PETITIONER:
SUNDARI AND ORS.
Vs.
RESPONDENT:
LAXMI AND ORS.
DATE OF JUDGMENT28/08/1979
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
GUPTA, A.C.
CITATION:
1980 AIR 198 1980 SCR (1) 404
1980 SCC (1) 19
ACT:
Madras Aliyasantana Act, 1949 (Madras Act IX of 1949)
Sections 3(b) (i), (ii) (f), (h), 36(3) & (5) read with
Section 7(2), 17, 30 of Hindu Succession Act, 1956 (Act 30
of 1956)-Devolution of the property allotted to a
'nissanthathi kavaru' under the Aliyasantana law and its
effect on the Hindu Succession Act, explained.
HEADNOTE:
The parties to the litigation leading to this appeal
are governed by the Aliyasantana law prevalent in the
district of South Kanara. They were members of a Kutumba
descended from a common ancestress by name Manjekke. One
Parameshwari and her son and daughter instituted original
suit No. 91 of 1950 before the Court of the Subordinate
Judge South Kanara for partition of properties in accordance
with the provisions of Madras Aliyasantana Act, 1949. The
suit was dismissed, but on appeal the High Court reversed
it. The High Court passed a preliminary decree on 28-6-1961
and remanded the suit for further proceedings. In the trial
a joint memo was filed by the parties on 25th September 1963
accepting the shares as per the memo. Defendants 22 to 24 in
the suit were allotted 85176 shares out of a total of
6,15,264 shares.
Defendants 22,23,24 were all male members of the
'Kutumba' and were 'Nissanthathi kavaru'. On the death of
the 23rd and 24th defendants their legal Representatives who
were brought on record filed R.I.A. No. 2266/66 and R.I.A.
2259/66 respectively claiming that out of the share allotted
to the Kavarus of defendants 22 to 24, one-third
representing the share or interest of the 23rd and 24th
defendants be allotted to them. The petition was opposed on
the ground that each one of the defendants 22, 23, and 24
was a separate 'Nissanthathi Kavaru' and on the death of
each of the defendants 24 and 23, his share or interest
devolved upon the 'Santhathi Kavaru' nearest to him to which
defendants 11, 12 and 16 belonged. The plea of the 22nd
defendant was that all the three defendants 22, 23 and 24
constituted one single Nissanthathi Kavaru to which, under
the preliminary decree one single or joint share was
allotted and, therefore, the said share survived to the last
surviving member thereof (22nd defendant) and that no
devolution on a 'Santhathi Kavaru' under sub-section (5) of
Section 36 is possible until the last member of
'Nissanthathi Kavaru' viz. the 22nd defendant dies.
The trial court found that in the High Court decree
dated 20-6-1961 defendants 22 to 24 were allotted shares
jointly. It further held that defendants 22, 23 and 24
formed three 'Nissanthathi Kavarus' as their mother was dead
at the time of the filling of the suit and partition was
effected and there was no undivided interest in the property
when they died so as to attract the provisions of section
7(2) of the Hindu Succession Act.
The High Court on appeal held that when the 24th
defendant died he had an undivided interest in the
properties of the Kavaru of himself and defendants
405
22 and 23 and that the said undivided interest quantified as
provided by the explanation to sub-section (2) of section 7
of the Hindu Succession Act and would devolve by intestate
succession under the Succession Act. Similarly when the 23rd
defendant died he had an undivided interest in the property
jointly belonging to himself and the 22nd defendant. That
undivided interest also get quantified under Section 7(2) of
the Hindu Succession Act. The High Court allowed the appeals
holding that the property descended according to the rule of
intestate succession contained in Hindu Succession Act.
