PETITIONER: PADMARAJA AND ORS. Vs. RESPONDENT: DHANAVATHI AND ORS. DATE OF JUDGMENT27/04/1972 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. CITATION: 1972 AIR 2219 1973 SCR (1) 383 1972 SCC (2) 100 CITATOR INFO : F 1973 SC2658 (11) ACT: Madras Aliyasantana Act (9 of 1949) s. 36(6)-Scope of-Award decree-When evidences partition-If award decrees come within s. 36(6). HEADNOTE: Differences having arisen among members of a family governed by the Aliyasantana Law, all the major members of the family except one referred the disputes to arbitration. As per the authority given to the arbitrators the arbitrators had to decide the disputes in accordance with the Aliyasantana Law of inheritance, according to which, partition was impermissible except with the consent of all the adult members of the family. The arbitrators were not required to divide the Kutumba properties on Kavaru basis; but the arbitrators divided the properties between the two Kavarus, which were then in existence in the family, in order to avoid disputes and to fix the responsibility for income, and loss. There was an award decree in terms of the award, Thereafter, the members of one Kavaru filed a suit for partition under s. 35 of the Madras Aliyasantana Act, 1949, and the appellants and some other members of the other Kavaru, contended that the Kutunba had been partitioned by the award, decree or, that the arrangement thereunder was a deemed partition under s. 36(6) of the Act. The trial court dismissed the suit, but the High Court, in appeal, held that the award decree did not evidence partition, and that it was not covered by s. 36(6) as it was an award decree and not a mere award. Dismissing the appeal to this Court, HELD : (1) When the Act came into force, in addition to joint living by the members of the Kutumba, three types of arrangements were in existence in various Kutumbas, namely, (a) When the senior most member of the family (Yejman) or (Yejmanthi) made maintenance allotments which were purely temporary in character, (b) a permanent arrangement for maintenance, and (e) partition with the consent of all adult members. In the ease of a permanent, arrangement for maintenance it was usually done on Kavairu basis, the jointness of the family was kept intact, but arrangement was made for separate living and separate management of Kutumba properties on a permanent basis which; could not be disturbed without the consent of all the adult members of the Kutumba. Such of these permanent arrangements which came within the scope of s. 36(6) are deemed to be partitions despite the fact that under those arrangements the jointness of the Kutumba was kept intact. [386A-F] (2) The conditions to be satisfied before a document can be considered as coming within the scope of s. 36(6) are : (a) there is a registered family settlement or award (b) all the major members of the Kutumba are parties to it; (c) the whole of the kutumba properties have been or were intended to have been distributed; and (d) the distribution is among all the Kavarus of the Kutumba for the separate and absolute enjoyment in perpetuity. [387 A-D] 384 Gummanna Shetty v. Nagaveniamma, [1967] 3 S,C.R. 932, followed. (3) In the present case, the award decree did not evidence a partition; because it contained clauses inconsistent with an out and out partition. The award decree recited that 'proper arrangements were made for the maintenance of the Kutumba Without disrupting its oneness'; that both Kavarus should together conscious functions; and the members of one of the Kavarus were to show accounts to the senior most member who continued to be the yejman of thee entire kutumba. [388G-H] Ammalu Amma v. Vasu Menon, A.I.R. 1944 Mad. 108, approved. (4) (6) Award decrees have to be considered as awards for purposes of s. 36(6). [391B-C] (a) The principle underlying s. 36(6) is not to disturb the finality of, arrangements made. If that were so, such permanency should be available, in a larger measure to an award decree, for otherwise, parties could enforce partition ignoring award decrees while they would be bound by awards. [390 G-H] (b) After the coming into force of the Arbitration Act, 1940, all awards had to be compulsorily made decrees of courts if they were to have force. The Akiyasahntana Act came into force in 1994 and the legislature would not have denied to the awards passed after 1940 (in terms of which decrees would have been passed) the benefit of s. 36(6) of the Aliyasanatana Act. The Legislature, by using the expression 'award' intended to include both awards simpliciter as well as awards which had been made decrees of Courts. [391A-B] Parameshwari Hengsu v. Venkappa Shetty and ors., (1961) Mys. L.J. 686 on the interpretation if s. 36(6), overruled. (5) (a) But the second condition for the application of the section is not satisfied in the present case, as one of the major members of the Kutumba was not a party to the award. [392D] (b) Even though he acquiesced in the arrangements made under the award decree he would not-be a party to the arrangement. Before the arrangement can be deemed to be a partition under s. 36(6), all the conditions should be fully satisfied, and substantial compliance is not sufficient, since, it is a case of a deemed partition and not an actual partition. [392E-F] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 999 of 1966.
