Madhavan Nair, J.
1. Plaintiffs are the appellants. The suit out of which this Letters Patent Appeal arises was instituted by the plaintiffs for partition and recovery of their share of the plaint properties, together with mesne profits. The properties belonged to one Kunhu Nethiar who was the last member of a tarwad. The relationship of the parties will appear from the following geneological table found in the Munsif's. judgment.
Ittiyachi Nethiar Kummini Nethiar
Kunhu Nethiar |
Defendant 1 Plaintiff 1 Defendant 2.
Defendant 3 Defendant 1 Defendant 5 |
Defendants 6 to 10 |
Plaintiff 2 Plaintiff 5 Plaintiff 6 Kunhikarru Nethiar
| | |
Plaintiffs & and 7 to 9 Plaintiffs 14 to 16 Plaintiffs 3 and 10 to 13
2. Plaintiffs and defendants 1 to 10 are the descendants of Kummini Nethiar who was the deceased Kunhu Nethiar's mother's sister. Kummini Nethiar died leaving three children, defendant 1 and plaintiff 1, daughters, and defendant 2, a son. Defendant 1's descendants are defendants 3, 4, 5 and 6 to 10. Plaintiff 1's descendants are plaintiffs 2, 5, 6, 4, 7 to 9, 14 to 16, 3, and 10 to 13. The descendants of Kummini Nethiar divided themselves on per capita basis into three branches consisting of the plaintiffs, defendants 1 and 3 to 10 and defendant 2 by a deed of partition. Kummini Nethiar was the last to divide from the branch of the deceased Kunhu Nethiar. It is not now disputed that the heirs to Kunhu Nethiar's properties are the three divided tavazhis descended from Kummini Nethiar.
3. The plaintiffs form an undivided group of 16 members. They claimed that the properties of Kunhu Nethiar should be divided into 26 equal shares of which. 16 shares should be allowed to their branch. Defendants 1 and 3 to 10 and: defendant 2 claimed that the properties, should be divided into three equal, shares and that one share should be. given to each of the branches. The contest between the parties relates to the question whether the division of the properties should be per capita, as contended for by the plaintiffs or per stirpes as contended for by the defendants. If the plaintiffs' contention is accepted, they will be entitled to a larger share of the properties than they would get according to the defendants' contention.
4. The learned District Munsif held that, the division of the properties should be per stirpes and not per capita and passed a decree on that basis. This was set aside by the learned Subordinate Judge who held that the partition should be per capita and not per stirpes.
5. In second appeal the decision of the learned Subordinate Judge was set aside and that of the District Munsif was restored by Curgenven, J. This Letters Patent appeal is against his judgment. The variations of opinion noted above show that the question whether the partition of tarwad property under the Malabar law should be according to the tavazhi (per stirpes) or according to the individuals (per capita) is not quite an easy one to decide. This difficulty arises from the fact that compulsory partition is not allowed under the Malabar law; and so necessarily, there are no decisions directly bearing on the point. Curgenven, J., based his decision on the following observation of the learned Judges in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 that
the authorities show conclusively that partition per stirpes, or what comes to the same tiling, partition by tavanhies has, to say the least, a greater body of authority in its favour than partition per capita.
6. In that case it was held that members of a Malabar tarwad who were minors when a partition was made with the consent of all the adult members at the time, cannot upset the partition on the ground that the division was per stirpes, namely, by tavazhies, and not per capita. This decision cannot in my opinion be understood as deciding that partition under the Malabar law of tarwad properties should be per stirpes and not per capita. What was decided way only this, that a partition which was effected with the consent of all the adult members cannot be said to prejudice those who wore minors at the time of the partition, on the mere ground that the method of partition adopted was per stirpes and not per capita. This appears to be clear from the reference made in the judgment to the decisions in Pamkuti v. kelappan Nair 1917 Mad. 845 and Ramamurthi v. Ramamma 1917 Mad. 571. In the former case, Sankaran Nair, J., observed:
Such a partition would ordinarily be binding or the minors, but if on attaining majority they are able to show that they have been prejudiced that partition could be re-opened etc.