Dismissing the appeal by special leave the Court,
^
HELD: 1. The three defendants were allotted jointly a
share in the partition. In the suit filed by one
Parameshwari defendants 22, 23 and 24 were made parties as
they belonged to the Kavaru of their mother. They pleaded in
the written statement for the allotment of their share in
the event of partition. Moreover in the joint memo their
joint share was shown as 85, 176 out of the total share of
615,264. [409E, 410C-D]
2. The three defendants have enjoyed the interest as
Nissanthathi Kavaru, and on partition are entitled only to
life interest in the properties allotted to them under
section 36(3) of the Madras Aliyasantana Act, 1949. [411-C-
D]
3. In view of the over-riding provision in Section 4 of
the Hindu Succession Act, it is clear that the provisions of
Aliyasantana Act, whether customary or statutory will cease
to apply, in so far as they are inconsistent with the
provisions of the Hindu Succession Act, which came into
force on 17th June 1956. Therefore, the devolution by
testamentary or intestate succession is under the Hindu
Succession Act. [411G-H]
The explanation to Section 7(2) of the Act provides
that the interest in the property of the Kutumba or Kavaru
of a Hindu shall be deemed to be the share in the property
of the Kutumba or Kavaru, as the case may be, that would
have fallen to him or her if a partition of that property
per capita had been made immediately before his or her death
among all the members of the Kutumba or Kavaru, as the case
may be, then living whether he or she was entitled to claim
such partition or not under the Aliyasantana law and such
share shall be deemed to have been allotted to him or her
absolutely. The result of the Explanation is that the
undivided interest in the property of the Hindu in the
Aliyasantana Kutumba or Kavaru shall devolve as provided for
under the Hindu Succession Act and that the share of the
Hindu shall be deemed to have been allotted to him
absolutely. [412G-H, 413A]
The Explanation to section 30 of the Hindu Succession
Act provides that a member of an Aliyasantana Kutumba or
Kavaru can dispose of his interest in Kutumba properties by
a will, while under the Aliyasantana law the individual
cannot do so. Explanation to section 30(1) enables the male
Hindu in a Kutumba or Kavaru which is deemed to be property
capable of being disposed of by him Sections 7(2) and 30(1)
would relate to undivided interest in the property of the
Kutumba or Kavaru. [413B-D]
Section 17 of the Hindu Succession Act deals with the
intestate succession to the separate property of a Hindu
male under the Aliyasantana law. It provides that section 8,
10, 15 and 23 shall have effect with certain modifica-
406
tions in relation to persons who would have been governed by
the Aliyasantana law. Section 8 provides that the property
of a male Hindu dying intestate shall devolve as specified
in the section. The succession to the property of a male
Hindu belonging to a Kutumba or Kavaru of Aliyasantana law
dying intestate would be governed by the provisions of
section 8 as modified by section 17, the effect being that
the succession as provided for under the Aliyasantana law
would not be applicable to Hindu females under section 10
which provides for the distribution of property among heirs
in class 1 of the Schedule. Section 15 provides the general
rule of succession in the case of Hindu females. The rule as
to the succession is also made applicable to Hindu female
under the Aliyasantana law which provides for succession of
the separate property of a Hindu male and a female. Section
14 of the Act enlarges the property possessed by a female
Hindu (and not a Hindu male) whether acquired before or
after the commencement of the Hindu Succession Act by
providing that she will hold the property as a full owner
and not as a limited owner. The Hindu male will be entitled
only to the limited rights as provided for under the law
applicable to him. According to the provisions of section
36(5) of the Aliyasantana law, the property allotted to
Nissanthathi Kavaru at a partition is enjoyed by it only as
a life interest and at the time of the death of the last of
its members shall devolve upon the Kutumba. But when a Hindu
governed by the Aliyasantana law dies possessed of a life
interest, after his death the property devolves under the
Hindu Succession Act to the heirs as provided for under the
said Act and not under the Aliyasantana Act and therefore
would not revert back to the Kutumba. [413H, 414A-C, 418D-E]
4. The effect of the Provisions of the Hindu Succession
Act is that after the coming into force of the Hindu
Succession Act an undivided interest of a Hindu would
devolve as provided by section 7(2), while in the case of
separate property it would devolve on his heirs as provided
for in the Hindu Succession Act. Even though a Nissanthathi
Kavaru might have a limited interest which would in turn
devolve upon a Kutumba or the nearest Santhathi Kavaru under
Section 36(5) of the Aliyasantana Act, the devolution will
be under the Hindu Succession Act, as the mode of devolution
prescribed under section 36(5) of the Aliyasantana Act, has
to give way to the provisions of section 8 of the Hindu
Succession Act, which prescribed a different mode of
succession. [414G-H, 415-A]
In this case, the property has been found to be
undivided as between defendants 22, 23 and 24 and therefore,
the position is that on the death of each one of the
defendants his undivided interest would devolve on his
heirs. [415B]
The contention that there was a division in status on
the filing of suit for partition or that as the mother was
dead there were separate Kavarus is not correct. In the case
of defendants 22, 23 and 24 who are male the Kavaru would
mean the Kavaru of the mother of that male under section
3(b) (ii) of the Aliyasantana Act. The male by himself
cannot be a Kavaru under the definition. By virtue of the
Explanation to Section 35(2) a male member of a Kutumba is
deemed to be a Kavaru for the purpose of Chapter VI, which
deals with partition of Kutumba. In this case, the suit was
filed by Parameshwari and her two children for the partition
and separate possession of their share of the Kutumba
property. When the suit is not filed by a male member the
provisions of Chapter VI will not be applicable. The deemed
provision is only applicable in considering the right to
claim partition. Further
407
when the plaintiff filed the suit, there is no presumption
that there was a division in status of all the Kavarus that
constituted the Kutumba. The filing of the suit will no
doubt result in the disruption of the joint status of the
plaintiff/Kavaru, but the other Kavarus may continue to be
joint in the Kutumba. Whether the other Kavarus continued to
be joint in the Kavaru or not is a question of fact. [415E-
H, 416A]
Jalaja Shedthi and Ors. v. Lakshmi Shedthi and Ors.,
[1974] 1 S.C.R. 707, and Sundara Adappa and Ors. v. Girija
and Ors. A.I.R. 1962 Mys. 72, explained and distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1543 of
1969.
