JANAKI AMMA Vs. MADHAVAN NAIR

JUDGEMENT

(1.) This Second Appeal by the first defendant arises out of a suit for partition of the plaintiffs share in the suit properties. Ittichiri Amma the common ancestress held the properties on kanam from Poomulli Mana. On her death they devolved on her tavazhi which consisted at the time of her two sons, Kesava Menon and Sekharan Nair. The plaintiff and defendants 3 to 8 are the children and the second defendant the widow, of Sekharan Nair who died in November, 1938. Kesava Menon died in February, 1950, having made a disposition of his properties including the suit properties by will Ext. B1, in favour of the first defendant his niece, who belongs to another tavazhi. The suit was contested by her on the ground, that the tavazhi of Kesava Menon and Sekharan Nair was undivided, that on the latters death, Kesava Menon as the last surviving member was competent to make the disposition and that the plaintiff was not entitled to any right. The first court dismissed the suit, while in appeal the District Judge allowed partition.

(2.) In the year 1929, there was a suit between Kesava Menon and Sekharan Nair with respect to some properties including those in this suit. It was compromised under a petition Ext. A1. By Para.2 of Ext. A1 Sekharan Nair gave up his contentions with regard to some of the properties claimed by Kesava Menon to belong to him and by Para.3, which is more pertinent, they declared and agreed, that though the paramba and house were acquired and made (the word used being D?m?nbXv for both paramba and house) with Kesava Menons separate funds, the house and paramba, as also 6 1/2 paras of paddy lands which are all in this suit, were acquired on kanom by Ittichiri Amma and belong equally to Kesava Menon and Sekharan Nair. The plaintiffs case was founded on Ext. A1 and was that Kesava Menon and Sekharan Nair became divided in interest, each taking a moiety of the properties absolutely, Sekharan Nairs half share having devolved on his heirs including the plaintiff. No further particulars about the litigation of 1929 are available than can be gleaned from Ext. A1. However, there was no dispute that on the death of Ittichiri Amma, the suit properties including the paramba devolved or her tavazhi. With respect to the building Kesava Menon seems to have advanced a special right, but to have given it up conceding Sekharan Nairs right thereto along with the paramba and 6 1/2 paras of paddy lands. The question to determine is whether the words, that both of them are equally entitled to such properties are sufficient to import division and bring about, a divided status. Antecedent jointness being undisputed, a mere declaration or an assertion of equal right in one member along with the other will not necessarily spell a division in interest. It is consistent with joint family status that the members thereof should possess equal rights over joint family properties.

(3.) The District Judge differing from the Munsiff seemed to think, that the word kaambn in Para.3 of Ext. A1 meant, that each was given a half share and that this was sufficient to bring about a divided status. I do not think that the above word can necessarily lend itself to this construction. More than this, to bring about division by defining shares, an intention to divide must be manifest. No act done by any member can operate as a partition unless it has been done with the intention to put an end to his joint status and acquire a new status, that is the status of a separate owner. (Mullas Hindu Law, 1952 edition page 427 para 326). Even construing Ext. A1 as the District Judge has done, that it has the effect of defining the share of each member of the tavazhi, as held by the Privy Council in Palani Ammal v. Muthuvenkatachala, AIR 1925 PC 49 :