Kesavan Sadasivan v. Kesavan Sivanandan — 1955 DIGILAW 167 (KER)

Judgment :- 1. This appeal is directed against the preliminary decree passed by the lower court in O.S. No. 247 of 1122 on its file. It is a suit for partition of the plaint properties which are claimed to be the assets left by one Velayudhan Kesavan at the time of his death which was subsequent to the coming into force of the Travancore Ezhava Act (Act III of 1100). He had two wives of whom the first died prior to the institution of the present suit. The children born to her by Velayudhan Kesavan are defendants 1 to 3. The second wife is the 8th plaintiff and the children born to her by Velayudhan Kesavan are plaintiffs 1 to 7. Defendants 4 to 35 are the seshakkars of the said Kesavan. It is agreed on all hands that Velayudhan Kesavan was a misradayi Ezahva and that he had got himself exempted from the operation of the provisions of Part IV of the Ezhava Act. The result was that in the matter of intestate succession he was governed by the misradayam or mixed system of inheritance which was in force at the time of passing of the Ezhava Act. Under that system one-half of the assets left by a misradayi Ezhava would devolve on his wife and children, while the other half would devolve on his seshakkars or marumakkathayam heirs. That a half-share in the plaint properties should go to defendants 4 to 35 as the Marumakkathayam heirs of Velayudhan Kesavan, is not disputed. The controversy is only about the manner in which the remaining portion is to be shared by the Makkathayam heirs who are plaintiffs 1 to 8 and defendants 1 to 3. 2. According to the plaintiffs the division of this half-share should be on a per capita basis and that the plaintiffs are entitled to get 8/11 share of the half-share due to the Makkathayam heirs. The position taken up by defendants 1 to 3 is that as per the special custom that prevailed among misradayis each of the wives of a deceased misradayi Ezhava, along with the children born to her from him, will get an equal share in the half-share of his assets. The lower court found that there existed such a custom having the force of law, and thus upheld the contention put forward by defendants 1 to 3. The lower court found that there existed such a custom having the force of law, and thus upheld the contention put forward by defendants 1 to 3. Accordingly, a preliminary decree was passed, directing a partition of the suit properties and allotting one-half share to the group of defendants 4 to 35, one-fourth share to the group represented by plaintiffs 1 to 8 and the remaining one-fourth share to the group represented by defendants 1 to 3. Not satisfied with such a decree, the plaintiffs have preferred this appeal, re-iterating their claim that they are entitled to get 8/11 shares out of the half-share due to the Makkathayam heirs of Velayudhan Kesavan. 3. The Division Bench before which this case came up for hearing, passed the following order referring the case to a Full Bench:- "The appeal raises interesting questions relating to the interpretation of certain sections of the Ezhava Act. The decision will have far-reaching effects on the line of devolution of certain types of properties left behind by an Ezhava who followed the mixed system of inheritance. The case is, therefore, referred for decision by a Full Bench." 4. At the final hearing of the appeal the two points urged on behalf of the appellants were (1) that there is no satisfactory proof about the special custom pleaded by defendants 1 to 3 and the same cannot be judicially recognised and given effect to, and (2) that even if such a custom existed, its legal effect must be taken to have been abrogated by S.32 of the Ezhava Act and hence partition has to be ordered as per the terms of that section. 5. That the custom as pleaded by defendants 1 to 3 did exist among the misradayai Ezhavas in the Trivandrum District, was judicially recognised as early as in the year 1067 by the Travancore High Court, as is evident from the ruling in Aratha Mathevi v. Kumaran Mathevan (9 T.L.R. 104). Just as in the present suit, the dispute in Aratha Mathevi v. Kumaran Mathevan was also between the children of the two wives of a deceased misradayi Ezhava in the matter of sharing the half-share of his assets inherited by them on his death. Both the wives had predeceased the husband. The first wife had left only one child, while the second wife had left 7 children. Both the wives had predeceased the husband. The first wife had left only one child, while the second wife had left 7 children. The specific question that arose for decision in that case was whether the half-share inherited by these children, was to be equally shared by all the 8 of them or, whether the division should be on the basis of pathnibhaga i.e., division according to the number of wives which the deceased had. The matter was elaborately enquired into for the purpose of finding out the exact custom that was being followed