R,R BY ADV. SRI.G.SREEKUMAR (CHELUR) R,R BY ADV.
SMT.MEENA.A. R,R BY ADV. SRI.R.RAJESH KORMATH R,R BY ADV. SMT.SANJANA R.NAIR R,R
BY ADV. SRI.JAYKAR.K.S. R,R BY ADV. SRI.RAHUL VARMA R, BY ADV. SMT.PREETHY KARUNAKARAN
R, BY ADV. SRI.K.RAVI (PARIYARATH)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY
HEARD ON 4.6.2014, THE COURT ON 19.8.2014 DELIVERED THE FOLLOWING:
JUDGMENT
Ramachandran Nair, J.
A suit for partition in which the appellants
were arrayed as defendants, was decreed by the court below in favour of the plaintiff.
It was found that the plaintiff/respondent is entitled to get 6/10 shares in the
plaint schedule properties and that the appellants are entitled to get 4/10 shares
together. By holding so, a preliminary decree has been passed which is under challenge
in this appeal. The first appellant, the mother of appellants 2 to 4 died during
the pendency of the appeal and appellants 2 to 4 have been recorded as legal representatives
of the deceased first appellant.
2. The parties are Nambudiries. The respondent/plaintiff's
father late Shri Neelakantan Nambudiri had the plaintiff as his son through the
first wife. The mother of the plaintiff died before 1955. Appellant NO.1 is the
second wife of deceased Neelakantan Nambudiri and appellants 2, 3 and 4 are his
children through the first appellant.
3. Late Shri Neelakantan Nambudiri belonged to
a Nambudiri Mana known as Thekkiniyedath Mana. The properties of the Mana were partitioned
by a registered partition deed dated 27.6.1958, No.1062/1958 of the Sub Registry
Office, Ottappallam. The division was among 12 members of the said illom, as 12
shares. The said document is marked in evidence as Ext.A1. At that time the plaintiff
was a minor. In the partition deed B schedule property was allotted to the plaintiff
as well as his father.
4. The plaintiff contended that himself and his
father were having one share each in the properties allotted to them. Subsequently,
the father married appellant No.1 herein and the other children were born and he
died on 30.9.1998. Thus, the claim set up is that the plaintiff is entitled for
half share in the plaint schedule properties and one share in the property of his
father, i.e. 6 out of 10 shares.
5. The contentions raised by the appellants/defendants
were mainly that even though there was a partition of the properties of the illom
in the year 1958 and B schedule properties were allotted to the plaintiff and the
father, separate properties were not allotted to both of them. The properties were
allotted jointly to Sakha No.2 comprising of the plaintiff as well as the deceased,
late Shri Neelakandan Nambudiri and it is actually their ancestral property. Therefore,
the defendants are entitled to get equal shares along with the plaintiff in the
whole of the properties and that plaintiff is entitled to get only 1/5 share in
the plaint schedule properties.
6. The evidence in the case consists of the oral
evidence of P.W.1 and D.W.1and Exts.A1 to A3 and B1.
7. The court below, on an interpretation of the
provisions of
Kerala Nambudiri Act (Act 27 of 1958)
found in favour of the plaintiff.
In substance, it was found that when the partition was effected in the year 1958,
the plaintiff was entitled to half share in the plaint schedule properties and the
remaining share stood in the name of his father. The court was of the view that
a reference to the partition deed of 1958 and the B schedule properties will show
that separate share was set apart to the plaintiff who was a minor and the property
was managed by deceased Neelakandan Nambudiri. The court relied upon
Sections 3
and 13 of the Kerala Nambudiri Act
in finding that by the true effect of those two
provisions a member of an illom whether male or female, will get separate share,
viz. equal proprietary interest in its the properties. Even though the plaintiff
was a minor, he has got his right as per Ext.A1 partition deed in the year 1958.
8. We heard learned Senior Counsel for the appellants
Shri S.V. Balakrishna Iyer and Shri G. Sreekumar (Chelur) learned counsel appearing
for the respondent.
9. Shri S.V. Balakrishna Iyer, learned Senior
Counsel, mainly contended that Nambudiries are governed by Hindu Mithakshara Law
as applicable in their place of origin. Therefore, even after the partition, the
illom will continue. The property will therefore remain as joint family property.
B schedule property in Ext.A1 goes to the sakha of the deceased father and the plaintiff
and they were holding the property jointly. After the marriage, the wife and children
begotten under the said marriage will become members of the said sakha. Therefore,
the property continues to be joint family property and the plaintiff will get 1/5th
share. It is submitted that the said position continued till the advent of the
Joint
Hindu Family System (Abolition) Act in 1975.
He also referred to
Section 7 of the
Hindu Succession Act, 1956.
To explain the legal position, learned Senior Counsel
relied upon
Mulla on Hindu Law, 21st Edition, Chapter XVI, from the book titled
as "Malabar and Aliyasanthana Law" by the learned author Shri P.R. Sundara
Aiyar, a former learned Judge of the High Court of Madras
Madras Nambudiri Act,
1932
E.N.A.S. Narayana Iyer v. Moorthi Kendan and others (1938 Madras 643)
Govindan
Namboodiri v. Paru Amma (1979 - 1985 KUC 665),
Mary v. Bhasura Devi (1967 KLT 430
- FB)
and
Narayanan Krishnan Namboodiri v. K. Ravi Varma and others (1956 TC 74).
By relying upon the above authorities by the learned authors and the decisions of
this Court and the Apex Court, the learned Senior Counsel submitted that at the
time of execution of Ext.A1 partition deed, the sakha gets B schedule properties
in common and has been holding it jointly and not individually. It is a case of
joint tenancy alone.
It is submitted that Section 13 of the Kerala Nambudiri Act
does not prevent a family to have a sakha partition and continue to have the concept
of illom.
Learned Senior Counsel also relied upon the
definition of 'illom' in Section
2(b) of the Act.
It is submitted that in the light of the said definition in the
Act, the illom will continue as joint till 1.12.1976, the date of coming into force
of the Joint Hindu Family System (Abolition) Act. It is submitted, by referring
to Ext.B1 document which was executed by all the parties together, that the same
also supports the case of the appellants. The same reiterates the possession of
properties by the executants as joint. He also relied upon the additional document
produced in the appeal which refers to the position of the family as "joint".
It is submitted that no other custom has been pleaded or proved.
10. Learned counsel for the respondent, Shri
G. Sreekumar (Chelur) while opposing the contentions of the learned Senior Counsel
for the appellants, submitted that Kerala Nambudiri Act, 1958 is later in point
of time than the Hindu Succession Act. It is submitted by referring to the definition
of "illom", that "illom" can continue as joint only if there
is a community of property. He also referred to various provisions of the Act including
Sections 3, 13 and 15. It is submitted that in the light of the definition of 'illom'
in the Kerala Nambudiri Act, after the separation of shares by Ext.A1 partition
deed, there is no illom to bring it within the meaning of "joint family".
