Nullikkodan vs Ayisumma on 13 February, 2002

Kerala High Court Kerala High Court Nullikkodan vs Ayisumma on 13 February, 2002 Author: R Bhaskaran Bench: S Sankarasubban, R Bhaskaran JUDGMENT R. Bhaskaran, J. 1. The plaintiffs in a suit for partition are the appellants in this appeal. Plaint A schedule properties along with other properties belonged to a thavazhi tharvard of the plaintiffs and defendants. There was a suit for partition as O.S. No. 150 of 1950 before the Sub. Court, Thalassery, and plaint A schedule properties were allotted to the group consisting of Amina and her children and grand-children. Amina was the first plaintiff in that suit. Plaintiffs 2 to 6 in that-suit were her children and plaintiffs 7 to 11 were the children of the third plaintiff. That the property was allotted to the natural group consisting of Amina and her children in the earlier partition decree is not disputed in this case. 2. The plaintiffs claimed share in the plaint schedule properties on the basis that the properties are co-ownership properties and since there was a severance of status of the joint family by the decree for partition in O.S. No. 150 of 1950, there is no joint family in existence and the shares allotted to the sharers in the earlier suit must be divided among the sharers and their legal representatives according to the Muslim Shariat Law. On that basis the plaintiffs claimed 211 7/8 shares out of 380. 3. Defendants 2 to 5 contested the suit. According to them, the allotment of properties to the group consisting of Amina and her descendants enure to the benefit of thavazhi and the members of the thavazhi are entitled to share. In that view of the matter, they contended that the plaintiffs are entitled to get only 4' 1/2 shares out of 30 shares. 4. 23rd defendant contended that he is in possession of 65 cents as a tenant and that his tenancy right has to be reserved while effecting partition. 5. The trial court found that the allotment to the group of Amina and her descedents would enure the benefit of her thavazhi and the plaintiffs are entitled to get only 4 1/2 shares out of 30 and defendants 2 to 22 are entitled to get 25 1/2 shares in the group. The question of tenancy set up by the 23rd defendant was referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act and the Land Tribunal found that the 23rd defendant is entitled to tenancy right and adopting the finding of the Land Tribunal, the trial court reserved the right set up by the 23rd defendant. 6. In this appeal, the learned Counsel appearing for the appellants contended that the partition in the family as per the decree in O.S. No. 150 of 1950 effected a severance of status among the members of the thavazhi and unless there is evidence of re-union', it cannot be held that the allottees in the partition will get the property as a unit and the allotment will enure to the plaintiff and her descendants. He relied on several decisions relating to the principles in Hindu Law about the severance of status and re-union and contended that the judgment of the trial court is unsustainable in Law. The learned Counsel appearing for the respondents on the other hand submitted that the question involved in this appeal is covered by a Full Bench decision of this Court in Mary v. Bhasura Devi, 1967 KLT 430 (FB). In that case, the question arose whether the property obtained by a female member in a tharavad partition would become a, thavazhi property on the female member giving birth to a child. It was held that under the Marumakkathayam Law, a subsequently conceived child gets a right by birth in the property obtained by its mother for her separate share in the partition of her tharavad thus reducing her absolute powers of disposition of those of a joint family manager. According to the learned counsel appearing for the respondents, if even the property obtained by a female member of the thavazhi in a partition of the tharavad will have a character of the thavazhi property on the female member begetting a child the
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Nullikkodan vs Ayisumma on 13 February, 2002

character of the property obtained by mother and her children together in a thavazhi partition must also have the thavazhi character. In that decision the majority of the Judges took the view as follows: "Any two or more members may form a unit or thavazhi and lake their share of the property jointly. I am of course not thinking of persons who take the property for their shares as tenants,-in-common without division by metes and bounds, for, such persons take their shares severally and not jointly and do not constitute the sort of unit I have in mind, namely, a thavazhi - and when they do so, there is community of properly between the several members. They constitute a tarwad by themselves, the membership of which decreases by death and increases by birth or adoption, and the property is tharvad property in their hands with all the incidents of such property such as survivorship and a right by birth or on adoption. (Such units or thavazhies are usually composed of persons forming a natural group). But that is not necessarily so. Any two or more members of a tharvad, whether or not they form a natural group, can choose to remain joint and form a unit, since the severance of the joint status which they enjoy cannot be imposed on them against their Will." The learned Judges relied on Explanation I to Section 38 of the Madras Marumakkathayam Act, which was held to be declaratory of the taw. Section 14 of the Mappila Marumakkathayam Act which governs the parties is also similarly worded as in Explanation I to Section 38 of the Madras Marumakkathayam Act. It is further held that: "a Marumakkathayam female and her children constitute a joint family whether or not she has any property obtained from her tharavad by partition. A single member-unit formed in a tharavad partition can add to its members by birth or adoption and thus become a joint family, and, if members added to a multi-member unit get a right to the property obtained in the tharavad partition the moment they become members of the joint family, why should not members added to a single-member unit get a like right?" Another Full Bench of this Court in Seetha v. Krishnan, 1975 KIT 156 (FB) held that under the customary Marumakkathayam Law where the gift or acquisition is made in favour of a Marumakkathayee woman and all her children or in the names of all the children who by themselves constitute atavazhi, a presumption would raise that the acquisition is for the benefit of the tavazhi. Though the question involved in that case was with respect to the purchase of a property by the husband in the name of his wife and whether the purchase would enure to the putravakasam family consisting of the wife and all her descendants, the Full Bench considered the question with respect to the acquisition of property by marumakkathayee woman and all her children of by all the children by themselves constitute a thavazhi and held that there is a presumption that the acquisition is for the benefit of the thavazhi. 7. The learned Counsel appearing for the appellants relied on the decision in Puttrangamma v. Ranganna, AIR 1968 SC 1018 in which it is held that on a unilateral declaration by a member of his intention to separate himself from the family and enjoy his share in severality and sufficient communication of the intention to other coparceners there is disruption of the status of the joint family. Thereafter, the divided status of the Hindu Joint Family will come into existence and it is not possible to get back to the old position by mere revocation of the intention. It is only by subsequent agreement to reunit that a joint family can come into existence. The learned Counsel also relied on the decision of this Court in Sinnammu Amma v. Narayanikutty Amma, 1967 KLT 521. In that case it is stated that once a partition takes place in a marumakkathayam tarwad the jointness of the tarwad is disrupted. There is nothing in law to prevent the members of the 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. It is also stated in that case that once the shares are defined, there is a severance of the joint status and even though the parties may then make a physical division of the property or they may decide to live together and enjoy the property in common, the property ceases to be joint immediately the shares are defined. The same view was expressed in the dissenting
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Nullikkodan vs Ayisumma on 13 February, 2002

