SARADA v. MADHAVAN — 1974 DIGILAW 122 (KER)

Judgment :- 1. Plaintiffs 2,3 and 5 to 11 in O. S. No. 66 of 1965 of the Sub Court of Alleppey are the appellants. The suit is one for partition. Acharu Janaki the Ist plaintiff was subsequently transposed as additional 38th defendant. 2. As per the plaint allegations, the plaintiffs and defendants are the members of an undivided Ezhava Marumakkathayam tarwad. Defendants 1 to 5 and the 1st plaintiff Acharu Janaki are the children of deceased Acharu. The 2nd plaintiff and defendants 6 to 10 are the children of the 38th defendant Acharu Janaki. Plaintiffs 3 to 10 are the children of the 2nd plaintiff Sarada and the 11th plaintiff is a grand-daughter of the 2nd plaintiff. Defendants 11 to 15 are the children of the 8th defendant while defendants 16 to 18 are the children of the 9th defendant. 19th defendant is the daughter of the 2nd defendant and defendants 20 to 24 are the children of the 19th defendant. Additional 38th defendant, defendants 6 to 18 and the plaintiffs are the members of the tavazhi of the additional 38th defendant who was originally the 1st plaintiff. Defendants 2 and 19 to 24 are the members of the tavazhi of the 2nd defendant. The plaint schedule properties belonged to the deceased Acharu and in the year 1098 Acharu executed Ext. P.1 gift deed regarding this property in favour of the 1st plaintiff and defendants 1 to 5 and Krishnan, Gopalan and Vamadevan. All the donees were the children of the said Acharu and Krishnan, Gopalan and Vamadevan died subsequent to Ext. P-1. The allegation in the plaint is that the gift was intended to enure to the benefit of the tarwad of the donees of which the 1st defendant is the karnavan and the 3rd defendant is the next senior member. Plaintiffs and defendants alone are the members of the said sakha tarwad in which altogether there are 35 members out of which 24 belong to the tavazhi of the Ist plaintiff. So, according to the plaintiffs, the Ist plaintiff's tavazhi is entitled to get 24 out of 35 shares in the plaint schedule properties. There are 10 members in the tavazhi of the 2nd plaintiff including herself and plaintiffs 2 to 11 are entitled to get 10/24 out of 24/35 share of the tarwad properties. So, according to the plaintiffs, the Ist plaintiff's tavazhi is entitled to get 24 out of 35 shares in the plaint schedule properties. There are 10 members in the tavazhi of the 2nd plaintiff including herself and plaintiffs 2 to 11 are entitled to get 10/24 out of 24/35 share of the tarwad properties. The further allegation in the plaint is that the plaint schedule properties are in the possession of defendants 1 and 3 to 5 and they are not paying anything for the maintenance of the plaintiffs. It is also alleged in the plaint that there are altogether 8 adult members in the tavazhi of the Ist plaintiff and among them defendants 6 to 9 have given their consent for the filing of the partition suit and hence there is the required majority of the adult members of the tavazhi for filing a suit for partition. Arrears of maintenance and future mesne profits are also claimed from the Ist defendant the karanavan and from the person in possession. 3. Defendants 2 to 5, 6, 10, 22 to 24, 25 to 29, 31 to 37 and 38 have filed written statements. The contentions in the joint written statement filed by defendants 2 to 5 are that Ext. P.1 the gift deed of 1098 was not in favour of the sakha tarwad and that it was only in favour of the donees mentioned therein and hence the Ist plaintiff and defendants 1 to 5 alone are entitled to the plaint schedule properties and plaintiffs 2 to 11 and the other defendants have no right over the properties. It is also contended in the written statement that the properties were never treated by the parties as sakha tarwad properties and that each of the donees who were alive on the date of the suit is entitled to 1/6 share of the properties. Defendants 2 to 5 also contend that the suit is not maintainable and that the plaintiffs have no cause of action as they are not entitled to claim partition. The contention of defendants 6 to 10 is that Ext.P-1 gift deed was not in favour of the sub-tarwad and the donees alone were intended to be benefited by the document. Defendants 2 to 5 also contend that the suit is not maintainable and that the plaintiffs have no cause of action as they are not entitled to claim partition. The contention of defendants 6 to 10 is that Ext.P-1 gift deed was not in favour of the sub-tarwad and the donees alone were intended to be benefited by the document. In the written statement filed by the guardian of minor defendants 22 to 24 the case put forward is that among the plaintiffs the Ist plaintiff alone is entitled to get a, share and defendants 1 to 5 together are entitled to 5/6 share. Since the minor defendants 22 to 24 are the grand children of the 2nd defendant, they are entitled to 1/6 share. Defendants 25 to 29 and 31 to 37 in their joint written statement also contend that the suit is to be dismissed. 