7. In the latter case it was pointed out that,
the partitions effected by the adult members of the family are binding on the minor members in the absence of negligence or fraud.
8. In another decision of this Court relied on by the respondents (in S.A.), appellants, A.S. No. 237 of 1918, which was apparently not brought to the notice of Curgenven, J., the impropriety of partition agreed to by all the adult, members was once again raised by the members who were minors at the time of the partition not on the ground that the partition effected was per stirpes but on the ground that it was per capita when it should have been per stirpes. The learned Judges repelled this contention and made the following, observations which show the exact scope of that decision and also of the decision in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 referred to in their judgment:
the appellants contended that the partition was improper because the division was per capita when it should have bean per stirpes. There is no rule that a (partition per capita is bad on that account alone. It must be left largely to the parties to a partition to decide how far it should be per capita and how far per stirpes. No rigid rule can be laid down on the point. As partition can only be effected by consent of parties, it will be a serious obstacle in the way of partition if any rigid rule is laid down as contended. We are of opinion that there is no rule that a partition per capita should be considered as an improper partition by itself.
9. The substance of the two decisions read together is only this, that the, minors at the time of partition on attaining majority cannot claim to set aside the partition on the ground that the partition effected was per stirpes or capita; they will have to show real prejudice to set aside the partition, and the adoption of either of the above methods, which can have been according to law only by the consent of all the members, cannot be said to prejudice them. Viewed in this light, neither the decision in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 nor the decision in A.S. No. 237 of 1918: helps us in this case. The same may be said about the decision in S.A. 656 of 1922. In. that case the observations, already quoted from Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 were used to support the proposition that as a male cannot found a tavazhi he must be excluded from the division altogether. It was held that the learned Judges in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 did not mean any such thing. In Sulaiman v. Biyaththumma 1916 P.C. 217 the Judicial Committee observed in a case from Malabar in which the parties were governed by the Marumakkathayam law:
It is true that for the purpose of arriving at the proper mode of division there is a reference to the three stocks of descent, Bavumma, Kunhi Kathiya and Thaki, but this was so of necessity, and was merely an application of the rule that division for the purpose of partition is stirpital, though, as between the members of any one class, it is capital,
10. Those observations relied on by both parties in support of their respective arguments are not conclusive on the question that we are called upon to decide, that question not being before their Lordships and their observations having been made with reference to the mode of division adopted in a razi petition referred to as Ex. 42 in the suit. The decision in Chathanth Illuvapadi Ammu v. Chathnath Kunhunni Menon : (1894)4MLJ43 , does not deal with the question under consideration. This being the state of the authorities, and there being no evidence as to custom, which if available would be the deciding factor, we have to arrive at our conclusion on the general principles underlying the Malabar law. There are no doubt passages in Wigram's book (p. 6) on Malabar Law and in Strange's Manual of Hindu Law (see Section 389), which may support the contention that partition must be per stirpes and not per capita. The views of these and other writers wore examined by Sundara Ayyar, J., in an article on Topics of Malabar Law appearing in Mahomed Rowthan v. Mahomed Husain Row than (1899) 22 Mad. 337. In that article the view is propounded that division is made not per stirpes but per capita. With this view I agree. Mr. Strange's observation that the basis of such a division would be according to the tavazhies or brandies of the family does not mean necessarily that the property given to the members of the tavazhies on partition is not allotted per capita. Mr. Wigram refers to a decision of 1810 by the Provincial Court of Western division but the decision not being available weight cannot be given to the author's statement that partition is made per stirpes and not per capita. The opinions referred to are no doubt entitled to consideration but they cannot be given the weight of decisions of Courts of law. Having regard to the fact that there are no reported decisions either way, the question has to be decided, as already stated, on the general principles underlying the Malabar law.
