Case Note & Summary
The litigation arose from a civil suit filed by the appellant, a member of Edappally Padinjare Warriam, seeking a declaration that his tarwad had hereditary right to perform Kazhakam services in two temples. The trial court, Additional Munsiff Court, Ernakulam, in O.S. No. 178 of 1958, held that the plaintiff or his family had no Karaima right in the temples. According to the appeal memorandum, both the trial court and the first appellate court concurrently recorded findings that the plaintiff's family had been performing Kazhakam services from time immemorial and had been given viruthy tenure, but nevertheless held that the family had no hereditary right and could be hired and fired at the will of the first defendant. The appellant filed Second Appeal No. 669 of 1976 before the High Court. The learned single Judge observed that the main relief of declaration in favour of the tarwad had become irrelevant in view of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976), which abolished joint tenancy of tarwad and extinguished marumakkathayam tarwad as a legal entity. The High Court, however, granted a decree for recovery of Rs.100/- from the first defendant, representing the amount paid in lieu of notice for termination of service. Before the Supreme Court, the appellant did not seek any amendment of the plaint either in the High Court or in the Supreme Court. The core legal question was whether a declaration could be granted to a tarwad after the statutory abolition of the joint family system. The Supreme Court agreed with the High Court that Kerala Act 30 of 1976 had abolished the joint family system, the tarwad had become extinct, and no declaration could be given in favour of a non-existing entity. The Court further clarified that the issue whether the Karaima right would devolve on members of the erstwhile tarwad as tenants in common did not arise for consideration and was left open. Accordingly, the appeal was dismissed with no order as to costs.
Headnote
A) Hindu Law - Joint Family System Abolition - Effect on Tarwad - Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) - The High Court held that the main relief of declaration in favour of the plaintiff's tarwad was irrelevant because the Act abolished joint tenancy of tarwad and marumakkathayam tarwad no longer exists. The Supreme Court concurred that the tarwad had become extinct and no declaration could be given in favour of a non-existing entity. Held that the appeal must be dismissed with no order as to costs (Paras 2-3). B) Hindu Law - Devolution of Hereditary Rights - Issue Left Open - Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) - The Supreme Court expressly left open the question whether the Karaima right or hereditary right would devolve on the members of the erstwhile tarwad as tenants in common, since that issue did not arise for consideration in the present appeal. Held that the said issue is left open (Para 3).
Issue of Consideration
Whether a declaration can be granted to a tarwad regarding hereditary right to perform Kazhakam services after the Kerala Joint Hindu Family System (Abolition) Act, 1975 abolished the joint family system
Final Decision
Appeal dismissed with no order as to costs; concurred with High Court that declaration cannot be granted to non-existing tarwad after Kerala Act 30 of 1976 abolished joint family system; issue of devolution of Karaima right on members as tenants in common left open.
Law Points
- Abolition of joint family system extinguishes tarwad
- no declaration can be granted to non-existing entity
- hereditary right devolution on tenants in common left open
