NARAYANAN NAIR Vs. NARAYANAN NAIR

JUDGEMENT

(1.) In a suit for partition brought by some junior members of a Nair tarwad governed by the Travancore Nair Act, II of 1100, defendant 1, who was the karnavan of the tarwad, contended that some of the suit properties did not belong to the tarwad but were his self acquired and separate properties and that they were not, therefore, liable to be partitioned. He as well as several other members of the tarwad also claimed that their shares also should be partitioned in this suit itself. The Court of first instance found that the disputed properties were not defendant 1s self acquired and separate properties and that those properties also belonged to the tarwad and were liable to be partitioned like the rest of the suit properties. Consequently, that court passed a preliminary decree for partition awarding to the plaintiffs, defendant 1 and other members of the tarwad who had claimed partition, shares in all the suit properties on a per capita basis and allowing them to recover possession of the same after partition by metes and bounds. The preliminary decree also directed that defendant 1 and other members of the tarwad, except the plaintiffs, who had claimed shares should pay the necessary court fees before they could recover possession of the properties allotted for their shares. After the disposal of the appeal and the second appeal filed against the preliminary decree and after the High Court confirmed that decree, defendant 1 filed a petition in the court of first instance claiming that over and above the share which he was entitled to get like other members of the tarwad in the tarwad properties and was awarded to him by the preliminary decree he was also entitled to get one-fourth of the properties which he had originally claimed to be his self acquired & separate properties and praying that the allotment of properties to him in the final partition should be made on this basis i.e., he should be given one-fourth of the properties which he had originally claimed to be his self acquired and separate properties and he should also be given the ordinary share allotted to the other members of the tarwad. The case which he put forward in this petition was that the properties which he had originally claimed to be his self acquired and separate properties were acquired by him during his management of the tarwad with the help of tarwad properties and that he was, therefore, entitled to get one-fourth of those properties under S.40 of the Travancore Nair Act of 1100. The first court dismissed this petition holding that after the preliminary decree and after the confirmation thereof if was not open to defendant 1 to advance this contention, and the appeal which he filed against the first courts order was also dismissed by the lower appellate court. Defendant 1 has, therefore, brought this second appeal.

(2.) S.40 of the Travancore Nair Act of 1100 reads as follows:

(3.) The appellants counsel urged that notwithstanding S.97 of the Code of Civil Procedure defendant 1 was entitled to claim this right to one-fourth of the disputed properties since the direction in S.40 of the Nair Act is that one-fourth of the acquisition ......... shall, on partition, be allotted to him in addition to the share which he would otherwise be entitled to get. His argument was that under S.40 the additional share of one-fourth of his acquisitions could be allotted to defendant 1 only at the time of partition that the word partition in the phrase on partition occurring in the section has reference to the actual division or partition by metes and bounds of the properties, and that as this division or partition by metes and bounds could be made only after the preliminary decree defendant 1 could raise his claim under S.40 only after the preliminary decree. We are unable to accept this contention. S.40 of the Nair Act is not limited in its application to cases of partition effected through court. It applies to all kinds of partition, whether effected through court or brought about by consent of parties. In the case of partitions effected by consent of parties there cannot be stages like preliminary decrees and final decrees as in the case of partitions effected through court. All that S.40 says in effect is that if the manager of a tarwad had acquired properties during his management with the aid of the income from tarwad properties he should then be given at the time of partition of the tarwad not only the ordinary share which he would be entitled to get just like every other member of the tarwad but also one-fourth of the properties which he had acquired with the aid of the income from tarwad properties. Neither that section nor any other section in the Nair Act prescribes the procedure to be adopted in partition suits. The procedure in partition suits is governed not by the provisions of the Nair Act but by the provisions of the Code of Civil Procedure. Even in cases of partition by common consent of parties without recourse to the court, the parties must first agree as to the number and extent of the shares and the claims which any member may have to special rights in respect of any property such as the right which can be claimed by a manager under S.40 etc., and the actual division by metes and bounds can be effected only after an agreement is arrived at in respect of those matters. In cases of partition effected through court, the preliminary decree takes the place which the common consent or decision arrived at in matters pertaining to the partition occupies in the case of partition effected by consent of parties without recourse to the court. Before one-fourth of the properties claimed by the manager as acquisitions made by him during his management with the aid of the income from tarwad properties could be allotted to him the question has to be decided, if his claim is disputed, whether the properties in respect of which his claim has been made are really acquisitions made by him with the aid of the income from tarwad properties, and under the procedure prescribed by the Code of Civil Procedure for partition suits, this is a matter which has to be decided at the time of the preliminary decree when the shares of the several members in the tarwad properties are ascertained and defined. The actual division by metes and bounds and the final decree should be in pursuance of the preliminary decree and cannot be nude in violation of or contrary to the terms of that decree. If the preliminary decree does not award to the manager any share which he could have claimed under S.40 of the Nair Act the defect cannot be cured by the commissioner in dividing the properties by metes and bounds or by the court at the time of the passing of the final decree. The defect in the preliminary decree, if there be any, must be cured in the appeal which the aggrieved party has the right to file against it under the provisions of the Code of Civil Procedure.