Full Judgment Text
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PETITIONER:
GOVIND POTTI GOVINDAN NAMBOODIRI
Vs.
RESPONDENT:
KESAVAN GOVINDAN POTTI & ORS.
DATE OF JUDGMENT22/07/1987
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1987 AIR 2276 1987 SCR (3) 615
1987 SCC (3) 668 JT 1987 (3) 128
1987 SCALE (2)98
ACT:
Kerala Nambudiri Act, 1958: Malayala Brahmins governed
by Hindu Law--Income earned from hereditory profession of
Malayala Brahmins--Properties purchased from such
income--Whether joint family properties.
Practice and procedure: Court not to be prisoner of
indecision-Clarity and promptness in decision of
court----Necessity for.
HEADNOTE:
The plaintiffs great grandfather executed a partition
deed Ex. P. 1 under which the properties acquired by him
were divided into four shares as described in Schedules A,
B, C & D and distributed to his sons and grandsons. The
plaintiff claimed in a suit for partition that plaint B
schedule properties consisting of properties in Schedules A
JUDGMENT:
plaint A schedule and hence they were also the illom proper-
ties in which he was entitled to share on per capita basis.
Defendants 1 to 10, 24 to 26 and 29 to 33 supported his
case. Defendants 11, 13, 16 to 21, 22 and 27 contended that
the plaintif’s great grandfather had no surplus income from
plaint A schedule properties and the acquisitions made by
him which were the subject matter of division under Ex. P. 1
were the separate properties.
The trial Court decreed the suit and held that parties
were governed by marumakkathayam Law and Plaint A schedule
properties were illom properties, that the plaintiff’s great
grandfather could get surplus income therefrom which was
utilised for purchasing properties dealt with under Ex. P. 1
and, therefore, the illom properties were available for
partition, and that, in any event, the parties by their
subsequent conduct appeared to have treated the properties
as illom properties and passed a preliminary decree for
partition on per capita basis.
The matter was taken in appeal to the High Court. Cross
Objection was also filed. The High Court held that there was
no acceptable evidence to show as to what were the proper-
ties allotted to the original testator for his maintenance
when he left his illom or the income there-
616
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from and that there was no material to prove that the plaint
A schedule properties were given to him for maintenance; nor
was there evidence to establish that the plaint B schedule
properties were acquired with the aid of surplus income from
plaint A schedule properties. With regard to properties
allotted to the testator’s grandson under Ex. P. 1 and his
subsequent conduct to treat the properties as joint family
properties, it held that firstly, there was no intention on
the part of the testator’s grandson to treat his properties
as illom properties, and secondly, even if he had such an
intention it would be doubtful whether the principle of
Hindu Law could be applied to the properties.
In appeal before this Court, it was urged that the High
Court proceeded on the wrong assumption that there was no
proof that the plaint A schedule properties were illom
properties that were given to the plaintiffs great grandfa-
ther for his maintenance.
Dismissing the appeal by special leave, this Court,
HELD: 1. Malayala Brahmins are governed by Hindu Law
unless they can be shown to have deviated in any respect and
adopted different practices, like local customs, if any.
Some of their rights have now been regulated by the Kerala
Nambudiri Act, 1958 (Act 27 of 1958) which provides for the
family management and partition of illom properties among
Nambudiri Brahmin Community and Section 13 confers right on
a members of illom to claim partition on per capita basis.
[621F-G]
2. Iswara Sevas in temples like Santhi Ceremony and
Parikarmam works are said to be the hereditary profession of
Malayala Brahmins and the illom to which the parties belong.
But the income earned by any member of an illom from such
practice would not become the joint family property. It
would be separate property of the individual. It cannot
become joint family property. The position, however, may be
different if a member earns from such practices which exclu-
sively belong to the joint family. [622F-G]
3.1 In the instant case, there is no doubt that the
plaint A schedule properties are common illom properties
which were in possession of the testator under a maintenance
arrangement. The plaint B Schedule properties or properties
dealt with under Ex. P. 1 are illom properties and they are
acquisitions made by the testator from time to time. They
could be regarded as illom properties provided it is estab-
lished that they have been acquired with the aid of illom
properties. But
617
the relevant evidence on record is scanty. The High Court
was, therefore, justified in stating that there was no
acceptable evidence produced in the case to support the plea
of the plaintiff. [622B, C-D]
3.2 Ex. P. 1 is an ancient deed executed at an undisput-
ed point of time. The terms of the deed indicate that all
the properties divided thereunder were acquired in the name
of the father out of the personal exertions of the father
and his sons, that the properties were divided into four
shares taking into consideration the efforts made by each
party to acquire the movable and immovable properties, and
that the parties shall enjoy with absolute rights the
properties allotted in the respective shares, which clearly
go to show that the properties dealt with under Ex. P. 1
were the self-acquisitions of the testator. [622E, H, 623C]
4. Litigants come to Courts for decisions and not for
obtaining doubtful opinions. The Court, therefore, should
not be a prisoner of indecision. Clarity and promptness in
decision making are the need of the hour. That would go a
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long way to reduce the docket explosion. [620G]
Kunji Amma Narayani Amma v. Dhathri Antherjanan, [1954]
K.L.T. 155, referred to.
