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Case Number

Second Appeal No. 258 of 1933.

Advocates

Mr. P. Govinda Menon for the Appellant.
Mr. C.S Krishnamurthy for the Respondents.

Judges

Venkataramana Rao, J.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This second appeal concerns the nature and extent of the interest possessed by defendant 2 in certain properties (one being a boat) left by the deceased Kunhikutti by a registered will dated 27 December 1923. The plaintiff, defendant 2, and the deceased Kunhikutti were members of a tavazhi governed by Marumakkathayam law. The will identified a number of named persons (including defendant 2, referred to as No. 1 Amabadi) and provided for management and enjoyment of the properties in a manner resembling tarwad/tavazhi holdings, along with restrictions on alienation and borrowing.

Two of the legatees named in the will (Nos. 3 and 7) were Christians at the date of the will. The lower Court (learned District Judge) held that the gifts were to the tavazhi and that the convert members could continue as members of the tavazhi, relying on Pathumma v. Raman Nambiar (1921) 8 A.I.R. Mad 224. Defendant 1 (the appellant) challenged that conclusion in this appeal, arguing that the converts could not be tavazhi members and that defendant 2 therefore had an individual severable interest that could be attached and sold in execution of a decree.

The appellate court considered whether the legatees took the property as tavazhi property or as tenants-in-common, whether the converts remained tavazhi members after conversion, and the legal consequences for attachment and sale of the boat in execution of a decree against defendant 2.

Legal Issues Presented

What is the nature and extent of the interest possessed by defendant 2 (No. 1 Amabadi) in the properties devised by the will of Kunhikutti?
Were the legatees intended to take the property as tavazhi (tarwad) property with the incidents of tarwad ownership, or as tenants-in-common holding several shares?
Does conversion to Christianity by two of the named legatees affect their status as members of the tavazhi and thereby affect the character of the gift?
Can defendant 1 (the decree-holder) seize and sell the boat as execution against defendant 2's interest?

Arguments of the Parties

Plaintiff's Arguments

The properties were devised to the tavazhi as such, meaning they were intended to be held and managed as tarwad/tavazhi property under the Marumakkathayam law.
Accordingly, defendant 2 had no individual, severable interest in the properties which could be attached or sold; the attachment of the boat by defendant 1 was therefore invalid and inoperative.

Defendant 1's Arguments (as presented by Mr. Govinda Menon)

Two of the legatees named in the will were Christians on the date of the will and therefore could not be members of the tavazhi along with the other (non-convert) legatees.
Because those converts could not be tavazhi members, the group of named legatees did not constitute a tavazhi; therefore the gift was not truly to a tavazhi as such.
Consequently, defendant 2 had an individual interest that could be attached and sold by defendant 1 in execution of a decree.

Argument Advanced by Mr. Krishnamurti

Even if the two convert members could not be members of the tavazhi after their conversion, the remaining members (non-converts) nevertheless constitute a tavazhi and must be deemed to have continued as such; therefore the gift should be construed as a gift to the tavazhi and to the two converts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pathumma v. Raman Nambiar (1921) 8 A.I.R. Mad 224	Considered for the proposition that in spite of conversion survivorship is not lost; relied on by the lower Court to hold that converts could continue as tavazhi members.	The appellate court treated the observation that survivorship is not lost as obiter and stated that this observation is not correct. The court rejected the lower Court's application of Pathumma to hold the converts remained tavazhi members.
C. Abraham v. F. Abraham (1861-63) 9 M.I.A. 195	Described the legal effect of conversion: conversion dissolves the tie binding the undivided family and its attendant obligations; parcenership is governed by Hindu law and severance recognised by Hindu law ends the partnership.	The court relied on this passage to conclude that conversion severs the relationship that creates the tarwad/tavazhi status and hence the converts ceased to be members of the tavazhi.
Kunhichekkan v. Lydia Arucanden (1912) M.W.N. 386	Held (by a Division Bench) that on conversion the incident of survivorship would no longer subsist and the convert becomes a tenant-in-common entitled to claim partition; observed that survivorship attached to property as a feature of a joint family and ceased when the family ceased.	The court cited this decision to support the principle that survivorship and other incidents of joint family ownership depend on the continued existence of the undivided family; the opinion aligns with the view that conversion ends the undivided status and thus those incidents.
Katama Natchiar v. The Raja of Shivaganga (1861-63) 9 M.I.A. 539	Explained that according to Hindu law there is coparcenary between members of an undivided family and survivorship follows upon it; if there is no united family, there can be no survivorship.	The court used this principle to reinforce that survivorship and related incidents cannot subsist where the family unit (tarwad) has been severed by conversion.
Chakkra Khannan v. Kunhi Pokker (1916) 3 A.I.R. Mad 391	Raised a presumption that where property is given to persons who are members of a Malabar tarwad, the donees are intended to take the property with the incidents of tarwad property.	The court invoked this presumption but held that the presumption does not apply if in law the named persons could not, together, constitute a tavazhi (as here, because of conversion). Thus the gift must be construed as to named legatees, not as to a tavazhi.
Act 21 of 1850	Preserves certain rights for converts: though conversion dissolves tarwad status, the convert may retain rights to provision for residence and maintenance from tarwad property existing at the date of conversion and additions thereto with income.	The court explained that Act 21 of 1850 preserved certain contingent property rights for converts but did not preserve the status of being a member of the tarwad or incidents dependent on that status (e.g., survivorship as an incident of an undivided family).

