{"id":195024,"date":"1973-09-20T00:00:00","date_gmt":"1973-09-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jalaja-shedthi-ors-vs-lakshmi-shedthi-ors-on-20-september-1973"},"modified":"2019-02-02T21:42:16","modified_gmt":"2019-02-02T16:12:16","slug":"jalaja-shedthi-ors-vs-lakshmi-shedthi-ors-on-20-september-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jalaja-shedthi-ors-vs-lakshmi-shedthi-ors-on-20-september-1973","title":{"rendered":"Jalaja Shedthi & Ors vs Lakshmi Shedthi & Ors on 20 September, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jalaja Shedthi & Ors vs Lakshmi Shedthi & Ors on 20 September, 1973<\/div>\n
Equivalent citations: 1973 AIR 2658, \t\t 1974 SCR (1) 707<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nJALAJA SHEDTHI & ORS.\n\n\tVs.\n\nRESPONDENT:\nLAKSHMI SHEDTHI & ORS.\n\nDATE OF JUDGMENT20\/09\/1973\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nDWIVEDI, S.N.\n\nCITATION:\n 1973 AIR 2658\t\t  1974 SCR  (1) 707\n 1973 SCC  (2) 773\n CITATOR INFO :\n E\t    1980 SC 198\t (19,21,23)\n\n\nACT:\nAliyasantana  Act  (Madras Act IX of 1949),  Sections  3(b),\n(i),  (ii), 3(c), 3(f), 3(h), 35, 36 and 39-Hindu  Secession\nAct,  XXX of 1956, sections 3(a), 4(1), 6, 7(2), 8, 10,\t 15,\n17, 23 and 30-Meaning of 'Kavaru', 'Kutumba',\tnissanthathi\nkavaru', and 'Santhathi kavaru' under Madras Act-Conceit  of\ninheritance is through female Partition-Share of a kavaru is\nascertained on date  of\t claim-Kavaru  in  relation  to\t its\nundivided  interest is kavaru  undercus-tomary\tAllyasantana\nlaw  or\t Madras\t Act-Succession Act does  not  enlarge\tlife\ninterest  of  male  under  Aliyasantana\t law  into  absolute\ninterest.\n\n\n\nHEADNOTE:\nPrior  to the Hindu Seccession Act, 1956, the  parties\twere\ngoverned   by\tthe   Aliyasantana   law.    The   customary\nAliyasantana  law was known by two different  names,  namely\nmarumakattayam\tand  aliyasantana which\t literally  connotes\ninheritance  in\t the  line  of\tnephews'  or  sisters'\tsons\nrespectively.\tThe  basic principle  underlying  the  joint\nfamily composition, otherwise known as kutumba or tarwad, is\nthe  matriarchal  system,  in which  devolution\t is  through\nfemales.  A kutumba under the customary Aliyasantana law was\na family corporation; every member, male or female, born  in\nit  has\t equal rights in the property owned by it.   On\t the\ndeath  of any member of the kutumba, his or her interest  in\nthe  kutumba property devolved on the remaining\t members  by\nsurvivorship.\tPartition  could  be effected  only  at\t the\ninstance  of  all the adult members.  The  children  of\t the\nfemale\tmembers alone were the coparceners in  the  kutumba,\nbut  not  the wife and children of the\tmale  members.\t The\nMadras\tAliyasantana  Act,  1949,  defined  and\t amended  in\ncertain\t respects the customary Aliyasantana  laws  relating\nto,  inter alia, intestate succession and partition  and  in\nother  respects saved the prevailing laws.  Thereafter,\t the\nHindu  Secession Act, 1956, came into operation whereby\t the\nantecedent  Hindu  Law ceased to have effect to\t the  extent\nthat it was either provided for or was inconsistent with the\nAct.\n The first appellant and the other appellants are the  widow\nand  sons respectively of C, while the first respondent\t and\nthe   other  respondents  are  C's  sister  and\t  her\tsons\nrespectively.\tC  executed  a\twill  on  January  15,\t1957\nbequeathing  his interest in favour of the  appellants.\t  On\nJanuary\t 25,  1957,  the respondents issued a  notice  to  C\nstating\t that  he was the manager of the  undivided  family,\nthat he was a missanthathi kavaru while the respondents were\nsanthathi  kavaurs, as such there were only two kavarus\t and\nthat they had decided to divide the properties between C and\nthemselves.  They, therefore, demanded under the Madras\t Act\na  share  belonging to their kavaru from out of\t the  entire\nmovable\t and immovable properties of the family.  C  replied\non  January 24, 1957, stating that the\trespondents'  family\nwas not a santhathi kavaru but a nissanthathi kavaru as\t the\nfirst  respondent was mere than fifty years old on the\tdate\nof  the said notice and had no female issue.   He  admitted,\nhowever, that there are only two kavarus in the family,\t and\nas  both the kavarus were nissanthathi kavarus, each  kavaru\nwas entitled to a absolute share in the kutumba\t properties.\nHe  also  stated that he bad no objection to the  claim\t for\npartition made by the respondents and was prepared to effect\nit provided the respondents cooperated.\t C subsequently died\non  February  13, 1957, after the coming into force  of\t the\nSuccession  Act.   On March 23 1957, the appellants  gave  a\nnotice\tto the respondents claiming a separate\tshare  under\nC's will.  