GOVINDAN Vs. KALUPONNU

JUDGEMENT

(1.) DEFENDANTS 3 and 4 are the appellants. Plaintiffs who are four in number are the contesting respondents. The suit was for partition. The parties are Ezhuvas and are governed by the Travancore Ezhuva Regulation 111 of 1100. The geneological table which is to be found in the judgment of the trial court at page 6 shows that the common ancestress of the parties to the litigation was one Bhagavathi Arathi. She had four sons and three daughters. The youngest of these daughters Bhagavathi is the maternal grandmother of the 1st plaintiff. The 2nd plaintiff is the 1st plaintiff's daughter. The 3rd and 4th plaintiffs are daughters of the 2nd plaintiff. The mother of the 1st plaintiff is the 28th defendant. On the date of suit 1st plaintiff's maternal grandmother Bhagavathi was dead, but the 1st plaintiff's mother the 28th defendant was alive. The suit is framed on the basis of partition of a collateral thavazhi the plaintiff's contention being that their thavazhi descended from the common ancestress the 28th defendant as a collateral thavazhi with respect to the other thavazhies of the tarwad. In the trial court there was a contention urged that prior to the suit, by conduct of parties a partition of the tarwad properties was effected as a result of which the descendants of the three daughters of the common ancestress bhagavathi Arathi had become separated from each other. If this position is correct then the tavazhi of the plaintiffs could be described as a collateral thavazhi as defined in Regulation 111 of 1100. According to this Regulation collateral thavazhies are thavazhies of families who though descended from a common ancestress do not stand in the direct line of ascent or descent from one another. According to S. 30: "after the death of the lineal ascendant referred to in S. 29, or with her consent: (1) eac h collateral thavazhee represented by the majority of the adult members thereof, or (2) the male children or female children without issue of such lineal ascendant and who are not included in the thvazhee referred to in cl. (1), may claim an outright partition of property over which the tarwad has the power of disposal". The learned District Munsiff found that on the date of the suit the common ancestress, the 28th defendant was alive and that it was not proved that she had given her consent to the partition as required by S. 30 read above. For that reason, the suit was dismissed. The plaintiffs appealed and the learned District Judge of Trivandrum when he was hearing the appeal admitted in evidence a document which was proved to be a will executed by the 28th defendant three years after the filing of the suit, in which she had made express reference to the fact that her consent was obtained for the partition of the collateral thavazhi of the plaintiffs. This document which was admitted in evidence by the lower appellate court established that the 28th defendant who was alive when the suit was filed had given her consent. The reason for which the suit was dismissed was therefore, not correct and the lower appellate court passed a preliminary decree for partition and directed the District munsiff to continue the subsequent proceedings in the suit for partition.

(2.) IN second appeal it is contended by the learned counsel for the appellants that one essential feature of the case which turns upon a question of law was not considered by the lower appellate court. Learned counsel argues that the plaintiff's thavazhi cannot be described as a collateral thavazhi which alone has the right of filing a suit for partition. It will come under the category of a sub-thavazhi in view of the fact that the lower appellate court has found that the partition by force of conduct which was relied on by the District Munsiff, did not take place. According to the lower appellate court the tarwad of the descendants of Bhagavathi Arathi remains in tact without having effected any partition of any tavazhi belonging to the tarwad and the plaintiffs' suit should be regarded as a suit for partition of the tarwad properties in which the plaintiffs as a thavazhi claimed shares. We notice from the records that this point was not specifically taken in the lower appellate court when the appeal filed by the respondent in this court was argued there and therefore it is not a matter for surprise that the learned judge did not apply his mind to this important legal question which must be considered in dealing with the suit for partition. The appellant's learned counsel places reliance on the decision of the erstwhile Travancore High Court reported in 1947 TLR 167. There, the facts were almost identical. There also the suit was for partition instituted by a subtavazhi and not a collateral thavazhi, whin the meaning of the definition contained in Regulation III of 1100. IN the judgment of Mr. Justice Sankaran, who was a party to that decision it is stated as follows: "but the suit is for partition of common tarwad properties and so long as the 14th defendant's tavazhi has not become separated or claimed to become separate from the common tarwad, plaintiff's sub-tavazhi by itself is not entitled to claim separation by partition from the tarwad. Such a suit is not permitted by S. 30. Plaintiff's sub-thavazhi cannot be said to be a collateral thavazhi as contemplated by S. 30 (1)among the several thavazhies in the tarwad. It follows, therefore that the suit in its present form is not maintainable. " The position of the plaintiffs in the present case seems to us to be exactly identical with the position of the plaintiffs in that reported decision. Here as in that case the common tarwad remains intact. Bhagavathi Arathi the common ancestress, as already stated had three daughters, the youngest of whom was Bhagavathi, the maternal grand-mother of the 1st plaintiff. These three daughters or their children had not effected partition of their tavazhies. Bhagavathi in her turn had three daughters of whom the 28th defendant, the mother of the 1st plaintiff was the youngest. These three daughters or their descendants had not effected a partition of their separate tavazhies and therefore for the reason given in the judgment already quoted we take the view that the suit is not maintainable because it is not a suit by a collateral thavazhi as defined in the Travancore Regulation III of 1100 which alone is competent to maintain a suit for partition among the members of the community to which that Regulation applies. The Second Appeal must therefore be allowed. But in view of the fact that the point that is raised in this Court was not specifically taken in the lower appellate court which has consequently resulted in the lower appellate court overlooking this question, we do not consider that the appellants are entitled to costs.