Kerala High Court
Kunhipappada Beefathummabi vs Kunhipappada Kunhikoya on 15 February, 2006
Equivalent citations: AIR2006KER345, 2006(2)KLT560, AIR 2006 KERALA 345, 2007 A I H C (NOC) 89 (KER), (2006) ILR(KER) 1 KER 841, (2006) 1 KER LJ 635
Author: K.M. Joseph
Bench: J.B. Koshy, K.M. Joseph, K.R. Udayabhanu
JUDGMENT K.M. Joseph, J.
1. The parties to this Appeal, hail from the Kalpeni Island, which is a part of Lakshadweep, a group of Islands, which is a Union Territory since 1956. The question that has been referred to the Full Bench is whether, so far as the Velliyazhcha or Tarawad properties are concerned, a division should be per stripes or per capita.
2. Before we deal with the question of law, which has been referred to us, it is necessary to state the facts leading upto the Appeal. The first respondent laid a Suit for partition. There are 13 defendants. Plaint B schedule property is the Tarawad property of the parties. The plaintiff claimed that it is liable to be divided into three shares and each thavazhy is entitled to one share each. C Schedule property belongs to the plaintiff and the first defendant, and the 13th defendant has no share in the C schedule property. The genealogical table of the parties projected in the Plaint is as follows:
--------------------------------------------------------
| |
Yatheefabi (dead) Sister (dead)
| |
----------------------------------- Kunhibi (died)
| | |
| Kadeesommabi (dead) Beefathummabi |
| |D1 D13
Plaintiff D2 |
|D2
|
------------------------------------------------
| | | | |
| | | | |
| | | | |
D3 D4 D5 D6 | D7
-----------------
|
D8 to D12
3. Thus, it can be seen that the first defendant is the mother of the second defendant and defendants 3 to 7 are children of the second defendant and defendants 8 to 12 are the children of the 7th defendant. Defendant No. 13 is the grandson of the sister of the grandmother of the plaintiff and the 2nd defendant. The court below has found that the first thavazhy is the thavazhy of Yatheefabi and the second thavazhy is of her sister, and that the 13th defendant is the sole surviving member of the second thavazhy. Yatheefabi had two children, (1) Kadeesommabi who is the mother of the plaintiff, and (2) Beefathummabi, who is the 1st defendant and who is the mother of the 2nd defendant and grandmother of defendants 3 to 7 and further, the great grandmother of defendants 8 to 12. Finding that the plaintiff is a member of the sub-thavazhy of Yatheefabi's thavazhy, the court below found that B schedule property is to be divided into four shares and the plaintiff is entitled to only one such share while defendants 1 to 12 were found entitled to one share and the 13th defendant was declared as entitled to two shares. As regards C schedule property is concerned, the court below found that the 13th defendant has no right over the same and it was decreed that C schedule be divided into two, the plaintiff being entitled to one share and defendants 1 to 12 were found entitled to the other one half share. The oral evidence consisted of the testimony of the plaintiff and a witness examined as DW1. The documentary evidence adduced on behalf of the plaintiff consisted of Exts. A1 to A38. Ext. B1 was the sole document produced by the defendants. It is not in dispute that the parties follow the pristine Marumakkathayam system of law. In the Lakshadweep islands, the tarawad properties are called "Velliyazhcha" properties, while "Thinkalazhcha" properties are. the self-acquisitions of the islanders. As far as tarawad properties are concerned, they are to be dealt with in terms of the customary Marumakkathayam system of law. The case of the plaintiff was that in terms of the custom, the tarawad properties are to be divided among thavazhies. The Kunhipappada tarawad consisted of three thavazhies. The first thavazhi consisted of the plaintiff, the second thavazhy consisted of defendants 1 to 12 and the third thavazhy consisted of the 13th defendant/The contention taken on behalf of the 3rd defendant was that the custom followed in the Kalpeni island is against absolute partition. Properties are given only on maintenance arrangement. It reverts back on the death of the member concerned. It was contended that partition in the Kalpeni island is not per stirpes, but it was per capita. It was also contended that members of the tarawad were enjoying the plaint properties on the basis of a maintenance arrangement entered in 1950, and that it is contended that at present none of the members are entitled to seek a partition.
4. Defendants 1 to 3 and 5 to 12 have filed this Appeal. Learned Counsel appearing on behalf of the appellants would contend that under the pristine Marumakkathayam law, the properties of the tarwaad were impartible. He would further submit that while the concept of impartibility except with the consent of all the adult members came to be interfered with by the passing of various Statutes in different parts of the former State of Kerala, the Muslim settlers in Lakshadweep Islands who carried with them the pristine Marumakkathayam law, were unaffected by the statutory super-imposition on the question of partibility of tarawad properties. The State of Kerala as it stands today, can be said to consist of three geographical parts. On the north, was the area which could be stated to be the Malabar. It was part of the State of Madras. Towards the middle, was the State of Cochin and South of the same, was the Travancore area. The settlers in the Lakshadweep Islands including Kalpeni migrated to the said Islands from the North Malabar area, as also from South Canara. Even though embraced Islam, they continued to follow the Marumakkathayam system of inheritance. Under the same, as we have already noted, the tarawad properties were impartible. The Mappilla Marumakkattayam Act (Act XVII of 1939) was enacted in the year 1939. Now, it applies to all Muslims following the Marumakkattayam Law who are either domiciled in the State of Kerala or have property situated within the State of Kerala. Section 13 provided an individual member of a Tarawad to claim his or her share of the properties of the Tarawad over which the Tarawad had power of disposal and separate from the Tarawad. Section 14 of the said Act reads as follows:
Two or more members belonging to the same tavazhi, may claim to take their share of the properties of the tarwad over which the tarwad has power of disposal, separate from the tarwad, and enjoy the same jointly, with all the incidents of the tarwad property.
Section 17 of the said enactment reads as follows:
In case of a division under Section 13 or Section 14, the individual member, or the members of the tavazhi as the case may be, shall be entitled to such share or shares of the tarwad properties as would fall to such individual member or to such individual member or to such members, if a division per capita were made among all the members of the tarwad then existing.
The Act was in fact authored by the Madras Legislature. The Lakshadweep and Minicoy Islands became a part of the Madras Province and was under the British administration. In 1956, along with the Amini Islands it became the Union Territory. It is stated in the Gazetteer of India, Union Territory of Lakshadweep by Mannadiar, as follows:
...The territory had been declared as a Scheduled District under the Scheduled Districts Act of 1874, by a notification dt. 19.2.1889. When the Scheduled Districts Act was repealed by the Government of India Act of 1919, this protection was preserved and the territory was declared as a "backward tract" under Section 52-A of that Act. Under the Section only Acts specifically declared as such were to be applicable to the territory. Under the Government of India Act of 1935, again the islands were declared as "excluded areas" and were subject to the same immunities until the framing of the Constitution of India in 1950.