by the misradayi Ezhava in the Trivandrum District. On the evidence recorded it was definitely found that the existence of a custom recognising equal rights for the group represented by each of the wives of a deceased misradayi Ezhava in the assets left by him, was clearly proved. The legal force of such a custom was also recognised in that case and accordingly it was ruled that the division should be on the basis of the number of wives which the deceased had. The result was that the only child of the first wife was held to be entitled to a share equal to that taken by the other seven children born to the second wife. After thus recognising the custom of Pathnibhagom, the learned judges proceeded to examine the origin of such a custom and stated as follows: "The reason upon which the widow of an Ezhava claims one-half of his acquisitions, is that the acquisitions are the fruits of the joint labour of the wife and the husband. The fruits of the labour of each wife should go to the children of that wife and not also to those of another wife". This theory as to the origin of the custom of Pathnibhagom has been adversely commented upon in subsequent cases where the question of the customary law governing misradayi Ezhavas had come up for consideration. In Mada Panchami v. Kali Aruvi (11 T.L.R. 167) reference was made to the decision in Aratha Mathevi v. Kumaran Mathevan (9 T.L.R. 104). This theory as to the origin of the custom of Pathnibhagom has been adversely commented upon in subsequent cases where the question of the customary law governing misradayi Ezhavas had come up for consideration. In Mada Panchami v. Kali Aruvi (11 T.L.R. 167) reference was made to the decision in Aratha Mathevi v. Kumaran Mathevan (9 T.L.R. 104). Though the correctness of that decision was not doubted, the theory propounded as to the origin of the custom upheld in that case was critcised as being a mere guess and it was pointed out that: "the origin of the right may, with equal force be attributed to the natural obligation of every person to support his wife and children". It was further held that the wife and children of a miradayi Ezhava are entitled to a moiety of his self-acquisitions, whether such acquisitions were made before or after the marriage. The question again came up for consideration in Vairavan v. Narayanan (2 T.L.J. 385) and there it was observed as follows: "on the authorities it was by no means certain that the foundation of the children's right of inheritance among misravazhi Ezhavas was the alleged theory of the joint character of the acquisitions made by the father, and that it was unsafe to build on such uncertain foundation, and stretch the right of the children in such a way as to conflict with the ordinary principles of all system of law according to which a man's self-acquisitions are absolutely at his disposal during his life-time". In Kochen Raman v. Narayanan Kodhupotti (5 T.L.J. 183) a Full Bench of the Travancore High Court examined the nature and extent of the rights of the wife and children of a misradayi Ezhavas in the properties left by him at the time of his death. It was ruled in that case that the wife and children of a deceased Ezhava following the mixed system of inheritance are entitled to a moiety of his self-acquisitions by custom and that they get it by virtue of their relationship to the deceased. It was also held that the right is a vested, legal and transferrable right arising on the death of the husband or father, as the case may be. This right is not confined to the self-acquisitions of the deceased, but it extends to his separate properties also. It was also held that the right is a vested, legal and transferrable right arising on the death of the husband or father, as the case may be. This right is not confined to the self-acquisitions of the deceased, but it extends to his separate properties also. This position has been explained in Narayanan Pillai v. Pothikutty (18 T.L.J. 89). The question was again reviewed by a Full Bench of the Travancore High Court in Madhavan v. Chellamma (29 T.L.J. 266). In that case it was explained that the mixed system of inheritance followed by miradayi Ezhavas developed as a result of the modifications introduced into the Marumakkathayam law by force of certain customs consistently followed and adhered to by these people. It was also pointed out that the principles relating to the Marumakkathayam system of inheritance are fully applicable to miravazhi Ezhavas except with reference to the variations therefrom which have gained judicial recognition. One such variation consists in the right recognised in favour of the wife and children of a miradayi Ezhava to a moiety of all the properties which belonged to him at the time of his death, irrespective of any consideration whether they are his self-acquisitions or have been obtained in some other manner. The decision in Aratha Mathevi v. Kumaran Mathevan (9 T.L.R.104) also came up for review in that