The Judgment of the Court was delivered by
Koshi, C.J:— Defendants 1, 2 and 7 in O.S No. 214 of 1950 on the file of the Anjikaimal District Court have brought this appeal against the preliminary decree passed on 5-4-1955 directing a division into two equal halves of an item of immovable property, namely, item 1 in schedule A of the plaint and some among the movables mentioned in schedule B thereof. There are as many as five items of immovable properties mentioned in schedule A.
2. While claiming that she was entitled to a one-half share in all those items and in all the movable properties mentioned in schedule B, in her plaint the plaintiff proceeded to state that to avoid unnecessary controversies she was abandoning he claim over items 3 to 5 of A schedule and that she would be content with a half share in the two remaining items in that schedule and a half share of the movables. The learned Additional District Judge who heard the suit found that item 1 of A schedule was divisible into two equal halves between the plaintiff and defendant 1, that item 2) was the separate property of defendant 1 and that the plaintiff was also entitled to a half share of such of the movables in B schedule as were proved to be really in existence.
3. Defendants 1 to 7 had contested the suit. Dissatisfied with the decree for division of item 1 of schedule A and of some of the movables in schedule B, defendants 1, 2 and 7 have brought this appeal. The plaintiff has filed a memorandum of cross-objection challenging the lower Court's finding that item 2 of A schedule is not a divisible item.
4. The parties are Nairs. The plaintiff and defendant 1 are sisters and defendant 1 is the elder sister. Defendants 2 to 7 are the children of defendant 1 and defendant 8 is the husband of defendant 1 and the father of defendants 2 to 7. Item 1 of schedule A was acquired on 19-6-1082 as per Ex. 1, in the joint names of the plaintiff, defendant 1 and their mother Madhavi Amma, since deceased. On the date of the acquisition the plaintiff and defendant 1 were minors and according to the plaintiff, the source of the acquisition proceeded from her father, who was the father of defendant 1 as well. Defendants 1 to 7 would, however, have it that the said property was purchased for their branch tarwad by its then Karnavan (de facto) Parameswara Menon.
5. The division in the main tarwad was in 1068 and on the date of the division, the branch with which we are concerned here consisted of Madhavi Amma (the mother of the plaintiff and defendant 1) and her three brothers, Rama Menon, Parameswara Menon and Kunjunni Menon. After the acquisition of the said item a building was put up there and the parties are also at variance as to who found the money for the construction.
6. While according to the plaintiff the father provided the funds, the defendants' case is that Parameswara Menon put up the building with his own or tarwad funds. It is common ground that the title deed for the acquisition of item 2 stands in the name of defendant 2 and that the consideration money thereof was found from Kuri and other amounts which stood in her name. The plaintiff's case is that those amounts belonged to the father, but that has been repelled by the lower Court which accepted the defendants' case that the amounts utilised for the acquisition of item 2 belonged exclusively to defendant 2.
7. The appeal originally came up for hearing before a Division Bench. The lower Court's decision that item 1 was divisible into two between the plaintiff and defendant 1 is on the basis that the funds for its acquisition proceeded from their father. According to a long line of decisions in Cochin, commencing from Kuttikrishnan Nair v. Cheethamma, 10 Cochin LR 401 (FB)(A), in the absence of an express or necessarily implied intention to the contrary, the donees of Puthravakasam properties can only be regarded as co-owners or tenants-in-common with regard to the same.
8. Ext. 1 was taken in the names of Madhavi Amma and her two daughters and as per the above rule, each of them was entitled absolutely to a third share of the property. On the death of Madhavi Amma her one-third share devolved equally on her daughters. The lower Court, therefore, upheld the plaintiffs claim for a half share in the property. When the appeal came up before a Division Bench, it was brought to its notice that certain other appeals in which the correctness of the rule of construction, enunciated in Kuttikrishnan Nair v. Cheethamma (FB)(A), was being canvassed and that those cases have been referred for an authoritative decision of this Court to a Full Bench.