It is also submitted that if the concept of illom continues, Section 3 has no meaning
also. It is submitted that the provisions of the Joint Hindu Family System (Abolition)
Act, 1975 relied upon by the learned Senior Counsel for the appellants will not
help to advance the case of the appellants. Learned counsel specifies that as far
as partition is concerned, Kerala Nambudiri Act, 1958 will apply and in all other
respects Hindu Succession Act will apply to the parties. There is no concept of
'tharavadu' or 'thavazhi' as far as Nambudiris are concerned. The Act of 1958 contains
only two concepts:
(i) Illom; and
(ii) its separation by partition.
There is no
provision providing a contract to the contrary also.
11. It is submitted that the father and son were
holding the properties.; their shares were separated by Ext.A1 but they were enjoying
it jointly. It does not mean that it is a joint family property. The shares having
been separated they are co-owners and herein they were enjoying the property as
tenants in common. They are evidently co-owners and the division was on per capita
basis. By operation of Section 3 of the Act equal right has already been obtained
by the plaintiff by Ext.A1. The said right is not reduced by addition of members
in the family. No other statutory provisions are there to the contra. In a case
where the illom itself is divided and the parties have taken separate shares, the
joint family system cannot continue and the Joint Family System (Abolition Act)
1975 Act will apply only in a case where 'illom' continued as a joint family.
12. Learned counsel for the respondent also submitted
that various decisions of this Court will show that as far as Nambudiries are concerned,
the principles governing them are capable of deviation by local usage and custom
and by statute. In that context he relied upon the following decisions:
Omana Pandala
Ampu Pandala and another v. Kesavaru Sambhuvaru Namboodiri and another (1970 KLJ
973)
Savithri Devaki Antharjanam v. Krishnaru & others (1972 KLT 532)
and
P.
Krishnan Embrandiri v. P. Kesavan Embrandiri (1958 KLT 315).
Learned counsel explained
that Nambudiri Act, 1958 is the one enactment where the proprietary right has been
protected.
13. In reply, learned Senior Counsel Shri S.V.
Balakrishna Iyer, submitted that no amount of argument can be advanced to show that
the concept of illom ceased after Ext.A1 partition but actually the same continued.
There can be a joint family in the name of two members and therefore a joint family
character is there even at the time of execution of Ext.A1. It is submitted that
Nambudiri Act, 1958 will not show that the concept of illom was no longer there.
The provisions of Sections 3 and 13 will not show that they guarantee that the share
is static. They only guarantee that at some point of time the share will be equal.
By birth new members of the family will get rights.
The points which arise for determination
are:-
i) The principles of Hindu Law applicable to
Nambudiris originally and the change, if any, under Kerala Nambudiri Act, 1958;
ii) The inter play between the provisions of
Kerala Hindu Joint Family System (Abolition) Act, 1975 and Kerala Nambudiri Act,
1958, in a case where there is a partition of properties of illom. How far the incidents
of 'Joint Family' under Hindu Law will be relevant in that context?
iii) What is the effect of Ext.A1 partition deed
on the shares allotted to the plaintiff's father and the plaintiff, even if properties
were not divided by metes and bounds and the law on the said point?
iv) Whether after Ext.A1 partition deed, the
enjoyment of the properties is as joint tenants or as tenants-in-common? and
v) Whether the preliminary decree passed is sustainable?"
14. We will now refer to the authority relied
upon by the learned Senior Counsel for the appellant.
In the book titled as "Malabar
& Aliyasanthana Law" by Shri P.R. Sundara Aiyar, J., Chapter XVI discusses
about the law applicable to Nambudiries.
We extract the following portions from
pages 208 to 214 of the said book (paragraphs 124, 125, 126 and 127):
"124. The Nambudiris are what may be called
the indigenous Brahmins of Malabar. They settled in the country several centuries
ago and became the sons of the soil. They acknowledge the authority of Vedas and
Smritis like the other Brahmins and have faith in the religious efficacy of ceremonial
observances and of funerals and annual obsequies. Unlike the Nairs, among them succession
is traced through males, property passing from father to son and so on, and legal
marriage forms the basis of succession. The Namboodiri woman on her marriage takes
her husband's gotram and passes into his family from that of her father.
125. Amongst them, as amongst the Nairs of Malabar,
the family property is indivisible, except with the consent of all the members thereof.
126. The principal difference between a Nambudiri
family and a Hindu family governed by the ordinary Mitakshara law is the absence
of a right in the members of the family to demand a partition of the family properties.
In this respect the law of the Nambudiris is the same as the Marumakathayom law.
It is generally assumed that this is due to the acceptance by the Nambudiris of
the law of non-partition which they found prevailing amongst their Marumakkathayom
brethren. This is a wholly gratuitous assumption,. The rule of impartibility is
not peculiar to the Marumakkathayom law. It was the ancient Hindu Law which prevailed
everywhere in India but except in Malabar, the Hindu Law in this respect was subsequently
modified and the right to division of joint property was recognised.
127. The presumption is that the Nambudiris carried
with them to their new home the Hindu law as it prevailed at the time of their migration
in the place from which they went, whether it was the Tamil country, or the banks
of the Godavari, or the Tungabadra. What was the state of the law at the time of
the migration? The Mitakshara was written certainly long after the Nambudiris had
gone to Malabar. The right of the sons to a share in the family property during
the father's life-time was not then recognised. Compulsory partition was unknown.
All the members of the household both males and females, were under the protection
of the patriarch who had absolute control over the property. It is hardly likely
that individual members were recognised as having any right except to be maintained
at the expense of the joint family property and in this respect, both males and
females were alike. The law of non-partition was therefore carried by the Nambudiris
to Malabar as part of the law which governed them in their own country, and it is
unphilosophical to suppose that they borrowed that law from the Marumakkathayom
inhabitants of Malabar."
15. We will refer to certain other authorities
also.
In Mayne's Hindu Law & Usage, 14th Edn., at page 74 (paragraph 56) the
following aspects have been explained with respect to the law governing Nambudiris:
"56. Nambudiris.-- The Nambudiris are governed
by Hindu law except so far as it is shown to have been modified by usage or custom
having the force of law, the probable origin of the usage being some doctrine as
it stood at the date of their immigration into Malabar or some Marumakkathayam usage.
The date of their settlement on the West Coast is not known but it must have occurred
certainly before the Mitakshara was written. The Hindu law governing them is generally
speaking the law laid down in the Mitakshara. The gotras of the Nambudiri may be
said to be the same as those of the Brahmins of the East Coast, indicating thereby
descent from the same common original ancestors. Among the Nambudiris, the mode
of tracing succession and the devolution of property are in accordance with Hindu
law and contrary to the Marumakkathayam usage of Malabar. The same rule of collateral
succession obtains both among Nambudiri Brahmins and their Brahmins of South India.
They recognise the authority of the Vedas and the Smritis like all other Brahmins.
Among Nambudris, the family property was not liable to be partitioned at the instance
of any one of the coparceners till the Madras Nambudri Act (XXI of 1933) which confers
the right to partition (Section 23)."
16.
