of the deceased plaintiff is one without jurisdiction and therefore revisable under Section 115 of the Code of Civil Procedure. It is obvious that the appropriate procedure for a decision of such a point as this is to bring it up in appeal. However as the petition is admitted and is posted before a Bench and as we have heard the arguments fully, we cannot avoid giving a decision upon it.

5. For the petitioners Mr. Kuttikrishna Menon has quoted the cases reported in Krishnan v. Maruvalamma (1934) 41 L.W. 353 and Narayana Moosad v. Raman Moosad : AIR1935Mad552 . He has also referred us to the decision in Second Appeal No. 457 of 1930 which has not been reported. In Krishna v. Maruvalamma : (1928)55MLJ175 His Lordship the Chief Justice has expressed an opinion opposed to the view taken by ths learned District Munsif in this case. This expression of opinion is however obiter, and his Lordship the Chief Justice has agreed that the matter may be described as arguable. The point did not arise for express decision in the case before His Lordship and the words used by His Lordship are as follows:

It is at the most only arguable that the same consequences as those in In the matter of Balusami Aiyar : (1928)55MLJ175 will result in the case of a suit for partition of a Malabar Marumakkattayam tarward; and, in my view, the Subordinate Judge was wrong in thinking that they did.

6. That case was one in which the propriety of appointing a receiver for the tarwad properties after the institution of a suit for partition was in question and His Lordship the Chief Justice decided the point on other grounds.

7. The case in Narayana Moosad v. Raman Moosad : AIR1935Mad552 has not, we think, any bearing on the point before us. In that case Venkatasubba Rao, J., was dealing with an application by Nambudri Brahmin for leave to sue in forma pauperis. The learned Judge pointed out that under the Nambudri Act Section 26, 'Nothing contained in this Act shall be deemed to affect any law, custom or usage applicable to Nambudri Brahmins, except to the extent expressly laid down in this Act'. He went on to show that since before the passing of the Act a Nambudri Brahmin could sue for the removal of a karnavan he had not lost that right by reason of the passing of the Act and therefore leave to sue could be granted. The point with which we are concerned did not arise in that case.

8. The judgment of Madhavan Nair, J., in Second Appeal No. 457 of 1930 was relied upon by the learned Advocate for the petitioner, but when closely examined we think that that case practically supports the case of the Respondents. The decision was given in Second Appeal No. 457 of 1930 in a suit of 1924 filed long before the passing of the Madras Maru-makkattayam Act. Madhavan Nair, J., says:

I am not at all satisfied that the doctrine of severance of status so familiar in Hindu Law can be introduced into Marumakkattayam Law under which compulsory partition at the instance of a single individual is not permitted. As the law does not declare the share of an individual member in the properties held in common by members of a Malabar tarwad, it is in my opinion difficult to apply the doctrine of severance of status in Marumakkattayam Law. That law is essentially a customary Law and the underlying principle of it which disallows partition at the instance of a single individual is by its very nature opposed.to the conception of 'severance of status' which has for its basis the right of a single individual to claim partition. The question has never been raised in the British Courts.

9. As Mr. Sitarama Rao points out for the respondents, the law now applicable in Malabar is very different. Section 38 of the Act expressly provides that:

Any tavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it.has power of disposal and separate from the tarwad.

10. And Section 40 defines what share would fall to such tavazhi on a division. It says:

In the case referred to in Section 38, the tavazhi shall be entitled to such share of the tarwad properties as would fall to the tavazhi if a division per capita were made among all the members of the tarwad then living.

