Kerala High Court
Bench: S Padmanabhan
Saraswathi Amma And Ors. vs Radhamma And Ors. on 27/6/1990
S. Padmanabhan, J.
1. Some interesting questions of law were raised before me in this appeal filed by the defendant and the memorandum of cross-objection filed by the plaintiffs.
2. First plaintiff is a Marumakkathayee Nair lady, who was unmarried and issueless when her tharavad got divided in December, 1953. Ten items of landed properties, including the three plaint schedule items, were allotted to her share. She was married in 1957 and plaintiffs 2 to 4 were born. She is a teacher, who lived with her elder brother Parameswara Menon till she was transferred outside station. He was managing her properties and collecting rent and income on her behalf. Her share included a building, which stood in the share allotted to another member. Parameswara Menon acted as her agent for demolition of that building and constructing one in Item No. 1. When he lost his own house by alienation, he was permitted to occupy that building with defendants, who are his widow and children. Menon died in 1981. Since defendants thereafter asserted title and possession, this suit was filed for recovery on the strength of title.
3. Defendants contended that, on the date of partition itself, in December 1953, first plaintiff agreed to sell the properties to Parameswara Menon for Rs. 20,500/- and put him in possession. The entire sale consideration is said to have been paid. Title of plaintiffs 2 to 4 was denied. Benefits of Section 53-A of the Transfer of Property Act were claimed with an alternate plea of adverse possession. Prayer for recovery was thus resisted.
4. Trial Court found the properties to be the thavazhi properties of the plaintiffs. Contract for sale by the first plaintiff was accepted only regarding the one-fourth share of the first plaintiff in Item No.
1. Plea of adverse possession and limitation as well as benefits of Section 53-A of the Transfer of Property Act were found against on the finding that Menon was only managing her properties and residing in the building with her permission. Suit was decreed except regarding the one-fourth share of the first plaintiff in Item No. 1. The disallowed portion of the prayer is the subject matter of cross-objection.
5. A single Bench of this Court, interpreting the decision in Sundari v. Laxmi, (AIR 1980 SC 198), held in Madhavi Amma v. Kalliani Amma, (1988 (2) KLT 964 at p. 966):
“The Marumakkathayam Law, whether statutory or otherwise, stands repealed by the Hindu Succession Act. The effect of repeal of a statute is that it ceases to be a part of the corpus juris or body of law. To put it differently, the law was regarded in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed”.
Therefore, the argument was that, when the Marumakkathayam system itself was repealed and substituted by the Hindu Succession Act, at a time when the first plaintiff remained unmarried and issueless, the subsequent birth of the children cannot change her rights. So also, it was argued that, therefore, the Hindu Joint Family System (Abolition) Act of 1976 itself was reduntant and, at any rate, plaintiffs 2 to 4 cannot get any right.
6. With due respect, I do not think that the Supreme Court has laid down the law as interpreted in the above decision. What Section 4 of the Hindu Succession Act says and what the Supreme Court interpreted is that Section 4 is having overriding effect only in respect of matters dealt with in that Act. In view of the clear provisions of law and the unambiguous interpretation of it in Sundari’s case, (AIR 1980 SC 198), rendering it the law of the land under Article 141 of the Constitution, I do not think that a reference to a Division Bench is necessary on the question. Regarding other matters, the Marumakkathayam Law or any other law remained unaffected. There is no question of the Hindu Succession Act having repealed them. In other respects, joint tenancy under the Hindu, Marumakkathayam or Aliyasanthanam laws continued and they were disrupted only when the Hindu Joint Family System (Abolition) Act came into force in Kerala in 1976 converting joint tenancies into tenancies-in-common. Rules of succession are provided in the Act under Sections 8, 10 and 15 and special rules applicable to those who are governed by Marumakkathayam and Aliyasanthanam laws are provided in Section 17. These provisions, as the case may be, could have applied to devolution of interest in tharavad or thavazhi properties only to the extent provided in Section 7. That alone is the overriding effect of the Hindu Succession Act on the Marumakkathayam law. Before that, the undivided interest in tharavad or thavazhi property went only by survivorship to the remaining members and not to the personal heirs. Now a notional partition per capita, as on the death of the member, is introduced and by fiction of law, absolute right is given to that member on that share so that it may devolve on his or her personal heirs under the Act. Therefore, the Hindu Succession Act was not capable of divesting plaintiffs 2 to 4 of their birth right in the properties under the Marumakkathayam law.
7. Then the contention was that just like a male, a female is also the absolute owner of the properties obtained on tharavad or thavazhi partition and the subsequent birth of children cannot effect any change in that right. I cannot agree. A Full Bench of this Court in Iravi Pillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, (1954 KLT 862), by majority, held that the absolute right of the female is destroyed as soon as a child is born and then it becomes the thavazhi property of the mother and child. Another Full Bench, also by majority, struck a different note in Bhavani Amma v. Madhavi Amma, AIR 1963 Ker 358 : (1963 Ker LT 859). This controversy was finally laid to rest by an authoritative pronouncement by a Larger Bench by the decision in Mary Cherian v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82 : (1967 Ker LT 430) affirming Iravi Pillai Parameswaran Pilla’s case, (1954 KLT 862) and overruling the later Full Bench decision.
