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 Neithiar who was the last member of a tarwad. The relationship of the parties will appear from the following genealogical table found in the Munsif's Judgment.
Ittiyachi Nethiar Kummini Nethiar
Kunhu Nethiar. |
| | |
1st 1st 2nd
defendant plaintiff defendant.
| | | | |
| 2nd 5th 6th Kunhikavu
| plaintiff plaintiff plaintiff Nethiar
| | | |
| plaintiffs plaintiffs plaintiffs
| Nos. NOS. NOS.
| 4 and 7 14 to 16. 3 and 10
| to 9. to 13.
| | |
3rd 4th 5th
defendant defendant defendant
Nos 6 to 10.
2. The plaintiffs and defendants Nos. 1 to 10 are the descendantsof Kummini Nethiar who was the deceased Kunhi Nethiar's mother's sister. Kummini Nethiar died leaving three children, the 1st defendant and the 1st plaintiff, daughters, and the 2nd defendant, a son. First defendant's descendants are defendants Nos. 3, 4,5 and 6 to 10. The 1st plaintiff's descendants are plaintiffs Nos. 2, 5, 6, 4, 7 to 9, 14 to 16, 3 and 10 to 13. The descendants of Kummini Netheiar devided themselves on per capita basis into three branches consisting of the plaintiffs, defendants Nos. 1 and 3 to 10 and the 2nd defendant 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 tavazhies 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 Nos. 1 and 3 to 10 and the 2nd defendant claimed that the properties should be divided into 3 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. 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.
5. The variations of opinion noted above shows 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 Narain Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 that
The authorities show conclusively that partition per stirpes, or, what comes to the same thing, partition by tavazhies, 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 was only this, that a partition which was effected with the consent of all the adult members cannot be said to prejudice those who were 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 Veluthakkal Cherudevi v. Veluthakkal Tarwad Karnavan Kelappan Nair 34 Ind. Cas. 818 : (1917) 31 MLJ 879 : (1917) MWN 106 and Ramamurthi v. Yechuri Ramamma 33 Ind. Cas. 961 : 30 MLJ 308 : 3 LW 322. In the former case Sankaran Nair, J, ovserved:
Such a partition would ordinarily be binding on 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 cnce 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 Naraini Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 referred to in their judgment:
The appellants contended that the partition was improper because the division was per capita when it should have been 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 in 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 per 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 Naraini Kutti Amma v. Achuta Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 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. No. 656 of 1922. In that case the observations already quoted from Naraini Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 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 Naraini Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 did not mean any such thing. In Sulaiman v. Bugeththumma 39 Ind. Cas. 243 : 32 MLJ 137 : (1917) MWN 213 : 1 PLW 210 : 21 MLT 213 : 25 CLJ 273 : 21 CWN 553 : 19 Bom. LR 439 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 member of any one class, it is capital.'
10. These 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.' XLII in the suit. The decision in Chathnath Iluvapadi Ammu v. Chathnath Kunhunni 4 MLJ 43 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 (page 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 were examined by Sundara Ayyar. J., in an article on 'Topics of Malabar Law' appearing in 9 M.L.J. 135 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 thavazies or branches of the family does not mean necessarily that the property given to the members of the thavazies 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 due 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 the 1st defendant, the 1st plaintiff and the 2nd defendant 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 con tention Mr. Seetharama Rao referred us to in Krishna Nair v. Damodarram Nair 17 Ind. Cas. 769 : 38 M 48 : 13 MLT 166 : 24 MLJ 240 in which it was decided 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 her mother and her descendants. In this case, as pointed out by Sadasivier J., in Manjappa Ajiri v. Marudevi Hengsu 32 Ind. Cas. 165 : 39 M 12 : 30 MLJ 204 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-acquisions of a female member of a Marumakkatayam tarwad would, on her death, lapse to her tarwad of which she was a member or whether they would descend to her nearest heirs (the talics are mine) 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.
14. 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 Ajiri v. Marudevi Hengsu 32 Ind. Cas. 165 : 39 M 12 : 30 MLJ 204 a female member of an Aliyasantana 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 Aliyasantana 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. This decision is relied on by Mr. Ramachandra Ayyar to show that nearness in degree of relationship is not countenanced by the Malabar law in a case of collateral succession. Beyond making this reference to the arguments on 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.
15. 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 the 2nd defendant 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 he 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 Krishna Nair v. Damodarram Nair 17 Ind. Cas. 769 : 38 M 48 : 13 MLT 166 : 24 MLJ 240.
16. 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 the 2nd defendant. The law is well settled that the properties of a Malabar tarwad 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 tavazhies being fraught with difficulties with respect to a male who cannot be the root of 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 Marumattayam 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.
