MADHAVI AMMA Vs. NAGAPPAN NAYAR

JUDGEMENT

(1.) The parties are members of a Marumakkattayam tavazhi. On 15 August 1933 certain members of the tarwad, representing a two-thirds majority, applied to the Collector for the registration of the tarwad as impartible under Section 43 of the Marumakkattayam Act, 22 of 1933. As required by the statute, notice of the application was served upon respondent l, who on 23 October 1933 filed a suit in the Court of the District Munsif of Alatur for partition of the tarwad under the provisions of Section 38 of the Act. Notwithstanding the suit, the registration application was proceeded with and resulted in the Collector passing an order on 15 January 1934 for the registration of the tarwad as impartible. The District Muusif held that the registration of the tarwad had the effect of defeating the suit and accordingly he dismissed it. The res-pondent then appealed to the District Court of South Malabar. The District Judge held that the registration of the tarwad did not affect the respondent's right to bring the suit and he remanded it to the trial Court to be dealt with on the merits. The defendants then appealed to this Court. This appeal was heard by King J., who concurred in the decision of the District Judge. The present appeal is from the judgment of King J.

(2.) Section 38 of the Act states that any tavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it has power of disposal, and separate from the tarwad, provided that no tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to the tavazhi and to any other tavazhi or tavazhis of the tarwad, except with the consent of the ancestress, if she is a member of the tarwad. There is an explanation to the seotion which says that for the purposes of chap. 6 (which deals with the right of partition) a male member of a tarwad or a female member without any living child or descendant in the. female line, shall be deemed to be a tavazhi if he or she has no living female ascendant who is a member of the tarwad. The respondent has no living female ascendant and he himself constitutes a tavazhi. Therefore he had the right to institute the suit for the partition of the tarwad. Subsection (1) of Section 43 allows two-thirds of the major members of a tarwad to present a petition to the Collector for the registration of the tarwad as impartible. Sub-section (3) states that if after giving notice to all the major members of the tarwad and making such enquiry as he deems fit, the Collector is satisfied that not less than two-thirds of the major members of the tarwad have signed the petition with their free consent and desire the registration of the tarwad as impartible, he shall register the tarwad as impartible. Section 43 is embodied in chap. 7 which deals exclusively with impartible, tarwads. Chapters 6 and 7 stand apart and there is nothing in any of the sections of these two chapters which suggests that a tavazhi is precluded from filing a suit for partition because there happens to be pending an application for registration under chapter 7.

(3.) If the ordinary rule of Hindu law that the filing of a partition suit involves the automatic severance of the joint status applies, it is clear that there would be no power in the Collector to register a tarwad as impartible once a suit for partition has been filed. It is not contested that the ordinary rule of Hindu law does apply. In fact it was so held in Kunchi Amma v. Minakshi Amma ( 36) 23 A.I.R. 1936 Mad. 155. This being the position, the filing of the suit on 23 October 1933 put an end to the right of the other members of the tarwad to apply for registration under Section 43, and the Collector had no power to order registration. His order of 15 January 1934 must be regarded as being null and void. Mr. Sitarama Rao has suggested that the doctrine of lis pendens applies and that, inasmuch as the application under Section 43 was filed first, the suit was incompetent. The doctrine of lis pendens obviously can have no application here. There is a right to partition given in chap. 6 and there is nothing in chap. 7 which prevents that right being exercised while the tarwad remains unregistered. We consider that the decision under appeal is correct. The appeal will be dismissed with costs in favour of respondent 1.