Appeal by Special Leave from the Judgment and Order
dated 13-8-1968 of the Mysore High Court in C.R.P. No.
931/67.
R. B. Datar and Lalit Bhardwaj for the Appellants
K. N. Bhat for the Respondents.
The Judgment of the Court was delivered by
KAILASAM, J.-This appeal is by special leave granted by
this Court against the judgment and order of the High Court
of Mysore in C.R.P. No. 931 of 1967 allowing a revision
against the order passed by the Civil Judge, Mangalore, in
R.I.A. No. 2266 of 1966 in O.S. No. 91 of 1950.
The facts of the case may be briefly stated. The
parties to this litigation are governed by the Aliyasanthana
law prevalent in the district of South Kanara. They were
members of a Kutumba descended from a common ancestress by
name Manjekke. One Parameshwari and her son and daughter
instituted Original Suit No. 91 of 1950 before the Court of
the subordinate Judge at South Kanara for partition of
properties in accordance with the provisions of the Madras
Aliyasanthana Act, 1949, (Madras Act IX of 1949). The suit
was dismissed by the Trial Court upholding the defence
raised that a certain award decree made in Original Suit No.
314 of 1924 on the file of the District Munsiff, Mangalore,
amounted to a partition within the meaning of sub-section
(6) of Section 36 of the Madras Aliyasanthana Act, and
therefore another suit for partition was not maintainable.
Though the trial court dismissed the suit holding that the
suit for partition was not sustainable it proceeded to
record findings determining the shares to which the members
of several branches are entitled in the event of there being
a decree for partition.
On appeal by the plaintiffs the High Court of Karnataka
reversed the decision of the Subordinate Judge and held that
the award decree in Original Suit No. 314 of 1924 on the
file of the District Munsiff,
408
Mangalore, did not amount to a partition and that the suit
for partition was maintainable. The High Court passed a
preliminary decree on 28th June, 1961 and remanded the suit
for further proceedings. The Advocates on both sides agreed
regarding the shares of the parties and the Court directed a
preliminary decree for partition and specified the shares as
found by the Trial Court in Paragraph 17 of its judgment.
The shares were determined on a joint memo filed by the
parties on 25th September, 1963. The shares allotted to
defendants 22 to 24 were 85,176 out of a total of 615,264
shares.
Defendants 22, 23 and 24 are all male members of the
kutumba and are ‘nissanthathi kavaru’. The 24th Defendant
died before the preliminary decree was passed on 10th June,
1957 and his wife and children were brought on record as
legal representatives. The 23rd defendant died on 9th March,
1962, after the passing of the preliminary decree. His wife
and children were brought on record as legal
representatives. During the final decree proceedings the
legal representatives of the 24th respondent filed R.I.A.
No. 2259 of 1966 and the representatives of the 23rd
defendant filed R.I.A. No. 2266 of 1966 claiming that out of
the share allotted to the kavaru of defendants 22 to 24,
one-third representing the share or interest of the 24th and
the 23rd defendants be allotted to them. This petition was
opposed on the ground that each one of the defendants 22, 23
and 24 was a separate nissanthathi kavaru and on the death
of each of the defendants 24 and 23 his share or interest
devolved upon the santhathi kavarus nearest to him to which
defendants 11, 12 and 16 belonged. The plea of the 22nd
defendant was that all the three defendants 22, 23 and 24
constituted one single nissanthathi kavaru to which, under
the preliminary decree one single or joint share was
allotted, and therefore the said share survived to the last
surviving member thereof (22nd defendant), and that no
devolution on a santhathi kavaru under sub-section (5) of
section 36 is possible until the last member of the
nissanthathi kavaru, viz., the 22nd defendant, dies.
The trial court found that in the High Court decree
dated 20-6-1961 defendants 22 to 24 were allotted shares
jointly. It rejected the contentions of both the applicants
i.e. the legal representatives of defendants 23 and 24 as
well as the surviving defendant 22 holding that defendants
22, 23 and 24 formed three different nissathathi kavarus as
their mother was dead at the time of the filing of the suit
and partition was effected and there was undivided interest
in the property when they died so as to attract the
provisions of
409
section 7(2) of the Hindu Succession Act. The trial court
dismissed both I.As. 2259 & 2266/66.
