{"id":181929,"date":"1972-04-27T00:00:00","date_gmt":"1972-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/padmaraja-and-ors-vs-dhanavathi-and-ors-on-27-april-1972"},"modified":"2017-06-23T01:15:11","modified_gmt":"2017-06-22T19:45:11","slug":"padmaraja-and-ors-vs-dhanavathi-and-ors-on-27-april-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/padmaraja-and-ors-vs-dhanavathi-and-ors-on-27-april-1972","title":{"rendered":"Padmaraja And Ors vs Dhanavathi And Ors on 27 April, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Padmaraja And Ors vs Dhanavathi And Ors on 27 April, 1972<\/div>\n
Equivalent citations: 1972 AIR 2219, \t\t 1973 SCR (1) 383<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nPADMARAJA AND ORS.\n\n\tVs.\n\nRESPONDENT:\nDHANAVATHI AND ORS.\n\nDATE OF JUDGMENT27\/04\/1972\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nGROVER, A.N.\n\nCITATION:\n 1972 AIR 2219\t\t  1973 SCR  (1) 383\n 1972 SCC  (2) 100\n CITATOR INFO :\n F\t    1973 SC2658\t (11)\n\n\nACT:\nMadras Aliyasantana Act (9 of 1949) s. 36(6)-Scope  of-Award\ndecree-When evidences partition-If award decrees come within\ns. 36(6).\n\n\n\nHEADNOTE:\nDifferences having arisen among members of a family governed\nby the Aliyasantana Law, all the major members of the family\nexcept one referred the disputes to arbitration.  As per the\nauthority  given to the arbitrators the arbitrators  had  to\ndecide the disputes in accordance with the Aliyasantana\t Law\nof   inheritance,   according  to   which,   partition\t was\nimpermissible  except  with  the consent of  all  the  adult\nmembers of the family.\tThe arbitrators were not required to\ndivide\tthe  Kutumba  properties on Kavaru  basis;  but\t the\narbitrators divided the properties between the two  Kavarus,\nwhich  were  then in existence in the family,  in  order  to\navoid disputes and to fix the responsibility for income, and\nloss.  There was an award decree in terms of the award,\nThereafter,  the  members  of one Kavaru filed\ta  suit\t for\npartition under s. 35 of the Madras Aliyasantana Act,  1949,\nand  the  appellants  and some other members  of  the  other\nKavaru,\t contended that the Kutunba had been partitioned  by\nthe award, decree or, that the arrangement thereunder was  a\ndeemed partition under s. 36(6) of the Act.\nThe  trial court dismissed the suit, but the High Court,  in\nappeal,\t held  that  the  award\t decree\t did  not   evidence\npartition, and that it was not covered by s. 36(6) as it was\nan award decree and not a mere award.\nDismissing the appeal to this Court,\nHELD  :\t (1) When the Act came into force,  in\taddition  to\njoint  living by the members of the Kutumba, three types  of\narrangements were in existence in various Kutumbas,  namely,\n(a)  When the senior most member of the family\t(Yejman)  or\n(Yejmanthi)  made maintenance allotments which\twere  purely\ntemporary  in  character, (b) a\t permanent  arrangement\t for\nmaintenance, and (e) partition with the consent of all adult\nmembers.   In  the  ease of  a\tpermanent,  arrangement\t for\nmaintenance  it\t was  usually done  on\tKavairu\t basis,\t the\njointness of the family was kept intact, but arrangement was\nmade for separate living and separate management of  Kutumba\nproperties  on\ta  permanent  basis  which;  could  not\t  be\ndisturbed  without the consent of all the adult\t members  of\nthe  Kutumba.