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CASE NO.: Appeal (civil)  7424 of 2002

PETITIONER: T. Madhava Kurup                                                      

RESPONDENT: T.C. Madhava Kurup (D) by Lrs. & Ors.              

DATE OF JUDGMENT: 05/04/2006

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T  

B.P. SINGH, J.

       This appeal by special leave is directed against the judgment  and order of the High Court of Kerala at Ernakulam in A.S.No.188 of  1990 dated 29th June, 2001 allowing the appeal and dismissing the  suit for partition filed by the appellant herein.  The question which  arises for consideration in the instant appeal is whether the suit  properties being Tavazhi properties devolved on the two surviving  male members of the Tavazhi after the death of the last female  member as co-owners, or whether the suit properties devolved upon  the last surviving male owner by survivorship who acquired the same  as his absolute property.  The trial court held that the last two  surviving male members of the Tavazhi took the suit properties as co- owners, and upon the death of one of them the properties devolved  upon his heirs, who were entitled to maintain a suit for partition. The  High Court reversing the finding held that the Tavazhi continued to  exist despite the death of the last female member, and that the last  surviving member of the Tavazhi, if a male, took it as absolute  property.  The heirs of the male member, who pre-deceased the last  surviving male member, acquired no right in the suit properties and  could not, therefore, maintain a suit for partition and separate  possession.

The facts of the case are not in dispute and may be briefly  noticed.          The Vattiyot Tavazhi belonged to Ummamma Amma, who had  a son Krishnan Nair and a daughter Mathu Amma.  After the death of  Ummamma Amma , the Tavazhi consisted of Krishnan Nair and his  sister Mathu Amma along with her three sons and a daughter.   Krishnan Nair died in the year 1934.  A son and a daughter of Mathu  Amma pre-deceased her without any issue.  The Tavazhi then  consisted of Mathu Amma with her two sons Balakrishnan Nair and  Appa Nair.  Mathu Amma died in the year 1944 leaving behind her  two sons and their heirs.  The Tavazhi, therefore, consisted of no  female member but only two male members.  Balakrishnan Nair died  in the year 1950 and Appa Nair, the last surviving member died in the  year 1967.         The plaintiffs belonging to the branch of Balakrishnan Nair  filed a suit for partition against defendents 1 to 4 belonging to the  branch of Appa Nair.  It appears that during his life time Appa Nair  had bequeathed some of the properties under a Will in favour of  defendants 4 to 8 as also to the second defendant.  He had also gifted  some of the suit properties to the 4th defendant.  The question which  arose for consideration was whether after the death of Mathu Amma,

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the last female member of the Tavazhi, her two sons took the suit  properties as co-owners, or whether the suit properties continued as  Tavazhi in their hands and ultimately vested in Appa Nair, the last  surviving member of the Tavazhi.   

The plaintiffs claiming 2/6th share in the suit properties filed  the suit which was decreed by the trial court, but dismissed by the  High Court.  Counsel for the appellant submitted that upon the death  of the last female member of the Tavazhi, the Tavazhi properties  devolved on the surviving male members as co-owners.   According to  him, since the Tavazhi did not consist of any female member, it ceased  to exist as a Tavazhi and, therefore, the Tavazhi properties devolved  upon the surviving male members by inheritance and not by  survivorship.  Reliance was placed upon authorities in support of this  proposition.   

       On the other hand, counsel for the respondents submitted that  in the absence of a female member the Tavazhi properties became  absolute property in the hands of the last surviving male member of  the Tavazhi who could dispose it of as he liked.  The Tavazhi  continued so long as any member of the Tavazhi was alive.  In the  hands of the last surviving male member of the Tavazhi, the Tavazhi  property became his absolute property.  If there was no disposition by  the last surviving male member, the doctrine of escheat applied.   

       It was urged on behalf of the appellant that the High Court  erred in holding that after the death of the last female member of the  Tavazhi, the Tavazhi continued consisting of only two male members,  and that only upon the death of one of them, the sole surviving  member of the Tavazhi became the absolute owner of the Tavazhi  properties.  According to the appellant the settled position in law   under the Marumakkathayam  system of inheritance is that the  descent of property is through female and in the absence of a female  member of the Tavazhi, the Tavazhi itself comes to an end and the  male members inherit the property as co-owners.  The rule of  survivorship does not operate after the death of the last female  member of the Tavazhi.   

       We may refer to the decisions relied upon by the parties.

       Counsel for the appellant heavily relied upon a Division Bench  judgment of the Kerala High Court in Balachandran  vs.  Sankaran  Nair :  1985 KLT 459.  That was a case in which the  Marumakkathayi female died leaving behind two sons and no female  heir.  It is no doubt true that in that case Kalliani Amma, the  Marumakkathayi, was possessed of self-acquired properties, which  exclusively belonged to her and not to the Tavazhi consisting of  Kalliani Amma and her two sons.  The High Court held that  inheritance to the plaint scheduled property, which was her separate  property and not Tavazhi property, would descend to her close heirs  or to her Tavazhi.  Reliance was placed on a Full Bench decision of  the Madras High Court in  Krishnan  vs.  Damodaran : ILR 38  Madras 48.  The learned Judges, however, held that since Kalliani  Amma left behind only two sons as her heirs, there was no question of  her sons inheriting the property as Tavazhi since there was no female  for the purpose of constituting or continuing the Tavazhi.  Therefore,  by no stretch of imagination it could be said that they inherited the  property as Tavazhi with the incidents of survivorship.  The learned  Judges went on to observe :-

"But it is only common knowledge that two surviving  males by themselves cannot constitute or continue a  tavazhi.  If there is no question of inheriting the property  as tavazhi, the position is that the two sons take  individually.  They inherited the property as the nearest

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heirs of the deceased Marumakkathayi female.  It is  beyond doubt that they take the property as tenants in  common.   There is no question of survivorship."   

