PETITIONER: GUMMANNA SHETTY & ORS. Vs. RESPONDENT: NAGAVENIAMMA DATE OF JUDGMENT: 04/05/1967 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SHELAT, J.M. BHARGAVA, VISHISHTHA CITATION: 1967 AIR 1595 1967 SCR (3) 932 CITATOR INFO : R 1972 SC2219 (4,12) ACT: Madras Aliyasanthana Act (9 of 1949), s. 3(6)-Scope of. HEADNOTE: By a registered deed dated September 4, 1900, a group of 19 persons forming a joint family with community of property governed by the Aliyasanthana law of inheritance, formed themselves into two branches not according to natural Kavaruts but into artificial branches and divided the family properties. In 1953, the members of one of these two artificial branches instituted a suit against the sole surviving member of the other branch who was a nissan thathi kavaru for partition of all the properties comprised in the deed of 1900, allegation that the deed only effected a division for convenience of enjoyment and not an outright partition. On the question whether under s. 36(6) of the Madras Aliyasanthana Act, 1949, the deed of 1900 should be deemed to have effected a partition of the properties, HELD : The deed on its true construction, did not effect an out-right partition nor could it be deemed to be a deed of partition under s. 36(6) ,of the Act, because, the kutumba was split into two artificial groups and not according to the kavarus. [937C-D] One of the four conditions necessary as a pre-requisite for the application of the section is that the distribution of properties is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. That is, the sub-section applies to a family settlement under which the kutumba is split up according to kavarus as defined in s. 3(b) of the Act, and the kutumba properties distributed among such kavarus. [936F-G; 937B-C] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 910 of
1964.
Appeal from the judgment and order dated February 28, 1961
,of the Mysore High Court in Regular Appeal No. (M) 70 of
1956.
V. K. Krishna Menon, M. Veerappa, Sreedharan Nambiar,
D. P. Singh and H. K. Puri, for the appellants.
S. T. Desai, R. Thiagarajan and R. Ganapathy Iyer, for the
respondent.
The Judgment of the Court was delivered by
Bachawat, J. By a registered deed dated September 4, 1900, a
group of 19 persons forming a joint family-with community of
property governed by the Aliyasanthana Law of inheritance,
formed themselves into two branches and divided ‘the family
pro-
9 3 3
perties. The second branch consisted of the descendants of
Sarasamma and Brahmi and some descendants of Nemakka-in all
I 0 persons. The first branch consisted of Nemakka and the
rest of her descendants and her sister Sivadevi-in all 9
persons, In 1953, Damamma was the sole surviving member of
the second branch. She was a nissanthathi kavaru, 70 years
old having no descendants. In 1953, the members of the
first branch instituted a suit against Damamma for partition
of all the properties comprised in the deed dated September
4, 1900, alleging that the deed effected a division for
convenience of enjoyment and maintenance only and was not an
absolute or out-right partition The defence of Darnamma was
that the deed effected an outright partition. The trial
court accepted the plaintiff’s contention and passed a
preliminary decree for partition. Darnamma filed an appeal
in the Mysore High Court. During the pendency of the appeal
she died and one Nagaveniamma claiming under her will was
substituted in her place as her legal representative. The
High Court held that the deed dated September 4, 1900,
effected an out-right partition. On this finding, the High
Court allowed the appeal, set aside the decree passed by the
trial court and dismised the suit. From this decree the
present appeal has been filed under a certificate granted by
the High Court.
The joint family properties were formerly managed by its
yajaman, one Manjappa. Upon his death, the parties to the
deed dated September 4, 1900, apprehended disputes. The
object of the deed was to prevent such disputes, and
consequential wastage of property and to preserve the
dignity of the family. The family properties were divided
into two parts, and a portion was allotted to each branch.