The Madras Marumakkathayam Act, 1933 vide Section 38 enabled the partition among thavazhies. It is only in the year 1958 that by an amendment to the said enactment, that an individual member of the tarawad could enforce partition through a Court of Law. But, it is contended by the appellants that such an inroad in the notion of impartibility could not be said to have affected the Muslims following the pristine Marumakkathayam law in the Lakshadweep Islands. It was in this context that Shri M.Gopikrishnan Nambiar, learned Counsel appearing on behalf of the appellants would contend that in the Islands, a suit would not lie at the instance of an individual to enforce a partition of taravad property. He would contend that what could be countenanced at best was a partition among thavazhies and as the plaintiff did not represent the thavazhy, as found by the court below itself, and was only a member of the sub-thavazhy, the Suit itself was not maintainable at the instance of the plaintiff. He would further contend that the properties could not, at any event, be partitioned per stirpes, but the property was to be divided per capita. He relied on the following decisions in support of his contentions:
1) NaniKutti and Ors. v. K.P.P.P. Achuthan Kutti Nair and Ors. AIR 1919 Madras 573.
2) Akavande Mulahur Vatakethil Kizhekke Nayar Veetil Karna Vastri Sreedevi Nethiar and Ors. v. Akavande Mulahur E. Elayat Valakke Nair Veetil Karavan Peruvunni Nair and Ors. AIR 1935 Madras 71.
3) Mayne's Hindu Law (paragraph 1175).
4) Kochunni v. States of Madras and Kerala
5) Mohammed Abdul Kadir v. Appi 1962 KLT 340.
6) Madhava Warrier Eswara Worrier v. Krishna Worrier Parukutty Varasiaru 1955 KLT 495.
7) Cherampennu and Ors. v. Neelan and Ors. 1963 KLT 725 : 1963 KLJ 747.
8) Avvammada Pathummabi and Ors. v. Avvammada Sarommabi and Ors. .
He also relied on the decision of a Division Bench of this Court in A.S. No. 169/00. In the decision in Nani Kutti and Ors. v. K.P.P.P. Achuthan Kutti Nair and Ors. AIR 1919 Madras 573, which was a case from Malabar, the Court had to deal with the contention raised on behalf of minors, who impugned a partition entered into between the adult members of the taravad as per which the properties came to be divided per stripes. The Division Bench took the view that it was not open to the minors to overturn the partition for the reason that the partition was effected not per capita, but per stripes. The Court held as follows:
...Now the authorities to which Mr. Ananthakrishna Aiyar has called our attention show conclusively that partition per stirpes, or what comes to the same thing partition by tavazhies has, to say the least, a greater body of authority in its favour than partition per capita. He has referred us to Strange's Manual of Hindu Law, Section 389 where it is said that where such divisions are made, they would naturally be by tavazhies. Mr. Ormsby who was Chief Justice of Travancore, in his book on Marumakathayam Law, says at p. 2, para 4:
Where division takes place it will usually be according to the taivaries, or number of daughters of the original ancestress. Each taivari may similarly be subdivided, should the members consent thereto and so on, until individual proprietorship is arrived at. I am not aware that this rule has ever been questioned.
The fullest discussion of the question is to be found in Dr. Pandalai's Marumakathayam Law, 1914, p. 146 (which was not referred to before us) where the same result is arrived at, and several decisions of the Travancore High Court are referred to. In a recent case which came before the Privy Council, Sulaiman v. Biyaththumma (3), their Lordships alluded to this method of division by tavazhies as the proper mode of division. They say that this division was merely an application of the rule that division for the purpose of partition is stirpital, though as between the members of any class it is capital.
Mr. Madhavan Nair explained this by saying that it only meant that divisions should be by tavazhies, but did not lay down that each tavazhi should have an equal share. But a division per stirpes which gave each stripe an unequal share depending on the number of members in it, would be very like a division per capita, and was not, we think, what their Lordships intended. This division by Ex. C has been made in what appears upon authority to be the more approved form and therefore we think that the plaintiffs can have no right to question a partition effected in this manner. Further we have to bear in mind that a partition in Malabar depends upon the consent of all parties and if we were to uphold the plaintiffs' contention, the one result would be to set this partition aside and to restore the original state of unity, because division per capita would in this case be without the consent of all the adult members....
In Akavande Mulanhur Vatakethil Kizhakke Nayar Veettil. Karnavastri Sreedevi Nethiar and Ors. v. Akavande Mulanhur Elavat Vatakke Nair Veettil Karanavan Peruvunni Nair and Ors. AIR 1934 Madras Vol. LXVII 771 on which considerable stress was laid by the learned Counsel for the appellants, a Division Bench of the Madras High Court again dealing with a case of Marumakkathayees from the Malabar region, took the view that the partition in a Marumakkathayam tarawad has to be effected on a per capita basis. It held as follows:
...The law is well settled that the properties of a Malabar tarwad belong to all the members constituting the tarwad. Each member of the tarwad is a co-owner of the properties along with the other members and on his co-ownership depends amongst other rights his right to be maintained by the karnavan and his right to a share of the properties if a partition were made and the tarwad is broken up by common consent. In suits for maintenance each individual can claim maintenance for himself or herself and as a rule a per capita share is allowed to the claimant by the Court. If the right to partition is based on co-ownership of the tarwad properties, then I fail to see how on principle such co-ownership can be enforced except by ordering per capita partition as is done in the case of maintenance. Partition according to tavazhis being fraught with difficulties with respect to a male who cannot be the root of a tavazhi, as in the present case, the only alternative is to hold that partition of the tarwad properties should be per capita. And this was the opinion of the learned Subordinate Judge. On principle we cannot see any escape from this conclusion. In the Cochin Report on Marumakkathayam Legislation it is stated that according to the customary law partition is per capita and not per stirpes (See paragraph 157 at page 41 of the Report of the Nair Regulation Committee, 1095). In the absence of any binding decision of this Court we hold that the plaintiffs are entitled to claim partition per capita.
