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2001 DIGILAW 338 (KER)

Madhava Kurup T. C. v. T Madhava Kurup

2001-06-29

A.LEKSHMIKUTTY, S.SANKARASUBBAN

body2001
JUDGMENT S. Sankarasubban, J. 1. This appeal is filed by defendants 1, 3, 4, 9 to 12, 27 and 28 against the Judgment and Decree in O.S. No. 96 of 1.986 on the file of the Subordinate Judge's Court, Vadakara, The suit was for partition. The plaintiffs claimed that they are entitled to 2/6 share over the plaint 'B' schedule immovable properties which are four in number. Defendants 1, to 4 were the main con testers. They contended that the plaintiffs have no right over the property and prayed for dismissal of the suit. The plaint schedule property is the Tavazhi of one Ummamma Amma. Ummamma Amma had a son, Krishnan Nair and a daughter, Mathu Amma. Mathu Amma had four children. Balakrishnan Nair, Appa Nair, Karunakaran Nair and Meenakshi Amma. The plaintiffs are Balakrishnan Nair's daughter's children. Defendants 1 to 4 are the children of Appa Nair. Karunakaran Nair and Meenakshi Amma died issueless. Their rights over the properties devolved on the Tavazhi consisting of Matha Amma, Krishnan Nair, Balakrishnan Nair and Appa Nair. Krishnan Nair died in 1934 and his rights devolved upon the Tavazhi consisting of Mathu Amma, Balakrishnan Nair and Appa Nair. Matha Amma also died. Thereafter, only two members of the Tavazhi survived, viz., "Balakrishnan Nair and Appa Nair. Balakrishnan Nair died in 1950. 2. According to the plaintiffs, when Balakrishnan Nair died, his half share devolved on his children. According to defendants 1 to 4, when 'Balakrishnan Nair died, Appa Nair became the sole surviving member of the Tavazhi and the plaint schedule properties became the exclusive properties of Appa Nair. Appa Nair died in 1,967. Appa Nair had bequeathed plaint item No. 1 to defendants 4 to 8 under a Will, dated 24th February 1961. He had also bequeathed item No. 4 to the second defendant. Item Nos. 2 and 3 had been gifted by Appa Nair to the fourth defendant under a registered gift deed, dated 12lh November 1959. Therefore, the main controversy in the suit was as to whether the plaint properties, which were the Tavazhi properties of the Tavazhi consisting of Mathu Amma, Balakrishnan Nair and Appa Nair, devolved on Balakrishnan Nair and Appa Nair, after the death of Mathu Amma, as Tavazhi properties in their hands as coownership properties. Therefore, the main controversy in the suit was as to whether the plaint properties, which were the Tavazhi properties of the Tavazhi consisting of Mathu Amma, Balakrishnan Nair and Appa Nair, devolved on Balakrishnan Nair and Appa Nair, after the death of Mathu Amma, as Tavazhi properties in their hands as coownership properties. If the ' properties were coownership properties in the hands of Balakrishnan Nair and Appa Nair, the plaintiffs were to succeed. If the properties were Tavazhi properties in the hands of Balakrishnan Nair and Appa Nair, then the defendants were to succeed. The court below held that the plaintiffs are to succeed because the properties were coownership properties in the hands of Balakrishnan Nair and Appa Nair. Issue No. 2 in the suit related to the question of adverse possession raised by the contesting defendants. This issue was found against the defendants. Hence, the court below granted a Decree for partition giving 2 out of 6 shares to the plaintiffs. It is against the above Judgment and Decree that the present appeal is filed. 3. The learned Sub Judge considered this question as issue Nos. 1 to 3, the court below relied on the decision reported in Balachandran v. Sankaran Nair 1985 KLT 459 and held that the plaintiffs are entitled to succeed. The learned counsel for the appellant Sri P. G. Rajagopalan submitted that the above decision was concerned with the case of self acquisition and not a case of Tavazhi property and hence, the lower court was not correct in applying that decision. He relied on the decisions in Gowli Buddanna v. Commissioner of Income Tax, Mysore AIR 1966 SC 1523 , Thiruthipalli Raman Menon and others v. Variangattil Falisseri Raman Menon ILR 24 Madras (P. C.) 73, and also. ....... 1967 KLT 430. Learned counsel for the respondents submitted that the decision in 1985 KLT 459 applies to the facts of this case. 4. Before we go into the rival contentions, we wish to reiterate the contentions here. The Tavazhi consists of Mathu Amma and her four children, Balakrishnan Nair, Appa Nair, Karunakaran Nair and Meenakshi Amma. Meenakshi Amma and Karunakaran Nair died in 1931 without leaving any issues. Thus, it is clear that in 1931, the Tavazhi consisted of only three members, Mathu Amma, Balakrishnan Nair and Appa Nair. Mathu Amma died in 1944. The Tavazhi consists of Mathu Amma and her four children, Balakrishnan Nair, Appa Nair, Karunakaran Nair and Meenakshi Amma. Meenakshi Amma and Karunakaran Nair died in 1931 without leaving any issues. Thus, it is clear that in 1931, the Tavazhi consisted of only three members, Mathu Amma, Balakrishnan Nair and Appa Nair. Mathu Amma died in 1944. At that time, the other members are Balakrishnan Nair and Appa Nair. What the plaintiffs contend is that the Tavazhi should consist of at least a female member and when Mathu Amma died, there were only two male members and hence, Balakrishnan Nair and Appa Nair became the coowners of the properties. Hence, after the death of Balakrishnan Nair in 