Holding

The minority view that a single female’s share on partition becomes her separate property, not tharwad property, is the correct law and applies prospectively, but the properties in this case were held by a thavazhi and thus remain tharwad property, so the lower courts' findings are affirmed.

Summary

The case concerned the devolution of property governed by Marumakkathayam law in a Kerala joint family. The dispute arose over two sets of scheduled properties: one acquired through a 1950 partition deed and the other through a mortgage deed after the death of a male member. The key questions were whether a female’s share after partition remained her separate property or continued as tharwad property, and whether the mother, Parvathy Amma, could mortgage the entire property of her son to her daughter‑in‑law and grandchildren. The Supreme Court examined the majority and minority opinions of the Kerala High Court’s Mary Cheriyan case, ultimately endorsing the minority view that a single female’s share on partition becomes her separate property, but held that in the present facts the properties were held by a thavazhi and thus remained tharwad property. Consequently, the Court affirmed the findings of the Trial Court and High Court and dismissed the appeal, applying the clarified law prospectively.

Issues considered

Whether property obtained by a female and her children after partition is her separate property or belongs to her tharwad.
Whether Parvathy Amma had the legal right to transfer the entire property of her son to her daughter‑in‑law and grandchildren by mortgage deed, or was her right limited to one‑sixth of the property.

Legislation cited

Cochin Nayar Act, XXIX of 1113s. 2(3)
Hindu Succession Act, 1956s. 6
Madras Marumakkattayam Act, 1932s. 38, s. 3(j)(i)
The Travancore Nayar Regulation, II of 1100s. 2(3)

Headnote

Issue for Consideration Issue arose with respect to the devolution of property by way of Marumakkathayam law. Nature and character of the scheduled properties. Whether the property obtained by a female and her children after partition would be considered their separate property or would it belong 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. Headnotes† Madras

Subjects

Marumakkathayam lawtharwadthavazhithavazhykaranavanScheduled propertiesDevolution of propertyPartitionSeparate propertyMortgage deedMarumakkathayee femaleMinority opinionMajority opinionad idemJointly held propertySingle femalesInheritance by single femalesPutravakashatavazhyDivergence of opinionHindu LawMitakshara school of lawDescendantsAncestral joint family propertyCoparcenary propertyProspectively

Judgment

[2024] 11 S.C.R. 1013 : 2024 INSC 885

Ramachandran & Ors.
v.
Vijayan & Ors.
(Civil Appeal No. 2161 of 2012)
22 November 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]

Issue for Consideration
Issue arose with respect to the devolution of property by way of
Marumakkathayam law. Nature and character of the scheduled
properties. Whether the property obtained by a female and her
children after partition would be considered their separate property
or would it belong to her tharwad; 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.

Headnotes†
Madras Marumakkattayam Act, 1932 – ss.3(j)(i), 38 –
‘thavazhi’ – The Travancore Nayar Regulation, II of 1100 –
s.2(3) – Cochin Nayar Act, XXIX of 1113 – Parties governed
by the Marumakkathayam law – Right of marumakkathayee
female on partition – Whether the property obtained by a
female and her children after partition would be considered
their separate property or would it belong to her tharwad
(a Marumakkathayam joint family comprising of a female
ancestor, her children, her daughter’s children, her daughter’s
daughter’s children and all such other descendants, however
remote, in the female line):
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

*Author
1014 [2024] 11 S.C.R.

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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]
[2024] 11 S.C.R. 1015

Ramachandran & Ors. v. Vijayan & Ors.

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.

Case Law Cited
Mary Cheriyan & Anr. v. Bhargavi Pillai Bhasura Devi & Anr,
1967 SCC OnLine Ker 68 – minority view held correct.
Achuthan Nair v. Chinnamu Amma [1966] 1 SCR 454 : 1965 SCC
OnLine SC 303; Srinivas Ram Kumar v. Mahabir Prasad and Ors.
[1951] 1 SCR 277 : 1951 SCC 136; Sree Sree Iswar Gopal Jieu
Thakur v. Pratapmal Bagaria [1951] 1 SCR 332 : AIR 1951 SCC
214; Addagada Raghavamma And Anr v. Addagada Chenchamma
[1964] 2 SCR 933 : 1964 AIR SC 136; Variety Emporium v. V.R.M.
Mohd. Ibrahim Naina [1985] 2 SCR 102 : (1985) 1 SCC 251; Indira
Kaur v. Sheo Lal Kapoor (1988) 2 SCC 488; Mithilesh Kumari &
Anr vs Prem Behari Khare [1989] 1 SCR 621 : (1989) 2 SCC 95;
Sardar Jogendra Singh v. State of U.P. (2008) 17 SCC 133; Guljar
Singh v. Dy. Director (Consolidation) [2009] 5 SCR 1080 : (2009)
12 SCC 590; Ghisalal v. Dhapubai [2011] 1 SCR 651 : (2011) 2
SCC 298; Sukhbiri Devi & ors v. Union of India & Ors. [2022] 13
SCR 523 : 2022 SCC OnLine SC 1322 – referred to.

Books and Periodicals Cited
K. Sreedhara Variar Marumakkathayam and Allied Systems of law
in the Kerala State, First Edition, 1969; Advanced Law Lexicon,
Third Edition; Travancore Nayar Regulation.

List of Websites
https://www.merriam-webster.com/; https://www.collinsdictionary.
com/

List of Acts
Madras Marumakkattayam Act, 1932; The Travancore Nayar
Regulation, II of 1100; Cochin Nayar Act, XXIX of 1113; Hindu
Succession Act, 1956.
1016 [2024] 11 S.C.R.