11. In this Court Mr. Seetharama Rao raised a new point of law which was not raised at any previous stage. I will deal with it first. It will be observed that the properties sought to be divided belonged to the deceased Kunhu Nethiar and the present claimants claim it as her heirs. It is argued that the case being one of collateral succession, the nearest heirs entitled to it are defendant 1, plaintiff 1 and defendant 2 and that the claims of the others being claims of people more remote should be rejected. This would be so according to the Hindu Law, but the question has not been raised or decided under the Malabar Law. In support of his contention Mr. Seetharama Rao referred us to Krishnan Nair v. Damodaran Nair 1916 Mad 751, in which it was decided that self-acquisitions of a female member of a Marummakkathayam tarwad do not lapse on her death to her tarwad, but descend to her tavazhi, which will be her issue if she has any, and in the absence of the issue her mother and her descendants. In this case, as pointed out by Sadasiva Ayyar, J., in Manjappa Ajri v. Marudevi hengsu 1917 Mad 270, and as will appear clearly from the judgment in the case itself, the learned Judges had in contemplation,
only two alternatives, namely, inheritance by all the members of the larger tarwad or inheritance by all the members of the smaller tavazhi and not a third alternative, namely, inheritance by those members only of the smaller tavazhi who were nearest in blood relationship to the deceased.
12. Having regard to the terms of reference to the Full Bench which was
whether the self acquisitions of a female member of a Marumakkathayam tarwad would on her death lapse to her tarwad of which she was a member or whether they would descend to her nearest heirs or her tavazhi,
13. Sankaran Nair, J., said the reference also suggests whether the nearest heirs take' and 'this, if intended to refer to a class of heirs other than the tavazhi may raise another question.' It is this observation which was made the basis of his argument by the learned Counsel; but in the judgment there is no further reference to it; and Sundara Ayyar, J., uses the expressions 'nearest heirs' and 'tavazhi' indiscriminately to mean the same thing. In Manjappa Ajri v. Marudevi hengsu 1917 Mad 270,
a female member of an Aliyasanthana family died issueless leaving self-acquired property. There was no issue of her mother then living, and the only relations the deceased left behind her were her own deceased mother's sister and the issue of another sister of her mother. It being contended that the sole heir was the deceased's mother's sister as being the nearest relation to her to the exclusion of the other members of the branch to which the deceased belonged at the time of her death, it was held that under Aliyasanthana Law all the members of the nearest non-extinct branch to which the issueless deceased belonged at the time of her death, (namely her maternal grandmother's descendants) were entitled to succeed and not only one of them, namely, her mother's sister who is nearer in degree than the others.
14. This decision is relied on by Mr. Ramachandra Ayyar to show that the nearness in degree of relationship is not countenanced by the Malabar Law in a case of collateral succession. Beyond milking this reference to the arguments ion this question I do not think it is necessary to deal with the point any further as in my opinion the respondents should not be allowed to raise this question which is altogether a new one at this late stage of the case. We should deal, with the case as it was dealt with throughout as if the property sought to be divided was the property which belonged to the tarwad of the plaintiffs and defendants, the question being whether in partitioning them the division should be per stirpes or per capita. The difficulty in accepting Mr. Seetharama Rao's contention that division should be per stirpes is that defendant 2 cannot constitute a tavazhi by himself:
A tavazhi means a woman and her descendants in the female line.... A female without issue or a male belongs to the tavazhi consisting of his or her mother and the mother's descendants in the female line; and when it is said that the property of that person descends to his or her tavazhi, it is meant that it devolves on this body of persons : See Krishnan Nair v. Damodaran Nair 1916 Mad 751.