In the book titled as "The Principles
of Marumakkathayam Law" by Shri M.P. Joseph, in Chapter XIII the law applicable
to Malayali Brahmins has been discussed.
The learned author has also noted at page
395 as follows:
"The customs of Malabar Brahmins do not
differ very widely from the customs of the Nairs. Except in the constitution of
the family, which in the case of Nambudiries Illom follows the law of descent through
sons and in case of Marumakkathayam Tarwad follows the law of descent through sister's
children, so far as the rights to property is concerned there is no difference whatever
between a Namboodri Illom and a Nair Tarwad. Impartibility of family property is
the rule prescribed and community of interest cannot be severed by partition without
the consent of all the members of the Illom. As in a Marumakkathayam Tarwad the
right to be supported in the family house out of the income of the property of the
family, and the absolute control of the family affairs is vested in the senior member,
who represents the family................. The main points of difference may also
be noted. The radical difference between the two systems is the rule of succession.
In case of Namboodries, inheritance is through eldest sons whereas in a Marumakkathayam
Tarwad inheritance is through sister's children."
The learned author has quoted from the decision
in
Vasudevan v. Secretary of the State (11 Madras 157) at page 397
a decision rendered
by a Division Bench consisting of Collins, C.J. and Muthuswamy Iyer, J.
We extract
the relevant portion of the said judgment hereinbelow:
"As to the question, what law is to be applied
to Namboodri Brahmins, the Judge has found that they are governed by Hindu law as
modified by special customs which they have adopted since their settlement in Malabar.
Although it was urged in appeal that they do not follow Hindu Law, the contention
was ultimately not seriously pressed upon us. As the question is, however, one of
general importance, and as the decision of several other issues in this case depends
upon its determination, we may add that in our opinion the Judge has come to a correct
conclusion. According to the evidence on both sides, succession is traced among
Namboodries through males and property passes from father to son, whereas among
Nairs, succession is traced through females and property descends from mother to
daughter. Thus, the mode of tracing succession and the devolution of property are
in accordance with Hindu Law and contrary to Marumakkathayam usage."
17. We will also refer to the book titled as
'Marumakkathayam and Allied Systems of Law in the Kerala State" by Shri K.
Sreedhara Variar.
Chapter X deals with the law relating to Nambudiries.
At page
173, the learned author has analysed the settled principles as shown hereunder:
"It is not known as to what system of law
prevailed among the Hindus before the advent of the Mitakshara but Sundara Iyer
is of the opinion that the rule of impartibility was part of the law of the Nambudiris
(Sund. Iyer, p.213-214). The system of a law followed by Nambudiri is an admixture
of the Hindu law and the Marumakkathayam law. In a Nambudiri family both males and
females have equal rights and the limited estate of a Hindu woman is not recognised
by them (Sund. Iyer, p.218). Except as departed from the Hindu law, the presumption
is that the Nambudiris are governed by principles of Hindu law (Parameswaran Bhattathiripad
v. Vasudevan Bhattathiripad - 4 C.L.R. 405 FB). The law applicable to them is the
Mitakshara law itself except as modified by custom (Nangeli v. Narayanan Nambudiri
- 23 C.L.R. 745)."
In the above book, from page 176 onwards the learned author
has discussed about the Statutes on Nambudiri law. While discussing the
Madras Nambudiri
Act, 1932
at page 180 it is stated as follows:
"Shares are ascertained on
per-capita basis and the husband and the wife separating from the Illom would get
two such shares. A member changing religion could either claim or be compelled to
take the share in partition. Shares taken by individual members will be their separate
property but property taken by a husband and wife under the Act will follow the
incidents of Illom property."
While referring to the salient features of the
Kerala Nambudiri Act, at page 181 the learned author has commented thus:
"All members of the Illom have equal proprietary
right over the properties of the Illom. The Karnavan has to keep a true and correct
account of the income and expenditure. Those accounts can be inspected by the junior
members throughout the month of February in each year. They can take copies. If
access is not given, the accounts can be caused to be produced in a Court where-
from inspection can be made or copies or extracts obtained."
Finally, in page 182 with regard to the division
of the properties and the right to claim partition, the following aspects have been
highlighted:
"A right to claim individual partition has
been granted by this Act. Division is on per-capita basis. A minor's claim for partition
can be allowed by a court only if it is for the benefit of the minor. A member changing
religion can either claim or be compelled to take the share in partition. The property
obtained in partition becomes the separate property of that member."
18. Learned Senior Counsel for the appellants
Shri S.V. Balakrishna Iyer also referred to paragraph 221 of the book titled as
"Principles of Hindu Law" by Mulla, 15th Edn. At page 287
which we extract
below:
"221. Incidents of joint family or coparcenary
property.--
Joint family or coparcenary property is that in which every coparcener
has a joint interest and a joint possession (Katama Natchiar v. The Raja of Shivagunga
- (1863) M.I.A. 539, 543, 611).
The incidents of a coparcenary were summarised in
the undermentioned decision of the Supreme Court (State Bank of India v. Ghamandi
Ram - (69) A.S.C. 1330) [See 216 supra].
The following are the main incidents of
joint family or coparcenary property:--
(a) it devolves by survivorship, not by
succession [229]:
This proposition must now be read in the context of sections 6
and 30 of the Hindu Succession Act, 1956, in cases where those sections are applicable;
(b) it is property in which the male issue of the coparceners acquire an interest
by birth.
The joint family property must be distinguished from the joint property
of the English law. The joint property of the English law devolves like joint family
property by survivorship. But the male issue of the joint tenants do not acquire
any interest in it by birth. Two complete strangers may be joint tenants according
to English law, but in no conceivable circumstance could they constitute a joint
Hindu family, or hold property as a joint Hindu family.
The fundamental principle
of a joint Hindu family is the tie of sapindaship without which it is impossible
to form a joint Hindu family (Karsandas v. Gangabai [(1908) 10 Bom.L.R. 184.].
Joint
family property is purely a creature of Hindu law, and those who own it are called
coparceners.
The rights of coparceners are set forth in 235 below.
The distinction
between joint family property and joint property comes into prominence only in two
kinds of cases, namely, the case dealt with in para 223, sub-para (2) [property
inherited from maternal grandfather], and that dealt with in para 228 [joint acquisitions].
After leaving para 228, we shall use the expression "joint property" as
equivalent to "joint family property". It brings out the distinction between
'joint family' property and 'joint property'.
19. We will now come to the principles discussed
in the decisions relied upon by the learned Senior Counsel for the appellants. The
first one is by the Apex Court in
Govind Potti Govindan Nambudiri v. Kesavan Govindan
Poti and others (AIR 1987 SC 2276)
A reading of the judgment will show that the
discussion is about the
Law applicable as far as Malayala Brahmins
are concerned
and the Apex Court has noted the coming into force of the Kerala Nambudiri Act,
1958 also. After referring to the various decisions of this Court and the Travancore
High Court, in paragraph 15 it has been stated as follows:
"It can, therefore, be stated and indeed
not disputed that Malayala Brahmins are governed by Hindu law, unless they can be
shown to have deviated in any, respect and adopted different practices, like local
customs, if any. Some of their rights have now been regulated by the Kerala Nambudiri
Act, 1958 (Act 27 of 1958).The Act provides for the family management and partition
of illom properties among Nambudiri Brahmin community. Section 13 of the Act confers
right on a member of illom to claim partition on per capita basis."
