SINNAMMU AMMA v. NARAYANIKUTTY AMMA — 1966 DIGILAW 304 (KER)

Judgment :- 1. Defendants 2 and 3 who are the legal representatives of the first defendant are the appellants. The appeal is directed against the decree granting the plaintiff's prayer for partition and separate possession of 1/3rd share in the plaint schedule property. The facts necessary for the disposal of the appeal are stated below. 2. The property originally belonged to a marumakkathayam tarwad consisting of C. V. Narayana Menon and Unnikrishna Menon who are brothers and their elder sister Kalliani Amma. Ext. A3 dated 4 71933 is a "bhagapatra karar" entered into by the members of the tarwad. Narayana Menon died in 1935 and Kalliani Amma died in 1938. The plaintiff is the daughter of Narayana Menon. The first defendant is the widow of Unnikrishna Menon who died on 7 91958. Narayana Menon executed Ext. Al will dated 4 7 1921 in respect of his properties, bequeathing the same to the plaintiff and others. Ext. A4 dated 3131940 is a registered partition deed entered into between the plaintiff and the other heirs of Narayana Menon and the 1/3rd share in the plaint schedule property was allotted to the plaintiff. Thus the 1/3rd share in the plaint item has become vested in the plaintiff. Unnikrishna Menon executed Ext. BI dated 219 44 a deed of gift in respect of the entire plaint schedule property in favour of the first defendant. Since the date of Ext. BI it was alleged by the first defendant that she has been in possession. The plaintiff claimed title to the one-third share in the plaint property on the ground that under Ext. A3 Narayana Menon got 1/3rd interest which devolved on her under Exts. Al and A4. The main contentions of the first defendant were that under Ext. A3 there was no disruption of the tarwad, some properties alone were divided for enjoyment, the plaint item was retained as tarwad property, no interest in the plaint schedule property could pass to the plaintiff under Exts. Al and A4 and the suit is barred by limitation and adverse possession. 3. The suit was decreed by the courts below holding that under Ext. A4 the members of the tarwad attained a status of division and in respect of the plaint property each member of the tarwad got 1/3rd share which had devolved under Exts. Al and A4 in favour of the plaintiff. 3. The suit was decreed by the courts below holding that under Ext. A4 the members of the tarwad attained a status of division and in respect of the plaint property each member of the tarwad got 1/3rd share which had devolved under Exts. Al and A4 in favour of the plaintiff. The plea of limitation and adverse possession was also over-ruled by the courts below. 4. In the second appeal the learned advocate for defendants 2 and 3 contended that Ext. A3 does not operate as a division in status of the members of the tarwad and by the terms of Ext. A3 the plaint property was retained as tarwad property, that the suit is barred by limitation and adverse possession and the suit is bad for non joinder of necessary parties. 5. It was admitted by both sides that on the date of Ext. A3 there were only three members of the tarwad Kalliani Amma, Narayana Menon and Unnikrishna Menon. The plaint property is A schedule property in Ext. A3. Clause.l in Ext. A3 declares that properties belonging to the tarwad are partitioned subject to certain conditions with the help of arbitrators since it is decided not to continue and keep alive the existing joint ownership of the properties and the state of united existence. In Clause.2 it is stated that A schedule property is not provisionally partitioned but kept in common and Kalliani Amma is given the right to reside there during her lifetime with no right to encumber or alienate the same except to her brothers. In Clause.3 Unnikrishna Menon is given the right to reside in A schedule property after the death of Kalliani Amma. Clause.5 enumerated the assets available in the tarwad for partition and one of the items referred to therein is A schedule property along with the properties in schedules B, C and D attached to Ext. A3. Clause.6 valued the partible items mentioned in Clause.5. A schedule property was valued at Rs. 2000/-and B, C and D schedule properties were valued at Rs. 7000/-. The total value of the partible items was fixed at Rs. 9000/-. It is declared in Clause.6 that each of the three sharers is allotted properties worth Rs. 3000/-. A3. Clause.6 valued the partible items mentioned in Clause.5. A schedule property was valued at Rs. 2000/-and B, C and D schedule properties were valued at Rs. 7000/-. The total value of the partible items was fixed at Rs. 9000/-. It is declared in Clause.6 that each of the three sharers is allotted properties worth Rs. 3000/-. Clause.7 and 8 contain restrictions regarding the right of Kalliani Amma to alienate and prescribe the mode of devolution of the properties set apart to Kalliani Amma in D schedule. Clause.10 declares absolute rights of Unnikrishna Menon and Narayana Menon in respect of the properties given to them under B and C schedules and the properties which may devolve on them on the death of Kalliani Amma. Clause.13 declares that movables belonging to the tarwad have been partitioned among the members. Clause.12 provides that if it is found that any properties are left out of the partition in Ext. A3, Narayana Menon will take the necessary steps to secure possession of the same and after deducting the expenses they will be divided equally among the members or the representatives. 