4. The 1st plaintiff after getting transposed as additional 38th defendant has filed a written statement supporting the contentions of the other defendants and asserting that the plaint schedule properties are not tarwad properties. She also states that she is not willing for a. partition by which the plaintiffs and defendants 6 to 18 will be separated from her. A contention that the suit is hit by the provisions of S.29 of the Travancore Ezhava Act III of 1100 is also taken by the 38th defendant. 5. On behalf of the plaintiffs, Exts. P-1 and P-2 were marked and the 2nd plaintiff was examined as pw.1. The defendants produced Exts. D-1 to D-11 and on their behalf Dws.1 to 4 were examined. dw.1 is the 38th defendant while dw. 3 is the 3rd defendant and dw. 4 is the 26th defendant. 6. The trial court found that the plaint schedule properties are the tavazhi properties and not the properties belonging to the donees in Ext. P-1 as tenants-in-common. The trial court also found that the plaint schedule properties being the tavazhi properties are liable to be partitioned. On the question of the withdrawal of consent by the Ist plaintiff after the filing of the suit, the trial court came to the conclusion that the subsequent withdrawal of consent will not have any legal effect. P-1 as tenants-in-common. The trial court also found that the plaint schedule properties being the tavazhi properties are liable to be partitioned. On the question of the withdrawal of consent by the Ist plaintiff after the filing of the suit, the trial court came to the conclusion that the subsequent withdrawal of consent will not have any legal effect. But the trial court however held that the suit is not maintainable because the majority of the adult members of the Ist plaintiff's tavazhi have not claimed any outright partition. The trial court also came to the conclusion that the 2nd plaintiff and her children do not form a tavazhi. Hence the suit was dismissed with costs. 7. It is against the above judgment and decree that plaintiffs 2,3 and 5 to 11 have come up in appeal. 8. Respondents 2 to 5 and 24 to 37 have filed a memorandum of cross-objections questioning the finding of the trial court that the plaint schedule properties are the tavazhi properties and not the properties belonging to the eo nomine donees in Ext. P-1 as tenants-in-common. 9. Before us the main contention urged on behalf of the appellants is that the suit is maintainable and it is not hit by S.29 and 30 of the Travancore Ezhava Act III of 1100 as plaintiffs 2 to 11 are members of a collateral tavazhi and they could by themselves sustain a claim for partition under S.30 of the Act. It is also contended that the majority of the adult members of the 38th defendant's tavazhi have given consent to the plaintiffs' claim for partition and that this aspect has not been adverted to by the court below. 10. S.28 to 31 of the Travancore Ezhava Act III of 1100 deal with the partition of tarwad property. S.31 which deals with the share on partition is not relevant for the purposes of this case. We extract hereunder S.28 to 30: "28. Except as hereinafter provided, no person shall claim or be compelled to divide from any other member of such person's own Thavazhee. 29. Except as hereinafter provided, no person shall claim or be compelled to divide from any other member of the Thavazhee of such person's lineal ascendant in the female line during the life-time of such ascendant. 30. Except as hereinafter provided, no person shall claim or be compelled to divide from any other member of such person's own Thavazhee. 29. Except as hereinafter provided, no person shall claim or be compelled to divide from any other member of the Thavazhee of such person's lineal ascendant in the female line during the life-time of such ascendant. 30. After the death of the lineal ascendant referred to in S.29, or with her consent,-(1) each collateral Thavazhee represented by the majority of the adult members thereof, or (2) the male children or female children without issue of such lineal ascendant and who are not included in the Thavazhee referred to in clause (1), may claim an outright partition of property over which the Tarwad has the power of disposal." S. 4 (3) defines Thavazhee of a female as follows: "4. (3) 'Thavazhee of a female' means a group of persons consisting of that female and her issue how¬low-so-ever in the female line, or such of that group as are alive." S. 4 (5) which defines collateral Thavazhees is as follows: "4 (5) 'Collateral Thavazhees' are Thavazhees of females who, though descended from a common ancestress, do not stand in the direct line of ascent or descent from one another." A reading of S.28 to 30 makes it clear that a collateral thayazee represented by a majority of the adult members thereof can claim an outright partition of tarwad properties. Male or female children of the lineal ascendant in the female line who have no issues and who are not included in any of the collateral thavazhees can also claim an outright partition. In both cases, if the lineal ascendant is alive, her consent also must be obtained. So, in a suit for partition the majority of the adult members of the collateral thavazhee must figure as plaintiffs. It is not sufficient if the majority of the adult members have given their consent. The suit itself must be by the majority of the adult members of a collateral thavazhee. This takes us to the question as to what is a tavazhee and when will two thavazhees be collateral. A thavazhee