This appeal raises the question of the interpretation of certain sections in the Marumakkathayam Act, XXII of 1933. The appellants in this appeal were defendants in a suit for partition filed under this Act by the plaintiff who represented one tavazhi of a tarwad in South Malabar. The suit was filed on the 23rd October 1933. Prior to filing that suit the plaintiff had received notice of an application made under S. 43 of the Act to the Collector for the registration of the tarwad as impartible. While the suit was pending, the Collector did register the tarwad as impartible on the 15th January 1934. The question which then arose before the learned District Munsif who was trying the suit was whether the order of the Collector registering the tarwad as impartible rendered the suit incompetent. The District Munsif held that it did so render it but upon appeal to the learned District Judge the opposite view was taken and the Judge remanded the suit for disposal upon its merits. This is now an appeal by the defendants against this order of remand.
The disposal of the appeal turns essentially upon the true construction of Sub-S. (4) of S. 43 of the Act. Sub-S. (3) prescribes the conditions under which the Collector can register the Tarwad as impartible and then Sub-S. (4) goes on to enact as follows:
“On such registration, the provisions of Chap. VI shall not apply to such tarwad unless and until the registration is cancelled under S. 44.”
The provisions of Chap. VI give to the members of the tarwad the right of partition. It is quite clear—see Kunchi Amma v. Minakshi Amma(1)—that right is actually exercised at the very moment when one of such members files a suit. In the present case, therefore, the rights granted by Chap. VI had already been exercised before the Collector registered the tarwad as impartible. It is argued that the order registering the tarwad as impartible should be read as referring back to the date of the application. It seems to me impossible to accept this view of the section on the plain meaning of the expression “on such registration”. Mr. Sitarama Rao, however, argues that his contention is reasonable because the only point which the Collector has to decide is whether more than two-thirds of the members of the tarwad actually signed the application to him. I agree that the argument is a reasonable one if all the Collector has to decide is the intention and attitude of the members of the tarwad on the date of the application. But a further scrutiny of S. 43(3) will show that the Collector must also be satisfied that on the date when he does register the tarwad as impartible, they are of the same mind as they were when they signed the petition:—
“If, after giving notice to all the major members of the tarwad and making such inquiry as he deems fit, the Collector is satisfied that not less than two-thirds of the major members of the tarwad have signed the petition with their free consent and desire”—(it is to be particularly noted that the present tense is used here), “for the registration of the tarwad as impartible, he shall register the tarwad as impartible.”
I am therefore clearly of opinion that the right to partition granted by Chap. VI cannot be taken away until the actual registration by the Collector under S. 43 and that any exercise of that right which has been carried into effect before registration is not affected by it. Finally Mr. Sitarama Rao argues that the whole question is subject to the provisions of S. 52 of the Transfer of Property Act. It is true that for certain purposes S. 45 does invest the Collector under this Chapter with the powers of a Court and declares that the proceeding before him shall be deemed to be a judicial proceeding. But I am not satisfied that there is sufficiently express language here used to bring the Collector's enquiry within the scope of S. 52 of the Transfer of Property Act. There is no authority yet available in support of this argument, and I see no reason why I should accept it.
In the result, the order of the learned District Judge seems to me to be right and this appeal fails, and is dismissed with costs.
(Leave to appeal granted).
Appeal dismissed.
N.R.R