Summary
Resolving a split in the Kerala High Court Full Bench in Mary Cheriyan, the Supreme Court held (prospectively) that property obtained on partition by a single Marumakkathayam female with no children is her separate property and not tharwad property. On the facts, however, the suit property was allotted to a group (a mother and her children forming a thavazhi), which all judges agreed holds it as tharwad property, so the partition decree was affirmed.
Issues
- Whether property obtained on partition by a Marumakkathayam female (alone, or with her children) is her separate property or retains the character of tharwad property.
- Whether item No.1 property, allotted to the branch of Parukutty Amma and her children in a 1950 partition, was co-ownership property or thavazhi/tharwad property.
- Whether item No.2 property, transferred by Parvathy Amma under a mortgage deed to Parukutty Amma and her children, was putravakasam property of Padmanabhan, and whether the concurrent findings on it warranted interference under Article 136.
Provisions considered
- Section 3(c) and Section 3(j)(i), Madras Marumakkattayam Act, 1932Karanavan is defined as the oldest male (or in default, female) member in whom management vests; thavazhi of a female is a group comprising the female, her children and descendants in the female line, which the Court read as requiring more than a single person. (¶¶ 6, 36, 38)
- Section 38 (before and after amendment by Act 26 of 1958), Madras Marumakkattayam Act, 1932The pre-amendment Section 38(2), under which a tavazhi took its share with the incidents of tarwad property, was relied on by the Full Bench majority; the Court held that its removal by the 1958 amendment showed legislative intent to change the law, and that even the unamended provision did not oblige a single female to hold her partition share as tharwad property. (¶¶ 28, 29, 40, 41)
- Section 2(3) (definition of thavazhi), Travancore Nayar Regulation II of 1100 and Cochin Nayar Act XXIX of 1113Both define the thavazhi of a female as a group consisting of her and her issue in the female line, supporting the conclusion that a single female cannot constitute a thavazhi. (¶¶ 37, 38)
- Section 6, Explanation, Hindu Succession Act, 1956Noted, with dictionary definitions, for the meaning of partition as one effected by registered partition deed or court decree, partition being an act that converts joint ownership into ownership in severalty. (¶¶ 33, 34, 35)
- Article 136, Constitution of IndiaThe Court set out non-exhaustive situations in which concurrent findings of fact may be interfered with and the restraining principles, and found none met as to item No.2. (¶¶ 55, 55.1, 55.2, 55.3, 56, 57)
Held
- Partition changes the nature of the property from joint to individual ownership. Since every statutory definition of thavazhi refers to a group consisting of a female and her descendants, a single female cannot form a thavazhi; property she obtains on partition while having no children is her separate property, and children born later take no interest by birth in it. The minority view of Govindan Nair and Krishnamoorthy Iyer, JJ. in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi (Kerala Full Bench) is correct and the majority view is not. (¶¶ 31, 32, 33, 35, 38, 39, 41, 58)
- The 1958 amendment to Section 38 of the Madras Marumakkattayam Act, which removed the rule that a tavazhi's share is taken with the incidents of tarwad property, reflects a legislative intent to change the earlier position. (¶¶ 40, 41)
- All judges of the Full Bench agreed that property allotted on partition to a group, such as a female together with members of her thavazhi, is held jointly with all the incidents of tharwad property; item No.1, received by Parukutty Amma and her children collectively as the fifth branch, was therefore tharwad property and the question of law did not affect the outcome. (¶¶ 42, 43, 44, 47, 59)
- Item No.1 was not co-ownership property: had it been, the heirs of the two deceased donees would have taken shares, but it devolved on the nine surviving donees; the unchallenged compromise partition deed allotting it to the branch named after Karunakara Menon, as karanavan, showed an intention to hold it jointly as tharwad. (¶¶ 45, 46)
- Item No.2 was not shown to be putravakasam property: the mortgage deed recited that Parvathy Amma inherited every right of her son Padmanabhan on his death, she put Parukutty Amma and her minor children in possession and the mortgage was never redeemed, the later 1981 partition deed traced title to that mortgage, and there was no evidence of a gift by Padmanabhan to his wife or children. (¶¶ 48, 49, 50, 51, 52)
- Concurrent findings of fact are interfered with under Article 136 only sparingly, for example where they are not based on the pleadings, are divorced from or ignore material evidence, are contrary to law, perverse, cause undue hardship or shock the conscience; the burden lies on the appellant and a merely possible different view is not enough. No such ground existed as to item No.2. (¶¶ 55, 55.1, 55.2, 55.3, 56, 57)
- The law declared on single-female partition shares applies prospectively only; concluded or ongoing transactions are not disturbed. (¶ 58)
Result
Appeal dismissed; preliminary decree for partition passed by the Trial Court and affirmed by the High Court upheld, with the Trial Court to proceed further; the declaration of law operates prospectively; no costs.