1. Defendant 1 has filed this second, appeal against the decree of the lower appellate Court allowing the suit. The Plaintiff and Defendants 1 and 2 are Nanjinad Vellalas. Defendant''s was the wife of the Plaintiff and they had a daughter by name Muthamma who was married to Defendant 1. Muthamma died having no children. The Plaintiff had made a gift of items 1 to 5 in the plaint schedule to Defendant 9 and Muthamma under Ex. I dated 29-8-1088. Items 6 to 10 are the properties of the sub-tarwad of Defendant 2 and her daughter Muthamma. After the death of Mathamma Defendant 2 settled the plaint schedule properties on Defendant 1 by a settlement deed Ex. A dated 21-11-1115. Defendant 1 married another woman after the death of Muthamma. The Plaintiff, therefore, questioned the competency of Defendant 2 to settle the properties on Defendant 1 and filed suit for setting aside the settlement deed, for a declaration that he is the heir to the properties left by Mutbamma and that he be granted a decree for the recovery of Mathamma''s half share in the plaint schedule properties. The Defendants contested the suit and stated that the Plaintiff is not the heir of Mathamma and that as Muthamma died before claiming any partition she had no separate share in the properties. It was contended that on the death of Mutbamma, the properties devolved on Defendant 2 and that the Plaintiff could not claim any right to the properties of the tarwad of Muthamma. The learned Munsiff dismissed the suit holding that Muthamma had no separate or alienable interest in the properties and that on her death the properties devolved on the surviving member of her tarwad namely, Defendant 2. On appeal by the Plaintiff, the lower appellate Court held that Muthamma had a separate share in the properties on the tarwad ascertained as at the time of her death and that the Plaintiff was the legal heir to Mathamma under the provisions of the Nanjinad Vellala Act (VI [6] of 1101). The Plaintiff was, therefore, granted a decree for the recovery of a half share in the plaint schedule properties.
2. It was contended in second appeal that as Muthamma died without claiming her share in the properties of the tarwad, she had no separate interest in the properties which could have been inherited by her father. Section 26, Najinad Vellala Act (VI [6] of 1101) provides:
For the purpose of this Chapter, the undivided share of a male member of a tarwad, or of a female member of a tarwad dying without leaving her surviving any member of her thavazhi, in his or her tarwad property, determined as at the time of his or her death shall be treated as his or her property.
This section occurs in the Chapter relating to intestate succession and it clearly provides that the undivided share of every member of a Nanjinad Vellala tarwad determined as at the time of the death of that member shall be treated as his separate property. The question arose in Ramalekshmi v. Kumaraswamy Pillai 29 T. L. J. 274, whether the filing of a suit for partition by a member of a Nanjinad Vellala tarwad will effect a status of division among the members of the tarwad and the question was answered in the affirmative by a Full Bench of five Judges. The following observation was made in the course of the decision, regarding the effect of the provision in Najinad Vellala Act - Section 26.
Section 26, Vellala Regulation, provides that the share of a junior member of a tarwad determined as at the time of his or her death shall be treated as his or her property, This shows that every member has a definite share in tarwad property subject to the rules of intestate succession provided in Sections 15 to 25. If, at a man''s death, his share becomes determined liable to be inherited by his heirs, I can see no reason why we should not hold that division of status is effected by the institution of the suit for partition which is an unambiguous intention to divide from the rest of the family.
The learned advocate appearing for the Respondent referred us to the decision in Azhakiyanayakom Pillai v. Neelacanta Pillai 31 T. L. J. 767, in which it was held that a member of a Nanjinad Vellala tarwad has no disposable interest in the tarwad properties until he had made a claim u/s 30 of the Act by a demand for his share intimated to the other members of the tarwad. There was no occasion in that case to consider the legal effect of the provision in Vellala Act - Section 26. The rule formulated in the above case relates only to the question whether a member of a Velalla tarwad has a definite share in the properties of the tarwad during his lifetime so as to confer on him a power of disposal over such share before he intimates his intention to claim his share in the properties to the other members of the tarwad. This cannot override the express provision in Section 26 of the Act that the share of every member determined as at the time of the death of be treated that particular member so as to make such share heritable. We, therefore, hold that when Muthamma died bet share in the tarwad properties determined at the time of her death was heritable as her separate property. It is provided by Section 23, Vellala Act, that on the death of an intestate female leaving her surviving no children or lineal descendants of deceased children or husband, or on the death or remarriage of the husband succeeding u/s 22, her property shall devolve on her mother''s lineal descendants. Sub-section (2) to the same section provides that in the absence of her mother''s lineal descendants her father shall take the whole. In this case there are no lineal descendants of Muthamma''s mother and her husband having remarried, the share of Muthamma must devolve on her father the Plaintiff. We, therefore, confirm the decree of the Court below and dismiss this second appeal with costs.
