SANKUNNI NAIR Vs. JANAKI AMMA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in a suit for partition.The only question that is relevant for consideration in this appeal is whether the property involved in the suit is thavazhi property of one Pappi Amma or her puthravakasam property.This question was considered by the Trial Court.The Trial Court held that the division has to be effected on the basis that the property obtained under Ext.A1 has to be treated as thavazhi property.The plaintiff appealed before the lower appellate court.The appellate court also agreed with the Trial Court and dismissed the appeal.Now,the plaintiff appeals.

(2.) IN this second appeal also the question that has to be considered is whether the property scheduled in the plaint is puthravakasam property or thavazhi property.Admittedly,the property was acquired by one Pappi Amma and her minor children.Pappi Amma was admittedly the karanavathy.The property was acquired from Pappi Amma's husband Ayyppan Nair.In the document there is a recital regarding certain debts and repayment of those debts.In fact,a reading of the document would show that it is an assignment cum gift.Learned counsel for the appellant submitted before me that at the time when Ext.A1 was executed in Cochin there was no statutory law governing the matter.The first statutory enactment governing the matter which came into force in Cochin was the Cochin Nair Regulation XIII/1095.S.43 of the Cochin Nair Regulation provided thus: "Section 43. - Property obtained from the husband,or father,by the wife or widow,and child or children,by gift,inheritance or bequest,or purchased for their benefit shall,unless,in the case of gift,bequest or purchase a contrary intention appears from the instrument of gift or will or purchase deed,belong to the wife or widow and each of the children in equal shares,they holding it as tenants in common with right to individual partition." This enactment was repealed by another enactment of the year 1113 - Cochin Nair Act 29/1113.Though S.43 took a position that unless contrary intention is shown if a property is acquired by the Karanavathy or Karanavan and some members of the tarwad conominee in the document they will take the property as puthravakasam property and not as thavazhi property,a direct contrary view is seen expressed in the later enactment,Act 29/1113 Cochin Nair Act.S.64 of that enactment provides thus: "Section 64. - Where a person bequeaths or makes a gift of any property to,or purchases any property in the name of,his wife alone or his wife and one or more of his children by such wife together,such property shall,unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties,be taken as thavazhi property by the wife,her sons and daughters by such person and the lineal descendants of such daughters in the female line: Provided that in the event of partition of the property taking place under this Chapter,the property shall be divided on the stirpital principle,the wife being entitled to a share equal to that of a son or daughter."

(3.) COUNSEL for the appellant referred me to X Cochin 614.It is a Full Bench decision.One of the Judges Justice P.I.Varugis held that "for all practical purposes,property given as puthravakasam is assimilable to tarwad property;the donees are not tenants in common;its management rests with the senior male;other members including those after born are entitled to maintenance out of it,and no member can alienate his share " ;.The contrary view was taken by the majority and the court held thus:"the basis of the decisions that puthravakasam property is the joint property of the donees held with the ordinary incidents of the properties of a marumakkathayam tarwad is that with reference to such property there is a presumption that the donor,in the absence of anything to the contrary,intends that the donees should take it as property acquired by their branch or as the exclusive property of their own branch with the usual incidents of tarwad property in accordance with the Marumakkatayam usage which governs the donees.This presumption is not sound according to law or according to considerations of equity and good conscience and should not,therefore,be made.In the absence of this presumption the donees of puthravakasam property,in the absence of an express or necessarily implied intention to the contrary,can only be regarded as coowners or tenants in common with regard to the same " ;.Varugis,J .,in holding the view that the property given as puthravakasam is assimilable to tarwad property relied on the observations of Justice Sankaran Nair in 39 Mad.Case.Then the learned Judge observed that "I am also not convinced that property granted as puthravakasam would,in such a case,defeat its own purpose,there would no doubt be the inequalities incidental to the Marumakkathayam system,that is not a sufficient reason for reading into the transaction the conception of a tenancy in common so alient to Marumakkathayam ideas.All the authorities on,the point have been discussed in XXXIX Madras 317,and hence,it is unnecessary for me to deal with them one by one " ;. It is important to note that the learned Judge took the matter so stronglv to say that the consideration of a tenancy in common is alient to marumakkathayam ideas.