Court's Reasoning and Analysis

The court proceeded through a structured analysis rooted in the nature of a Malabar tarwad/tavazhi and the legal effect of conversion:

Nature of tavazhi/tarwad: The court characterized a Malabar tarwad/tavazhi as a corporate-like unit (analogous to a Mitakshara joint family) in which members share food, worship and estate; property is impartible except by consent of all members; individual members have no definite share nor a right to obtain partition or enforce a share by suit. Management rights are vested in the senior male (karnavan) with certain managerial/alienation powers.
Effect of conversion: The court relied on established authority (notably C. Abraham v. F. Abraham and Katama Natchiar) to conclude that conversion to an alien religion severs the tie that binds the undivided family. The obligations and incidents that flow from the status of membership end as to the convert. Though Act 21 of 1850 preserves certain rights of provision and maintenance for converts, it does not preserve the convert's status as a member of the tarwad or incidents dependent on that status.
On competing authorities: The court considered Kunhichekkan v. Lydia Arucanden (which viewed converts as becoming tenants-in-common able to claim partition) and contrasted it with Pathumma v. Raman Nambiar. The court observed that Pathumma's statement that survivorship is not lost was obiter and, with respect, incorrect.
Application to the will and its wording: Because two of the named legatees were converts at the date of the will, they could not in law be members of the tavazhi along with the other legatees. Consequently, the named legatees did not, together, constitute a tavazhi; the presumption that a gift to persons who are members of a tarwad is to be taken as a gift to a tarwad could not operate in favour of treating these donees collectively as a tavazhi.
Construction of the gift: The court held there were no express words conferring the property on the tavazhi as such. Because the law will not permit the testator to constitute persons into a tavazhi by his own act where in law they cannot be such, the operative portion of the gift must be construed as a gift to the named legatees (and persons to be born). The gift to unborn persons cannot take effect in that respect, but the gift does not fail for that reason.
Resulting proprietary character: The court concluded that the named legatees (and the surviving children of female members alive at the testator's death) take as tenants-in-common with several shares. The testator's attempted restrictions and limitations to enforce a tavazhi-like holding were invalid because the law would not permit creation of such a tavazhi by the testator in the circumstances. Defendant 2 therefore has a several interest (a severable share), the precise fraction depending on the number of takers (e.g., whether any issue of the female legatees was born before the testator's death).
Procedural/consequential reasoning: Because defendant 2 has a severable interest, defendant 1 is entitled to attach and sell defendant 2's interest (including the boat) in execution of a decree obtained against him. The court found it unnecessary to decide the separate argument based on section 39 of the Marumakkathayam Act.

Holding and Implications

Holding: The appellate court set aside the decree of the learned District Judge and held that defendant 1 is entitled to attach and sell defendant 2's interest in the suit property in execution of the decree obtained against him. The respondents were ordered to pay the costs of the appellant here and in the Court below.

Implications:

Direct effect on the parties: Defendant 2 is recognized as possessing a several (severable) interest in the properties devised by the will; defendant 1 may execute against that interest, including seizure and sale of the boat. The respondents must pay costs in favour of the appellant.
Treatment of the will and legal status: The court held that where some named legatees cannot, in law, together constitute a tavazhi (because some had converted), the presumption that a gift is to a tarwad does not apply; the gift must be construed as to the named legatees who take as tenants-in-common to the extent they are capable of taking.
On precedent and broader law: The court rejected as obiter the observation in Pathumma v. Raman Nambiar that survivorship is not lost on conversion and reaffirmed that conversion severs the relationship that creates tarwad/tavazhi status; Act 21 of 1850 preserves certain contingent maintenance rights for converts but not tarwad status or incidents dependent on it. The opinion therefore clarifies the court's view of the legal effect of conversion on tarwad membership in the context of testamentary gifts.