The High Court on appeal while agreeing with the
conclusion arrived at by the Civil Judge that the clear
intention of defendants 22, 23 and 24 was that one share be
jointly alloted to three of them together held that when the
24th defendant died he had an undivided interest in the
properties of the kavaru of himself and defendants 22 and 23
and that the said undivided interest quantified as provided
by the explanation to sub-section (2) of section 7 of the
Hindu Succession Act, and would devolve by intestate
succession under the said Succession Act. Similarly when the
23rd defendant died he had an undivided interest in the
property jointly belonging to himself and the 22nd
defendant. That undivided interest also got quantified under
section 7(2) of Hindu Succession Act. The High Court allowed
the appeals holding that the property descended according to
the rules of intestate succession contained in the Hindu
Succession Act.
In this appeal the main contention of the learned
counsel for the appellants is that the High Court was in
error in holding that defendants 22, 23 and 24 were male
members of one nissanthathi kavaru and that the three
defendants did not constitute three different nissanthathi
kavarus. On a consideration of the plaint, the written
statement, the consent memo and the preliminary decree
passed by the High Court we agree with the conclusion
arrived at by the High Court. The suit was filed by one
Parameshwari and her son and daughter as plaintiffs in O.S.
No. 91 of 1950 praying for a partition of the properties and
for allotment of her share to her. In the suit defendants
22, 23 and 24 were made parties as they belonged to the
kavaru of their mother. In paragraph 10 of the written
statement defendants 22, 23 and 24 stated that they have no
objection to the partition of the family properties
according to the rights of the parties but submitted that in
the event of partition their share should be allotted to
them and further the plaintiffs should be directed to
surrender possession of the properties in Schedule I of the
written statement. The written statement was filed jointly
by the three defendants and their plea was that in the event
of partition their share should be allotted to them. The
statement clearly indicates that the three defendants
together asked for allotment of their shares in the family
properties. There was no dispute as to the quantum of shares
to the parties. The trial court has recorded:
“The learned Advocates on both sides are agreed
that the suit be decreed for partition in respect of
the plaint
410
schedule immovable properties; they are also agreed
that the shares be divided as indicated in para 17 of
the Trial Court’s judgment. We direct that a
preliminary decree for partition of the plaint schedule
immovable properties be drawn up accordingly.”
Para 17 of the trial court’s judgment reads:
“In case this suit is to be decreed, the shares to
which the several parties are entitled to will be as
set out in the joint memo filed by the parties on 25-9-
1963, which are as follows.”
Shares of defendants 22, 23 and 24 are mentioned as
85,176 out of total share of 615,264. On a consideration of
the pleadings the consent memo and the preliminary decree
the High Court came to the conclusion that the shares were
allotted to the three defendants jointly. We agree with the
conclusion arrived at by the High Court and hold that the
three defendants were allotted jointly a share in the
partition.
The learned counsel for the appellant submitted that
this finding of fact would not conclude the appeal. He
submitted that in law there was no undivided interest in the
property which defendants 24 and 23 owned at the time of
their death as required under section 7(2) of the Hindu
Succession Act. The submission on this aspect is two fold.
(1)(a) Defendants cannot claim that they were
members of the kavaru of their mother as
their mother was dead at the time when the
partition suit was filed:
(b) Under the Explanation to sec. 35(2) a male
member of a kutumba is deemed to be kavaru.
Therefore each one of the three members would
constitute a separate kavaru and therefore
there was no undivided interest as amongst
them.
(2) The filing of partition suit by one of the
members of the kutumba would have the effect
of effecting the severance of the status and
therefore there was no longer any undivided
interest between the several members of the
kutumba.
Before dealing with the contentions it is necessary to
briefly refer to the salient features of Aliyasanthana law.
In the well-known treatise on Malabar and Aliyasanthana law
by P. R. Sundara Aiyar, a distinguished Judge of the Madras
High Court, and edited by
411
B. Sitarama Rao, an eminent lawyer of the Madras High Court
who hailed from the South Kanara, the Aliyasanthana law is
stated to imply a rule of inheritance under which property
descends in the line of nephews. The term “Aliyasanthana
Law” is the exact Canarese equivalent of the Malayalam term
Marumakkathayam. Aliyasanthana Law differs but slightly from
the Marumakkathayam system. In its main features viz.,
impartibility, descent in the line of females and
nonrecognition of marriage as a legal institution it
completely agrees with the Marumakkathayam law. In
Aliyasanthana law the males are equal proprietors with
females and joint management is recognised, while the
Marumakkathayam law does not recognise a right to join
management. The succession to the separate property of an
individual member in Aliyasanthana law is to the nearest
heirs and not to the Tarwad as in the Marumakkathayam law.