case and the theory propounded in Aratha Mathevi v. Kumaran Mathevan as to the origin of the custom which recognised the right of the wife to get a share in the assets of her deceased husband, was characterised as a mere speculation and discarded for that reason. All the same, the correctness of the decision in that case recognising the existence of the valid custom of Pathnibhagom was not doubted. In fact no decision has been brought to our notice wherein a different view was taken as to the custom prevailing among the misradayi Ezhavas of the Trivandrum District. All the same, the correctness of the decision in that case recognising the existence of the valid custom of Pathnibhagom was not doubted. In fact no decision has been brought to our notice wherein a different view was taken as to the custom prevailing among the misradayi Ezhavas of the Trivandrum District. The decision in Aratha Mathevi v. Kumaran Mathevan upholding the existence of such a valid custom among these people has stood the test of time all these years, and we see no reason not to apply that customary law in determining the mode of devolution of the estate left by Velayudhan Kesavan who had got himself exempted from the operation of Part IV of the Ezhava Act and had elected to be governed by the misravazhi system of inheritance. It is unnecessary to probe into the question as to how this custom originated. All that is necessary is to make out that a particular class of people was consistently adhering to such a custom for a fairly long period of time, so as to give it the force of law. If there is nothing immoral or opposed to public policy in such a custom, it will be recognised and enforced by courts of law. So far as this particular custom is concerned the recognition in that direction was given as early as in the year 1067. The system of division as per the custom of Pathnibhagom, is only a further development of the customary law which recognised that right of the wife and children to inherit a half-share of the assets left by a Ezhava who for other purposes, was governed by Marumakkathayam law. His Marumakkathayam heirs take the other half-share subject to all the incidents of tarwad property. It is only natural that the characteristic features of tarwad property were made to govern the half-share taken by the wife and children also. Until the passing of the Ezhava Act, polygamy was not considered an offence by the members of the Ezhava community and so there have been instances of such polygamous marriages among them. In the case of such a misradayi Ezhava a rule had to be evolved as to the mode in which the half-share of the assets left by him had to be apportioned among his wife and children consistent with the principles of Marumakkathayam law. In the case of such a misradayi Ezhava a rule had to be evolved as to the mode in which the half-share of the assets left by him had to be apportioned among his wife and children consistent with the principles of Marumakkathayam law. All the wives and children together could not form a sub-tarwad, though each of the wives together with her own children could form a separate sub-tarwad. Thus the several wives had to be treated as separate entities through whom separate and independent sub-tarwads could come into existence. This might have been the reason for recognising the division on the basis of the number of wives, at a time when the idea of dividing paternal acquisitions among all the children of a per capita basis was remote from the minds of these people. In course of time such a mode of division gained recognition as a valid custom, known as Pathnibhagom division. Defendants 1 to 3 have not rested their case solely on the decision in Aratha Mathevi v. Kumaran Mathevan (9 T.L.R. 104). They have produced the partition deed Ext. IV of the year 1095 executed by certain other misradayi Ezhavas of the locality in which Velayudhan Kesavan lived and died. The system of Pathnibhagom division is seen to have been accepted and given effect to in this partition deed. This is a strong piece of independent evidence to show that this particular custom had not been given up by the misradayi Ezhavas of this area even by that time. The 1st defendant as D.W.1 has also deposed to the existence of such a custom and his veracity has not been challenged in the cross-examination. It has also to be remembered that his evidence is in agreement with the documentary evidence already referred to. The lower court was therefore right in accepting his evidence as true and reliable. It may also be remembered that the plaintiffs have not been able to produce any satisfactory and convincing evidence to show that the custom of Pathnibhagom division was not in existence among the misradayi Ezhava of this particular area and that the half-share of the assets left by a deceased misradayi Ezhava used to be partitioned equally among all his wives and the children born to them. Thus on a consideration of the evidence