RAMAN NAYAR, J. -
(1.) THE question before us is whether, under the Marumak -kathayam law, a subsequently conceived child gets a right by birth in the property obtained by its mother for her separate share in the partition of her tarwad, thus reducing her theretofore absolute powers of disposition to those of a joint family manager. In other words, whether, after such individual partition as it has been called, the property in the mother's hands continues to retain its character as tarwad property or becomes her individual property (I here use the expression, "tarwad property" not as meaning property still belonging to the tarwad but as meaning property with the incidents of tarwad property - - of. Section 38(2) of the Madras Marumakkathayam Act, 1932 before amendment by (Kerala) Act 26 of 1958 - -and the expression, "individual property" to mean property bereft of these incidents and having instead the incidents of self -acquired property.) The expression, "separate property" within the meaning of Chapter IV of the Madras Marumakkathayam Act and of Chapters IV and V of the Travancore Nayar Act, 1100 seems to me wide enough to include "tarwad property" owned by one person in which no one else has got a share, and that is why I am using the expression, "individual property". This question was answered in the affirmative by a full bench of the Travancore -Cochin High Court in Parameswaran Pillai v. Ramakrishna Pillai, 1954 Ker LT 862= (AIR 1955 Trav -co 55) (FB), and in the negative by a full bench of this Court in Kalliyani Amma Bhavani Am -ma v. Narayani Amma Madhavi Amma 1963 Ker LT 859 -(AIR 1963 Ker 358) (FB), in both cases by a majority of two to one. The correctness of the latter decision has been questioned and that is why the question is before us once again.
(2.) I think that the answer given by the earlier full bench is the right answer, and, but for the gentle rebuke administered by Velu Pillai J, in the later full bench case - -see paragraph 10 of the report - - I might have been tempted to express myself as emphatically as S. Govinda Menon J. did in Naniamma Janakiamma v. Chandy Varghese 1949 Ker LT 21. A Marumakkathayam tarwad like a, Mitakshara coparcenary is a fluctuating body of persons (whether corporate or not we need not stop to consider) forming a joint family with community of property. (See the definition of "tarwad" in Section 3(1) of the Madras Marumakkathayam Act in Section 2(6) of the Travancore Nayar Act, 1100 and in section 3 of the Cochin Nayar Act, 1113 as also in the several other Marumak -kattayam law statutes. Community of inter -rest, unity of possession, right by birth and survivorship are incidents of joint family property whether of a Marumakkat -tayam tarwad or a Mitakshara coparcenary but the existence of such property is no more necessary to constitute a tarwad than it is to constitute a coparcenary, although, where persons live together it is difficult to conceive of their possessing no joint property whatsoever. Indeed, until a division takes place, a female and all her descendants in the female line constitute a Marumakkathayam tarwad whether they own property in common or not) Admission to this body is, by birth (or adoption) into the family, in the female line in the case of a tarwad, and in the male line in the case of a coparcenary, and membership thereof determines with death. Every member is a co -proprietor, with the result, of the joint family property and gets this right on birth. And, on the cessation of his membership on death, his interest lapses, or, as it is commonly put, passes by survivorship, to the remaining members. Thus, the property of the tarwad or coparcenary belongs to its members for the time being and it is property which, so long as it is not transferred and remains with the joint family, is to enure for the benefit not merely of the members in existence at a given time but also of the members to be admitted in the future.
