Prabhakara Menon v. Gopala Menon — 1959 DIGILAW 404 (KER)

JUDGMENT T.K. Joseph, J. 1. This appeal arises from the preliminary decree in a suit for partition. The plaintiff sued for partition of the properties described in schedules A, A1, B and C appended to the plaint. The suit was allowed only in respect of the properties in schedule A; hence this appeal by the plaintiff. 2. The facts necessary for the decision of the appeal may be stated: The plaintiff and defendants 1 and 2 are the descendants of one Kunji Amma who had six sons, Raghavan Nair, Kannankutty Nair, Ramankutty Nair, Govinda Menon, Sekharan Nair and Madhavankutty Menon, and a daughter, Kallyani Amma. Kallyani Amma had two sons who are defendants 1 and 2 and a daughter, Kunhikutty Amma. The plaintiff is the only surviving son of Kunhikutty Amma. The properties in schedule A are those obtained by Kunji Amma's thavazhi in partition of the main tarvvad in 1927. B schedule represents properties alleged by the plaintiff to have been obtained by the thavazhi from Kunji Amma's husband, Gopala Menon. Part of B schedule properties was compulsorily acquired by the Government and the compensation due in respect of the same is included in schedule A1. C schedule represents the movables. At the time of suit, the three surviving members of the thavazhi were the plaintiff and defendants 1 and 2. The plaintiff sued for partition and recovery of one-third share in all the properties with profits, past and future. 3. Defendants 1 and 2 raised practically the same contentions. According to them, the properties in schedule A had been partitioned under Ext. B14 on 30-5-1950, the plaintiff being represented by the first defendant. As regards B schedule properties, it was contended that they belonged to Kunji Amma and her children and not to the thavazhi. After the death of three of the brothers, the remaining brothers and Kallyani Amma partitioned these properties under Ext. B68 dated 26-6-1939. Kallyani Amma took the shares of the rest and she bequeathed them to defendants 1 and 2 under a will, Ext. B67, executed on 4-4-1942. The plaintiff's claim to the properties in schedule B and the compensation money in schedule A1 was thus denied. As regards the movables it was contended that the same did not exist. B68 dated 26-6-1939. Kallyani Amma took the shares of the rest and she bequeathed them to defendants 1 and 2 under a will, Ext. B67, executed on 4-4-1942. The plaintiff's claim to the properties in schedule B and the compensation money in schedule A1 was thus denied. As regards the movables it was contended that the same did not exist. Defendants 3 and 4 who claimed to be mortgagees of the second defendant supported defendants 1 and 2 and further contended that the amounts due to them under the mortgages should in any event be charged on the second defendant's share. 4. The court below set aside the partition of A schedule properties holding that the same was not valid or binding on the plaintiff and gave the plaintiff a preliminary decree for partition and recovery of one-third share of the same. The suit was dismissed as regards B schedule properties and the compensation money, holding that the same did not form thavazhi property. As regards the movables, it was held that there was no satisfactory evidence regarding the same. The plaintiff has therefore preferred this appeal from the decree regarding the properties in schedules A1, B and C. The defendants have acquiesced in the decree. 5. The main point for decision in this appeal is whether the plaintiff is entitled to a share in the properties in schedule B. There are seventeen items of immovable property in schedule B and these were purchased under sale deed, Ext. B1, on 19-12-1896. Ext. B1 stands in the names of Kunji Amma and such of her children who had attained majority on that date. The names of Sekharan Nair and Madhavankutty Menon who were minors are not included in Ext. B1. Gopala Menon, the husband of Kunji Amma, was not alive on the date of Ext. B1 but the finding, which is not objected to by either side, is that the acquisition was made with funds left by Gopala Menon. Though the names of the two minor sons of Kunji Amma were not included in Ext. B1, it is seen that three years later, Kunji Amma and her children who figured in Ext. B1 acknowledged their right in Ext. B2 dated 16-5-1899, a deed of assignment of items 11 to 15 in schedule B executed by all of them except Govinda Menon in favour of the latter. B1, it is seen that three years later, Kunji Amma and her children who figured in Ext. B1 acknowledged their right in Ext. B2 dated 16-5-1899, a deed of assignment of items 11 to 15 in schedule B executed by all of them except Govinda Menon in favour of the latter. Govinda Menon sold these items to Kallyani Amma on 6-2-1930 under Ext. B4. The question is whether the 17 items of property in schedule B acquired under Ext. B1 belonged to the thavazhi of Kunji Amma or whether Kunji Amma and her children were entitled to the same as tenants in common. 