6. It was contended on behalf of the appellants that under Ext. A3 the members of the tarwad divided some properties of the tarwad while retaining their status as a tarwad and holding the plaint property as an item of tarwad asset. In support of his contention the learned counsel relied on certain principles of Hindu law which are made applicable to cases arising under the Marumakkathayam Law. 7. Under the Hindu law it is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate while retaining their status as joint family and holding the rest as the properties of a joint and undivided family. In Approvier v. Rama Subba Iyer, Madras (1866 -11 MIA. In Approvier v. Rama Subba Iyer, Madras (1866 -11 MIA. 75) Lord Westbury said: "But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject -matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided." Quoting the above passage, their Lordships of the Judicial Committee of the Privy Council observed in Ramalinga Annavi v. Narayana Annavi (AIR. 1922 P. C. 201 at 205): "It seems to their Lordships that in the debate before the Board the difference between a complete 'partition' in a joint undivided Hindu family and partial division of interest in respect of some specific property or part of the joint properties has been overlooked. This distinction has been clearly pointed out in the judgment of Lord Westbury in the well-known case of Approvier v. Rama Subba Iyer, Madras (1866-11 MIA. 75) and although the passage has often been cited it is desirable to reproduce it here. This distinction has been clearly pointed out in the judgment of Lord Westbury in the well-known case of Approvier v. Rama Subba Iyer, Madras (1866-11 MIA. 75) and although the passage has often been cited it is desirable to reproduce it here. 'But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided.' It will be thus seen that, under the Hindu law, it is open to the members of a joint family to make a division and a severance of interest in respect of a part of the joint estate whilst retaining their status as a joint family and holding the rest as the properties of a joint undivided family." D. F. Mulla in the Principles of Hindu Law, 12th edition, at page 503, para 328(2) observed: "It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. But where there is evidence to show that the parties intended to sever, then the joint family status is put an end to, and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common unless and until a special agreement to hold as joint tenants is proved. When a partition is admitted or proved, the presumption is that all the property was divided and a person alleging that family property, in the exclusive possession of one of the members after the partition, is joint and is liable to be partitioned, has to prove his case." 8. A Division Bench of this Court in Janakikutty Amma v. Kesavan Unnithan (1958 KLT. 881) took the view that the above principles are equally applicable to cases arising under Marumakkathayam Law. A Division Bench of this Court in Janakikutty Amma v. Kesavan Unnithan (1958 KLT. 881) took the view that the above principles are equally applicable to cases arising under Marumakkathayam Law. In the above decision Kumara Pillai J. observed: "It was contended by the appellant's counsel in this court that once a partition takes place in a marumakkathayam tarwad the jointness of the tarwad is disrupted and that thereafter the members of the tarwad would only be tenants-in-common of such properties as might have been left out of the partition for any reason. Stated as a rule of presumption liable to be rebutted there can be no exception to this proposition, but it cannot be accepted as an invariable rule of law. There is nothing in law to prevent the members of a marumakkathayam tarwad from executing a partition deed dividing only some of their tarwad properties and the allottees taking their shares as their separate properties, while, at the same time, providing for the continuance of the joint status of their tarwad and for holding the remaining properties as undivided tarwad properties." 9. It is common ground that the question in dispute between the parties has to be decided on an interpretation of Ext. A3. The learned advocate for the appellant adverted to certain provisions contained in Clause.2, 4 and 5 of Ext. A3 and contended that the intention of the parties gatherable from those provisions was to provide for the continuance of their joint status as a tarwad and retain the plaint property (A schedule property in Ext. A3) as an item of tarwad property. There is no express provision in Ext. A3 for the continuance of the tarwad. The presumption is therefore, that the tarwad also has been disrupted. Even the clauses relied on by the learned advocate for the appellants do not evidence an intention on the part of the parties to Ext. A 3 to retain their status as a tarwad and continue the plaint property as a tarwad asset. Clause.2 contains the provision was emphasised by the learned advocate to show that the character of the plaint property as a tarwad property was retained. It is difficult to accept the interpretation contended for by the learned advocate. A 3 to retain their status as a tarwad and continue the plaint property as a tarwad asset. Clause.2 contains the provision was emphasised by the learned advocate to show that the character of the plaint property as a tarwad property was retained. It is difficult