Kerala High Court
Karthiyayani Pillai And Ors. vs State Of Kerala And Ors. on 13 August, 1974
Equivalent citations: AIR 1975 KERALA 35, 1974 KER LT 750 ILR (1974) 2 KER 442, ILR (1974) 2 KER 442
Author: V. Balakrishna Eradi
Bench: V. Balakrishna Eradi
JUDGMENT Bhaskaran, J.
1. These two appeals arise out of Land Acquisition Reference No. 85 of 1965 on the file of the Second Additional Sub-Court, Trivandrum. Plaintiffs 12 to 18 are the appellants in A.S. No. 596 of 1969, and plaintiffs 4 to 6 ere the appellants in A. S No. 607 of 1969. The reference before the learned Subordinate Judge was under Sections 20 and 32 of the Land Acquisition Act for enhancement and apportionment of the compensation awarded by the Land Acquisition Officer in respect of land, 5.51 acres in extent, comprised in Sy. No. 2631/62 of Kadakompally Village, acquired for the purpose of Rocket Launching Station. The appeals, however, are confined to that part of the judgment which relates to the apportionment of the compensation amount.
2. These appeals happened to be placed before us on a reference by Gopalan Nambiyar and George Vadakkel JJ., who expressed a doubt whether the legal position in regard to the incidents of a Makkathayem gift in the erstwhile Travancore is as stated in Ext. P-3 judgment relied on by the court below. The observation on this point in Ext. P-3 judgment of a Division Bench of this Court, in the constitution of which Bench one among us (Govindan Nair J. as he then was) was a party, reads as follows:--
"......... The question is whether a gift of properties by a Marumakkathayee to a woman would enure to the benefit of her children by him and by her previous husband or whether only to her children by him. This has been answered from very early times by holding that the gift will enure only to the benefit of the woman and her children by the donor.
We are not persuaded that at this distance of time we should reconsider the question......"
Section 41 of the Travancore Nair Act, 1100 (M. E.) provides:
"Property acquired by gift or bequest from the father or husband before Regulation 1 of 1088 came into force shall, for the purpose of this Chapter, in the absence of evidence to the contrary, be treated as the tarwad property of the donees or devisees and of their thavazhee."
3. The law in Travancore appears to have always been that there arises a presumption that a Makkathayam sift made by a Marumakkathayee father is for the benefit of all his children. In Mariamma Rachel v. Narayana Pillai, (1912) 2 Trav LJ 15 the observation is:
"......... No man can reasonably be called upon to provide for the offspring of his wife by some third party. It is extremely unlikely that the idea of making provision for the possible issue of his widow by a future union would be entertained by even the most philanthropic persons............
The law so far has only recognised a sub-tarwad formed by the grant of property to a marumakkathayam female by her husband for the benefit of her children by him........."
This position has been reiterated by P. K. Narayana Pillai J. in Pappi Nangiaramma y. Kunji Nangiaru, (1933) 23 Trav LJ 344 in the following words:
"......... Suppose a husband gives property to a Nair lady and her children by him, there cannot be any doubt, that the property so given will be Makkathayam property or Putravakasom property as it is called in Malabar. Suppose further that the lady is married by another husband and other children are born. They will belong to the same Tavazhi but why should their addition to the Tavazhi affect the rights of the children by the previous husband and the mother, inter se, as such rights stood in law when the gift was made. In such a case, one section of the Tavazhi will hold the property unmodified by the extension of the Thavazhi by subsequent additions. The children born to the subsequent husband cannot possibly have any right to property granted by previous husband."
The question was more fully considered in a still later decision reported in Devaki v. Velayudhan, 1948 Trav LR 584 at page 590 which reads as follows:--
"It has been held in certain cases that a woman can give rise to two tavazhis, under certain circumstances. It has been held that where a Marumakkathayam husband makes a gift of properties to his wife and children there is no presumption that he intended to benefit her children by a former or subsequent husband in the absence of any expression of such intention. The above rule is now well-established and it is not necessary to cite the oases which have laid it down ......... The principle that where a Marumakkathayam husband makes a gift of properties to his wife or his wife and children, the presumption is that the properties are to be enjoyed with the incidents of tarwad property, has its origin in the rule that when ascertaining the intention of the donor, the law governing the parties is one of the circumstances to be taken into account. The above presumption need not be tacked on to the conception of a tavazhi. In such cases as the children by another husband cannot have been in contemplation of the husband who makes the gift these children have to be excluded from the operation of the same........"