6. According to the finding of the court below the funds utilised for the acquisition have to be treated as a gift from Gopala Menon. The question whether a gift from a Nair husband to his wife or to the wife and some or all of the children enures to the thavazhi of the wife depends on the intention of the donor as evidenced by the terms of the deed of gift, but so far as this case is concerned, it is not possible to gather such intention, as the acquisition of property took place after his death. The two children of Gopala Menon and Kunji Amma whose names were not included in Ext. B1 were minors on that date. The omission of the names of the minors is however immaterial in view of Ext. B2 by which their rights were also recognised by the mother and other children. Ext. B1 must therefore be treated as an acquisition of property by Kunji Amma and all her children with funds provided by Gopala Menon. Such assistance as would ordinarily be obtained by construction of the deed of gift not being available in this case, the question has to be decided taking into consideration the law applicable to the parties and the mode in which property was generally held by them, at that time. Ext. B1 was in 1899, long before the first statutory enactment on Marumakkathayam law, namely, the Madras Marumakkathayam Act, XXII of 1933, was passed. S.48 of the Act provides. Ext. B1 was in 1899, long before the first statutory enactment on Marumakkathayam law, namely, the Madras Marumakkathayam Act, XXII of 1933, was passed. S.48 of the Act provides. "Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of, his wife alone or his wife and one or more of his children by such wife together, such property shall, unless the contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as thavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line : Provided that, in the event of partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or a daughter." It has however been held that this section has no retrospective effect so that the law applicable to the parties in 1899 was the customary Marumakkathayam law of Malabar. In the case of gifts by a Nair husband or father to his wife or children or to the wife and some children the courts in Travancore and Madras have been taking the view that the gift would enure to the thavazhi. 7. One of the earliest decisions of the Travancore High Court on this point is Narayanan v. Parvathi Nangeli (5 TLR 116) in which it was held : "Gifts by the father known in Travancore as Makkathayam, and, in British Malabar, as Puthravakasam, are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of this gift though was registered or acquired in the name of the mother are held by the mother and children in common under the management of the mother or of the next senior competent male or female among the donees". The learned Judges further observed: "The intention of the father of a Marumakkathayam family who makes a provision for the adequate maintenance of his children and their mother by giving them landed property is that the donees should enjoy the property in common by taking the usufructs of the property jointly, and that the property should, in all respects, be subject to the incidents of other similar properties held by them as members of the tarwad. This intention has invariably been respected by the people themselves, and has come to be regarded as a usage. We do not see why the court should refuse to respect the well known usage of the country". This and the later decisions of the High Court of Travahcore are referred to and followed in Pathumma v. V. Vasudevan ( AIR 1956 TC 177 ). Though Pathumma v. V. Vasudevan was a case which arose in Travancore, reference is made in the judgment to the fact that the High Court of Madras has also been taking the same view. 8. The same question arose for decision before the Madras High Court in Kunhacha Umma v. Kutti Mammi Hajee (ILR 16 Madras 201). The parties in that case were Mohamadans governed by Marumakkathayam law. The first question referred to the Full Bench in that case was whether one Ayisumma and her children took the properties in question with the incidents of property held by a tarwad. The decision of the Full Bench is extracted below : "The properties in question originally belonged to one Taruvai, and they were given after his death to his wife Ayisumma and her children in accordance with his orally expressed wish. The question referred to us is whether Ayisumma and her children took the properties with the incidents of property held by a tarwad. In the case before us the donor expressed no intention as to how the properties should be held by the donees, and in the absence of such expression, the presumption is that he intended that they should take them as properties acquired by their branch or as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkathayam usage which governed the donees. This view is in accordance with the principle laid down by the Privy Council in Sreemutty Soorjeemoney Dossee v. Denobundeo Mullick, (6 MIA 526) and Mahomed Shumsool v. Shewakram (LR 2 - IA 7). The decision in Narayanan v. Kannan (ILR 7 Mad. 315) was not followed in Moidin v. Ambu and it appears to us to be in conflict with the rule of construction indicated by the Privy Council We answer the question in the affirmative." 9. In Kallyani Amma v. Govinda Menon (ILR 35 Madras 648) Abdur Rahim and Sundara Ayyar JJ., held that a gift to a woman governed by Marumakkathayam Law and her children enured in favour of the donee and her children with the incidents of tarwad property and that children born subsequent to the gift acquired an interest in such property. 