\tSuch of these permanent\t arrangements  which\ncame  within  the  scope  of  s.  36(6)\t are  deemed  to  be\npartitions  despite the fact that under\t those\tarrangements\nthe jointness of the Kutumba was kept intact. [386A-F]\n(2)  The conditions to be satisfied before a document can be\nconsidered as coming within the scope of s. 36(6) are :\n(a)  there is a registered family settlement or award\n(b)  all the major members of the Kutumba are parties to it;\n(c)  the  whole of the kutumba properties have been or\twere\nintended to have been distributed; and\n(d)  the  distribution\tis  among all  the  Kavarus  of\t the\nKutumba\t  for  the  separate  and  absolute   enjoyment\t  in\nperpetuity. [387 A-D]\n384\nGummanna  Shetty  v.  Nagaveniamma,<\/a>  [1967]  3\tS,C.R.\t932,\nfollowed.\n(3)  In the present case, the award decree did not  evidence\na partition; because\t it  contained clauses\tinconsistent\nwith an out and out partition.\nThe  award  decree  recited that 'proper  arrangements\twere\nmade  for the maintenance of the Kutumba Without  disrupting\nits  oneness'; that both Kavarus should\t together  conscious\nfunctions;  and\t the members of one of the Kavarus  were  to\nshow accounts to the senior most member who continued to  be\nthe yejman of thee entire kutumba.\n[388G-H]\nAmmalu Amma v. Vasu Menon, A.I.R. 1944 Mad. 108, approved.\n(4)  (6)  Award decrees have to be considered as awards\t for\npurposes of s. 36(6). [391B-C]\n(a) The principle underlying s. 36(6) is not to disturb\t the\nfinality  of,  arrangements  made.  If that  were  so,\tsuch\npermanency  should be available, in a larger measure  to  an\naward decree, for otherwise, parties could enforce partition\nignoring award decrees while they would be bound by awards.   [390\nG-H]\n(b)  After  the\t coming into force of the  Arbitration\tAct,\n1940, all awards    had\t to be compulsorily made decrees  of\ncourts\tif they were to have force.  The  Akiyasahntana\t Act\ncame  into force in 1994 and the legislature would not\thave\ndenied\tto the awards passed after 1940 (in terms  of  which\ndecrees\t would have been passed) the benefit of s. 36(6)  of\nthe  Aliyasanatana  Act.   The\tLegislature,  by  using\t the\nexpression   'award'   intended\t to  include   both   awards\nsimpliciter as well as awards which had been made decrees of\nCourts. [391A-B]\nParameshwari Hengsu v. Venkappa Shetty and ors., (1961) Mys.\nL.J. 686 on the interpretation if s. 36(6), overruled.\n(5)  (a) But the second condition for the application of the\nsection is not satisfied in the present case, as one of\t the\nmajor  members of the Kutumba was not a party to the  award.\n[392D]\n(b)  Even  though  he acquiesced in  the  arrangements\tmade\nunder  the  award  decree he would not-be  a  party  to\t the\narrangement.   Before the arrangement can be deemed to be  a\npartition under s. 36(6), all the conditions should be fully\nsatisfied,  and\t substantial compliance is  not\t sufficient,\nsince, it is a case of a deemed partition and not an  actual\npartition. [392E-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 999 of 1966.
\nAppeal\tby Special Leave from the judgment and\torder  dated
\nJuly 7, 1965 of the Mysore High Court in Regular Appeal\t No.
\n37 of 1958.\n<\/p>\n
K. N. Bhat, for the  appellants.\n<\/p>\n
Rameshwor Nath and Swaranji Ahuja, for the respondents\tNos.