The respondents replied to the notice on the same\nday  denying  that  the appellants  had\t any  share  because\naccording  to  them C was entitled only to a  life  interest\nunder the Aliyasantana law.\nThe  appellants-plaintitfs  then filed a  suit\tagainst\t the\nrespondents-defendants for    partition, separate possession\nof their 7\/20th share of the suit Properties and for   mesne\nprofits.   The\ttrial court decreed the suit  but  the\tHigh\nCourt dismissed.  In appeal by special leave to this  Court,\nthe  questions\tthat  arose for\t consideration\twere  :\t (i)\nwhether\t the rights of the parties, are to be determined  in\naccordance with the Aliyasantana law or under the Succession\nAct; (ii) what interest C had,\n708\nunder the Madras Act, in the joint family properties on\t the\ndate  of  his  death; (iii) whether  a\tpartition  had\tbeen\neffected;  (iv) whether C's will is effective in respect  of\nhis  share;  (v)  whether  he had a  life  interest  in\t the\nproperties; and (vi) whether, under the Succession Act. that\ninterest  had been enlarged into an absolute interest  which\ncould be bequeathed by a will.\nDismissing the appeal,\nHELD : (i) From the definitions of 'kavaru' [S. 3 (b) (i)  &\n(ii) ], 'Kutumba' S. 3(c), 'Nissanthathi kavaru' S. 3(f) and\n'Santhathi  Kavaru  S.\t3(h), under the Madras\tAct,  it  is\napparent  that the, basic concept of inheritance  through  a\nfemale has been maintained.  The presence of even one female\nin the kavaru will have the effect of continuing the kavaru,\nwhile the absence of a female would amount to the absence of\nprogeny. [712D]\n (ii)  Under  the provisions of Sections 35 and\t 36  of\t the\nMadras\tAct, any kavaru represented by the majority  of\t its\nmajor  members can claim its share of all the properties  of\nthe  kutumba over which the kutumba has power  of  disposal.\nIt  may\t thereafter  take its share and\t separate  from\t the\nkutumba\t provided that where a kavaru consists of  only\t two\npersons, such a claim can be made by either of them.  But no\nkavaru\tcan  make such a claim during the life time  of\t any\ncommon\tancestress who is common to such kavaru and  to\t any\nother kavaru or kavarus of the kutumba who has not completed\n50 years unless she has signified her consent in writing  or\n2\/3 of the major members of the kavaru have joined in making\nthe claim for partition.  The common ancestress can  however\non  her own volition claim a partition.\t The share  obtained\nby  the kavaru on partition is with all the incidents  of  a\nkavaru\tproperty which is divisible into certain  proportion\nfor a period of 15 years from the commencement of that\tAct,\nand  thereafter,  is divisible per stirpes and\teach  kavaru\ngets  a\t share on the basis.  The same position\t applies  to\nevery  kavaru possessing separate property as if it  were  a\nkutumba.   However,  u\/s  36(3),  if  at  the  time  of\t the\npartition any kavaru taking a share is a nissanthathi kavaru\nit would have only a life interest in the property  allotted\nto  it, if the kutumba from which it separated has at  least\none family member who has not completed the age of 50  years\nor  where the kutumba broke up into a number of\t kavarus  at\npartition,  if\tat least one such kavaru  is  the  santhathi\nkavaru.\t But if there is no such female member or  santhathi\nkavaru,\t the  nissanthathi  kavaru would  have\tan  absolute\ninterest  in the properties allotted to it.  The  properties\nallotted  to  a nissanthithi kavaru at a  partition  and  in\nwhich  it had only a life interest at the time of the  death\nof  the\t last of its members, devolves upon the\t kutumba  or\nwhere  the  kutumba is broken up at the same or\t at  a\tsub-\nsequent partition into a number of kavarus, upon the nearest\nsanthathi kavaru or kavarus. [713H]\nGupte,\tHindu Law of Succession, 2nd edition, at  page\t484,\nreferred to.\n(iii)\t  The  provisions  of the Madras  Act,\tparticularly\nsection\t  36(2)(h)  with  its  explanation   without   doubt\nindicates  the time when a share of a kavaru is\t ascertained\non  a  partition in the family and whether the\tproperty  is\ndivided by metes and bounds or not the share in the property\nhas to be determined as on the date when the claim is  made.\nIn the present case, the claim was made on January 22, 1957,\nand therefore, the share of the parties has to be determined\nas  on that date even though the physical partition  of\t the\nproperties  by\tmetes and bounds may take  place  some\ttime\nlater. [715B]\n(iv) Under  the\t provisions of the Succession  Act,  on\t the\ndemand\tfor  partition, there is a division in\tstatus,\t and\nthough\tpartition  by metes and bounds may  not\t have  taken\nplace, that family can thereafter never be considered as  an\nundivided  family  nor can the interest of a  coparcener  be\nconsidered  to\tbe  an undivided interest.   