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2006 Supreme(SC) 331
2006(3) Supreme 354
SUPREME COURT OF INDIA
(From Kerala High Court)
B.P. Singh and Arun Kumar, JJ.
T. Madhava Kurup—Appellant
versus
T.C. Madhava Kurup (D) by Lrs. & Ors.—Respondents
Civil Appeal No. 7424 of 2002
Decided 5-4-2006
Counsel for the Parties :
For the Appellant : K. Rajeev, Advocate.
For the Respondents : C.S. Rajan, Sr. Advocate, A. Raghunath, Advocate.
IMPORTANT POINT
In Marumakkathayam system of inheritance is traced through female and in absence of a female member a Tavazhi cannot be continued by male members alone.
Headnote:HINDU LAW—Marumakkathayam system of inheritance—Tavazhi properties— In Marumakkathayam inheritance is traced through female—In absence of a female member a Tavazhi cannot be continued by male members alone—In absence of a female member, Tavazhi must come to an end with no chance of there being a female member to continue the line—Surviving male members, in absence of a Tavazhi, must inherit the property as tenants in common and share if equally—After death of last female member, properties devolved on two surviving male members and upon death of one of them property devolved upon his heirs who were entitled to maintain a suit for partition—Judgment of Trial Court allowing partition decree was liable to be restored.
Held : Inferentially, the High Court concluded that under the Marumakkathayam Law as well, a single male member could constitute a tarwad. In doing so, the High Court lost sight of the vital distinction between the two that while under the Hindu Law descent is traced through males, in the Marumakkathayam system of inheritance, it is traced through females. In the case of a Hindu Joint Family a single male coparcener may continue the coparacenary with his sons who may be born later, but in the absence of a female member a Tavazhi cannot be continued by male members alone. The comparison is, therefore, not apposite. Different considerations may arise if the sole surviving member of the Tavazhi is a female. We find that the observations in Balachandran v. Sankaran Nair, 1985 KLT 459 are supported by good reason. If the descent is traceable only through females, in the absence of a female member, the Tavazhi must come to an end with no chance of there being a female member to continue the line. The rule of survivorship in such circumstances ceases to operate and the surviving male members, in the absence of a Tavazhi, must inherit the property as tenants in common, and share it equally. No authority was cited before us which takes a different view. (Paras 14 & 15)
JUDGMENT
B.P. Singh, J.—This appeal by special leave is directed against the judgment and order of the High Court of Kerala at Ernakulam in A.S. No.188 of 1990 dated 29th June, 2001 allowing the appeal and dismissing the suit for partition filed by the appellant herein. The question which arises for consideration in the instant appeal is whether the suit properties being Tavazhi properties devolved on the two surviving male members of the Tavazhi after the death of the last female member as co-owners, or whether the suit properties devolved upon the last surviving male owner by survivorship who acquired the same as his absolute property. The trial court held that the last two surviving male members of the Tavazhi took the suit properties as co-owners, and upon the death of one of them the properties devolved upon his heirs, who were entitled to maintain a suit for partition. The High Court reversing the finding held that the Tavazhi continued to exist despite the death of the last female member, and that the last surviving member of the Tavazhi, if a male, took it as absolute property. The heirs of the male member, who pre-deceased the last surviving male member, acquired no right in the suit properties and could not, therefore, maintain a suit for partition and separate possession.
2. The facts of the case are not in dispute and may be briefly noticed.
3. The Vattiyot Tavazhi belonged to Ummamma Amma, who had a son Krishnan Nair and a daughter Mathu Amma. After the death of Ummamma Amma, the Tavazhi consisted of Krishnan Nair and his sister Mathu Amma along with her three sons and a daughter. Krishnan Nair died in the year 1934. A son and a daughter of Mathu Amma pre-deceased her without any issue. The Tavazhi then consisted of Mathu Amma with her two sons Balakrishnan Nair and Appa Nair. Mathu Amma died in the year 1944 leaving behind her two sons and their heirs. The Tavazhi, therefore, consisted of no female member but only two male members. Balakrishnan Nair died in the year 1950 and Appa Nair, the last surviving member died in the year 1967.
4. The plaintiffs belonging to the branch of Balakrishnan Nair filed a suit for partition against defendants 1 to 4 belonging to the branch of Appa Nair. It appears that during his life time Appa Nair had bequeathed some of the properties under a Will in favour of defendants 4 to 8 as also to the second defendant. He had also gifted some of the suit properties to the 4th defendant. The question which arose for consideration was whether after the death of Mathu Amma, the last female member of the Tavazhi, her two sons took the suit properties as co-owners, or whether the suit properties continued as Tavazhi in their hands and ultimately vested in Appa Nair, the last surviving member of the Tavazhi.
5. The plaintiffs claiming 2/6th share in the suit properties filed the suit which was decreed by the trial court, but dismissed by the High Court. Counsel for the appellant submitted that upon the death of the last female member of the Tavazhi, the Tavazhi properties devolved on the surviving male members as co-owners. According to him, since the Tavazhi did not consist of any female member, it ceased to exist as a Tavazhi and, therefore, the Tavazhi properties devolved upon the surviving male members by inheritance and not by survivorship. Reliance was placed upon authorities in support of this proposition.
6. On the other hand, counsel for the respondents submitted that in the absence of a female member the Tavazhi properties became absolute property in the hands of the last surviving male member of the Tavazhi who could dispose it of as he liked. The Tavazhi continued so long as any member of the Tavazhi was alive. In the hands of the last surviving male member of the Tavazhi, the Tavazhi property become his absolute property. If there was no disposition by the last surviving male member, the doctrine of escheat applied.
7. It was urged on behalf of the appellant that the High Court erred i