In Mayne's Hindu Law it is stated as follows:
877. Right to partition - It was laid down in course of judicial decisions by the middle of the nineteenth century that one or more members of a tarwad could not claim partition and separate possession of their share of the tarwad property without the consent or concurrence of all the members thereof. This rule was accepted as settled law and acted upon ever since till the Marumakkattayam Act. The respective seniormost members of the tavazhi cannot effect a division. A suggestion, however, was thrown out by Sankaran Nair, J. that the majority of the adult members or even a minority, when it was in the interests of the tarwad, could enforce a partition so as to be binding upon the others, but it was not given effect to by decisions, though it was accepted by the Marumakattayam and Aliyasantana Acts. As a tarwad usually consists also of minor members, a question has often arisen as to whether a partition entered into by all the adult members will be binding on the minors. Such a partition has been held binding on the minors if the arrangement is fair, just and bonafide and if due regard has been paid to the interests of the minors.
The mode of partition, whether it ought to be per stirpes or per capita, was the subject of conflicting judicial opinion. The accepted view is that partition should be per capita and this was affirmed by Section 40 of the Madras Marumakkattay am Act and also by Section 36 of the Madras Aliyasantana Act.
Shri P.R. Sundara Aiyar on Malabar & Aliyasanthana Law, is a locus classicus on the subject of Marumakkathayam Law. The learned Author would state as follows:
The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the karnavan. The individual members are not entitled to enforce partition but a partition may be effected by common consent. The rights of the junior members are stated to be (1) if males, to succeed to management in their turn (2) to be maintained at the family house (3) to object to an improper alienation or administration of the family property (4) to see that the property is duly conserved (5) to bar an adoption and (5) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights.
7. Supposing there are three daughters with an unequal number of children the children by one daughter cannot, as a body, claim an equality of rights with the children of an other daughter. In fact, the family consists of individuals with equal rights and the law does not recognise any rights in branches as such. Supposing a division takes place with the consent of all, everybody, whether male or female, adult or infant, would be entitled to an equal share. A tarwad, no doubt, is said to consist of so many Tavazhis, i.e., lines of mothers, and when a division takes place, it is generally split up according to Tavazhis, that is, those descended from the same mother, or it may be from the same grandmother, while separating themselves from the tarwad as a whole form themselves into a new tarwad instead of living separately as individuals. But, this is only for convenience sake, and it is not the fact that children by one mother are given as much as children of any of her sisters irrespective of the number of the children that each has. In other words division is made not per stirpes, but per capita. Nor is it always the case that the children of one mother or the members of one Tavazhi live together after a division. Sometimes members of different Tavazhis remain together, undivided while members of the same Tavazhi prefer to live separated. In-as-much as the Courts have laid down that there can be no division in a Marumakkathayam tarwad, except with the consent of all the members, the question as to what the share of each individual is has rarely arisen for consideration. It has to be determined by mutual consent, for in the absence of such consent there could be no division at all. But suppose there are minors in a family, and the adult members acting together on behalf of themselves and the minors divide the properties: the question would then arise "in what manner they should effect a division, so that it may be binding on the minors?" It seems to stand to reason that every member should have an equal right. For, suppose the common ancestor had one daughter and five sons, and the daughter has a number of children, some of whom are daughters, and these latter again have a number of children each; effecting a division per stirpes would mean that the five sons would be entitled to five-sixths of the property, with power to alienate and only a sixth of the family property would remain available for division amongst those who continue the tarwad. Again if each of the males amongst the children of the daughter takes away as much as each of the sisters with their children with power to alienate, a very small fraction indeed of the property would descend to those who can continue the tarwad. This is probably the reason why the understanding amongst the people always has been that every individual born in the tarwad has an equal right with every other individual.
In Kavalappara Kottarathil Kochunni alias Moopil Nayar v. State of Madras and Kerala and Ors. 1960 KLT 31, the Apex Court has declared as follows, in relation to the incidents of a Marumakkathayam property:
Marumakkathayam law governs a large Section of people inhabiting the West Coast of South India. Marumakkathayam literally means descent through sisters' children. It is a body of custom and usage which have received judicial recognition. Though Sundara Aiyar, J. in Krishnan Nair v. Damodaran Nair (1912) I.L.R. 38 Mad. 48 suggested that "Malabar Law is really only a school of Hindu Law", it has not been accepted by others. There is a fundamental difference between Hindu Law and Marumakkathayam system in that the former is founded on agnatic family and the latter is based on matriarchate. Marumakkathayam family consists of all the descendants of the family line of one common ancestor and is called a tarwad. The incidents of a tarwad are so well-settled that it is not necessary to consider the case-law, but it would be enough if the relevant passages from the book "Malabar and Aliyasanthana Law" by Sundara Aiyar cited. The learned author says at p.7 thus:
The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the karnavan. The individual members are not entitled to enforce partition, but a partition may be effected by common consent. The rights of the junior members are stated to be, (1) if males, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved, (5) to bar an adoption, and (6) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise, everyone is a proprietor and has equal rights.
The learned Counsel also referred us to the decision of this Court in Madhava Warrier Eswara Warrier v. Krishna Worrier Parukutty Warasiaru 1955 KLT 495 Mohammed Abdul Kadir v. Appi 1962 KLT 340 and Cherampennu and Ors. v. Neelan and Ors. 1963 KLT 725 : 1963 KLJ 747 to point out that they were decisions which related to the Travancore area where division of property was being effected on per stirpes basis. In the decision in Madhava Warner Eswara Warrier v. Krishna Warrier Parukutty Warassiaru 1955 KLT 495, it was held as follows:
The later cases bearing on the custom generally are XIV T.L.T. 955 and XVII T.L.T. 521. The contention of Sri Achutha Warrier, learned Counsel for the appellant, was not that the Marumakkathayam Law is not applicable to the parties in the matter of effecting the division but that the canons of that law demand a per capita division and not a division per stirpes. There is no warrant for this contention. In Chapter VI of Pandalay's Succession and Partition in Marumakkathayam Law there is a clear and full discussion as to the rule of division according to Marumakkathayam law and his conclusion is that the rule is a rule founded on "equality of equidistant stocks" or in other words, the mode of division should be per stirpes and not per capita.
In the decision in Cherampennu and Ors. v. Neelan and Ors. 1963 KLT 725 : 1963 KLJ 747, it was held as follows:
...In the case of such communities the High Courts of Travancore and Travancore-Cochin have always held the view that partition should be on a stirpital basis, the several tavazhies taking equal shares irrespective of the number of members in each thavazhi. Raman Sankara Wariaru v. Rama Wariaru and Ors. 6 T.L.T. 59 FB is a decision of the High Court of Travancore. The parties were Variars and one of the questions was whether partition should be on a stirpital basis and that the properties were to be divided between the branches of the tarwad.