The succession of the heirs of the separate property is,
recognised by the Madras Aliyasanthana Act, 1949, sections
18 to 24. On the facts of the present case it is not
disputed that defendants 22, 23 and 24 have enjoyed the
interest as nissanthathi kavaru and on partition are
entitled only to life-interest in the properties allotted to
them under section 36(3) of the Madras Aliyasanthana Act.
The question that arises for consideration is how far the
Aliyasanthana Act regarding partition and succession has
been affected by the Hindu Succession Act. The Hindu
Succession Act came into force on 17th June, 1956. The
preamble states that the Act amends and modifies the law
relating to intestate succession among Hindus. Though the
preamble refers only to “Intestate succession” as the title
‘Hindu Act’ indicates it relates to the law of succession
among Hindus and not merely to intestate succession as
mentioned in the Preamble. The law has brought about radical
changes in the law of succession. The law is applicable to
all Hindus as provided in section 2 of the Act. It is made
clear that the law is applicable not only to persons
governed by Dayabhaga and Mitakshara law but also to persons
governed by Aliyasanthana, Marumakkathayam and Nambudri
systems of Hindu Law. Section 4 of the Act gives overriding
application to the provisions of the Act and lays down that
in respect of any of the matters dealt with in the Act all
existing laws whether in the shape of enactment or otherwise
which are inconsistent with the Act are repealed. Any other
law in force immediately before the commencement of this Act
ceases to apply to Hindus in so far as it is inconsistent
with any of the provisions contained in the Act. It is
therefore clear that the provisions of Aliyasanthana law
whether customary or statutory will cease to apply, in so
far as they are inconsistent with the provisions of the
Hindu Succession Act.
412
The scheme of the Hindu Succession Act in the matter of
succession to the property of Hindu dying intestate is
provided in sections 8 to 13. Sections 15 and 16 provide for
the succession to the property of a female dying intestate.
Section 17 specifically provides for application of the
Hindu Succession Act to persons governed by Malabar and
Aliyasanthana law. Section 14 does not relate to succession
but provides that any property possessed by a female Hindu
whether acquired before or after the commencement of this
Act shall be held by her as full owner thereof and not as
limited owner.
Section 7(2) is the section which relates to the
devolution of an undivided interest in the property of a
kutumba or kavaru and may be extracted in full.
“7(2) When a Hindu to whom the Aliyasanthana law
would have applied if this Act had not been passed dies
after the commencement of this Act, having at the time
of his or her death an undivided interest in the
property of Kutumba or Kavaru, as the case may be, his
or her interest in the property shall devolve by
testamentary or intestate succession, as the case may
be, under this Act and not according to the
Aliyasanthana law.
Explanation-For the purposes of this sub-section,
the interest of a Hindu in the property of a kutumba or
kavaru shall be deemed to be the share in the property
of the kutumba or kavaru, as the case may be, that
would have fallen to him or her if a partition of that
property per capita had been made immediately before
his or her death among all the members of the kutumba
or kavaru, as the case may be, then living whether he
or she was entitled to claim such partition or not
under the Aliyasanthana law, and such share shall be
deemed to have been allotted to him or her absolutely.”
Under the customary law and under the Madras
Aliyasanthana Act, 1949 the undivided interest in the
property of a Hindu in Aliyasanthana kutumba or kavaru
devolved according to the provisions of the Aliyasanthana
law but after the introduction of sec. 7(2) the devolution
by testamentary or intestate succession is under the
provisions of the Hindu Succession Act. The Explanation to
sec. 7(2) provides that the interest in the property of the
kutumba or kavaru of a Hindu shall be deemed to be the share
in the property of the kutumba or kavaru, as the case may
be, that would have fallen to him or her if a partition of
that property per capita had been made immediately before
his or her death among all the members of the kutumba or
kavaru, as the case may be, then living whether he or she
was entitled
413
to claim such partition or not under the Aliyasanthana law,
and such share shall be deemed to have been allotted to him
or her absolutely. The result of the Explanation is that the
undivided interest in the property of the Hindu in the
Aliyasanthana kutumba or kavaru shall devolve as provided
for under the Hindu Succession Act and that the share of the
Hindu shall be deemed to have been allotted to him
absolutely. The Explanation to sec. 30 of the Hindu
Succession Act provides that a member of an Aliyasanthana
kutumba or kavaru can dispose of his interest in the kutumba
properties by a will. Under the Aliyasanthana law the
individual cannot dispose of his interest in the kutumba by
a will. Explanation to sec. 30(1) enables the male Hindu in
a kutumba or kavaru to dispose of his interest in a kutumba
or kavaru which is deemed to be property capable of being
disposed of by him. Thus while sec. 7(2) provides that when
