(1.)This second appeal arises in a suit by the first plaintiff, and her son the second plaintiff, to set aside a sale deed dated the 6th Mithunam, 1118, by the second defendant who is the mother of the first plaintiff, in favour of the 1st defendant. The property sold belonged to the tarwad of the second defendant and was allotted to her on partition which took place on the 8th Medom, 1104. The first plaintiff was not born at the time. The plaintiffs impugned the sale deed as not binding on the tavazhi of the second defendant to which the property was said to belong. The first defendant contended that by the partition, the property belonged to the second defendant absolutely. Relying on the decision of the majority of the Judges of the Travancore - Cochin High Court in Iravi Pillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai ( 1954 KLT 862 ), the courts below decreed the suit. The correctness of the decision of the majority in the case cited, was doubted by my learned brother Madhavan Nair, J., and on a reference made by him, this appeal has been heard by us. The majority of the Judges had held in the case cited that property obtained by a Nayar female towards her share under an outright partition in her tarwad, will retain the character of tarwad property and become the property of her tavazhi on the birth of a child to her so as to destroy her absolute powers of disposal over it. Sankaran J., as he then was, dissented and held the contrary, and I am in entire agreement with his view.
(2.)Partitions of tarwad properties into shares whether of individuals or of tavazhies were not unknown to the customary Marumakkathayam Law, but such partitions were consensual and not compulsory. Books do speak of such partitions; a full bench of the Travancore High Court had decided in Swaminatha Pillai Maharaja Pillai v. Ramalekshmi (44 TLR 126 at 138), that a partition deed entered into by the adult members of a tarwad is binding upon its minor members in the absence of fraud. The Travancore Nayar Act, 1088, which was the first of its kind, did not confer a right of partition, but the Cochin Nayar Act of 1095 conferred such a right on collateral tavazhies, and on male children, and female children without issue who did not belong to any of such tavazhies. Then came the Travancore Nayar Act II of 1100 and the Cochin Nayar Act XXIX of 1113, which may be regarded as having conferred on every member of a tarwad (subject to certain restrictions prescribed by the former) the right to claim his or her share of the tarwad properties, that is, the right of individual partition as it is generally called. The present case is governed by the provisions of the Travancore Nayar Act of 1100; those which relate to partition find a place in Chap.7. The following statement of objects and reasons may be referred to, though not for construing any of the provisions, as indicating the purpose of the enactment:
"This is new and the attempt is to give effect to the consensus of opinion freely, forcibly and persistently expressed by the members of the community that they require individual partition so as to remove the principal impediment in the path of their progress-"
(3.)S.33 of the Travancore Nayar Act of 1100 has, subject to certain restrictions or limitations, conferred on every member, the right to claim his or her share of the tarwad properties. The restrictions or limitations were conceived, with a view to safeguard and protect the rights and interests of minor members or of the tavazhies of the tarwad or of both, in the event of compulsory partition. The share of an individual or of a tavazhi is what shall fall to the individual or to the tavazhi, if a division per capita were made of the properties among all the members of the tarwad. The Travancore Ezhava Act III of 1100 also has by S.30, subject to certain restrictions and limitations, conferred a right partition on collateral tavazhies, and on male children and female children without issue, who are not included in such tavazhies. The restrictions on compulsory partition as between tavazhies or members thereof to be found in the Travancore Nayar Act, though not in the Cochin Act, were intended to prevent a too rapid disintegration of the tarwad into individuals and to allow scope though to a limited extent, for the expansion of tavazhies on account of its female members. But within these restrictions and limitations, the right of compulsory partition conferred on every member, male or female, is absolute. A full bench of this Court has held in Velayudhan Gopala Paniclcen v. Velumpi Kunji ( 1958 KLT 253 ), that the restrictions or limitations to be found in S.28 to 30 of the Travancore Ezhava Act are such as may be waived by the members of the tarwad even in a suit for partition, and a division bench of this court has held in Parukutty Amma v. Chellamma ( 1957 KLT 176 ), that the restrictions to be found in S.36 of the Travancore Nayar Act of 1100, have no application to a partition brought about by unanimous consent of the adult members of the tarwad. These enactments have also made provisions for the devolution of self acquired or separate properties of males and females. Of course if the share obtained on partition by a member is not to be considered as his or her separate property, but as still possessing the incidents of tarward property, these provisions do not apply. For example, under S.17 of the Travancore Nayar Act, read with S.12 the separate properties of a female devolve on her death, on her children and lineal descendants of deceased children who include children of sons, in equal shares; this cannot be, if her share is tarwad property. In effect, S.39 of the Travancore Nayar Act of 1100 which corresponds to S.62 of the Cochin Nayar Act of 1113 has declared, that the share of a member, whether male or female allotted on tarwad partition, is alienable and heritable, and this is without any reservation, condition or limitation. In other words, such share constitutes his or her separate property descendible to the heirs on intestacy.