20. Some of the earlier decisions relied upon
by the learned Senior Counsel are:
Narayanan Krishnan Nambudiries v. K. Ravi Varma
(AIR 1956 TC 74)
E.N.A.S. Narayana Iyer v. Moorth Kendan and others (AIR 1938 Madras
643)
Mary v. Bhasura Devi (1967 KLT 430 - FB)
Govindan Nambudiri v. Paru Amma
(1979-85 KUC 665).
21. In the first of the decisions, viz. in
Narayanan
Krishnan Nambudiri's case (AIR 1956 TC 74)
a Division Bench of Travancore- Cochin
High Court consisting of Sankaran and Joseph Vithayathil, JJ. (speaking through
Joseph Vithayathil, J.) after analysing the legal position and discussing various
earlier judgments, has held in paragraph 16 as follows:
"We are clearly of opinion that it is the
Hindu Mithakshara Law that should apply to the devolution of the separate or self-acquired
property of a Malayala Brahmin male in the absence of the heirs mentioned in S.15
of Act III of 1106."
Two judgments of the Madras High Court have been
discussed in paragraph 11, viz.
Vasudevan v. Secy. of State (11 Mad. 157)
which
was followed in
Vishnu Nambudiri v Akkamma (34 Mad. 96)
by a later Division Bench.
Learned Senior Counsel Shri Balakrishna Iyer relied upon E.N.A.S. Narayana Iyer's
case (AIR 1938 Mad. 643) to point out that the earlier decision in Vishnu Nambudiri's
case (supra) has again been discussed in that judgment. A reading of the judgment
will show that the principles settled in Vishnu Nambudiri's case (supra) that
Nambudiris
are ordinarily governed by Hindu law except to the extent to which that law has
been modified by custom has been referred to.
22.
Mary's case (1967 KLT 430)
is by a Full Bench
of this Court wherein the question dealt with is under the
Marumakkathayam Law.
It was regarding the nature and incidents of property obtained by a family member
as her separate share in partition under the Travancore Nair Act. 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 tarwad, which implies that after an individual partition the property in the
mother's hand continues to retain its character as tarwad property.
23. The next decision is by K.S. Paripoornan,
J. (as He then was) in Govindan Nambudiri's case (1979-85 KUC 665). After relying
upon the judgment of the Division Bench in Narayanan Krishnan Nambudiri's case (AIR
1956 TC 74) it has been held in paragraph 6 as follows:
"Nambudiri Brahmins
of Malabar are Hindus.
As stated in Mayne's treatise on Hindu Law and Usage, 11th
Edition, 1953 at page 85,
"The Nambudiris are governed by Hindu law except
so far as it is shown to have been modified by usage or custom having the force
of law, the probable origin of the usage being some doctrine as it stood at the
date of their immigration into Malabar or some Marumakkathayam usage. So also, in
Principles of Hindu Law by Mulla (15th Edition, 1982) at pages 81 and 82, it is
stated that the Hindu law applies to Nambudiri Brahmins except so far as such law
is varied by custom. This is the position with regard to the Nambudiri Brahmins
in the erstwhile Malabar area of the Madras State. The law governing the Nambudiri
Brahmins (Nambudiri Malayala Brahmins) in the erstwhile Travancore and Cochin States
is also the same. Narayanan Krishnan Nambudiries v. K. Ravi Varma and others (AIR
1956 TC 74). Nambudiri Brahmins are governed by Hindu Mithakshara Law as modified
by local custom, unless it is shown that they have deviated in any respect from
the Hindu Mithakshara Law as expounded in the commentaries they should be held bound
by that law. The presumption is that Nambudiri Brahmins are governed by the principles
of Hindu Law; no doubt, a statute can provide otherwise."
Thus, the principle
discussed and laid down in the above judgments, learned Senior Counsel submits,
is that
Nambudiries are governed by Hindu Mithakshara Law and therefore the same
alone can apply to the facts of this case.
24. We will now come to the decisions relied
upon by Shri G. Sreekumar, learned counsel for the respondent. They are:
Savithri
Devaki Antharjanam v. Krishnaru & others (1972 KLT 532)
P. Krishnan Embrandiri
v. P. Kesavan Embrandiri (1958 KLT 315)
and
Omana Pandala Ampu Pandala and another
v. Kesavaru Sambhuvaru Nambudiri and another (1970 KLJ 973).
He also relied upon
the last part of the findings in
Govindan Nambudiri v. Paru Amma (1979-85 KUC 665)
which we have extracted above.
25.
Omana Pandala Ampu Pandala's case (1970 KLJ
973)
is a decision of P. Subramonian Poti, J. (as He then was). In that case, from
paragraph 5 onwards
the legality of the attachment effected by the decree holder
in execution of the decree against the first defendant, of the interest which the
first defendant is supposed to have in the property concerning illom was considered.
There has been no individual partition of the illom and what is attached is not
purported to be the share of the first defendant obtained in any such partition.
The law on the point was considered in detail. It was held as follows:
".............No doubt, in certain matters,
they are governed by the Hindu Mithakshara law as modified by custom. But in regard
to holding of property by the Illom, Nambudiries are not certainly governed by the
principles of Hindu Mithakshara Law. Such property of the illom was not partible
until the right to partition was recognised by the Kerala Nambudiri Act, 1958. A
limited right to partition was recognised earlier under the Travancore Malayala
Brahmin Act, 1106, in S.20 and that was a right to partition of the properties among
the widows of an illom when there were only widows surviving as members thereof.
Just as in the case of Marumakkathayees governed by the statutory provisions such
as Travancore Nair Act and Travancore Ezhava Act, in whose case the right to partition
was recognised only by statute, in the case of Nambudiries also until such right
was recognised by the Kerala Nambudiri Act, 1958, no member of an Illom had a right
to demand partition or to separate himself from the Illom and walk away with his
share. The incidents of properties of the Illom vis-a-vis the member were more or
less akin to that of a Marumakkathayam tarwad......................."
Shri G. Sreekumar, submitted that
The above quotes
will show that even though originally the properties of the illom were not partible,
the right to demand partition has been recognised by Kerala Nambudiri Act, 1958,
which is significant as far as the facts of this case are concerned. Therefore,
it is submitted that whatever was the position with regard to the applicability
of Hindu Mithakshara Law in the earlier decisions, the position was changed after
the enactment of Kerala Nambudiri Act, 1958.
He relied upon the above judgment in
support of his argument.
26. Savithri Devaki Antharjanam's case (1972
KLT 532) is by a Division Bench of this Court consisting of P. Govindan Nair, J.