9. The challenge to the authority of the rule of construction enunciated in Kuttikrishnan Nair v. Cheethamma (FB)(A), regarding the nature and incidents of Puthravakasam grants and bequests arose on account of a different rule adopted by the Madras and Travancore, High Courts on that question. The learned Judges of the Division Bench before whom this case came up, therefore, referred this case also to be heard and disposed of by the Full Bench along with the other cases. Those other cases are A.S No. 121 of 1952 (Trav-Co)(B) and A.S No. 275 of 1952: (AIR 1954 Trav-C 67)(FB)(C).
10. This Full Bench heard all the three cases and took the view that the path of prudence lay in deciding each case on its own merits and in not attempting a reconciliation of the conflicting presumptions that obtained in the Cochin area on the one hand and in Travancore and Malabar on the other, with respect to the matter. In our opinion it was top late in the day to attempt to examine the comparative merits of the rival presumptions and seek to prefer one of them to the other.
11. While the Cochin rule is that what has been stated above, namely, that in the absence of an express or necessarily implied intention to the contrary, the donees or legatees of Puthravakasam properties can only be regarded as co-owners or tenants-in-common with regard to the subject matter of the gift or the bequest, as the case may be, the Travancore and the Madras Courts have always held that the presumption is that the beneficiaries take the subject matter of the gift or bequest with the incidents of tarwad property.
12. In Kuttikrishnan Nair v. Cheethamma (FB)(A), the Cochin Chief Court, the forerunner of erstwhile Cochin High Court, enunciated the rule of presumption referred to above with due awareness that in Madras and Travancore the leaning has always been towards treating such property as partaking the character of pucca marumakkathayam property. When the question of the correctness and the propriety of having a rule of construction for puthravakasam grants distinct from that obtaining in Travancore and Madras came up before the Cochin High Court in Tripurasundari Amma v. Anantha Padmanabha Ayyar, 36 Cochin LR 759 (D), Krishnaswami Iyengar C.J first observed that he had to differ from Krishna Menon, J., one of his colleagues,
“not because a different view is not possible with reference to the rule of law or the rule of presumption involved in the decision of the question, but out of deference to the uniform course which the decisions of this (Cochin) Court had taken over more than a quarter of a century ever since the Full Bench case of Kuttikrishnan Nair v. Cheethamma (A)”.
13. After reviewing the judgment in that case the learned Chief Justice said
“that this (Cochin) Court struck an independent line for itself, diltering in this respect from both the Madras and Travancore High Courts.”
14. Later on in the judgment after an exhaustive review of the case law that had gathered round the question since the above mentioned Full Bench decision, the learned Chief Justice went on to say:
‘A gift simpliciter to a person, whether a male or female, without any tiling more to indicate a contrary intention should be construed to convey the estate to him or to her and not to any other or others. The intention of the donor is always the deciding test but where it has not been clearly expressed, light may be obtained by looking at the ordinary notions and wishes current in the community to which the donor belongs. It is here that this Court has differed from the Madras and Travancore Courts.
These other Courts have assumed that a donor in Malabar would ordinarily intend that the donee should take his property subject to the incidents of the system of holding property which is so largely prevalent in the territory to which he belongs. This Court, however, has consistently refused to accept this view, as in its opinion both the systems of holding property viz., as tarwad or thavazhi property, and as individual property, are equally in vogue in Cochin if not in Malabar also, and there is, therefore, no reason to attribute to the donor the one idea rather than the other.
The contrary view is based on the theory that it is the marumakkathayam system of holding property alone which the donor would be presumed ordinarily to intend, so long as he does not indicate his intention to the contrary. Thus the difference of view has its origin on a difference not of law but of fact.”
15. Again at pp. 792 to 793 the learned Chief Justice said:
‘15: Until the enactment of S. 64 in the new Nayar Act (29 of 1113) the decisions of this Court both before and after, when it had to construe gifts made prior to this Act, have consistently proceeded on the footing that a gift to a named person or persons enures only to their benefit, the donees taking the estate as tenants-in-common among themselves.
