CASE NO.: Appeal (civil) 5259 of 1995 PETITIONER: PADMAVATHY AMMA RESPONDENT: AMMUNNI PANICKER AND ANR. DATE OF JUDGMENT: 02/05/1995 BENCH: R.M. SAHAI & B.L. HANSARIA JUDGMENT:
JUDGMENT
1995 (3) SCR 1056
The Judgment of the Court was delivered by
HANSARIA, J. This appeal by special leave requires determination of the
question as to whether the gift of the suit property by Padmanabha in
favour of his sister was to the Tavazhi of the sister or was for the
benefit of the sister alone. The parties being governed by Marumakkathayam
Law, to answer the question, we shall have to refer to that law and
ascertain the intention of the donor as reflected in the gift (which was
brought on record in the trial court as Ext. A-l); and then decide whether
the gift to Kochukuni has to anure to her benefit alone or to her Tavazhi.
2. Respondent No. 1 filed the suit at hand claiming one-third share in the
gifted property as a son of Kochukunhi, who had another son and a daughter.
The trial court dismissed the suit. On appeal, the High Court held that the
plaintiff was entitled to one-sixth share and remanded the case to the
trial court for fresh disposal after answering all the other issues in the
suit. Feeling aggrieved, the daughter of Kochukunhi has filed this appeal.
3. Let the broad terms of the gift deed be first noted. The perusal of the
same shows that the properties were gifted out of love and affection to the
sister and her descendants in the female line. The deed further says that
the property shall devolve in no other way. Then it recites that if there
be need to encumber the property, the document shall be signed by the major
female members. It, however, further says that after the life time of the
donor and donee, all the major male members should join the document to
encumber the property otherwise it would not be valid.
4. Relying on the aforesaid terms of the gift deed, it is contended by Shri
Viswanath Iyer, Sr. Advocate, appearing for the appellant that the daughter
of Kochukunhi alone had right and title in the property after the death of
the donee. The High Court, however, did not accept this case of the
defendant- appellant, because, according to it, the gift being to the
sister, a female, has to be presumed, in the absence of the contrary
intention, to be a gift to be held by the donee as tenancy-in-common. It
was further opined by the High Court that notwithstanding the exclusion of
male members, the plaintiff was entitled to claim a share as a member of
Tavazhi, and there cannot be any Tavazhi excluding the male members. As
Kochukunni’s daughter was alive at the time of gift, the High Court opined
that Kochukunhi was entitled to half of the gifted properties; and she
having one daughter and two sons, the plaintiff became entitled to one-
third of the half, that is, one-sixth of the whole. It is because of this
that the plaintiffs claim to one- sixth share was accepted and not one-
third as prayed for.
5. Shri Viswanath Iyer has contended that under Marumakkathayam Law it is
the daughter alone who was entitled to whole of the property of Kochukunhi.
Shri Poti appearing for the first respondent, however, submits that where a
gift is to a relation like wife, she holds the same on behalf of her
children also, if there be any. To put it differently, the presumption
would be that the donee takes on behalf of the Tavazhi, of which the son is
undoubtedly a member.
6. Being concerned with parties governed by Marumakkathayam Law, we may
first state that in this system of law succession to property is traced
through females, though the expression Marumakkathayam strictly means
inheritance by sister’s children. It is because of this that a man’s heirs
are not his sons and daughters, but his sisters and their children-the
mother forming the stock of descent and inheritance being traced through
mother to daughter, daughter’s daughter and so on. It may then be stated
that a Marummakathayam family is known a Tarawad and consists of a group of
persons, males and females, all tracing descent from a common ancestress.
An ordinary Tarawad consists of the mother, her children, male and female,
the children of such females and their descendants in the female line, how-
low-soever, living under the control and direction of the Karnavan, who is
the eldest male member. (See pages 1 and 2 of M.P. Jospen’s book ‘The
Principles of Marumakkathayam Law.)