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List of Keywords
Marumakkathayam law; ‘tharwad’; ‘thavazhi’; ‘thavazhy’;
‘karanavan’; Scheduled properties; Devolution of property; Partition;
Separate property; Mortgage deed; Marumakkathayee female;
Minority opinion; Majority opinion; ad idem; Jointly held property;
Single females; Inheritance by single females; Putravakasha;
tavazhy; Divergence of opinion; Hindu Law; Mitakshara school of
law; Descendants; Ancestral joint family property; Coparcenary
property; Prospectively.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2161 of 2012
From the Judgment and Order dated 27.08.2009 of the High Court
of Kerala at Ernakulam in AS No.563 of 1999

Appearances for Parties
CS Vaidyanathan, Chitambaresh, Sr. Advs., A. Raghunath, Babu
Malayil, Advs. for the Appellants.
Ms Vishnu Shankar, Atul Shankar Vinod, Dileep Pillai, Kannan
Gopal Vinod, M. P. Vinod, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Sanjay Karol, J.

1. The instant appeal, preferred by the original defendants, assails the
judgment dated 27.08.2009 passed by the High Court of Kerala in
A.S. No. 563 of 1999 whereby the appeal was dismissed and the
preliminary decree passed by the Trial Court in O.S.631/1999 was
affirmed.

MARUMAKKATHAYAM CUSTOMARY LAW - AN INTRODUCTION
2. The present appeal concerns the devolution of property by way
of traditional Marumakkathayam law. Prior to delving into the
legal niceties, an understanding of certain foundation concepts is
necessary.
[2024] 11 S.C.R. 1017

Ramachandran & Ors. v. Vijayan & Ors.

3. The Hindu community being a vast and diverse community is governed
by different schools of personal laws. Apart from the dominant
Mitakshara school of law, some communities among Hindus have
their own system of personal law like the Marumakkathayam law, the
Nambudiri law or the Aliyasantana law. In the issue at hand, parties
are admittedly governed by the Marumakkathayam law. With respect
to Marumakkathayam law, this Court has stated in Achuthan Nair
v. Chinnamu Amma1:
“6. …The said law [Marumakathayam law] governs a
large section of people inhabiting the West-Coast of
South India. “Marumakkathayam” literally means descent
through sisters’ children. There is a fundamental difference
between Hindu law and Marumakkathayam law in that,
the former is founded on agnatic relationship while the
latter is based on matriarchate. The relevant principles
of Marumakkathayam law are well settled and, therefore,
no citation is called for...”
4. Under this law, tharwad, thavazhi, karanavan are dominant concepts
with respect to joint family. A tharwad is a Marumakkathayam joint
family comprising of a female ancestor, her children, her daughter’s
children, her daughter’s daughter’s children and all such other
descendants, however remote, in the female line. By necessary
exclusion, only the immediate male heir is part of the tharwad while
his progeny are not. A person belongs to tharwad of his or her mother
only.2 Membership of a tharwad is acquired by virtue of birth alone
and on death, his interest devolves upon the other members of the
tharwad. Members of a tharwad do not have a fixed interest but a
fluctuating one, subject to change as per the number of members of
the tharwad. Unlike coparcenary in Mitakshara law which extends to
three generations succeeding the last male holder of the property,
the Marumakkathayam system gives equal rights to all persons,
however remote.

1 [1966] 1 SCR 454 : 1965 SCC OnLine SC 303
2 K. Sreedhara Variar Marumakkathayam and Allied Systems of law in the Kerala State, First Edition, 1969
1018 [2024] 11 S.C.R.

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5. A tharwad is a larger body which holds within itself many branches.
These branches are known as thavazhi which is a group of
descendants in the female line of a female common ancestor. A
thavazhi can own properties, separate and distinct from tharwad
properties. In other words, a marumakkathayee woman alongwith
her children and further descendants, how low-soever, in a female
line constitute thavazhi.
The concepts discussed above would be best explained by way of
illustrations as under:
ILLUSTRATION :

A AH

AS AD1 AD2

AS1
C B

C1 C2

A is married to AH. They have three children- two daughters,
AD1 and AD2, and a son, AS. All members shown above with the
exception of AS1 form the tharwad of A. This is in line with the
matrilineal succession or in other words, the female being the ‘stock
of descent’. AD2 with her children C, the daughter and B, the son
and grandchildren C1 and C2 forms a thavazhi.
6. A karanavan is a manager of a joint family property. It is the oldest
male member of the family. However, this customary position does
not exclude a woman from managing the affairs of the tharwad or
thavazhi if no male member is capable of taking up the required duties.
Under Madras Marumakkattayam Act, 1932, it is defined as under:
[2024] 11 S.C.R. 1019

Ramachandran & Ors. v. Vijayan & Ors.

“ Section 3(c) ‘karanavan’ means the oldest male member
of a tarwad or tavazhi, as the case may be, in whom
the right to management of its properties vests or, in the
absence of a male member, the oldest female member
or where by custom or family usage the right to such
management vests in the oldest female member, such
female member;”
7. This Court explained the position of karanavan in Achuthan Nair
v. Chinnamu Amma (supra)3:
“7. ..The management of a tarwad or tavazhi ordinarily
vests in the eldest male member of the tarwad or tavazhi,
as the case may be. But there are instances where the
eldest female member of a tarwad or a tavazhi is the
manager thereof. The male manager is called the karnavan
and the female one, karnavati. A karnavati or karnavan
is a representative of the tarwad or tavazhi and is the
protector of the members thereof. He or she stands in a
fiduciary relationship with the members thereof. … But it
is settled law that if a property is acquired in the name
of the karnavan, there is a strong presumption that it is a
tarwad property and that the presumption must hold good
unless and until it is rebutted by acceptable evidence.”
(Emphasis supplied)
It is to be noted that, the position does not grant any special rights in
the property and these rights standard part with any other member
of the joint family.

BRIEF FACTS
8. The facts which are necessary to dispose of the appeal are presented
hereinbelow. For ease of understanding, a chart representing the
genealogy is produced:

3 [1966] 1 SCR 454 : 1965 SCC OnLine SC 303
1020 [2024] 11 S.C.R.

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[2024] 11 S.C.R. 1021

Ramachandran & Ors. v. Vijayan & Ors.