Judgment in the five member Full Bench decision in Mary's case, 1967 KLT 430 (FB), where the majority Judgment as quoted earlier held otherwise. The learned Counsel for the appellants also relied on the decision in Appovier v. Kama Subba Aiyan, (1866) 11 M.I.A. 75. In that case also it is stated that if 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 each member has thenceforth a definite and certain share in the estate, which he may claim to receive and enjoy in severally, although the property itself has not been actually severed and divided. The learned Counsel further relied on the decisions in Kochstkutty Ammo v. Bkargavi Amma, 1953 ILR T.C 943, Parameswaran Nair v. Lakshmi Amma, 1968 KLT 51, Bhagwan Dayat v. Reoti Devi, AIR 1962 SC 298 and Raghavamma v. Chenchamma, AIR 1964 SC 136. In all of these decisions, the discussion is with reference to the question of severance of status in a Hindu joint family and it is categorically held that a member of a Hindu joint family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality. The question involved in this case is with regard to the nature of allotment of property to a natural group in a marumakkathayam thavazhi partition and in the light of the decisions in the two Full Benches in Mary's case and Seetha 's case (supra), the appeal has to be decided against the appellants on this aspect. The learned. Counsel appearing for the appellants also brought to our notice Section 18 of the Marumakkathayam Act which says that succession to the property obtained by an individual on partition shall be governed by the Islamic Law of Inheritance. In this case the property was not obtained by the individual member but by a natural group consisting of the mother and children and therefore that provision is not applicable in the facts of the case. This provision is corresponding to Section 7 of the Hindu Succession Ac,t. Since the parties; are followers of Marumakkathayam Law the general principle of Marumakkathayam Law have to be applied except to the extent of specific provisions made in the Mappila Marumakkathayam Act. 8. The only other question to be considered is with regard to the claim of tenancy right by the 23rd defendant. The 23rd defendant h, ; set up an oral lease in respect of 65 cents from one Assainar who was the karanavan of the family. The lease is said to have been in 1962. The tenancy is claimed in respect of 65 cents in item No. 1 of plaint A Schedule. In support of the tenancy right, revenue receipts from 1970 onwards and two rent receipts in 1966-67 and 1968-69 are produced. The Land Tribunal found the tenancy right in favour of the 23rd defendant on the basis of the oral evidence of the 23rd defendant and also the report of the Special Revenue Inspector that the 23rd defendant is in possession of the abovesaid land claimed by him by tenancy right. The rent receipts produced are only handwritten receipts and the person who wrote the receipts is also not examined. The 23rd defendant is none other than the husband of Katheesa Umma, the 6th plaintiff in O.S. No. 150 of 1950. She died subsequently. Her children are defendants 4 and 5 in the present suit. 23rd defendant was impleaded as legal heir of Katheesa Umma. The learned Counsel for the appellants also brought to our notice Section 8(2) of the Mappila Marumakkathayam Act in which it is stated that no lease of any immovable property of a tarwad in cases not referred to in Sub-section (1) shall be valid unless it is executed by the Karanavan and where the Malabar Tenancy Act confers fixity of tenure on the lessee, unless also the written consent of the majority of the majority members of the tarwad has been obtained to the lease. Since the tenant has no case that the lease was granted with the written consent of the major members, the tenancy claimed by the 23rd defendant cannot be accepted as valid. Therefore the finding of the Land Tribunal that the 23rd defendant is entitled to fixity of tenure which finding was adopted by the trial court is set aside. In the result, the appeal is allowed in part and the judgment and decree of the Court below in so far as it reserves the tenancy right claimed by the 23rd defendant is set aside and it is held that the property over which tenancy is claimed is also available for partition among the sharers. In all other respects, the judgment and decree are confirmed.

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