T MADHAVA KURUP Vs. T C MADHAVA KURUP

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Kerala at Ernakulam in A.S. No. 188 of 1990 dated 29th June, 2001 allowing the appeal and dismissing the suit for partition filed by the appellant herein. The question which arises for consideration in the instant appeal is whether the suit properties being Tavazhi properties devolved on the two surviving male members of the Tavazhi after the death of the last female member as co-owners, or whether the suit properties devolved upon the last surviving male owner by survivorship who acquired the same as his absolute property. The trial court held that the last two surviving male members of the Tavazhi took the suit properties as co-owners, and upon the death of the one of them the properties devolved upon his heirs, who were entitled to maintain a suit for partition. The High Court reversing the finding held that the Tavazhi continued to exist despite the death of the last female member, and that the last surviving member of the Tavazhi, if a male, took it as absolute property. The heirs of the male member, who pre-deceased the last surviving male member, acquired no right in the suit properties and could not, therefore, maintain a suit for partition and separate possession.

(2.) The facts of the case are not in dispute and may be briefly noticed.

(3.) The Vattiyot Tavazhi belonged to Ummamma Amma, who had a son Krishnan Nair and a daughter Mathu Amma. After the death of Ummamma Amma, the Tavazhi consisted of Krishnan Nair and his sister Mathu Amma along with her three sons and a daughter. Krishnan Nair died in the year 1934. A son and a daughter of Mathu Amma pre-deceased her without any issue. The Tavazhi then consisted of Mathu Amma with her two sons Balakrishnan Nair and Appa Nair. Mathu Amma died in the year 1944 leaving behind her two sons and their heirs. The Tavazhi, therefore, consisted of no female member but only two male members. Balakrishnan Nair died in the year 1950 and Appa Nair, the last surviving member died in the year 1967.