15. If the appellants' contention is accepted, then it will follow that the one-third share which is claimed to be his portion of the properties will not go exclusively to himself but will have to be shared with a body of persons stated above as constituting his tavazhi. This conclusion is not acceptable to defendant. The law is well settled that the properties of a Malabar tarward belong to all the members constituting the tarwad. Each member of the tarwad is a co-owner of the properties along with the other members and on this co-ownership depends amongst other rights his right to be maintained by the karnavan and his right to a share of the properties if a partition were made and the tarwad is broken up by common consent. In suits for maintenance each individual can claim maintenance for himself or herself and as a rule a per capita share is allowed to the claimant by the Court. If the right to partition is based on co-ownership of the tarwad properties, then I fail to see how on principle such co-ownership can be enforced except by ordering per capita partition as is done in the case of maintenance. Partition according to the tavazhies being fraught with difficulties with respect to a male who cannot be the root of a tavazhi, as in the present case, the only alternative is to hold that partition of the tarwad properties should be per capita. And this was the opinion of the learned Subordinate Judge. On principle we cannot see any escape from this conclusion. In the Cochin report on Marumakkathayam Legislation it is stated that according to the customary law partition is per capita and not per stirpes : See para. 157 at p. 41 of the Report of the Nair Regulation Committee (1095). In the absence of any binding decision of this Court we hold that the plaintiffs are entitled to claim partition per capita.
16. For the above reasons we set aside the decision of the learned Judge and restore that of the Subordinate Judge. The plaintiffs will get all their costs in the High Court.
Anantakrishna Ayyar, J.
17. I agree. Kummini Nethiar was divided from her elder sister Ittyachi Nethiar. Kummini had two daughters - (defendant 1 and plaintiff 1 - and one son - (defendant 2). Defendants 3, 4 and 5 are the children of defendant 1, and defendants 6 to 10 are the children of defendant 4. Plaintiffs 2, 5, 6 and the mother of plaintiffs 3 and 10 to 13 are the children of plaintiff 1, the other plaintiff's 4 and 7 to 9 are the children of plaintiff 5, and plaintiffs 14 to 16 are the children of plaintiff 6. Kummini Nethiar is dead. Ittayachi died leaving her daughter, Kunhu Nethiar. In 1920, Kunhu Nethiar died leaving some property, and the question is which of the parties to the present suit are entitled to the same. Kummini Nethiar died before 1908. In 1908 the plaintiffs and the defendants divided the properties of their tarwad among members of three branches consisting of (a) plaintiff; (b) defendants 1 and 3 to 10; and (c) defendant 2. The partition was effected on per capita basis; defendant 2 was given one share; the plaintiff's were given as many shares as there were members in their branch, and so also defendants 1 and 3 to 10. Kunhu Nethiar died in 1920.
18. The plaintiffs stated that they - sixteen in number - and the defendants - ten in number - in all 26, were equally entitled to Kunhu Nethiar's properties; and in the plaint the plaintiffs asked for partition and delivery to them of their 16/26 shares in the property of Kunhu Nethiar. The written statement filed by defendant 1 stated that the heirs of Kunhu Nethiar wore the three divided Tavazhies, namely, (a) that of the plaintiffs; (b)that of defendants 1 and 3 to 10; and (o) that of defendant 2, and that the plaintiff's were entitled only to one-third share of the properties left by Kunhu Nethiar and not to 16/26. Defendant 2 raised exactly similar contentions, adopting defendant l's written statement. The learned District Munsif held that the plaintiff's were not entitled to division on per capita basis, and that the proper mode of division was per stirpes; that is, one share to the plaintiffs group, the 2nd to the group of defendants 1 and 3 to 10, and 3rd to defendant 2 who is the sole member of his Tavazhi. On plaintiffs' appeal, the learned Subordinate Judge held that the plaintiffs were entitled to a division on per capita basis, and hold that the plaintiffs were entitled to a division of 16/26 shares of the properties and not to one-third therein. Defendant 2 preferred S.A. No. 7.1.3 of 1930 and the learned Judge of this Court held as follows:
The principle I propose to follow is that in the absence of an agreement or of specific proof of the custom to the contrary, the division must be on per stirpes.