In fact the law had become so well settled by the Courts, that the only mode of upsetting it was by legislative interference and this was done by the Nayar Act. Section 64 of the Act appears to have been framed with the avowed object of bringing the law in this State into line with that prevailing in Madras and Travancore.
Until then, the governing rule was different, being that laid down by this Court and later embodied in S. 43 of the Act of 1095. If follows that the gift under consideration in the present case which was made in 1087 must be held to be governed by the decision in Kuttikrishnan Nayar v. Cheethamma (FB)(A).”
16. With the judgment Krishnaswami Iyengar, C.J, delivered in that case, one of us, who was a member of the Full Bench, fully concurred and the law enunciated there was re-affirmed in another Full Bench decision reported in the same volume as Devaky Amma v. Kunju Nair, 36 Cochin LR 937 (E). These two cases in 36 Cochin were followed in Govindan Nayar v. Seetha Amma, 39 Cochin LR 43 (F), by another Full Bench and there Krishnan Menon, J. (then Chief Justice) who differed from the majority view in ??? Amma v. Anantha Paamanabha Ayyer (D), explained his judgment in that case not as a departure from Kuttikrishnan Nair v. Cheetnamma (FB)(A), but only as a dissent on the appreciation of the individual facts of that case — vide p. 54 (end of para 2 of his judgment).
17. This is how the law stood in Cochin on the date of the integration of the two States in 1949 and therealter also when this question came up for decision in cases arising from the Cochin area, the rule enunciated in Kuttikrisnnan Nair v. Cheethamma (FB)(A), was adopted without question — vide Kalianikutty Amma v. Devaki Amma, 1950 Ker LT 705 : 1950 Trav-Co LR 88 (G) and Narayanan v. Kumaran, AIR 1951 Trav-Co 11 (H).
18. In this context it is worth noticing that in cases arising from the Travancore area, the rule of presumption as interpreted by the Travancore High Court from very early times has invariably been followed — See Narayana Pillai v. Govinda Pillai, AIR 1952 Trav-Co 141 (I), Balakrishna Pillai v. Malian Pillai, ILR 1956 Trav-Co 399 (J) and Amina Beevi v. Vasudevan, 1956 Ker LT 117 : ((S) AIR 1956 Trav-Co 177 (FB)(K). In the last mentioned case, after an elaborate review of the Travancore and Cochin cases on the point, Joseph Vithayathil, J. (with whom Sankaran and M.S Menon, JJ., concurred) observed thus at p. 124 (of Ker LT): at p. 181 (of AIR):
‘This being a Travancore case we find no reason why we should not follow the view that was being taken by the Travancore High Court from 5 Trav LR 116 (L), onwards. We, therefore, hold that in the case of a gift by a marumakkathayee mother to her daughter or an acquisition by the mother in the name of the daughter before the coming into force of the Travancore Nair Act, or the Ezhava Act, as the case may be, the presumption is that it enured to the benefit of the sub-tarwad of the donee.”
19. The decision of the Cochin Chief Court in Kuttikrishnan Nair v. Cheethamma (FB)(A), was rendered in Meenam, 1094 (March, 1919). Thirty-seven years after that, it is unthinkable that we should now seek to upset the rule laid down there when the Cochin High Court had followed it as good law in ever so many cases and latterly, this Court also did the same thing.
20. We are not construing the language of a statute or the words of any ancient or sacred text. Rights have grown up under the earlier decision which ought not to be unsettled. The rule merely relates to a presumption which it is always in the power of a donor or a testator to negative if so minded by express provision. We cannot, therefore, find our way to depart from the rule after it has been followed for such a long time.
21. The first Nair Act in Cochin (Act 13 of 1095) gave statutory recognition to the rule enunciated in Kuttikrishnan v. Cheethamma (FB)(A), in S. 43 thereof. The position has, however, been altered in the second Nair Act (29 of 1113) by S. 64, which is a verbatim reproduction of Section 48 of the Madras Marumakkathayam Act (22 of 1933).
