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.
200/ of the C schedule which is set apart as companymon properties.
From the Judgment and Decree dated 21 12 1965 of the Kerala High Court in A.S. No.
300/ in my first wife, Rs.
There is an averment which may be extracted.
P 1 specify certain properties.
300/ to my first wife and Rs.
P 1 were to be effective only after his death.
P 1 Karappan does number divide his property by metes and bounds vesting the share of each in presenti in each of his sons.
200/ to my fathers wife, altogether properties worth Rs.
P 1 would be effective as a family arrangement, it was held that Ext.
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.
Consistent with these findings, the plaintiffs suit was dismissed.
P 1 was number to be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed.
1135 Govindan Nair, C. S. Ananthakrishna Iyer, S. Balakrishnan and Mrs. Baby Krishnan, for the Appellant.
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.
Properties set out in schedule C to Ext.
A tarvad may companysist of two or more branches known as thavazhies each tavazhi or branch companysisting of one of the female members of the tarvad and her decendents in the female line see Maynes Hindu Law and Usage, 11th Edn.,
The companytention that even in such a situation the widow would be entitled to her share because of a customary right was negatived.
P 1 except item No.
In his own words he states that he was seriously ill and as he would like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his property shall be enjoyed after his death in the manner stated in Ext.
P 1 during his life time and whatever directions were given in Ext.
The trial Court framed as many as 12 issues.
5 to the second wife.
P 1 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.
Properties in schedule A to Ext.
Properties set out in schedule B to Ext.
200/ in my fathers second wife.
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.
1300/ worth of properties shall vest in each of my male issues, Rs.
P 1 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.
5200/ worth of properties to the first tavazhi male issues, Rs.
227 as.
He reserved to himself the full powers of disposition over all the properties more particularly described in the various 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.
P 1 though the shares of sons were specified as also the provision for female members was made.
One thing that is number in dispute is that Karappan did number intend Ext.
Thus when property is described as tarvad property in a broad sense it is admitted to be joint family property.
He than stated that Ext.
S. Krishnamurthy Iyer and Mrs. S. Gopalakrishnan for the Respondents.
P 1 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.
1000/ in my second wife since she is sick and Rs.
5700/ scheduled to A schedule Rs.
What companystitutes family arrangement has been fully examined by this Court in M. N. Aryamurthy Anr.
Therefore, to the extent Ext.
1139 On the question of acquisition of schedule B and C properties, the finding of the trial Court was companyfirmed.
Expression tarvad in Marumakkattayam Law is the name given to the joint family companysisting of males and females, all descended in the female line from a companymon ancestress.
The suit was principally resisted by defendant 1 as per his written statement dated July 12, 1958.
By Ext.
P 1 were given to the first wife and her sons.
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.
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.
Now, if Ext.
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.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
P 1 that properties in A and B schedules were tarvad properties and property in C schedule were claimed by him as his self acquired properties and they were to be kept joint and were number sought to be dealt with by Ext.
P 1 furnished important evidence of a family arrangement accepted and acted upon by all the parties affected thereby.
P 1 were to be effective after his death.
On the above basis I have set apart to be vested in them after my death Rs.
P 1 had the effect of disrupting the joint family status and from that date members of the joint family entitled to their shares in the joint family property, held as tenants in common and number as joint tenant with the result that inheritance by survivorship, a special feature of a Hindu companyarcenary, would be displaced by Hindu law of succession, the property going to the heirs recognised by law.
It is necessary to clarify here that there were A, B and C schedules annexed to Ext.
P 1 is neither effective as a Will number as a deed of partition.
P 1 and that suit was decreed in plaintiffs favour and that decree has become final.
Schedules A and B to Ext.
P 1 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.
The High Court substantially agreed with the findings of the trial Court and specifically held that Ext.
P 1 evidences a family arrangement assented to by all affected thereby.
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 1 purports to partition the property between the two tavazhies represented by Karappans two wives and their respective male offspring.
This is a registered deed.
He had six daughters, four by the first wife and 1136 two by the 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 1 was number effective as a will.
One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni.
Plaintiff, however, claimed 1/4 of her share in all the properties set out in schedules A, B and C to the plaint.
One Valli was the second wife of his father and she had three daughters.
Further, there was numbereffective partition by metes and bounds by Ext.
In respect of B and C schedule properties it was held that they belonged exclusively to defendant 1 and his wife and plaintiff cannot claim a share in them.
P 1 to be effective from the date on which it was executed.
8000/ , Rs.
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 of the wife of defendant 1.
The factual background from which, according to the High Court the aforementioned two questions emerge for companysideration of this Court may be stated.
Raman, the husband of the plaintiff, the third son of the first wife, died on February 20, 1936.
It was in terms companytended that the properties dealt with by Ext.
The important findings of the Trial Court are that Ext.
1137 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.
A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff.
At two places in terms he stated that the dispositions made by Ext.
Defendant 1 who companytested the suit in terms stated that Ext.
This also becomes clear from the recital in Ext.
2544 of 1969.
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.
Appellant companytends that Ext.
5 were awarded to Kesavan, the son by the second wife, and item No.
It may, however, be stated that numberhere in the written statement he has put forth the companytention that Ext.
Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, Ext.
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.
P 1 subject to adjustment pointed out in Ext.
P 1 as his tarvad properties.
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.
1000/ to my second wife.
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.
Without specifically so saying that Ext.
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.
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.
792 93.
Soon thereafter, in February 1910, Karappan died.
M. S. Anam and P. N. Pura for Respondent No.
It was to be effective from a future date and that future uncertain event was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will.
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 companyarceners and number as tenants in companymon, the grouping into units being only for companyvenient enjoyment?
It may be mentioned that plaintiff had filed another suit for partition of properties set out in C Schedule to Ext.
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.
It is, therefore, inescapable that Ext.
5 decided to be paid by the first tavazhi to the second tavazhi, and item 5 of B schedule worth Rs.
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.
P 1 dated January 25, 1910, the salient features of which may be reproduced.
403 of 1961.