9. The dispute relates to the property of one Parukutty Amma. Parukutty
Amma had four children namely Karunakara Menon, Neelakanta
Menon, Narayani Amma and Amukutty Amma. Narayani Amma
had four children namely, Kamalakshy, Aravindakshy Amma,
Ramachandran and Padmavathi Amma. The husband and children
of one of these four, Padmavathi Amma, are the plaintiffs. All other
children and grandchildren of Parukutty Amma are the defendants
except Padmavathy Amma. The defendants, having concurrently
lost before all the courts below, are appellants herein. For ease of
reference, the parties shall be referred, as per their position before
the Trial Court.
10. A suit for partition and separate possession (O.S. No.631/1993)
was filed by Plaintiffs no. 1-8 against Defendants before the Addl.
Sub Court, Ernakulam4 for dividing the plaint scheduled properties
belonging to Andipillil Tharwad by metes and bounds into 16
shares. Before us, the challenge pertains to two sets of scheduled
properties- Item no.1 and Item no.2. Some preliminary understanding
is required of how the properties subject matter of dispute came to
be divided into two heads.
10.1 Item No.1: The property is situated in Ponnurunni Desom of
Poonithura village and was part of the erstwhile Cochin state.
It was gifted by one Krishna Menon in favour of 11 members
of the same tharwad vide gift deed no.1223/1099. One of the
donees, Ayyappa Menon filed a suit for partition5 of the said
property against other donees. During the pendency of the
suit, parties thereto entered into a compromise, and a partition
deed giving effect to such compromise was executed dated
1.11.1950. The property was divided amongst nine donees as
two, namely, Ravunni Nair and Madhavi Amma had passed
away and it was mutually allotted to five branches as shown
below:-

4 hereinafter referred to as ‘Trial Court’
5 (O.S.77/1125)
1022 [2024] 11 S.C.R.

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Ayyapa
Menon (Branch 1)

Parameswara Govinda Raghava Branch 5
Menon Meon Menon Parukutty Amma and her children namely,
(Branch 2) (Branch 3) (Branch 4) Karunakara Menon, Neelakanda Menon,
Narayani Amma and Ammukutty Amma

10.2 Item no.2: There was one Sankar Padmanabhan, on his demise,
half of his property devolved on his wife, Parukutty Amma and
their children; and another half on his mother, Parvathy Amma.
His mother subsequently transferred her interest in the said
property in favour of Parukutty Amma and her children through
a mortgage deed.

TRIAL COURT
11. The Trial Court framed as many as eleven issues. Below is a tabulated
representation of the eleven issues and their corresponding findings.

Sr. Issue Finding Decision
No.
1. Whether the The plaintiffs can ignore the No
suit is time partition deeds since they
barred? are not binding on them, as
execution of partition deeds by
some of the members will not
take away their right.
2. Whether the The assignees of a partition of No
suit is bad for the plaint schedule properties
non-joinder were impleaded as additional
of necessary defendants after the issues were
parties? framed.
3. Whether The executants of the partition Decided
the plaint deed formed a natural group of in
schedule Marumakkathayees, that is, the FAVOUR
first item matrilineal heirs, and this led to of the
property was the conclusion that the property Plaintiffs.
the property was tharwad property.
of Andippillil
Taravadu?
[2024] 11 S.C.R. 1023

Ramachandran & Ors. v. Vijayan & Ors.

4. Whether Property belonged to the Decided
the Plaint thavazhi of Parvathy, as it in
Schedule was allotted to her and her FAVOUR
second item son as per the recitals in the of the
property was mortgage deed. The plaint Plaintiffs.
the property schedule second item property
of Andippillil thus belonged to the thavazhi
Taravadu? of Parukutty Amma (through
Parvathy’s son, Padmanabhan),
as the property, obtained through
a mortgage deed, was in the
possession and enjoyment of the
children of Parakutty Amma.
5. Whether the In Ammalu Amma and others v. No
alienations Lakshmi Amma and other (1966
made by KLT 32) a Full Bench of the High
Neelakanta Court held that the undivided
Menon are interest of a member of a
valid? thavazhi cannot be alienated.
So the alienations made by
Neelakanta Menon are void.
6. Whether Both items 1 and 2 were No
partition deed thavazhi properties the partition
No.6143/1981 deed executed by 3 members
is binding on alone does not bind the other
the plaintiffs? members of the thavazhi.
7. Whether the The executants of partition deed No
alienations did not have exclusive title to the
made by properties and that document
defendants is not binding on the other
1 and 2 are members of the thavazhi. Hence,
binding on the the subsequent transactions are
plaintiffs? also not binding on the other
members.
8. Whether the This transaction is also not No
alienation binding on the other members
made by the of the thavazhi, as the property
8th defendant was a thavazhi property.
is binding on
the plaintiffs?
1024 [2024] 11 S.C.R.

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9. What is the Defendants 1 to 8 and plaintiffs 1/15
share (if any) 1 to7 are entitled to 1/15 shares. share
to which
each of the
co-owners
is entitled
in the plaint
schedule
properties?
10. What is the There is no evidence to None
amount (if show that they have made
any) to which improvements to the properties
defendants 13 thus, no relief can be granted
and 15 to 17 to them even if there was any
are entitled entitlement.
as value of
improvements?
11. What is the -- Costs to
order as to be borne
costs? out of
the
estate.
12. It was concluded that the properties were tharwad property. A
preliminary decree was passed allotting one share each to defendants
1-7 and plaintiffs 2-8 and one share to defendants 9-14 altogether.
The relevant extract reads thus:
“In the result, a preliminary decree is passed in the
following terms :-
1. The plaint schedule properties will be divided by
metes and bounds into 15 shares.
2. Defendants 1 to 7 and plaintiffs 2 to 8 are entitled
to one share each. Additional defendants 9 to 14
together are entitled to one share.
3. The plaintiffs will be put in possession of their joint
7/15 share.
4. The fifth defendant will be put in possession of her
share.
[2024] 11 S.C.R. 1025

Ramachandran & Ors. v. Vijayan & Ors.