22. Even earlier than Cochin and Madras, the Travancore legislature had made laws to govern the Nair and other marumakkathayam communities there Puthravakasam gilts and bequests made alter statutes intervened to amend or codify marumaickatliayam law must necessarily be governed by statutory provisions.
23. Disputes can arise only with respect to gifts and bequests made before statutory intervention and each jurisdiction had its own rule of construction with respect to such gifts and bequests. Madras and Travancore happened to hold the same view, but Cochm dirtered this being a Cochin case must be governed by the Cochin rule namely, that in Kuttikrishnan Nair v. Cheethamma (FB)(A), reiterated in case after case and notably in Tripura-sundary Amma v. Anantha Padmanabha Ayyer (D), and also re-affirmed in later Cocnin cases and also by the decisions of this Court referred to earlier.
24. Mr. K. Rama Iyer, who appeared for the appellants, opened his arguments by stating that for the purpose of the decision of the appear it was unnecessary to canvass the correctness or otherwise of the rule of construction enunciated in the Cochin cases, as according to him the finding that the consideration for the acquisition under Ext. I proceeded from the father cannot be sustained on the evidence. His point was that if the lower Court found it difficult to accept the evidence on the side of the defendants that Parameswara Menon found the purchase money as worthy of credence, the evidence on the side of the plaintiff that the consideration proceeded from the father was equally unconvincing. We may at once state that we cannot accept that such is the state of the evidence in the case, but before we discuss it, it is necessary to set out Mr. Rama Iyer's further argument based on that contention.
25. In Narayana Menon v. Unnikrishna Menon, 33 Cochin LR 134 (M), a Full Bench of the Cochin High Court had pointed out that the sine qua non for the application of the rule enunciated in Kuttikrishnan Nair v. Cheethamma (FB)(A), to a particular case is clear proof that the properties were acquired by the husband or the father as the case may be for and on behalf of the wife or the children and that in the absence of such clear proof, property commonly owned by members of a thavazhi has to be presumed to be thavazhi property rather than Puthravakasam property.
26. We take it that the word ‘owned’ means ‘standing in the name of’ but we are afraid the proposition has been stated in rather broad terms. A better rule would be that in the absence of evidence to show the source of the acquisition a property belonged to the person in whose name the title deed thereto stood. See 39 Cochin LR 43 at p. 45 (F). The rule enunciated in Narayana Menon v. Unnikrishna Menon (M), was in terms not applicable to that case itself. Unlike here, the persons in whose name the documents in that case stood did not exhaust the full membership of the concerned marumakkathayam unit.
27. There were others alive who were left out from being mentioned in the relevant deeds as beneficiaries. The learned Judges have not chosen to refer to any authority in support of the proposition and in all the circumstances we do not consider it to be a safe or sound rule at all.
28. This takes us to another argument of Mr. Rama Iyer. That is based on yet another decision of the Cochin High Court, namely, Krishna Menon v. Lekshmi Amma, 21 Cochin LR 372 (N), Sahasranama Ayyar, J. who wrote the leading judgment in that case held that when the beneficiaries named, embraced ??? children and grand-children by his daughters, in other words, the waruniakka-thayam unit as a whole, it may be proper to regard the gift as intended for the thavazhi as such and not alone to the individuals named.
29. In a case already referred to, namely, Govindan Nair v. Seetha Amma (F), Krishna Menon C.J, referred to this decision as depending upon its particular facts and pointed out that while purporting to follow the decision in Kuttikrishnan Nair v. Cheethamma (FB)(A), a proposition against its very authority is propounded in the case.
30. If we may say so, the criticism is well founded. Be that as it may, the surrounding circumstances the learned Judges found in Krishna Menon v. Lekshmi Amma (N), in support of their view are entirely absent here. No doubt Madhavi Amma and her two daughters exhausted Madhavi Amma's thavazhi as it was then constituted. No reference, however, is made in Ext. I to any thavazhi or to grand-children in the female line.