The position in regard to what is known as 'Puthravakasom gift' does not appear to have ever been different in the area falling in erstwhile Malabar. It was held by a Full Bench of four Judges of the Madras High Court as early as in 1893 in Kunhacha Umma v. Kutti Mammi Hajee, (1893) ILR 16 Mad 201 (FB) that in the case of a gift or bequest by a person in Malabar in favour of his wife and children who were governed by the Marumakkathayam law, the presumption is that the donor intended that the donees should take the properties as exclusive properties of their own branch with the usual incidents of tarwad properties in accordance with the Marumakkathayam usage.
4. The question whether a gift with the incidents of tarwad property could be made to the mother and some of her issues, namely those by a particular husband only, came up for consideration before a Full Bench of the Madras High Court in Chakkara Kannan v. Kunhi Pokker, ILR 39 Mad 317 = (AIR 1916 Mad 391). Though the Full Bench which consisted of Sir John Wallis, C. J., Sadasiva Ayyar and Srinivasa Ayyangar, JJ., did not express any opinion on the question posed, as it was considered not necessary in that case, Sadasiva Ayyar J., adverting to this aspect of the matter, stated as follows:--
"......... Just as there can be tavazhis within a tavazhi, there can be group tavazhis and sub-tavazhis in the same tavazhi. If two groups or sub-tavazhis springing from two daughters who from a tavazhi can have separate sub-tavazhi properties, there is nothing startling in two branch tavazhis springing from the same lady (through her marrying two successive husbands) and holding separately their respective branch tavazhi properties......"
The same view was reiterated in Imbichi Beevi Umma v. Raman Nair, ILR 42 Mad 869 = (AIR 1919 Mad 28) where the relevant observations are as follows:--
"There remains the real question for consideration, i.e., whether a separate branch of the tavazhi can be established consisting of a woman and her children by one husband to the exclusion of the children by another husband. When property is given to his family by a father, it is held with all the incidents of tarwad tenure-- Kunhacha Umma v. Kutti Mammi Hajee ((1893) ILR 16 Mad 201) (FB)-- and this view is based on the presumed intention of the father to benefit his own children. If, therefore, the second husband Rives property to his wife and his own children, it is difficult to presume that he intended also to benefit the children by subsequent husband, in the absence of any expression of such intention ......... If, therefore, the property was intended for that man's children alone, there is no reason for adding to the branch, which is to enjoy that property the children by another husband. The very fact that the tavazhis are very frequently called puthravakasam tavazhis leads to the inference that they are not merely descendants of one female but also branches of the family which are benefited by a gift from their father and are thereby constituted as tavazhis. In this view there is no difficulty in supposing that the tavazhi of a woman could consist of two branches, one branch made up of children by one husband and the other of children by another husband and each branch might own separate properties obtained from their respective fathers......"
5. A different view, however, was taken by a Division Bench of the Madras High Court in Moithiyan Kutty v. Avissa, ILR 51 Mad 574 = (AIR 192B Mad 870). Agreeing with the views expressed by Krishnan J., Venkatasubba Rao J., observed as follows:--
"......... The contention that a woman's children by a particular husband can form a tavazhi is opposed to the basic principle of the Marumakkatayam law, which recognizes the mother and not the father as the source of the line of descent. A tavazhi, any more than a tarwad, cannot be created by act of parties and it follows from this that a man at his option cannot constitute his wife and some of her children into a tavazhi, The fact that the group consists of every one of his children begotten on her is an irrelevant detail in this connexion, as under the Marumakkatayam law, descent cannot be traced, as I have said, from the father. The incidents of tarwad property will therefore attach only to a gift made to all the members of the tavazhi including the children by other husbands in existence at the time........."