Note: This summary is drawn exclusively from the provided opinion text and does not introduce facts or inferences beyond what the opinion itself contains.

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Adam Haji Peer Muhammad Issac Sait Through Registered Muktiar Agent Valli Muhammad Ahammad Gogan Sait v. Pattakkarantavita Kunkan And Others S

1. The question in this second appeal is what is the nature and extent of interest possessed by defendant 2 in certain properties, one of which is a boat, the subject matter of this appeal, left by one Kunhikutti. The plaintiff, defendant 2, and the deceased Kunhikutti formed members of a tavazhi following the Marumak-kathayam law. Before his death, the said Kunhikutti disposed of his properties by a registered will dated 27th December 1923. His object was to benefit the members of his tavazhi. This is clear from the following preamble to the will:

I should make certain settlements regarding the claimants who are to enjoy the ownership right of my self-acquired properties alter my death.

2. After stating that the property possessed by him was his self-acquired property and that it should be enjoyed by him till his death, he specifies the persons to whom it should go after his death thus:

And after my death, my brother (1) Amabadi, (2) younger brother Chandu, (3) nephew Manickam's son Raman alias Joseph Sadanandan, (4) younger brother Kunkan, (5) younger brothel Ryru, (6) younger brother Sankaran, (7) Achuthan alias Benjamin Sadanandan, (8) nephew Kunhi Pennu'a son Andi, (9) Kunhi Pennu, (10) Cheeru, (11) Korumbi, (12) Kunhi Pennu, (13) Kaliyani, (14) Madhavi and the Santhanama of the female members among them who are already born and who are yet to be born, are the claimants of the said properties.

(No. 1 Amabadi is defendant 2 in the suit.) Then he provides for the maintenance and enjoyment of the said property thus:

My representative No. 1 is to hold the said properties and cause them to be held. He should pay the jenmi purappad, efiect renewals of the said properties by entering into agreement with the jenmis, manage the odams (boats) and the nets, hold the mudaruthi pattam, collect the out standings to be recovered, effect repairs to the nets whenever they get damaged, manage the Sardine Press and take the proceeds and protect the other members according to the income and enjoy the said properties. And after the death of No. 1, the male members out of the members from No. 2 onwards aforesaid and after their death the male issues in the females who are now living and those that are to be born should manage the properties according to their seniority. And in default of male issue, the females, according to their seniority, should hold the properties and cause them to be held according to the Marumakkatbayam law of inheritance and take the income there from and enjoy the same. And when it becomes necessary that a loan had to be raised, all the then members, both male and females who 'have attained their majority, should join together and execute a document under their joint signatures. And all the debts and alienations otherwise incurred or effected will not be binding either en the properties or on other members and they will not be liable there for. As the major income to protect the members aforesaid are to be derived from the boats and nets, the male members and other than Nos. 3, 7 and 8 should exert themselves to the top of their capability in the management and work and protect the members of the family as aforesaid. In case the remaining members are cot prepared to do so, such anandiravans should be excluded from the properties by a registered notice executed jointly by all the remaining members. And if they are so excluded, they will be devoid of any right over the said properties and on the annual income therefrom.

3. Nos. 3 and 7 referred to above are the sons of two of his nephews, namely Joseph Sadanandan and Benjamin Sadanandan who are Christians by religion. On a reading of the will, there can be no doubt that what the testator intended was that the property should be owned and enjoyed by all the members of the tavazhi to which he belonged and that it should be possessed and managed after the manner of tarwad property in accordance with the rules of the Marumakkathayam law by which he was governed, with certain restrictions in regard to the management regarding loans and alienations. It is also evident that the testator regarded the said Joseph and Benjamin as members of his tavazhi and intended to benefit them. The question now is has defendant 2 any individual interest in the properties devised? Can defendant 1 seize and sell the boat in execution of a decree obtained against defendant 2 ? The contention of the plaintiffs is that the properties are devised to the tavazhi as such, that defendant 2 has no individual interest therein which could become the subject of sale and the attachment of this boat by defendant 1 is invalid Bad inoperative. The crucial question is, was the property taken by defendant 2 and other legatees as tavazhi property or as tenants-in-common owning a several share therein? This again is dependent on another question whether the legatees were members of a tavazhi. The lower Court answered the question in the affirmative relying on Pathumma v. Raman Nambiar (1921) 8 A.I.R. Mad 224. This is canvassed by Mr. Govinda Menon on behalf of defendant 1. His argument is that two of the legatees, who are admittedly Christians on the date of the will cannot be members of the tavazhi along with the other legatees; that they cannot together in law form a tavazhi and that the view of the lower Appellate Court that in spite of the conversion to Christianity a person can continue to be a member of a tavazhi is unsound and the gift therefore is not to the tavazhi as such.