Reference was made in this decision to a case decided by the Sadar Court of Travancore, Roman Neelacunden v. Raman Raman and Ors. (Govinda Pillai's Select Decisions, page 8). The view taken in 6. T.L.T. 59 was followed in Easwara Varier v. Parukutty Varasiar l955 KLT 495. Recently the question came up for decision in Abdul Kader v. Appu 1962 KLT 340. The parties were Thandans, another minority community of Travancore. Velu Pillai J. held that partition was to be per stirpes and not per capita. Reliance was placed on the view expressed by Dr. Krishna Pandalai in his thesis on Succession and Partition in Marumakkathayam Law. Dr. Pandalai has made exhaustive references to cases decided in Travancore before right of compulsory partition was given to major communities in Travancore and shown that partition per stirpes was the rule.
A contrary view has been held in certain decisions of the Madras High Court regarding partition in the Nair community of Malabar. In Sreedevi Nethiar v. Peruvunni AIR 1935 Madras 71, Madhavan Nair and Ananthakrishna Iyer JJ. held that though partition should be on a stirpital basis, the quantum of share allotted to each thavazhi should depend on the number of members of that thavazhi. The decision of these two eminent Judges who were familiar with the system of law applicable to Nairs in Malabar must be given weight. However, with great respect, we have to differ, as the decision cannot be taken to govern other communities in other parts of Kerala. So far as the communities following the marumakkathayam system in the former State of Travancore are concerned the established law was that partition was to be on a stirpital basis, and we do not consider it proper to upset that position on the ground that it would be more logical to effect partition on a per capita basis. Even if two views are possible we should follow the one which has been taken as the law by the Courts in the State for decades.
It is contended that the said principle is inapplicable to partition of tarawad properties in the Malabar area the custom wherein alone was relevant for the purpose of deciding this Appeal. In the decision reported in Achuthan Nair v. Chinnammu Amma and Ors. , the Apex Court had this to say in regard to the legal incidents of a Marumakkathayam property:
To appreciate the scope of the said presumption it is necessary to notice briefly the relevant legal incidents of "tarwad" under the Marumakkathayam law. The said law governs a large Section of people inhabiting the West Coast of South India. "Marumakkathayam" literally means descent through sisters' children. There is a fundamental difference between Hindu law and Marumakkathayam law in that, the former is founded on agnatic relationship while the latter is based on matriarchate. The relevant principles of Marumakkathayam law are well settled and, therefore, no citation is called for. A brief survey will suffice.
A family governed by Marumakkathayam law is known as a tarwad: it consists of a mother and her children, whether male or female, and all their descendants, whether male or female, in the female line. But the descendants, whether male or female, or her sons or the sons of the said descendants in the female line do not belong to the tarward - they belong to the tarwads of their mothers. A tavazhi is a branch of a tarwad. It is comprised of a group of descendants in the female line of a female common ancestor who is a member of the tarwad. It is one of the units of the tarwad. It may own separate property as distinct from tarwad property.
Counsel for the appellants also relied on the following passages from the Treatise on Marumakkathayam Law by K.Sreedhara Variar:
2. Statutory Provisions:
Impartiality was an essential feature of the Marumakkathayam law. There could be no partition without the concurrence of all the members of a Tarwad. The law of partition under the Marumakkathayam system has undergone different stages in all the parts of the State. There are three distinct stages of development in the Malabar area. The position during the prestatutory period was that there could be no partition unless all the members agree (n). The next stage was introduced by the Madras Marumakkathayam Act in 1933 whereby Tavazhi partition was statutorily recognised. Under Sub-section 38 to 41 in Part VI of the Act any Tavazhi represented by a majority of its major members could enforce a partition of the Tarwad properties but the consent of the common ancestress, if alive, was necessary. A schedule appended to the Act contained a list of Tarwads which were stated as impartible. Under Part VII of the Act, those Tarwads could not be divided unless the Collector of the District registered them as partible on the motion of not less than two-thirds of the major members of the Tarwad concerned. There was also provision under Part VII whereby any other Tarwad could be registered as impartible by the Collector at the request of the two-thirds of the major members of the Tarwad. There was also provision to cancel such registrations. The last stage is the contribution of the 1958 amendment of the Madras Marumakkathayam Act by the Kerala Legislature. Now, any member of a Malabar Tarwad can claim individual partition and the consent of the common ancestress has been dispensed with. The schedule and the provisions relating to impartible Tarwads have been taken away from the Statute-book.
He then took us through Exts. A3, A4 and A6 which are Judgments relied on by the plaintiff in support of his contentions. He laid considerable stress on the decision of the Division Bench in A.S. No. 169/00 wherein this Court held as follows:
The plaintiff in a suit for partition is the appellant in this appeal. The plaintiff and the defendants in the suit are members of a Marumakkathayam tarawad hailing from the Andrott island in Lakshadweep. The plaintiff sought separation of his share on partition of the properties of Kakkarachikakkada tarawad. He claimed partition on stirpital basis. The defendants resisted the suit contending that the suit for partition was not maintainable, that the properties are Belliashcha properties and as per the law governing the parties, no partition was possible and the plaintiff could not claim a decree for partition. Alternatively, they contended that the division has to be per capita and the plaintiff could be awarded share only on such a division and that would be one out of 17 shares. The trial court after referring to some of the decisions of this Court proceeded to hold that the plaintiff can maintain a suit for partition by himself, but that he was entitled to claim a share only on per capita basis. The trial court therefore passed a preliminary decree for partition awarding to the plaintiff one out of 17 shares. The plaintiff has filed this appeal challenging that decree and claiming that he is entitled to shares on the basis of a stirpital division. The defendants, the respondents in the appeal have filed a memorandum of cross objections contending that the suit should have been dismissed on the ground that the suit for partition at the instance of a member of the tarawad was not maintainable and the properties, going by the law governing the parties, was not liable to be partitioned outright.
2. Counsel for the defendants contended that the trial court should have dismissed the suit as not maintainable and had erred in holding that the suit for partition at the instance of the plaintiff was maintainable and that the plaintiff was entitled to a share. Learned Counsel for the plaintiff contended that in various decisions of this Court, it was held that a partition was possible and that the trial court was in error in holding that the division could only be on a per capita basis and not stirpital basis.