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2114 (N)
of 1972.
From the Judgment and decree dated 16.7.1971 of the
Kerala High Court in Appeal Suit Nos. 183, 195 and 249 of
1966.
G. Viswanatha Iyer, P.K. Pillai and N. Sudhakaran for
the Appellant.
T.S. Krishnamoorthy Iyer, T.S. Padmanabhan, T.T. Kunhi-
kannan, S. Balakrishnan, Irfan Ahmed and Ms. Lily Thomas for
the Respondents.
The Judgment of the Court was delivered by
JAGANNATHA SHETTY, J. This appeal by Special Leave is
against the judgment and decree dated July 16, 1971 passed
by the High Court of Kerala in Appeal Suit Nos. 183, 195 and
249 of 1966.
618
The Appellant is the plaintiff and respondents are
defendants 1 to 34 in Original Suit No. 35 of 1961 of the
Sub Court, Alleppey, Kerala State. It is a suit for parti-
tion in which the plaintiff claims 1/33 share in the plaint
properties. The plaintiff and defendants 1 to 33 are members
of an undivided Malayala Brahmin illom. They are the de-
scendants of one Vishnu Embran. (referred to hereinafter as
Vishnu (Senior)). The relationship of the parties with
Vishnu (Senior) is set out in geneological table annexed to
the common judgment of the High Court. Suffice it to state
here that Vishnu (Senior) had three sons: Kesavan, Krishnan
and Narayanan. The plaintiff is the grandson of Kesavan. One
of the sons of Kesavan was given the name of his grand
father. To avoid confusion, we may call him as Vishnu
(Junior).
Vishnu (Senior) did not remain with the members of his
illom. When he was 17, he took some properties of his illom
for maintenance and moved out of his native village. He
settled at a place called Chambakulam. There he was earning
by performing Iswara Sevas like Santhi ceremonies and Pari-
karmam works in temples. In the course of time he acquired
some properties.
Vishnu (Senior) who went out to eke his livelihood at
17, reached 71. He then thought of peacefully retiring. He
wanted that his children after his death should not quarrel
over the properties. With their full consent, he executed
Ex. P. 1, a partition deed dated October 3, 1074 M.E. corre-
sponding May 15, 1889 A.D. Thereunder the properties ac-
quired by him were divided into four shares described in the
deed as Schedules A, B, C & D. He gave schedule A to Kesa-
van, Schedule B to Krishnan, Schedule C to Narayanan and
Schedule D to his grandson Vishnu (Junior). These schedules
should not be confused with the plaint Schedule properties.
Plaint A Schedule consists of property given to Vishnu
(Senior) from his original illom for the purpose of his
maintenance. Plaint B Schedule consists of properties under
A and D Schedules in Ex. P. 1. The other schedules in the
plaint are not much relevant for this case. So they are not
referred to.
The case of the plaintiff, to put it shortly is that
plaint B schedule properties have been acquired out of the
income from Plaint A Schedule and hence they are also the
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illom properties in which he is entitled to a share on Per
Capita basis.
Defendants 1 to 10, 24 to 26 and 29 to 33, supported the
plaintiff. Defendants 11, 13, 16 to 21, 22 and 27 contested
the suit. The case of the contesting defendant is that
Vishnu (Senior) had no surplus in-
619
come from plaint A Schedule properties and the acquisitions
made by him which were the subject matter of division under
Ex. P. 1 were his separate properties.
The trial court accepted the case of the plaintiff. It
held that parties are governed by Marumakkathayam Law.