4. To test the soundness of this contention, it is necessary to examine what the legal effect of the conversion of a member of a tarwad or tavazhi on the holding of the property by such a tavazhi or tarwad is. A Malabar tarwad or tavazhi is a corporate unit just like the Mitakshara joint Hindu family. The members are joint in food, worship and estate but the property held by them is impartible except with the consent of all the members. No individual member has any definite share therein nor can he enforce a right to a share by partition. The mode in which the proprietary right is enjoyed is by participating in the enjoyment of the family property, and provision is made sometimes for maintenance and other expenses which in law are strictly in exercise of a proprietary right. The right of management is vested in the senior male member called karnawan who has got certain rights of alienation analogous to the powers possessed by a manager of a joint Hindu family. His right to management is unrestricted except in cases where he is guilty of waste or makes some alienations not for the benefit of the family when the junior members of the family have got a right to interdict by taking appropriate proceedings in a Court of law. The right possessed by an individual member ensures only for his life. Neither the principle of the right of representation nor the principle of survivorship as known to Mitakshara law exists, but the birth or the death of a member may affect the other members in the extent of beneficial enjoyment of the tarwad property or the death of a member leaving property which lapses to the tarwad may enable the other members to share in the enjoyment thereof also with the rest of the tarwad property. The rights and obligations flow out of the status of being a member of a tarwad, Once it comes to an end by any means known to the law, they can neither be enjoyed nor enforced. Conversion to any alien religion is one of the modes which puts an end to the status. The effect of conversion with reference to the position of an undivided family governed by Hindu law is thus stated by their Lordships of the Judicial Committee in C. Abraham v. F. Abraham (1861-63) 9 M.I.A. 195 at page 237 thus:

The tie which bound the family together is, so fat as he is concerned, not only loosened, but dissolved. The obligations consequent upon and connected with the tie must...be dissolved.

5. They again observe:

Parcenership, understood in the sense in which their Lordships here use the term, as expressing the rights and obligations growing out of the status of an undivided family, is the creature of, and must be governed by, the Hindu law. Parcenership may be put an end to by a severance effected by partition; it must, as their Lordships think, equally be put an end to by severance which the Hindu law recognizes and creates.

6. It therefore cannot be disputed that the the which bound the tavazhi together, on conversion of the said two members, so far as they are concerned, became dissolved and they could no longer be members of the tavazhi. Their rights and obligations incident to their status as members of the tavazhi must therefore cease. If the strict Hindu law be applied, they would not only become divided in status but would forfeit all rights to their tarwad property; but Act 21 of 1850 preserved their right to the property in that they could still continue to possess the rights incidental to their ownership, that is, the right to have provision made for their residence and maintenance from and out of the property possessed by the tarwad at the date of the conversion and any additions made thereto with the income thereon. But the Act does not preserve their status as a member of the tarwad or the incidents appropriate is and dependent thereon. To illustrate, if a member of a tarwad dies leaving his self-acquired properties un-disposed of, they lapse to the tarwad and any member of the tarwad gets the benefit of such acquisition but the convert by ceasing to be a member of the tarwad cannot participate in the enjoyment of the said property by reason of the severance of the status. In Kunhichekkan v. Lydia Arucanden (1912) M.W.N. 386," a Division Bench took the view that on conversion the incident of survivorship would no longer subsist, the convert becomes a tenant-in-common and is entitled to claim partition. This view was dissented from in Pathumma v. Raman Nambiar (1921) 8 A.I.R. Mad 224 where it was pointed out that Act 21 of 1850 does not enlarge the rights which a member had before conversion and what was impartible cannot be rendered partible by reason of the conversion. The use of the terms, 'tenancy-in-common" and "survivorship" with reference to the members of a Malabar tarwad, if I may say so with respect, is not strictly accurate. What does really happen on conversion is that the joint status is severed and the property possessed by the tarwad cannot thereafter be held by the remaining members of the tarwad along with the convert as members of a tarwad. The decision in Pathumma v. Raman Nambiar (1921) 8 A.I.R. Mad 224 does not lay down that in spite of conversion, a member continues to be a member of a tarwad as assumed by the learned District Judge. Again, where there is no right to partition, there is no right of survivorship. In a Mitakshara undivided family, it is the right to partition which determines the right to take by survivorship. The right possessed by an individual member in a Malabar tarwad ceases with his life and there is no devolution of an undivided interest as in a Mitakshara family. Even if the principle of survivor, ship is held applicable to a Malabar tarwad, it can only subsist so long as the undivided status subsists. As observed by their Lordships of the Privy Council in Katama Natchiar v. The Raja of Shivaganga (1861-63) 9 M.I.A. 539 at p. 611, according to the principles of Hindu law, there is coparcener ship between the different members of a untied family and survivorship following upon it, (The italics are mine). From this, it follows that if there is no united family, there can be no survivorship. This is also the view of the Division Bench in Kunhichekkan v. Lydia Arucanden (1912) M.W.N. 386 where the learned Judges observe at page 390 thus:

The incident of survivorship was one which attached to the property on account of its being owned by the members of a joint Hindu family, When the Hindu family ceased to exist, the incident of survivorship ceased to exist.

7. Act 21 of 1850 cannot preserve the right which is contingent and dependent on the continued subsistence of a particular relationship which is not saved by the Act. The observation of Wallis Pathumma v. Raman Nambiar (1921) 8 A.I.R. Mad 224 that survivorship is not lost is obiter and if I may say so with respect, not correct. Thus the correct legal position occupied by the members of the tavazhi to which the testator belonged on the date of the will is that the two members who became converts do not belong to the said tavazhi and the legatees specified in the will together cannot and do not form a tavazhi. Where there is a gift to persons who are members of a Malabar tarwad, a presumption is raised that the donees are intended to take the property with the incidents of tarwad property: Chakkra Khannan v. Kunhi Pokker (1916) 3 A.I.R. Mad 391. As Sriniyasa Ayyangar J. points out in that case, which was a case of a gift by a member of a Malabar tarwad to his wife and children :

It is not the giving of properties by a person to his wife and children that constitutes them a tarwad or tavazhi, but that if properties are given to a wife and children following the Marumak-kathayam law, they as a tavazhi hold those properties with the incidents of tarwad property.

8. The gift under such circumstances is presumed to have been made to an entity which is called a tarwad or tavazhi. In the present will, there are no express words conferring the property on the tavazhi as such. Of course all the legatees mentioned therein, but for the conversion of the two members, will together constitute the tavazhi. But if in law they could not form a tavazhi, the presumption should not be given effect to. The operative portion of the gift must therefore be construed as a gift to certain named or existing legatees and persons to be born. The gift to unborn persons cannot take effect but the gift cannot fail on that account. The named legatees and such of the children of the female members who were alive on the date of the death of the testator will take the properties as tenants-in-common. Though the primary intention may have been to benefit the members of the family as such, there is also a secondary intention to benefit those who can take. The limitations and restrictions in regard to the holding and enjoyment of the property would be invalid as the testator cannot by any act of his constitute certain members into a tavazhi for the law would not permit such a thing and it is not open to him to tie up the property in the manner ha has chosen to do. In this view, defendant 2 will be entitled to a several share and whether it is 1/14th or still less will depend upon whether there was any issue born to the female legatees who were alive on the date of the death of the testator.

9. In this view it is unnecessary for me to consider the argument based on section 39 of the marumakkathayam act which confers a right of partition on individual members of a tarwad in oases where there is any change of religion. Mr. Krishnamurti advanced a contention that even assuming the two convert members could not be members of the tavazhi after their conversion, the rest of the members constitute a tavazhi and must be deemed to have continued as such and the gift therefore must be construed as a gift to the tavazhi and the two converts. I am not inclined to agree with this contention. From the language employed in the will it is clear that no distinction was drawn between the members who were converts and the other members in regard to the nature of the gift and there was no intention to treat the members other than the two convert members as an entity. In the result, I set aside the decree of the learned District Judge and hold that defendant 1 is entitled to attach and sell defendant 2's interest in the suit property in execution of the decree obtained against him. The respondents will pay the costs of the appellant here and in the Court below.

Adam Haji Peer Muham... v. Pattakkarantavita Ku...