3. In the decision in Buhari Koya v. Kasimkoya Haji ILR1979 (1) Ker. 730, Justice Janaki Amma traced the history of law in the Lakshadweep Islands and came to the conclusion that as per the customary law governing the parties, partition at the instance of a member of a tarawad was unknown and that the custom that tarawad properties continued to remain tarawad properties and the members of the tarawad had only the right to enjoy the income from the properties, was not unconstitutional and since impartiality was the rule, property could not be dealt with absolutely by any member of the tarawad. This decision of the learned Judge was approved by a Division Bench of this Court in A.S. No. 425 of 1970. The ratio was applied in another case which was taken up in appeal before the Supreme Court. The decision of the Supreme Court is reported as Pattakkal Kunhikoya (Dead) by LRs. v. Thoopikal Koya and Anr. 2000 (1) Supreme 72. The Supreme Court did not disapprove the ratio of the decision of Justice Janaki Amma and affirmed the decree passed by this Court, applying the principle of that decision. It is therefore clear that the suit for partition filed by the plaintiff, the appellant before us, was not maintainable. He is only a male member of the tarawad. He had only the right to have maintenance from the properties of the tarawad and even that right lapsing to the tarawad on his death in view of the recognition of the right of reversion of the properties to the tarawad by the customary Marumakkatayam law governing the parties.
4. As against this position, learned Counsel for the plaintiff referred to observations in some Judgments suggesting that the view expressed by Justice Janaki Amma in Buhari Koya's case ILR1979 (1) Ker. 730 was without reference to the march of time and hence partition could be decreed. According to us, march of time cannot alter the law governing the parties unless there is legislative intervention or the custom had undergone a modification in due course of time. Merely because the law prevailing in the island may not agree with the mode of thinking of the Judge concerned, the settled principle of law cannot be ignored and decrees passed in violation of such law. One of us had occasion to deal with this question in the decision in S. A. No. 96 of 1986 rendered on 21.10.1999. We see no reason to differ from the ratio of the decision in Buhari Koya's case ILR 1979(1) Ker. 730 and the view expressed in the judgment in S.A. No. 96 of 1986. It is therefore not possible to accept the argument of learned Counsel for the plaintiff that the decree for partition granted by the trial court should be sustained.
5. In view of our finding that the suit filed by the plaintiff for partition, is not maintainable in law, we do not think it necessary to go into the question whether the divisions should be stirpital or per capita. We leave open that aspect.
6. For the reasons stated above, we allow the Memorandum of Cross Objections and hold that the suit is not maintainable. We dismiss the appeal. That means, the decree of the trial court will stand reversed and the suit will stand dismissed.
He referred us to the Patta to Exts. A12, A13 and A14 and contended that the plaintiff could not derive any support from the same as contended by him. No doubt, in regard to C schedule property, all parties are one in contending that the 13th defendant is not entitled to any share in the property. The 4th defendant has filed a Cross Objection. Shri P.K. Ibrahim, learned Counsel appearing on behalf of the 13th defendant would contend that the law applied by the court below by which B schedule property was decreed to be divided on per stripes basis did not represent the correct position at law, and the B schedule properties ought to have been divided per capita. In other words, the 4th defendant appeared to address contentions in support of the stand taken by the appellants.
5. Per contra, Shri T. Krishnanunni, learned Counsel appearing on behalf of the plaintiff/first respondent contended that the pristine Marumakkathayam Law did not definitely declare that a partition could be effected only on a per capita basis. He referred us to the decisions of the Madras High Court, namely Nani Kutti and Ors. v. K.P.P.P. Achuthan Kutti Nair and Ors. AIR 1919 Madras 573 and Akavande Mulahur Vatakethil Kizhakke Nayar Veetii Kama Vastri Sreedevi Nethiar and Ors. v. Akavande Mulahur Elayat Vatakke Nair Veetii Karnavan Peruvunni Nair and Ors. AIR 1935 Madras 71 in support of his contentions. He drew our attention to the following passage from P.R. Sundara Aiyar on Malabar & Aliyasanthana Law:
Although these considerations would seem to be fairly conclusive on the question as to how the shares should be allotted on a partition it must be conceded that there is a considerable body of authority on the other side. In 1810, the Provincial Court of Western Division seems to have held: "if partition is made it must be per stirpes and not per capita." See Moore's Malabar Law p. 12, Mr. Strange in his Manual on Hindu Law at page 389 says the same thing. See also Grady's Hindu Law, page 310. In practice, the division is generally by branches. In Timma Daramma (an Aliyasanthana case) and Amma v. Krishnan Menon both cases of succession it is assumed that division is to be per stirpes. Dr. Pandalai in his monograph on Succession and Partition at p. 147 refers to a case in Travancore in which the point directly arose and was so decided. A number of other rulings are also referred to by him in which stirpital division was recognised as the rule. In a recent Privy Council case stirpital division is taken as the normal mode of division. It must also be conceded that equal right of enjoyment does not necessarily connote equality of interest. Under the ordinary Hindu Law, for instance, though the shares of individual members may vary, before partition the enjoyment is according to needs and not according to interest. Before the decision Munda Chetti v. Thimmaju Hengsu, which put an end to suits for partition under Aliyasanthana system, the practice seems to have been to allot a life interest to males and females with possibility of issue extinct and to divide the property among the females. In Narayani Kutti Amma v. Achuthankutti it is laid down that a partition cannot be set aside on the ground that the division is stirpital. In that very case, however, it will be noticed that a part of the property had been divided per capita and no objection was taken to it. Having regard to the state of authorities the only safe position that can be taken is that there is no definite rule either way and a division on either basis or a combination of both will not be set aside merely on that ground.
No doubt, he laid considerable emphasis on the decisions of this Court in Madhava Warrier Eswara Warner v. Krishna Warrier Parukutty Warasiaru 1955 KLT 495, Mohammed Abdul Kadir v. Appi 1962 KLT 340 and Cherampennu and Ors. v. Neelan and Ors. 1963 KLT 725 : 1963 KLJ 747, already adverted to, to contend that a division of properties was being done per stirpes and no interference was called for with the decree of the court below. He also relied on Exts.A13 and A14. Ext.A13 and A14 would show that upon a petition filed by the plaintiff, his name was included in the Patta upon the death of his mother and in her place, and wherein it was ordered as follows:
Therefore the jenm land...is finalised and confirmed as the tarawad property of Beefathummabi and Kunhikkoya of Kunhipappada, Kalpeni.
He would, therefore, contend that there is absolutely no merit in the contention of the appellants that the suit for partition would not lie.
6. This Court in Buhari Koya and Ors. Kasimkoya Haji and Ors. (1979 (1) ILR Ker. 730) dealing with a case where a Suit was filed by members of a tarawad and drawn from the Amini Island (an island in the Lakshadweep) for a declaration that a gift deed executed by the sole surviver member of the branch of the tarwad was invalid and to recover possession of the properties on the ground that they form tarawad properties which devolved on the plaintiffs, held as follows:
Partition in the sense in which it is known in the Marumakkathayam Law as administered in the main land was not in vogue in the Amini Island. It is more or less clear that the early settlers in the island migrated from the west-coast of India at a time when Marumakkathayam law was not codified. Impartibility was the rule as far as early Marumakkathayees were concerned. The privilege of individual partition was conferred on the members of a tarwad only in the subsequent statutes in the respective areas in the main land.