of a female consists of that female who is a daughter of the common ancestress and her children how-low¬so-ever in the female line. The suit itself must be by the majority of the adult members of a collateral thavazhee. This takes us to the question as to what is a tavazhee and when will two thavazhees be collateral. A thavazhee of a female consists of that female who is a daughter of the common ancestress and her children how-low¬so-ever in the female line. Another daughter of the common ancestress with her children how-low-so-ever in the female line will constitute a similar thavazhee and in the tarwad these two thavazhees will be collateral thavazhees in relation to one another. The females in a thavazbee, other than the lineal ascendant, with their children, their grand children through their daughters and grand daughters and so on will constitute groups exactly similar in characteristics to that of a thavazhee. But the question is whether these groups which can be called sub-thavazees in the different thavazhees in a tarwad will have the legal status of a thavazhee as long as the tarwad remains in tact. The answer is they will not have. They will not be thavazhees of the tarwad and for that reason collateral thavazhees of the tarwad. So the members of such a sub-thavazhee cannot bring a suit for partition of the tarwad properties even with the consent of their lineal ascendant because they are not members of a collateral thavazhee of the tarwad. Under S.30 of the Travancore Ezhava Act III of 1100 only a collateral thavazhee represented by the majority of the adult members can claim an outright partition of the tarwad properties. This is the view expressed by a Division Bench of the Travancore High Court in Madhavan v. Nalini Amma (1947 TLR. 167) and also by a Division Bench of the Travancore-Cochin High Court in Raman v. Lekshmi (AIR. 1952 T.C. 563). We are in respectful agreement with the dictum laid down in the above rulings. Though the learned counsel for the appellants strongly relied on the Full Bench decision of this Court in Gopala Paniken v. Kunji (1958 KLT. 253) we are unable to find anything in that ruling which is of assistance to the appellants in this case 11. The suit is for partition of the tarwad properties. According to the plaintiffs, the thavazhee of the plaintiffs and defendants 6 to 18 is entitled to 24/35 share. The first plaintiff is the lineal ascendant of this thavazhee. 253) we are unable to find anything in that ruling which is of assistance to the appellants in this case 11. The suit is for partition of the tarwad properties. According to the plaintiffs, the thavazhee of the plaintiffs and defendants 6 to 18 is entitled to 24/35 share. The first plaintiff is the lineal ascendant of this thavazhee. There is also another prayer for a further partition of 10/24 share to plaintiffs 2 to 11 out of the 24/35 share to be allotted to the thavazhee of the 1st plaintiff. S.30 of the Travancore Ezhava Act III of 1100 confers a right only on the majority of the adult members in a collateral thavazhee to institute a suit for partition of the tarwad. In this case, defendants 6 to 10 and 39 are admittedly adult members of the 1st plaintiff' thavazhee. Amongst the plaintiffs only plaintiffs 1 to 3 are majors and hence it is manifest that the suit has not been instituted by the majority of the adult members of the thavazhee. The suit is therefore not maintainable as it is hit by S.30 of the Act. The consent given by defendants 7 to 9 as per Ext. P-2 cannot in any way save the situation. As already indicated, what is contemplated by S.30 is that the claim for an outright partition should be made only by a collateral thavazhee represented by the majority of its adult members. Moreover, defendants 6 to 10 have filed written statements opposing the plaint claim. For the reasons stated above, the claim for partition of 24/35 share of the plaint schedule properties cannot be sustained. Likewise, the claim of the plaintiffs 2 to 11 for a 10/24 share of the properties to be set apart to the Ist plaintiff's thavazhee is equally untenable. The group consisting of plaintiffs 2 to 11 has not the legal status of a collateral thavazhee in the tarwad. We have therefore no hesitation to confirm the findings entered by the court below on these issues. 12. Before parting with the case we have to refer to the cross-objections filed by respondents 2 to 5 and 24 to 37 questioning the trial court's finding that by Ext. D-3 document rights were conferred upon tarwad as a whole. We have therefore no hesitation to confirm the findings entered by the court below on these issues. 12. Before parting with the case we have to refer to the cross-objections filed by respondents 2 to 5 and 24 to 37 questioning the trial court's finding that by Ext. D-3 document rights were conferred upon tarwad as a whole. A reading of the document as a whole will make it abundantly clear that the donor gifted the properties to the tarwad and not to the eo nomine donees. So, the finding of the trial court on this aspect also will stand confirmed. 13. In the result, we dismiss the appeal as well as the memorandum of cross-objections. The appellants will pay the costs of the contesting respondents in this appeal. Dismissed.