1950, his share would devolve on his legal heirs under the Law of Succession. On the other hand, the contention on behalf of the appellants is that nowhere, it is stated that the Tavazhi cannot continue without the existence of a female member. It is true that the Tavazhi is a descendant in the female line. But so long as there is no division, the Tavazhi will continue and that after the death of each member of the Tavazhi, the property will survive to the surviving members and the last member of the Tavazhi will become the absolute owner of the property. Hence, according to the appellants, after the death of Balakrishnan Nair, his share in the property will go to the share of Appa Nair. Thus, Appa Nair became the absolute owner of the Thavazhi properties and when he died in 1967, as per the Succession Act, since the property becomes the absolute property, it will devolve on his legal heirs. 5. Now, let us consider the decision in Balachandran v. Sankaran Nair 1985 KLT 459 . The facts of the case are as follows: One Kalliani Amma obtained leasehold right over a property and it was found by the courts below that the right obtained by Kalliani Amma was her separate right and the property comprised in that lease had become her separate property. The contention in the case was that after the death of Kalliani Amma, the property would go to the Tavazhi and not to the legal heirs. The contention in the case was that after the death of Kalliani Amma, the property would go to the Tavazhi and not to the legal heirs. The Division Bench considered this question and in Para.13, the Division Bench held thus: "From that decision it follows that in such a case the self acquisition of a female would descend to her nearest heirs or to her Tavazhi. Definitely, it is by inheritance and not by survivorship". According to us, so far as the above case is concerned, that observation was enough, because, the property was the self acquired property and the self acquired property will devolve only on the nearest heirs and not on the Tavazhi. No doubt, in the above decision, the Division Bench observed as follows: "So far as this case is concerned, the members of the Tavazhi of Kalliani Amma, at the time of her death, were only her two sons. There was no female. Under the Marumakkathayam System of inheritance descent is traced only through females and not through males. When the surviving heirs of Kalliani Amma were only her two sons, there is no question of themselves inheriting the property as Tavazhi. There is no female for the purpose of constituting and continuing the tavazhi. Therefore, by no stretch of imagination, it could be said that they inherited the property as tavazhi with the incidents of survivorship." As a matter of fact, their Lordships followed the decision ia Krishnan v. Damodaran ILR 38 Madras 48, which is concerned with the question of succession of self acquired property of a member of Marumakkathayam family. So far as self acquisition of a member of a Marumakkathayam family is concerned, the property would devolve not on the tavazhi but only on the legal heirs. That is why the Division Bench further observed thus: "Of course, it is true, that this aspect of the matter did not come up for consideration in the above said decision reported in ILR 38 Madras 48 because such a contingency did not arise there. But it is only common knowledge that two surviving males by themselves cannot constitute or continue a tavazhi. If there is no question of inheriting the property as tavazhi, the position is that the two sons take individually." In the above case, another decision which was cited before us was Govindan Nair v. Sankaran Nair ILR 32 Madras 351. 6. But it is only common knowledge that two surviving males by themselves cannot constitute or continue a tavazhi. If there is no question of inheriting the property as tavazhi, the position is that the two sons take individually." In the above case, another decision which was cited before us was Govindan Nair v. Sankaran Nair ILR 32 Madras 351. 6. Sri Rajagopalan, brought to our notice the decision reported in Krishnan v. Damodaran ILR 38 Madras 48. That case was concerned only with the devolution with regard to self acquisition of female member and it was held that the self acquisition on her death, lapse to the tarwad, of which she was a member. The question whether a tavazhi consisting of male members alone can exist did not arise for consideration. We also see that in the Division Bench decision in 1985 KLT 459 , their Lordships did not refer to any decision in observing that the male members cannot continue the tavazhi. 7. In a Treatise on Malabar and Aliyasanthana Law by P. R. Sundara Aiyar at page 160, there is a description regarding tavazhi. It is stated as follows: "Tavazhi literally means: Tayar-mother, vazhi-line, that is mother's line. Though every tarwad is that, the term is ordinarily used to denote one of the component parts of a tarwad consisting of a mother and her descendants.. ................ The term cannot however be said to have acquired a definite signification;......... .The word tavazhi is not employed in connection with a branch unless it owns some property also. One way in which a tavazhi comes to own property is by division of tarwad property for convenience of enjoyment. Another way, in which it comes to hold property is by inheritance. A third way is by gifts and other kinds of acquisition". The decision reported Thiruthipalli Raman Menon and others v. Variangattil Palisseri Raman Menon ILR 24 Madras 73 is a case decided by Privy Council. The question therewas whether a male member of a tavazhi can adopt a person without the consent of the other male member. In that case, what happened was that in a tavazhi there was surviving two brothers. They were Nanu Menon and Govindan Nayar. The eldest was Govindan Nayar. Govindan Nayar adopted four persons to make them members of the tarwad without the consent of the younger brother. In that case, what happened was that in a tavazhi there was surviving two brothers. They were Nanu Menon and Govindan Nayar. The eldest was Govindan Nayar. Govindan Nayar adopted four persons to make them members of the tarwad without the consent of the younger brother. The younger brother, after the death of the elder, sued to set aside the adoption. The adoption was declared valid by the court of First Instance, but this decision was reversed by the High Court of Madras. That decision was taken to the Privy Council. The court observed as follows:: "Large as the powers of a karanavan appear to be, those powers are essentially powers of management. He cannot apparently alienate the family property without the consent of the other members of the family (anandravans), although an unreasonable, wrong-headed opposition may probably be overruled. His limited power of alienation renders it improbable that he should have the wide power of adoption contended for by the appellants, the power, i.e., without consulting other members of the family of introducing strangers into the tarwad and making them heirs to its property. Such a power may be essential to the preservation of the tarwad when the last possible karanavan has been reached, but the possession of such a power by any karanavan, who is not the last surviving head of bis tarwad, seems to their Lordships to be unnecessary and to be unjust to those members of the family who may survive him and become karanavans in their turn. In the absence of proof it would be contrary to sound legal principles to hold that any such power was conferred by any alleged custom." 8. As already stated, the facts were that there were only two surviving members in the tavazhi and the eldest of them adopted certain persons into the tavazhi without the consent of the other member. The Madras High Court as well as the Privy council held that such a power of adoption is invalid. What we wish to stress is that it is a case where only two male members were present in the tavazhi or tarwad. Even though the question whether the tarwad with Male members can exist was not expressly considered, by holding that a karanavan cannot adopt without consent of the other member, according to us, the view has been endorsed that such a tarwad can exist. 9. Even though the question whether the tarwad with Male members can exist was not expressly considered, by holding that a karanavan cannot adopt without consent of the other member, according to us, the view has been endorsed that such a tarwad can exist. 9. In Gowli Buddanna v. Commissioner of Income Tax, Mysore AIR 1966 SC 1523 , the Supreme Court was considering the question of a Hindu undivided family. A contention was raised in the case that there must be at least two male members to form a Hindu undivided family as a taxable entity. Dealing with that contention, the Supreme Court, relying on the decision in Kalyanji Vithaldas v. Commissioner of Income Tax AIR 1937 P.C. 36 held as follows: "The phrase 'Hindu undivided family' is used in the statute with reference not to one school only of Hindu law, but to all schools, and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words 'Hindu coparcenary', all the more that it is not possible to say on the face of the Act that no female can be a member". The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression "Hindu undivided family" in the Income Tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and apparently the Income Tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members". 10. After considering the entire matter, we are of the view that the lower court was not correct in holding that after the death of Mathu Amma, the tarwad became extinct and the two surviving members had become the coowners. The decision in Balachandran v. Sankaran Nair 1985 KLT 459 is concerned, it was confined to the question whether the self acquired property of a female member will devolve on her individual heirs or devolve on the tavazhi. The question did not expressly arise there as to whether the tarwad can consist of two male members. The decision in Balachandran v. Sankaran Nair 1985 KLT 459 is concerned, it was confined to the question whether the self acquired property of a female member will devolve on her individual heirs or devolve on the tavazhi. The question did not expressly arise there as to whether the tarwad can consist of two male members. Further, we are of the view that the Division Bench did not consider the decisions, which we have referred to above. 11. In the above view of the matter, we hold that after the death of Balakrishnan Nair, Appa Nair became the sole surviving member of the tavazhi and the properly became individual property and hence, the plaintiffs are not entitled to any shares over the same. In view of the above, we allow the appeal and set aside the Judgment and decree of the court below and dismiss the suit.