Nullikkodan vs Ayisumma on 13 February, 2002

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Kerala High Court

Kerala High Court

Nullikkodan vs Ayisumma on 13 February, 2002

Author: R Bhaskaran

Bench: S Sankarasubban, R Bhaskaran

JUDGMENT

R. Bhaskaran, J.

1. The plaintiffs in a suit for partition are the appellants in this appeal. Plaint A schedule properties along with

other properties belonged to a thavazhi tharvard of the plaintiffs and defendants. There was a suit for partition

as O.S. No. 150 of 1950 before the Sub. Court, Thalassery, and plaint A schedule properties were allotted to

the group consisting of Amina and her children and grand-children. Amina was the first plaintiff in that suit.

Plaintiffs 2 to 6 in that-suit were her children and plaintiffs 7 to 11 were the children of the third plaintiff. That

the property was allotted to the natural group consisting of Amina and her children in the earlier partition

decree is not disputed in this case.

2. The plaintiffs claimed share in the plaint schedule properties on the basis that the properties are

co-ownership properties and since there was a severance of status of the joint family by the decree forpartition in O.S. No. 150 of 1950, there is no joint family in existence and the shares allotted to the sharers in

the earlier suit must be divided among the sharers and their legal representatives according to the Muslim

Shariat Law. On that basis the plaintiffs claimed 211 7/8 shares out of 380.

3. Defendants 2 to 5 contested the suit. According to them, the allotment of properties to the group consisting

of Amina and her descendants enure to the benefit of thavazhi and the members of the thavazhi are entitled to

share. In that view of the matter, they contended that the plaintiffs are entitled to get only 4' 1/2 shares out of

30 shares.

4. 23rd defendant contended that he is in possession of 65 cents as a tenant and that his tenancy right has to be

reserved while effecting partition.

5. The trial court found that the allotment to the group of Amina and her descedents would enure the benefit

of her thavazhi and the plaintiffs are entitled to get only 4 1/2 shares out of 30 and defendants 2 to 22 are

entitled to get 25 1/2 shares in the group. The question of tenancy set up by the 23rd defendant was referred to

the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act and the Land Tribunal found that the

23rd defendant is entitled to tenancy right and adopting the finding of the Land Tribunal, the trial court

reserved the right set up by the 23rd defendant.

6. In this appeal, the learned Counsel appearing for the appellants contended that the partition in the family as

per the decree in O.S. No. 150 of 1950 effected a severance of status among the members of the thavazhi and

unless there is evidence of re-union', it cannot be held that the allottees in the partition will get the property as

a unit and the allotment will enure to the plaintiff and her descendants. He relied on several decisions relating

to the principles in Hindu Law about the severance of status and re-union and contended that the judgment of

the trial court is unsustainable in Law. The learned Counsel appearing for the respondents on the other hand

submitted that the question involved in this appeal is covered by a Full Bench decision of this Court in Mary

v. Bhasura Devi, 1967 KLT 430 (FB). In that case, the question arose whether the property obtained by a

female member in a tharavad partition would become a, thavazhi property on the female member giving birth

to a child. It was held that under the Marumakkathayam Law, a subsequently conceived child gets a right by

birth in the property obtained by its mother for her separate share in the partition of her tharavad thus reducing

her absolute powers of disposition of those of a joint family manager. According to the learned counsel

appearing for the respondents, if even the property obtained by a female member of the thavazhi in a partition

of the tharavad will have a character of the thavazhi property on the female member begetting a child the


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Judgment in the five member Full Bench decision in Mary's case, 1967 KLT 430 (FB), where the majority

Judgment as quoted earlier held otherwise. The learned Counsel for the appellants also relied on the decision

in Appovier v. Kama Subba Aiyan, (1866) 11 M.I.A. 75. In that case also it is stated that if the members of an

undivided family agree among themselves with regard to particular property, that it shall thenceforth be the

subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment

is taken away from the subject matter so agreed to be dealt with; and each member has thenceforth a definite

and certain share in the estate, which he may claim to receive and enjoy in severally, although the property

itself has not been actually severed and divided. The learned Counsel further relied on the decisions inKochstkutty Ammo v. Bkargavi Amma, 1953 ILR T.C 943, Parameswaran Nair v. Lakshmi Amma, 1968

KLT 51, Bhagwan Dayat v. Reoti Devi, AIR 1962 SC 298 and Raghavamma v. Chenchamma, AIR 1964 SC

136. In all of these decisions, the discussion is with reference to the question of severance of status in a Hindu

joint family and it is categorically held that a member of a Hindu joint family can bring about his separation in

status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy

his share in severality. The question involved in this case is with regard to the nature of allotment of property

to a natural group in a marumakkathayam thavazhi partition and in the light of the decisions in the two Full

Benches in Mary's case and Seetha 's case (supra), the appeal has to be decided against the appellants on this

aspect. The learned. Counsel appearing for the appellants also brought to our notice Section 18 of the

Marumakkathayam Act which says that succession to the property obtained by an individual on partition shall

be governed by the Islamic Law of Inheritance. In this case the property was not obtained by the individualmember but by a natural group consisting of the mother and children and therefore that provision is not

applicable in the facts of the case. This provision is corresponding to Section 7 of the Hindu Succession Ac,t.

Since the parties; are followers of Marumakkathayam Law the general principle of Marumakkathayam Law

have to be applied except to the extent of specific provisions made in the Mappila Marumakkathayam Act.

8. The only other question to be considered is with regard to the claim of tenancy right by the 23rd defendant.

The 23rd defendant h, ; set up an oral lease in respect of 65 cents from one Assainar who was the karanavan

of the family. The lease is said to have been in 1962. The tenancy is claimed in respect of 65 cents in item No.

1 of plaint A Schedule. In support of the tenancy right, revenue receipts from 1970 onwards and two rent

receipts in 1966-67 and 1968-69 are produced. The Land Tribunal found the tenancy right in favour of the

23rd defendant on the basis of the oral evidence of the 23rd defendant and also the report of the SpecialRevenue Inspector that the 23rd defendant is in possession of the abovesaid land claimed by him by tenancy

right. The rent receipts produced are only handwritten receipts and the person who wrote the receipts is also

not examined. The 23rd defendant is none other than the husband of Katheesa Umma, the 6th plaintiff in O.S.

No. 150 of 1950. She died subsequently. Her children are defendants 4 and 5 in the present suit. 23rd

defendant was impleaded as legal heir of Katheesa Umma. The learned Counsel for the appellants also

brought to our notice Section 8(2) of the Mappila Marumakkathayam Act in which it is stated that no lease of

any immovable property of a tarwad in cases not referred to in Sub-section (1) shall be valid unless it is

executed by the Karanavan and where the Malabar Tenancy Act confers fixity of tenure on the lessee, unless

also the written consent of the majority of the majority members of the tarwad has been obtained to the lease.

Since the tenant has no case that the lease was granted with the written consent of the major members, the

tenancy claimed by the 23rd defendant cannot be accepted as valid. Therefore the finding of the Land

Tribunal that the 23rd defendant is entitled to fixity of tenure which finding was adopted by the trial court is

set aside.

In the result, the appeal is allowed in part and the judgment and decree of the Court below in so far as it

reserves the tenancy right claimed by the 23rd defendant is set aside and it is held that the property over which

tenancy is claimed is also available for partition among the sharers. In all other respects, the judgment and

decree are confirmed.


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Nullikkodan vs Ayisumma on 13 February, 2002

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