The deed provided that the properties allotted to the first
branch would be enjoyed by its members and would be mutated
in Nemakka’s name, and Siddappa, a member of this branch,
would manage the properties, pay the tirve and cesses, and
conduct the maintenance of its members. The properties
allotted to the second branch would be enjoyed by its
members and would be mutated in the name of Nagu, a member
of that branch, and Chandayia, another member of the branch,
would manage the properties, pay the tirve and cesses, and
conduct the maintenance of its members. Parts of items 2
and 5 of the properties were allotted to the two branches,
but the entire tirve, and cesses for the two items would be
paid by the first branch, and the arrears of the tirve, if
any, would form a charge on the properties allotted to the
first branch. The deed provided that “as regards the
properties enjoyed as mentioned above by the members of the
first branch, the members of the said branch and the descen-
dants that shall be born to them in future should enjoy the
same and as regards the properties enjoyed by the members of
the second branch, the members of the said branch and the
descendants that shall be born to them in future should
enjoy the same
9 34
and in this manner, they should enjoy the properties
separately. Further, after the lifetime of the member of
the respective branches who obtains the kudathale of the
properties allotted to the respective branches, the
kudathale should be got entered successively in the name of
the senior-most male or female member of the respective
branches.” The common debt of the family was apportioned
between the two branches, and each branch would discharge
its share of the debt and interest thereon as quickly as
possible. If the manager of any branch allowed the interest
to fall in arrears, the members of the branch would appoint
another manager in his place. Each branch would have the
power to execute documents creating a security over the
properties allotted to it for payment of its share of the
common debt. No member of the family would have the right
to incur other debts. The deed provided that : “If any debt
is borrowed, the very person who borrows the debt should
discharge it with his personal liability; and further, the
movable and immovable properties of this family or the
members of the family should not become liable for such
debt.” Another clause provided that : “These immovable pro-
perties or any portion thereof and the right of maintenance
of any individual should not be alienated in any manner by
way of mortgage,. sale, gift, inulageni, artha mulageni and
vaide geni. Contrary to this term, if alienation is made,
such alienation should not be valid.” The deed also provided
: “If there are no descendants at all completely in the
first branch, the members belonging to the second branch
shall be entitled to the entire movable and immovable
properties of the said first branch; and if there are no
descendants at all completely in the second branch, the mem-
bers of the first branch shall be entitled to the entire
movable and immovable properties of the said second branch.”
The sole question arising in this appeal is whether the deed
dated September 4, 1900, effected a disruption of the _joint
family or whether it made a division for convenience of
enjoyment and maintenance only. 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 a
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 not effect a disruption of the family, unless it
completely extinguished the community of interest in the
family properties. The character of the deed dated
September 4, 1900. must be judged in this background.
The respondent relies on several features of the deed as
indicative of an out-right partition. The properties were
divided
935
into two shares. Each branch was to enjoy its share in
perpetuity from generation to generation without any
interference from the other branch. There would be separate
mutations and separate pattas in respect of the properties
allotted to each branch. The assessments were to be paid
separately. Each branch would have I separate manager. The
share of the common debt allotted to each branch and the
interest thereon would be paid separately. All these
features coupled with other circumstances may indicate a
complete disruption of the family. See Sulaiman v.