The customary law relating to partition prevailing in the Amini and other islands of the Lakshadweep has to be appreciated in the above setting. The expression 'Partition has also to be understood in the background that property in the island, at any rate, until recently, consisted of trees and not the land wherein they stood. If the right to the usufructs of the trees and not the land itself formed the basis of partition, the concept of partition in early times could not have taken in a division of the land where the trees stood. It is possible that when the number of members of individual tarwads increased, some of them started living separate from the main tarwad houses and by arrangement among the members, the members who left the tarwad houses must have taken with them particular properties for their maintenance. From the fact that right of reversion vests in the branches and concurrence of the other branches is required for alienation of the Belliazcha properties of a branch, it is clear that the members of each of the branches or units of the tarwad retained rights in the properties of the tarwad held by the other branch tarwads. In other words, the tarwad must be deemed to be in existence so far as those properties are concerned. Such properties remain properties of the main tarwad and the possession thereof by individual branch tarwads is only for the purpose of convenient living.
The learned Judge also referred to the Gazetteer of India - Mannadiyar, published in 1977 wherein it was stated as follows:
The Tarwad properties can be partitioned only with the consent of all members of the Tarwad. However, there are local variations in the criteria for partition. In Kavaratti and Agatti, for example, all the members of the joint family are eligible for one share. In Androth and Kalpeni, on the other hand, division of properties is between branches or tavazhis of the family.
In Avvammada Pathummabi and Ors. v. Avvammada Sarommabi and Ors. , a learned Single Judge of this Court dealing with the case from Kavaratti in the Lakshadweep Islands, after referring to the Mayne's Hindu Law, Nani Kutty v. K.P.P.P. Achuthan Kutti Nair AIR 1919 Madras 573, Sreedevi Nethiar v. Paruvunni AIR 1935 Madras 71 and Sulaiman v. Biyathumma AIR 1915 PC 217, held as follows:
...Sri Madhavan Nair (as he then was) appearing for the appellants had explained the Sulaiman's case AIR 1916 PC 217 by pointing out that the Privy Council division should be by tavazhies, but did not lay down that each tavazhi should have an equal share. It is interesting to note that the two Judges who rendered the decision in Sreedevi Nethiar's case AIR 1935 Mad. 71 (supra) had appeared for the contesting parties in Nani Kutti's case AIR 1919 Mad. 573 (supra). Both the Judges are unanimously of the view that division can only be on a per capita basis. The reasons had also been given by the two Judges. Both the Judges were familiar with the system prevalent in Malabar and the Marumakkathayam Law. Since each member of the tarwad is a co-owner of the tarwad property, he is entitled to get a share like any other member. It necessarily follows that the division can only be on a per capita basis. Before the Madras Marumakkathayam Act partition could be effected only by all the adult members joining together. A natural group, meaning thereby a mother and all her children and the descendants in the female line forming a tavazhi, can also get themselves separated. Even then each member of the tavazhi is entitled to one share. This has been made clear by the Privy Council in Sulaiman 's case thus:
... division for the purpose of partition is stirpital, though, as between the members of any one class, it is capital.
I am therefore inclined to follow the later Division Bench decision of the Madras High Court in Sreedevi Nethiar's case. AIR 1935 Mad. 71 and hold that a division of the tarwad property can only be on a per capita basis.
No doubt, the learned Judge also held as follows:
That leads us to the further question whether an individual member can seek partition even though the division is on a per capita basis. This he cannot do, in the absence of any legislation conferring such a right. That there was no such right before the Madras Marumakkathayam Act is clear beyond doubt. A division then could be effected only between tavazhies. A natural group alone can get itself separated from the tarwad. In other words some of the members of a tavazhi by themselves are not competent to institute a suit for partition as per the then existing law. Having found that the parties to the suit are governed by the pristine marumakkathayam law, plaintiffs who are only some of the members of the tavazhi cannot maintain a suit for partition of tarwad properties. The suit has therefore to fail for that reason.
This is seized upon by the learned Counsel for the appellants to contend that the Suit laid by the first respondent has to fail. A thavazhy is a branch of a Marumakkathayam tarawad. "Thavazhy" has been defined in the Madras Marumakkathayam Act differently in relation to a male and female. In regard to a male, his thavazhy is the thavazhy of his mother. In the case of a female, thavazhy consists of the said female, her children and the descendants in the female line. In Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkra Kannan v. Varayalankandi Kunhi Pokker and Ors. ILR 1916 Vol. 39 Madras 317, a learned Single Judge (Justice Sadasiva lyer) has held as follows:
The objection based on the woman (whose husband makes a gift to his children by her) marrying another husband and begetting other children to the latter and on these children also belonging to her tavazhi along with her children by the first husband is not, in my opinion, insuperable. The result of that state of facts will only be that there will be two separate groups in the same tavazhi holding separate tavazhi property, the senior male in each tavazhi group being the karnavan of that tavazhi group. For instance, take the case of a woman and her children who form a tavazhi within a tarwad. Two of her daughters might form two different groups in the same tavazhi and their respective husbands might give properties to their respective children. Then, all these children would belong to the tarwad of their great grand-mother, would again belong to their grand-mother's tavazhi and would also belong to the groups or sub-tavazhis of their respective mothers and hold those respective group properties separately. 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 form 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. A tavazhi consists, no doubt, of the descendants of a single woman (I do not think that it includes the woman herself etymologically), but there is nothing to prevent the existence in that same tavazhi of two groups each of which groups might form a separate unit for the purpose of holding particular properties as if it was a separate tarwad and with the incidents of tarwad property. It cannot be said to be an unnatural separation between the two groups, unnatural in the sense of repugnance to the habits, practices and sentiments of the community....
The view of the learned Judge has been referred to in Chirutha Alias Kalliani v. Anandan 1962 KLT 234 and Janamma Pilial and Ors. v. State of Kerala and Ors. 1974 KLT 750. Thus, a sub-tarawad or a group tarawad arises within the main tarawad consequent upon a thavazhy coming by property otherwise than on a partition of the main tarawad. A branch thavazhy originates when a female following the Marumakkathayarn system gives rise to more than one thavazhy consequent upon her having descendants through two or more marriages. What is relevant is to ask the questions, namely who are all members of a tarawad and which is the property which can be called tarawad property, when partition is sought in relation to tarwad property. As regards property belonging to a tarawad in contrast with the incidents of Mithakshara law, all members of a Marumakkathayam tarawad without any limit as regards their degree are entitled to be treated as members by reason of their birth in such a tarawad. This is not a case which is concerned with either a sub or a group tarawad or with a branch thavazhy. This is a case of a member of a tarawad laying a claim for partition on a stripes basis. In Bhagavathy Amma and Ors. v. Narayana Pillai 1966 KLT 1161, a learned Single Judge of this Court held as follows:
...The argument is attractive, but not worthy of acceptance. A tavazhi exists always in relation to a tarwad; and when a tarwad is partitioned into tavazhies, the thavazhies themselves become tarwads. Therefore, this contention is only to be rejected.