\n1 to 6.\n<\/p>\n
The Judgment of the Court was delivered by
\nHegde J. This is an appeal by special leave.  Defendants  34
\nand 35 in the suit are the appellants.\tThe suit from  which
\nthis
\n385<\/span>
\nappeal\tarises\tis  a suit for partition  under\t the  Madras
\nAliyasantana.  Act, 1949 (Madras Act IX of 1949) (which will
\nhereinafter IV referred to as the Act).\n<\/p>\n
The  two  questions that arise for decision in\tthis  appeal
\nare’  (1)  whether under the, award decree  Exh.   A-2,\t the
\nkutumba (family), of the plaintiffs and the defendants stood
\npartitioned and (2) if’ the answer to the first question  is
\nin the negative whether the said ,award decree comes  Within
\nthe scope of s. 36(6) of the Act.\n<\/p>\n
The  plaintiffs\t and  the defendants were  governed  by\t the
\naliyasantana law of inheritance.  It is a matriarchal system
\nof law.\t One’ Pammadi was the prepositor of the family.\t She
\nhad  two  daughters by name Pammakke and Dejappe  and  three
\nsons  viz.   Kanthu Hegde, Monu Hegde  and  Manjappa  Hegde.
\nAfter the death of Pammadi, differences arose in the family.
\nHence  all  the major members of the  family  excepting\t one
\nBrahamiah referred those disputes to the arbitration of four
\narbitrators  by\t means of a mutdhallika dated  December\t 14,
\n1886.  By the time this mutchallika was executed, two of the
\nsons  of Pamadi, Kanthu Hegde and Monu Hegde had  died.\t  At
\nthat  time,  in the kutumba there were\tonly  two  santhathi
\nkavaru\tviz.   Pammakke\t and Dejappe  and  one\tnissanthathi
\nkavaru\tnamely\tManjappa Hegde in  existence  (reference  to
\nsanthathi  kavaru and nissanthathi kavaru is as\t defined  in
\nthe  Act).  The arbitrators divided the\t kutumba  properties
\ninto  two  parts;  one part was allotted  to  the  share  of
\nPammakkes  Kavaru and the other part to Dejappes Kavaru\t and
\nManjappa  Hegde.  Manjappa Hegde was clubbed  alongwith\t the
\nkavaru of Dejappe (reference to kavaru is as defined in\t the
\nAct).\tOn June 14, 1953, all the members of the  kavaru  of
\nPammakke brought a suit for partition of the suit properties
\nunder  s.  35  of the Act.  The appellants  and\t some  other
\nmembers of the kavaru of Dejappe resisted the suit mainly On
\nthe  ground that the kutumba had been partitioned under\t Ex.
\nA-2.\tThey  contended\t that,\tthe  said  document   either
\nevidences  a partition or at any rate the, arrangement\tmade
\nthereunder is a deemed Partition coming within the scope  of
\ns. 36(6) of the Act.  The trial court came to the conclusion
\non that under the Award in question the. kutumba  properties
\nwere  partitioned.  Alternatively it held that Ex.   A-2  is
\ncovered\t by  s. 36(6).\tIn appeal a Division Bench  ‘of\t the
\nHigh  Court of, Mysore reversed the judgment and  decree  of
\nthe trial court.  It held that Ex.  A-2 does not evidence  a
\npartition.  It, further came to the conclusion that the same
\nis  not covered by s. 16(6) as Ex.  A-2 was an award  decree
\nand not a mere award.  Dissatisfied with the judgment of the
\nHigh Court, defendants 34 and 35 have brought this appeal.
\n The  findings of the High Court as regards the true  nature
\nof  Ex.\t A-2  were challenged before us\t on  behalf  of\t the
\nappellants  by\tMr.  K.\t N.  Bhatt.   Before  proceeding  to
\nconsider the contentions
\n386<\/span>
\nof  the parties, it is necessary to refer, in brief, to\t the
\ncustomary  aliyasantana law.  Under that law inheritance  is
\ntraced\tthrough\t the  female  line.   Under  that  law,\t  as
\ninterpreted  by\t courts partition was  impermissible  except
\nwith  the  consent of all the adult members of\tthe  family.
