Parukutty Amma v. Subramanian Namboori — 1955 DIGILAW 92 (KER)

Judgment :- 1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge of Trichur in O.S. No. 178 of 1122, dismissing that suit. That was a suit for partition instituted by a member of a Nambudiri illom. 2. On 12.2.1116, Krishnan Nambudiri (the original plaintiff), the then senior-most member of the Pozhichovvur illom relinquished his management of the illom affairs as the result of a compromise arrived at in O.S. 70 of 1113 on the file of the Trichur District Court. The decree passed in that suit provided that he should be given 60 paras of paddy a year towards maintenance, charged on the illom and premises. On 21.7.1120, 14 out of the 16 members of the illom entered into a partition arrangement under which the illom properties were divided into five units, the first unit to be owned and enjoyed by Nos.1 to 9 in the deed of partition (Ext. V), the second unit by Nos. 10 and 11, the third unit by No.12, the fourth by Nos. 13 and 14 and the fifth unit by one Narayanan Nambudiri whose whereabouts were then unknown. Krishnan Nambudiri was not a party to this partition, but he was grouped along with Nos.1 to 9 and he was to receive the maintenance fixed for him under the decree in O.S.70 of 1113 from the managing member of that group. The division was effected on a per capita basis but the partition deed calls the different groups "Thavazhies". As the burden of paying the maintenance allowance to Krishna Nambudiri was thrown on the group designated as first thavazhy, some additional properties were allotted to that group, but the provision in the deed was that after Krishnan Nambudiri's death those properties should lapse to the "Thavazhi". The partition deed followed the lines of an award (Ext. V(a), dated 30.3.1120) passed by certain arbitrators whom the parties had appointed to effect a division. In Mithunam 1120, Narayanan Nambudiri, whose whereabouts were not known at the time of the award and the partition, returned from his wanderings and claimed the share set apart to him under the partition deed. He was given his share to token whereof he passed a receipt, Ext. V(b), dated 19.11.1120, to the executants of Ext. V. 3. Over one year afterwards, to be exact on 24.7.1122, Krishnan Nambudiri caused a notice (Copy, Ext. He was given his share to token whereof he passed a receipt, Ext. V(b), dated 19.11.1120, to the executants of Ext. V. 3. Over one year afterwards, to be exact on 24.7.1122, Krishnan Nambudiri caused a notice (Copy, Ext. D) to be issued to the other members of the illom claiming a share by outright partition of the illom properties and his claim was repudiated by a reply notice, Ext. C, dated 16.10.1122. The purport of the reply was that Krishnan Nambudiri was not entitled to anything more than the maintenance fixed for him under the decree in O.S. 70 of 1113. Soon afterwards, on 4.12.1122, the suit giving rise to this appeal was instituted by Krishnan Nambudiri, for a one-sixth share of the illom properties together with mesne profits thereof. He died pending the suit and pursuant to the bequest made under his Will (Ext. E, dated 23.10.1123) his widow got herself impleaded as the legal representative and prosecuted the suit. The lower court eventually dismissed the suit. Hence this appeal. 4. Two extreme contentions raised by the main contesting defendants were that by the compromise decree in O.S. 70 of 1113 Krishnan Nambudiri had divested himself of all his interests in the illom properties except the right to receive the maintenance fixed thereunder, and that Ext. V evidenced only a maintenance arrangement and not an outright partition. Both these contentions were rightly repelled by the lower court and they were not repeated before us. The contention that was most pressed on behalf of the defendants both before the lower court and before us was that Ext. V evidenced only a partition into different "thavazies" and that therefore no member of a group had a right to claim individual partition. The lower court in discussing the question said: "It has still to be proved whether an individual partition was contemplated under Ext. V. The scheme of the partition deed will show that there was no intention among the members to separate individually. On the other hand, the clear and prominent intention found is to preserve the family as such in the A thavazhi and five members walked out of the family, four in groups of two, and one individually. But in calculating the distribution of assets and liabilities a per capital mode was adopted. This does not mean that there was the intention to separate individually. But in calculating the distribution of assets and liabilities a per capital mode was adopted. This does not mean that there was the intention to separate individually. The intention is clear that the separation was in groups the main group thavazhi A carrying on the family and its traditions. If such a partition into groups or thavazhies is obnoxious to the Nambudiri Law and custom, then the partition itself becomes useless and illegal and thereby the plaintiff does not get any right since no severance of status take place. But on the other hand if Ext. V is good in law then the severance of status was not into individuals but only into groups. Therefore the ratification, if any, given can only be a ratification of this partition deed severing the status into groups. The plaintiff can only succeed if the severance was into individuals. That is not the case here. Impartibility is the law and if some walk out the other remain joint. The decisions in 18 Cochin 521, 34 Cochin 465 and 38 Cochin 5 were cited in this connection. Ext. V(b) will show that what Narayanan Nambudiri ratified was not an individual partition deed, but a thavazhi partition deed, though he as the sole member of the thavazhi obtained property under that. The 12 Cochin case will show that the consent given by the members was for Ext. C in that case and the subsequent ratification was also for that. The ratification and consent given in this case is to Ext. V which is only a group partition and not an individual partition. Such being the case, the contention of the plaintiff that it is a completed individual partition fails and he cannot ask for any variation of Ext. V to claim individual partition". 