The decision in ILR 42 Mad 369 = (AIR 1919 Mad 28) was rendered in the year 1919 and the decision in ILR 51 Mad 574 = (AIR 1928 Mad 370) was rendered in the year 1928. In the year 1933 the Madras Marumakkathayam Act (Act 22 of 1933) came into force. Section 48 of the said Act reads-
"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 property shall, unless a contrary intention appears from the will or deed of gift or Durchase 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 a daughter "
As rightly observed by Madhavan Nair J. in Chirutha v. Anandan, 1962 Ker LJ 440 at p. 443-
"Legislative recognition was thus given to the view expressed in ILR 42 Mad 869 = (AIR 19.19 Mad 28) of a tavazhi being constituted by a Marumakkathayi woman and her children by the donor husband, exclusive of her children by another."
6. We have noticed that the majority view of the Full Bench of the Chief Court of Cochin in Kuttikrishnan Nair v. Cheethamma, 10 Coch LR 614 is to the effect that no presumption in regard to thavazhi character arises in the case of Puthravakasam gifts and "the donees of Puthravakasam properties, in the absence of an expressed or necessarily implied intention to the contrary, can only be regarded as co-owners or tenants in common with reference to such properties". The reasons stated by Mr. Justice P. Narayana Menon with whom Chief Judge Mr. T. S. Narayana Iyer concurred, for reaching this conclusion, which is contrary to the view taken all along by the Madras and Travancore High Courts, do not appeal to us.
7. We see no reason to depart from the view that has been consistently taken by the High Court of Travancore in decisions commencing from (1912) 2 Trav LJ 15 onwards and also by the majority of the rulings of the Madras High Court brought to our notice including the Full Bench decision in ILR 39 Mad 317 = (AIR 1916 Mad 391) (FB) that the property gifted by a person to his wife or children, in the absence of evidence to the contrary, is to be treated as tavazhi property of the donees or devisees and of their tavazhi consisting of the wife, her children by the said person and the lineal descendants in the female line.
8. Having decided the question of law referred to us, let us now proceed to consider how far on the facts of this case the appellants are entitled to succeed. The property acquired by the State was purchased as per a sale deed dated 26-3-1074 of which Ext. P-1 is a copy, in the name of one Easwari Pillai Amma Kunji Pillai Amma, for short Kunji Pillai, who had married twice. By her first husband Kesava Pillai she had two daughters, namely Bhageerathi Pillai and Kunjulekshmi Pillai. The said Bhageerathi Pillai died long before the reference. Kunjulekshmi Pillai is the 19th plaintiff in the reference. The descendants of the said Bhageerathi Pillai and Kunjulekshmi Pillai are plaintiffs 20 to 33. By her second husband Padmanabha Pillai, Ramakrishna Pillai, for short Ramakrishna Pillai, Kunji Pillai had five sons by name Govinda Pillai, Krishna Pillai, Raman Pillai, Sivasankara Pillai and Bhaskara Pillai. The said Bhaskara Pillai and Raman Pillai respectively were plaintiffs 2 and 3 in the reference. The said Sivasankara Pillai and Krishna Pillai died respectively in the years 1941 (1116 M. E.) and 1953 (1123 M. E.) before the coming into force of the Hindu Succession Act on 17-6-1956. Plaintiffs 4 to 6, who are the appellants in A. S. No. 607 of 1969, are the legal heirs of deceased Sivasankara Pillai, and plaintiffs 12 to 18, who are the appellants in A. S. No. 596 of 1969, are the legal heirs of deceased Krishna Pillai. Raman Pillai died during the pendency of the reference and additional plaintiffs 34 to 40 have been implealed as his legal representatives. Bhaskara Pillai died after the appeal was filed in this Court and additional respondents 16 to 19 were impleaded as his legal representatives as per order on C. M. P. No. 4639 of 1972. Plaintiffs 7 to 11 and 41 are the legal heirs of Govinda Pillai who died in the year 1958.