31. The patta of the property was taken in the name of all the three persons mentioned in the document. Subsequent dealings, if relevant, referred to Ext. I as a purchase of Madhavi Amma and her daughters — vide Exts. B, C and G. The decision in Krishna Menon v. Lekshmi Amma (N), also does not therefore help the appellants here.
32. We shall now consider whether the lower Court's finding that the consideration for Ext. I proceeded from the father Narayana Menon and not from Parameswara Menon, the uncle. Even when the argument was proceeding we made it clear that we cannot for a moment find that Parameswara Menon was really the acquirer of the property, whether with his own or tarwad funds.
33. He was not possessed of any means and D.W 1 definitely admitted that he had no source of income. No doubt the later witnesses tried to improve the position by stating that he was the Kariasthan of one Vellappalli Sreedhara Menon, a rich man of Crangannoor.
34. On such oral evidence, directly contradicting the evidence of the first witness examined on the side of the defendants and unsupported by any documents we cannot place any reliance on the defendant's case with regard to the source of the purchase money under Ext. I. On the other hand, Narayana Menon, the father of the plaintiff and defendant 1, was a Sanskrit Pandit in Governement Service, who besides his pay also had a fairly decent monthly income from tution work.
35. The consideration for Ext. I is only Rs. 700 and this purchase was just a few years before Narayana Menon's retirement from service. He belonged to a rich tarwad and in the circumstances of the case it is far more probable to expect that he found the purchase money rather than Parameswara Morion. Again the defendants had no consistent case with regard to the purchase.
36. While according to the written statements filed in the case, Madhavi Amma and her daughters were benamidars for the bigger marumakkathayam unit composed of all the children of her mother and mother's uescendants in the female line the case put forward before the lower Court at the time of the argument and also sought to be developed before us was that the puicnase was benami for Madhavi Amma's thavazhi.
37. The latter case was, however, abandoned and we refer to this inconsistency only to expose the hollowness of the contention. The plaintiff, as P.W 6 and one of the attesting witnesses (P.W 1) to Ext. I gave evidence that Narayana Menon found the purchase money. In the circumstances of the case, without resorting to a presumption recognised by some Courts that the acquisitions made by a female marumakkatiiayee during coverture were with the funds advanced by her husband, on the evidence we are able to agree with the lower Court that the source of the purchase money under Ext. I proceeded from Narayana Menon.
38. There is absolutely no indication, express or implied, in the document to show how the persons in whose names the property was acquired should enjoy it and no reference is made to the thavazhi or any grand-children in the female line. As such, an acquisition by a Nair male in the name of his wife and two daughters should, in conformity with the line of decisions in the Cochin Courts, be taken to be a gift for the persons specified, where they take interest in the subject matter of the gift as co-owners or tenants-in-common.
39. If surrounding circumstances, or subsequent dealings with property, can be looked into, the patta, Ext. D and Kuri Security bonds like Exts. B and C and the ozhimuri, Ext. G, reinforce this conclusion. We accordingly confirm the lower Court's decision concerning item 1 and add that its direction regarding mesne profits will be implemented at the time of passing the final decree.
40. As for the movables found to be available for division, nothing was urged before us against the lower Court's finding. That part of the decree is also therefore confirmed.
41. Now we come to the memorandum of cross-objection with respect to the lower Court's decision concerning item 2. The title deed thereto stands in the name of defendant 1, the kuri money and the promissory note amounts utilised for the acquisition also stood in the name of defendant 1.
42. If those amounts really formed part of Narayana Menon's benefactions to his wife and daughters, we fail to see why those investments were not made in the names of all the three, as was done with respect to Ext. I. It is only a faint argument that was raised before us in support of the cross-objection and as we are in full agreement with the lower Court's conclusion on the question raised by it, we do not think it necessary to go more deeply into it. The memorandum of cross-objection will also stand dismissed. The appeal and the cross-objection fail and we dismiss them. Parties shall receive and pay proportionate costs in respect of both.
43. Appeal and cross-objection dismissed.