It\t is  a\twell\nestablished  principle in the Hindu Law that a member  of  a\njoint Hindu family has a right to intimate his definite\t and\nunambiguous  intention\tto the other members  of  the  joint\nfamily\tthat  he will separate himself from the\t family\t and\nenjoy his share in severally.  Such an unequivocal intention\ncommunicated  to  the other will amount, to  a\tdivision  in\nstatus and on such division, he will have a right to get the\ndivision of his specific share of the joint family  property\nin which till then all of them had an undivided\t coparcenary\ninterest, and in which none of them could claim that he\t had\nany right\n709\nto  any specific part thereof.\tOnce the decision to  divide\nhas  been unequivocally expressed and clearly  intimated  to\nhis  co-sharers, whether or not the other co-sharers  agree,\nan  immediate severance of the joint status is effected\t and\nhis  right  to obtain and possess the share to which  he  is\nadmittedly  entitled  becomes  specified.   This   principle\nenunciated  in\tGirja Bai v. Sadashiv Dhundiraj\t and  others\nL.R.  43  I.A.\t151 and Appovier v.  Ramasubbier  [1866]  11\nM.I.A.\t75  has\t been enacted in section 36(2)\t(h)  of\t the\nMadras\t Act   which  specifies\t the  point  of\t  time\t for\nascertaining  the  share  when\ta  division  in\t status\t  is\neffected.  The term \"partition\" in sub-section (3) of s.  36\ntherefore,  must  be  given  the same  meaning\tas  in\tSec.\n36(2)(h)  of  the  Madras  Act.\t  If  so  on  a\t demand\t for\npartition,  a severance of status takes place and the  share\nto  which  each is entitled in the undivided  properties  is\nascertained.   In the case of an Aliyasantana kutumba,\tthis\nCourt,\tin  Panduraja and others v. Dhanawanti\tand  others,\nheld  that  if\tthe  jointness\tof  the\t kutumba  had\tbeen\ndisrupted, there is no question on claiming any partition as\nthere  is  no kutumba in existence as in the  present  case.\nSimilarly,  on the same parity of reasoning, when there\t are\ntwo kavarus, demand for partition would disrupt them  within\nthe meaning of S. 7(2) of the Succession Act.  If he had  no\nundivided  interest in the property, his interest cannot  be\nenlarged  into\tan  absolute estate  nor  can  his  interest\ndevolve\t upon his heirs by intestate succession.   Prior  to\nthe  Succession\t Act, neither under the\t customary  law\t nor\nunder  the Madras Act, nor under the Indian Succession\tAct,\nthe  interest of a coparcener in an  Aliyanasantana  kutumba\ncould  have  been disposed of by  testamentary\tdisposition.\nBut  s. 30 of the Succession Act made a definite  change  in\nthe  law by enabling a member of an  undivided\tAliyanasanta\nkutumba\t or  of a kavaru to dispose of his interest  in\t the\nkutumba or kavaru properties by a will. [717H]\nKarthiyayini Kunehi v. Minakshi Ammal [1935] M.L.F. 114\t and\nMahalinga  Sherty  v.  Jataja Shedthi and  others  [1956]  2\nM.L.F. 446, approved.\nPadmaraja and others v. Dhanavanthi and Ors. [1972] 2 S.C.C.\n100, 104, applied.\nGirja Bai v. Sadashiv Dhundiraj and others L.R. 43 I.A.\t 151\nand  Appovier v. Ramasubbier [1866] 11 M.I.A.  75,  referred\nto.\n(v) In the present case, there is neither a kutumba nor\t can\nC be a kavaru.\tThe two\t  kavarus  after  the  division\t  in\nstatus, became only one kavaru, viz. that of respondent\t no.\n1  (C's sister).  C will not be a kavaru within the  meaning\nof S.\t  3(b) of the Madras Act because u\/s 3(b)(ii), there\nbeing no female line, it is   only  C's mother who can be  a\nkavaru\tbut  not C. In fact, a male can never  be  a  kavaru\neither\tunder  the customary law or under  the\tMadras\tAct.\nWhen  Sec.  7(2) of the Succession Act refers to  kavaru  in\nrelation to its \"undivided interest', it is the kavaru under\nthe customary law or the Madras Act and not a deemed  kavaru\nfor  the purpose of partition.\tIf C is not a kavaru,  there\nis  no property of a kavaru, which can be disposed of  under\nsec.  30 of the Succession Act.\t Even under the\t explanation\nto that section, the life interest which C had on  severance\nof status is not property capable of being disposed of by  a\nwill nor could it devolve by survivorship.  He is no  longer\na kavaru and had, therefore, no interest in the property  of\nthe kavaru.  C's live interest is also not enlarged u\/s 7(2)\nof  the Succession Act into an absolute interest, because  a\nmale  with a life interest under the Aliyasantana law  being\nin  the\t same position as a female limited owner  under\t the\nHindu  law, the Succession Act while enlarging the right  of\nthe latter under sec. 14 into an absolute interest did\tnot\nspecifically  provide for the enalrging of the right of\t the\nformer.\t In the absence of any such specific provisions,  it\nmust  be  held that C's interest enured till his  life\ttime\nonly. [721]\nDundara\t Adapa\tand others v. Girija & Ors.   I.L.R.  [1962]\nMysore 225, applied.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1258 of 1967.