Plaint A Schedule properties are illom properties. Vishnu
(SeniOr) could get surplus income therefrom. That available
surplus was utilised for purchasing properties dealt with
under Ex. P. 1. The said properties are, therefore, the
illom properties which are available for partition. The
Court also said that in any event, the parties by their
subsequent conduct appear to have treated the properties as
illom properties. Accordingly, it passed a preliminary
decree for partition on Per Capita basis.
Against the said decree there were appeals and Cross
Objection before the High Court.
The main question urged before the High Court related to
the nature of the Plaint B Schedule properties. The High
Court on appraisal of the oral and documentary evidence held
as follows:
There is no acceptable evidence to show what were the
properties allotted to Vishnu (Senior) for his maintenance
when he left his illom, or the income therefrom. There is no
material to prove that the Plaint A Schedule properties were
given to Vishnu (Senior) for his maintenance. Nor there is
evidence to establish that the Plaint B Schedule properties
were acquired with the aid of surplus income from Plaint A
Schedule properties.
With regard to properties allotted to Vishnu (Junior)
under Ex. P. 1 and his subsequent conduct to treat the
properties as joint family properties, the High Court ob-
served:
"The point is, whether there was any intention
on the part of Vishnu (Junior) to treat the
properties as illom properties. It is no
doubt, a principle of Hindu Law that where a
co-parcener throws his self acquisitions into
the common hotchpotch with the volition that
the self-acquisition should become joint
family properties they will assume the charac-
ter of joint family properties. It is doubtful
whether this principle of Hindu Law can be
applied to the parties here. As already stat-
ed, there is no evidence that Vishnu (Junior)
had the volition to throw D Schedule proper-
ties into the common hotchpotch."
620
In other words, it was observed firstly, there was no
intention on the part of Vishnu (Junior) to treat his
properties as illom properties; Secondly, even if he had
such an intention it would be doubtful whether the principle
of Hindu Law could be applied to the parties.
With these conclusions, the High Court reversed the
decree of the trial court but it passed a preliminary decree
in regard to plaint A Schedule and some other properties as
under:
"As plaint A Schedule was allotted only for
the maintenance of Vishnu (Senior) the posses-
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sory interest in the properties comprised
therein and attributable to the share of
Kesavan would devolve on the sons of Kesavan.
As regards B Schedule properties excluding the
properties comprised in the D Schedule in Ex.
P. 1 they being the self-acquisitions of
Vishnu (Senior) will be divided equally among
the sons of Kesavan. The D Schedule properties
in Ext. P. 1 comprised in the Plaint B Sched-
ule being the absolute properties of Vishnu
(Junior), namely defendants 11 to 21. The
income from plaint A Schedule which is at-
tributable to the share of Kesavan and the
Plaint B Schedule properties except the income
from D Schedule in Ext. P. 1 will be distrib-
uted among the sons of Kesavan equally. The
income from the D Schedule properties in Ext.
P. 1 and included in the Plaint B Schedule
will be given to the legal representatives of
Vishnu (Junior)."
Before we consider the contentions urged before us, it
will be better to clear the mental cobweb as to the law
applicable to Malayala Brahmins. The trial Court said that
they are governed by Marumakkathayam Law. The High Court did
not say anything specific. It appears to have doubted the
applicability of the principles of Hindu Law to them. A
question of this nature should not have been kept in doubt.
As a matter of fact no point that comes for consideration
should be kept in doubt by Courts. The litigants come to
Courts for decisions and not for obtaining doubtful opin-
ions. The Court, therefore, should not be a prisoner of
indecision. The clarity and promptness in decision making
are the need of the hour. That would go a long way to reduce
the docket explosion.
Fortunately, for us the problem presents little diffi-
culty, in view of the stand taken by Counsel on both sides.
Our attention has been drawn to the decision of the Kerala
High Court in Kunji Amma
621
Narayani Amma v. Dhathri Antherjanan, [1954] K.L.T. 155.
There it was observed at page 158:
"On behalf of the plaintiff respondent, the
learned Advocate General argued that the
principles of Hindu Law are not applicable and
that the case should be guided by rules of
Maramakkathayam Law. In Travancore it has been
held from very early times that the Malabar
Brahmins are governed by principles of Hindu
Law as modified by local custom (6 T.L.R. 143,
19 T.L.R. 241, 34 T.L.R. 262, 19 T.L.J. 441)
in Parmeswaran Narayanan v. Nangeli Antharaja-
nam a decision of the Royal Court of Appeal of
Travancore, 10 TLR 151 and Narayanan Narayan-
roo v. Kunjikutty Kutty and Others, 20 T.L.R.