17. 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.
18. I agree.
19. Kummini Neithier was divided from her elder sister It tyachi Nethiar. Kummini had two daughters (the 1st defendant and the 1st plaintiff) and one son (the 2nd defendant). Defendants Nos. 3, 4 and 5 are the children of the 1st defendant, and defendants Nos. 6 to 10 are the children of the 4th defendant. Plaintiffs Nos. 2, 5, 6 and the mother of plaintiffs Nos. 3 and 10 to 13 are the children of the 1st plaintiff the other plaintiffs Nos. 4 and 7 to 9 are the children of the 5th plaintiff, and plaintiffs Nos. 14 to 16 are the children of the 6th plaintiff. Kummini Nethiar is dead. Ittyachi 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) plaintiffs; (6) defendants Nos. 1 and 3 to 10, and (c) the 2nd defendant. The partition was effected on per capita basis, the 2nd defendant was given one share, the plaintiffs were given as many shares as there were members in their branch, and so also defendants Nos. 1 and 3 to 10. Kunhu Nethiar died in 1920.
20. The plaintiffs stated that they--sixteen in number and the defendants No. 10 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.
21. The written statement filed by the 1st defendant stated that the heirs of Kunhu Nethiar were the three divided tavazhis, namely, (a) that of the plaintiffs, (6) that of defendants Nos. 1 and 3 to 10, and (c) that of the 2nd defendant, and that the plaintiffs were entitled only to one-third share of the properties left by Kunhu Nethiar and not to 16/26.
22. The second defendant raised exactly similar contentions, adopting 1st defendant's written statement.
23. The learned District Munsif held that the plaintiffs 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 Nos. 1 and 3 to 10, and the 3rd to the 2nd defendant who is the sole member of his tavazhi.
24. On plaintiffs' appeal, the learned Subordinate Judge held that the plaintiffs were entitled to a division on per capita basis, and held that the plaintiffs were entitled to a division of 16/26 shares of the properties and not to one-third therein.
25. The 2nd defendant preferred S.A. No. 713 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 stripes
26. 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.
27. The learned Advocate for the 2nd defendant wanted to raise the question that the principle of propinquith should govern the present case and that the heirs to Kunhu Nethiar's properties would be only the 1st defendant, the 1st plaintiff and the 2nd defendant, they being the members nearest related to the deceased Kunhu Nethiar; but in the written statements filed by both the 1st and 2nd defendants, it was admitted that the heirs of Kunhu Nethiar were the three divided tavazhis namely, (a) that of plaintiffs, (b) that of defendants Nos. 1 and 3 to 10, and (c) that of the 2nd defendant, and that the properties left by Kunhu Nethiar belonged equally to the three tavazhis. Before the learned Judge of thi 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 the 1st plaintiff, the 1st defendant and the 2nd defendant).
28. 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 proprinquity or nearness, and that only the 1st plaintiff, the 1st defendant and the 2nd defendant would be entitled to succeed as heirs. No doubt the learned Advocate for the 2nd defendant also stated that the 1st plaintiff might take her one-third share on behalf of her tavazhi (descendants) and that similarly the 1st defendant 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 the 2nd defendant is a male and his mother died many years before Kunhu Nethiar, it is not clear how the 2nd defendant could be said to constitute by himself a 'tavazhi'. Under Marumakkattayam Law, a female and her children would form a tavazhi, and the only tavazhi of a male is that of his mother. In the present case, the 2nd defendant's mother is dead and the 2nd defendant's mother's tavazhi would include the 1st plaintiff and the 1st defendant and their descendants. I therefore share the theoretical difficulty experienced by the learned Judge of this Court, in regarding the 2nd defendant as forming a 'tavazhi. But as noticed by the learned Judge, it was admitted by all parties to the present suit that the 2nd defendant was entitled to a share, though the exact extent of the said share was in dispute. In the circumstances, in my opinion, the 2nd defendant 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.
29. At p. 53 of 38 M. [Krishna Nair v. Damodaran Nair 17 Ind. Cas. 769 : 38 M 48 : 13 MLT 166 : 24 MLJ 240] Justice Sankaran Nair 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.
30. 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.
31. The facts not being in dispute, the only question is in what way the properties should be divided.
32. There are no specific Texts governing the rights of parties to the present suit. As observed by the Privy Council in the case reported as Raman Menon v. Raman Menon 24 M 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.
33. We are therefore to be guided by judicial decisions and the customs and usages of the people concerned.
34. In Krishna Nair v. Damodaran Nair 17 Ind. Cas. 769 : 38 M 48 : 13 MLT 166 : 24 MLJ 240 a Full Bench of this Court held that
the self acquisitions of a female member of a Marumakkatayam 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.