to accept the interpretation contended for by the learned advocate. It is stated in Clause.2 that since A schedule property is not provisionally divided by metes and bounds, it is kept in common not as tarwad property but as the common property of the executants of Ext. A3. In the context in which the words are used in Clause.2, it cannot carry the meaning contended for by the learned advocate. On the basis of the provisions contained in Clause.4 and 5 it was contended that the institution of karnavanship was retained and that is an indication to show that the status of the tarwad was retained and continued. The provisions in Clause.5 and 6 are not susceptible of the interpretation canvassed by the learned counsel. What is stated in this clause is since during the karanavanship of the first defendant certain debts are incurred till the date of Ext. A3, provision is made for the discharge of those debts by allotting separate properties to the karnavan Narayana Menon. There is nothing in Ext. A3 by which the right of Narayana Menon to act as the karnavan of the the tarwad after the date of Ext. A3 is recognised by the parties therein. On the other hand, the several clauses in Ext. A3 evidence an intention on the part of the members of the tarwad to sever and to divide all the properties belonging to the tarwad. Clause.1 says: It will be observed that in Ext. A3, all the properties of the tarwad except the plaint item were divided by metes and bounds. Ext. A3 contains even a provision for a division of properties which are subsequently found as available to the tarwad. The moveables have been divided. Reading Ext. A3 as a whole we are left with the impression that the intention is manifest that the members of the tarwad wanted to sever and disrupt the tarwad itself. 10. The non-division by metes and bounds of the plaint item in Ext. The moveables have been divided. Reading Ext. A3 as a whole we are left with the impression that the intention is manifest that the members of the tarwad wanted to sever and disrupt the tarwad itself. 10. The non-division by metes and bounds of the plaint item in Ext. A 3 cannot lead to an inference that the members of the tarwad did not want to sever and retained the plaint item as tarwad property. In Approvier v. Rama Subba Iyer, Madras (1866 11 MIA. 75) Lord Westbury observed: "It is necessary to bear in mind the two-fold application of the word'division'. There may be a division of right, and there may be a division of property." In Malikharkishan Singh v. Malik Partap Singh (AIR. 1938 PC. 189 at p. 190) Sir Shadi Lal stated the proposition in these terms: "According to the Mitakshara law, by which the parties are Governed, partition consists in defining shares of the coparceners in the joint property, and a physical division of the property is not necessary. Once the shares are defined, there is a severance of the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined, and thenceforth the parties hold it as tenants-in-common. "The defining of shares may be expressed by an agreement between them containing at declaration of their shares in the estate. Even an agreement between the members of a joint family, whereby they appoint arbitrators for dividing the joint family property among them amounts to a severance of the joint status of the family from the date of the agreement: 49 IA. 358 and 8 Pat. 153." Reference may be made in this connection to the observations of Subba Rao J. to the following effect in Mst. Rukhmabai v. Lala Laxminarayan AIR. 1960 SC. 335 at 337): "There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called 'division in status' or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds'." 11. 1960 SC. 335 at 337): "There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called 'division in status' or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds'." 11. The above principles though stated with reference to a joint family in Hindu law are applicable to members of a Marumakkathayam tarwad as well. Clause.6 of Ext. A3 is in these terms: The above shows that though the plaint property was not divided by metes and bounds there is a definement of the shares among the members and the interest of each member in the plaint item is valued for giving the share worth Rs. 3,000/-in all the tarwad properties. In view of the above, we agree with the two courts below in holding that under Ext. A3 there is complete division of the properties including the plaint item belonging to the tarwad and after the date of Ext. A3 the tarwad was not in existence. In this view, the plaintiff is entitled to 1/3rd interest in the plaint schedule property. 12. It was next contended that the suit is barred by limitation under Art.123 of the Limitation Act, which applies to a suit "for a legacy or for a share of a residue bequeathed by a testator, or for a distributive share of the property of an intestate." The period of 12 years prescribed in such a case is from the date "when the legacy or share becomes payable or deliverable". This contention is not sustainable. The submission of the learned counsel for the appellants was that the suit being one to enforce the legacy under the will Ext. Al, the suit should have been instituted within 12 years of that date. The present suit is not one instituted against the persons charged with the duties of distributing the assets under Ext. Al and cannot therefore be considered to be one for enforcing the legacies under Ext. Al. The legacies under