kalyani (dead) v. narayan==

8/8/2019 Kalyani (Dead) v. Narayan==

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2/16

The family is set in a background wherein the people

were governed by Marumakattayam branch of the

Hindu jurisprudence , prevelant in Kerela.

The family are ezhavas in matter of inheritance. This isa system of matrilinear succession in particular

however instances of patrilinear succession have also

been observed.

They are governed by Customary law but in its

absence, they are governed by the Mitakshara Law.


3/16

Krishnan

Wife 1 (unnamed) Wife 2-Valli

Karappan(son) 3 daughters

Wife 1-NaniWife 2-Ponni

Kesavan +

2

daughters

Madhavan(dead) Husband

of Def3, F/O def 4,5,6

Raman husband of Kalyani(plaintiff)

ShankaranDef 2Krishnan-Def 1

4 Daughters


4/16

25 January,1910- Karappan executed a registered deedvariously described as a will or a deed of partition orevidencing family arrangement.(referred to as ExtP-1)

He specified that the reason for this execution was hisill health and that till he is alive, he will have the full

power of disposition over all property and after hisdeath it will be vested in the individuals in thefollowing manner to avoid any conflicts.

He divided the property in the following manner:

Subjoint Schedules A &B- Rs 8000( consist of the tarvadi.e. family property and self acquired property)

Schedule C-Rs200(consist of common property)


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Out of Rs8000---

Rs.1300 to vest in each of the male issues

Rs.300 for the first wife

Rs.1000 for the second wife

Rs200 for his fathers second wife i.e. his step mother


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Karappan died in 1910.

His third son-Raman died in 1936.

Kesavan, S/o the second wife left the house with his

share of property. Kalyani-the widow of Raman sued for partition

demanding her th share in the property.


7/16

Ext. P-1 is neither effective as a Will nor as a deed ofpartition.

It was held that Ext. P-1 had the effect of constituting acoparcenary of four brothers, sons of first wife of Karappanand that it was their joint family property and they did nothold as tenants-in-common but as joint tenants and weregoverned by survivorship in the matter of succession.(Thiswas w.r.t. schedule A properties)

Held that schedule Band C properties belonged exclusively toDef 1 and his wife. Thus, no claim can be made.

Contention that widow would still get her share because ofcustomary rights was negated.

Suit was dismissed


8/16

Agreed with the findings of the Trial Court.

Accepted Ext.P-1 as an important evidence of thefamily arrangement being per branches and held itto be binding in the following manner-

Branch 1- The 4 sons by his first wife

Branch 2 The only son by the second wife

Held that succession was governed by survivorship andplaintiff can not claim any share in the

property(w.r.t.schedule A). She had filed another suit w.r.t. Schedule C

properties and there was a final decree granted inher favour.


9/16

Whether under the Mitakshara Law the parties are governed bycustomary law, and, in the absence of any rule of customary law onthe point in question, by Mitakshara Law property can be divided,albeit by a family settlement, between two artificial units of a

joint family, one comprising the sons of a father by his first wife,

the first wife and his step mother, and the other comprising hisson by his second wife and the second wife so as to constitute eachunit into a coparcenary with rights of survivorship between itsmembers?

2. Whether the use of the word 'tavazhi' in describing the two

units in the will, Ext. P-l left by the father and held to be the basis ofthe family settlement, is sufficient in the circumstances, toestablish an intention that the members of each unit were to takethe property as coparceners and not as tenants-in-common, thegrouping into units being only for convenient enjoyment?


10/16

If a hindu father governed by the mitakshara has

right to partition ancestral property without the

consent of his sons?

Yes. He has the right to do so, either in the case ofhimself and his sons or the sons inter-alia.

This concept extends to the self acquired property as

well as the ancestral property.

Also, such power is extended not only to the divisionby metes and bound but also by status.

(Maynes Hindu Law was referred )


11/16

Did Karappan exercise his power to partition his joint

family property by Ext P-1?

It was previously said that even though he had the

power to partition, he could not have done so withoutthe consent of his sons and if he made such an attempt,

it would have been unsuccessful.

The reasoning provided by the SC was that it was not

effective as a partition deed because the intention of

the testator had to be looked into.

Its clear that the reason behind the deed was to avoid

any future conflicts and that it would come into effect

only after his death and not to be partition presenti.


12/16

Does Ext P-1 furnish the evidence of family arrangement ?

To be effective as a family arrangement the deed must be oneintended to operate from the date of its execution, a feature wantingin Ext.P-1, and it must be assented to and acquiesced in and actedupon by all affected thereby. At the time of execution of Ext.P-1there is no evidence as to who were the adult members of thefamily other than Karappan who consented to the alleged family

arrangement.But there is no evidence about the age of other children ofKarappan. The only evidence as to the consent of the malemembers is that after the death of Karappan all male membersacted according to the wishes of Karappan as disclosed andordained in Ext.P-1.

We have grave doubt whether a Hindu father can impose familyarrangement sans direct evidence of consent of each of his sons, to beeffective after his death.

Therefore, Ext.P-1 does not furnish evidence of familyarrangement.


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Whether there was disruption of the JHF when

Kesavan left the house with his share?

One thing is crystal clear that Ext. P-l is not a deed of

partition in the sense it does not purport to divide the property

amongst various coparceners by metes and bounds. However,

in Hindu law qua joint family and joint family property theword 'partition' is understood in a special sense-If severance of

joint status is brought about by a deed, a writing or an

unequivocal declaration of intention to bring about such

disruption, qua the joint family, it constitutes partition

Intention by a member of a joint family to separate himself

from the family and this depends on the circum stances. Eg-

notice or by filing suit etc.


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There is no presumption that when one member separatesfrom others that the latter remained united; whether thelatter remain united or it must be decided on the facts ofeach case.

Except that four sons by Nani remained under one roofand were joint in food and laboured together there is noevidence that they agreed to constitute a coparcenaryassuming that a coparcenary a creature of law could becreated by agreement. And if Karappan specified even theshare of each of his sons by Nani in Ext. P-l, thisevidence of remaining together is hardly sufficient to

warrant a conclusion that these four sons constituted acoparcenary.

When Kesavan left, the disruption of status wascomplete.

Thus, there was disruption of joint family.


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Whether the branchwise division is valid(as

between the sons of the first wife and the second

wife?

It is unknown to mitakshara law and is wholly

untenable.

Now, if five sons of Karappan each constituted abranch, obviously after one son as a branch separated

unless a reunion is pleaded, other four cannot

constitute a corporate body like a coparcenary by

agreement or even by subsequent conduct of remaining

together enjoying the property together.

Thus, it is not to be interpreted as a branchwise

division but a specification of shares and once they

were defined by the father who had the power to

define the same.


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Thus it was held that the moment whenKesavan left with his share, the status of thepersons became tenants-in common and notjoint tenants.

Hence, Kalayani is entitled to the share of theSchedule A properties.

Defendant to pay the costs.

(There was a dispute as to who would be the L.R.of Kalyani as both the daughters had filed for thesame.However, the court admitted both as L.R.sand said that the one who could establish the samewith better evidence would get the share.)

kalyani (dead) v. narayan==

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