19. The decree of the District Munsif was accordingly restored. The learned Judge granted leave to appeal, having regard to the importance of the question, and the plaintiffs have preferred this Letters. Patent Appeal. The learned Advocate for defendant 2 wanted to raise the question that the principle of propinquity should govern the present case and that the heirs of Kunhu Nethiar's properties would be only defendant 1, plaintiff 1 and defendant 2, they being the members nearest related to the deceased Kunhu Nethiar; but in the written statements filed by both defendants 1 and 2, it was admitted that the heirs of Kunhu Nethiar were the three divided Tavazhies, namely, (a) that of the plaintiffs; (b) that of defendants 1 and 3 to-10; and (c) that of defendant 2; and that the properties left by Kunhu Nethiar belonged equally to the three tavazhies. Before the learned Judge of this Court a similar admission was evidently made, for the learned Judge specifically stated in his judgment as follows:
The property of that Tavazhi-(Kunhu Nethiar's Tavazhi), it is not disputed, devolves upon the three branches (branches of plaintiff 1, defendant 1 and defendant 2).
20. That being so, we do not think it right at this stage to allow the defendants to raise a new case in Letters Patent Appeal, namely, that succession in this case should be governed by the principle of propinquity or nearness, and that only plaintiff 1, defendant 1 and defendant 2 would be entitled to succeed as heirs. No doubt the learned Advocate for defendant 2 also stated that plaintiff 1 might take her one-third share on behalf of her tavazhi (descendants) and that similarly defendant 1 might take her one-third share on behalf of her tavazhi (descendants); but seeing that the case before us is one of collateral succession (as understood in Hindu Law) and not of direct succession it is difficult to understand how the principle of representation comes in at all in such a case,, since, admittedly, no such principle of representation would apply to cases of collateral succession under Hindu Law. Again, seeing that defendant 2 is a male and his mother died many years before Kunhu Nethiar, it is not clear how defendant 2 could be said to constitute by himself a 'tavazhi.' Under Marumakkathayam Law, a female and her children would form a tavazhi, and the only tavazhi of a male is that of his mother.
21. In the present case, defendant 2'a mother is dead and defendant 2's mother's tavazhi would include plaintiff 1 and defendant 1 and their descendants. I therefore share 'the theoretical difficulty' experienced by the learned Judge of this Court, in regarding defendant 2 as forming a 'tavazhi'. But as noticed by the learned Judge, it was admitted by all parties to the present suit that defendant 2 was entitled to a share, though the exact extent of the said share was in dispute. In the circumstances, in my opinion, defendant 2 should not be allowed to raise quite a new point at the hearing of this Letters Patent Appeal, different from the case of the parties in all the earlier stages of this litigation. At p. 53 of Krishnan Nair v. Damodaran Nair 1916 Mad 751. Sankaran Nair, J. observed as follows:
The reference also suggests whether the nearest heirs take. This, if intended to refer to a class of heirs other than the tavazhi, may raise another question.
22. The exact question had not to be decided in that case, as the plaintiffs in that suit should fail unless the tarwad be the heir. In the circumstances of the present case, and for reasons mentioned above, the question formulated above need not be answered in the present appeal. The facts not being in dispute, the only question is in what way the properties should be divided. There are no specific texts governing the rights of parties to the present suit. As observed by the Privy Council in the case reported in Raman Menon v. Raman Menon (1901)24 Mad. 73 ,
the litigation is between Nayars in South Malabar and has to be decided according to the laws and usages of those persons. Those laws and usages are very peculiar; some of them are so well established as to be judicially noticed without proof. But others of them are still in that stage in which proof of them is required before they can be judicially recognized and enforced.
23. We are therefore to be guided by judicial decisions and the customs and usages of the people concerned. In Raman Menon v. raman Menon (1901)24 Mad. 73 a Full Bench of this Court held that
self acquisitions of a female member of a Marumakkathayam tarwad do not lapse on her death to her tarwad, but descend to her tavazhi, which will be her issue if she has any, and in the absence of the issue will be her mother and her descendants.
24. Sir Ralph Benson, Kt. Officiating Chief Justice, hold that
in the absence of issue to her, the property would descend to the tavazhi to which she would in that case belong, according to the customary law of Malabar.
25. Sundara Ayyar, J. held that
the self acquisitions of a female would descend to her nearest heirs or to her tavazhi.