Appeal by Special Leave from the judgment and order dated
July 7, 1965 of the Mysore High Court in Regular Appeal No.
37 of 1958.
K. N. Bhat, for the appellants.
Rameshwor Nath and Swaranji Ahuja, for the respondents Nos.
1 to 6.
The Judgment of the Court was delivered by
Hegde J. This is an appeal by special leave. Defendants 34
and 35 in the suit are the appellants. The suit from which
this
385
appeal arises is a suit for partition under the Madras
Aliyasantana. Act, 1949 (Madras Act IX of 1949) (which will
hereinafter IV referred to as the Act).
The two questions that arise for decision in this appeal
are’ (1) whether under the, award decree Exh. A-2, the
kutumba (family), of the plaintiffs and the defendants stood
partitioned and (2) if’ the answer to the first question is
in the negative whether the said ,award decree comes Within
the scope of s. 36(6) of the Act.
The plaintiffs and the defendants were governed by the
aliyasantana law of inheritance. It is a matriarchal system
of law. One’ Pammadi was the prepositor of the family. She
had two daughters by name Pammakke and Dejappe and three
sons viz. Kanthu Hegde, Monu Hegde and Manjappa Hegde.
After the death of Pammadi, differences arose in the family.
Hence all the major members of the family excepting one
Brahamiah referred those disputes to the arbitration of four
arbitrators by means of a mutdhallika dated December 14,
1886. By the time this mutchallika was executed, two of the
sons of Pamadi, Kanthu Hegde and Monu Hegde had died. At
that time, in the kutumba there were only two santhathi
kavaru viz. Pammakke and Dejappe and one nissanthathi
kavaru namely Manjappa Hegde in existence (reference to
santhathi kavaru and nissanthathi kavaru is as defined in
the Act). The arbitrators divided the kutumba properties
into two parts; one part was allotted to the share of
Pammakkes Kavaru and the other part to Dejappes Kavaru and
Manjappa Hegde. Manjappa Hegde was clubbed alongwith the
kavaru of Dejappe (reference to kavaru is as defined in the
Act). On June 14, 1953, all the members of the kavaru of
Pammakke brought a suit for partition of the suit properties
under s. 35 of the Act. The appellants and some other
members of the kavaru of Dejappe resisted the suit mainly On
the ground that the kutumba had been partitioned under Ex.
A-2. They contended that, the said document either
evidences a partition or at any rate the, arrangement made
thereunder is a deemed Partition coming within the scope of
s. 36(6) of the Act. The trial court came to the conclusion
on that under the Award in question the. kutumba properties
were partitioned. Alternatively it held that Ex. A-2 is
covered by s. 36(6). In appeal a Division Bench ‘of the
High Court of, Mysore reversed the judgment and decree of
the trial court. It held that Ex. A-2 does not evidence a
partition. It, further came to the conclusion that the same
is not covered by s. 16(6) as Ex. A-2 was an award decree
and not a mere award. Dissatisfied with the judgment of the
High Court, defendants 34 and 35 have brought this appeal.
The findings of the High Court as regards the true nature
of Ex. A-2 were challenged before us on behalf of the
appellants by Mr. K. N. Bhatt. Before proceeding to
consider the contentions
386
of the parties, it is necessary to refer, in brief, to the
customary aliyasantana law. Under that law inheritance is
traced through the female line. Under that law, as
interpreted by courts partition was impermissible except
with the consent of all the adult members of the family.