5. Though not in very precise language the above extract contains an enunciation of the true rules applicable to the decision of the case. It necessarily follows that the appeal must fail. 6. Like the customary Marumakkathayam Law the customary law governing Nambudiries did not admit of compulsory partition of the family property. In this respect the Cochin Nambudiri Act (XVII of 1114) introduced no innovation. So both under the customary law and the statutory law governing Nambudiries domiciled in Cochin the family properties are indivisible except with the consent of all the members thereof. In this respect the Cochin Nambudiri Act (XVII of 1114) introduced no innovation. So both under the customary law and the statutory law governing Nambudiries domiciled in Cochin the family properties are indivisible except with the consent of all the members thereof. A division can be effected only on the unanimous vote of all the members - see the observations at pages 11, 209, 212, 214 and 224 of Sundra Ayyar's Malabar and Aliya Santhana Law. Admittedly there was no agreement of all the 16 members of the illom to effect a division of the illom properties. Krishnan Nambudiri and Narayanan Nambudiri were not parties to the reference to the arbitrators. They were also not parties to the partition deed. It is therefore impossible to hold that there has been a valid or proper division of the title to the illom properties. No doubt, under Ext. V there has been a physical division of the subject, that is, of the properties of the illom, but in the eye of law as two members were not parties to the agreement there was no division of the right. Assuming, therefore, without deciding, that a mere agreement among all the members to divide without actual division by metes and bounds would bring about divided status among the members of the illom and thus entitle a party to the agreement to bring a suit for partition by way of specific performance (XII Cochin Law Reports 149 at 162) of the agreement there was no such agreement here, or one which Krishnan Nambudiri could have sought to enforce. To repeat what we have said, there was no agreement among all the sixteen members and Krishnan Nambudiri was not a party to the reference or to the partition arrangement. Nor was Narayanan Nambudiri one. Hence the suit brought by Krishnan Nambudiri was not maintainable and it was rightly dismissed. 7. Notwithstanding the physical division of the properties, in our view, the illom remained undivided in status. In a system of law where there is no right of compulsory partition, whether a mere agreement by all the members of a family would bring about a divided status is a moot point. 7. Notwithstanding the physical division of the properties, in our view, the illom remained undivided in status. In a system of law where there is no right of compulsory partition, whether a mere agreement by all the members of a family would bring about a divided status is a moot point. In XII Cochin Law Reports 149, the majority of the Full Bench held that it would and that that on the strength of it a party to the agreement could bring a suit for partition by way of specific performance thereof. Varughis, J. (as he then was) expressed strong dissent from that view. In the circumstances of the case we are not called upon to pronounce upon that conflict of judicial opinion. Assuming the majority view in the XII Cochin case to be the more correct view, 14 out of the 16 members cannot bring about a division of the title to the illom properties, which alone even according to the majority decision in the case cited will give a right of suit to a party to the agreement. It is no doubt open to one who had not agreed to the division of the subject to accept the division made by the other members; see Sundara Ayyar's Malabar and Aliya Santhana Law, page 16. But as observed by the learned judge below, that must be an acceptance in terms of the arrangement effected by the other members and not a qualified one as Krishnan Nambudiri sought to do by claiming a one-sixteenth share of the entire illom properties. The partition effected was into five groups and Krishnan Nambudiri was included in, or assigned a place, in one of these groups, viz., the first "thavazhi". That group had 9 other members. There was no agreement even among those nine members for a division among themselves of the properties allotted to their group. As such even the appellant's claim before this court that she should be given a share out of the properties allotted to the first group cannot be sustained. In the first place, the option to accept the partition was that of Krishnan Nambudiri. He sought to exercise it in the wrong way. As such even the appellant's claim before this court that she should be given a share out of the properties allotted to the first group cannot be sustained. In the first place, the option to accept the partition was that of Krishnan Nambudiri. He sought to exercise it in the wrong way. Even his acceptance of the agreement in terms would not also have given him a right to claim a share of the properties allotted to the first group as there was no division of the title among the members of the group. It is even possible to argue that it is a case where the illom - albeit truncated - remained represented by the first "thavazhi" and the other six members got themselves separated from it, some as groups and others as individuals. 8. The appeal therefore fails and we dismiss it. Ext. V proceeded on the basis that Krishnan Nambudiri had only a right of maintenance and before the lower court the contesting defendants maintained that stand. That was, however, abandoned in this court. On the whole his fellow members in the illom were hardly fair to Krishnan Nambudiri. In the circumstances we direct the parties to bear their costs throughout. Order accordingly. Dismissed.