MACHIKANDI PARKUM MARAMITTATH THARUVIL MOOTHA CHETTIAM VEETTIL CHAKKRA KANNAN Vs. VARAYALANKANDI KUNHI POKKER

JUDGEMENT

(1.) It seems desirable at the outset to point-out that the decision of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee (1893) I.L.R. 16 Mad. 201., (B,), which is questioned in the reference merely decides that among the followers of the Marumakkattayam law, when a gift is made by the father to the mother and her children, there is a presumption that they are intended to take such properties as the exclusive properties of the branch or tavazhi consisting of the mother and her children, that is to say, with the usual incidents of tarwad property. In the absence of express provision the presumption is that the property is to be enjoyed by the mother and her issue in the way in which property is customarily held and enjoyed among followers of the Marumakkattayam law. The decision proceeded on the authority of two decisions of their Lordships of the Judicial Committee which laid down that the law governing the parties is one of the circumstances to be taken into consideration in ascertaining the intention of the donor. As pointed out in the judgment of one of the Judges who made the reference to the Full Bench the presumption was arrived at in consideration of what were known to be the notions and wishes of persons in the position of the donor and also of the ordinary incidents of property in the district. This view was accepted by the Full Bench of four Judges two of whom Muttuswami Ayyar and Wilkinson, JJ., were well acquainted with Malabar, and that it was well founded is suggested by the fact that the decision has not only been accepted but has been given a considerable extension in the neighbouring State of Travancore, as pointed out during the argument by my learned brother speaking from. his experience as Chief Justice of that State. It has also been followed, as I shall show, in numerous cases in this Court, and was not questioned before Ummanga v. Appadorai Patter (1911) I. L. R. 34 Mad. 387 a decision of Sir Arnold White, C.J., and Sankaean Nair, J., in 1910, and it may be taken that many transactions have proceeded on the footing that it was correct. In these circumstances, notwithstanding the respect which I feel for the opinion of Sankaran Nair, J., especially in a matter affecting his own community, I think we should be very slow to differ from the decision of the Full Bench unless we are absolutely obliged to do so, more especially as that decision merely relates to a presumption which it is always in the power of a donor to negative if so minded by express provision. If any change is to be made it should, it seems to me, be made by the legislature.

(2.) As regards the authorities, the decision in Kunhacha Umma v. Kutti Mammi Hajee (1893) I.L.R. 16 Mad. 201 (F.B.), was not only not questioned but, as pointed out in subsequent cases, was accepted in Koroth Amman Kutti v. Perungottil Appu Nambiar (1906) I.L.R. 29 Mad. 322, to which Sankaran Nair, J., was a party. It was followed in Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji (1908) I.L.R. 31 Mad. 228, Kunhamina v. Kunhambi (1909) I.L.R. 32 Mad. 315, Katankandi Koma v. Siva Sankaran Chakkantavida Chakkan Abdulla v. Thazhath Cheekkootti (1911) I.L.R. 34 Mad. 245, and Parvathi Kattilammah v. Ramachandra Ejamam (1910) M.W.N. 124. Lastly in Kalliani Ammah v. Govinda Menon (1912) I.L.R. 35 Mad. 648, which was subsequent to Ummanga v. Appadorai Pattar (1911) I.L.R. 34 Mad. 387, it was again accepted and acted on by Abdur Rahim and Sundara Ayyar, JJ., in a careful judgment in which all the authorities were examined. In this state of things it seems to me that it is not now open to us to question the decision of the Pull Bench even if we saw reasons to doubt that it had been correctly decided. " "With reference to the observations of their Lordships of the Judicial Committee in Jogeswar Narain Deo v. Ramchandra Dutt (1896) I.L.R. 23 Calc. 670 (P.C.); S.C. 23 I.A. 37. Which are referred to by Sankaran Nair, J., that the principle of joint tenancy appears to be unknown to the Hindu law except in the case of a co-parcenary between members of an undivided family, it may be observed that these observations of their Lordships were made with reference to ordinary Hindu law and not to the peculiar Marumakkattayam system which was not under their Lordships consideration. But even taking them to be applicable, I cannot see how a gift to a female and all her descendants in the female line can be held to infringe the principle, for that is the kind of joint family known to the Marumakkattayam system. On the other hand, the propriety of such a gift would appear to be recognized by their Lordships in Rai Bishen Vhand v. Mussumat Asmaida Koer (1883) 11 I.A. 164 at p. 179 in the passage cited by Benson and Sundara Ayyak, JJ., in Vengamma v. Chelamayya (1913) I.L.R. 36 Mad. 484. The question whether a gift with the incidents of tarwad property could be made to the mother and some of her issue only, viz., those by a particular husband does not arise in this particular case, as the gift is to the children of the donor by a deceased wife and it is not suggested that she left any other children. It is therefore unnecessary to express any opinion on this point, or to refer to the authorities which are collected in the judgment of BENSON and Sundara Ayyar, JJ., just mentioned.

(3.) Following the decision of the Pull Bench in Kunhacha Umma v. Kutti Mammi Hajee (1893) I.L.R. 16 Mad. 201 (F.B.) and the course of subsequent decisions I would answer the question in the reference as follows: (1) The presumption is that the donees take the property with the incidents of tarwad property including those mentioned. (2) Persons subsequently born into the tavazhi are entitled to be maintained but not to claim partition. (3) An individual cannot alienate his share nor can it be attached and sold in execution of a personal decree against any of the members. Sadasiva Ayyar, J.