Lekshmi Amma and Others Vs Anandan Nambiyar and Others

V.P. Gopalan Nambiyar, J.@mdashThis Second Appeal is by Defendants 1 to 4 and 6 to 18 in O.S. No. 394 of 1963, Munsiff''s Court, Badagara which was a suit for partition. The properties sought to be partitioned were gifted by one Chathappa Kurup under Ext. B-1 dated 17-1-1902 in favour of his wife Parukutty Amma and his children then existing by her, namely Ananthan Nambiar (the plaintiff) Lakshmi Amma, Chindan Nambiar and Krishnan Nambiar. Ext. 6-1 contained a provision that the income from the properties was to be utilised also for the support of the children to be born to the donor by Parukutty Amma The plaintiff was prepared to concede a share to Narayanan Nambiar, the 4th Respondent who was the subsequently born child. Thus a 1/5th share for each of the five children was claimed on the ground that the division had to be on the stirpital principle in accordance with the proviso to S. 48 of the Madras Marumakkathayam Act 1933. Supplemental Defendants 6 to 19 were the descendants of the Ist Defendant and it was claimed by them and by Defendants 1 to 4 that the properties belonged to the tavazhi constituted by the plaintiff and Defendants 1 to 4 and 6 to 19. Both the courts below upheld the plaintiff''s claim for partition and decreed the suit as prayed for. In Second Appeal, it was contended that the gift deed Ext. B-1 enured to tavazhi of Parukutty Amma and her children and the lineal descendants in the female line; that being a gift executed prior to the Madras Marumakkathayam Act 1933, neither the main part of S. 48. nor the proviso thereto had application; and that division had to be on a per capita basis. The courts below on a construction of Ext. B-1 held that Chathappa Kurup intended to benefit only his wife and his children through her, and not the lineal descendants in the female line, and that therefore the property belonged only to the plaintiff and Defendants 1 to 4; and that Defendants 6 to 19 had no rights therein.

2. We cannot sustain the conclusion of the courts below on the construction of Ext. B-1. The gift was to the wife and all the then existing children of Chathappa Kurup. It provides that the income is to be enjoyed by the donees and by any children to be born thereafter to the donor by Parukutty Amma. The document contemplated a living in commonality by all the donees (***). It is well settled that a gift or bequest in favour of the wife and all the children, is presumed to be on behalf of the tavazhi. Disagreeing with the courts below, we have no hesitation to bold that Ex. B-1 enured for the benefit of the puthravakasam tavazhi of Parukutty Amma and her children.

3. The next question is: how is a division to be made? S. 48 of the Madras Marumakkathayam Act reads:

48. Construction of bequests, gifts etc. to wife or wife and children: Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of his wife alone or his wife and one or more of his children by such wife together, such properties shall unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as tavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line:

Provided that in the event of partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or daughter.

It was held by a Division Bench of the Madras High Court (Pandrang Row and King JJ.) in Kannoth Punnoron Krishnan (deceased) and Others Vs. Kanoth Punnaran Thala and Others, that the Section did not have any retrospective operation and that in the case of an acquisition prior to the date of the Act, the mode of division was per capita and not per stirpes. The acquisition there was in the year 1881, by the husband Kelan in favour of his wife Manikkam. Two reasons were given in support of the decision: First that on the date of the Act Manikkam was not alive, that her onion with her husband was not subsisting on that date as required by S. 4, and she could not be regarded as the ''wife" of Kelan, her husband, so as to attract S. 48. The second reason was that prior to the Marumakkathayam Act, there was a right of partition depending upon the consent of all the members of the family, and that on such partition, the division was always per capita. There were therefore vested interests in the members of tavazhi, who could expect the property to be divided in a certain way. The right of partition had merely been extended by Chapter VI of the Act, and there was no reason for restricting the same by making the proviso to S. 48 retrospective in its operation. The principle that S. 48 of the Act is not retrospective in its operation, was affirmed by another Division Bench (Somayya and Yahya Ali JT.) in Thatha Amma alias Rugmini Amma and Others Vs. Thankappa alias Madhava Mannadiar and Fifteen Ors. ; and again by Subba Rao and Panchapakesa Iyer JJ. in an unreported, judgment in A.S. No. 301 of 1942. In this Court, the same view was taken by a Division Bench (M. S. Menon and Joseph JJ.) in Prabhakara Menon Vs. Gopala Menon and Others, and by Raghavan J. in Sivasankaran v. Lekshmi ( 1966 KLT. 327). See also Kunjamma alias Kalliani Amma and Others v. Kunjiparvathi Amma and Others (1972 KLT. 319). There is thus an imposing array of authority of the Madras High Court and of this Court in favour of the view that S. 48 is not retrospective.

4. In Kunju alias Thankappa Menon Vs. Vesamma alias Kannamma and others, a Division Bench of this Court (Krishnamoorthy Iyer and Sadasivan JJ.) ordered a division per stripes of properties under a bequest which was held to enure to a Puthravakasom tavazhi. The relevant dates are not seen from the judgment; but, as noticed by Subramonian Poti J., in a judgment to be referred to presently, and as seen from the records of the case available in this Court, the bequest in that case was in 1932 and became operative in 1947 (after the Madras Marumakkathayam Act.) No question therefore arose of any retrospective operation of S. 48 of the Act. But Krishnamoorthy Iyer J. made the following observations on which reliance has been placed by Counsel for the plaintiff-respondent:

The proviso to S. 48 is really intended as a provision as to the mode of partition of the property given by a marumakkathayee in favour of his wife and children as tavazhi property. It is intended as a substantive provision forming part of Chapter VI of the Act dealing with partition................. The mode of partition of the tavazhi property given by the father to his wife and children also known as Puthravakasom property is contained in the proviso to S. 48 of the Act and the division can only be per stirpes.