(as He then was) and T.S. Krishnamoorthy, J. Therein, a reference has been made
to the Nambudiri Act, 1958 and the definition of "Illom" under Section
2(b) and the Explanation thereto. Their Lordships have held as follows while considering
the law applicable to Namboodiris:
"It is settled law that Malayala Brahmins
including Nambudiris are governed by Hindu Mitakshara law except to the extent modified
by usage or custom or by statute."
(emphasis supplied by us)
In the above judgment, their Lordships have relied
upon the judgment of the Madras High Court in Vasudevan's case (11 Madras 157) and
that of the Travancore High Court in
Kesavan Krishnan Potti v. Dewan Vasudevan and
others (12 TLR 157)
in that context. It is submitted by the learned counsel Shri
G. Sreekumar, therefore, that a modification has been made by a statute by the Kerala
Nambudiri Act, 1958.
27. P. Krishnan Embrandiri's case (1958 KLT 315)
is by a Division Bench of this Court consisting of M.S. Menon, J. (as he then was)
and Varadaraja Iyengar, J. Therein, the Division Bench had occasion to consider
the provisions of Madras Nambudiri Act, 1933. The question was with respect to the
law applicable to Embrandiris of Malabar area. The principles of law as relevant
for the purpose of this case was not the one discussed in the above judgment.
28.
The legal position therefore can be summarised
as follows:
Nambudiris are governed by Hindu Mithakshara law except to the extent
modified by custom or by statute.
Madras Nambudiri Act, 1932 and Kerala Namabudiri
Act, 1958 are statutes which provide for modification as regards right to partition.
The further question to be examined is whether the argument of the learned Senior
Counsel for the appellants that the joint family continued till the enactment, viz.
Joint Hindu Family System (Abolition) Act, 1975 came into force as well as the effect
of Kerala Nambudiri Act, 1958 on the proprietary rights after partition.
29.
The relevant provisions of the Joint Hindu
Family System (Abolition) Act, 1975, therefore, requires to be considered.
Section
2 is the definition clause.
We extract the same hereinbelow:
"2. Definition.-
In this Act, "joint Hindu family" means any Hindu family with community
of property and includes-
(1) a tarwad or thavazhi governed by the
Madras marumakkathayam
Act, 1932,
the Travancore Nayar Act, 11 of 1100,
the Travancore Ezhava Act, 111
of 100,
the Nanjinad Vellala Act of 1101,
the Travancore Kshatriya Act of 1108,
the Travancore Krishnavaka Marumakkathayee Act, VII of 1115,
the Cochin Nayar Act,
XXIX of 1113, or the
Cochin Marumakkathayam Act, XXXIII of 1113;
(2) a kutumba or
kavaru governed by the Madras Aliyasanthana Act, 1949;
(3) an illom governed by
the Kerala Nambudiri Act, 1958; and
(4) an undivided Hindu family governed by the
Mitakshara law."
Therefore, a joint family for the purpose of the Act will
be any Hindu family with community of property which include an illom governed by
the Kerala Nambudiri Act, 1958.
The provisions of the Kerala Nambudiri Act, 1958
which came into force on 13.5.1958 define "illom" under Section 2(b) as
the following:
"2. Definitions.-- In this Act, unless the context otherwise
requires,
(a)..............
(b) "illom" means all the members of a Nambudiri
joint family with community of property and includes a 'mana'."
Sections 3,
13 and 15 are the other provisions which came up during arguments by the learned
counsel on both sides which are extracted hereinbelow:
"3. Proprietary Right
of members in Illom Properties.--
Every member of an illom, whether male or female,
shall have an equal proprietary interest in its properties.
13. Right of member
to claim partition.--
(1) Any member of an illom, male or female, may claim to take
his or her share of all the properties of the illom over which it has power of disposal
and separate from the illom.
(2) A member of an illom separating from it under sub-
section (1) shall be entitled to such share of the illom properties as would fall
to him or her if a division Per Capita were made among all the members of the illom
then living.
(3) No claim to separate from an illom made on behalf of a minor member
shall be allowed by any court unless it is satisfied that such separation would
be to the benefit of such minor.
15. Character of property taken on partition.--
The share obtained by any member separating from an illom under sub-section (1)
of Section 13 or under Section 14 shall be the separate property of such member."
30. Herein, Ext.A1 is the partition deed executed
on 27.6.1958 which is after the coming into force of the Kerala Nambudiri Act. There
are twelve parties therein and late Shri Neelakantan Namboodiri and the respondent/plaintiff
are party Nos.7 and 8 to the said document. Party No.7 the plaintiff's father joined
the document on his behalf as well as on behalf of the minor plaintiff who is party
No.8. Both of them are described as Sakha No.2. The properties allotted to them
are scheduled as item B. Paragraph 2 of the said document will show that out of
Rs.9,000/- which is the value of the building and other improvements, Rs.1,000/-
each is allotted to Sakha Nos.2 and 3 and Rs.500/- each to Sakha Nos.4 and 5. It
is significant to note that in Sakha No.2 as already noted, there are two allottees,
viz. The plaintiff's father and the plaintiff himself and in Sakha No.3 also there
are two allottees. In Sakha No.4 there is only one allottee and in Sakha No.5 also
there is only one allottee. Obviously, plaintiff and his father have been treated
as two sharers. Immovable properties are allotted to different sakhas in the same
proportion and manner.
31. Ext.B1 is a document executed as an assignment
deed by the plaintiff's father along with the plaintiff and the appellants. The
same is dated 11.9.1978. This is relied upon by the learned Senior Counsel for the
appellants to show that the property was being held as joint family property. In
re-examination of the plaintiff he has stated that out of the total sale consideration
provided, he was paid half share. At that time he was a student in Kalamandalam.
According to him, in Ext.A1 partition deed he has been allotted one share which
is clear, since in the said deed the value has been recognised for two sharers.
According to him, in the description given in Ext.B1 stating as 'thavazhi' is really
a mistake. He was asked by his father to sign the document and accordingly his signature
was put in the said document.
32. D.W.1 is the third defendant who is appellant
No.3 herein. In his deposition he has admitted that his father has signed on his
behalf and on behalf of the minor son plaintiff, in Ext.A1 as parties 7 and 8. Therein,
two shares to the extent of Rs.1,000/- each has been earmarked as evident from B
schedule as the amount payable to the first sakha and properties have been allotted
to two sharers. It is also stated that in Ext.A1, 12 shares have been allotted separately.
But according to him, allotment has been made as separate sakhas and therefore the
shares have not been obtained individually. Further down, he has stated that since
the properties have been partitioned from the illom, they are claiming it as joint
family properties.
33. In this appeal also, an application as I.A.
No.1198/2014 to accept additional evidence which is a document executed by the plaintiff/respondent
and the appellants as document No.1101/2013 of Sub Registry Office, Shornur, releasing
the fractional shares in C schedule property. The recitals therein are relied upon
to show that partition evidenced by Ext.A1 was in respect of an illom properties
and the allottees held the properties as joint family properties and that subsequently
the children obtained the same.