10. In Chakkara Kannan v. Kunhi Pokker (ILR 39 Madras 317) Sankaran Nair and Tyabji JJ., who doubted the correctness of the proposition or at any rate its broad application referred the question to a Full Bench. The first question referred was : "When properties are given by a person to his wife and children or children alone following the Marumakkathayam Law, do the donees constitute by themselves a tarwad or tavazhi, and if they do so, is the right of management of the properties forming the subject of the gift vested in the senior male member thereof?" It was held by the Full Bench that when properties were given by a person to his wife and children or children alone, following the Marumakkathayam law, the presumption was that the donees took the property with the incidents of tarwad property. The following passage from the judgment of Sir John Wallis C. J., is instructive: "It seems desirable at the outset to point out that the decision of the Full Bench in Kunhacha Umma v. Kutty Mammi, which is questioned in the reference merely decides that among the followers of the Marumakkathayam Law, when a gift is made by the father to the mother and her children, there is a presumption that they are intended to take such properties as the exclusive properties of the branch or thavazhi consisting of the mother and her children, that is to say, with the usual incidents of tarwad property. In the absence of express provision the presumption is that the property is to be enjoyed by the mother and her issue in the way in which property is customarily held and enjoyed among followers of the Marumakkathayam Law. The decision proceeded on the authority of two decisions of Their Lordships of the Judicial Committee which laid down that the law governing the parties is one of the circumstances to be taken into consideration in ascertaining the intention of the donor. As pointed out in the judgment of one of the Judges who made the reference to the Full Bench, the presumption was arrived at in consideration of what were known to be the notions and wishes of persons in the position of the donor and also of the ordinary incidents of property in the district. This view was accepted by the Full Bench of four Judges two of whom, Muthuswamy Iyer and Wilkinson JJ., were well "acquainted with Malabar, and that it was well founded is suggested by the fact that the decision has not only been accepted but has been given a considerable extension in the neighbouring State of Travancore, as pointed out during the argument by my learned brother speaking from his experience as Chief Justice of that State". 11. Thus it is seen that the High Courts of Travancore and Madras were following the same view in respect of gifts made by a husband or father to his wife or children. The view taken by the High Court of Cochin was that an acquisition by a Nair male in the name of his wife and children should be taken to be a gift for the persons specified in the deed and that the donees took the same as tenants in common. In a case arising from the Cochin area, a Full Bench of the Travancore-Cochin High Court held in Janaki Amma v. Kunjikali Amma ( AIR 1957 TC 80 ): "The decision of the Cochin Chief Court in Kuttikrishnan Nair v. Cheethamma (FB) was rendered in Meenam, 1094 (March 1919). Thirty-seven years after that, it is unthinkable that we should now seek to upset the rule laid down there when the Cochin High Court had followed it as good law in ever so many cases and latterly, this Court also did the same thing. Thirty-seven years after that, it is unthinkable that we should now seek to upset the rule laid down there when the Cochin High Court had followed it as good law in ever so many cases and latterly, this Court also did the same thing. We are not construing the language of a statute or the words of any ancient or sacred text. Rights have grown up under the earlier decision which ought not to be unsettled. The rule merely relates to a presumption which it is always in the power of a donor or a testator to negative if so minded by express provision. We cannot, therefore, find our way to depart from the rule after it has been followed for such a long time". Reference is made in the judgment to an earlier decision of a Full Bench of the Court reported in AIR 1954 TC 67 and it was observed : "This Full Bench heard all the three cases and took the view that the path of prudence lay in deciding each case on its own merits and in not attempting a reconciliation of the conflicting presumptions that obtained in the Cochin area on the one hand and in Travancore and Malabar on the other, with respect to the matter. In our opinion it was too late in the day to attempt to examine the comparative merits of the rival presumptions and seek to prefer one of them to the other. While the Cochin rule is that what has been stated above, namely, that in the absence of an express or necessarily implied intention to the contrary, the donees or legatees of Puthravakasam properties can only be regarded as coowners or tenants in common with regard to the subject matter of the gift or the bequest, as the case may be, the Travancore and the Madras Courts have always held that the presumption is that the beneficiaries take the subject matter of the gift or bequest with the incidents of tarwad property". 12. The latest reported decision of this Court is Raghavan v. Soumini Amma ( 1957 KLT 558 ). 12. The latest reported decision of this Court is Raghavan v. Soumini Amma ( 1957 KLT 558 ). This was a case which arose from Malabar, and it was held that the law was alike in Malabar and Travancore and that it was well settled that the presumption in cases of a gift of this character was that the property enured to the thavazhi and not to the donees as tenants in common. In the light of the decisions referred to above it may be taken that the law in Malabar before the Madras Marumakkathayam Act of 1933 was that in the case of such gifts the donees took the property with the incidents of thavazhi property. 