\nThe  senior  most  member of the family be it a\t male  or  a
\nfemale\twas a Yejman or Yejmanthi of the family.   With\t the
\npassage\t of time, the members of the  aliyasantana  kutumbas
\nincreased  and\tkutumbas became unwieldy  and  joint  living
\nbecame\t intolerable.\t In   order   to   mitigate    these
\ndifficulties,  three types of arrangements came to be  made,
\nin those kutumbas.  By and large the Yejman or Yejmanthi  of
\nthe  family made maintenance allotments\t (maintenance  under
\nthe  aliyasantana is a mode of participation in\t the  family
\nproperties).  This, type of arrangement was purely temporary
\nin  character.\t It was open to the Yejman or  Yejmanthi  to
\nresume the properties allotted for maintenance to the junior
\nmembers\t  and  make  alternative  arrangements\t for   their
\nmaintenance.   Another type of arrangement that came  to  be
\nmade  was permanent arrangement for maintenance.   This\t was
\nordinarily  done, on kavaru basis.  Under this\tarrangement,
\njointness of the family was kept intact but arrangement\t was
\nmade for separate living and separate management of  kutumba
\nproperties   on\t a  permanent  basis.\t Such\tarrangements
\nordinarily  were not capable of being disturbed except\twith
\nthe consent of all the adult members of the kutumba.  Lastly
\nthere  are  few\t cases\tof partition  with  the\t consent  or
\nconcurrence of all the adult members of the kutumba.   Hence
\nwhen the Act came into force in addition to joint living  by
\nthe   members  of  kutumbas  as,  aforementioned  types\t  of
\narrangements  were in existence in various kutumbas.   Under
\nS.  35\tof the Act power was given to avarus,  santhsthi  or
\nnissanthathi  to  claim\t at partition  but  those  permanent
\narrangements  which came within the scope of S.\t 36(6)\twere
\ndeemed\tto be partitions despite the fact that\tunder  those
\narrangements  the jointness of the kutumba was kept  intact.
\nIn  Gummanna Shetty and ors. v. Nagaveniamma<\/a>(1), this  Court
\nwhile  dealing with an arrangement in a aliyasantana  family
\nentered into in the year 1900 observed
\n\t      “In 1900, when this deed was executed, one  or
\n\t      more members of a joint family governed by the
\n\t      Aliyasanthana law of inheritance had no  right
\n\t      to   claim  partition  of\t the  joint   family
\n\t      properties but by a family arrangement entered
\n\t      into with the, consent of all its members, the
\n\t      properties  could\t be divided  and  separately
\n\t      enjoyed.\t In such families,’  an\t arrangement
\n\t      for separate, possession and enjoyment without
\n\t      actual  disruption of the family\twas  common.
\n\t      An arrangement for separate enjoyment did
\n(1)  [1967] 3 S.C.R. 932.\n<\/p>\n
387<\/span><\/p>\n
not effect a disruption of the family, unless it  completely
\nextinguished  the  community  of  interest  in\tthe   family
\nproperties.”\n<\/p>\n
Analysing  the scope of s. 36(6), this Court, approving\t the
\ndecision  of  the  Madras  High Court  in  Kaveri  v.  Ganga
\nRatna(1)  held\tthat  the following,  conditions  should  be
\nsatisfied  before  a document can be  considered  as  coming
\nwithin the scope of s. 36(6)\n<\/p>\n
1.   there is a registered family settlement or award;\n<\/p>\n
2.   all the major members of the kutumba are parties
\nto it;\n<\/p>\n
3.   the  whole of the kutumba properties have been or\twere
\nintended or purport to have been distributed under it; and\n<\/p>\n
4.   the,  distribution\t is  among all the  kavarus  of\t the
\nkutumba\t for  their  separate  and  absolute  enjoyment\t  in
\nperpetuity.\n<\/p>\n
There  is  no difficulty about\ttemporary  arrangements\t for
\nmaintenance.   These arrangements could not come in the\t way
\nof  effecting  partition  in a kutumba.\t  Similarly  if\t the
\njointness  of  the kutumba had been disrupted, there  is  no
\nquestion of claiming any partition as there is no kutumba in
\nexistence.  The application of s. 36(6) arises only when the
\ncase  does not fall either under the first category  or\t the
\nsecond.\t   In  construing  karars  (agreements)\t  evidencing
\npermanent  arrangements, we must bear in mind  the  ordinary
\nprinciples of construction of documents.  The first is\tthat
\nthe  whole document must be read and construed.\t  The  court
\nmust  have  regard to the declared object  of  the  document
\nwhich is often contained in the preamble but the title given
\nto  a  document is not conclusive.  It is  observed  in\t Mr.