a Hindu to whom the Aliyasanthana law would have applied if
this Act had not been passed dies after the commencement of
this Act, having at the time of his or her death an
undivided interest in the property of kutumba or kavaru as
the case may be, under the Hindu Succession Act, sec. 30
enables the male Hindu to dispose of his undivided interest
in a kutumba or kavaru by a will. While these two sections
relate to undivided interest in the property of the kutumba
or kavaru sec. 17 deals with the succession to the separate
property of a Hindu male under the Aliyasanthana law. It
provides that sections 8, 10, 15 and 23 shall have effect
with certain modifications in relation to persons who would
have been governed by the Aliyasanthana law. Section 8
provides that the property of a male Hindu dying intestate
shall devolve as specified in the section. The succession to
the property of a male Hindu belonging to a kutumba or
kavaru of Aliyasanthana law dying intestate would be
governed by the provisions of sec. 8 as modified by sec. 17
the effect being that the succession as provided for under
the Aliyasanthana law would not be applicable. Section 10
provides for the distribution of property among heirs in
Class I of the Schedule. Section 15 provides the general
rule of succession in the case of Hindu females. The rule
as to the succession is also made applicable to Hindu female
under the Aliyasanthana law with the modifications provided
for under sub-sec. (2) of section 17. Section 23 of the
Hindu Succession Act is not applicable to a Hindu governed
by Aliyasanthana law. Thus sec. 17 which makes sections 8,
10, 15 and 23 applicable with certain modifications to a
Hindu under the Aliyasanthana law provides for succession of
the separate property of a Hindu male and a female. After
the coming into force of the Hindu Succession Act, the
provisions of section 7(2) are applicable as regards
undivided interest of a Hindu governed by Aliyasanthana law
8–531SCI/79
414
while the provisions of the explanation to section 30 are
applicable in the case of a will relating to his interest in
the family property. Section 17 provides that sections 8,
10, 15 and 23 with modifications will apply to the separate
property of a Hindu under the Aliyasanthana law.
Section 14 enlarges the property possessed by a female
Hindu whether acquired before or after the commencement of
the Hindu Succession Act by providing that she will hold the
property as full owner and not as a limited owner. This
provision is applicable to Hindu females and does not have
the effect of enlarging a limited estate in the hands of a
Hindu male. The Hindu male will be entitled only to the
limited rights as provided for under the law that is
applicable to him. But when once the succession opens by the
death of the Hindu sec. 7(2) provides that the share in the
undivided interest of the Hindu would devolve on his heirs
under the Hindu Succession Act absolutely. A Hindu under
section 30 of the Hindu Succession Act is also conferred the
right to disposing of by will his interest in the kutumba or
kavaru. While a Hindu dies intestate his undivided interest
devolves absolutely on his heirs, in the case of his
separate property the succession is governed by the
provisions of sections 8, 10 and 15 of the Act as modified
by section 17.
It may be noted that regarding the separate property of
a Hindu the Madras Aliyasanthana Act provides that the
provisions of sections 19, 20, 21, 22, 23 and 24 of the Act
would be applicable. The separate property does not revert
back to the kutumba or kavaru of the Aliyasanthana family.
At the time of the partition if any kavaru taking a share is
a nissanthathi kavaru, it shall have only a life-interest in
the properties allotted to it under certain circumstances
and the property would revert back to a santhathi kavaru if
it is in existence. Section 36(3) of the Madras
Aliyasanthana Act provides that the properties allotted to a
nissanthathi kavaru at a partition and in which it had only
a life-interest at the time of the death of the last member,
shall devolve upon the kutumba or where the kutumba has
broken up, at the same or at a subsequent partition, into a
number of kavarus, upon the nearest santhathi kavaru or
kavarus. The devolution of the property allotted to a
nissathati kavaru which has only a life-interest devolves
upon a kutumba or the nearest santhathi kavaru. This mode of
devolution prescribed by section 36(5) of the Aliyasanthana
Act has to give way to the provisions of section 8 of the
Hindu Succession Act which prescribed a different mode of
succession.
The effect of the provisions of the Hindu Succession
Act above referred to is that after the coming into force of
the Hindu Succession Act an undivided interest of a Hindu
would devolve as provided for
415
under sec. 7(2) while in the case of separate property it
would devolve on his heirs as provided for in the Hindu
Succession Act. Even though a nissanthathi kavaru might have
a limited interest as the devolution prescribed for in the
Madras Aliyasanthana Act is no more applicable the
devolution will be under the Hindu Succession Act.
In this case the property has been found to be
undivided as between defendants 22, 23 and 24 and therefore
the position is that on the death of each one of the
defendants his undivided interest would devolve on his
heirs.