34. We, therefore, will have to consider the
effect of the partition deed, Ext.A1 in terms of the principles of law applicable.
It is clear that the said partition deed came into effect after the Kerala Nambudiri
Act, 1958 was enacted. The arguments of the learned Senior Counsel for the appellants
is that even though such a partition deed was there in respect of the properties
of the father's illom, shares have not been separately held by the respondent/plaintiff
and the concept of illom continued after the marriage of the deceased father. The
wife also therefore gets a share in the properties as evident from the principles
relevant, even under the Hindu Mithakshara law as applicable to Nambudiris and the
wife and children therefore becomes members of the joint family which includes the
respondent/plaintiff also.
35. The above argument is countered by Shri G.
Sreekumar, learned counsel for the respondent by submitting that the effect of Sections
3 and 13 of the Kerala Nambudiri Act will have to be considered and therefore the
respondent gets equal proprietary interest in the properties partitioned by Ext.A1
and it is a percapita division by Section 13(2) and that going by Section 15, the
same will be separate property of the respondent herein.
36. As far as the concepts and incidents of a
joint family are concerned, we have already extracted the relevant paragraph from
"Hindu Law" by Mulla (15th Edn. Paragraph 221). In this context, learned
Senior Counsel Shri S.V. Balakrishna Iyer relied upon Mulla's Principles of Hindu
Law (15th Edn.) paragraph 223 at page 288 and the relevant portions thereof to contend
that the property obtained by the father will retain the ancestral character. We
extract the relevant portions from sub-paragraphs (1) and (4) hereunder:
"223.
Ancestral property.--
(1) Property inherited from paternal ancestor
All property
inherited by a male Hindu from his father, father's father or father's father's
father, is ancestral property. The essential feature of ancestral property according
to the Mitakshara law is hat the sons, grandsons and great-grandsons of the person
who inherits it, acquire an interest in it by birth. Their rights attach to it at
the moment of their birth
....................
(4) Share allotted on partition
The share which a coparcener obtains on partition of ancestral property is ancestral
property as regards his male issue. They take an interest in it by birth, whether
they are in existence at the time of partition or are born subsequently. Such share,
however, is ancestral property only as regards his male issue. As regards other
relations, it is separate property, and if the coparcener dies without leaving male
issue, it passes to his heirs by succession.
37. In Hindu Law by Mulla, 21st Edn., at page
352 while discussing about the presumption as to the joint family and its continuance,
it is stated in paragraph 231(1) that
"generally speaking, the normal state of
every Hindu family is joint. Presumably every such family is joint in food, worship
and estate. In the absence of proof of division, such is the legal presumption."
In paragraph 231(2), with regard to the
Presumption
whether a joint family possesses joint property
the learned author has stated as
follows:
"There is no presumption that a family,
because it is joint, possesses joint property. When it is a suit for partition,
a party claims that any particular item of the property is joint family property,
or when in a suit for a mortgage, a party contends that the property mortgaged is
joint family property, the burden of proving it rests on the party asserting it."
38. Here, what we find from Ext.A1 partition
deed is that the properties of the illom have been partitioned among 12 sharers.
Significantly, the plaintiff was a minor at that point of time. In this context,
we will have to consider what is the effect of partition. The Apex Court in
Kalyani
v. Narayanan (AIR 1980 SC 1173)
which is a decision of a three Judge Bench (V.D.
Tulzapurkar, D.A. Desai & A.P.Sen, JJ.), speaking through Desai, J., had occasion
to consider the meaning of the word 'partition' in Hindu Law. In paragraph 10 the
principles have also been discussed and their Lordships have relied upon the important
judgment of the Privy Council in
Approvier v. Rama Subha Aiyan {(1866-67) 11 MIA
75}
We extract hereunder the entire paragraph for easy reference:
"10. The next stage in the unfolding of
the case is whether Ext. P-1 is effective as a partition.
Partition is a word of
technical import in Hindu law. Partition in one sense is a severance of joint status
and coparcener of a coparcenery is entitled to claim it as a matter of his individual
volition. In this narrow sense all that is necessary to constitute partition is
a definite and unequivocal indication of his intention by a member of a joint family
to separate himself from the family and enjoy his share in severalty. Such an unequivocal
intention to separate brings about a disruption of joint family status, at any rate,
in respect of separating member or members and thereby puts an end to the coparcenery
with right of survivorship and such separated member holds from the time of disruption
of joint family as tenant-in-common. Such partition has an impact on devolution
of share of such member. It goes to his heirs displacing survivorship. Such partition
irrespective of whether it is accompanied or followed by division of properties
by metes and bounds covers both a division of right and division of property (see
Approvier v. Rama Subba Aiyan, (1886) 11 Moo Ind App 76 (PC) quoted with approval
in Smt. Krishnabai Ganpatrao v. Appasaheb Tuljaramarao (1979) 4 SCC 60 at p. 68:
(AIR 1979 SC 1880).
A disruption of joint family status by a definite and unequivocal
indication to separate implies separation in interest and in right, although not
immediately followed by a de facto actual division of the subject-matter. This may
at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv)
43 Ind App 151: (AIR 1916 PC 104). A physical and actual division of property by
metes and bounds follows from disruption of status and would be termed partition
in a broader sense."
The principles discussed above will show that there will
be a disruption of joint family status in respect of separating a member or members
who holds from the time of disruption of joint family as tenants-in-common. Such
partition has an impact on devolution of shares of such members. Significantly,
it was held therein that "such partition irrespective of whether it is accompanied
or followed by division of properties by metes and bounds covers both a division
of right and division of property."
39. In
"Mulla Hindu Law"
21st Edn.,
while dealing with the same subject, viz. partition and its effect, at page 511
the following aspects have been highlighted:
"321. What is partition.--
According to
the true notion of an undivided mitakshara family, no individual member of that
family, whilst it remains undivided, can predicate of the joint property, or that
a particular member, has a certain definite share, one-third or one- fourth. Partition,
according to that law, consists in a numerical division of the property; in other
words, it consists in defining the share of the co-parceners in the joint property;
an actual division of the property by metes and bounds is not necessary. Once the
shares are defined, whether by an agreement between the parties or otherwise, the
partition is complete. After the shares are so defined, the parties may divide the
property by metes and bounds, or they may continue to live together and enjoy the
property in common as before. However, whether they do the one or the other, it
affects only the mode of enjoyment, but not the tenure of the property. The property
ceases to be joint and immediately the shares are defined, and henceforth, the parties
hold the property as tenants-in-common."
Therefore, even if the parties are living together
and enjoying the property, that will be only the mode of enjoyment and it will not
affect the tenure of the property and they will be holding the property as tenants-in-common.
Even in the extreme case of a re-union also, there should be clear evidence regarding
the same. In the case of the plaintiff who was a minor, such an arrangement cannot
be presumed also, since he was not competent to contract.
40. In a later decision of the Apex Court in
Man Singh (dead) by Lrs v. Ram Kala (dead) by Lrs. and others {(2010) 14 SCC 350}
the above dictum has been relied upon in paragraph 16 while considering a similar
question as to the
Effect of partition.