65 F.B. it was held that unless Malayala
Brahmins can be shown to have deviated in any
respect from the interpretation put upon old
texts by modern Hindu Sages and adopted dif-
ferent practices, they should be held bound by
Hindu Law as now understood and acted upon
elsewhere. The main object of the Malayala
Brahmin Act III of 1106 was to make provision
for better management of tarwards, to define
and limit the power of Karnavan, to improve
the rights of the junior members and to lay
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down the rules of intestate succession in
respect of their self acquired properties.
Appropriate provisions were made in the Act to
achieve these objects. We do not feel justi-
fied in holding that the plaintiff and 1st
defendant are governed by principles of Maru-
makkathayam law, merely because such safe-
guards as are found in Marumakkathayam law
have been incorporated in the Malayala Brahmin
Act."
No argument has been addressed before us that the view
taken in the above case is incorrect. It can, therefore, be
stated and indeed not disputed that Malayala Brahmins are
governed by Hindu Law, unless they can be shown to have
deviated in any respect and adopted different practices,
like local customs, if any. Some of their rights have now
been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of
1958). The Act provides for the family management and parti-
tion of illom properties among Nambudiri Brahmin Community.
Section 13 of the Act confers right on a member of illom to
claim partition on Per Capita basis.
The law being thus clarified, we may now turn to the conten-
tions
622
urged by Shri Vishwanatha, learned counsel for the appel-
lant. He urged that the High Court proceeded on the wrong
assumption that there is no proof that the plaint A Schedule
properties are illom properties that were given to Vishnu
(Senior) for his maintenance. We think the Counsel is right.
That also seems obvious and causes no difficulty. In fact,
it was admitted by all the defendants (see para 19 of the
trial court judgment) that the Plaint A Schedule is common
illom properties which were in possession of Vishnu (Senior)
under a maintenance arrangement. There can, therefore, be no
doubt or dispute on this aspect of the matter.
The question next to be considered is whether plaint B
Schedule or the properties dealt with under Ext. P. 1 are
also illom properties. They are undisputedly the acquisi-
tions made by Vishnu (Senior) from time to time. They could
be regarded as illom properties provided it is established
that they have been acquired with the aid of illom proper-
ties. That of course is the case put forward by the plain-
tiff. But the relevant evidence on record is scanty. The
High Court was, therefore, justified in stating that there
is no acceptable evidence produced in the case to support
the plea of the plaintiff.
The matter also becomes plain if we turn to the terms of
Ext. P. 1 on which Shri Krishna Murthy Iyer for the contest-
ing respondents mainly depended. It is an ancient deed,
executed at an undisputed point of time. The deed at the
beginning states that all the properties divided thereunder
were acquired in the name of the father "with the assets
obtained by the personal efforts and improvements of mine
and my children." It means out of the personal exertions of
the father and sons. The plaintiff himself has stated that
Vishnu (Senior) was doing Iswara Sevas in temples like
Santhi Ceremony and Parikarmam works. It is said to be the
hereditary profession of Malayala Brahmins and the illom to
which the parties belong. But the income earned by any
member of a illom from such practice would not become the
joint family property. It would be separate property of the
individual. So too the properties purchased out of such
income. It cannot become joint family property. The posi-
tion, however, may be different if a member earns from such
practices which exclusively belong to the joint family.
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Another significant recital in Ext. P. 1 may now be
noticed. It provides that the properties were divided into
four shares after taking into consideration the efforts made
by each party to acquire the movable and immovable proper-
ties. It means the division was as per
623
contributions made by each party. If the properties were
illom properties, this recital has no place in the deed.
The deed does not refer to undisputed illom properties,
that is the plaint A Schedule. It is a deed of partition. If
the properties acquired by Vishnu (Senior) were also regard-
ed as illore properties, there was no good reason for him to
remain silent in respect of the possessory right of the
plaint A Schedule. He ought to have, in the context, re-
ferred to it as to who should be in possession and what he
should do about the income therefrom. Above all the deed
finally provides that the parties shall enjoy with absolute
rights the properties allotted in the respective shares.
These indications clearly go to show that the properties
dealt with under Ex. P. 1 were the self acquisitions of
Vishnu (Senior). We thus agree with the conclusions of the
High Court though not for all the reasons stated.
In the result, the appeal fails and is dismissed with costs.
N.P.V. Appeal dis-
missed.
624