\nAppeal\tby Special Leave from the Judgment and\tOrder  dated
\nthe 10th July 1963 of the Mysore High Court at Bangalore  in
\nSecond Appeal No. 345 of 1961.\n<\/p>\n
710<\/span><\/p>\n
S.   S.\t Javali,  B.  P. Singh and B. R.  Agrawala  for\t the
\nappellants.\n<\/p>\n
K.   N.\t Bhatt\tand Saroja Gopalakrishnan,  for\t respondents
\nNos. 1-3.\n<\/p>\n
The Judgment of the Court was delivered by
\nJAGANMOHAN REDDY, J. The appellants who were the  plaintiffs
\nfiled  a  suit against the respondents\tthe  defendants\t for
\npartition, separate possession of their 7\/20th share of suit
\nproperties  and for mesne profits.  The Trial Court  decreed
\nthe  suit, but the High Court dismissed it.  This appeal  is
\nby special leave against that judgment.\n<\/p>\n
Prior to the Hindu Succession Act, XXX of 1956\t(hereinafter
\nreferred  to  as  ‘the\tSuccession  Act)  the  parties\twere
\ngoverned by the Aliyasantana Law and the question before  us
\nis  whether their rights are to be determined in  accordance
\nwith  that  Law\t or under the Succession  Act.\t It  is\t not
\ndisputed  that\tChandayya Shetty, who died on  February\t 13,
\n1957 after coming into force of the Succession Act, and\t the
\nfirst  respondent are brother and sister respectively.\t The
\nfirst  appellant is the widow and appellants 2 to 6 are\t the
\nsons- of Chandayya Shetty, while respondents 2 to 4 are\t the
\nsons  of the first respondent.\tIn order to  appreciate\t the
\ncontentions, urged before us, it would be necessary to first
\nset  out  certain underlying concepts  of  the\tAliyasantana
\ncustomary  law,\t the changes made by  the  Aliyasantana\t Act
\n(Madras\t Act  IX of 1949)-hereinafter referred\tto  as\t“the
\nMadras\tAct” and the relevant provisions of  the  Succession
\nAct.   The Aliyasantana Law is a part of the  customary\t law
\nwhich  governed\t certain communities on the  West  Coast  of
\nSouth  India.\tThe  basic principle  underlying  the  joint
\nfamily\tcomposition,  otherwise known as kutmba\t or  tarwad,
\nunder  the  customary  law known by  two  different  names,
\nnamely,\t  marumakkattayvam   and   aliyasantana,   is\t the
\nmatriarchal  system,  in  which the  devolution\t is  through
\nfemales.  The meaning of the two words by which the  systems
\nare  known  literally connotes ‘inheritance in the  line  of
\nnephews’ or sisters’, sons.  Apart from a few differences in
\nthese  two  systems.  it  may  be  noticed  that  while\t the
\nmarumakkattayam\t system\t was applicable to all\tcastes,\t the
\naliyasantana system is’ not followed by the Brahmins (See P.
\nR.  Sundra  Iyer’s Malabar and Aliyasantana Law,  1922\tEdn.\n<\/p>\n
247).  It is chiefly followed by the Bunts, the Bilwa  caste
\nand the non-priestly class among the Jains (See Myne’s Hindu
\nLaw,   1950),\t11th  Edn.  971).   A  kutumba\t under\t the
\nAliyasantana  customary law was a family corporation:  every
\nmember born in it has equal rights in the property owned  by
\nit.   On the death of any member of the kutumba his  or\t her
\ninterest  in  the  kutumba property devolved  on  the  other
\nmembers of the kutumba by survivorship.\t The limited  estate
\nof  Hindu female familiar to the Mitakshara Law was  unknown
\nto  this ,system, for under it every male and female  member
\nhad  equal rights in the kutumba property.  Under this\tlaw,
\nthough\tpartition could not be enforced at the\tinstance  of
\non(-,  or more members and the members of the kutumba  would
\nbe  entitled  to maintenance. it could be  effected  at\t the
\ninstance of all the adult members thereof.  It may, however,
\nbe  noticed  that  ‘since  the\tbasis  of  the\tsystem\t was
\nmatriarchal, the children
\n711<\/span>
\nof  the\t female members alone were the\tcoparceners  in\t the
\nkutumba,  but  not  the wife and the children  of  the\tmate
\nmembers.  This customary law as applicable in certain  areas
\nof  the Madras Province and in the erstwhile princely  State
\nof Travancore and Cochin was modified by the laws enacted by
\nthe respective legislatures.  In this case we are  concerned
\nwith  the  Madras Ast which defined and amended\t in  certain
\nrespects the laws relating. to marriage,       guardianship,
\nmaintenance,   intestate succession and partition applicable
\nto  persons  governed by that customary law. In\t respect  of
\nmatters\t which\tthis  Act did  not  affect,  the  prevailing
\ncustomary  law\twas saved by s. 39 of the Madras  Act  which
\nprovided :\n<\/p>\n
\t       “Nothing\t contained  in\tthis  Act  shall  be
\n\t      deemed to affect any rule of Aliyasantana Law,
\n\t      custom   or  usage,  except  to\tthe   extent
\n\t      expressly laid down in this Act. ”\n<\/p><\/blockquote>\n
The Madras Act conferred a right to partition properties and
\nthe  mode  of ascertainment of shares  on  partition.  These
\nprovisions are dealt with in Ch. VI of that- Act.
\nBefore\texamining the provisions of the Madras Act  and\t the
\nSuccession Act it may be mentioned that Chandayya Shetty had
\nexecuted a Will on January 15, 1958 bequeathing his interest
\nin  favour  of the appellants ie. his wife and\tchildren.  A
\nweek  thereafter on January 22, 1957, the  first  respondent
\nand her children issued a notice to Chandayya Shetty stating
\nthat  he Chandayya Shetty) was the manager of the  undivided
\nfamily, that he was a nissanthathi kavaru (branch) while the
\nrespondents were santhathi kavarus, as such there were\tonly
\ntwo  kavarus  and  that\t they  had  decided  to\t divide\t the
\nproperties  between Chandayya Shetty and  themselves.  They,
\ntherefore,  demanded under the Madras Act a share  belonging
\nto their kavaru from out of the entire movable and immovable
\nproperties  of\tthe  family.  Chandiyya\t Shetty\t replied  on
\nJanuary 24, 1957, denying that the respondents’ family was a
\nsanthathi kavaru, but was a nissanthethi kavaru as the first
\nrespondent  was\t more than 50 years old on the date  of\t the
\nsaid  notice and had no female issue. He, however,  admitted
\nthat  there are only two kavarus in the family, and as\tboth
\nthe kavarus were nissanthathi kavarus, each\t  kavaru was
\ntherefore entitled to an absolute share in the kutumba\tpro-
\nperties.  He  also stated that he had no  objection  to\t the
\nclaim for partition made by the respondents and was prepared
\nto effect it provided the respondents cooperated. After this
\nreply  notice, Chandayya Shetty died, as already stated,  on
\nFebruary  13, 1957. On March 23, 1957, the  appellants\ti.e.