9. For the purpose of these appeals it would be sufficient for us to consider the pleadings of plaintiffs 4 to 6 and 12 to 16 who are the appellants in those appeals, and the evidence adduced on their behalf. In paragraph 4 of the written statement dated 25-5-1966 filed by plaintiffs 4 to 6 it is stated that the property in question is not a sub-tarwad property. The statement in paragraph 5 is that the purchase of the property was by Kunji Pillai with her own funds. In paragraph 1 of the amended written statement dated 5-2-1968 filed by plaintiffs 12 to 18 it is stated that the property was purchased by Ramakrishna Pillai as per the sale deed of the year 1074 in the name of Kunji Pillai who subsequently died on 9-3-1953. It is further stated that each one among the children of Kunji Pillai by Ramakrishna Pillai was entitled to one out of five equal shares in the property. The appellants in A. S. No. 596 of 1369 as plaintiffs 12 to ,18 in the reference court claimed one out of five equal shares of the compensation amount and the appellants in A. S. No. 607 of 1969 as plaintiffs 4 to 6 claimed one out of five equal shares of the compensation amount. The court below after considering the evidence on record found that plaintiffs 4 to 6 and 12 to 18, appellants before us, are not entitled to any share in the compensation amount. It is against this decision of the court below that these appeals have been filed. The contention raised before the court below, repeated before us, on behalf of the appellants is that the acquisition was by Kunji Pillai with her own funds and that on her death the property devolved on her children with the incidents of tenants in common. Ext. P-2 is a copy of the judgment in O. S. No. 25 of 1958 on the file of the Subordinate Judge's Court, Quilon. As per that judgment, which was confirmed by this Court as per Ext. P-3 judgment, it was held that Bhageerathi Pillai and Kuniulekshmi Pillai were the children of Kunji Pillai by her first husband Kesava Pillai, and that the property known as Menathi Purayidom acquired in the name of Kunji Pillai in the year 1068 was purchased with the funds of her second husband Ramakrishna Pillai, It is therefore clear that the acquisition made in the name of Kunji Pillai under Ext. P-1 about six years after the acquisition of the property referred to in Ext. P-2 judgment was during the subsistence of the marriage between Kunji Pillai and Ramakrishna Pillai. The presumption under the pristine Marumakkathayam Law in regard to such an acquisition made in the name of a woman during the lifetime of her husband as expressed in the headnote to the Division Bench decision of the Travancore High Court in Kaliamma Valliamma Pillai v. Kanakku Narayanan, 10 Trav LR 136 is as follows:--
"......... under the Marumakkathayam law, the acquisitions of a woman, in the absence of evidence to the contrary, are to be presumed to have been made out of funds supplied by her husband for the benefit of his wife and children; that the wife and children of a Marumakkathayam Hindu who assigns property or funds for investment for the ulterior benefit of the former, must to all intents and purposes be regarded as a tarwad quoad such property or funds; and that the male members of such sub-tarwad are competent to execute an acknowledgment of a mortgage in respect of such property." This presumption is no doubt rebuttable, but we do not find any acceptable evidence on record to dislodge it. In their pleadings there is absolutely no averment by the appellants as to how Kunii Pillai found the necessary funds for the acquisition of the property under Ext. P-1. The position in the oral evidence is not better; except for PWs. 1, 2 and 4 saying that Kunji Pillai had tarwad properties and income therefrom, and an admission by P W. 4 that she (Kunii Pillai) was a clever woman there is no positive evidence to show that she had the necessary funds to acquire the property. The result is that the presumption that the property was the acquisition by Ramakrishna Pillai in the name of his wife Kunji Pillai remains without being rebutted. This being an acquisition by a husband with his funds in the name of his wife, it has to be construed to be a gift for the benefit of the sub-tarwad consisting of the wife and the children born to her by him.
10. It may also be noted that plaintiffs 19 to 33 who are the surviving daughter and the descendants of the daughters of Kunji Pillai have not filed any appeal against the decision of the court below that the acquisition was only for the benefit of the sub-tarwad of Kunii Pillai and her children by Ramakrishna Pillai, and, as such, they are not entitled to any share in the compensation amount; moreover, they are not seen to have been made respondents in these appeals.
11. We have already noticed that Sivasunkara Pillai and Krishna Pillai through whom the appellants trace their right to the property had died before the coming into force of the Hindu Succession Act, 1956, and by applying the rule of survivorship which prevailed till then, the appellants, as their legal heirs, are not entitled to claim any share in the property belonging to their tavazhi.
That being the position, the appellants are not entitled to claim any relief in these appeals. The appeals are dismissed with costs.