ACHUTHA MENON v. JAGANATHA MENON — 1983 DIGILAW 246 (KER)

Judgment :- 1. The 1st defendant in O.S. No. 35 of 1975 before the Sub Court, Palghat is the appellant. The appeal is directed against the preliminary decree and judgment dated 3-1-1978 in the suit for partition whereby the court declared the plaintiff's right for I/ 6th share in the sub-tarwad properties granting the incidental reliefs. 2. The plaintiff and defendants 1 to 4 are members of Marumakkathayam sub-tarwad governed by the Madras Marumakkathayam Act 1932 and the Kerala Joint Hindu Family System (Abolition) Act 1976. The plaintiff claimed 1/6th share in the suit properties stating that the tavazhi is undivided and these are tavazhi properties. The plaintiff had on 16-7-1971 executed Ext. B5 registered release deed in favour of the 1st defendant the then Karanavan of the sub-tarwad transferring his rights in item Nos.1 to 3 for a consideration of Rs. 1,000/-. There had been a subsequent partition deed executed between the other members of the tarwad as evidenced by Ext. B6 dated 29-7-1974. The plaintiff alleged that Ext. B5 is vitiated by fraud and undue influence and is inoperative and Ext. B6 does not bind him. 3. The 1st defendant contended inter alia thus. The plaintiff had released his interest in the tavazhi properties by executing Ext. B5 in his favour. The plaintiff is not therefore entitled to any share in the suit properties. The properties had been divided between the members and enjoyed by them on the basis of the division effected. It was also contended that the 1st defendant was not the karanavan of the tarwad and item No. 6 of the plaint schedule property belongs to him exclusively. By filing an additional written statement the 1st defendant put forward his further contention that even if Ext. B5 is avoided as invalid, the properties included therein cannot be recovered by the plaintiff inasmuch as the 1st defendant is entitled to the property on equitable principles. 4. The court below raised the necessary issues on the pleadings. Under issue Nos. 3, 4, H and 12 the court considered the effect of Ext. B5 and came to the conclusion that Ext. B5 is void and is not binding on the plaintiff: and that since it is void it is not required to be set aside. 4. The court below raised the necessary issues on the pleadings. Under issue Nos. 3, 4, H and 12 the court considered the effect of Ext. B5 and came to the conclusion that Ext. B5 is void and is not binding on the plaintiff: and that since it is void it is not required to be set aside. The contention of the 1st defendant based on S.43 of the Transfer of Property Act was rejected stating that the right of the plaintiff is not lost by doctrine of estoppel by deed as the plaintiff could not assign his undivided share to the 1st defendant who was deemed to be aware of the true nature of the rights the members had over the properties. On the basis of the above finding the plaintiff's right for a share in the items 1 to 5 was declared. The detailed facts of the case or the other findings are not relevant for the purpose of the present appeal. Therefore those details are not adverted to herein, 5. The appellant has challenged the preliminary decree mainly on the ground that these findings relating to Ext. B5 are wrong and unsustainable. The contentions of the appellant are twofold Firstly it is contended that by the intendment of Ext. B5 it operates as release by the plaintiff in respect of all his interests in the family and the fact that it is executed in favour of the appellant alone cannot detract from its operation as a release. It is stated that even if Ext. B5 is to be construed as an assignment it is valid and binding on the plaintiff and operates to transfer the rights of the plaintiff to the appellant. Secondly it is contended that in the event of Ext. B5 not being valid, the principle of feeding the grant by estoppel will enable and entitle the appellant to acquire rights over the properties comprised in Ext. B5, the plaintiff having obtained a divisible share therein. It is pointed out that by virtue of the Kerala Joint Hindu Family System (Abolition) Act, 1976, the tarwad has disrupted and the members have become co-owners of the properties with definite alienable share with the result that Ext. B5, the plaintiff having obtained a divisible share therein. It is pointed out that by virtue of the Kerala Joint Hindu Family System (Abolition) Act, 1976, the tarwad has disrupted and the members have become co-owners of the properties with definite alienable share with the result that Ext. B5 would operate on the share of the plaintiff so as to enable the appellant to enter into the shoes of the plaintiff and acquire the plaintiff's share in the properties comprised in Ext. B5. It is stated that S.43 of the Transfer of Property Act or in any event, the principle underlying the same will apply to the facts of this case so as to validate Ext. 85 by the subsequent events and legislation. 