The learned counsel for the appellants relied on the
Explanation to sec. 35(2) of the Madras Aliyasanthana Act
and submitted that every male member of a kutumba shall be
deemed to be a kavaru and on filing of a suit for partition
it must be deemed that every male member of the kutumba got
himself separated. Kuttumba is defined under sec. 3(c) as
meaning a group of persons forming a joint family with
community of property governed by the Aliyasanthana law of
inheritance. Kavaru is defined under sec. 3 (b) (i) and (ii)
as under:-
“3(b)(i)”Kavaru”, used in relation to a female,
means the group of persons consisting of that female,
her children and all her descendants in the female
line;
(ii)”Kavaru” used in relation to a male, means the
Kavaru of the mother of that male;”
In the case of defendants 22, 23 and 24 who are males
the kavaru would mean the kavaru of the mother of that male.
The male by himself cannot be a kavaru under the definition.
By virtue of the Explanation to sec. 35(2) a male member of
a kutumba is deemed to be a kavaru for the purpose of
Chapter VI. Chapter VI deals with partition of kutumba. In
this case the suit was filed by Parmeshwari and her two
children for the partition and separate possession of their
share of the kutumba property. When the suit is not filed by
a male member the provisions of Chapter VI will not be
applicable. The deemed definition is only applicable in
considering the right to claim partition. Further, when the
plaintiff filed the suit there is no presumption that there
was a division in status of all the kavarus that constituted
the kutumba. The filing of the suit will no doubt result in
the division of the status of the plaintiff kavaru but the
other kavarus may continue to be joint in the kutumba.
Whether the other kavarus continued to be joint in the
kavaru or not is a question of fact. In this case it is
found there is no material to hold that there was division
of status as between defendants 22, 23 and 24. In this view
the contentions of the learned counsel for the appellants
that there was divi-
416
sion in status on the filing of the suit for partition or
that as the mother was dead there were separate kavarus will
have to be negatived. The reliance on Explanation to sec.
35(2) will not help the appellants.
In Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors. one
and his sister and her sons were members of an Aliyasanthana
Kutumba. C executed a will on January 25, 1957 bequeathing
his interest in favour of the appellants. On January 25,
1957 the respondents issued a notice to C stating that he
was the manager of the divided family, that he was a
nissanthathi kavaru while the respondents were santhathi
kavarus, as such there were only two kavarus and that they
had decided to divide the properties between C and
themselves. The respondents demanded a share belonging to
their kavaru from out of the entire movable and immovable
properties of the family. C replied on January 24, 1957 that
there were only two kavarus in the family and both the
kavarus were nissanthathi kavarus. C also expressed that he
had no objection to the claim for partition made by the
respondents and was prepared to effect it provided the
respondents cooperated. C subsequently died on February 13,
1957 after the coming into force of the Succession Act.
On March 23, 1957 the appellants gave a notice to the
respondents claiming a separate share under C’s will. The
respondents replied to the notice on the same day denying
that the appellants had any share because according to them
C was entitled only to a life-interest under the
Aliyasanthana law. It was held by this Court that there was
neither a kutumba nor can C be a kavaru as the two kavarus
after the division in status became only one kavaru, viz.
that of respondent No. 1, sister of C. It was held that the
C is not a kavaru within the meaning of sec. 3(b) of the
Madras Act because under sec. 3(b) (ii), there being no
female line, it is only C’s mother who can be a kavaru but
not C. If C is not a kavaru there is no property of a
kavaru, which can be disposed of under sec. 30 of the
Succession Act. Even under the explanation to that section,
the life-interest which C had on severance of status is not
properly capable of being disposed of by a will nor could it
devolve by survivorship. As he is no longer a kavaru and had
therefore no interest in the property of the kavaru, C’s
life-interest is also not enlarged under section 7(2) of the
Hindu Succession Act, into an absolute interest. Section 14
of the Hindu Succession Act cannot also be availed of as the
life-interest of a male under the Aliyasanthana law cannot
enlarge under section 14.
417
Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors. (supra)
relates to a will executed on 15th January, 1958 by
Chandayya Shetty bequeathing his interest in favour of his
wife and children. A week after the execution of the will on
22nd January, the first respondent i.e. the sister of
Chandayya Shetty and her children issued a notice to
Chandayya Shetty stating that they had decided to divide the
properties between Chandayya Shetty and themselves and
demanded a share belonging to their kavaru. Chandayya Shetty
subsequently died on 13th February, 1957. On 23rd March,
1957 Chandayya Shetty’s wife and her children gave notice
claiming a separate share under the will of Chandayya
Shetty. It was found that on a demand for partition there
was a division of status though partition by metes and
bounds had not taken place. There was only two kavarus and
in the circumstances it could not be pleaded that joint
status between other kavarus continued. There was therefore
no undivided interest of a coparcener, within the meaning of
section 7 (2) of the Hindu Succession Act. If there was no
undivided interest it is clear that provisions of section
7(2) of the Hindu Succession Act cannot apply. In
considering the effect of the will the Court agreed with the
view of a full Bench of the High Court of Mysore in Sundara
Adappa and Ors. v. Girija & Ors.
