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1965 DIGILAW 323 (KER)

Eachara Marar v. Devaki Amma

1965-11-02

M.MADHAVAN NAIR

body1965
Judgment :- 1. In this appeal by the 1st defendant the only question is whether his emoluments for playing drums in a temple are to be divided among the members of his tarwad. The finding is that the service is attended to by the karnavan of the tarwad hereditarily. The plaintiffs claim the service as well as its emoluments to belong to the tarwad and partible as such. The Subordinate Judge, Mr. Madhava Menon, held "the emoluments belong to the persons who are performing the services and are not partible". The Additional District Judge Mr. Prabhakaran Nair has reversed him and held"...the right to perform the drumming service and to receive the remuneration therefor is one appertaining to the family of the parties, and since it involves a substantial income it could be treated as an asset belonging to the tarwad. The asset can be easily, partitioned among the various members or branches of the family on the basis of and with reference to the number of days of service. Service for a specific number of days in the year in proportion to the shares due to a particular branch can be allotted to that branch". 2. It is conceded that the emoluments 160 parahs of paddy per annum and some cooked rice per diem are earned as the service is performed and are paid in kind. 3. Service for a specific number of days in the year in proportion to the shares due to a particular branch can be allotted to that branch". 2. It is conceded that the emoluments 160 parahs of paddy per annum and some cooked rice per diem are earned as the service is performed and are paid in kind. 3. Under the Hindu Gains of Learning Act, 1930, " .no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of (a) his learning having been, in whole or in part, imparted to him by any member living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any; member thereof; or (b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family or by the funds of any member thereof." and "learning" is defined as meaning, "....education, whether elementary, technical, scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or avocation in life." The art of playing drums requires a special "training" and the service of playing drums in a temple is a "profession or avocation in life". It then follows that under the Act the emoluments in question are "gains of learning" and as such the separate property of the person who earns the same. The tarwad of the parties being in the Cochin area and the temple where the emoluments are earned being in the Malabar area the parties differ as to the applicability of the Act. It is unnecessary to resolve that controversy here as the remuneration earned by a person for work done by him can in no sense be the common property of all the members of his tarwad. The fact that the karnavan of the tarwad is invariably appointed to do the work cannot affect the title to the remuneration. He who does the work must have the remuneration. The principle of ancestral property is that the accumulations left by deceased ancestors for the benefit of their descendants must, together with their normal accretions, enure to the descendants alike. He who does the work must have the remuneration. The principle of ancestral property is that the accumulations left by deceased ancestors for the benefit of their descendants must, together with their normal accretions, enure to the descendants alike. There is no principle that what one earns by his sweat should be compulsorily shared with all the numerous members of his tarwad. Even the hereditary right of the karnavan of a tarwad to manage a. Hindu temple has been held to be a personal right of the karnavan, in which other members of his tarwad have no right to share. Vide Kunhukutty Amma v. Ravunni Menon (1959 KLJ.158) and Muttuvaya v. C. S. Sankaran Nambudiripad (AIR. 1921 Mad. 651). The emoluments for playing drums, which is a hard task, must necessarily be the personal or separate property of the karnavan who does the service and thereby earns the same. It follows that the emoluments in question are not assets of the tarwad compulsorily partible among its members. The decree of the Additional District. Judge must therefore be discharged. 4. In the result I discharge the decree of the Additional District Judge and restore that of the Subordinate judge, with costs here and in the Court below. Allowed.