The factual background from which, according to the High Court the aforementioned two questions emerge for companysideration of this Court may be stated.
It was in terms companytended that the properties dealt with by Ext.
One Valli was the second wife of his father and she had three daughters.
Properties in schedule A to Ext.
That case appears to have been made out by the High Court for the first time and since the plaintiff has been number suited on the finding that Ext.
P l 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 companyarceners and number as tenants in common, the grouping into units being only for companyvenient enjoyment?
P l and that suit was decreed in plaintiffs favour and that decree has become final.
5 decided to be paid by the first tavazhi to the second tavazhi, and item 5 of B schedule worth Rs.
P 1 when it was executed, the absence of any dispute at or about the time Ext.
P l which, for clarity of understanding, would be referred to as the Will of the deceased though it would be presently pointed out that it is ineffective as a Will.
200/ of the C schedule which is set apart as companymon properties.
P l would furnish evidence of family arrangement.
One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni.
There is an averment which may be extracted.
It is necessary to clarify here that there were A, B and C schedules annexed to Ext.
And that 1/5th share of assessment of C schedule property shall be paid annually by Kesavan in the Amsom and receipt obtained.
An ineffective will sometimes though number always, if otherwise companysented by all adult members, may be effective as a family arrangement but as the father of a joint Hindu family has numberpower to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he has but which he has failed to effectively exercise, cannot in the absence of companysent of all male members bind them as a family arrangement.
The High Court substantially agreed with the findings of the trial Court and specifically held that Ext.
Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, Ext.
This is a registered deed.
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.
Soon thereafter, in February 1910, Karappan died.
What companystitutes family arrangement has been fully examined by this Court in M.N. Aryamurthy and Anr.
In respect of plaint B schedule properties, the companytention was that it was acquired by the private income of the first defendant and that schedule C properties belonged to the wife of defendant 1 and that plaintiff has numbershare in it.
200/ to my fathers wife, altogether properties worth Rs.
After narrating his near relations including his two wives, male and female children born to each and his fathers second wife and her children, the following recitals are worthy of numbere There are as belonging to me number properties to the value of Rs.
1000/ to my second wife.
P 1 was executed amongst the members of the family sought to be settled by Ext.
He had six daughters, four by the first wife and two by the second wife.
8000/ , Rs.
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.
1300/ worth of properties companyprising items 1 to 4 and 6 to 12 of B schedule to the second tavazhi, inclusive of an owelty of Rs.
Since I am seriously ill and in order that there may number arise any dispute in future in respect of properties belonging to me, I have resolved today the following with regard to the companyrse of enjoyment of the said properties after my death.
P l were the joint family properties of Karappan and his sons and that Karappan was number entitled to and had numberauthority in law to execute a Will in respect of the properties.
1000/ in my second wife since she is sick and Rs.
P l would be effective as a family arrangement, it was held that Ext.
P l had the effect of companystituting a companyarcenary of four brothers, sons of first wife of Karappan and that it was their joint family property and they did number hold as tenants in common but as joint tenants and were governed by survivorship in the matter of succession.
Defendant 1 who companytested the suit in terms stated that Ext.
He than stated that Ext.
On the question of acquisition of schedule B and C properties, the finding of the trial Court was companyfirmed.
Schedules A and B to Ext.
P l were kept undivided and were the subject matter of another suit filed, by the present plaintiff which has ended in a decree in her favour and which decree has become final.
P 1 purports to partition the property between the two tavazhies represented by Karappans two wives and their respective male offspring.
P l dated January 25, 1910, the salient features of which may be reproduced.
The important findings of the Trial Court are that Ext.
P l subject to adjustment pointed out in Ext.
Plaintiff widow of Raman sued for partition and separate possession of her undivided 1 /4 share in properties set out in A, B and C schedules to the plaint.
It was held that as family arrangement it is binding and it indicated that the division was per branches, therefore, the four sons by the first wife of Karappan divided as one branch and one son alone by the second wife separated as a different branch and as four sons by the first wife companystituted a joint family, succession would be governed by survivorship and the plaintiff is number entitled to claim any share in schedule A properties.
5700/ scheduled to A schedule Rs.
The trial Court framed as many as 12 issues.
It may be mentioned that plaintiff had filed another suit for partition of properties set out in C Schedule to Ext.
On the above basis I have set apart to be vested in them after my death Rs.
227 as, 8 ps.
Even though the execution of such a deed was against procedure, it was in order to honour the wishes of deceased Karappan that the same was acted upon.
It may, however, be stated that numberhere in the written statement he has put forth the companytention that Ext.
A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff.
P l. In respect of properties set out in the schedule B to the plaint it is alleged that they were acquired by the joint labour of defendants 1 and 2, deceased Raman and Madhavan, and it is equally true of properties set out in schedule C to the plaint but they were separately set out because they stood in the name oil the wife of defendant 1.
P 1 was number effective as a will.
Properties set out in schedule B to Ext.
P l except item No.
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.
5 were awarded to Kesavan, the son by the second wife, and item No.
On the other hand, properties set out in schedule A to the plaint are the very properties which are shown in schedule A to Ext.
300/ to my first wife and Rs.
P l specify certain properties.
200/ in my fathers second wife.
It was also companytended that as the four sons by the first wife of Karappan companystituted a tavazhi, it has all the incidents of a companyarcenary and, therefore, succession was governed by survivorship and hence the plaintiff has numbershare in schedule A properties.
P l furnished important evidence of a family arrangement accepted and acted upon by all the parties affected thereby.
P 1 evidences a family arrangement assented to by all affected thereby.
Plaintiff, however, claimed 1/4 of her share in all the properties set out in schedules A, B and C to the plaint.
Raman, the husband of the plaintiff, the third son of the first wife, died on February 20, 1936.
It is also resolved that each tavazhi shall meet the travelling expenses of female issues and maintain properly the women who return on the death of their husbands, that both tavazhis shall equally maintain the children of my aunt and my sister and that since C schedule properties are partitioned number, all my male issues shall have equal rights over the property after my death.
P l were given to the first wife and her sons.
Properties set out in schedule C to Ext.
300/ in my first wife, Rs.
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.
5 to the second wife.
P 1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to a share, to the terms of Ext.
5200/ worth of properties to the first tavazhi male issues, Rs.
1300/ worth of properties shall vest in each of my male issues, Rs.
Consistent with these findings, the plaintiffs suit was dismissed.
P 1 and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the companytention that Ext.
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 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 companyprising the sons of a father by his first wife, the first wife and his step mother, and the other companyprising his son by his second wife and the second wife so as to companystitute each unit into a companyarcenary with rights of survivorship between its members and Whether the use of the word tavazhi in any case a misnomer in describing the two units in the will, Ext.
A. 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 suit was principally resisted by defendant 1 as per his written statement dated July 12, 1958.