11. Under the present law therefore, the tavazhi, which in some cases may be a single person, has an absolute right to demand partition of the tavazhi's share of the joint family property as defined in Section 40, and that share must be allotted in accordance with a simple mathematical calculation to be made on the basis of the number of persons in the tarwad at the time the division takes place. The whole of the reasoning of Madhavan Nair, J., in Second Appeal No. 457 of 1930 is therefore, as we have already stated, in favour of the respondents. Apparently partition at the instance of a single individual is now permitted by Law. It should follow that the doctrine of severance of status by reason of the filing of a suit for partition is equally applicable to persons governed by Marumakkattayam Law. It is to be noticed that this doctrine does not depend upon any principles peculiar to the Mitakshara Law. It depends upon principles of quite general application. In Girja Bai v. Sadasiv Dhundiraj (1916) L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 : 31 M.L.J. 455 (P.C.) their Lordships of the Privy Council observe:

that separation from the joint family involving 'the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting therefrom, is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is a natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that by the intervention of the Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the Court examine his consciencejo find out whether his reasons for separation were well founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.

12. Again at page 1048 their Lordships of the Privy Council point out:

Partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers.

13. They conclude with the observations of Lord Watson in Madho Parshad v. Mehrban Singh I.L.R. (1990) 18 Cal. 157 'So long as his interest is indefinite he is not in a position to dispose of it at his own hand and for his own purposes; but as soon as partition is made he becomes the sole owner of his share, and has the same powers of disposal as if it. had been his acquired property'. Their Lordships also refer to the language used by Mr. Justice Dwarkanath Mitter in Deo Bunsee Koer v. Dwarkanath (1868) 10 W.R. 273. Now it is a settled doctrine of Hindu Law:

that every member of a joint undivided family has an indefeasible right to demand a partition of his own share. The other members of the family must submit to it whether they like it or not.

14. The change in the law introduced by the enactment of the Marummakkattayam Act has, we think, made the doctrine of severance of status applicable to tavazhis under the Marummakkattayam Law as it is to persons under the Mitakshara Law, and for precisely the same reason. Under the new law every tavazhi in a joint undivided Marummakkattayam family has an indefeasible right to demand partition of its own share in the joint family property, and all the other tavazhis must submit to it whether they like it or not.

15. Mr. Kuttikrishna Menon for the petitioners has referred to the provisions of Section 43 of the Act. It is there provided that:

Not less than two-thirds of the major members of a tarwad may, at any time, present a petition to the Collector for the registration of the tarwad as impartible.

16. He lays stress upon the words 'at any time'. His contention appears to be that by reason of these words any suit brought by a tavazhi under Section 38 can be defeated by a petition under Section 43 even if the suit under Section 38 had been filed before the petition under Section 43. Mr. Kuttikrishna Menon contends that if two thirds or more of the major members of the tarwad present a petition to the Collector under Section 43 and if the Collector thereupon registers the tarwad as impartible, the suit already filed under Section 38 would have to be dismissed. We cannot agree with this view. This construction of Section 43 would render the right granted under Section 38 illusory, and we do not believe that such was the intention of the legislature or that the words 'at any time' could bear such a meaning. This point, however, cannot possibly arise in this case because the properties of which partition is required in the two suits in question, are properties belonging to two tavazhis and not properties belonging to a tarwad. By Section 41 of the Act the provisions of Chapter VI apply to every tavazhi possessing separate propeties as if it were a tarwad: it is not however enacted that the provisions of Chapter VII which deal with impartible tarwads are applicable to tavazhis.

17. It is also argued that, as there is no express provision in the Act that a severance of status is effected on the filing of a suit for partition, Section 50 of the Act prohibits the introduction of such a rule in the Marumakkattayam law. But under Section 38 'Any tavazhi represented by a majority of its members may claim to take its share of all the properties of the tarwad.. and separate from the tarwad'. This indicates that so far as a tavazhi is concerned the separation from the tarwad is effected on its claiming to take its share of the properties of the tarwad. There is thus an express provision in the Act itself that severance of status is effected when a tavazhi claims to take its share of the tarwad properties. Such a claim must be deemed to have been made, when a notice demanding its share is given, or at least when a suit is filed for that purpose. There is therefore, no substance in this contention.

18. For these reasons, we consider that the decision of the learned District Munsif was correct and we dismiss this petition with costs.


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