Reliance has been placed also on
Approvier's
case (1886) 11 Moo Ind App 76 (PC)
Raghavamma v. A. Chenchamma (AIR 1964 SC 136).
41.
The history of the various enactments which
recognised proprietary right will show that one of the earliest enactment is Madras
Nambudiri Act, 1932 which conferred a right to seek partition which is a deviation
from the Hindu law applicable to Nambudiris.
The Madras High Court had occasion
to consider the
Effect of an unequivocal declaration of intention of a member of
joint family to separate from family in case of Nambudiris
in the decision in
K.P.
Madhavi Ammal and others v. M. Subramanian Nambudiripad and others (AIR 1939 Madras
584)
by a Division Bench consisting of Pandrang Row and Abdur Rahman, JJ. The plaintiff
therein, after instituting a suit for partition executed a registered will leaving
all his properties including his share in the illom property to his wife and children.
He died later and the wife and children applied to be brought on record as legal
representatives of the plaintiff. The application was dismissed, holding that the
right to sue did not survive as there was no severance of status by mere filing
of the suit. This was reversed in appeal by the High Court. While discussing
Section
23 of the Madras Nambudiri Act which enables any member of an illom male or female
to take his or her share of all the properties of the illom over which it has power
of disposal and separate from the illom
Their Lordships have held in page 584 as
follows:
"This unqualified right which is given to
every member of the illom was surely meant to be a right which would vest in the
member of the illom who is making the claim in question, separation being of course
a necessary concomitant of the claim. It could not have been intended by the Legislature
that till the Court passed a decree in a suit preferred by any member of the illom,
there could be no vested right in the member which could be transmitted by him either
by will or otherwise. It is not seriously disputed that if he had chosen to make
an alienation of his share during his lifetime the alienee would be entitled to
maintain his right to recover the particular share that would have fallen to the
deceased alienor. There seems to be no particular reason why the rule of law which
applies to the Hindus governed by the Mitakshara law should not apply to Nambudris,
namely that there is a division of status, and, so to speak, a division of title,
and a proprietary interest vested in the person concerned the moment he makes an
unqualified and unambiguous declaration of his intention to claim his share and
separate himself from the family even though such declaration is unilateral."
It has been observed further at page 585 as follows:
"In any case when the Legislature was considering
this Nambudri Act of 1932, it must be obvious that it had this well established
rule in its mind when it enacted this S.23 which gave every member of an illom the
right to claim his or her share, that on the making of such a claim he would have
a vested right so far as his share of the property was concerned, though that share
remained to be ascertained later on, either by mutual agreement, or by an order
of Court."
Therefore, their Lordships have adopted the principle
that
There will be a division of status, a division of title, and a proprietary
interest vested in the person concerned, when such a person makes an unqualified
and unambiguous declaration of his intention to claim his share and separate himself
from the family.
The exposition of law as above is significant in the context of
this case also.
42. In this context, we will refer to a judgment
of a Division Bench of this Court consisting of V.P.Gopalan Nambiar, Acting Chief
Justice and P.Janaki Amma, J., reported as
Perigamana Illoth Gowri Antharjanam v.
Perigamana Illoth Krishnan Embrandiri - 1977 KLT S.N. Page 7, Case No.17.
The full
text of the said judgment gives an insight into the detailed facts. Therein, the
appellants/plaintiffs were the legal representatives of one Ishwaran Embrandiri,
a member of a Nambudiri illom who died in 1959. They were the widow and daughter
of the deceased. Defendants 6 and 7 were the sons of the deceased Ishwaran Embrandiri.
Partition was claimed expressly on the basis that the plaintiffs who are the legal
representatives of the deceased Ishwaran Embrandiri were entitled to claim from
the illom the share which Ishwaran Embrandiri would be legitimately entitled to,
in respect of all the illom properties. Therein also, a partition deed was executed
as Ext.B4 in 1952 in respect of the properties of the illom. The said partition
was effected as if the parties were governed by Madras Nambudiri Act. The deceased
Ishwaran Embrandiri had taken his share of the illom properties on that basis. The
court below held that the plaintiffs, the legal representatives, cannot be heard
to say that they are entitled to a re-partition of the assets of the illom on the
basis that Hindu Mitakshara law and not the Nambudiri Act that was applicable to
the parties. The Division Bench, speaking through V.P.Gopalan Nambiar, Acting Chief
Justice (as He then was) has held as follows:
".................There is no
ground for the plaintiffs, as legal representatives, to claim their share of the
estate which had been partitioned in 1952 on the basis that the Nambudiri Act was
applicable. That partition was accepted by their predecessor who died only in 1959.
Counsel for the appellants contended that Ext.B4 was executed under a mistake of
law as to the law governing the parties, and that therefore the plaintiff were entitled
to avoid or ignore the partition. We cannot agree. The appellants claimed as the
legal representatives of the deceased Ishwaran Embrandiri. During his life-time
Ishwaran had no case that Ext.B4 was vitiated by any type of mistake; and on the
materials placed, the courts below and the learned Judge were right in coming to
the conclusion that no case of mistake or mis-representation or other invalidating
circumstances had been established against Ext.B4. That being so, their claim for
a partition in accordance with the principles of Hindu Mitakshara Law has neither
force nor merit."
Of course, the said decision is one relating to Madras Nambudiri
Act, but the findings are significant which have application to the principles relevant
for deciding this case also. It is therefore clear from the above judgment that
The principles of Hindu Mitakshara law can be modified by statute which is the view
taken in Govindan Nambudiri's case (1979-85 KUC 665) and in Savithri Devaki Antharjanam's
case (1972 KLT 532). The decision of the Division Bench in Perigamana Illoth Gowri
Antharjanam 's case (1977 KLT S.N. Page 7, Case No.17) is a pointer to the change
of law after the advent of Madras Nambudiri Act, on Mitakshara law principles which
were relevant earlier.
43. A learned Single Judge of this Court had occasion to
consider the
Legal position as applicable after the Nambudiri Act was enacted
in
Sankaran Potti Madhavan Potti v. Kochehi Krishnan and others (AIR 1976 Kerala 129).
Therein, the correctness of the view taken in Omana Pandala's case (1970 KLJ 873)
was canvassed. P. Janaki Amma, J. has held as follows in paragraph 6, wherein the
law as explained by Sundara Iyer, J. in
Malabar and Aliyasanthana Law and the change
of law introduced by the Malayala Brahmins Act and Kerala Nambudiri Act
have been
considered. We extract the relevant portions from paragraph 6 hereinbelow:
"It
is true that a Nambudiri family is akin to a Mithakshara family on several respects
but as has been observed in the above ruling, Nambudiries are not governed wholly
by the Mithakshara law, but by Hindu law as modified by custom. The customary law
relating to partition among the Nambudiries is different from that of Mithakshara
law and in line with the rule of Marumakkathayam law. Sundara Aiyar, J. in his Treatise
on Malabar and Aliyasanthana Law observes at p. 212--
"The principal difference between a Nambudiri
family and a Hindu family governed by the ordinary Mithakshara law is the absence
of a right in the members of the family to demand a partition of the family properties.