6. The court below has found that Ext, B5 styled as surrender deed is the transfer deed in effect and for consideration and that the 1st defendant on the material date was the karanavan of the tavazhi consisting of the plaintiff and defendants 1 to 4. Plaint A schedule properties were given to the tavazhi for maintenance under registered deed of 1929 and the tavazhi got divided from the tarwad. The A schedule property consists of six items of which item Nos.1 to 3 have been included in Ext. B5. The 1st defendant claimed exclusive right over item No. 6. The lower court upheld this claim of the 1st defendant finding that this property was sold in court auction purchased by the 1st defendant and it thus belongs to the 1st defendant. The claim of the 1st defendant in item No. 5 was rejected, the court having found that the building belongs to the tavazhi Item No. 4 was also found to be tavazhi property. The admitted tavazhi properties are thus item Nos.1 to 5. The deed executed by Ext. B5 relates to only three out of these items. As per the recital in Ext. B5 the plaintiff had released his right over his share in these properties in favour of the 1st defendant for valuable considerations. There is no express declaration in the deed that the plaintiff had claimed partition or that the share in the items specified is in lieu of his share in tavazhi properties. The deed purports to be a transfer in respect of the undivided share in the items specified without any reservation regarding the plaintiff's right over the remaining tavazhi properties. There is no express declaration in the deed that the plaintiff had claimed partition or that the share in the items specified is in lieu of his share in tavazhi properties. The deed purports to be a transfer in respect of the undivided share in the items specified without any reservation regarding the plaintiff's right over the remaining tavazhi properties. The lower court has found that Ext. B5 is a transfer in respect of undivided interest of a member of the Marumakkathayam tarwad, the plaintiff is incompetent to alienate such share and therefore Ext. B5 is void. 7. The learned counsel for the appellant has put forward the contention that by execution of Ext. B5 the plaintiff had exercised his right to claim partition of the tavazhi properties and had thereby got divided from the tarwad; and whatever rights the plaintiff had over the tarwad properties got crystallised on severance of status, and it is that right which has been transferred in favour of the 1st defendant. It is said that the deed is therefore to be upheld as a valid transfer. In support of this contention reliance was placed on the decision in Haridasa Menon v. Saraswathi Bhai Amma (ILR. (1975) 2 Kerala 461) and Sankara Pillai v. Kesavan (1976 KLT. 491) (FB) after referring to the decision in Ammalu Amma v. Lakshmy Amma (1966 KLT.32) (FB.). 8. It is settled law that until partition no member of a Marumakkathayam tarwad has a definite share in tarwad properties and undivided share is not alienable. In Antherman v. Kannan & Others (1960 KLT. 1313): (1960 KLJ.1413) (FB.) after drawing distinction between compulsory sales and voluntary alienation this court held that the power of voluntary alienation is not an inevitable corollary of the right to compulsory partition. Dissenting from the decision in Kunhikrishnan v. Anantharaman (1959 KLT. 1160) the Full Bench also held that the undivided share of a Marumakkathayee cannot be the subject matter of a transfer inter vivos. Dissenting from the decision in Kunhikrishnan v. Anantharaman (1959 KLT. 1160) the Full Bench also held that the undivided share of a Marumakkathayee cannot be the subject matter of a transfer inter vivos. The larger Bench of the Kerala High Court again considered the question in the light of all the authorities on the point is Ammalu Amma v. Lakshmy Amma (1966 KLT.32) (FB.) and said: "the interest of a member in the property of his joint family is not saleable property over which he has a disposing power and an alienation whether out of his own volition or under compulsion of court, was not permitted.". It was reiterated that the undivided interest of a member of a Marumakkathayam tarwad governed by the Madras Marumakkathayam Act 1932 is not transferable. There can therefore be no doubt that the share the plaintiff had over his tarwad properties could not be alienated by execution of registered deed like Ext. B5. 9. It has however been contended that the division in status and severance of interest has to be inferred from the tenor of Ext. B5 and it has to be deemed that the plaintiff had exercised his right to claim partition and separated himself from the family on execution of Ext. B5. Partition by separation or severance in interest is effected by unequivocal declaration of intention to separate from the joint family. What constitutes an unequivocal declaration so as to effect a division in status has been considered in several cases. The mere execution of documents by some individual members asserting their rights to their separate shares in the tarwad properties will not result in a legal and valid division of the tarwad properties or in the several members attaining a divided status even if such assertion is made by the vast majority of the members thereof. A unilateral declaration of intention to separate communicated to the other members effects a division in status