7. Not unlike in a Mithakshara family, in a member of a Marumakkathayam tarawad inheres a right by birth, to the tarawad property. His position is somewhat similar to that of a coparcener of an undivided family. The share he would be entitled to on a partition cannot be inconsistent with the concept of his being a proprietor along with the others in the Marumakkathayam tarawad. However, the position available in the Travancore area was reflected in the decisions of this Court in Madhava Warrier Eswara Warrier v. Krishna Warner Parukutty Warasiaru 1955 KLT 495, Chirutha Alias Kalliani v. Anandan 1962 KLT 234 and Cherampennu and Ors. v. Neelan and Ors. 1963 KLT 725 : 1963 KLJ 747. In Kunhamma Alias Kalliani Amma v. Kunhi Parvathi Amma and Ors. 1972 KLT 319, a Division Bench has held as follows:
The next contention urged is that, regarding puthravakasam properties, even prior to the passing of the Madras Marumakkathayam Act, the principle of partition was the stirpital principle and not the per capita principle. In other words, the contention is that the rule of law enacted in the proviso to Section 48 is only declaratory of the existing law and not a new principle. In this connection, some passages from Sundara Aiyar's Malabar and Aliyasanthana Law have been brought to our notice. The learned author says at page 11:
Having regard to the state of authorities the only safe position that can be taken is that there is no definite rule either way and a division on either basis or a combination of both will not be set aside merely on that ground.
It is pointed out, on the basis of this passage, that there was no such rule as per capita division in the case of puthravakasam properties prior to the Madras Marumakkathayam Act; that the right of compulsory partition was not available to any member of the tarwad; that, when all members agreed, partition could be effected as they liked; and that, in the event of such an agreed partition, the partition might be stirpital, might be per capita, as the parties agreed upon. To meet this, other passages from the same work of the learned author have also been brought to our notice. For instance, the following passage occurring on pages 7 and 8 of the work has been cited.
Supposing there are three daughters with an unequal number of children the children by one daughter cannot, as a body, claim an equality of rights with the children of another daughter. In fact, the family consists of individuals with equal rights and the law does not recognise any rights in branches as such. Supposing a division takes place with the consent of all, everybody, whether male or female, adult or infant, would be entitled to an equal share.
This indicates that the rule of partition -- of course when all alleged -- was the per capita rule.
We shall also refer to one decision of a Division Bench of the Madras High Court in this connection, viz., Krishna v. Thala 53 L.W. 452. In the last paragraph of this decision it is observed:
It is argued for the appellant that, since the Marurnakkathayam Act has created for the first time the right to partition which did not exist before, it is not unreasonable that such a right should be restricted by the proviso which is found in Section 48. We are unable to see any such unreasonableness. There was a right of partition before the Act though it depended upon the consent of all the members of the family. If such a consent were given, the division of property acquired in this way would always be per capita.
Thus, the position appears to be that, in case a partition was agreed upon prior to the Madras Marumakkathayam Act, the partition was per capita: and that there was no rule of law that the partition of puthravakasam properties should be per stirpes.
8. Ext. A3 is a Judgment in an Appeal Suit where the defendant did not dispute the one-half share of the plaintiff. The learned Counsel for the first respondent would refer to this to show that the custom of the parties would be revealed by the stand taken by the parties and it is pointed out that the right of partition was per stirpes. Ext. A4 Division Bench Judgment of this Court would show that this Court has held that the branch of the three persons i.e. the plaintiff and defendants 2 and 3 had actually received one-half share. The Court took the view that the share of the third defendant after her death, should go to the branch of the plaintiff and the second defendant and there cannot be any question of the share going to the other branch. The Court also set aside the restrictions on alienation and the parties concerned have to get their shares absolutely. The claim of the plaintiff was that he and defendants 2 and 3 constituted one branch of a tharawad and the other defendants constituted the other branch. The Judgment shows that there are five parties to the Suit. It is held as follows:
If partition was allowed and properties were allotted to different branches, the allottees must get their absolute right.
It is also a case where the parties belonged to the Androth island. Ext. A5 Judgment of a learned Single Judge dealt with parties who are Muslims from Kalpeni Island. The Suit was one for partition. The relationship between the parties is discernible from paragraph 2 which is extracted hereunder:
The plaintiffs claimed partition of the suit properties on the following set of facts. The ancestress of the properties sought to be partitioned is one Pathummakutty. Pathummakutty had 5 children: 2 sons and 3 daughters. The eldest son now deceased is Pookoya and the second son is Attakoya -- 11th defendant. The daughters are Bambathibi -- 1 st plaintiff, Ayishammabi (died) and Kunhibi (died). Ayishammabi died issueless. Defendants 1 to 3 are the children of Kunhibi. Defendants 4 to 8 are the children of the first defendant. Defendants 9, 10 and 12 are the children of defendant No. 4. Of course, I have already said that the 11th defendant, Attakoya is the brother of the first plaintiff.
The contention of the plaintiffs was that the properties have to be divided between two thavazhies, namely the thavazhy of the plaintiffs and the thavazhy of Kunheebi, the sister of the first plaintiff represented by defendants 1 to 10 and 12. The claim was traced to Ext. A1 compromise whereunder the first plaintiff and two sisters were to take certain properties as thavazhy properties. The trial court had found that the properties belonged to the thavazhies, namely the plaintiffs on the one hand and defendants 1 to 10 and 12. But the trial court dismissed the Suit placing reliance on the decision in Buhari Koya and Ors. v. Kasimkoya Haji and Ors. ELR 1979 (1) Ker. 730 wherein it was held that since there is no clear evidence allowing partition of the properties, partition between the two thavazhies could not be allowed. Thereafter, the learned Single Judge proceeded to hold as follows:
6. 1 may now refer to the relevant observations in the decision reported in ILR1979 (1) Ker. 730. "Partition in the sense in which it is known in the Marumakkathayam Law as administered in the main land was not in vogue in the Amini Island. It is more or less clear that the early settlers in the island migrated from the west-coast of India at the time when Marumakkathayam law was not codified. Impartibility was the rule as far as early Marumakkathayees were concerned. The privilege of individual partition was conferred on the members of a tarwad only in the subsequent statutes in the respective areas in the main land." At any rate, this position has to be considered in the light of Ext. A1 compromise. Further as observed by the court in what I have quoted above, the marumakkathayee is entitled to partition of the properties. It cannot be said that the law should always remain static. The march of time has to be taken note of and where the court is satisfied that a class of persons who are following the marumakkathayam system of law then migrated into the Island from the main land, follow the law of marumakkathayees at the time of migration the change of law also can be given effect to the descendants of those who have migrated from the main land. Further the case decided by Justice Janaki Amma is a case from a different Island. In this case there is intrinsic evidence to show that the properties are partible. I say so on Ext.A1 compromise.
