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2011 DIGILAW 290 (KER)

Cherukunnon Shantha v. Kallakandi Sahadevan

2011-03-14

S.S.SATHEESACHANDRAN

body2011
JUDGMENT 1. Second defendant in a suit for partition is the appellant. Challenge in the appeal is against the concurrent decision rendered by the two courts below in the suit, by which a preliminary decree was passed for division of the suit property and allotment of shares to the parties as fixed, with a direction to allot the residential building to the present appellant, without valuation, and determination of other disputes including mesne profits, for consideration in the final decree proceedings. Feeling aggrieved, the appellant has preferred this appeal. 2. The dispute involved in the case lies within in a narrow compass. Parties to the suit are the children and grand-children of one Karinchi and admittedly, earlier governed by Marumakkathayam Law of inheritance, as under the Madras Marumakkathayam Act (Madras Act No.XII of 1933). In Ext.A1 final decree passed in O.S.No.645/59, suit for partition of the tarwad properties, plot A therein, as delineated by the advocate commissioner and accepted by the court was allotted to defendants 13 to 25 in that suit, members of Karinchi’s Thavazhi, in common. Some of the parties in the present suit were among the defendants 13 to 25 in the previous suit, and the rest are no more. The rights of those defendants who had passed away has devolved upon the parties in the present case, and, further, the devolution of such rights are concededly not germane or material in the present appeal, and such, advertence thereto is uncalled for. Suffice to state, in the present suit, the plaintiffs alleged that under the partition effected in O.S.No.645/59 there was disruption of the tarwad, with rights of the members of the tarwad determined, and each of the defendants 13 to 25 in that suit has obtained 1/13th share in part A property allotted to such defendants in common. The thirteen members of Karinchi’s thavazhi, defendants 13 to 25 in the previous suit, took the property allotted to them, as tenants in common, after passing of the final decree, and each member obtained specific share in the joint property is the sheet anchor of the case set up by the plaintiffs in the present suit to claim 9/13th share in the suit property conceding that the rest is due to the defendants. The two defendants in the suit, who are mother and daughter, were defendants 18 and 19 in the previous suit. The two defendants in the suit, who are mother and daughter, were defendants 18 and 19 in the previous suit. The resisted the suit contending that allotment of plot ‘A’ property in common to defendants 13 to 25, who are members of the thavazhi of Karinchi, was an allotment to a thavazhi and the sharers of the group continued as joint tenants over that property. The children of the female members of that thavazhi, who were born after the passing of Ext.A1 decree, but before the coming into force of the Kerala Joint Hindu Family Abolition Act, 1976, are also entitled to share in the property, was their case. The two children of the 2nd defendant who were born before the commencement of the above Act having not been made parties to the suit, it was contended that the suit was bad for non-joinder of necessary parties. They also contended that they are in occupation of the building in the suit property, after effecting improvements expending a lot of sum, to set up a claim over the building for being included in their share on division and allotment, in case claim of partition of the plaintiffs is found allowable. 3. The issues cast in the suit over the pleadings of the parties, as indicated above, covered the questions whether the suit property continued as thavazhi property with the incidents thereof, and the maintainability of the suit impeached as bad for non-joinder of parties. Both sides let in evidence with the plaintiffs examining one witness, (1st plaintiff) as PW.1 and exhibiting Exts.A1 to A5 and the defendants three witnesses, Dws.1 to 3, who included the 2nd defendant/present appellant, and Exts. B1 to B3. The trail court accepted the case of the plaintiff that under the final decree passed in the previous suit, O.S.No.645/59 (Ext.A1) the share of each of the members of the tarwad was determined and, thereafter, the members thereof having got definite share in the property held such property as tenants in common. The allotment of plot A property, the present suit property, to defendants 13 to 25, who are the members of the thavazhi of karinchi as one group, it was found, made no difference, to hold that joint tenancy of such defendants continued after Ext.A1 decree. The allotment of plot A property, the present suit property, to defendants 13 to 25, who are the members of the thavazhi of karinchi as one group, it was found, made no difference, to hold that joint tenancy of such defendants continued after Ext.A1 decree. Challenge raised that the suit is bad for non-joinder of necessary parties for the non-impleadment of the two children, who were born to the 2nd defendant after Ext.A1 decree, but before the coming into force of the act of 1976, was also found to be no consequence. A preliminary decree was passed by the trail court for division of the suit property into 52 equal shares and allotting of 36 shares thereof to the plaintiffs and the rest 16 shares to the defendants. The house situate in the plaint property taking note that the defendants continued in occupation of the same after effecting valuable improvements, was directed to be allotted to the share of the 2nd defendant without valuation. The defendants were also directed to pay past mesne profits for one year, and also future mesne profits, the quantum of which was relegated to be determined in the final decree proceedings. The preliminary decree was assailed in appeal by the defendants reiterating the challenges canvassed by them before the trail court. Pending that appeal, the 1st defendant passed away and, 2nd defendant (the present appellant) was recorded as her sole legal heir. The lower appellate court, after appreciating the materials on record, concurred with the view taken by the trail court that after Ext.A1 decree, the members of the thavazhi of Karinchi, to whom plot A property in that suit was allotted continued as co-owner of that property as tenants in common and not as joint tenants, and so much so, the non-impleadment of the subsequently born children of the 2nd defendant as parties to the suit is of no consequence. The decree of the trail court was confirmed and approved without any modification by the lower appellate court. 