5. The plaintiffs and fifth defendant are allowed to
realize their share of income out of the shares of
the other co-owners who will be liable proportionate
to their shares.
6. The quantum of the share of income will be decided
in the final decree proceedings
7. The costs shall come out of the estate”
13. For adjudication of the dispute before this Court, the findings returned
in issues 3 and 4 are pertinent and the same are discussed in detail
in the coming paragraphs.
14. In respect of item No.1, it was held that even though there was no
evidence as to the original source of the property gifted by Krishna
Menon, but the fact that the partition deed was executed by a natural
group of Marumakkatayees led to the conclusion that the property
was tharwad property. Parukutty Amma and her children forming part
of a thavazhi and therefore being entitled to the property as members
of the fifth branch is strengthened by the fact that the fifth branch
comprising them was mentioned in the partition deed as a branch
of Karunakaran Menon who was the Karnavan of the thavazhy. As
such the conclusion drawn was that the property under item No. 1
was the thavazhi property of the fifth branch.
15. Issue no.4 before the Trial Court was in regard to item No.2. While
answering in the affirmative, it was held that the said property would
be tharwad property. Reasoning therefor was derived from the deed
executed by Parvathy Amma in favour of Parukutty Amma and her
children. The deed records that the former became the absolute
owner of the property once Sankaran Padmanabhan died. Having
become the absolute owner, she executed the said mortgage deed.
Since Parvathy Amma was the absolute owner, she transferred the
said property to her daughter-in-law and her successors.

HIGH COURT
16. The High Court, qua item No.1, has held that the share allotted to a
female on partition retains the tharwad characteristic. It further held
that since after the passing away of Madhavi Amma and Ravunni
Nair, two of the eleven persons upon whom the property originally
devolved, it was divided amongst nine surviving co-donees in 1950.
1026 [2024] 11 S.C.R.

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It is clear that even at this point in time, the method adopted for
succession was in line with the property being thavazhi in nature. It
also relied on the testimony of DW-1 who deposed that Parukutty
Amma and her children were separated as one thavazhi in the
above-mentioned partition of 1950.
17. Qua item No.2, it was observed:
“The document is in favour of Parukutty Amma and her
minor children. This mortgage was never redeemed by
Parvathy Amma. Under the Prestine Marumakkathayam
Law acquisition of a property in the name of mother
and children who form a natural group had always been
presumed to be on behalf of the tavazhi and even the
existence of an original nucleus was not considered
essential.
…Since the acquirers under Ext.A2 mortgage namely
Parukutty Amma and her minor children formed a natural
group, the property would enure to all the members of the
tavazhi of Parukutty Amma. It is pertinent in this connection
to note that in Ext.B3 partition dated 28-10- 1981 as per
which Karunakara Menon, Narayani Amma and Ammukutty
Amma are alleged to have divided the property to the
exclusion of the other tavazhi members including the
plaintiffs, the title which is traced to plaint A schedule
item No. 2 is ExtA2 mortgage and not ExtB 11 gift deed.
This also re-inforces the plaintiffs’ case that this item was
acquired by Parukutty Aroma and her children as per
ExtA2 mortgage.”
and then concluded that since the acquirers under mortgage deed,
namely, Parukutty Amma and her children formed a natural group
the property would enure to all the members of the thavazhy of
Parukutty Amma.
18. In terms of the above, the decree of the Trial Court stood confirmed
by the High Court.

ARGUMENTS OF PARTIES
19. Learned Senior Counsel Mr. C.S. Vaidyanathan for the original-
defendants/appellants submitted that the scheduled properties are
[2024] 11 S.C.R. 1027

Ramachandran & Ors. v. Vijayan & Ors.

not thavazhy property. It is submitted that item No.1 is a co-ownership
property and item No.2 is a Putravakasam property. In so far as
scheduled properties under item No.1 are concerned, the learned
senior counsel submitted that the minority view expressed by the
full Bench of the Kerala High Court in Mary Cheriyan & Anr. v.
Bhargavi Pillai Bhasura Devi & Anr.6 should, in fact, be held as
the correct view having regard to the difficulties of law noted by this
Court in Achuthan Nair (supra).
20. For properties mentioned under item No.2, it is submitted that the
property originally belonged to Kadangad Sankaran Padmanabhan
and his mother could only execute gift deed as well as mortgage
deed only to the extent of her own share and not the share of
Padmanabhan.
21. Learned Counsel Mr. M.P. Vinod for the original plaintiffs/respondents
submitted that a new tharwad is formed when a female member
and all her children jointly receive properties by gift from another
Marumakathayee. With respect to item No.1, it is submitted that
when a share was allotted to the natural thavazhy vide partition
deed dated 01.11.1950, then such natural thavazhy will also have
the characteristics of a tharwad property. For item No.2, reliance is
placed on partition deed 6143/1981 wherein it is specifically stated
that Parvathy Amma became the sole owner after the death of her
son thus she could validly transfer her share to Parukutty Amma
and her children.

ISSUES
22. We have gone through the detailed pleadings of the parties. The
bone of contention is the nature and character of the scheduled
properties. After carefully going through the pleadings, the following
two questions require adjudication :
1. Whether the property obtained by a female and her children
after partition would be considered their separate property or
would it belong to her tharwad?
2. Whether, in the present facts, Parvathy Amma had the legal
right to transfer the entire property of her son to her daughter-

6 1967 SCC OnLine Ker 68
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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?

APPRECIATION OF LAW
23. The case of plaintiffs is that scheduled properties being tharwad
properties and they being members of the same are entitled to seek
partition whereas defendants deny this claim.

