Ramachandran & Ors. vs Vijayan & Ors.

Held: The minority opinion of the Full Bench of Kerala High Court in Mary Cheriyan case correctly holds that if at the time of partition the female is single, she continues to hold the property as her own, even if she has children in the future – Partition alters the nature of the property from, at one point being jointly held property or tharwad to a property held solely by her – In order for a thavazhi (branches of tharwad) to be formed, there has to be at least one female and her successive generation, either male or female, in the generation immediately succeeding and thereafter progeny of the female line – The majority view in Mary Cheriyan falters for in their understanding one single female is sufficient to form a thavazhi – ‘PA’ and her descendants formed a thavazhi and had received the scheduled properties under item No.1 collectively (two sets of scheduled properties being item No.1 and item No.2) – Further, the divergence of opinion between the minority and majority was in respect of single female(s) receiving property in partition which is not the case here – All five Judges were ad idem when it comes to property being received at partition by females and members of her thavazhi – Since the properties were received by the thavazhi and not by a woman who is single, the property is unquestionably tharwad property – The fact that branch 5 (‘PA’ and her children) held the property jointly is supported by the fact that the compromise deed, which granted them the said property, was never challenged – The appointment of one of the sons of ‘PA’ as karanavan also manifests the intention that the parties wished to jointly hold the property as tharwad – The original defendants’ reliance on the minority view is thus, misplaced as the difference of opinion was only with respect to inheritance by single females and not thavazhis – Though on the point of law, the minority view of the Full Bench of the Kerala High Court in Mary Cheriyan case is upheld, on facts, the finding about which all five judges were ad idem applies – The pronouncement of law in this judgment to apply prospectively – Preliminary decree passed by the Trial Court and upheld by the High Court affirmed. [Paras 32, 43, 45-47, 58] Marumakkathayam law – Devolution of property – Whether, in the present facts, ‘PA’ had the legal right to transfer the entire property of her son to her daughter-in-law and grandchildren by way of a mortgage deed or was her right only limited to one-sixth of the property as contended by the original defendants: Held: ‘PA’, after the death of her son ‘P’, received the property in her own right – Apart from a few transactions, no other evidence was placed on record to prove that property was Putravakasha and not Marumakkathayam - ‘PA’ executed the mortgage deed in favour of her daughter-in-law and her minor children – The possession was given to the mortgagee and it was never redeemed – Trial Court held that as per the evidence on record the plaint schedule second item property also belonged to the tavazhy of ‘PA’ – Findings with respect to schedule properties in item No.2 concurred by High Court – Concurrent findings of fact not disturbed. [Paras 49, 53, 57] Constitution of India – Article 136 – Exercise of power under, interference with concurrent findings of fact – When – Discussed.

Marumakkathayam Customary Law – Concepts of – Discussed. Words and Phrases – ‘Partition’ – Discussed – Hindu Succession Act, 1956.