Biyathumma(1). But there are other features of the deed
which indicate that it did not effect an out-right
partition. The object of the deed was to prevent disputes
and wastage of properties and to preserve the dignity of the
family. In terms, the deed did not declare that there was a
complete disruption of the family. In case of a partition,
a Kutumba governed by the Aliyasanthana law is usually split
up according to natural kavarus but under this deed, the
Kutumba was split up into two artificial branches. The
members of the two branches were restrained from incurring
debts binding on the family properties and from alienating
the properties or any portion thereof and granting any
leases except in the ordinary course of management. These
restrictions were obviously placed for the purpose of
preserving the family properties intact for the benefit of
both branches. The High Court said that as the deed
effected an out-right partition, the conditions restraining
alienations were void under Sec. 10 of the Transfer of
Property Act. But the point in issue is whether the deed
effected in out-right partition. The restrictions on
alienation rather indicate that the parties did not intend
to effect an. out-right partition, and they wanted a
division for convenience of enjoyment on be. footing that
neither branch had the right to alienate. If the family
arrangement took effect as a division for convenience of’
enjoyment only, and not as an out-right partition, the
restrictions on alienations were not hit by Sec. 10 of the
Transfer of Property On the nissanthathi, its properties
would pass to the members of the other branch. This clause
indicates that on one branch becoming extinct’, the
properties allotted to it would pass by survivorship of the
other branch. Had there been an out-right partition, the
sole surviving kavaru would be entitled to dispose- of her
separate property by a will under the provisions of the
Malabar Wills Act ‘898. The absence of such a right
indicates that the deed did not effect a complete disruption
of the joint family. On a consideration of the deed as a
whole in all its parts, we are constrained hold that the
deed on its true construction did not effect an ,tit-right
partition of the joint family. We may add that in a
compromise dated August 10, 1909 in O.S. No. 10 of 1909 to
‘(1) 32 M.L.J. 137 P.C.
9 Sup. C I/67 1 6
936
which the members of the second branch were parties,
Damamma .solemnly admitted and declared that the deed was
not a partition deed, but was a family arrangement for the
convenient enjoyment of the properties by the members of the
family so that ‘the proper-ties may be increased and not
wasted.
Counsel for the respondent contended that the deed should be
deemed to have effected a partition of the joint family pro-
perties under section 36(6) of the Madras Aliyasantana Act,
1949. This contention was repelled by the trial court and
was not pressed in the High Court. Section 36(6) 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 all the kavarus of the
kutumba for their separate and 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.”
As was pointed out by Ramaswami J. in Kaveri v. Ganga
Ratna(1), the following four conditions are the necessary
prerequisites for the application of Sec. 36(6) :
(1) there is a registered family settlement
or
award;
(2) all the major members of the kutumba are
par-
ties 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.
The onus is upon the respondent to prove that the deed
dated, September 4, 1900, satisfies all these four
conditions. The plea that the deed satisfies the conditions
of S. 36(6), was not taken in the written statement, nor was
any issue raised on the point. The materials on the record
do not show that the. deed satisfies all the conditions of
S. 36(6). The trial court found that though Damamma, a
member of the kutumba, was a major on September 4, 1900, she
did not execute the deed. The deed described her as a minor
under the guardianship of Padmaraja. From the
(1) [1956] I.M.L.J. 98, IC6.
93 7
materials on the record it is not possible to say definitely
that the whole of the kutumba properties was distributed
under the deed. Moreover, S. 36(6) can apply only if the
distribution was “among all the kavarus of the kutumba”. S.
3(b) defines kavaru. Used in relation to a female, it means
the group of persons consisting of that female, her children
and all her descendants in the female line, and used in
relation to a male, it means the kavaru of the mother of
that male. Having regard to the scheme of S. 36, we think
that S. 36(6) applies to a family settlement under which the
kutumba is split up according to kavarus as defined in S. 3
(b) and the kutumba properties are distributed among such
kavarus. Section 36(6) cannot apply to the deed dated
September 4, 1900, under which the kutumba was split up into
two artificial groups, one consisting of the descendants of
Sarasamma and Brahmi and some descendants of Nemakka, and
the other consisting of Nemakka, the rest of her descendants
and Sivadevi, and the properties were divided between these
two artificial groups.
It follows that the deed dated September 4, 1900, on its
true construction, did not effect an out-right partition nor
can it be deemed to be a deed of partition under S. 36(6) of
the Madras Aliyasantana Act, 1949.
In -the result, the appeal is allowed without costs, the
judgment and decree passed by the High Court is sell aside,
and the decree of the trial court is restored.
V.T.S. Appeal allowed.
938