Issue 1
24. This issue deals with the right of marumakkathayee female on
partition. Partition is a process by which joint ownership is reduced
to individual ownership. It puts an end to the joint status, separating
members who hold their respective shares, which, on their death,
will devolve upon their heirs. Under mitakshara law, if a member
continues to be joint with his own male issue then the share allotted
to him retains the characteristic of coparcenary property.
25. However, in Marumakkathayam law, as per the original defendants
the position of law has been incorrectly settled.
26. The answer to the first question (supra), was answered, favouring the
latter by the majority of the Full Bench of Kerala High Court in Mary
Cheriyan (supra) but since the original-defendants are placing their
reliance on minority opinion, we deem it necessary and appropriate
to discuss all opinions expressed therein.
27. P.T. Raman Nayar, J., who penned the majority opinion, held that
property obtained by a Nair female towards her share under an
outright partition in her tharwad continues to retain its character as
tharwad property. He propounded that on partition, a tharwad breaks
up into separate units with each unit a tharwad by itself, called a
thavazhi. Indubitably, the members added to a multi-member unit
are entitled to the property obtained by tharwad partition the moment
they become members thereof. While placing the multi-member unit
at par with a single-member unit, he observed that a single-member
unit formed in a tharwad partition could add to its members by birth
or adoption and thus become a joint family. Following this line of
thought, he further opined that when a tharwad 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
[2024] 11 S.C.R. 1029

Ramachandran & Ors. v. Vijayan & Ors.

birth. And as such, a similar right must be given to a single sharer
(female) in the partition. The nature of tharwad property retains its
character in the hands of the divided units after partition, thereby
securing rights in the said property for persons yet to be born.
28. He further emphasized that, unlike Mitakshara law, which has a
religious flair, Marumakkathayam law is read with a secular tone and
thereby every member of a tharwad how low-so-ever in degree gets
a right by birth, which extends even to the right by birth in property
taken on partition. Under the Marumakkattayam system, “a female is
a stock of descent while the male is not”, which is why the children
of a sole male sharer get no right to the property obtained by him on
the partition, whereas a sole female sharer has to take it as tharwad
property in which she must concede a share to her children, if she
gives birth to any. Further, reliance was placed on Section 38 of the
Madras Marumakkathayam Act before its amendment in 1958, which
clarifies in its explanation that a sole sharer in a partition whether a
male or a female, takes the share with the incidents of tharwad property.
29. However, the said opinion was not accepted by Govindan Nair, J.,
who observed that in Hindu Law, if ancestral joint family property
is divided and a share taken by a father, a son born to that father
after partition will only get an interest in that property by birth. The
son takes such an interest by birth only because it is ancestral and
not by reason of the fact that the property was joint family property
or because it has retained its character as joint property. When an
individual member obtains a share for themselves, the property
ceases to be joint property after partition, thereby changing the
nature of the property. He differed with the interpretation of the
majority opinion and by dissenting, opined that the statute enacted
does not lay down or declare any general principle for the nature of
property remaining a tharwad after the partition. The explanation to
Section 38(2) of the Madras Marumakkattayam Act, 1932, before it
was amended in 1958, only permitted a thavazhi partition and the
absence of such an explanation in the Cochin Nayar Act, XXIX of
1113, which was enacted after the Madras Marumakkathayam Act
further proves the intent of legislation to change the nature of property
after the partition. He rejected the principle of “once a tarwad always
a tarwad” as an outmoded concept.
30. Another minority opinion was expressed by Krishnamoorthy Iyer, J.,
who propounded that property obtained by a Nair female towards
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her share vide partition in her tharwad continues to be her separate
property, notwithstanding the birth of a child to the female after the
date of the partition. The result of partition is to convert, what was
originally joint family non-ancestral property, into separate property.
Further, reliance was placed on Mitakshara school of Hindu Law, which
distinguishes the character of the property obtained by a co- parcener
in the division of ancestral property and the shares received in the
division of joint family property, not being ancestral property.

OUR VIEW
31. We have perused the judgments professing both the majority and
minority views. The main point of disagreement between three
learned judges on one side and two on the other, pertains to the
question as to whether a female who, at the time of partition did
not have any heirs, retains such property as her own or as tharwad
property which she would have to eventually part with in favour of
her children or descendants.
32. The majority, as is evident from the above, holds that a female
who is single at the time of partition holds the property received in
partition as tharwad by way of her being a single member thavazhi,
thereby securing the right of persons who may become a member
thereof either by way of adoption or birth in future. Per contra, the
minority 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. This is for the reason that partition, by its very essence,
alters the nature of the property from, at one point being jointly held
property or tharwad to a property held solely by her.
33. Having given anxious consideration to both views, we conclude that
the minority has, in fact, understood the position correctly. Partition
is an act by which the nature of the property is changed, reflecting
an alteration in ownership. At this juncture, we may take note of how
the word partition is defined:
"- to divide into parts or shares
- to divide (a place, such as a country) into two or
more territorial units having separate political status7
….

7 https://www.merriam-webster.com
[2024] 11 S.C.R. 1031

Ramachandran & Ors. v. Vijayan & Ors.

1. a division into parts; separation
2. something that separates, such as a large screen
dividing a room in two
3. a part or share
4. a division of a country into two or more separate
nations
5. property law
a division of property, esp realty, among joint owners.8”
34. The Advanced Law Lexicon, Third Edition defines partition in the
following terms:
“Partition is a division between co-owners (whether
coparceners, joint-tenants in common) of lands, tenements
and heriditaments held by them, the effect of such division
being that the joint ownership is terminated, and the shares
of the parties vested in them in severalty;
[in mitakshara law, it] is the adjustment of diverse rights
regarding the whole by distributing them on particular
portions of the aggregate.
Is a separation between joint owners or tenants in common
of their respective interests in land, and setting apart such
interest, so that they may enjoy and possess the same
in severalty.”
The Hindu Succession Act, 1956 in the explanation to Section 6
provides that a partition is a partition in terms of this Law if it is
made by way of a partition deed recognised under the Registration
Act, 1908 or by a decree of Court.
35. It may be that a parcel of land for instance, may at one time, be
owned by fourteen people but after partition is affected between
them, with two people wanting no longer to be associated, the size
of the land owned alongside the number of persons registered as
owners both being reduced. What flows from this instance is that the
two persons who separated from this collection of fourteen are now