between the members so declaring and the others. The mere execution of a deed like Ext.B5 in favour of one of the members (may be he is the karanavan) asserting right to a share would not work out a division in status. A unilateral declaration of intention to separate communicated to the other members effects a division in status between the members so declaring and the others. The mere execution of a deed like Ext.B5 in favour of one of the members (may be he is the karanavan) asserting right to a share would not work out a division in status. To say that an assertion of right in tarwad properties on transfer of the individual share therein is an exercise of the right to partition anterior to the transfer bringing about a severance in status, is too wide a proposition to be accepted. The assertion of right on transfer of the interest would not result in division of status constituting a partition before alienation, in order to validate the transfer as one of divided interest. It is useful to quote from the decision in Ammalu Amma v. Lakshmy Amma (1966 KLT. 32) (FB) in this context. In Para.12 at page 39 of the report this aspect of the case has been dealt with thus: "Can it be that a power of disposal necessarily inheres in the right to a partition? I think not, and, with great respect, I think, that to say that it does, is to confuse between an incident of a right and a consequence of the exercise of that right. It is not until the joint property has become separate property held in definite shares (though not necessarily divided by metes and bounds) that the interest of an individual member becomes property capable of transfer and the member, now a divided member, acquires the power of disposal. This takes place only when there has been a division of status by an unequivocal declaration duly communicated, in other words, by a demand for partition. The right to a partition does not effect a division of status; only an exercise of that right does; and, it is as a consequence of that exercise that the member's interest becomes property over which he has a disposing power. If a right to partition by itself confers a power of disposal it must necessarily follow that the undivided member should be able to transfer his interest without any limitation, whether voluntarily or compulsorily, whether for value or gratuitously. If a right to partition by itself confers a power of disposal it must necessarily follow that the undivided member should be able to transfer his interest without any limitation, whether voluntarily or compulsorily, whether for value or gratuitously. But that, as noticed above, is not so." It is clearly laid down in Para.14 that: "Does a sale by a member of his undivided share or of a particular item of joint family property, or an attachment by the court in execution of a decree against him. amount to a demand for a partition thus effecting a severance of status? Here again it is settled law that it does not." We are therefore unable to accept the contention of the appellant's learned counsel that on execution of Ext. B5 there had been a demand for partition resulting in division in status before disposal of the share. 10. The decision in Haridasa Menon v. Saraswathi Bhai Amma (ILR. (1975)2 Kerala 461) and Sankara Pillai v. Kesavan (1976 KLT. 491) (FB.) do not advance the case of the appellant. The question considered in Haridasa Menon v. Saraswathi Bhai Amma (ILR (1975)2 Kerala 461) was whether the share of a member of a Nayar Tarwad can be alienated by him or liable to be attached when there is a division in status without actual partition by metes and bounds. In that case there had been the finding of a demand for partition by the plaintiff and the resultant division in status of the tarwad. Thereafter the plaintiff in that case had executed a sale deed; but subsequently the plaintiff claimed partition and division of his share on the allegation that the undivided share purported to have been transferred was not conveyed, the document being void. On the facts of the case it was found that the plaintiff had demanded partition. It was then considered whether a division in status would be sufficient to validate the deed or actual partition by metes and bounds was necessary to constitute partition in order that the deed could be upheld. Referring to the following observations of Raman Nair, J., as he then was, in Dhanalakshmi Bank Ltd. v. Neelakantan Nambudiri-pad (1964 KLT. It was then considered whether a division in status would be sufficient to validate the deed or actual partition by metes and bounds was necessary to constitute partition in order that the deed could be upheld. Referring to the following observations of Raman Nair, J., as he then was, in Dhanalakshmi Bank Ltd. v. Neelakantan Nambudiri-pad (1964 KLT. 219): "In fact I doubt whether either the customary Marumakkathayam Law or the Cochin Nayar Act recognises the intermediate position of a mere division in status (converting the coparceners into tenants-in-common) between joint status and an out-and-out partition, unless we import the Mitakshara doctrine as a necessary incident of the statutory right to demand a partition." the court said that in a later decision in Ammalu Amma v. Lakshmy Amma (1966 KLT. 32) (FB.) Raman Nair, J., as he then was, has subscribed to the view that: "By exercising his 'power' to claim partition which is a separate and distinct power from the power to dispose of his undivided interest a member becomes divided and what he disposes of thereafter is not his undivided interest in tarwad property." After adverting to these decisions, the Division Bench in Haridasa Menon v. Saraswathi Bhai Amma held the view that there is no substance in the contention that until partition by metes and bounds is effected the interest of a member in the tarwad property cannot be alienated. The decision has no bearing in a case where there is no division in status by demand for partition. 