26. Sadasiva Ayyar, J. had to consider in Manjappa Ajri v. Marudevi hengsu 1917 Mad 270, as to what exactly was the effect of Sundara Ayyar J's. opinion in the case reported in Krishnan Nair v. Damodaran Nair 1916 Mad 751. of Manjappa Ajri v. Marudevi hengsu 1917 Mad 270 Sadasiva Ayyar, J. stated as follows:
I am reasonably clear that we had in contemplation only two alternatives, namely inheritance by all the members of the larger tarwad or inheritance by all the members of the smaller tavazhi, and not a third alternative, namely inheritance by those members only of the smaller tavazhi who were nearest in blood relationship to the deceased.
27. Sankaran Nair, J. however at p. 53 says:
The reference also suggests whether the nearest heirs take. This, if intended to refer to a class of heirs other than the tavazhi, may raise another question.
28. He however did not deem it necessary to decide that question and his answer to the reference is
that the self-acquisitions of a female do not lapse to her tarwad but they descend to her tavazhi; if she has no issue her mother and her descendants form her tavazhi.
29. Sundara Ayyar and Benson, JJ., did not understand the referring order as raising any third question, and Sundara Ayyar, J. uses the expression nearest heirs' and 'tavazhi' indiscriminately to mean the same thing. If that be so, I may even take it, that according to the decision of the Full Bench, in the absence of issue, the nearest tavazhi of Kunhu Nethiar would take the property. The nearest tavazhi of Kunhu Nethiar would be the tavazhi of her mother's younger sister, Kummini Nethiar, in which case all the parties to the present suit would be members of that tavazhi. Does the circumstance that Kummini Nethiar's children were divided from each other at the death of Kunhu Nethiar make any difference? The nearest tavazhi of Kunhu Nethiar succeeds. If defendant l's and plaintiff l's be taken to be the two nearest tavazhies to Kunhu Nethiar, then only the tavazhies of defendant 1 and plaintiff 1 would succeed; defendant 2, a male, whose mother was dead, could not, apparently, have a tavazhi of his own. So defendant 2 could not succeed to Kunhu Nethiar's properties if this view be correct; but all the parties to the present litigation have admitted in all the Courts that defendant 2 is entitled to a share, though there is dispute as to the quantum of that share. Therefore on the case and admission of the parties, the properties of Kunhu Nethiar belong to persons who are no longer members of one tavazhi, or to members of two tavazhies and to another (defendant 2). How is the property to be divided among such people? If they do not all belong to one tavazhi, then, the rule of impartibility attaching to Marumakkathayam property should not be invoked. All parties to the suit want partition.
30. Defendant 2 should be given some share, and therefore the just and proper way to do it would be to treat all persons interested as co-owners or tenants-in-common, and divide the property equally among all the members, of course leaving it to them to take their shares joint (inter se) with any other members they like. Taking it however that the properties of Kunhu Nethiar devolved on plaintiff 1, and her children, defendant 1 and her children, and also defendant 2, treating them as members of a tavazhi or tarwad, how is the partition to be effected? There could not be partition of the properties of a Marumakkathayam tarwad, except with the consent of all : See Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 and Sulaiman v. Biyaththumma 1916 P.C. 217. It was however argued that when partition takes place it should only be on per stirpes basis and that partition should not be on per capita basis. The decision in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 was strongly relied on for that position. As I read that judgment, it only decided that when a partition was effected with the consent of all the adult members of a Marumakkathayam tarwad, it was not open to a member who was minor at that time to impugn that partition on the mere ground that partition was effected on per stirpes and not on per capita basis and that such minor member could not upset the partition if it was bona fide entered into by all the adult members of the tavazhi.