on record in the light of the precedent afforded by Aratha Mathevi v. Kumaran Mathevan (T.L.R.104), we are in entire agreement with the lower court's conclusion that the custom of Pathnibhagom pleaded by defendants 1 to 3 has been established in this case and that one-half of the assets left by Velayudhan Kesavan devolved on his Makkathayam heirs in accordance with such a customary law which he preferred to follow by getting himself exempted from the operation of the provisions of Part IV of the Ezhava Act. 6. The next question for consideration is whether the customary law of pathnibhagom division lost its legal force by the enactment of S.32 in the Ezhava Act. This section occurs in Part VII of the Act dealing with partition of tarwad property and Makkathayam property. S.28 to 31 deal with partition of tarwad properties, and any tarwad desiring to get itself exempted from the operation of these provisions, could do so in the manner prescribed by S.33(1)(ii). It is not the case of any of the parties to this suit that their tarwad or the tarwad of Velayudhan Kesavan had thus been exempted. The properties involved in this suit are also not tarwad properties. But they are properties inherited from Velayudhan Kesavan by his two sets of heirs. S.32 of the Act is of general application and it is applicable to Marumakkathayee Ezhavas and misradayi Ezhavas alike. That section prescribes the mode in which Makkathayam property has to be partitioned. In sub-s. 11 of S.4 of the Act, Makkathayam property is defined as follows: "Makkathayam property" is property obtained from the husband or father by the wife or child or both of the by gift, inheritance or bequest." The half-share of the plaint properties is claimed by the Makkathayam heirs of Velayudhan Kesavan by way of inheritance from him and as such it comes within the definition of 'Makkathayam property'. S.32 runs as follows: "Except where a contrary intention is expressed in the instrument of gift or bequest, if any, Makkathayam property acquired after the date of passing of this Act, shall be divided among the wives and children in equal shares provided that in the partition of Makkathayam property the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself if alive would have taken". The position taken up by the plaintiffs is that this provision has to prevail as against the customary law of Pathnibhagom division invoked by defendants 1 to 3. Prima facie this contention would appear to be tenable; but, on probing a little deep its hollowness would be apparent. S.32 comes into play only after the parties concerned have acquired Makkathayam properties. Makkathayam properties may be acquired by way of gift, inheritance or bequest. The mode of inheritance may be in accordance with the provisions of Part IV of the Act in the case of those who have preferred to be governed by such provisions, or in accordance with the customary law that existed prior to the Act in the case of those who preferred to be governed by that law, by getting themselves exempted from the provisions of Part IV of the Act. Partition under S.32 is different from inheritance as per the provisions of Part I or as per the pre-existing customary law. There is no difficulty in harmonising the provisions relating to inheritance and the provision contained in S.82 relating to partition. In enacting a law the Legislature must be taken to have intended that the different sections of the same statute should have their due force and significance. It will not be fair to the Legislature to construe a particular section in such a way as to take away the effect or to be in conflict with an earlier section in the same statute. Both the sections must, if possible, be so construed as to avoid any possible conflict or inconsistency. These principles have to be borne in mind in examining the scope and purport of S.15 occurring in Part IV of the Ezhava Act and S.32 of the same Act. 7. Under S.15 dealing with intestate succession the mother of the deceased Ezhava male comes in as an heir along with his widow and children. In the partition of Makkathayam property, as contemplated by S.32, the only sharers recognised are the wife and children of the person from whom such Makkathayam property was acquired. This shows that the expression'Makkathayam' property as used in S.32, is not intended to include the property obtained by way of inheritance by the widow and children of an Ezhava dying intestate, even though the definition of 'Makkathayam property' is such as to take in property obtained by inheritance also. This shows that the expression'Makkathayam' property as used in S.32, is not intended to include the property obtained by way of inheritance by the widow and children of an Ezhava dying intestate, even though the definition of 'Makkathayam property' is such as to take in property obtained by inheritance also. S.15 is specially intended to define the mode of devolution of the property obtained on inheritance