\nChadayya Shetty’s widow and her children gave a\t       notice
\nto the respondents claiming a separate share under the\tWill
\nof   Chandayya Shetty. A reply was given on the same day  by
\nthe  respondents denying that the appellants had  any  share
\nbecause according to them Chandayya Shetty was entitled only
\nto a life interest under the Aliyasantana Law.\n<\/p>\n
     On\t these facts it may be necessary to ascertain  under
\nthe  provisions\t of  the  Madras  Act  the  interest   which
\nChandayya  Shetty had in the joint family properties on\t the
\ndate of his death, whether a partition had
\n712<\/span>
\nbeen effected,..whether his will is effective in respect  of
\nhis share, whether he had a life interest in the properties,
\nand whether under the provisions of the Succession Act\tthat
\ninterest  had been enlarged into an absolute interest  which
\ncould be bequeathed by a Will.\n<\/p>\n
Before examining the provisions of Ch.\tVI of the Madras Act
\nwhich  deal with partition, it will be useful to  ascertain,
\nwhat under that Act is a ‘kutumba’ and a ‘kavaru’, and\twhat
\nis  meant  by  a ‘santliathi  kavaru’  and  a  ‘nissanthathi
\nkavaru’?   A  ‘kavaru’ has been defined in S. 3 (b)  (i)  in
\nrelation  to  a\t female as meaning  “the  group\t of  persons
\nconsisting  of\tthat  female,  her  children  and  all\t her
\ndescendants  in\t the female line”, and under S. 3  (b)\t(ii)
\nwhen  used in relation to a male as meaning “the  kavaru  of
\nthe  mother of that male”.  Under s. 3(c)  ‘kutuniba’  means
\n“the group of persons forming a joint family with  community
\nof   property\tgoverned   by  the   Aliyasantana   Law\t  of
\ninheritance”.  Under s. 3 (f) ‘nissanthathi kavaru’ has been
\ndefined\t as  meaning  “a kavaru which  is  not\ta  santhathi
\nkavaru”,  and  ‘santhathi kavaru’ under S. 3  (h)  means  “a
\nkavaru of which at least one member is a female who has\t not
\ncompleted  the\tage of fifty years”.  It  is  apparent\tfrom
\nthese  definitions  that the basic  concept  of\t inheritance
\nthrough a female has been maintained under this Act in\tthat
\nthe presence of even one female in the kavaru will have\t the
\neffect of continuing the kavaru, and the absence of a female
\nwould amount to the absence of progeny a nissanthathi liable
\nto  the\t extinction of the branch.  Keeping  in\t view  these
\ndefinitions, s. 35, which provides for partition may now  be
\nread
\n\t      “35.  (1)\t Any,  kavaru  represented  by\t the
\n\t      majority\tof  its major members may  claim  to
\n\t      take  its share of all the properties  of\t the
\n\t      kutumba  over which the kutumba has  power  of
\n\t      disposal and separate from the kutumba:\n<\/p>\n
\t      “Provided that- .\n<\/p>\n
\t      (i)   where  a  kavaru consists  of  only\t two
\n\t      persons, such a claim may be made by either of
\n\t      them;\n<\/p>\n
\t      (ii)  no kavaru shall make such a claim during
\n\t      the lifetime of any ancestress common to\tsuch
\n\t      kavaru  and to any other kavaru or kavarus  of
\n\t      the kutumba, who has not completed fifty years
\n\t      of age,\t\tunless-\n<\/p>\n
\t       (a)  she\t  has  signified  her\tconsent\t  in
\n\t      writing, or\n<\/p>\n
\t      (b)   two-thirds\tof the major members of\t the
\n\t      kavaru join in making the claim for partition;\n<\/p>\n
\t      (iii) the\t common\t ancestress may on  her\t own
\n\t      volition claim a partition.\n<\/p>\n
\t      (2)   The\t share obtained by the kavaru  shall
\n\t      be  taken\t by  it with all  the  incidents  of
\n\t      kutumba property.\n<\/p>\n
\t      Explanation.-For the purposes of this Chapter-\n<\/p>\n
\t      (a)   a male member of a kutumba, or a  female
\n\t      member thereof who has no living descendant in
\n\t      the  female  line,  shall be deemed  to  be  a
\n\t      kavaru  if  he  or she has  no  living  female
\n\t      ascendant who is a member of the kutumba;\n<\/p>\n
\t       713<\/span><\/p>\n
\t      (b)   such male member, or such female  member
\n\t      if  she has completed the age of fifty  Years,
\n\t      shall be deemed to be a nissanthathi kavaru.”