\nSundara\t  Ayyar’s   Malabar  Law  that\t “arrangements\t for
\nmaintenance  will  not\tordinarily be  viewed  as  permanent
\narrangements  though it is not impossible that there  should
\nbe  such  arrangements.\t Divisions for\tenjoyment  short  of
\npartition  that\t are  sometimes entered\t into  are  of\tthis
\ncharacter.”\n<\/p>\n
The characteristics of such documents were considered exhau-
\nstively\t by  Somayya,  J. in Ammalu Amma v.  Vasu  Menon  (2
\nTherein the learned judge observed :\n<\/p>\n
\t      “No  doubt  it may not be common but if  on  a
\n\t      reading  of  the entire  document,  there\t are
\n\t      clauses  which are entirely inconsistent\twith
\n\t      an out and out partition, the Courts are bound
\n\t      to  construe  the document  as  a\t maintenance
\n\t      arrangement  even though it is stated to be  a
\n\t      permanent arrangement.”\n<\/p><\/blockquote>\n
(1)  [1956] 1, M.L.J. 98.\n<\/p>\n
(2) A.I.R. (31) 1944 Mad. 108.\n<\/p>\n
388<\/span><\/p>\n
Bearing in mind the principles enunciated by a long chain of
\ndecisions,  we shall first examine whether Ex.\tA-2  can  be
\nconsidered   as\t  a  document\taffecting   partition.\t  In
\nconsidering  that question we have to primarily see  whether
\nin   Ex.   A-2,\t there\tare  clauses  which   are   entirely
\ninconsistent with an out and out partition.
\nEx. A-2 came to be rendered on the strength of a mutchallika
\nexecuted by most of the members of the kutumba in favour  of
\nthree  arbitrators on December 14, 1886, for slip 2  because
\nof  the\t dispute  that had arisen in the  family  about\t the
\nenjoyment of the kutumba properties.  It is also clear\tfrom
\nthat mutchallika that some members of the family had serious
\ncomplaints against the Yejman of the family, Adu Hegde.\t The
\nmutchallika   authorised  the  arbitrators  to\tdecide\t the
\ndisputes   that\t  had  arisen  “in   accordance\t  with\t our
\n“Aliyasanthana\tKattu”,\t in a manner which  you\t deem  fit”.
\n“Aliyasantana  kattu’ i.e. Aliyasantana law  of\t inheritance
\ndid  not  provide,  as\tmentioned  earlier,  for  compulsory
\npartition. The arbitrators    undoubtedly   came   to\t the
\nconclusion  that  it was difficult for the large  family  to
\nlive  together.\t  It is also clear from the award  that\t the
\nparties\t had agreed to “enjoy kutumba properties  by  living
\nseparately”.   They  had  also\tagreed\tfor  the  separation
\n(vingada)  of the kutumba properties.  As per the  authority
\ngiven to the arbitrators, the arbitrators were not  required
\nto  divide kutumba properties on kavaru basis.\t They  could
\nhave  put  together, some members of one  kavaru  with\tsome
\nmembers\t of  another Kavaru.  But  the\tarbitrators  thought
\n“that  if the members of two Kavarus are mixed together,  in
\nfuture\tthe properties would be spent, on account of  mutual
\ndisputes   existing  between  them,  and  that\tunless\t the
\nresponsibility of income and loss in the Kavaru is pinned on
\nthe  Kavaru  having more members, to some extent’,  all\t the
\nmembers will not bestow labour properly.”
