TMI Blog1980 (2) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... a coparcenary with rights of survivorship between its members; and 2. Whether the use of the word 'tavazhi' (in any case a misnomer) in describing the two units in the will, Ext. P-l left by the father and held to be the basis of the family settlement, is sufficient in the circumstances, to establish an intention that the members of each unit were to take the property as coparceners and not as tenants-in-common, the grouping into units being only for convenient enjoyment? 2. The factual background from which, according to the High Court the aforementioned two questions emerge for consideration of this Court may be stated. 3. One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni. Defendant 1 Krishnan, defendant 2 Shankaran, one Raman, husband of plaintiff Kallyani, and deceased Madhavan, husband of defendant 3 and father of defendants 4, 5 and 6, were his sons by first wife Nani, and one Kesavan was his son by the second wife Ponni. He had six daughters, four by the first wife and two by the second wife. One Valli was the second wife of his father and she had three daughters. Karappan and his family are Ezhavas and in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... women who return on the death of their husbands, that both tavazhis shall equally maintain the children of my aunt and my sister and that since C schedule properties are partitioned now, all my male issues shall have equal rights over the property after my death. 4. This is a registered deed. Soon thereafter, in February 1910, Karappan died. Raman, the husband of the plaintiff, the third son of the first wife, died on February 20, 1936. Plaintiff widow of Raman sued for partition and separate possession of her undivided 1 /4 share in properties set out in A, B and C schedules to the plaint. It is necessary to clarify here that there) were A, B and C schedules annexed to Ext. P-l which, for clarity of understanding, would be referred to as the Will of the deceased though it would be presently pointed out that it is ineffective as a Will. Schedules A and B to Ext. P-l specify certain properties. Properties set out in schedule B to Ext. P-l except item No. 5 were awarded to Kesavan, the son by the second wife, and item No. 5 to the second wife. Properties in schedule A to Ext. P-l subject to adjustment pointed out in Ext. P-l were given to the first wife and her sons. Propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties. 6. The trial Court framed as many as 12 issues. The important findings of the Trial Court are that Ext. P-l is neither effective as a Will nor as a deed of partition. Without specifically so saying that Ext. P-l would be effective as a family arrangement, it was held that Ext. P-l had the effect of constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint family property and they did not hold as tenants-in-common but as joint tenants and were governed by survivorship in the matter of succession. The contention that even in such a situation the widow would be entitled to her share because of a customary right was negatived. In respect of B and C schedule properties it was held that they belonged exclusively to defendant 1 and his wife and plaintiff cannot claim a share in them. Consistent with these findings, the plaintiff's suit was dismissed. A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff. The High Court substantially agreed with the findings of the trial Court and specifically held that Ext. P-l furnished important evidence of a family arrangement accepted and acted upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint family property. This also becomes clear from the recital in Ext. P-l that properties in A and B schedules were tarvad properties and property in C schedule were claimed by him as his self-acquired properties and they were to be kept joint and were not sought to be dealt with by Ext. P-l. Therefore, to the extent Ext. P-l purports to dispose of ancestral properties by will it would be ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral properties in his hand. And as he has not attempted to dispose of his undivided share in the ancestral properties by Ext. P-l it is not necessary here to examine the question whether Mitakshara law as administered in Tamil Nadu and Kerala enables an undivided coparcener to dispose of his share in joint family property by will. Therefore, Ext. P-l is not effective as a will and the respondents did not invite us to affirm their rights under Ext. P-l as if it is a binding will. 10. The next stage in the unfolding of the case is whether Ext. P-l is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Edn., p. 410 (para 323), it is stated that the father of a joint family has the power to divide the family property at any moment during his life time provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise of that power. It, therefore, undoubtedly appears that Hindu father joint with his sons governed by Mitakshara law has the power to partition the joint family property at any moment during his life time. 12. Mr. Krishnamoorty lyer urged that even though undoubtedly a Hindu father joint with his sons and governed by Mitakshara law has the power to partition the joint family property, this power enables him to partition the property by metes and bounds but he has no power merely to disrupt the joint family status unaccompanied by division of property by metes and bounds. The limited question that needs answer in this case is whether a Hindu father joint with his sons governed by Mitakshara law has the power to disrupt the joint family status being a first step in the stage of dividing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date on which it was executed. In his own words he states that he was seriously ill and as he would like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his property shall be enjoyed after his death in the manner stated in Ext. P-l. He reserved to himself the full powers of disposition over all the properties more particularly described in the various schedules annexed to Ext. P-l