\nUnder s. 36(1) any kavaru entitled to partition under s.  35
\nshall  be  allotted a share of, the  kutumba  properties  in
\naccordance with the provisions of sub-s. (2), and the  share
\nof  a  kavaru at a partition under sub-s. (2) (h)  shall  be
\nascertained  as\t on the date on which it make  a  claim\t for
\npartition.  Explanation to that sub-section provides that :\n<\/p>\n
\t      “For  the\t purposes of this  sub-section,\t the
\n\t      date on which a partition is claimed shall be-\n<\/p><\/blockquote>\n
\t      (a)   where  the claim is made by a  suit\t for
\n\t      partition, the date of the institution of\t the
\n\t      suit (whether the suit is prosecuted or  not);
\n\t      and\n<\/p><\/blockquote>\n
\t      (b)   where  the claim is made otherwise\tthan
\n\t      by  a  suit the date on which  such  claim  is
\n\t      made.”\n<\/p><\/blockquote>\n
The following sub-sections (3) to (5) on which reliance\t has
\nbeen placed are also given below :\n<\/p>\n
\t      “(3)  If,\t at the time of the  partition,\t any
\n\t      kavaru  taking  a\t share\tis  a\tnissanthathi
\n\t      kavaru, it shall have only a life interest  in
\n\t      the properties allotted to it, if the  kutumba
\n\t      from  which  it  separates has  at  least\t one
\n\t      female  member who has not completed the,\t age
\n\t      of fifty years, or where the kutumba breaks up
\n\t      into a number of kavarus at the partition,  if
\n\t      at  least one of such kavarus is\ta  santhathi
\n\t      kavaru  and if there is no such female  member
\n\t      or santhathi kavaru, the kavaru shall have  an
\n\t      absolute\tinterest in the properties  allotted
\n\t      to it.\n<\/p><\/blockquote>\n
\t      (4)   In\tthe case referred to in\t sub-section
\n\t      (3),  the\t life interest of  the\tnissanthathi
\n\t      kavaru in the properties allotted to it at the
\n\t      partition\t  shall\t become\t absolute,  if\t the
\n\t      kutumba  concerned  ceases to have  among\t its
\n\t      members a female who has not completed the age
\n\t      of  fifty\t years or if all  the  kavarus\tinto
\n\t      which  the  kutumba broke up, whether  at\t the
\n\t      same  or\tat a  subsequent  partition,  become
\n\t      nissanthathi kavarus.\n<\/p><\/blockquote>\n
\t      (5)   The\t   properties\t allotted    to\t   a
\n\t      nissanthathi  kavaru  at a  partition  and  in
\n\t      which it had only a life interest at the\ttime
\n\t      of the death of the last of its members, shall
\n\t      devolve upon the kutumba, or where the kutumba
\n\t      has broken up, at the same or at a  subsequent
\n\t      partition, into a number of kavarus, upon\t the
\n\t      nearest santhathi kavaru or kavarus.”\n<\/p><\/blockquote>\n
The  position  that  emerges on\t a  consideration  of  these
\nprovisions  is that, any kavaru represented by the  majority
\nof  its\t major\tmembers\t can claim  its\t share\tof  all\t the
\nproperties  of the kutumba over which the kutumba has  power
\nof disposal.  It may thereafter take its share and  separate
\nfrom  the kutumba, provided that where a kavaru consists  of
\nonly  two  persons, such a claim can be. made by  either  of
\nthem
\n714<\/span>
\nbut no kavaru can make such a claim during the life-time  of
\nany  common ancestress who is common to such kavaru  and  to
\nany  other  kavaru or kavarus of the kutumba,  who  has\t not
\ncompleted  fifty years unless she has signified her  consent
\nin writing or two-thirds of the major members of the  kavaru
\nhave  joined in making the claim for partition.\t The  common
\nancestress   can  however  on  her  own\t volition  claim   a
\npartition.  The share obtained by the kavaru on partition is
\ntaken  with all the incidents of a kutumba property.   Under
\ns. 36 of that Act the property of a kutumba is on  partition
\ndivisible  in a certain proportion for a period\t of  fifteen
\nyears  from the commencement of that Act and thereafter\t all
\nthe  property, is to be divided per stripes and each  kavaru
\ngets  a\t share\ton  that  basis.   The\tprovision  is\talso
\napplicable  to every kavaru possessing separate property  as
\nif it were a kutumba.  However, under sub-s. (3) of S. 36 of
\nthat Act if at the time of the partition any kavaru taking a
\nshare  is a nissanthathi kavaru it would have only  a  life-
\ninterest in the property allotted to it if the; kutumba from
\nwhich  it separated has at least one female member  who\t has
\nnot  completed the age of fifty years or where\tthe  kutumba
\nbroke  up into a number of kavarus at partition if at  least
\none  such kavaru is a santhathi kavaru.\t But if there is  no
\nsuch  female  member or santhathi  kavaru  the\tnissanthathi
\nkavaru\twould  have an absolute interest in  the  properties
\nallotted  to it.  Sub-section (4) of that  section  provides
\nfor circumstances under which the life-estate in a  ,divided
\nshare above referred to becomes absolute property’ and\tsub-
\ns. (5) of that section provides that the properties allotted
\nto a nissanthathi kavaru at a partition and in which it\t had
\nonly a life-interest at the time of the death of the last of
\nits  members devolves upon the kutumba or where the  kutumba
\nis broken up at the same or at a subsequent partition into a
\nnumber\tof  kavarus, upon the nearest  santhathi  kavaru  or
\nkavarus.  See Gupte’s Hindu Law of Succession, 2nd Edn., (p.\n<\/p>\n
484).\n<\/p>\n
It  is apparent from a reading of these provisions  that  in
\nthis  case there were only two kavarus and that one of\tthem
\nwas  santliathi kavaru and the other a nissanthathi  kavaru.