8 https://www.collinsdictionary.com
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sole owners of their respective portions - the nature of the ownership
being changed from joint to single.
36. In the present context, the difference of opinion referred to above
hinges on who may constitute a membership of a thavazhi. The majority
says a single person can be a thavazhi whereas the minority says not.
The Madras Marumakkattayam Act, 1932 under Section 3(j)(i) defines
thavazhi (in context of females) as a group of persons consisting of
that female, her children and all her descendants in the female line.
37. Similarly, The Travancore Nayar Regulation, II of 1100 under Section
2(3) defines thavazhee of a female as a group of persons consisting
of that female and her issue how-low-so-ever in the female line or
such of that group as are alive. The same definition is employed in
the Cochin Nayar Act, XXIX of 1113.
38. The common thread between the three definitions is that all of them
refer to a group of persons, which includes the main female and
her future generations. This necessarily implies that in order for
a thavazhi 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.
39. The majority, here in our view, falters for in their understanding one
single female is sufficient to form a thavazhi. For the reason above
discussed and another which we shall come to in the following
paragraphs, we are unable to agree with this view.
40. The second reason is the amendment to Section 38 of the
Marumakkattayam Act, 1932 (Madras) carried out in 1958. The same
is reproduced hereunder:

Prior to Amendment by Act 26 of 1958 :
“38.(1) Any tavazhi represented by the majority of its major
members may claim to take its share of all the properties
of the tarwad over which it has power of disposal and
separate from the tarwad:
Provided that no tavazhi shall claim to be divided
from the tarwad during the lifetime of an ancestress
common to such tavazhi and to any other tavazhi
or tavazhis of the tarwad except with the consent of
such ancestress, if she is a member of the tarwad.
[2024] 11 S.C.R. 1033

Ramachandran & Ors. v. Vijayan & Ors.

(2) The share obtained by the tavazhi shall be taken by
it with the incidents of tarwad property.
Explanation — For the purpose of this Chapter, a male
member of a tarwad or a female member thereof without
any living child or descendant in the female line, shall be
deemed to be a tavazhi if he or she has no living female
ascendant who is a member of the tarwad.”

Post Amendment
“38. Right of member of tarwad or tavazhi to claim
partition. - Any member of a tarwad or tavazhi may claim
to take his or her share of all the properties of the tarwad
or tavazhi over which the tarwad or tavazhi has power of
disposal and separate from the tarwad or tavazhi.
Explanation 1.- Nothing in this section shall be a bar for
two or more members belonging to the same tarwad or
tavazhi claiming their shares of the properties and enjoying
the same jointly with all the incidents of tarwad property.
Explanation 2.- The member or members who claim
partition under this section or the member who claims or
is compelled to take his or her shares under section 39
shall be entitled to such share or shares of the tarwad
or tavazhi properties as would fall to such member or
members, if a division Per Capita were made among the
members of the tarwad or tavazhi then living.
Explanation 3.- The provisions of the section shall apply to
a tarwad notwithstanding the fact that immediately before
the commencement of the Madras Marumakkattayam
(Amendment) Act, 1958, the tarwad was included in
the Schedule or that the tarwad had been registered as
impartible.
Explanation 4.- The provisions of this section shall apply
to all suits for partition, appeals and other proceedings
arising therefrom filed or proceeded with by members
or their legal representatives and pending in the Courts
immediately before the commencement of the Madras
Marumakkattayam (Amendment) Act, 1958, and such
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suits, appeals and other proceedings shall be disposed
of in accordance with the provisions of this section as if
this section were in force at the time of the institution of
such suits, appeals and other proceedings.”
41. The majority placed its reliance on the pre-amendment version
whereunder by virtue of sub-section (2) the position of law was that
the share obtained by a thavazhi shall be taken by it with all incidents
of it being a tharwad property. The above-mentioned amendment
removes the contents of sub-section (2) which demonstrates
legislative intent to change the existing position of law. That apart, per
the discussion made above, a single person cannot form a thavazhi
and, therefore, even the unamended section 38 cannot be read to
be placing an obligation upon a single female inheriting property by
way of partition, to hold it as tharwad property. We are in complete
agreement with what Govindan Nair, J., observed in Para 56 of his
dissenting judgment, which reads thus :
“56. The same rule cannot apply to the case of an individual
member who obtain his share for himself. The property
in such cases ceases to be joint property after partition.
What really happens on partition is that the joint nature
of the property is destroyed. I conceive that right by birth
can be taken in property by a Marumakkathayee only if
that property at the time of his birth was joint property. The
property allotted to a roup will be joint property and so
children born in that group who normally take an interest
in tarwad property acquire an interest in the property
allotted to the group. But the same cannot be said when
an individual member holds property, for such property
has ceased to be joint property. On partition (forgetting for
the moment those groups who take jointly) what happens
is the destruction of the joint nature of the property. This
happens even when there is only a division in status.”
42. Encapsulating the above discussion with reference to the illustration
given earlier, it follows that neither the majority nor the dissenting
Judges of the Full Bench have any qualms with the fact that upon
partition AD2 would hold the property as tharwad property, thereby
protecting the interest of C, B and other future generations. The
disagreement stems when the devolution of property on partition
upon AD1 is considered. The majority held that AD1 would become
[2024] 11 S.C.R. 1035

Ramachandran & Ors. v. Vijayan & Ors.