13. Reliance was placed by the respondents on the decision in K. Moithiyan v. N. Puthiyapurayil ( AIR 1928 Mad. 870 ). That was a case of a husband making a gift of properties to his wife and children. The wife had children by another husband, and the question was whether the doness took the properties with the incidents of thavazhi property or as tenants in common. It was held that a thavazhi could not be constituted by a woman and some of her children only, others being excluded, and that such a group of members was not a recognised group in Malabar law entitled to hold property with the special incidents of tarwad property. This decision has no application to the facts of this case as Gopala Menon was the father of all the children of Kunji Amma. 14. Another decision relied on by the respondents is Thatha Amma v. Rugmini Amma (1946-2 MLJ 175). After an exhaustive review of the decisions on the point it was held that where property is gifted to wife alone or to some of the children alone there was no presumption that the donees took it with the incidents of tarwad property, as it could no be presumed to be a gift to the entire thavazhi and that the presumption would arise only if the gift was in favour of the wife and children or in favour of all the children who by themselves form a thavazhi. It was further held that the position would be the same in the case of acquisitions by father in the name of one or more children. We have already held that though Ext. It was further held that the position would be the same in the case of acquisitions by father in the name of one or more children. We have already held that though Ext. B1 was taken only in the names of Kunji Amma and her adult children, the minors who were omitted were acknowledged later as forming the group which obtained rights under the deed. It is therefore unnecessary to examine this decision further. 15. In making a gift of money, Gopala Menon may be presumed to have acted in accordance with the ordinary notions and wishes of the community to which he belonged, i. e., that his wife's thavazhi should be benefited by the gift. That the donees also viewed the gift in this light can be seen from their subsequent conduct. We have already referred to the fact that the names of the two minor children, Sekaran Nair and Madhavankutty Menon, did not appear in Ext. B1 but that they were also included in Ext. B2, the deed of assignment in favour of Govinda Menon, even though they were minors on that date. Learned counsel for the respondents relied on the expression (Malayalam) in Ext. B2 in relation to the properties conveyed thereunder. This expression might mean that the items of property conveyed belonged to the assignors absolutely or was their private property. Division of the properties obtained on partition from the main tarwad in 1927 had not taken place at that time so that it may have been necessary to make it clear that these were distinct from the properties obtained on partition from the main tarwad. Other instances of subsequent conduct supporting the inference that B schedule properties were treated as thavazhi properties may also be referred to. 16. Govinda Menon conveyed these properties to Kallyani Amma under Ext. B4 on 6-2-1930. Ext. B4 states: "The properties described in the sub-joined schedule belong in jenmam right to Kallekulangara Emur Bhagawathi devaswom. The said properties belonged to our tavazhi, inclusive of ourselves, in Vettukanom and saswatham rights without no liability either to surrender or to be evicted therefrom, under the said devaswom". This is a clear indication of the consciousness of Govinda Menon and Kallyani Amma that the properties belonged to the thavazhi. The main tarwad had become divided in 1927 and the division of B schedule properties took place only in 1939 under Ext. B 68. This is a clear indication of the consciousness of Govinda Menon and Kallyani Amma that the properties belonged to the thavazhi. The main tarwad had become divided in 1927 and the division of B schedule properties took place only in 1939 under Ext. B 68. Ext. B 8 is a registered notice sent by Govinda Menon to Sekharan Nair, Madhava Menon and Kallyani Amma on 23-11-1938. Both sides rely on Ext. B8 which may therefore be extracted : "You know that I am holding and managing the properties which belong to us and the children of individual No. 3 (Kalliani Amma) among us, jointly, in equal rights, and which have been obtained allotted to us from our tarwad in partition; and also the properties which belong to us in "Puthravakasam right", in the capacity as karnavan. Since I am advanced in age, and since I am sick, I am not in a position to conduct the management in future. Moreover, it is necessary that I should get my share in the tarwad properties and in the "Puthravakasam" properties. It should be deemed that from today onwards myself and you have become divided in status. You are hereby informed that if you do not agree immediately to effect partition and allot to me 1/9th share from the tarwad properties and 1/4th share from the "Puthtavakasam" properties, I shall be filing suit for that in due course. Notices have been sent to the remaining individuals also in the aforesaid manner". Govinda Menon claimed 1/4th share in the "Puthravakasam" properties, i. e., those acquired under Ext. B1. However, he refers to the fact that he was managing those properties in the capacity as karnavan. He could manage the same