It was contended before the full Bench that by virtue
of sec. 30(1) of the Hindu Succession Act the right of the
first defendant who had obtained a preliminary decree for
his 75/360th share of his properties became capable of being
disposed of by will and therefore the children of the first
defendant would be entitled to the share in accordance with
the terms thereof. The Mysore High Court held that the
benefit referred to in the Explanation to sec. 30(1) is
confined to the interest of a male Hindu in his kutumba and
would not apply to the property obtained by him as his share
in the preliminary decree. This Court in approving the above
observations observed. “The above statement of the law which
meets the several contentions raised before us is in
consonance with our own reading of the provisions of the
Madras Act and the Succession Act”. This Court rejected the
pleas that the effect of section 17 of the Succession Act
was not considered in the Mysore case, holding that the
question was not relevant in the case before them or in the
Mysore case because sec. 17 of the Succession Act applies to
provisions of sections 8, 10, 15 and 23 which dealt with
intestacy. As we are concerned in the present case with the
intestate succession to the estate of defendants 24 and 23,
the decisions are not applicable to the facts of this case.
418
The plea of the learned counsel for the respondents
that even if the property of the defendants 24 and 23 were
held to be separate property the succession would be in
accordance with Hindu Succession Act by virtue of the
provisions of sec. 17 of the Hindu Succession Act will have
to be considered. Chapter II of the Hindu Succession Act
which deals with the intestate succession is applicable to
the property of Hindus and the provisions of this Chapter
would prevail over any law which was in force immediately
before the commencement of this Act. Therefore the
provisions relating to succession of Aliyasanthana Hindus
would be by the provisions of the Hindu Succession Act and,
not by the Aliyasanthana law. Section 7(2) and sec. 17 of
the Hindu Succession Act deal specifically with succession
of the property of a Hindu belonging to Aliyasanthana
family. While sec. 7(2) relates to devolution of undivided
interest in the property of a kutumba or kavaru of a Hindu
belonging to an Aliyasanthana family sec. 17 makes the
provisions of sections 8, 10, 15 and 23 with the
modifications specified in sec. 17 to the devolution of
separate property of a Hindu under the Aliyasanthana law.
According to the provisions of sec. 36(5) the property
allotted to nissanthathi kavaru at a partition is enjoyed by
it only as a life-interest and at the time of the death of
the last of its members shall devolve upon the kutumba. This
devolution of the life-interest is according to sec. 36(5).
When a Hindu governed by the Aliyasanthana law dies
possessed of a life interest, after his death the property
devolves under the Hindu Succession Act and not under the
Aliyasanthana Act and therefore would not revert back to the
kutumba. This Court in Jalaja Shedthi & Ors. v. Lakshmi
Shedthi & Ors. (supra) while deciding the rights of the
parties under a will executed by a Hindu governed by
Aliyasanthana law held at p. 719: “Similarly on the same
parity of reasoning, when there are two kavarus, a demand
for partition would disrupt them and Chandayya Shetty could
no longer claim that he had an undivided interest within the
meaning of sec. 7(2) of the Succession Act, and if he has no
undivided interest in the property, his interest cannot be
enlarged into an absolute estate nor can his interest in the
property devolve upon his heirs by intestate succession.”
The words underlined by us relate to intestate succession
and the Court has specifically stated that it was not
referring to the provisions of sec. 17 of the Hindu
Succession Act as it related to intestate succession. These
observations relating to intestate succession are therefore
in the nature of obiter. The separate property is not
enlarged into an absolute estate under sec. 7(2) but on
death it devolves on the heirs as provided under the Hindu
Succession Act. Therefore it will not revert back to the
kutumba but only to the heirs as provided for under the
Hindu
419
Succession Act. Similarly in the observations at p. 721 of
the Reports where it has observed : “In this case also as
already stated, there is no kavaru of Chandayya Shetty, and
on separation he had only a life interest which is not a
heritable property and cannot be disposed of by a will, nor
could it devolve as on intestacy.” The reference to
devolution on intestacy is again in the nature of obiter
dicta.
On a consideration of the contentions made by the
learned counsel appearing for both the parties we agree with
the conclusion reached by the High Court and dismiss this
appeal with costs.
V.D.K. Appeal dismissed.
420