2006 Supreme(SC) 694

2006(6) Supreme 592
SUPREME COURT OF INDIA
(From Kerala High Court)
B.P. Singh and Altamas Kabir, JJ.
Radha Amma & Anr. — Appellants
versus
C. Balakrishnan Nair & Ors. — Respondents
Civil Appeal No. 2955 of 2000
Decided on 2-8-2006
Counsel for the Parties :
For the Appellants : T.L. Viswanatha Iyer, Sr. Advocate, T.G. Narayanan Nair, Advocate.
For the Respondents : M.P. Vinod, Ajay K. Jain, Sajith P. and Ramesh Babu M.R., Advocates.

Headnote:Madras Marumakkattayam Act, 1932 — Section 48 — Property known as “Puthravakasam tavazhy” — Suit for partition — Preliminary decree for partition in respect of suit properties — Decree was upheld in appeal — Division Bench allowed appeal partly and modified preliminary decree so far it related to items 8 to 16 holding that those items were liable to be partioned among defendants 1 to 4 only — Appeal — Defendant No. 2 had claimed that properties shown as items 8 to 16 were self acquired and were not tavazhy properties — Trial Court held that defendant No. 2 was in possession of those items of properties as tavazhy Karanavan and it was not taken by him on lease in his individual capacity — Single Judge in appeal found that leases were obtained in 1943 for Rs. 100/- and it was not probable appellant who was only a youngster could have raised Rs. 100/- by way of loan and evidence supported plaintiffs contention that those items were acquired for purpose of tavazhy — Division Bench did not approve of the view taken by Single Judge — Husband of defendant No. 1 died in 1939 and lease holds in question were taken in June 1943 — Even if funds were left with the mother after death of father of defendant, it was doubtful if Section 48 of the Act would have any application — Impugned judgment of Division Bench was liable to be set aside and that of Single Judge to be restored.

       Held : So far as the first submission is concerned it is not disputed before us that the question as to whether those items, namely, Item Nos. 8 to 16 belonged to the Puthravakasam tavazhy, never arose for consideration in the suit or in the appeal. Defendant No. 2 never raised such a plea. No such issue was framed. Neither any evidence was recorded on this aspect of the matter, nor were the courts called upon to record a finding on that question. This position is not disputed by the counsel appearing for the respondents. If such be the legal and factual position, we find no justification for the High Court to interfere in appeal and modify the decree of the courts below on a question which did not arise for its consideration. As we have observed earlier, the case of the plaintiffs was that the entire suit lands belonged to the tavazhy of defendant No. 1. The plaintiffs were supported by all the defendants except defendant No. 2. The plea of defendant No. 2 which was at variance with the case set up by the plaintiffs and other defendants was that the leasehold properties Item Nos. 8 to 16 of the plaint were his self-acquired properties and, therefore, not partible. The case of defendant No. 2 was not accepted by any of the courts including the High Court in appeal. Having accepted plaintiffs case and rejected the claim set up by the defendant No. 2, the High Court had no option but to decree the suit in its entirely.(Para 11)

       So far as the argument based on Section 48 is concerned, on a plain reading of the said section it is clear that it provides that where a person bequeathes or makes a gift of any property to, or purchases any property in the name of his wife alone or in the name of his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties be taken as tavazhi property by the wife, her sons and daughters any such person and the lineal descendants of such daughters in the female line. Thus there are three types of properties within the contemplation of Section 48, namely, property purchased by a person, gifted by a person, or bequeathed by a person, in favour of his wife alone or in favour of his wife and one or more children etc. The main part of Section 48 provides that unless a contrary intention appears from the will or deed or gift or purchase or from the conduct of the parties, the properties shall be taken to be tavazhy property by the wife, her sons and daughters etc. However, the proviso to Section 48 provides that in the event of partition of the property, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or a daughter.(Para 12)

       It was rightly pointed out that in the instant case taking the facts as they are, the husband of defendant No. 1 died in the year 1939. The leaseholds in question were taken in June 1943. It is no doubt true that defendant No. 1 admitted in her deposition that she had acquired these leasehold for the benefit of the tavazhy from out of the amount of Rs. 1000/- left with her by her deceased husband. The question remains as to whether a purchase by the wife of the deceased husband from out of the funds left behind by him is covered by the provisions of Section 48. It was submitted before us, and rightly, that before Section 48 could be applied it must be shown that the property was either bequeathed, gifted or purchased by a person in the name of his wife alone or in the name of his wife and one or more children together. That is not the case here. The father of defendant having died long ago, the funds which were left with the mother must be deemed to be her property. In any case, there is no evidence to show otherwise. In these circumstances, though it is not necessary for us to go into this question, it is doubtful if Section 48 would have any application in the facts of this case.(Para 13)

       We, therefore, allow this appeal, set aside the judgment and order of the Division Bench of the High Court and restore that of the learned Single Judge.(Para 14)