Ext. Al have been distributed and legatees partitioned their properties under Ext. A4. It was laid down in Ghulam Mahammad v. Ghulam Hussain (AIR. Al and cannot therefore be considered to be one for enforcing the legacies under Ext. Al. The legacies under Ext. Al have been distributed and legatees partitioned their properties under Ext. A4. It was laid down in Ghulam Mahammad v. Ghulam Hussain (AIR. 1932 P. C. 81) that Art.123 applies where the suit is brought against an executor or administrator or some person legally charged with the duty of distributing the estate. The following observations at pages 87 and 88 are pertinent: "There is however a long series of decisions in India, dating at least from 1882, that this Article only applies where the suit is brought against an executor or administrator or some person legally charged with the duty of distributing the estate: Issur Chunder v. Juggut Chunder, Keshav Jagannath v. Narayan Sakharam, Umardara All Khan v. Wilavat Ali Khan, Khadersa Hajee Bappu v. Puthen Veettil and see Mahomed Biasat v. Basin Banu. Counsel for respondent 1 drew their Lordships' attention to a decision of this Board reported as Maung Tun Tha v. Ma Thit, where Art.123 was apparently applied in a suit by a Burmese-Buddhist son for his share in the paternal estate. No reference was made to the Indian case law on the subject, and the main question debated was as to whether the son was bound under the Burmese law to elect within a reasonable time after his father's death. Their Lordships have referred to the record of this case, and they find that in the Courts of Burma, no issue was raised as to limitation, and that there was no discussion as to the article of the act which should be applied. There had been at least one previous decision in the Lower Burma Court that Art.123 was applicable to such a case, and it seems to have' been assumed on all hands that it must equally apply in the case then under consideration. After the decision in Tun Tha v. Ma Thit it appears to have been considered in one case in the Bombay High Court that the Indian authorities had been over-ruled (Shrinbai v. Rataribai) but in two later cases the same High Court refused to apply Art.123 to claims by Mahomedan heirs: see Nurdin Najbudin v Bu Umrao. After the decision in Tun Tha v. Ma Thit it appears to have been considered in one case in the Bombay High Court that the Indian authorities had been over-ruled (Shrinbai v. Rataribai) but in two later cases the same High Court refused to apply Art.123 to claims by Mahomedan heirs: see Nurdin Najbudin v Bu Umrao. The specific question was considered by a Full Bench of the Allahabad High Court in 1928 (Rustam v. Khan Janki) another case between Mahomddan heirs, when the same conclusion was come to as in Nurdin Najbuddin v. Bu Umrao the article applicable being held to be Art.144 and not Art.123. Their Lordships have no doubt that it was not intended by the judgment in Maung Tun Tha v. Ma Thit to overrule the decisions to which they have referred, and they think that, at all events in cases from the Indian Courts, these authorities should be followed. They are therefore of opinion that the present case does not fall within Art.123, and that the appellant's suit was not barred by limitation." Reference was made by the learned advocate for the appellants to the Full Bench decision of the Madras High Court in Zamindar of Bhadrachalam v. Venkatadri (AIR. 1922 Madras 457) in support of his contention that the suit is barred by limitation. But a later decision of the Madras High Court in Meenakshi Sundarammal v. Subramania Ayyar (AIR. 1955 Madras 369) took the view that it was not mere possession of the estate that attracted Art.123 but possession with a duty to distribute the legacy. Their Lordships of the Madras High Court made the following observation about the decision in Zamindar of Bhadrachalam v. Venkatadri (AIR. 1922 Madras 457): "In'Rajah Parthasarathi Appa Rao v. Rajah Venkatadri Appa Rao' (AIR. 1922 Mad. 457) (FB) (I) it was held that Art.123 of the Limitation Act applied to suits for legacies against any person rightly or wrongly in possession of the estate of the testator; and under such circumstances that he was bound to deal with it as the estate of the deceased testator. That decision was confirmed on appeal by the Privy Council, where however, it appears to have been conceded that Art.123 applied." 13. We therefore hold that Art.123 is not applicable to the case. There cannot be any question of adverse possession also. In view of the terms in Ext. That decision was confirmed on appeal by the Privy Council, where however, it appears to have been conceded that Art.123 applied." 13. We therefore hold that Art.123 is not applicable to the case. There cannot be any question of adverse possession also. In view of the terms in Ext. A3, after the lifetime of Kalliani Amma, Unnikrishna Menon is entitled to be in possession of the plaint property during his lifetime. Narayana Menon and his heirs or legatees can get the right to possession only after the death of Unnikrishna Menon. Unnikrishna Menon died only on 7 91958 and the suit was filed on 7111958. The plea of adverse possession raised on behalf of the appellants cannot also stand. The contention based on the failure to implead the necessary parties in the suit was not pressed before us. In the result, in confirmation of the judgments and decrees of the courts below, we dismiss the second appeal with costs. Dismissed.