Thereafter, the learned Single Judge proceeded to hold that properties are liable to be partitioned between the two thavazhies, i.e. the first plaintiff's thavazhy and the thavazhy of defendants 1 to 10 and 12. A preliminary decree was passed directing partition of the suit properties in two equal halves, one half being given to the first plaintiff's thavazhy and the other half to the thavazhy of defendants 1 to 10 and 12. Ext. A6 is a judgment in a Civil Miscellaneous Appeal where the trial court had decreed partition among the parties, but imposed a condition that the properties should not be alienated, sold, gifted or mortgaged after partition, without the consent of all the members of the Tarwad. It was observed that there was no dispute between the parties regarding the right to divide the properties. The Division Bench then proceeded to delete the direction in the order under appeal regarding inalienability and prohibition against other forms of transfer. But, this decision does hot give any indication as to where the properties were ordered to be partitioned per capita or per stirpes.
9. The provisions of Sub-section 17 of the Mappilla Marumakkattayam Act (Act XVII of 1939) and Section 40 of the Madras Marumakkattayam Act, 1933 provided that partition should be effected per capita. These Statutes cannot apply to the Islanders as such. But, they relate to the area and what is more have been specifically Muslims, who follow the Marumakkattayam system hailing from the area in the main land where the predecessor in interest of the islanders migrated. A Division Bench of the Madras High Court in Akavande Mulahur Vatakkethil Kizhekke Navar Veetil Kama Vastri Sreedevi Nethiar and Ors. v. Akavande Mulahur Elayat Vatakke Nair Veetil Karnavan Peruvunni Nair and Ors. AIR 1935 Madras 71 as followed in Avvammada Pathummabi and Ors. v. Avvammada Sarommabi and Ors. , takes -the view that partition among Marumakkattayees on the main land, has to be done per capita. This is the view expressed in Mayne's Hindu Law also, and P.R.Sundara Aiyar on Malabar & Aliyasanthana Law which we have referred to reflects this view. But, the learned Author does refer to some divergence in opinion mainly on the basis of the decision of the Madras High Court in Nani Kutti and Ors. v. K.P.P.P. Achuthan Kutti Nair and Ors. AIR 1919 Madras 573. But, apparently, the learned Author did not have the benefit of referring to the later decision of the Madras High Court in Akavande Mulahur Vatakethil Kizhekke Nayar Veetil Kama Vastri Sreedevi Nethiar and Ors. v. Akavande Mulahur Elayat Vatakke Nair Veetil Karanavan Peruvunni Nair and Ors. AIR 1935 Madras 71, which we have already referred to. The view that it should be per capita has gained acceptance by a Division Bench of this Court in Kunhamma alias Kalliani Amma v. Kunhiparvathi Amma and Ors. 1972 KLT 319. Thus, there is a very strong body of judicial opinion and which stands referred to by the learned Authors that a division at least in the Malabar region must take place per capita. This appears to have been the position even prior to the decision of the law contained in the Statutes. This view is in consonance with the juridical concept of a proprietor which is what a member of a tarwad is in regard of the property of the tharawad. In such circumstances, it is clear that each member of a tharawad is a co-owner. It will be inconsistent with the concept of a co-ownership to predicate that a partition on terms which do not vouchsafe for the member a share who is not in keeping with his possession as co-owner with equal rights.
10. We find that as far as the facts in this case are concerned, the learned Counsel for the appellants would be justified in contending that the Suit itself, at the instance of the first respondent, is not maintainable with regard to B Schedule property. This is because the plaintiff is only a member of a thavazhy. A member of a thavazhy by himself cannot enforce partition through a court of law as he does not by himself represent the thavazhy, going even by the decision in Avvammada Pathummabi and Ors. v. Avvammada Sarommabi and Ors. . Going by the genealogical tree referred to hereinbefore, it is clear that while he is a member of a sub-thavazhy, there are other members in the same thavazhy. The thavazhies consist of the members of the thavazhy of the grandmother of the second defendant and the plaintiff on the one hand and the grandmother of the 13th defendant on the other hand. The thavazhy of the grandmother of the plaintiff and the second defendant consists of the plaintiff and defendants 1 to 12. The plaintiff is only one of the members of the thavazhy, even though he may be the sole member of the sub-thavazhy, besides being a member of the tharawad. 'B' Schedule is the property of the tharawad. The view that has been taken by this Court as reflected in the decision in Avvannada Pathummabi and Ors. v. Avvammada Sarommabi and Ors. , is that partition is permitted between thavazhies, even though in the matter of allocation of shares, the number of members in each thavazhy has to be reckoned and in that sense, it is done per capita. It related to the Androth Island. In the Gazetteer, it is stated that in Kalpeni and Androth Islands, partition is permitted among thavazhies. Therefore, at any rate, the Suit at the instance of the first respondent as regards 'B' Schedule, is not maintainable. Thus, while declaring that partition is to be effected per capita in a Suit successfully brought within the meaning of Avvammada Pathummabi's case , in the facts of this case, since it is found that the Suit is at the instance of the first respondent alone, we feel that the suit is liable to be dismissed as regards 'B' Schedule property. As regards 'C' Schedule property, in the light of the principle which we have accepted, namely the partition should be effected per capita, we order that in so far as it relates to 'C' Schedule property, there will be a preliminary decree for partition of 'C' schedule property per capita, i.e. the plaintiff shall be entitled to 1/12 share while defendants 1 to 12 shall take 1/12 share each.
11. The fourth defendant in the Suit (second respondent in the Appeal), who was set ex pane in the Suit, filed Cross Appeal. It was stated by him that since he was employed outside Lakshadweep Island, he was not able to appear before the trial court. Contentions raised by him were considered while considering the contentions in the Appeal and, therefore, the Cross Appeal is also disposed of in terms of the above Judgment. Having regard to the circumstances, the parties shall bear their respective costs. The parties found entitled to partition may apply for passing of the final decree.
Both the Appeal and Cross Appeal are allowed partly as above.