during his life time and whatever directions were given in Ext. P-l were to be effective only after his death. At two places in terms he stated that the dispositions made by Ext. P-l were to be effective after his death. It is, therefore, inescapable that Ext. P-l was not to be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed. It was to be effective from a future date and that future uncertain event was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will. Further, there was no effective partition by metes and bounds by Ext. P-l though the shares of sons were specified as also the provision for female members wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of consent of all male members bind them as a family arrangement. What constitutes family arrangement has been fully examined by this Court in M.N. Aryamurthy and Anr. v. M.D. Subbaraya Setty (dead) through l.r. and Ors. . Broadly stated, it is that there must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family and secondly the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or the place and (security of the family. Both these ingredients appear to be absent in this case. In Brijraj Singh's case (supra) a father purported to make a will in which he recorded a partition of the joint family property amongst his three sons. He did not take a share for himself and simultaneously gave double share to his eldest son. There were usual recitals of partition and allotment of shares and it was further stated that in anticipation of execution of the deed various sharers were put in possession of property allotted to each of them. This was done two months prior to the execution of the so-called will. The document was held ineffect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee was impressed by the fact that it was intended to speak from the date on which it was written and not future date, viz., death of the writer. Ext.P-1 in terms reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death. The High Court completely overlooked this material difference. Assuming that Ext.P-1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to a share, to the terms of Ext.P-1 when it was executed, the absence of any dispute at or about the time Ext.P-1 was executed amongst the members of the family sought to be settled by Ext.P-1; and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that Ext. P-l would furnish evidence of family arrangement. We have grave doubt whether a Hindu father can impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death. Therefore, Ext.P-1 does not furnish evidence of family arrangement. 17. Now, if Ext.P-1 cannot be effective as a deed of partition ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treating his sons equally, he directed that owelty to the tune of ₹ 227/- and odd be paid by the sons of the first wife to the sons of his second wife. This was with a view to correcting the inequality in division of shares. He also states that there will be two branches. He refers to them as tavazhies and himself and his family as tarvad. Tarvad is akin to joint family and tavazhi is a branch of the family. The High Court, however, treated the use of the words 'tarvad' and 'tavazhi' and 'Karnavaran' to be inappropriate and hence inconsequential. Similarly, the High Court found specification of share of each of the male child as not indicative of a partition in the sense of disruption of joint family status. 20. Partition can be partial qua person and property but a partition which follows disruption of a joint family status will be amongst those who are entitled to a share on partition. On death of Karappan, Kesavan, the son of the second wife obtained a physical partition of the property, took his own share and left the family. There was first a disruption of the joint family by specifying the shares in Ext.P-1. Till disruption of joint fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vious coparcener had separated from them. 22. In Bhagwan Dayal v. Smt. Reoti Devi , this Court examined the effect of a separation of one member of a joint family on the joint family status and on the remaining members in the light of the Privy Council decision in Palani Animal's case, (supra) The relevant observation is as under: The general principle is that every Hindu family is presumed to be joint unless the contrary is proved: but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remained united; whether the latter remain united or hot must be decided on the facts of each case. 23. In fact, Judicial Committee in Balabux v. Rukhmabai ILR 30 IA 130 unequivocally held that there is no presumption when one coparcener separates from others that the latter remained united. An agreement amongst them must be proved either to remain united or to re-unite. In Sengoda v. Muthu I.L.R. 47 Madras 567, the High Court interpreted Palani Ammal's case to lay down that if a partition takes place with respect to one coparcener, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger family. The principle of joint tenancy is unknown to Hindu Jaw except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law. 25. In Bhagwan Dayal's case (supra) legal position after referring to earlier decisions has been culled out as under: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate cooperate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law.... Hindu law does not recognise some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. 26. Now, if five sons of Karappan each constituted a branch, obviously after one son as a branch separated unless a reunion is pleaded, other four cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together. In Balkishen Das and Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ext. P-l did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of re-union as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the socalled evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants in common. 30. There is evidence in the form of some documents showing that d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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