11. In Sankara Pillai v. Kesavan (1976 KLT. 491) (F.B.) the question that arose for consideration was whether a member of a Marumakkathayam tarwad attains divided status conferring on him an alienable and heritable share of the tarwad properties, on his issuing a notice to the karanavan of his fixed intention to separate from the rest of the tarwad without issuing such notices to the other members of the tarwad. The court held that to attain divided status it would be sufficient for a member of a Marumakkathayam tarwad to deliver notice to the karanavan alone and there is no need for issuing notices to all the members individually for that purpose. These decisions have not laid down that mere execution of sale deed asserting a share in the tarwad properties would bring about a partition, or division in status. These decisions have not laid down that mere execution of sale deed asserting a share in the tarwad properties would bring about a partition, or division in status. The question now posed before us is whether the execution of the deed could be treated as a demand for partition resulting in division in status and the simultaneous disposal of the share is in effect a transfer of the divided interest. We have no hesitation to hold that it is not so. 12. The further argument advanced on behalf of the appellant is that in the context in which Ext. B5 came into existence and the other facts and circumstances in the case Ext. B5 was clearly intended by the parties to cut the plaintiff from the family and of his interest in the family properties and on a proper construction of the deed it is to be considered as a deed of renunciation by the member of the tavazhi operating as a release by the plaintiff in respect of his interest in the family. It is stated that the mere fact that it is executed in favour of the karanavan cannot detract from its operation as a release. 13. It is clear from the recitals in Ext. B5 that what has been transferred under Ext. B5 is the undivided share the plaintiff had over certain items of tarwad properties scheduled in the deed. There is no statement in the deed to the effect that the plaintiff had claimed his share in the tarwad property or had the intention to separate from the tarwad. It is also not expressly stated that the plaintiff had released his rights over the entire tarwad property or that the deed is one of renunciation of the plaintiff's interest. The deed purports to be only a transfer of the plaintiff's share in specific items of immovable properties belonging to the tarwad in favour of one of the members of the tarwad who happened to be the karanavan. 14. It has been stated in Achuthan Nambiar v. Kunhiraman Nambiar & Others ((1962)1 KLR.340) that a renunciation to operate as such, must amount to his total effacement as a member of tarwad and transfer of his interest in specified items of properties is no renunciation of his interest in the tarwad. It was then pointed out referring to the decision in Sankaranarayanan Nair v. Achuthan Nair (1982 KLJ. It was then pointed out referring to the decision in Sankaranarayanan Nair v. Achuthan Nair (1982 KLJ. 61) that Ext. B5 has to be construed as a deed of relinquishment. The observations in that case is that: "There is fundamental difference between a transfer or sale and relinquishment. A sale or transfer presupposes the existence of the property which is sold or transferred. It presupposes the transfer from one person to another of the right in the property. On the other hand relinquishment or surrender means the extinction of a right or the destruction of a property and if the property is destroyed or the right is extinguished there is nothing left to transfer or sell-Where more than one person have a property and one of them releases his right or relinquishes his right it does not amount to a transfer of a property to another. The executee in this case has as much right in the property as the executant relinquishes his right in favour of the other. No doubt this would make the other sole absolute owner. But in legal parlance it is an extinguishment of a right of the executant only.” As noticed earlier what had been transferred under Ext. B5 is a specific interest in favour of a specified person. It cannot be construed as a relinquishment of the joint interest of the plaintiff "in favour of the other joint owners. The concept of joint ownership in respect of the tarwad property is of no avail 'in the context. In any view of the matter Ext. B5 is an invalid document which does not terminate the rights of the plaintiff over the tarwad properties. We are therefore in agreement with the lower court in holding that the plaintiff's right to claim share in the scheduled properties is not lost by execution of Ext. B5. 