31. In another case, Appeal No. 237 of 1918 decided by Sir John Wallis, C.J. and Krishnan, J., a minor member sought to sot aside a partition entered into by all the adult members, on the sole ground that division was made per capita. The Court held that if the partition was a bona fide arrangement come to by all the adult members of the tarwad, it could not be set aside by a minor member on that sole ground. The result is that a bona fide partition arrangement would be upheld, if assented to by all the adult members of the tarwad, whether the scheme of division be per stirpes or per capita. The decision of the Privy Council in Sulaiman v. Biyaththumma 1916 P.C. 217, in my opinion, is not against this view. The Privy Council had to construe the karar in that case and the observations of their Lordships have to be understood with reference to the facts of that case where there were three branches, one of which was given two shares, another three shares and the third four shares having regard to the number of members of each branch. I do not understand the Privy Council to have decided that partition in Marumakkathayam tarwad should be on per stirpes basis only.
32. When it is admitted that the properties of a tarwad or tavazhi should be divided, and the only question is whether the division would be per capita or per stirpes, the following circumstances should be kept in view. It has been decided that all the members of the tarwad are co-owners of the tarwad property. The senior most male is entitled to succeed to karnavanship, and in the absence of adult male, the senior-most female would be the karnavathi. In deciding on the rights of members to' maintenance, the income of the tarwad property and the number of members in the whole tarwad are taken as the main considerations to be kept in view. The children of one sister are not given a lower rate of maintenance because they exceed in number the children of another. All members are equally interested in taking steps to preserve the tarwad property. It would therefore seem to follow that prima facie when division has to take place, it should be per capita, unless all persons interested agree to another mode of division.
33. As observed by the Privy Council in the case reported in Balabux v. Rukhmabai (1903) 30 Cal. 725, the separation of one member from a joint Hindu family does not imply that, all the other members necessarily become separated from one another inter se. There is no presumption either way. It is open to all the other members to remain joint or to some of them only to remain joint: see Mulla's Hindu Law, Edn. 7, para. 328. Similarly, it is open to the members of a Marumakkathayam tarwad also, when a partition takes place, to elect for some members remaining joint. They need not necessarily be the children of one female; though (usually, persons forming members of one tavazhi or tarwad being descendants of one female generally elect to remain joint though separated from the others. Thus, though in practice when a partition takes place, the children of one female remain joint with that female but separate from the others, and the shares of that female and her children are kepi, undivided as among themselves, yet, in fixing the number of shares, the principle of division per capita is the principle that is generally followed.
34. With due respect, I am not able to follow the observations to the contrary of Mr. Strange in his Manual of Hindu Law and of Mr. Ormsby in his Marumakkathayam Law. No doubt, in one Sense, the observations may be correct namely that the shares of the members of one tavazhi are all held by them together oven after partition, and the property of the original tarwad will generally be held by a number of tavazhies after the partition. That circumstance would have been noticed by those learned authors; and probably they did not mean anything more; but if they mean to go further and state that the division is not on per capita basis, I am unable to agree with them. The question was not raised in Chathanth Illuvapadi Ammu v. Chathnath Kunhunni Menon : (1894)4MLJ43 . In Buchanan's Travels - (Vol. II Oanara and Malabar, p. 96), it is remarked:
A man's movable property after death is divided equally among the sons and daughters of nil his sisters. His landed estate is managed by the eldest male of the family, but each individual has a right to a share of the income. (Vol. II, p. 96): see Moore's Malabar Law, pp. 176 and 177.
35. All the recent writers are agreed that flu; existing practice in a partition is to calculate shares per capita. I may also state that 1 have come across several cases of partition in Marumakkathayam tarwads. Far from the principle of per capita being disregarded, it is followed to such an extent that when a female member was in the family way when the partition arrangement is being settled, she is allotted another extra share for the child in her womb. This is considered quite natural, just and proper,, and the claim is not at all considered extraordinary. I very respectfully agrees with the remarks made by Sundara Ayyar, J., in his article, Topics of Malabar Law, in Mahomed Rowthan v. Mahomed Husain Row than (1899) 22 Mad. 337 (journal portion). The observations to the contrary in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 are merely obiter, and, with all respect, I feel myself unable to follow the same. For the-above reasons, I think that the division in the present case should be on per capita basis. In my opinion the Letters-Patent Appeal should be allowed, and the decision of the learned Subordinate Judge restored, with all costs in the High Court.