as karnavan only if the properties belonged to the thavazhi. Thus there is an indication in Ext. B8 that even though he claimed 1/4th share, he was managing the properties as karnavan of the thavazhi. An important feature of Ext. B8 is that Govinda Menon claimed 1/4th share in the properties. Ext. B1 stood in the names of his brothers also and three of them, Raghavan Nair, Kannankutty Nair and Ramankutty Nair had died before that date. B8 that even though he claimed 1/4th share, he was managing the properties as karnavan of the thavazhi. An important feature of Ext. B8 is that Govinda Menon claimed 1/4th share in the properties. Ext. B1 stood in the names of his brothers also and three of them, Raghavan Nair, Kannankutty Nair and Ramankutty Nair had died before that date. If the properties belonged to them as tenants in common their right would have devolved on the main tarwad and the surviving children of Kunji Amma could not claim rights by survivorship This indicates that the rule of survivorship was recognised as applicable which means that the properties must have been treated as belonging to the thavazhi. Ext. B68 was the partition deed executed on 26-6-1939, in respect of the B schedule properties. Division was made on the basis that only the surviving children of Kunji Amma were entitled to shares. Ext. B68 also therefore recognises the rule of devolution by survivorship. It is thus seen that such evidence as we have of subsequent dealings with the properties indicates that the parties treated the same as thavazhi properties. 17. It follows that the properties acquired under Ext. B1 belong to the thavazhi and not to the persons named in the deed or to all the children of Kunji Amma. The finding of the court below on this point must therefore be set aside. As the plaintiff was not a party to Ext. B68 the same is not binding on him and he is entitled to claim a share in the properties described in schedule B as well as the compensation money in schedule A1 of the plaint. 18. In view of the above conclusion it must be held that the mortgages executed by the second defendant in favour of defendants 3 and 4 are not binding on the plaintiff's share and that the charge for the amounts under the said mortgages must be confined to the second defendant's share in the properties. 19. Coming to the question of movables in schedule C, we agree with the court below in holding that there is no satisfactory evidence to prove that this belongs to the thavazhi. The decree in respect of the same must therefore be confirmed. 20. Learned counsel for the appellant raised an argument regarding mesne profits. 19. Coming to the question of movables in schedule C, we agree with the court below in holding that there is no satisfactory evidence to prove that this belongs to the thavazhi. The decree in respect of the same must therefore be confirmed. 20. Learned counsel for the appellant raised an argument regarding mesne profits. While directing that an account of the profits of the properties in schedule A should be taken from 30-5-1950, i. e., the date of Ext. B14, the plaintiff was directed to pay one-third of the sum of Rs. 2, 200/-, the amount of debt due to the first defendant under the hypothecation bond, Ext. B10 executed by Kallyani Amma in his favour on 26-6-1939. It was contended that this should be deemed to have been wiped out by the share of profits due to plaintiff. This argument is based on the assumption that the sum paid towards the maintenance of the plaintiff did not represent his share of the income. As Ext. B14 has been found to be not binding on the plaintiff, the plaintiff is not entitled to ask for accounts for the period prior to the date of Ext. B14, i. e., 30-5-1950. However, this sum may be set off against the amount if any found due to the plaintiff on settlement of accounts relating to profits. As regards the profits from the properties in schedule B, the plaintiff is allowed to recover one-third share of the same from the date of suit, namely, 29-6-1954. Accounts will be taken on this basis and provision made in the final decree. 21. In the result, we modify the preliminary decree as follows: The properties in schedule B and the compensation amount in schedule A1 are declared to be thavazhi properties and the plaintiff is allowed to recover one-third of the amount in schedule A1 and one-third of the properties in schedule B also in addition to what has been decreed by the court below. The plaintiff is also allowed to recover one-third of the profits of the properties in schedule B from 29-6-1954 which will be ascertained and provided for in the final decree. The charge for the amounts due to defendants 3 and 4 under the mortgages executed by the second defendant will be confined to the second defendant's share of the properties. The plaintiff is also allowed to recover one-third of the profits of the properties in schedule B from 29-6-1954 which will be ascertained and provided for in the final decree. The charge for the amounts due to defendants 3 and 4 under the mortgages executed by the second defendant will be confined to the second defendant's share of the properties. The dismissal of the suit in respect of the movables in schedule C is confirmed. The appeal is allowed to the extent indicated above and is dismissed in other respects. The plaintiff is allowed to recover three-fourths of his costs in this court from the second respondent and the assets of the 1st respondent in the hands of his legal representatives. The respondents will bear their costs.