The senior most member of the family be it a male or a
female was a Yejman or Yejmanthi of the family. With the
passage of time, the members of the aliyasantana kutumbas
increased and kutumbas became unwieldy and joint living
became intolerable. In order to mitigate these
difficulties, three types of arrangements came to be made,
in those kutumbas. By and large the Yejman or Yejmanthi of
the family made maintenance allotments (maintenance under
the aliyasantana is a mode of participation in the family
properties). This, type of arrangement was purely temporary
in character. It was open to the Yejman or Yejmanthi to
resume the properties allotted for maintenance to the junior
members and make alternative arrangements for their
maintenance. Another type of arrangement that came to be
made was permanent arrangement for maintenance. This was
ordinarily done, on kavaru basis. Under this arrangement,
jointness of the family was kept intact but arrangement was
made for separate living and separate management of kutumba
properties on a permanent basis. Such arrangements
ordinarily were not capable of being disturbed except with
the consent of all the adult members of the kutumba. Lastly
there are few cases of partition with the consent or
concurrence of all the adult members of the kutumba. Hence
when the Act came into force in addition to joint living by
the members of kutumbas as, aforementioned types of
arrangements were in existence in various kutumbas. Under
S. 35 of the Act power was given to avarus, santhsthi or
nissanthathi to claim at partition but those permanent
arrangements which came within the scope of S. 36(6) were
deemed to be partitions despite the fact that under those
arrangements the jointness of the kutumba was kept intact.
In Gummanna Shetty and ors. v. Nagaveniamma(1), this Court
while dealing with an arrangement in a aliyasantana family
entered into in the year 1900 observed
“In 1900, when this deed was executed, one or
more members of a joint family governed by the
Aliyasanthana law of inheritance had no right
to claim partition of the joint family
properties but by a family arrangement entered
into with the, consent of all its members, the
properties could be divided and separately
enjoyed. In such families,’ an arrangement
for separate, possession and enjoyment without
actual disruption of the family was common.
An arrangement for separate enjoyment did
(1) [1967] 3 S.C.R. 932.
387
not effect a disruption of the family, unless it completely
extinguished the community of interest in the family
properties.”
Analysing the scope of s. 36(6), this Court, approving the
decision of the Madras High Court in Kaveri v. Ganga
Ratna(1) held that the following, conditions should be
satisfied before a document can be considered as coming
within the scope of s. 36(6)
1. there is a registered family settlement or award;
2. all the major members of the kutumba are parties
to it;
3. the whole of the kutumba properties have been or were
intended or purport to have been distributed under it; and
4. the, distribution is among all the kavarus of the
kutumba for their separate and absolute enjoyment in
perpetuity.
There is no difficulty about temporary arrangements for
maintenance. These arrangements could not come in the way
of effecting partition in a kutumba. Similarly if the
jointness of the kutumba had been disrupted, there is no
question of claiming any partition as there is no kutumba in
existence. The application of s. 36(6) arises only when the
case does not fall either under the first category or the
second. In construing karars (agreements) evidencing
permanent arrangements, we must bear in mind the ordinary
principles of construction of documents. The first is that
the whole document must be read and construed. The court
must have regard to the declared object of the document
which is often contained in the preamble but the title given
to a document is not conclusive. It is observed in Mr.
Sundara Ayyar’s Malabar Law that “arrangements for
maintenance will not ordinarily be viewed as permanent
arrangements though it is not impossible that there should
be such arrangements. Divisions for enjoyment short of
partition that are sometimes entered into are of this
character.”
The characteristics of such documents were considered exhau-
stively by Somayya, J. in Ammalu Amma v. Vasu Menon (2
Therein the learned judge observed :
“No doubt it may not be common but if on a
reading of the entire document, there are
clauses which are entirely inconsistent with
an out and out partition, the Courts are bound
to construe the document as a maintenance
arrangement even though it is stated to be a
permanent arrangement.”
(1) [1956] 1, M.L.J. 98.
(2) A.I.R. (31) 1944 Mad. 108.
388
Bearing in mind the principles enunciated by a long chain of
decisions, we shall first examine whether Ex. A-2 can be
considered as a document affecting partition. In
considering that question we have to primarily see whether
in Ex. A-2, there are clauses which are entirely
inconsistent with an out and out partition.
Ex. A-2 came to be rendered on the strength of a mutchallika
executed by most of the members of the kutumba in favour of
three arbitrators on December 14, 1886, for slip 2 because
of the dispute that had arisen in the family about the
enjoyment of the kutumba properties. It is also clear from
that mutchallika that some members of the family had serious
complaints against the Yejman of the family, Adu Hegde. The
mutchallika authorised the arbitrators to decide the
disputes that had arisen “in accordance with our
“Aliyasanthana Kattu”, in a manner which you deem fit”.
