Kerala High Court
Sarada And Anr. vs Chakkunny And Ors. on 15 March, 1991
Equivalent citations: AIR1992KER249, AIR 1992 KERALA 249
ORDER G.H. Guttal, J.
1. This petition by the heirs of the deceased plaintiff, arises out of their application for bringing them on the record, as legal representatives of the deceased. But it raises an interesting question relating to the application of the traditional Hindu Law of Kerala to the determination of the petitioners' status as the legal representatives. The question arises out of the facts set out in paragraphs 2, 3 and 4 below.
2. The petitioners, Sarada and Subhadra, are the daughters of the sister of Velayudhan, son of Mundatharayil Krishnan, the sole plaintiff in G.S. 144 of 1990 instituted in the court of the Subordinate Judge, Trichur, in which a decree in favour of the plaintiff was made. Firstly, the decree dated 30-11-1985 declares that: (i) the property surrounding the temple, the temple itself and the "accessories" are the common property of the Mundan-thara tarwad which includes the plaintiff and the defendants; and (ii) every member of the tarwad has a right to worship and perform ceremonies in the property set out in the schedule to the plaint, which includes the land surrounding the temple. Secondly, the decree perpetually injuncts the defendant No. 1 from obstructing the plaintiff and other members of the tarwad in the worship and performance of ceremonies in the property mentioned in the schedule to the plaint. Thirdly, the defendant No. 1 and members of his family are restrained from using the property appurtenant to the temple for residence. Fourthly, the defendant No. 1 and the members of his family are ordered to dismantle and remove the building constructed by them in 1978.
3. The respondent-defendants preferred an appeal to the District Court, Trichur which was registered as Appeal Suit No. 61 of 1986. During the pendency of the appeal Velayudhan died. The petitioners amde an application registered as Interlocutory Application No. 1976-87 and prayed that they be brought on the record of the appeal as the legal representatives of Velayudhhan. The learned District Judge rejected the application on this ground:--
The right to worship in the temple which is the subject-matter of the suit, belongs to Mundanthara tarwad. The parties to the suit are Ezhavas following Makkathayam law of succession. Consequently, the members of Mundanthara tarwad alone could have any rights in respect of the temple. In his opinion the petitioners did not belong to this category of persons and therefore were not "necessary parties". In substance, the learned Judge held that the petitioners are not the legal representatives of the deceased plaintiff.
It is not clear what the learned Judge means by "accessories". But, I take it that by "accessories" he means appurtenances.
4. Admittedly, the plaintiff and defendants are members of the Mundanthara tarwad which belongs to Ezhava community governed by Makkathayam system. In a partition effected in 1908, the tarwad was divided into three thavazhies. But the property which is the subject-matter of the suit was kept undivided because the temple in question was situated in the property, the intention being that all the members of the tarwad should continue to worship in the temple. All the members of the tarwad used to worship and offer pooja at the temple as they are alone entitled to do so. But in April, 1978 the defendant No. 1 without any right constructed house in the property thereby violating the rights of the members of the tarwad and attempted to obstruct the worship by other members. This necessitated the suit in which the decree set out in paragraph No. 2 was made.
5. Marumakkathayam Law as administered by the courts mainly on the west coat of South India including the State of Kerala is a body of Customs and usages which has received judicial recognition and may be taken to be well-settled on most matters, No doubt, it belongs to a school of Hindu Law but it has its own system of heirs and succession. Marumakkathayam' system of Law is founded on Matriarchy whereas all other schools of Hindu Law are founded on Agnatic family. The literal meaning of the word Marumakkathayam is inheritance to nephews and nieces. While in the Mitakshara joint family, the members claim a descent from a common ancestor, the members of the family constituting the Marumakkathayam tarwad descend from a common ancestress. In other words, the descent according to the system of Marumakkathayam is in the female line.
6. Tarwad is the name given to the joint family consisting of males and females all descended in the female line from a common ancestress. It is an undivided family governed by the Mrumakkathayam Law. Its outstanding feature is that for the purpose of inheritance descent is traced through the female line. A tarwad may consist of two or three branches known as thavazhi or branch consisting of one of the female members of the tarwad and her descendants in the female line. By its constitution a tarwad is a family corporation every member of a tarwad has equal rights in the property by reason of his or her birth in the taward. On the death of any member, his or her interest in the tarwad property deveolves on the other members of the tarwad by survivorship. Both male and female members have equal rights in tarwad property. The limited estate of Hindu woman so familiar to Mitakshara law is unknown to Marumakkathayam law.
7. The Madras Legislature and later on the Kerala legislature modified the law so as to bring it in conformity with growing needs and aspirations of a progressive community. The urge towards progressive legislation, reform and the confluence with the mainstream of Hindu law was evident as early as the introduction of the Hindu Code Bill. It is significant that the report of the Select Committee on the Hindu Code Bill omitted the exceptions proposed in respect of succession to the property of a Hindu governed by the Marukkattayam system of law. In the opinion of the members of the selection Committee of the Constitution Assembly, the interests of uniformity demanded that such exception should be omitted. After the reorganisation of States in 1956, the State of Kerala by the Kerala Joint Hindu Family System (Abolition) Act, 1975 repealed the earlier enactments including the Travancore Ezhava Act (1115) and the Cochin Marumakkattayam Thiyya Act (XVII) of 1115.