a single-member thavazhi and hold the property received by her as
tharwad property protecting the interests of any children which, she
may have in the future whereas the dissenting Judges held that
since at the time of devolution AD1 did not have any children, she
would acquire the property only in her own right.
43. Turning our attention back to the instant facts, it is not in dispute that
Parukutty Amma and her descendants formed a thavazhi and had
received the scheduled properties under item No.1 collectively. As
we have already noticed above, the divergence of opinion between
the minority and majority was in respect of single female(s) receiving
property in partition. That obviously is not the case here. All five
Judges appear to be 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. Para
55 of the dissenting view expressed by Govindan Nair, J. captures as
to how groups inherit property post-partition and how such property
continues to hold tharwad characteristics. It runs as under:
“55. It is true that a tarwad need not always break up into
its ultimate components; there may be branch divisions
or some members may continue joint and continue to
hold property and there may be several such groups and
there can be a mixture of individuals holding property
obtained on partition along with groups who hold jointly
property allotted to each of those groups. The distinction
to notice is that those groups hold property allotted to each
group jointly. No member of that group has any separate
interest which he can claim as his own. His interests in the
property allotted to the group is of an identical nature as
the interests he had in the entire tarwad property before
partition. In other words, the group holds the property with
all the incidents of tarwad property as joint property. It is
because property is so held as joint tarwad property that
future tarwad members born in that group take an interest
in the property allotted to that group.”
(Emphasis supplied)

44. Since there is no difference of opinion in this regard and further
since the case before us is the inheritance of property by a group
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(branch 5), it falls in the second category (i.e. the category about
which there is no dispute) no question arises as to determining the
correctness of the view expressed, as is desired for us to do by the
original-defendants.
45. Another aspect raised in connection with properties under item
No.1 is that the property in question is held by co-owners and
is not tharwad in nature. In our view, the High Court is correct
in dismissing such an argument for, had it indeed been property
co-owned, the heirs of the two deceased donees, Madhavi Amma
and Ravunni Nair, would have also inherited their respective
shares. However, across all judicial fora the fact that the property
devolved upon nine co-donees as opposed to eleven, as it was
originally intended, has remained undisturbed. We find no reason
to take a different view. Our conclusion that branch 5 held the
property jointly is supported by the fact that the compromise deed,
which granted them the said property, was never challenged before
any Court of law. The parties consisting the 5th branch are : – Parukutty
Amma and her children, namely, 5-Karunaka Menon, 6-Neelakanda
Menon, 7-Parukutty herself, 8-Narayani Amma and 9-Ammukutty
Amma. This branch is known by the name of Karunakara Menon,
who is one of the sons of Parukutty Amma as shown by the following
words:
‘A scheduled item No.5 having value of Rs.750 and B
schedule item no.3,4,5 debt is allotted to the share of 5th
branch Karunakara Menon and others and the separate
allocated share is taken possession by each branches…’
46. The appointment of Karunakara Menon as karnavan manifests
the intention that the parties wished to jointly hold the property as
tharwad. Karanavan, as eluded to earlier, is the manager of a joint
family property similar in position to karta, however, not exactly the
same. The person appointed to such a position is generally the eldest
male member of the thavazhi.
47. In terms of the above conclusion, it appears that the original
defendants’ reliance on the minority view may be misplaced
as, at the cost of repletion, we may state that the difference of
opinion was only with respect to inheritance by single females
and not thavazhis.
[2024] 11 S.C.R. 1037

Ramachandran & Ors. v. Vijayan & Ors.

Issue 2
48. Now adverting to the next issue, learned counsel for the petitioners
make claim that the property under item No.2 is not governed by
Marumakkathayam law but instead it is a puthravakasam property
belonging to one Padmanabhan. The said fact is disputed by
record as in a mortgage deed No.3181 executed by the mother of
Padmnabhan, Parvathy Amma in favour of Purukutty Amma and her
children, it is clearly stated that:
“The property described in the schedule is assigned in my
favour as Pandaravaka puthuval pattom and I obtained
pattayam and accordingly myself and son deceased
Padmanabhan along with other branch members have
executed partition deed…… and accordingly myself and
the said Padmanabhan had obtained possession and
after the death of Padmanabhan his every right over the
property is inherited by me.”
(Emphasis supplied)

49. The above-extracted portion shows that Parvathy Amma, after
the death of her son Padmanabhan, 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. Parvathy Amma 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.
50. Learned Counsel for the petitioners also rely on partition deed
No.6143/1981 executed by children of Padmanabhan and Parukutty
Amma to hold that partition took place as putravaksham property
but we find this argument misplaced. A relevant extract of the deed
is reproduced below :
“ Properties acquired in Survey 573 of Punnurunny Desom
Poonithura Village by virtue of Document No. 1492/1950
of Thrippunithura SRO. (Book 1 Volume 600 Pages 389
onwards) and in Survey 691/2.690/1C of Vattekkunnam
Kara Thrikkakara North Village by virtue of Document No.
3177/1096 of Alangad SRO. Were acquired by us along
with our brother Late. Neelakandamenon alias Appu and
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mother Parukutty Amma and was in the joint possession
and living together..….After the death of our mother
Parukutty Amma, all her rights are vested on us and the
said properties are in the joint possession of us and we
decided to partition….”
(Emphasis supplied)

51. A perusal of this deed shows that the said properties were acquired
by them through different documents but nowhere it states that it
devolved upon them after death of their father.
52. It is further pleaded that on the death of Padmanbhan, his wife and
each of the children got an equal share by virtue of Section 22(1) of
the Travancore Act as the said section deals with property acquired
by gift or bequest from husband or father. No evidence is placed on
record to show that the said property was gifted by Padmanbhan
to his wife or children.
53. The Trial Court in regard to these properties (item No.2) held that:
“19. The second item property allegedly belonged to the
tavazih of Parukutty Amma, the plaintiff’s predecessor,
as per document No.3181/1096. The contention is
that property belonged to Parukutty Am ma’s husband,
Sankaran Padmanabhan of Kadangat taravadu, and not
to Andippillil taravadu and the plaintiffs have no right over
it. Padmanabhan and Parukutty Amma were the parents
of deceased Neelakanda Menon and defendants 1,7 and
8. It is contended that Neelakanda Menon and defendants
1, 7 and 8 became entitled to the property as the legal
heirs of their parents.
20. Ext. A2 Mortgage Deed is the document relied on by
the plaintiffs. It is seen from the recitals in the document
that the plaint schedule second item property was allotted
to the share of Parvathy and her son Padmanabhan,
husband of Parukutty Amma, in a partition and on the
death of Padmanabhan Parvathy became its exclusive
owner. It means that the property belonged to the tavazhy
of Parvathy. It is mentioned in the document that Parukutty
Amma of Andippillil tarvadu had been given possession
of this item of property even before the execution of
[2024] 11 S.C.R. 1039

Ramachandran & Ors. v. Vijayan & Ors.