In this respect the law of the Nambudiris is the same as the Marumakkathayam law.
It is generally assumed that this is due to the acceptance by the Nambudiris of
the law of non- partition which they found prevailing amongst their Marumakkathayam
brethren. This is a wholly gratuitous assumption. The rule of impartibility is not
peculiar to the Marumakkathayam law. It was the ancient Hindu Law which prevailed
everywhere in India but except in Malabar, the Hindu Law in this respect was subsequently
modified and the right to division of joint property was recognised."
It admits no doubt, that
Prior to the coming
into force of Nambudiri Act of 1958, Nambudiris of Travancore area were governed
by the Malayala Brahmins Act, 3 of 1106.
Section 2(1) of the Act reads as follows:--
""Malayala Brahmin" includes Nambudiri,
Potti and others known or recognised as Malayala Brahmins but does not include those
who according to the law governing them are entitled to individual partition before
the passing of this Regulation." The above provision is also in conformity
with the case that Nambudiris were not exercising the right to individual partition
before coming into force of the statutes relating to the matter."
It was held that there is no necessity for reconsidering
the decision in Omana Pandala's case (supra). Therefore, the change of law after
the statutes including Kerala Nambudiri Act, 1958 came into force, has been noted
in the said decision also.
44. To summarise the legal position, we will
hold thus:
Mayne's Hindu Law & Usage, 14th Edn. paragraph 56 which we have quoted,
even though speaks about the Hindu Law applicable to Nambudiris as Mithakshara,
the change effected by the advent of Madras Nambudiri Act (Section 23) which confers
the right to partition, has been noted. In Govind Potti Govindan Nambudiri's case
(AIR 1987 SC 2276) also the Apex Court has noticed the effect of Section 13 of the
Kerala Nambudiri Act which allows a member to claim partition on per capita basis.
The Division Bench in Savithri Devaki Antharjanam's case (1972 KLT 532) and a learned
Single Judge in Govindan Namboodiri's case (1979-85 KUC 665) also were of the view
that even though there was a presumption that Nambudiri families are governed by
the principles of Hindu law, a statute can provide otherwise. Such a change was
noticed by the learned Single Judges in the decision in Omana Pandala's case (1970
KLJ 973) as well as the later decision in Sankaran Potti Madhavan Potti's case(AIR
1976 Kerala 129). Therefore, after the advent of Kerala Nambudiri Act, 1958, when
the partition takes place, the sharers will get the property individually on a per
capita basis. Even if the properties are not divided by metes and bounds, a common
enjoyment if at all there will not give it a joint family character in the light
of the principles discussed by the Apex Court in Kalyani's case (AIR 1980 SC 1173)
and in Mulla's Principles of Hindu Law which we have already referred to.
According
to us, in the light of the fact that the partition as per Ext.A1 was effected only
after the Kerala Nambudiri Act, 1958 came into force, it is not a case where the
Mithakshara law will apply as Kerala Nambudiri Act alone was applicable as on its
date. Therefore, the wife namely, the deceased first appellant and the other appellants
will get right only in the property of their father and not in the separate property
of the respondent/plaintiff.
45. In the light of the above, the question is
Whether
the joint family continued upto 1976
as argued by Shri S.V. Balakrishna Iyer, learned
Senior Counsel for the appellants.
In fact, in the Kerala Joint Hindu Family System
(Abolition) Act, 1975 what we find from the definition is that it refers to a Hindu
family with community of property. There should have therefore, ownership of the
property in common by the family. Of course, it includes an illom governed by the
Kerala Nambudiri Act, 1958. But in a matter like this where there was separation
of shares of the illom, we will have to refer back to the provisions of the Kerala
Nambudiri Act to understand how the separation has been effected and how the provisions
of the Act will have its own impact on them. Going by the definition of 'illom'
under Section 2(b) of Kerala Nambudiri Act, it means all the members of a Nambudiri
joint family with community of property and includes a 'mana'. Therefore, when we
read the definition of "joint family" under the Kerala Joint Hindu Family
System (Abolition) Act, and that of the 'illom' under the Nambudiri Act together,
the entire idea will be evident and clear. Both indicate that there should be community
of property. When Section 3 of the Nambudiri Act confers on every member equal proprietary
interest in its properties and when Section 15 gives a character of separate property
to the share obtained by any member separating from an illom under Section 13(1),
it cannot be said that the property retains the joint family character, to the detriment
of one sharer. When the entire properties of an illom have been partitioned and
the members have taken their shares separately, merely by the expansion of the family
later, it does not become joint family property in its entirety. The division is
on a per capita basis and the parties have taken the properties as tenants-in-common
and not as joint tenants.
If that be so, we cannot accede to the argument of the
learned Senior Counsel for the appellants that the joint family character of the
property still continues after the partition deed was executed by Ext.A1. The document
Ext.B1 or the additional document produced in the appeal will not be conclusive
to describe the rights of the parties. The description of the family as "thavazhi"
in Ext.B1 is not at all significant as it is a misnomer.
46. As far as the present case is concerned,
evidently, the plaintiff/respondent was a minor at the time of execution of Ext.A1
partition deed. Therefore, the father signed the document for himself and on behalf
of the minor plaintiff. The plaintiff was shown as party No.8 in the partition deed
itself and accordingly, shares have been allotted. As we have already noticed in
the dictum laid down in Kalyani's case (AIR 1980 SC 1173), even if there is no division
by metes and bounds, there is severance of joint status which cannot be disputed.
It was held in the said decision that in fact actually a division of the subject
matter is not at all required. Therefore, even though during the minority of the
respondent plaintiff the father had remarried and it was the father who was managing
it and even if, it was joint in food, worship or estate, there cannot be a presumption
that it became a joint family as such as known to Hindu law. Even the general principles
of Hindu law with respect to the reunion will require consent by the parties concerned.
Herein, the plaintiff/respondent being a minor, the father could not have unilaterally
taken any such decision on his behalf. Merely because during the lifetime of the
father and even after becoming a major the plaintiff did not enforce the separation
of shares, that will be immaterial. The same will not destroy whatever rights he
has obtained by partition of the illom properties in the year 1958. Even assuming
that the father, after separation, was managing their own illom, when community
of property is not there as known to law, the plaintiff cannot be a loser. Therefore,
the claim of the appellants that the property continued to be joint family property
and Hindu Mitakshara law principles alone will apply, cannot be accepted. Apart
from the same, the principles of Hindu law as far as applicable to Nambudiris would
be one which could be modified by custom and usage and could be intervened by statute,
which statutory intervention is clear from the provisions of the Kerala Nambudiri
Act, 1958.
47. Therefore, as far as plaint schedule properties
are concerned, as rightly held by the court below, the plaintiff will be entitled
for allotment 6/10 shares. Accordingly, we uphold the decree and judgment of the
trial court and the appeal is hence dismissed. The parties will bear their costs
in the appeal.
