KURIAKKO Vs. OUSEPH

JUDGEMENT

(1.) THE tarwad in question is an Ezhava Marumakkathayam tarwad and the division is alleged to have taken place in the year 1071 M. E. , long before the Travancore Ezhava Act was passed. THE question therefore has to be considered in the light of customary Marumakkathayam Law. THE appellant relies on the decision of a single judge of this Court, Kunhiamma v. Appu Nair (1962 KLT. 99) a decision in which the question has been answered in the affirmative. THE respondent challenged the correctness of this decision and the question has therefore been referred to us for opinion.

(2.) SUNDARA Iyer, in his treatise on Malabar and Aliyasanthana law, observed: "the law must thus be taken to be settled that there can be no partition unless all the members of the tarwad consent. " (Page 14) This conclusion is based on decisions of the High Courts of Madras, Travancore and Cochin and it is unnecessary to make an exhaustive reference to the case law on the subject,

(3.) THE question arises whether the senior most members of the different tavazhies are competent to partition the properties of the tarwad among the tavazhies. In Kunhiamma v. Appu Nair (1962 KLT. 99) it is held that they are, and the appellant relies on this decision. We are unable to accept the proposition. THE learned judge held: "partition is a transaction among co-sharers. If the co-sharers be individuals, all the individuals concerned must join in it; but if the co-sharers be branches of a family, only the branches concerned need participate in it. " In arriving at this conclusion the learned judge relies mainly on principles of Hindu Law and extracts the following passage from mayne's Hindu Law (11th Edition): "where a partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties'. (p. 561. Cases decided under Hindu Law are also referred to and relied on.