8. The Kerala Joint Hindu Family System (Abolition) Act 1975, was a significant step in the process of change away from the traditional coustomary law. It abolished the very concept of preference in favour of the female sex. In a sense, it is a manifestation of the equality of sexes in the matter of succession. Broadly stated the changes introduced by this Act were these:
(i)The definition of Joint Hindu Family was enlarged to include not only the families governed by Mitakshara Law but also all families with community of property. Thus, it includes, tarwads and tavazhies of Maru-makkattayees, illoms of Namboodiris and Kutumbas and Kavarus of Aliyasantanams;
(ii) The concept of acquisition of a right in the property by birth alone was abolished;
(iii) All the members of the Joint Hindu Family hold the coparcenary property as tenants-in-common and not as joint tenants, as if a partition had taken place; and
(iv) The laws which hitherto governed the joint Hindu Families in Kerala were repealed. They include the Travancore Nayar Act II of 1100, the Travancore Ezhava Act III of 1100 and the Cochin Marumakkathayam Thiyya Act XVII of 1115.
9. The effect of the Kerala Joint Hindu Family System (Abolition) Act 1975 is that concept of succession through females and the constitution of tavazhis and tarwads, which were the foundations of the Marumak-kattayam system has been abolished. The law which now governs Hindus in Kerala, as indeed everywhere in India, is the Hindu Succession Act 1956.
10. Against the background of the facts stated in paragraphs 2, 3 and 4 and the statement of law in paragraphs 5, 6, 7, 8 and 9, the question is whether the petitioners are the legal representatives of the deceased plaintiff. The learned-trial Judge has proceeded on the assumption that the parties "are Ezhavas following Makkattayam Law of Succession", and since they do not belong to "Mundan-thara tarwad", cannot succeed to the estate of the deceased plaintiff.
11. The learned trial Judge applied to this case, the concept of Marumakkattayam System, the status of tarwad and tavazhies which have been legislatively abrogated. Therefore, I hold that he acted illegally in the exercise of his jurisdiction. This calls for interference in this Court's revisional jurisdiction.
12. The question whether the petitioners fall within the definition of legal representatives as defined in Section 2(11) of the Code of Civil Procedure has to be determined on an analysis of the concept of "estate" and the "representation" of such estate by the petitioners.
13. A "legal representative" is a person who in law represents the estate of a deceased person. Although in its strictest sense the meaning of "legal representative" was limited to executors and administrators only, it has now been so extended as to include heirs of the deceased. Therefore, a person on whom the estate of the deceased devolves would be his legal representative.
14. The meaning of the word "estate" also needs to be understood. In its broadest terms "estate" means worldly conditions, total possession of property, especially landed property. It is not necessary that an estate be held in all its total interest. An estate in land is the degree, quantity, nature or extent of the interest which a person has in it. While in its primary and technical sense the term "estate" refers only to an interest in land, yet, by common usage it has acquired a much wider import and application,' being applied to personal property as well as reality, and in its most extreme sense signifying everything of which riches or fortunes may consist." The concept of estate comprehends all that a man has property or ownership in, real or personal.
15. Does the interest held by the deceased Velayudhan constitute "estate"? Consider the decree made by the learned trial Judge. The plaint and the decree are not confined to a mere right to worship, but embrace the rights in the land surrounding the temple. The decree upheld the right to the land and injuncted the respondents from constructing on the land and directed them to demolish the structures built by them. The submission of learned counsel for the respondents is that the suit relates to the mere right to worship and, therefore, such right would not devolve upon the petitioners who are women. The very assumption that the suit is confined to the right to worship being unfounded, the argument advanced on behalf pf the respondents is untenable.
Having regard to the meaning of the word "estate" I have no doubt that the rights asserted by the deceased constitutes his estate. Since the precise meaning of "estate" depends upon the nature of the interest, the context and circumstances, for the purpose of Section 2(11) of the Code of Civil Procedure, "estate" includes every interest in property, present, expectant or future whether vested or contingent. Again a person may have interest at law or in equity.
16. Then the question is whether the petitioners are legal representatives of the deceased. In other words, do the petitioners represent the estate of the deceased? As already stated, the abrogation of the concept of Marumakkattayam System of Law calls for examination of the status of the petitioners in the context of the changed law. The law which governs succession to the property of a Hindu is the Hindu Succession Act.
17. The word "represent" literally means to stand for or to be substituted for. In order to understand this question one must consider whether the petitioners are heirs of the deceased in accordance with the law applicable to them. The word "heir" has been defined to mean any person, male or female, who is entitled to succeed to the property of an interstate. The Act except otherwise provided therein, has overriding effect. The previous laws ceased to have effected upon the commencement of the Hindu Succession Act. Even when a Hindu governed by Marumakkattayam System of Law dies having an interest in the property of tarwads, tavazhies or illoms, his interest in the property devolves by succession under the Hindu Succession Act and not according to Marumakkattayam System of Law. The general rules of succession in the case of males are laid down in Section 8 of the Hindu Succession Act. Firstly, the property devolves on the Heirs specified in class I of the Schedule to the Act. It there be no heir of such class the property devolves upon the heirs specified in Class II of the Schedule. The petitioners are admittedly, the daughters of the sister of the deceased. The deceased has left no heir falling in Class I of the Schedule to the Hindu Succession Act. Class II sets out categories of heirs under heads I to IX. "Sister's daughter" is a relative specified as an heir under sub category (4) of category IX in Schedule II of the Hindu Succession Act. The petitioners who are the daughters of the sister of the deceased are therefore his heirs. Therefore, they represent the estate of the deceased Velayudhan.
18. In view of what I have held in the foregoing paragraphs the petitioners are the legal representatives of the deceased.
19. The nature of the interest of the deceased in the subject-matter of the suit has been referred to by me, for the limited purpose of determining whether the petitioners are the legal representatives and not for the purpose of deciding merits of the case in the appeal.
20. For all these reasons the revision petition is allowed with costs. The impugned order of the learned District Judge, Trichur in LA. No. 1956 of 1987 in A.S. No. 61/86 is set aside. The petitioners shall be brought on the record of the case as the legal representatives of the deceased plaintiff.