On the facts of the case, the observation was purely obiter. Indeed, the learned judge himself in a later judgment in Second Appeal No. 22 of 1972 stated that the decision in Kunju alias Thankappa Menon Vs. Vesamma alias Kannamma and others, is not relevant as the retrospective operation of S. 48 was neither raised nor considered therein.

5. In Second Appeal No. 523 of 1966 our learned brother Subramonian Poti. J. noticed practically all the above decisions, and was of the view that S. 48 of the Madras Marumakkathayam Act did not apply to gifts or bequests before the Act and that Krishnamoorthy Iyer J. in Kunju alias Thankappa Menon Vs. Vesamma alias Kannamma and others, did not lay down any different principle. The learned judge was also not inclined to accept the argument that the proviso to S. 48 of the Madras Marumakkathayam Act was a sub-stantive provision by itself.

6. We may then notice the decision of Krishnamoorthy Iyer J. in S.A. No. 22 of 1972. The two gifts and the will which conveyed properties in favour of a Puthravakasom tavazhi, were all before the Marumakkathayam Act (the will became operative also before the Act). As stated in Para. 5 of the judgment the terms of the documents were sufficient to spell out the tavazhi character, and it was not necessary to decide whether the benefit of the presumption under S. 48 of the Madras Marumakkathayam Act can be invoked in respect of the pre-Act documents. Nevertheless, the learned judge discussed the position with respect to the case-law (noticing practically all the decisions referred to earlier) and was of the view that S. 48 was declaratory in character and that the proviso thereto prescribes the mode of division of Puthravakasom property. The learned judge was inclined to think that the decisions in 1966 KLT. 327 and in Second Appeal No. 523 of 1966 required reconsideration, and would have referred the matter to a Division Bench, but for the fact that the case could be disposed of oh the basis of S. 7 (1) of the Hindu Succession Act 1956. In the course of the judgment the learned judge stated that if the property is Puthravakasom property on the date of the Act. the mode of division has to be on the basis of the proviso to S. 48 of the Act. Very strong reliance has been placed by Counsel for the plaintiff-respondent on the observation of the learned judge in this judgment.

7. With respect, we cannot regard S. 48 of the Madras Marumakkathayam Act 1933 as declaratory of the law; nor the proviso thereto as embodying a substantive provision in itself. Prior to the Marumakkathayam Act, the position under the customary marumakkathayam law was, that a presumption of the thavazi nature of the gift or bequest or acquisition would be raised only if the same was in favour, or in the name/names, of the wife and all the children, or of all the children alone, who by themselves constitute a tavazhi. A gift, bequest or acquisition in the name or names of the wife alone, or of the wife and one or more of the children alone to the exclusion of the others, would not give rise to such a presumption (See Thatha Amma alias Rugmini Amma and Others Vs. Thankappa alias Madhava Mannadiar and Fifteen Ors. and Prabhakara Menon Vs. Gopala Menon and Others, ). We are not in the circumstances prepared to regard S. 48 as declaratory of the law. As far as the proviso to S. 48 is concerned, its language will show that it is linked with the main provision. It refers to "the property" dealt with under the main part of the Section. It would be anomalous to hold that the main part of the Section has no retrospective effect, but the proviso has. Prior to the Madras Marumakkathayam Act, the consensual partition that was recognised in the Malabar area was almost always on the per capita principle. See the decision of Madhavan Nair and Anathakrishna Iyer JJ. in Akavande Mulahur Vatakethil Kizhakke Nayar Veetil Karna Vastri Sreedevi Nethiar and Others Vs. Akavande Mulahur Elayat Vatakke Nair Veetil Karnavan Peruvunni Nair and Others, . (In the Travancore area there is authority that the division is stirpital). It is a per capita division that is recognised under S. 38 in Chapter VI of the Act. The modification or restriction on that right is provided by the proviso to S. 48; and neither on principle nor on authority would we be justified in giving the said proviso anything more than a restricted interpretation. We are therefore of the opinion that neither the main part of the Section nor the proviso thereto can be given any retrospective operation.

8. Counsel for the plaintiff-respondent stated that he was not contending that the main part of S. 48 had retrospective operation, but would contend that the proviso could be applied to all cases where partition is sought since the date of the coming into force of the Act. We are unable to interpret the Section this way. If properties granted to the Puthravakasom tavazhi under a gift long prior to the Act, have been partitioned per capita on the footing that the lineal descendants in the female line are entitled to rights, we do dot think it is liable to be re-opened in a suit after the Act on the mere ground that partition should be per stripes.

9. Counsel for the appellant contended before us, that on the death of the original plaintiff, Ananthan Nambiar, his legal representatives had been impleaded by the lower appellate court by order on I.A. No. 2946 of 1968 dated 9-2-1970 on the ground that they are his wife and children: Counsel attempted an argument that it had not been established that there was a legal or valid marriage between the deceased Anathan Nambiar and Paru Amma, impleaded as his wife. We were taken through the evidence. It is enough to state that we are satisfied that the Counsel has not made good his contention, and that the order impleading the legal representatives was correct and proper. In the result, we allow this second appeal, and, in reversal of the judgment and decree of the courts below direct that the properties be partitioned on a per capita basis. It was agreed before us that on this basis, the plaintiff would be entitled to a 1/18 share and defendants 1 to 4 and 6 to 18 to a 1/18 share each. We pass a preliminary decree for partition accordingly on the said basis. In the circumstances, we direct the parties to bear their costs.