35. Sir Ralph Benson, Kt., Officiating Chief Justice held 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.
36. Justice Sundara Ayyar held that
the self acquisitions of a female would descend to her nearest heirs or to her tavazhi
37. Justice Sadasiva Ayyar had to consider in Manjappa Ajiri v. Marudevi Hengsu 32 Ind. Cas. 165 : 39 M 12 : 30 MLJ 204 as to what exactly was the effect of Justice Sundara Ayyar's opinion in the case reported as Manjappa Ajiri v. Marudei Hengsu 32 Ind. Cas. 165 : 39 M 12 : 30 MLJ 204.
38. At page 16 of 39 M. [Manjappa Ajiri v. Marudevi Hengsu 32 Ind. Cas. 165 : 39 M 12 : 30 MLJ 204 Justice Sadasiva Ayyar 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.
39. 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
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 issue, the tavazhi is composed of that issue, if she has no issue, her mother and her descendants form her tavazhi,
40. 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.'
41. 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 tavqzhi 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 the first defendant's and the first plaintiff's be taken to be the two nearest tavazhis to Kunhu Nethiar, then only the tavazhis of the first defendant and the first plaintiff would succeed: the second defendant, a male, whose mother was dead, could not, apparently, have a tavazhi of his own. Bo the second defendant 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 the second defendant 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 tavazhis and to another (the second defendant). 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 Marumakkatayam property should not be invoked. All parties to the suit want partition. The second defendant 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--9, 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 the first plaintiff and her children, the first defendant and her children, and also the second defendant, 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 Marumakkatayam tarwad, except with the consent of all. See Naraini Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 and Sulaimanv. Bugethumma 39 Ind. Cas. 243 : 32 MLJ 137 : (1917) MWN 213 : 1 PLW 210 : 21 MLT 213 : 25 CLJ 273 : 21 CWN 553 : 19 Bom. LR 439 (PC.). 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 Naraini Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529 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 Marumakkatayam 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 should not upset the partition, if it was bona fide entered into by all the adult members of the tavazhi. In another case, Appeal No. 237 of 1918 decided by Sir John Wallis C.J., and Krishnan, J., a minor member sought to set 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. Bigethumma 39 Ind. Cas. 243 : 32 MLJ 137 : (1917) MWN 213 : 1 PLW 210 : 21 MLT 213 : 25 CLJ 273 : 21 CWN 553 : 19 Bom. LR 439, 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 3 shares and the third 4 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.
42. 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 a tarwad are co-owners of the tarwad property. The seniormost male is entitled to succeed to karnavanship, and in the absence of adult males, the seniormost 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 maintanance 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.
43. As observed by the Privy Council in the case reported as Balabux v. Rukhmabai 30 C 725 : 30 IA 130 : 5 Bom. LR 469 : 8 Sar. 470 : 7 CWN 642 the separation of one member from a joint Hindu family does not imply that all the other members necessarily become separated from 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, Seventh edition, para. 328. Similarly, it is open to the members of a Marumakkattayam tarwad also, when a partition takes place, to elect for some members remaining joint. They need not necessarily be the children of the 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 kept undivided as among themselves, yet, in fixing the number of shares, the principle of division per capita is the principle that is generally followed. 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 Marumakkatayam 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 even after partition, and the property of the original tarwad will generally be held by a member of tavazhis after the partition. That circumstance would have been noticed by those learned authors; and probably they did not mean anything more; but if they meant to go further and state that the division is not on per capita basis, 1. am unable to agree with them. The question was not raised in Chathnath IluvapadiAmmu v. Chathnath Kunhunni Menon 4 MLJ 43. In Buchanan's travels (Vo1. II--Canara and Malabar p. 96), it is remarked
A man's movable property after death is divided equally among the sous and daughters of all his sisters. His lauded estato 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.
44. All the recent writers are agreed that the existing practice in a partition is to calculate shares per capita. 1 may also state that I have come across several cases of partition in Marumakkatayam tarwads. Far from the principle of per capita being disregarded, it is followed to such an extent that when a female member was in her 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 claims not at all considered extraordinary. I very respectfully agree with the remarks made by Mr. Justice Sundara Ayyar in his Article--'Topics on Malabar Law' in 9 Madras Law Journal 139 (journal portion). The observations to the contrary in Naraini Kutti Amma v. Achutan Kutti Nair 51 Ind. Cas. 10 : 42 M 292 : 25 MLT 83 : 36 MLJ 529. are merely obiter and with all respect, I feel myself unable to follow the same.
45. 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.