“Aliyasantana kattu’ i.e. Aliyasantana law of inheritance
did not provide, as mentioned earlier, for compulsory
partition. The arbitrators undoubtedly came to the
conclusion that it was difficult for the large family to
live together. It is also clear from the award that the
parties had agreed to “enjoy kutumba properties by living
separately”. They had also agreed for the separation
(vingada) of the kutumba properties. As per the authority
given to the arbitrators, the arbitrators were not required
to divide kutumba properties on kavaru basis. They could
have put together, some members of one kavaru with some
members of another Kavaru. But the arbitrators thought
“that if the members of two Kavarus are mixed together, in
future the properties would be spent, on account of mutual
disputes existing between them, and that unless the
responsibility of income and loss in the Kavaru is pinned on
the Kavaru having more members, to some extent’, all the
members will not bestow labour properly.”
That was the reason why they divided the properties prima-
rily between two kavarus. It is true that the arbitrators
divided the family debts into two parts and each kavaru was
asked to discharge the then existing debts from out of the
income of the properties that were allotted to its shares.
But at the same time Adu Hegde continued to be the Yejman of
the entire kutumba. Members of each kavaru were prohibited
from incurring debts on behalf of the kutumba. Further till
the existing debts were discharged, the members of Pammakke
kavaru were asked to “show accounts in respect of their
income and expenditure” to Adull Hegde. Exh. A-2 further
says that “the members of the kutumba should live in
different houses, by bestowing labour and without
quarreling with each other as proper arrangements were made
for the maintenance of the kutumba without disrupting its
oneness”. From this clause it is clear that the kutumba was
not disrupted. The document further provides “both the
kavarus should together
389
conduct “Havyas Kavyas” and auspicious functions”. The
fore-going clauses clearly show that Ex. A-2 did not
disrupt the kutumba though undoubtedly it “made provision
for the separate living of the Kavarus, and for the separate
enjoyment of the properties allotted to them. For these
reasons we are in agreement with the High Court that Ex. A-
2, does not evidence a partition. The terms of Ex. A-2 are
not similar to those that came up for consideration before
the Madras High Court in Appa and ors . v. Kachai Bay van
Kuti and ors.(1) or those that came up for decision by that
High Court in Mudara and ors. v. Muthu Hengsu(2). Each
document has to be construed on its own terms. Tern-is of
any two documents rarely, if at all are identical. Hence
the construction placed on a particular document can hardly
govern the construction of another document. There is no
dispute as regards the principles governing the construction
of documents.
This takes us to the question whether Ex. A-2 is covered by
s. 36(6). That section reads :
“A registered family, settlement (by whatever
name called) or an award, to which all the
major members of a kutumba are parties and
under which the whole of the kutumba
properties have been or were intended to be
distributed, or purport to have been
distributed, among, absolute enjoyment-in
perpetuity, shall be deemed to be a partition
of the kutumba properties notwithstanding any
terms to the contrary in such settlement or
award.”
Evidently the legislature wanted to deem certain deeds under
which perpetual arrangement had been made in the past for
the maintenance of all the kavarus of a kutumba as
partitions. The requirements of s. 36(6), have been laid
down by this Court as seen earlier in Gummann Shetty’s case
(supra). Therefore all that we have to see is whether the
tests laid down by this Court in that decision are
satisfied. The High Court having come to the conclusion
that the first test was not satisfied rejected the.conten-
tion of the plaintiffs that the deed Ex. A-2 comes within
the scope of s. 36(6). It came to the conclusion that an
award decree is not an award within the meaning of s. 36(6).
In arriving at that conclusion, it relied on the decision of
that Court in Parameshwari (3 ). Hangsu and ors. v. Venkappa
Shetty and ors. Parameshwari Hengsu’s case (supra) first
came up for hearing before at Division Bench consisting of
Sadasivayya and Mir Iqbal Husain JJ. Sadasivayya J. held
that the expression “award” in s. 36(6) does not take in an
award decree. But lqbal Husain J. differed from that view
and opined that the term “award” includes also an award dec-
ree. In view of that difference of opinion, the question
whether the expression “award” includes an award decree was
referred to
(1) A.I.R. 1932 Mad. 689. (2) A.I.R. 1935 Mad. 33.
(3) [1961] Mys. L. J. 686.
