A father under Hindu Mitakshara law can partition joint family property but cannot dispose of ancestral property by will. A document intended to clarify shares can disrupt joint family status, converting joint tenants into tenants-in-common.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2544 of 1969.

From the Judgment and Decree dated 21-12-1965 of the Kerala High Court in A.S. No. 403 of 1961.

P. Govindan Nair, C. S. Ananthakrishna Iyer, S. Balakrishnan and Mrs. Baby Krishnan, for the Appellant. T. S. Krishnamurthy Iyer and Mrs. S. Gopalakrishnan for the Respondents. E. M. S. Anam and P. N. Pura for Respondent No. 9.

The Judgment of the Court was delivered by DESAI, J.-On a certificate granted by the Full Bench of the High Court of Kerala, original plaintiff, a Hindu widow who was seeking partition of a share to which her deceased husband was entitled, having lost in both the Courts, has filed this appeal. The High Court granted the certificate under Article 133(1)(c) of the Constitution as in its opinion the following substantial questions of law arise from the judgment rendered by it:

1. Whether under the Mitakshara Law the parties are governed by customary law, and, in the absence of any rule of customary law on the point in question, by Mitakshara Law property can be divided, albeit by a family settlement, between two artificial units of a joint family, one comprising the sons of a father by his first wife, the first wife and his step mother, and the other comprising his son by his second wife and the second wife so as to constitute each unit into 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-1 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?The factual background from which, according to the High Court the aforementioned two questions emerge for consideration of this Court may be stated.

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 andtwo 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 matter of inheritance, succession and on the question of personal law they were governed essentially by customary law and in the absence of any specific custom they are governed by the Hindu Mitakshara Law. Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, Ext. P-1 dated January 25, 1910, the salient features of which may be reproduced. After narrating his near relations including his two wives, male and female children born to each and his father’s second wife and her children, the following recitals are worthy of note:

"There are as belonging to me now properties to the value of Rs. 8000/- mentioned in the sub-joined schedules A and B as my tarwad properties and also my self-acquired properties and properties to the value of Rs. 200/- of the C schedule which is set apart as common properties".

"Since I am seriously ill and in order that there may not arise any dispute in future in respect of properties belonging to me, I have resolved today the following with regard to the course of enjoyment of the said properties after my death".

"I myself shall have the full powers of disposition over all the properties described in A, B and C schedules during my life time and after my death, out of the properties to the value of Rs. 8000/-, Rs. 1300/- worth of properties shall vest in each of my male issues, Rs. 300/- in my first wife, Rs. 100