The determination of property as 'thavazhi' requires legal qualification and cannot simply arise from agreements. The appellate court emphasizes the necessity for factual clarity.

JUDGMENT :

Sathish Ninan, J.

The preliminary decree in a suit for partition is under challenge by the defendants.

2. As per the plaint averments, the plaint 'A' schedule property, which is sought to be partitioned, belonged to one Poovadan Kannan as per assignment deed No.2165/1903. The property was enjoyed by Kannan and his successors as Thavazhi property. It is claimed that as on the date of suit there are 88 sharers as shown in the genealogical tree in plaint 'B' schedule. According to the plaintiffs, the rights of all the other sharers except that of the defendants were got assigned by them under various assignment deeds. It is claimed that the plaintiffs have 86.75 shares and the defendants have 1.25 shares out of the total 88 shares. Partition and separate possession of the same is claimed.

3. Defendants 1 and 3 filed joint a written statement. They denied the plaint claim that the property was acquired by Poovadan Kannan. It was contended that the property was purchased by the five children of Poovadan Kannan viz, Kunhiraman, Manikkom, Devaki, Thirumala and Madhavi under Ext.B1 assignment deed number 2165/1903. They were co-owners of the property. It was not a thavazhi property. Kunhiraman died unmarried and issueless and his rights devolved on the four siblings, thus each being entitled to ¼ shares. The ¼ rights of Devaki devolved on her four surviving children. One among them viz. Damayanthi executed a Will in respect of her rights in favour of one among her children viz. Janardhanan. Defendants 1 to 3 are the wife and the children of Janardhanan. It is claimed that Damayanthi had one by sixteen shares (¼ x ¼) which on the death of Janardhanan devolved upon defendants 1 to 3. The claim that there are 88 sharers to the property was denied.

4. Defendants 1 and 3 assigned their rights in the property to the additional 4^th defendant. He filed a written statement in tune with that of defendants 1 and 3.

5. The trial court held that the property is a 'thavazhi' property and passed a preliminary decree accepting the plaint claim.

6. We have heard Sri.K.C.Santhosh Kumar, the learned counsel for the appellants-defendants and Sri.K.V.Sohan, the learned counsel for the respondents-plaintiffs.

7. The points that arise for determination are :-

(i) Is 'A' schedule property a 'thavazhi' property as claimed by the plaintiffs ?

(ii) Does the decree and judgment of the trial court warrant any interference ?

8. Before we proceed to the facts, the following principles need to be noted. A 'thavazhi' or a ‘joint family’ cannot be created by the act of parties. It arises from status, under a common female ancestress (See Mathevan Pillai v. Neelakanta Pillai , Bhagavathi Pillai Thankachi 1952 KLT 140 ; Kypreth Moithiyan Kutty v. Natukandy Puthiapurayil Mammali (1928) ILR 51 Mad 574). An artificial group cannot constitute a thavazhi by an agreement. [ Kalianikutty Amma v. Devaky Amma 1950 KLT 705 ). A joint family is a creature of law and not act of parties. ( Thomas v. Kesavan Namboodiri (AIR 1964 Ker 144), Kumaraswami Mudaliar and Ors. v. Rajamanikkam Udayar and Ors. (1966 KLT 361); Surjit Lal Chhabda v. CIT (1976) 3 SCC 142; CIT, Bihar-II v. Sandhya Rani Dutta (2001) 3 SCC 420)]

9. According to the plaint averments, the property was acquired by one Poovadan Kannan, and he and his successors enjoyed it as 'thavazhi' property. First of all we must note that the acquisition, if by Poovadan Kannan, does not become a 'thavazhi' property. Secondly, Ext.B1 is the document bearing No.2165/1903 under which the property was acquired. It shows that the acquisition was not by Poovadan Kannan but by his five children. The acquisition by the said five children wo