\nThe kavaru of Chandayya Shetty was a branch which was liable
\nto  extinction as he had no female progeny.  The  appellants
\nhowever sought to characterise the kavaru of the respondents
\nas a nissanthathi kavaru because though there was a  female,
\nnamely,\t the first respondent, she was said to be not  under
\nfifty years, for if this was so, then since both the kavarus
\nwould  be nissanthathi kavarus, at a partition each  of\t the
\ntwo kavarus would take an absolute interest.  But when there
\nare  two kavarus if one is sintbathi kavaru and the other  a
\nnissanthathi kavaru, at a partition the nissantbathi  kavaru
\nwould  take only a life-interest.  The attempt to  establish
\nthat  the  respondents’\t kavaru was  a\tnissanthathi  kavaru
\nhaving\tfailed,\t as,  both the Courts held  that  the  first
\nrespondent was below 50 years. the learned Advocate for\t the
\nappellants  made strenuous attempts to persuade us, that  in
\nfact the giving of a notice by the first respondent does not
\neffect\ta  partition  of  the kutumba  or  between  the\t two
\nkavarug,  and that even if this be not established, s.\t7(2)
\nof  the\t Succession Act read with its  Explanation  has\t the
\neffect of enlarging a
\n715<\/span>
\nlife-interest into an absolute interest.  If so, the learned
\nAdvocate  submits that Chandayya Shetty had an\tinterest  in
\nthe properties which he\t could bequeath by Will.
\nIt  appears  to\t us that the provisions of  the\t Madras\t Act
\nparticularly s.\t    36(2)(h)  with its\tExplanation  without
\ndoubt  indicates  the  time  when  a  share  of\t kavaru\t  is
\nascertained  or\t a  partition in  the  family  and  “whether
\nproperty,is divided by metes and, bounds or not the share in
\nproperty has to be determined as on the date when the  claim
\nis  made.  In this case, the claim was made on\tJanuary\t 22,
\n1957  and,  therefore, the share of the parties\t has  to  be
\ndetermined  as\ton  that  date\teven  though  the   physical
\npartition  of  the properties by metes and bounds  may\ttake
\nplace some time later.\tThe argument that though a claim may
\nbe made, no partition may. ever take place, and consequently
\nthere is no partition of the kavarus, is a speculation which
\ncannot\taffect\tthe principle  applicable  for\tdetermining,
\nwhether\t or not a partition takes place and if so  when.  it
\nmay  be\t that  even  though a  notice  bad  been  given\t for
\npartition of the properties, the parties may later choose to
\nlive together and the notice withdrawn. But that is  neither
\nher nor there.\tWhat we have to ascertain is whether  there,
\nhas been a partition in the family or whether the family  is
\nstill undivided for the purposes of s.\t7(2)\t of\t the
\nSuccession Act.\n<\/p>\n
The  learned  Advocate for the appellants has made  a  great
\nplay   on the words “undivided interest in the property”  in
\ns.  7(2)  of the Succession Act, as in his  submission\twhen
\nChandayya  Shetty  died, he had undivided  interest  in\t the
\nkutumba\t  properties  and  hence  the  provisions   of\t the
\nSuccession  Act applied and the appellants were entitled  to
\ntheir  shares.\tThis contention of the appellants  no  doubt
\nfinds support from the District Judge who observed that s. 7
\n(2)  does  not speak about a division in  status,  but\tonly
\nspeaks\tabout  a division in property and that it  would  be
\nwrong  to import the provisions of the Aliyasantana  Act  in
\ninterpreting  the  Hindu Succession Act\t which\tprevails  in
\nspite  of any provisions under the Aliyasantana Law.   There
\nwas, according to the District Judge, nothing in s. 7(2)  of
\nthe  Act  which states that the person who  dies  after\t the
\ncommencement  of the Act should not only have  an  undivided
\ninterest but he should also have been an undivided member of
\nthe kutumba, and it would be wrong to introduce words  which
\nare  not in the Act.  According to him under s. 7(2) of\t the
\nAct  if the kutumba properties had not been divided and\t the
\ndeceased  had not been allotted any portion of\tthe  kutumba
\nproperties, then he continued to have an undivided  interest
\nin  the\t properties at the time of his death,_\tand  on\t his
\ndeath  his share is inherited by his legal heirs  under\t the
\nAct.   The,  learned Advocate again drew  support  from\t the
\n,observations  made by the District Judge that even  if\t the
\nprovisions   of\t  the  Madras  Act  could  be\ttaken\tinto
\nconsideration\tin  interpreting  the  provisions   of\t the
\nSuccession  Act,  then\tsub-s. (3) of s.  36  could  not  be
\ninvoked to say that even where an allotment could have\tbeen
\nmade,  but was not made, there would have been\tan  allottee
\nwho  was  only entitled to life estate.\t  According  to\t the
\nDistrict  Judge,  s.  36(3) of the  Madras  Act\t comes\tinto
\noperation only when there has been a partition and allotment
\nof a definite share, the share to be ascertained
\n716<\/span>
\nas  at the time the partition was claimed.  But, when  there
\nhas  been no partition and no allotment of a share, then  S.