7. The Tarawad is thus atypical matriachal family, with all its incidents,
which are well settled, as would appear from what was stated by a
Constitution Bench of this Court in U.K. Kochuni v. State of Madras, [1960]
3 SCR 887. Subba Rao, J., as he then was, speaking for the majority dealt
with this aspect at pages 928 and 929 of the judgment. After pointing out
that Marumakkathayam family consists of all the descendants of the female
line of one common ancestor (sic ancestress) and is called a Tarawad, it
was stated that the incidents of the Tarawad are so well-settled that is
not necessary to consider the case law, but it would be enough if some
relevant passages from the book ‘Malabar and Aliyasantana Law’ by Sundara
Aiyar are cited; and it was so done. It is not necessary to quote the
passages. Suffice to say that according to learned author, the joint family
in a Marumakkathayam Tarawad consists of a mother and her male and female
children, and the children of those female children, and so on. The rights
of the junior male members have thereafter been enumerated by stating
ultimately that everyone is a proprietor and has equal rights.
8. The gift at hand being to female, let it be seen as to how such a gift
has been treated by the concerned High Courts of the country. In M.P.
Kunhamina v. M.P. Kunhambi, ILR 32 Madras 315, the Court was called upon to
construct a gift which was by a husband to his wife and three daughters,
excluding the male members. The fight, however, was between the daughters
and it was held, on construction of the document, that descendants of one
daughter were not excluded from inheriting the gifted property because of
the death of their ancestor before her sisters. In the present case, we are
not concerned with such a situation; nonetheless, the decision is relevant
as it states that there cannot be total disinheritance of some of the
donees. In KM. Kutty v. N.P. Ayissa, ILR 51 Madras 574, the gift was by a
husband to his wife and children. The wife, however, had some children by
former husband. The Bench opined that in such a situation the donee did not
take the property as Tarawad property. What is important for our purpose is
that this decision refers to Kunnacha Umma v. Kutti Mammi Hajee,lLR 16
Madras 241, which was founded on some principles laid down by the Privy
Council, one of which is to the effect that when a Marumakkathayam man’s
property is given to his wife and children, without any expression of
intention how they were to enjoy it, they must be held to have taken it
with incidents of property held by a Tarawad. As to what is meant by a
Tarawad was explained in A.K. Haji v. I.P.Bi, [1958] KLT 815, stating that
Tarawad means in law a Marumakkathayam family holding property as a joint-
family with all the incidents of a joint-family under Marumakkathayam Law.
9. It would also be useful to see as to how this aspect has been explained
in standard treatise. It has been stated as below in Mayne’s Hindu Law at
pages 1188 and 1189 of 12th Edition:
“In the matter of gifts, the question has often arisen whether a gift is
made to tavazhi as such or whether the donees take as tenants-in-common.
The ordinary presumption is that when properties are given by way of gift
to a woman and her children or her children alone following the
Marumakkathayam or Allayasantana Law, the property is taken by the donees
with the incidents of tarwad property. Only some of the members of a
tavazhi cannot hold the property with the incidents of tarwad property;
hence when a gift is made to them, they will take it as tenants-in-common
unless there are circumstances to justify the inference that they took it
on behalf of the entire tavazhi. when property is given to the mother
alone, when there are children, the presumption that she takes it on behalf
of the tavazhi is rebutted.”
The author has then referred to section 48 of the Marumakkathayam Act which
applied to transactions after 1st August, 1933, which laid down that when a
person gives property to his wife alone, such property shall, unless a
contrary intention appears, be taken as Tavazhi property by the wife. Under
section 22 of the Travancore Nair Act of 1100 M.Y. (Malayalami Year), to
which reference has been made by the High Court, a gift has to be held by
the donees as tenancy in common.
10. In K.S. Variar’s ‘Marumakkathayam and Allied Systems of Law in the
Kerala State’, it has been stated at page 91 of the 1st edition (1969) that
the presumption in the Travancore State is that a gift in favour of mother
alone is for the tavazhi. Similar view has been expressed by M.P. Joseph in
his above-mentioned book at page 295 of the revised edition (1926) by
stating that even though a gift is made in the sole name of the mother, all
the children take the properties as Makkathayam.
11. All the above do not leave any doubt in our mind that under the gift in
question, even if the same be construed to have been only for the benefit
of Kochukunhi, all her three children had equal interest in the property.
The High Court was, therefore, right in decreeing the suit of the plaintiff
to one-sixth share of the suit property.
12. The appeal is, therefore, dismissed. No order as to costs. Appeal
dismissed.