\nThat  was the reason why they divided the properties  prima-
\nrily  between two kavarus.  It is true that the\t arbitrators
\ndivided the family debts into two parts and each kavaru\t was
\nasked  to discharge the then existing debts from out of\t the
\nincome\tof the properties that were allotted to its  shares.
\nBut at the same time Adu Hegde continued to be the Yejman of
\nthe entire kutumba.  Members of each kavaru were  prohibited
\nfrom incurring debts on behalf of the kutumba.\tFurther till
\nthe existing debts were discharged, the members of  Pammakke
\nkavaru\twere  asked to “show accounts in  respect  of  their
\nincome\tand expenditure” to Adull Hegde.  Exh.\tA-2  further
\nsays  that  “the  members  of the  kutumba  should  live  in
\ndifferent   houses,   by  bestowing   labour   and   without
\nquarreling with each other as proper arrangements were\tmade
\nfor  the maintenance of the kutumba without  disrupting\t its
\noneness”.  From this clause it is clear that the kutumba was
\nnot  disrupted.\t  The document further\tprovides  “both\t the
\nkavarus should together
\n389<\/span>
\nconduct\t “Havyas  Kavyas” and  auspicious  functions”.\t The
\nfore-going  clauses  clearly  show that\t Ex.   A-2  did\t not
\ndisrupt\t the kutumba though undoubtedly it “made  provision
\nfor the separate living of the Kavarus, and for the separate
\nenjoyment  of  the properties allotted to them.\t  For  these
\nreasons we are in agreement with the High Court that Ex.  A-
\n2, does not evidence a partition.  The terms of Ex.  A-2 are
\nnot  similar to those that came up for consideration  before
\nthe  Madras High Court in Appa and ors . v. Kachai  Bay\t van
\nKuti and ors.(1) or those that came up for decision by\tthat
\nHigh  Court  in Mudara and ors. v.  Muthu  Hengsu(2).\tEach
\ndocument  has to be construed on its own terms.\t Tern-is  of
\nany  two documents rarely, if at all are  identical.   Hence
\nthe construction placed on a particular document can  hardly
\ngovern\tthe construction of another document.  There  is  no
\ndispute as regards the principles governing the construction
\nof documents.\n<\/p>\n
This takes us to the question whether Ex.  A-2 is covered by
\ns.   36(6).  That section reads :\n<\/p>\n
\t      “A registered family, settlement (by  whatever
\n\t      name  called)  or an award, to which  all\t the
\n\t      major  members  of a kutumba are\tparties\t and
\n\t      under   which   the  whole  of   the   kutumba
\n\t      properties  have been or were intended  to  be
\n\t      distributed,   or\t  purport   to\t have\tbeen
\n\t      distributed,   among,  absolute\tenjoyment-in
\n\t      perpetuity, shall be deemed to be a  partition
\n\t      of the kutumba properties notwithstanding\t any
\n\t      terms  to the contrary in such  settlement  or
\n\t      award.”\n<\/p><\/blockquote>\n
Evidently the legislature wanted to deem certain deeds under
\nwhich  perpetual arrangement had been made in the  past\t for
\nthe  maintenance  of  all  the\tkavarus\t of  a\tkutumba\t  as
\npartitions.   The requirements of s. 36(6), have  been\tlaid
\ndown by this Court as seen earlier in Gummann Shetty’s\tcase
\n(supra).   Therefore all that we have to see is whether\t the
\ntests  laid  down  by  this  Court  in\tthat  decision\t are
\nsatisfied.   The  High Court having come to  the  conclusion
\nthat  the first test was not satisfied rejected\t the.conten-
\ntion  of the plaintiffs that the deed Ex.  A-2 comes  within
\nthe  scope of s. 36(6).\t It came to the conclusion  that  an
\naward decree is not an award within the meaning of s. 36(6).