and that is why such property is left out from the ambit of S.32. Out of the three different categories of properties included in the definition of 'Makkathayam property' (i.e., properties obtained by gift, inheritance or bequest), two alone have been dealt with under S.32 and these are properties obtained on gift and properties obtained on bequest. It is in respect of these two categories of Makkathayam properties that the rule of per capita division among the wife and children enunciated in S.32, is intended to apply. It is also made clear by the section that the rule will apply only if no contrary intention is expressed in the instrument of gift or bequest. Thus there is no force in the contention that S.32 has the effect of abrogating the rule of inheritance as per the provisions of Part IV of the Act or as per the pre-existing customary law. It is also obvious from S.32 that the section contemplates only the division of Makkathayam property obtained by a wife and her children by a gift or bequest. The general rule that the word 'wife' must be taken to have been used in the section in its general sense so as to include plurality of wives also, cannot govern S.32, because there are indications in the Act to show that where the Legislature intended to make a rule applicable to more wives than one, care has been taken to use appropriate expression in that direction. In sub-s. 2 of S.15 specific reference has been made to "the widow", or widows if there are more than one. If S.32 was intended to apply to joint gifts or bequests in favour of a number of wives, the word 'wives' would have been used instead of the word 'wife'. The effect of such a joint gift has been considered by a Full Bench of the Travancore High Court in Ramakrishna Pillai v. Gouri Pillai Amma (1947 T.L.R. 426). If S.32 was intended to apply to joint gifts or bequests in favour of a number of wives, the word 'wives' would have been used instead of the word 'wife'. The effect of such a joint gift has been considered by a Full Bench of the Travancore High Court in Ramakrishna Pillai v. Gouri Pillai Amma (1947 T.L.R. 426). That was a case which arose under the Travancore Nair Act (Act II of 1100). S.22 of that Act, which is analogous to S.32 of the Ezhava Act, had to be construed in that case. The gift in that particular case was jointly in favour of the second wife and the only daughter by the deceased first wife. It was held that the second wife and the daughter by the first wife took the gift as tenants-in-common, each of them getting an equal share in the properties. Incidentally, the scope of S.22 of the Nair Act was explained in the following terms: "What the section provides for is that property acquired by gift from the husband shall belong to the wife and each of her children born of the husband in equal shares. The children referred to in the section are those who in relation to both husband and wife are their children and not the children of only one of them. It does not, therefore, contemplate the wife's children born of another husband or the husband's children born of another wife. In the case of joint gift with some one other than her own child there would be a half-share for each, for the general rule in all cases of joint gifts is that the donees take as tenants-in-common except where they constitute a joint family under the Hindu Law or a sub-tarwad under the Marumakkathayam Law. The second wife and the daughter by the first wife take the gift as tenants-in-common and share equally". These principles are equally applicable to gifts contemplated by S.32 of the Ezhava Act. The division contemplated by that section is among a group consisting of the mother and the children born to her by her husband the donor. They alone can form a natural group. The second wife and her children form another natural group. S.32 does not stand in the way of the two wives obtaining properties from the husband in accordance with the customary law of Pathnibhagom. They alone can form a natural group. The second wife and her children form another natural group. S.32 does not stand in the way of the two wives obtaining properties from the husband in accordance with the customary law of Pathnibhagom. The share taken by the group represented by one wife and her children as per this rule could be partitioned among herself and her children in equal shares as per the provisions of S.32. 8. Thus in any view of the case, the conclusion reached by the lower court that defendants 1 to 3, who are the children of the first wife of Velayudhan Kesavan are entitled to get 1/4 of his assets and that the plaintiffs, who represent the second wife and her children, are entitled to another one-fourth share in his assets, has only to be upheld as correct. The final decree has to be worked out as per the directions contained in the preliminary decree. 9. In the result, the preliminary decree passed by the lower court is confirmed and this appeal is dismissed with costs.