Partition can be oral and does not necessarily require documentation, provided there is clear intent and evidence to support it.
["Oral partition is valid","Intent and evidence required, not documentation","Conduct of parties can prove partition"]
[Cites 26 , Cited by 0 ]
Kerala High Court
Defendants vs Bhavadasan Namboodiri on 11 April, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936
RFA.No. 195 of 2003 ( )
------------------------
AGAINST THE ORDER/JUDGMENT IN OS 109/2000 of SUB COURT, OTTAPPALAM
DATED 11-04-2003
APPELLANT(S):DEFENDANTS
------------------------
1. SREEDEVI ANTHERJANAM, 2ND WIFE OF NEELAKANTAN NAMBOODIRI,
THEKKINIYEDATH MANA, GANESH GIRI, MUNDAMUKA AMSOM DESOM,
OTTAPALAM TALUK. (DIED)
2. UNNIKRISHNAN NAMBOODIRI, S/O. DO., GURUVAYUR KRIHNA MANDIR,
SREENIVASA NAGAR, GHAMBER POT, HYDERABAD-13, PIN-500013.
3. NEELAKANTAN NAMBOODIRI, S/O. DO., RESIDING AT CHINAKKATHUR TEMPLE,
PALAPPURAM P.O., OTTAPALAM TALUK.
4. SUDHA NARAYANAN, RESIDING AT PALAPPURAM P.O., OTTAPALAM TALUK.
(APPELLANT NO.1 DIED AND APPELLANTS 2 TO 4 ARE RECORDED AS LRS OF
DECEASED APPELLANT NO.1 AS PER ORDER DT.4.8.2009 IN MEMO
DT.15.7.2009)
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.B.KRISHNAN
RESPONDENT(S):
----------------------------
BHAVADASAN NAMBOODIRI, S/O. DECEASED NEELAKANTAN NAMBOODIRI,
THEKKINIYEDATH MANA, MUNDAMUKA AMSOM AND DESOM,
OTTAPALAM TALUK.
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:
T.R.RAMACHANDRAN NAIR &
P.V. ASHA, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - -
R.F.A.No.195 of 2003
- - - - - - - - - - - - - - - - - - - - - - - - - -
DATEDTHIS THE 19TH DAY OFAUGUST, 2014
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.
RFA No.195/2003
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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
RFA No.195/2003
-3-
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
RFA No.195/2003
-4-
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
RFA No.195/2003
-5-
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
RFA No.195/2003
-6-
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
RFA No.195/2003
-7-
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.
RFA No.195/2003
-8-
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
RFA No.195/2003
-9-
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
RFA No.195/2003
-10-
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
RFA No.195/2003
-11-
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
RFA No.195/2003
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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"
RFA No.195/2003
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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
RFA No.195/2003
-14-
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:
RFA No.195/2003
-15-
"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
RFA No.195/2003
-16-
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:
RFA No.195/2003
-17-
"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.].
RFA No.195/2003
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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:
RFA No.195/2003
-19-
"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:
RFA No.195/2003
-20-
"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
RFA No.195/2003
-21-
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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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."
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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,
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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.
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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."
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
(T.R.RAMACHANDRAN NAIR, JUDGE)
(P.V.ASHA, JUDGE)
kav/