390
Somnath Iyer J. That learned judge agreed with the view
taken by Sadasivayya J. The decision in Parameshwari
Hengsu’s case (supra), was binding on the bench which heard
this case. Hence naturally that controversy was not again
gone into by the High Court in this case. The learned
counsel for the appellants challenged the correctness of the
decision of the Mysore High Court in Parameshwari Hengsu’s
case (supra). He contended that the expression “award” in
s. 36(6) includes also an award decree. lie urged that in
the case of an award decree, the court merely accepts the
award made and makes it a decree of the court and hence
award decrees have also to be considered as awards for the
purpose of s. 36(6). In examining the correctness of the
conclusion reached by the Mysore High Court in Parameshwari
Hengsu’s case (supra), we must first examine the principle
underlying s. 36(6). As mentioned earlier, the legislature
was evidently anxious not to disturb certain permanent
arrangements made in the kutumbas either by means of any
registered family settlements or by awards. That being the
case one fails to understand why the legislature should be
held to have excluded from the scope of s. 36(6) award
decrees while bringing within its scope awards. Dealing
with this aspect both Sadasivayya J. and Somnath Iyer J.
opined that “it is possible that with a view not to disturb
finality resulting from a decree (of whatever kind) that the
legislature intentionally refrained from referring, to
decrees in sub-s. (6) thereby confining the scope of that
sub-section only to the registered family settlements and
awards expressly mentioned therein. If that be so, no court
would be justified in equating an award to the decree passed
on it.”‘
This reasoning appears to us to be fallacious. It must be
remembered the only decrees that could possibly have been
included within the scope of s. 3 6 (6) were award decrees.
We have earlier noticed that compulsory partition was not
permissible under the aliyasantana law. Hence there could
not have been any partition decrees, nor could there have
been decree making permanent arrangements in the matter of
enjoyment of kutumba properties in aliyasantana kutumbas.
We can think of no decree regulating the affairs of kutumba
which cannot be disturbed under the Act. We agree with
those learned judges that the principle underlying s. 36(6)
was not to disturb the finality of arrangements made. That
very principle runs counter to the reasoning adopted by
those learned judges. If permanency of an arrangement is
the principle underlying s. 36(6) that permanency should be
available in a larger measure to an award decree. On the
other hand if the view taken by those learned judges is
correct, while s. 36(6) provides permanency for some awards,
no such permanency is available to any award decree.
Parties could enforce partition ignoring award decres while
they are bound by awards. This could hardly have
391
been the intention of, the legislature. There is yet
another compelling reason not to accept the majority view in
Parameshwari Hengus’s case (supra). After the coining into
force of the Arbitration Act, 1940, all awards had to be
compulsorily made decrees of the courts if they were to have
any force. The Act came into force in 1949. Many awards
coming within the scope of s. 36(6) would have been made
between 1940 and 1949. The legislature would not have
denied to those awards the benefit of s. 36(6). The basis
of every award decree is an award. Evidently the legisla-
ture by using the expression “award” intended to include
both awards simpliciter as well as awards which had been
made the decrees of courts. Whether we consider the
principle underlying s. 36(6) or the language of s. 36(6),
we see no justification to exclude award decrees from the
scope of s. 36(6). In our opinion Parameshwari Hengsu’s
case (supra) in so far as it interpreted s, 36(6) has not
been correctly decided. But that conclusion of ours does
not help the appellants. One of the conditions that Ire
necessary to be satisfied before a deed can be deemed to be
a partition under s. 36(6) is that it must be shown that all
the major members of the kutumba were parties to it.
Admittedly Brahmiah did not _join the mutchallika A-1 on the
strength of which Ex. A-2, was rendered. In other words he
was not a party to the award. But it was said on behalf of
the appellants-the same view was taken by the learned trial
judge-that Brahmiah had acquiesced in the arrangements made
under Ex. A-2. A person by merely submitting to an
arrangement made may be bound by the arrangement but thereby
he does not become a party to the arrangement. Herein we
are dealing with a deemed partition and not an actual
partition. Before an arrangement can be deemed to, be a
partition under s. 36(6), all the conditions prescribed
under that provision should be fully satisfied. In such a
case, substantial compliance with the provision is not
sufficient.
As we are of the opinion that all the major members of the
kutumba were not parties to Ex. A-2, it is not necessary to
examine whether the remaining conditions prescribed under s.
36(6) were satisfied.
In the result this appeal fails and the same is dismissed.
But in the circumstances of the case, we direct the parties
to bear their own costs in this Court.
V.P.S. Appeal dismissed.
392