8. The property obtained by a Marumakkathayee female towards her share under an outright partition in the tharavad or thavazhi will be her absolute property just like that of a male. So long as she remains single, she can alienate it just like a male and no one could question. But the property retains the character of tharavad or thavazhi property and becomes the property of the thavazhi on the birth of a child to her so as to destroy her absolute powers of disposal in respect of it. The reason why birth right is recognised is that those who are in the womb and yet unbegotten require the means of support. Right to individual partition is not incompa-tible with that right. Absolute right of a single member or the last surviving member is only because of the non-existence of anybody else. That right ceases by birth or adoption. Property has often been the vehicle of dormant rights and liabilities. There is nothing incongruous in saying that the property that a female obtained in tharavad partition becomes her thavazhi property on her becoming a mother. Two things coalesce to produce the result: the antecedence of the property, and the arrival of the child.
9. Marumakkathayam tharavad is a fluctuating body of persons forming a joint family with community of property, community of interest, unity of possession, right by birth and survivorship which are the incidents. Existence of property is not necessary to constitute a tharavad or thavazhi. Property belongs to the group and is to enure to the benefit not merely of the members in existence at a given time but also of the members to be admitted in future. Separate units formed by breaking the community or interest on partition are units of the tharavad even if there is only one person. Absolute power of alienation of the single member unit is only because he or she constitutes the whole unit and the consent of no one else is required. The mere fact of an addition takes away that right. In the Marumakkathayam system female alone is the stock of descent. The issue of male does not belong to the tharavad. There is, therefore, no point in contending that even after the birth of plaintiffs 2 to 4, first plaintiff continued to be the full owner. The properties are the thavazhi properties of plaintiffs.
10. The oral agreement alleged in the written statement is in December, 1953 by the first plaintiff. At that time, she was competent to contract for sale. Such an oral agreement of December, 1953 between the first plaintiff and her brother Parameswara Menon was not even attempted to be proved. If there was such an oral agreement for sale and the entire sale consideration of Rs. 20,500/- was paid, it is not shown why a sale deed was not possible for the long 28 years till 1981 when Parameswara Menon died. What is now sought to be proved is different from what is alleged. The appellants want the agreement to be upheld on the basis of Exts. B2 and B1 letters sent by the first plaintiff to Parameswara Menon in June and July, 1979. It is true that these letters refer to some suggestions or negotiations for sale without any details. Though the plaintiffs say that receipt of Rs. 20,500/-, admitted in these letters, was towards settlement of accounts regarding rents and profits collected by Parameswara Menon as agent, that does not appear to be fully correct in spite of the fact that there is evidence to show that he was collecting rents and profits on her behalf as agent and accounting for the same as admitted by DW 1. These letters indicate that the negotiations were only concerning one property and it did not reach a stage of completed contract in which the terms were agreed upon. First plaintiff was not even aware that the amount was paid as sale consideration. She offered to come during Onam holidays in 1979 and settle the matter by discussion. That suggestion seems to have been accepted by Parameswara Menon in his reply, E . A7. As PW 1, first plaintiff said that she came and discussed and demanded over Rs. 3 lakhs, which was not agreeable to Parameswara Menon and he backed out and agreed to vacate the building. There is no counter evidence. Trial Court was, therefore, not justified in finding a completed contract of sale for one-fourth share of Item No. 1. The cross-objection has to be allowed.
11. In December 1953, first plaintiff was residing with Parameswara Menon in his house. He was managing her affairs and collecting rents and profits. He acted as her agent for the demolition of a building allotted to her share and construction of another building in Item No.
1. This fact was admitted by the second defendant, as DW f. He is the son of Parameswara Menon. That was the position in 1970. First plaintiff is a teacher, who was later transferred to some outside stations after marriage. Parameswara Menon sold some of his properties, including his residential building. The evidence is that, as a temporary measure, he was permitted to occupy the building in Item No.
1. Exts. A2 to 4 Panchayat assessments of the building stand in the name of the first plaintiff. It was first rented out to a Samajam in 1967, PW 3 is its Secretary. She said that the rent transaction was by Parameswara Menon on behalf of the first plaintiff and rent was collected by him on her behalf. There is no counter evidence. First plaintiff has also spoken to these facts. The story of possession being given by way of part performance is also, therefore, only a myth. Appellants were in occupation of the building only along with Parameswara Menon and their independent claims cannot stand. The plea of adverse possession was also rightly rejected.
12. The protection claimed under Section 53-A of the Transfer of Property Act must, therefore, fail for the reasons that there was no completed contract of sale and possession was not given by way of part performance. It is a condition precedent for the applicability of Section 53-A that the contract of sale must be in writing and signed. Admittedly, in this case, the contract, though not proved, is only oral as alleged. Exts. B1 and B2 are not contracts and they are put in only as items of evidence. The terms necessary to constitute the contract must be capable of ascertainment with reasonable certainty from the writing. So also it is necessary that the transferee must have performed or is willing to perform his part of the contract for claiming protection under Section 53-A. Only if all these conditions are satisfied, the transferor shall be debarred from enforcing any right in respect of the property other than a right expressly provided by the terms of the contract. No such evidence is there. But it was fairly conceded on behalf of the plaintiffs that they shall return Rs. 20,500/-.
The appeal is dismissed and the memorandum of cross-objection is allowed. There will be a decree in favour of the plaintiffs for recovery of possession of the entire plaint schedule properties on deposit of Rs. 20,500/-with 6% interest from the date of written statement. No costs. In other respects, the decree of the trial Court will stand.