15. The next point for consideration is whether the principles of equity will apply on the facts of the case to entitle the appellant to claim the plaintiff's share. It is conceded that S.43 of the Transfer of Property Act cannot apply inasmuch as the appellant as well as the plaintiff-respondents are members of the tarwad who are deemed to know the legal incidents of the tarwad properties and the nature and extent of the right each member has. It is conceded that S.43 of the Transfer of Property Act cannot apply inasmuch as the appellant as well as the plaintiff-respondents are members of the tarwad who are deemed to know the legal incidents of the tarwad properties and the nature and extent of the right each member has. The appellant must be deemed to have taken that into effect; and it cannot be that there had been any representation on the part of. the plaintiff to induce the appellant to the transaction. It has however been contended that the doctrine of equitable estoppel could operate in this case and whatever share the plaintiff has over the suit properties is deemed to have been acquired by the appellant who had paid consideration under the deed. 16. The decision in Ouseph v. Govindankutty Menon (1971 KLJ. 809) heavily relied on by the appellant's learned counsel is distinguishable on the facts of the case. It was stated in that case that when a person executes a document purporting to assign property to be afterwards acquired by him, that property on its acquisition passes in equity to the assignee; and where in the absence of title the property is transferred, the subsequent acquisition of title would make good the earlier absence of or defect in title. The plaintiff as a member of the tarwad had interest in the property transferred and it is not absence of title or the defect in the title that invalidates the deed. It is only the incompetence of the plaintiff as an undivided member to deal with such interest that vitiates the transfer. Therefore the right, title and interest of the plaintiff did not pass under Ext. B5. In such a case there is no scope for invoking the doctrine of estoppel feeding the title even on equitable consideration. The court below had rightly turned down the claim of the plaintiff. None of the contentions advanced by the appellant can be accepted. 17. The only other ground pressed at the time of hearing by the appellant's learned counsel is that relating to past mesne profits. The trial court has in the preliminary decree provided that the plaintiff is entitled to get his share of mesne profits for three years prior to the date of suit from the 1st defendant deferring determination of the quantum at the time of the final decree. The trial court has in the preliminary decree provided that the plaintiff is entitled to get his share of mesne profits for three years prior to the date of suit from the 1st defendant deferring determination of the quantum at the time of the final decree. This part of the decree is objected to on the ground that the plaintiff is not entitled to call upon the 1st defendant the karanavan to account. 18. The D relief claimed in the plaint is for accounting of the profits and the plaintiff has remitted court fee of Rs. 50/- on an estimated valuation of Rs. 500/-. The issue whether the plaintiff is entitled to claim accounting as against 1st defendant is discussed in Para.30 of the judgment. The lower court was of the view that prior to 1974 the plaintiff was maintaining the properties as karanavan and he is liable to account for the income derived from the property for three years prior to the date of the suit, because he admittedly did not pay any share of profits to the plaintiff. 19. A decree for accounting for the income of three years prior to the institution of the suit cannot be sustained because the 1st defendant as karanavan had the right to be in possession of the tavazhi property to the exclusion of the other members of the tavazhi and was not bound to render account. We may in support of this position refer to a decision in Unnikrishna Menon v. Sankara Menon (1964 KLT.1049) wherein it has been observed that: "A Karanavan is not a trustee or an agent of the tarwad. The property is vested in the Karanavan not as agent or principal partner but almost as an absolute ruler. Not being a trustee or agent, the question of accounting does not arise, except as a defence in a suit for his removal." 20. The finding of the lower court that the 1st defendant is liable to account for the past mesne profits for three years is therefore reversed. The preliminary decree requires to be modified accordingly. In the result the appeal is allowed to the limited extent of modifying the preliminary decree in negativing the claim for past mesne profits. The decree is confirmed in other respects. In the circumstances of the case we make no order as to costs.