4. The decree of the trail court was confirmed and approved without any modification by the lower appellate court. 4. Substantial question of law formulated in the appeal relate to the correctness and legality of the finding entered by the courts below that under Ext.A1 decree, defendants 13 to 25 in O.S.No.645/59 have taken the property allotted to them as tenants in common and not as joint tenants, with reference to the judicial pronouncement rendered by this court in Mary Cherian and another v. Bhargavai Pillai {1967 KLT 432} as to whether a presumption is available that when a natural group of persons governed by Marumakkathayam law obtained property, either by partition or by otherwise, they take such property as thavazhi properties. 5. The learned counsel appearing for the appellant relying on the above referred decision, Mary Cherian’s case and also another, viz., Nullikkodan v. Ayisumma {2002 (3) KLT 883} contended that the allotment of suit property in the previous suit under Ext.A1 decree, on division of the tarward properties, was to a natural group-thavazhi of Karinchi and, so much so, the members thereof have taken the suit property as thavazhi property with all the rights and incidents attached thereto. When the property was not obtained by a member of the tarwad in his individual capacity, but as a natural group, as members of the thavazhi consisting of all such members, it is the submission of the counsel that the rights of such members over the property allotted continued as joint tenants and not as tenants in common. The materials tendered in the case clearly demonstrated that the appellant has got two children who are born before the commencement of the Act of 1976, which became operative from 1.12.1976. Where the suit property under Ext.A1 suit had been allotted to a natural group, the members of Karinchi’s thavazhi, the aforesaid two children born to the appellant are also entitled to have a share in the property and their non-impleadment overlooking the contention raised by the appellant that the suit is bad for non-joinder of parties renders the preliminary decree passed in the suit unsustainable, according to the counsel. Both the courts below went wrong in holding that on division of the tarwad property under Ext.A1, the members of Karinchi’s thavazhi, defendants 13 to 25 in that suit have taken the property allotted, the present suit property, as tenants in common and the shares of each of the member of the thavazhi was determined. The decree granted in favour of the plaintiffs, overlooking the principles of the Marumakkathayam law as discussed in the decisions referred to above, according to the counsel, is erroneous and liable to be set aside. 6. I do not find any merit in the submissions made by the learned counsel for the appellant to assail the concurrent decision rendered in favour of the plaintiffs in the suit negativing the challenges raised by the appellant that the allotment under Ext.A1 decree was to a natural group and as such subsequently born children of the appellant are also entitled to a share in the property. Perusing Ext.A1 decree, as correctly noted by the court below, when a division of the tarwad properties was effected, shares were allotted to the members of the thavazhi of Karinchi, defendants 13 to 25 not as a natural group, but recognizing per-capita share calculating it as 13 shares to the members of that group. Under the decree it was not the allotment of property to a natural group, to a thavazhy of the tarwad. Parties in the previous suit were governed by Madras Marumakkathayam Act, 1932, in the matter of inheritance is not under dispute. Having regard to Explanation II and IV to Section 38 under Chapter VI of that Act, as substituted under Act 26 of 1958, it goes without saying that the challenge now canvassed on the basis of the decisions referred to by the counsel for the appellant has no basis or merit at all. Section 38 and Explanations thereto are quoted hereunder: “38. Any member of member of a tarward or thavazhi may claim to take his or her share of all the properties of the tarwad or thavazhi over which the tarwad or tavazhi has power of disposal and separate from the tarwad or tavazhi. Explanation 1: Nothing in this section shall be a bar for two or more members belonging to the same tarwad or tavazhi claiming their shares of the properties and enjoying the same jointly with all the incidents of tarwad property. Explanation 1: Nothing in this section shall be a bar for two or more members belonging to the same tarwad or tavazhi claiming their shares of the properties and enjoying the same jointly with all the incidents of tarwad property. Explanation 2: The member or members who claim partition under this Section or the member who claims or is compelled to take his or her share under Section 39 shall be entitled to such share or shares of the tarwad or tavazhi properties as would fall to such member or members. If a division Per Capita were made among the members of the tarwad or tavahi then living. Explanation 3: The provisions of this section shall apply to a tarwad notwithstanding the fact that immediately before the commencement of the Madras Marumakkattayam (Amendment) Act, 1958, the tarwad was included in the Schedule or that the tarwad had been registered as impartible. Explanation 4: The provisions of this section shall apply to all suits for partition, appeals and other proceedings arising therefrom filed or proceeded with by members of their legal representatives and pending in the Courts immediately before the commencement of the Madras Marumkkattayam (Amendment) Act, 1958, and such suits, appeals and other proceeding shall be disposed of in accordance with the provisions of this section as if this section were in force at the time of the institution of such suits, appeals or other proceedings.” 