\nIn arriving at that conclusion, it relied on the decision of
\nthat Court in Parameshwari (3 ). Hangsu and ors. v. Venkappa
\nShetty\tand  ors. Parameshwari Hengsu’s case  (supra)  first
\ncame  up for hearing before at Division Bench consisting  of
\nSadasivayya  and Mir Iqbal Husain JJ.  Sadasivayya  J.\theld
\nthat the expression “award” in s. 36(6) does not take in  an
\naward  decree.\tBut lqbal Husain J. differed from that\tview
\nand opined that the term “award” includes also an award dec-
\nree.   In view of that difference of opinion,  the  question
\nwhether the expression “award” includes an award decree\t was
\nreferred to
\n(1)  A.I.R. 1932 Mad. 689. (2) A.I.R. 1935 Mad. 33.
\n(3)  [1961] Mys.  L. J. 686.\n<\/p>\n
390<\/span><\/p>\n
Somnath\t Iyer  J. That learned judge agreed  with  the\tview
\ntaken  by  Sadasivayya\tJ.  The\t decision  in\tParameshwari
\nHengsu’s case (supra), was binding on the bench which  heard
\nthis  case.  Hence naturally that controversy was not  again
\ngone  into  by\tthe High Court in this\tcase.\tThe  learned
\ncounsel for the appellants challenged the correctness of the
\ndecision  of the Mysore High Court in Parameshwari  Hengsu’s
\ncase  (supra).\tHe contended that the expression “award”  in
\ns.  36(6) includes also an award decree. lie urged  that  in
\nthe  case of an award decree, the court merely\taccepts\t the
\naward  made  and makes it a decree of the  court  and  hence
\naward  decrees have also to be considered as awards for\t the
\npurpose\t of s. 36(6).  In examining the correctness  of\t the
\nconclusion reached by the Mysore High Court in\tParameshwari
\nHengsu’s  case (supra), we must first examine the  principle
\nunderlying s. 36(6).  As mentioned earlier, the\t legislature
\nwas  evidently\tanxious\t not to\t disturb  certain  permanent
\narrangements  made  in the kutumbas either by means  of\t any
\nregistered family settlements or by awards.  That being\t the
\ncase  one fails to understand why the legislature should  be
\nheld  to  have\texcluded from the scope of  s.\t36(6)  award
\ndecrees\t while\tbringing within its scope  awards.   Dealing
\nwith  this  aspect both Sadasivayya J. and Somnath  Iyer  J.
\nopined that “it is possible that with a view not to  disturb
\nfinality resulting from a decree (of whatever kind) that the
\nlegislature  intentionally  refrained  from  referring,\t  to
\ndecrees\t in sub-s. (6) thereby confining the scope  of\tthat
\nsub-section  only to the registered family  settlements\t and
\nawards expressly mentioned therein.  If that be so, no court
\nwould be justified in equating an award to the decree passed
\non it.”‘
\nThis  reasoning appears to us to be fallacious.\t It must  be
\nremembered  the only decrees that could possibly  have\tbeen
\nincluded within the scope of s. 3 6 (6) were award  decrees.
\nWe  have earlier noticed that compulsory partition  was\t not
\npermissible  under the aliyasantana law.  Hence there  could
\nnot  have been any partition decrees, nor could\t there\thave
\nbeen  decree making permanent arrangements in the matter  of
\nenjoyment  of kutumba properties in  aliyasantana  kutumbas.