On partition, a tarwad breaks up into separate units, each unit a tarwad by itself, or, where it consists only of one person the nucleus of a tarwad, the tarwad coming into being the moment there is an addition cither by birth or adoption. (As I have already indicated, the moment a Marumak -kattayee female who has separated from the remaining members of her tarwad given birth to a child, a tarwad comes into being whether she likes it or not, and whether she owns property or not, and it continues until there is a partition between them). These separate units are commonly called tavaz -hies (or sometimes, in legal parlance, sub -tarwads) in contradistinction with the original tarwad. (The word, "tavazhi" has, however, another and special meaning as implied by the definitions in Section 3(j) of the Madras Marumakkattayam Act and Section 2(3) and (4) of the Travancore Nayar Act, 1100 as denoting the group of persons consisting of a female and her children and all her descendants in the female line or such of that group as are alive, a natural group as some decisions put it. In this special sense, the word is generally applied to such groups constituting branches of an undivided tarwad. The separate units may consist of one or more members, and between the several units there is no longer any community of property. Any two or more members may form a unit or tavazhi and take their share of the property jointly - - I am of course not thinking of persons who take the property for their shares as tenants -in -common without division by metes and bounds, for, such persons take their shares severally and not jointly and do not constitute the sort of unit I have in mind, namely, a tavazhi - -and when they do so, there is community of property between the several members. They constitute a tarwad by themselves, the membership of which decreases by death and increases by birth or adoption, and the property is tarwad property in their hands with all the incidents of such property such as survivorship and a right by birth or on adoption. Such units or tavazhies are usually composed of persons forming a natural group. But that is not necessarily so. Any two or more members of a tarwad, whether or not they form a natural group, can choose to remain joint and form a unit, since the severance of the joint status which they enjoy cannot be imposed on them against their will. See in this connection Explanation I to section 38 of the Madras Marumakkattayam Act as amended by Kerala Act 28 of 1958 which is only declaratory of the law as also Sreedevi Nethir v. Peruvunni AIR 1935 Mad 71 at p. 78, Kuttimalu Amma v. Lakshmi 1960 Ker LJ 1476= (AIR 1961 Ker 166) (FB),) If that be the position with regard to multi -member units, is there any reason why a single -member unit should take its share as individual and not as tarwad property? I can think of none, while I can think of many for the contrary. It is by the same process of partition (involving no transfer destructive of the incidents subject to which the property partitioned is held but only, as it has been put, a crystallisation of the interests of the several units) that single -member and multi -member units are constituted. There is no difference whatsoever regarding the nature of the partition, and I do not see why if the partition effects no change in the incidents of the property it allots to a multi -member unit, it should effect such a change in the property it allots to a single -member unit.
A Marumakkattayee female and her children constitute a joint family whether or not she has any property obtained from her tarwad by partition. A single -member unit formed in a tarwad partition can add to its members by birth or adoption and thus become a joint family, and, if members added to a multi -member unit got a right to the property obtained in the tarwad partition the moment they become members of the joint family, why should not members added to a single -member unit get a like right? The property of the original tarwad, as we have seen, was property intended for the benefit of persons to be born into it in the future, and, when a tarwad breaks up into units, the property allotted to a multi -member unit undisputedly shares the same character, so that members born into it thereafter get a right by birth. Why should property allotted to a single member unit not share the same character? Had there been no partition, the children of a lone female sharer would have got a right by birth in the entire properties of the tarwad. Why then should they not get such a right in the property allotted to the lone sharer in partition, and why should they be in a worse position than the members born into a multi -member unit?
It is possible for a person to give property to a Marumakkattayee female with no children so as to enure for the benefit of the Marumakkattayam joint family to come into being in the future on the birth of children? Section 48 of the Madras Marumakkattayam Act and Sections 22 and 41 of the Travancore Nayar Act 1100 and Section 64 of the Cochin Nayar Act contemplate this. It is all a matter of intention and the donor need not necessarily be the husband of the woman - - the statutory provisions referred to only enact a presumption regarding the intention when the husband is the donor. And, if that be so, should not a woman who gets a share in her tarwad partition, of property, in which all person born into the tarwad including her own children were to Ret a right by birth, hold the property subject to the same incident of her children Retting a right by birth?
I suppose that the reason why an unsecured creditor of a tarwad is, after partition, allowed to recover from the divided units to the extent of the tarwad property in their hands is that the original promise to pay must be deemed to be by all the members of the tarwad out of the tarwad property (though not as a charge on it) and that the tarwad property retains that character in the hands of the divided units after partition, even in the hands of persons not born at the time of the partition. A single -member unit can no more escape the liability than a multi -member unit; and it seems to me clear that a single -member unit can no more deny a right by birth to those born into that unit than a multi -member unit.
(3.) THE circumstance that the sole member of a single -member unit has absolute powers of disposition over the property should not confuse the issue. That is only because the one member constitutes the whole unit to which the property belongs. The moment there is an addition to the unit that absolute power of the original member vanishes, and he or she can only have the power that can be exercised by a manager in a representative capacity. See in this connection Umayal Achi v. Lakshmi Achi AIR 1945 FC 25 at p. 32. A multi -member unit has likewise absolute power of disposition over its property and, if all the members thereof are sui juris, they can jointly do what they like with the property. It is only when power is exercised in a representative capacity that the question of vires, in other words, of consideration and legal necessity comes in. The absolute powers of disposition enjoyed by the sole member of the single -member unit is therefore no indication whatsoever that the property is that member's individual property and can be no reason why, if members can be added to the unit by birth or adoption, the new members should not get a right in the property the moment they become members;