The principle as enunciated in this decision certainly supports  the case of the appellant that after the death of last female member of  the Tavazhi, the Tavazhi itself came to an end and the surviving male  members took the Tavazhi properties as co-owners.  

Learned counsel for the respondents submitted that the  principle laid down in the aforesaid judgment cannot be applied to the  facts of the instant case because the aforesaid decision related to  property which was the separate property of Marumakkathayi female  and not Tavazhi property; whereas in the instant case, we are  admittedly concerned with the Tavazhi property.  Assuming it to be  so, the learned Judges held, following the Full Bench decision of the  High Court of Madras that self acquisition of female member would  descend to her close heir or her Tavazhi.  Since no Tavazhi existed  after the death of the last female member of the Tavazhi, there was no  question of the properties descending on the Tavazhi.  There were  only two male members, who could neither constitute nor continue the  Tavazhi.  In these circumstances it was held that the property  devolved upon them by inheritance as the close heirs of the deceased  Marumakkathayi female.     

Learned counsel for the respondents relied upon decisions  which took the view that the last surviving member of a Tavazhi has  the absolute right to dispose of the property in the manner he likes  since the Tavazhi properties descend upon him by survivorship and in  the absence of any female member of the Tavazhi, he has the  absolute  right to dispose of the same in the manner he likes.  On his failure to  do so, the law of escheat may apply.  The legal proposition so  enunciated by the respondents is not even disputed by the appellant  since that is the settled position in law.  The question, however, is  where only two male members survive, whether the law of  survivorship will still apply so as to make the last surviving member  the absolute owner of the property.  The Division Bench decision to  which we have referred earlier answer the question in the negative  and, in our view, rightly so.

       The respondents placed reliance on a decision of the Privy  Council in Thiruthipalli Raman Menon and others   vs.   Variangattil  Palisseri Raman Menon : ILR 24 (1901) Madras 73.  That was a case  where the tarwad was reduced in number to the karnavan himself and  one anandravan.  The karnavan adopted at his own discretion, and  without consent of the latter, 4 persons with a view to be the   members of the tarwad.  The adoptions were challenged on the ground  that he could not make the adoptions without the consent of the other  surviving male member, in the absence of any proved custom  authorizing adoption by the karnavan alone.  The Privy Council held  that though the last karnavan may have such a power to him alone  with a view, as being essential, to preserve the tarwad, but in that case  the last karnanan had not been reached, and the adoption by the  actual one acting alone without the consent of the surviving  anandravan was, therefore, invalid.   Relying upon this decision the  respondents contended that it must logically follow that even in the  absence of a female member, the tarwad continued and the karnavan  had not acquired absolute authority to act in the manner he liked in  relation to the tarwad or the tarwad properties.  Therefore, the law of  survivorship operated and the tarwad property vested absolutely in the  last surviving male member of the tarwad.  It is not possible to read  into the judgment any such principle.  Apparently the parties  proceeded on the basis that the tarwad continued to exists even in the  absence of a female member.  The question that has arisen in the  instant appeal did not fall for consideration in the aforesaid decision of

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the Privy Council.  The question was never urged before it.  The only  other decision on which the respondents have relied is Alami  vs.   Komu and another :  ILR 12 (1889) Madras 126.  This decision does  not help the respondents because the question which has arisen for  consideration in this appeal did not arise for consideration, and all that  the High Court held was that the last surviving member of a Malabar  tarwad can make a valid testamentary disposition of the tarwad  properties.            In the instant case the High Court distinguished the decision in  Balachandran (supra) observing that the question which arose for  consideration in that case related to devolution of self acquired  property of a Marumakkathayi female, and not in relation to Tavazhi  property, and the question whether the tarwad can consist of only two  male members did not expressly arise for consideration.  It further  drew support from the decision of this Court in Gowli Buddanna  vs.   Commissioner of Income Tax, Mysore  : AIR 1966 SC 1523 wherein  in the context of the Income Tax Act, it was observed that under  Hindu Law a joint family may consist of a single male member and  widows of deceased male members.  Inferentially, the High Court  concluded that under the Marumakkathayam Law as well, a single  male member could constitute a tarwad.  In doing so, the High Court  lost sight of the vital distinction between the two that while under the  Hindu Law descent is traced through males, in the  Marumakkathayam system of inheritance, it is traced through  females.  In the case of a Hindu Joint Family a single male coparcener  may continue the coparcenary with his sons who may be born later,  but in the absence of a female member a Tavazhi cannot be continued  by male members alone.  The comparison is, therefore, not apposite.   Different considerations may arise if the sole surviving member of the  Tavazhi is a female.   

       We find that the observations in Balachandran (supra) are  supported by good reason.  If the descent is traceable only through  females, in the absence of a female member, the Tavazhi must come to  an end with no chance of there being a female member to continue the  line.  The rule of survivorship in such circumstances ceases to operate  and the surviving male members, in the absence of a Tavazhi, must  inherit the property as tenants in common, and share it equally.  No  authority was cited before us which takes a different view.   

       In the result this appeal is allowed.  The judgment and decree of  the High Court is set aside and that of the trial court decreeing the suit  restored.  There will be no order as to costs.