\nWe can think of no decree regulating the affairs of  kutumba
\nwhich  cannot  be disturbed under the Act.   We\t agree\twith
\nthose learned judges that the principle underlying s.  36(6)
\nwas not to disturb the finality of arrangements made.\tThat
\nvery  principle\t runs counter to the  reasoning\t adopted  by
\nthose  learned judges.\tIf permanency of an  arrangement  is
\nthe principle underlying s. 36(6) that permanency should  be
\navailable  in a larger measure to an award decree.   On\t the
\nother  hand  if the view taken by those\t learned  judges  is
\ncorrect, while s. 36(6) provides permanency for some awards,
\nno  such  permanency  is  available  to\t any  award  decree.
\nParties could enforce partition ignoring award decres  while
\nthey are bound by awards.  This could hardly have
\n391<\/span>
\nbeen  the  intention  of, the  legislature.   There  is\t yet
\nanother compelling reason not to accept the majority view in
\nParameshwari Hengus’s case (supra).  After the coining\tinto
\nforce  of  the Arbitration Act, 1940, all awards had  to  be
\ncompulsorily made decrees of the courts if they were to have
\nany  force.  The Act came into force in 1949.\tMany  awards
\ncoming\twithin\tthe scope of s. 36(6) would have  been\tmade
\nbetween\t 1940  and  1949.  The legislature  would  not\thave
\ndenied\tto those awards the benefit of s. 36(6).  The  basis
\nof  every award decree is an award.  Evidently the  legisla-
\nture  by  using the expression “award” intended\t to  include
\nboth  awards  simpliciter as well as awards which  had\tbeen
\nmade  the  decrees  of\tcourts.\t  Whether  we  consider\t the
\nprinciple  underlying s. 36(6) or the language of s.  36(6),
\nwe  see no justification to exclude award decrees  from\t the
\nscope  of  s. 36(6).  In our opinion  Parameshwari  Hengsu’s
\ncase  (supra) in so far as it interpreted s, 36(6)  has\t not
\nbeen  correctly decided.  But that conclusion of  ours\tdoes
\nnot  help the appellants.  One of the conditions  that Ire
\nnecessary to be satisfied before a deed can be deemed to  be
\na partition under s. 36(6) is that it must be shown that all
\nthe  major  members  of\t the kutumba  were  parties  to\t it.
\nAdmittedly Brahmiah did not _join the mutchallika A-1 on the
\nstrength of which Ex.  A-2, was rendered.  In other words he
\nwas not a party to the award.  But it was said on behalf  of
\nthe appellants-the same view was taken by the learned  trial
\njudge-that Brahmiah had acquiesced in the arrangements\tmade
\nunder  Ex.   A-2.   A  person by  merely  submitting  to  an
\narrangement made may be bound by the arrangement but thereby
\nhe  does not become a party to the arrangement.\t  Herein  we
\nare  dealing  with  a deemed partition\tand  not  an  actual
\npartition.   Before  an arrangement can be deemed to,  be  a
\npartition  under  s. 36(6), all\t the  conditions  prescribed
\nunder  that provision should be fully satisfied.  In such  a
\ncase,  substantial  compliance\twith the  provision  is\t not
\nsufficient.\n<\/p>\n
As  we are of the opinion that all the major members of\t the
\nkutumba were not parties to Ex.\t A-2, it is not necessary to
\nexamine whether the remaining conditions prescribed under s.
\n36(6) were satisfied.\n<\/p>\n
In  the result this appeal fails and the same is  dismissed.
\nBut in the circumstances of the case, we direct the  parties
\nto bear their own costs in this Court.\n<\/p>\n
V.P.S.\t\t\t      Appeal dismissed.\n392<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Padmaraja And Ors vs Dhanavathi And Ors on 27 April, 1972 Equivalent citations: 1972 AIR 2219, 1973 SCR (1) 383 Author: K Hegde Bench: Hegde, K.S. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-181929","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPadmaraja And Ors vs Dhanavathi And Ors on 27 April, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/padmaraja-and-ors-vs-dhanavathi-and-ors-on-27-april-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Padmaraja And Ors vs Dhanavathi And Ors on 27 April, 1972 - 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