7. Substitution of previous Section 38 in the Madras Act No. XII of 1933, by the new provision as aforesaid under the Madras Marumakkattayam (Amendment) Act, 1958, Act 26 of 1958, clearly demonstrate that the amended and new provision has to be applied even to suits for partition pending in the courts immediately before the amendment of the Madras Marumakkathayam Amendment Act, 1958. Such suits shall be disposed of as if the above amended and substituted section were in force at the time of institution of the suits is the mandate under Explanation IV to the Section. Such suits shall be disposed of as if the above amended and substituted section were in force at the time of institution of the suits is the mandate under Explanation IV to the Section. Such being the position of the law, when under Ext.A1 decree, a division of the tarward properties had been effected recognizing per capita shares of the members of the thavazhi, the allotment of property made to them as a group, cannot be canvassed to contend that it was an allotment to the thavazhi and it would continue characteristics of a tarwad as among the members of the thavazhi. True, so far as the female members, who have got right over the tarwad properties, their successors in interest till the advent of the Joint Family Abolition Act could claim right over the per capita share derived by their predecessor, but, they too cannot set up any right as if joint tenancy over the property continued among the members of the thavazhi, to whom as a group, when a division was effected allotment was made on the basis of per capita share of the members of the thavazhi in the tarwad property. Both the decisions relied by the counsel for the appellant have no application to the facts of the case. In Marry Cheriyan’s case {1967 KLT 430} the question for consideration was whether the property obtained by a female member in a tarwad partition would become a thavazhi property on the female member giving birth to a child. A close reading of that case would show the question whether the property obtained by the mother was ‘tarwad property’ was examined with reference to the principles of Marumakkathayam law, both, as under statutory laws-Madras Marumakkathayam Act, 1932, and Travancore Nair Act, 1100, and also judge made laws in the judicial pronouncements made till then. It would be seen from the beginning paragraph of the reported decision, Section 38 of the Madras Marumakkathayam Act before amendment by (Kerala) Act 26 of 1958 alone was examined, and the substituted section 38 never arose for consideration. It would be seen from the beginning paragraph of the reported decision, Section 38 of the Madras Marumakkathayam Act before amendment by (Kerala) Act 26 of 1958 alone was examined, and the substituted section 38 never arose for consideration. In that case, as the female member had got the property from the tarwad as her separate share, when she was childless, in 1105 M.E. (paragraph 17 of the judgment), the question whether the children subsequently born to her obtained any right over the property not warranted any scrutiny with reference to the substituted section 38 to the Madras Marumakkathayam Act under Act 26 of 1958 (Kerala). In Nullikkodan’s case {2003 (3) KLT 883}, it is seen, the scope, ambit and applicability of the substituted section 38, by Amendment Act 26 of 1958 (Kerala) was not gone into, and, further the facts involved as stated in the decision are not sufficient enough to indicate whether the division of the tarwad property had taken place before or after the operation of the aforesaid Amended Act, substituting Section 38 of the Madras Marumakkathayam Act, 1932. But it is noticed that the earlier decision in Mary Cherian’s case {1967 KLT 430} and the advertence made in that case referring to Explanation I of section 38 of Madras Marumakkathayam Act, 1932, before substitution under the amended Act, reproducing the same, was followed to form the conclusion that the property allotted to a natural group consisting of mother and children, on division of the abovesaid property, would constitute a thavazhi property. Reference made to Explanation I of Section 38 of the above Act before the amendment, taken along with the background of the case that the property allotted to the natural group was in a suit instituted in 1950, most probably that was case where division and allotment over tarwad property had become final before the substituted provision of section 38 was incorporated under Act 26 of 1958 (Kerala). In view of the clear and unambiguous Explanations covered by the substituted section 38 of the Madras Marumakkathayam Act, 1932, the property allotted in division of tarwad to its members, on basis of per capita share, even if taken by them as a group, after the aforesaid amendment has to be treated as taken as tenants in common and not as joint tenants, subject to the rights of the children born to the female members in the group till the commencement of Kerala Hindu Joint Family Abolition Act, 1975, to claim right in the share allotted to their mother as thavazhi property. 8. There is no merit in the challenges raised in the appeal to impeach the decision concurrently rendered by the two courts below. Appeal is devoid of any merit, and it is dismissed directing both sides to suffer their costs.