Ext. A2 mortgage deed Parukutty Amma was the great
grandmother of the plaintiffs.
In 1116 M.E. Parukutty Amma’s son Neelakanda Menon
executed a document in favour of his brother Karunakara
Menon the 8th defendant in respect of this property. Ext.
B1 is a copy of the registered deed. In the document it is
mentioned that the property was obtained as per Ext. A2
mortgage deed and it was in the possession and enjoyment
of the children of Parukutty Amma. So this document
confirms that Neelakanda Menon and other claimed right
over the property only under Ext. A2 mortgage deed. In
1981 the children of Parukutty Amma executed Ext. B3
partition deed dividing the plaint schedule 2nd item property
amongst themselves. The recitals in this document prove
that they claimed right over the property only under Ext A2
mortgage deed (the -number of the document is wrongly
shown as 3177). So the executants of Ext. B3 partition
deed do not claim to have obtained right over the property
independent of Ext. A2 mortgage deed. The contention of
the defendants that the property belonged to Sankaran
Padmanbhan is correct only to an extent; he had right
only as a member of the marumakkathayam tavazhy
of his mother. When Sankaran Padmanabhan died his
mother, Parvathy, became its absolute owner. She put it
in the possession of Parukutty Amma and later executed
Ext. A2 mortgage deed. The plaintiffs are descendants of
Parukutty Amma in the female line. The evidence proves
that the plaint schedule second item property also belonged
to the tavazhy of Parukutty Amma.”
54. The observations of the High Court are already reflected in Para 16
of this judgment.
55. It is evident from the above that findings with respect to schedule
properties in item No.2 are concurrent. This Court has reiterated many
times9 that concurrent findings of fact are not to be generally interfered

9 Srinivas Ram Kumar vs. Mahabir Prasad and Ors. 1951 SCC 136; Sree Sree Iswar Gopal Jieu Thakur
v. Pratapmal Bagaria, AIR 1951 SCC 214; Addagada Raghavamma And Anr v. Addagada Chenchamma
1964 AIR SC 136; Variety Emporium v. V.R.M. Mohd. Ibrahim Naina (1985) 1 SCC 251; Indira Kaur v.
Sheo Lal Kapoor (1988) 2 SCC 488; Mithilesh Kumari & Anr vs Prem Behari Khare (1989) 2 SCC 95;
1040 [2024] 11 S.C.R.

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with unless special circumstances are shown warranting such
interference. The scenarios in which exercise of power under Article
136 of the Constitution of India would be proper, non- exhaustively,
can be culled out as thus:
55.1 Interference in concurrent findings has been termed justified
if the finding -
a) recorded does not emanate from the pleadings;
b) is foreign to or entirely divorced from the evidence on
record;
c) is reached on the basis of the evidence which is irrelevant
or extraneous and material evidence is ignored affecting
its sanctity;
d) runs contrary to any provision of law;
e) is such that a reasonable judicial mind could not have
arrived at it and/or the same is arbitrary;
f) arrived at is perverse and the soundness of reason is
compromised.
55.2 Apart from the above-mentioned scenarios, a Court would also
be justified in interfering with findings concurrent in nature if it
is of the view that they cause undue hardship to the parties.
55.3 Additionally, when the findings are such that the conscience of
the court is shocked, interference would be called for.
56. While the above are some contexts in which the Court may exercise
its plenary power, the following overarching principles should always
be considered prior to delving into such exercise:
56.1 The power has to be used sparingly and only when grave
injustice is being caused to the parties of the dispute;
56.2 The burden of proof to show that concurrent findings are unjust,
warranting interference by this Court is on the appellant.

Sardar Jogendra Singh v. State of U.P. (2008) 17 SCC 133; Guljar Singh v. Dy. Director (Consolidation)
(2009) 12 SCC 590; Ghisalal v. Dhapubai (2011) 2 SCC 298; Sukhbiri Devi & ors v. Union of India & Ors.
2022 SCC OnLine SC 1322
[2024] 11 S.C.R. 1041

Ramachandran & Ors. v. Vijayan & Ors.

56.3 Interference would not be warranted merely because in a given
set of facts, a view different from the one which stands taken
by the courts below, is possible.
56.4 It is not within the realm of practicality that all possibilities be
mapped out, as to when invocation of this power would be
felicitous. The court has to take such a call having employed
its wisdom, reason and judicial thought.
57. The above discussion on when interference in concurrent findings of
fact will be justified demonstrates that while keeping in view the factors
discussed in Para 51, any of the situations mentioned in Para 50 or
other such similar situations, have to be met. In the present facts, we
are of the considered view that none of the above scenarios appear
to be so met. In that view of the matter, the findings of fact in respect
of scheduled properties under item No.2 remain undisturbed.
58. The question of law, i.e., the difference of opinion between the
majority and minority in Mary Cheriyan (supra) is resolved holding
that the minority posited the correct view. However, it is clarified that
the pronouncement of law in this judgment shall apply prospectively.
For the purposes of ample clarity, we state that any transaction
concluded or ongoing will not be disturbed by way of this judgment
and the position of law as stated herein shall apply only henceforth.
59. In conclusion, even though we have, on the point of law upheld the
minority view of the Full Bench of the Kerala High Court, in the facts
of the present case, the finding about which all five judges were
ad idem applies. The views of the Trial Court and the High Court
therefore requires no interference by this Court.
60. Appeal stands dismissed. The preliminary decree passed by the Trial
Court and upheld by the High Court is affirmed. The Trial Court to
proceed further as per law.
61. No costs.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Divya Pandey