BHAGAVATHY AMMA Vs. NARAYANA PILLAI

JUDGEMENT

(1.) I think the decision of the District Judge reversing the decision of the Munsiff holding that the decision of the Division Bench of this Court in Bhavani Pillai v. Ammukutty Pillai (1958 KLT. 869) applied to the case is correct.

(2.) THERE were three sisters belonging to the Kurukkal community to whom the marumakkathayam law applied: to be more precise, the Nair act, did not apply to them. One of the sisters was the first plaintiff, another a Sathyabhama, the mother of a Sarasamma, and the third a Rugmini, under whom the first defendant respondent claims. Sathyabhama died; and a partition of the properties belonging to the three sisters was effected by the first plaintiff and rugmini, whereby Sarasamma, who was then a minor, was given a third share. Sarasamma also died childless subsequently; and the dispute in the second appeal relates to the properties left by her. The respondent, as already stated, represents Rugmini; and the plaintiff-appellants represent the first plaintiff. The appellants' claim was that they were entitled to nine shares out of ten while the respondent was entitled only to one share. In other words, their claim was that on the death of Sarasamma the properties left by her devolved on her grandmother's tavazhi as her mother was not alive; and that the said thavazhi consisted often members, nine of whom belonged to the first plaintiff's branch and one alone belonged to Rugmini's branch. Putting it differently again, the claim was that the properties should be divided per capita among the members of the grandmother's tavazhi and nine such shares should be allotted to the first plaintiff's branch and only one share to the respondent's branch.

(3.) IN the Division Bench ruling a tarwad by name vazhapalli tarwad became divided into different branches before 1066; and thereafter there were three different branches in the tarwad. One of the branches became extinct; and it was claimed that the properties left by the extinct branch must go to the several members of the other two branches as a thavazhi. This contention was repelled by the Division Bench. I may extract one passage from the Division Bench ruling, which in my opinion, will conclude the question against the appellants. "when the properties which originally belonged to krishnan Parameswaran's branch devolved after the extinction of that branch on the surviving branches, the surviving branches could have taken those properties only as tenants-in-common, with each branch having separate rights and not as an undivided tarwad comprised of all the surviving branches" (underlining is mine ). This passage clearly shows that since the tarwad became partitioned into branches, the properties left by the extinct branch must be taken by the surviving branches as branches and hot by all the members thereof as a tavazhi. It is the several branches who are tenants-in-common and not the members of the branches.