\n36(3)  has  no\toperation  and\tthe  person  who  formed   a
\nnissanthathi kavaru, if he dies without getting allotted his
\nshare  in  the kutumba properties, dies\t with  an  undivided
\ninterest in the kutumba properties, and, therefore, S.\t7(2)
\nof  the\t Succession Act comes into play.  This view  of\t the
\nDistrict  Judge has been held to be erroneous by-  the\tHigh
\nCourt.\tTo ascertain which view is correct, we will have  to
\nexamine,  the relevant provisions of the Succession Act\t and
\nascertain  whether  on Chandayya Shetty’s death, he  had  an
\nundivided interest which he could dispose of by will and  if
\nhe had a life interest whether. it had been enlarged into an
\nabsolute    interest.\t  The\tSuccession    Act    defines
\n“aliyansantana\tlaw” by S. 3 (a) as meaning “the  system  of
\nlaw  applicable\t to persons who, if this Act  had  not\tbeen
\npassed, would have been governed by the Madras\tAliyasantana
\nAct,  1949,  or\t by, the  customary  aliyasantana  law\twith
\nrespect\t to the matters for which provision is made in\tthis
\nAct.”  Section\t4(1) on which reliance has been\t placed\t for
\ncontending  that the Aliyasantana Law as in force  prior  to
\nthe Succession Act has no application provides thus :\n<\/p>\n
\t      “4.  (1) Save as otherwise expressly  provided
\n\t      in this Act.-\n<\/p><\/blockquote>\n
\t      (a)   any text rule or interpretation of Hindu
\n\t      law or any custom or usage as part of that law
\n\t      in  force immediately before the\tcommencement
\n\t      of  this Act shall cease to have\teffect\twith
\n\t      respect  to any matter for which provision  is
\n\t      made in this Act;\n<\/p><\/blockquote>\n
\t      (b)   any\t other\tlaw  in\t force\t immediately
\n\t      before  the  commencement of  this  Act  shall
\n\t      cease  to apply- to Hindus in so far as it  is
\n\t      inconsistent  with  any of the  provisions  of
\n\t      this Act.”\n<\/p><\/blockquote>\n
Sections  8and 10 of the Succession Act make provisions\t for
\nthe  devolution and succession of the property of a  male  ,
\nHindu dying intestate,S. 15 deals with the general rules  of
\nsuccession in the case of female Hindus dying intestate, and
\ns. 23 makes special provision in respect of  dwelling-houses
\nwhere  a Hindu dies intestate leaving him or her  both\tmale
\nand female heirs specified in class I of the Schedule.
\nSections 7, 17 and 30 of the Act on which reliance has\tbeen
\nplaced will now be read insofar as they are relevant:\n<\/p>\n
\t      “7. (2) When a Hindu to whom the\taliyasantana
\n\t      law  would  have applied if this Act  had\t not
\n\t      been  passed  dies after the  commencement  of
\n\t      this  Act,  having at the time of his  or\t her
\n\t      death an undivided interest in the property of
\n\t      a\t kutumba or kavaru, as the case may be,\t his
\n\t      or her interest in the property shall  devolve
\n\t      by  testamentary or intestate  succession,  as
\n\t      the  case\t may  be, under\t this  Act  and\t not
\n\t      according to the aliyasantana law.
\n\t      Explanation.-For\tthe  purposes of  this\tsub-
\n\t      section,\tthe  interest  of  a  Hindu  in\t the
\n\t      property of a kutumba or
\n\t      717<\/span>
\n\t      kavaru shall be deemed to be the share in\t the
\n\t      property of the kutumba or kavaru, as the case
\n\t      may  be, that would have fallen to him or\t her
\n\t      in a partition of that property per capita had
\n\t      been made immediately before his or her  death
\n\t      among  all  the  members\tof  the\t kutumba  or
\n\t      kavaru,  as  the\tcase may  be,  then  living,
\n\t      whether  he or she was entitled to claim\tsuch
\n\t      partition\t or not under the aliyasantana\tlaw,
\n\t      and  such share shall be deemed to  have\tbeen
\n\t      allotted to him or her absolutely.’
\n\t      “17.  The provisions of sections 8, 10, 15 and
\n\t      23  shall have effect in relation\t to  persons
\n\t      who   would   have  been\t governed   by\t the
\n\t      marumakkattayam  law  or aliyasantana  law  if
\n\t      this Act had not been passed as if- ,\n<\/p><\/blockquote>\n
\t      (i)   for sub-cluses (c) and (d) of section 8,
\n\t      the following had been substituted, namely :-\n<\/p><\/blockquote>\n
\t      \"\t    (c)\t\t      x\t\t\t   x\n\t      x\n<\/pre>\n
\t      (ii)  for\t clauses (a) to (e)  of\t sub-section
\n\t      (1)  of  section 15, the\tfollowing  had\tbeen
\n\t      substituted, namely\n<\/p><\/blockquote>\n
 (a)  x\t   x\tx    x\n<\/p><\/blockquote>\n
 (b)  x\t   x\tx    x\n<\/p><\/blockquote>\n
 (c)  x\t   x\tx    x\n<\/p><\/blockquote>\n
 (d)  x\t   x\tx    x\n<\/p><\/blockquote>\n
 (e)  x\t   x\tx    x\n<\/p><\/blockquote>\n
\t      (iii) clause (a)\t   to\tsubsection  (2)\t  of
\n\t      section 15 had been omitted;\n<\/p><\/blockquote>\n
\t      (iv) section 23 had been omitted.”
\n\t      “30.   Any  Hindu may dispose of\tby  Will  or
\n\t      other  testamentary disposition any  property,
\n\t      which  is capable of being so disposed  of  by
\n\t      him, in accordance with the provisions of\t the
\n\t      Indian Succession Act, 1925, or any other\t law
\n\t      for the time being in force and applicable  to
\n\t      Hindus.\n<\/p><\/blockquote>\n
\t      Explanation.-The interest of a male Hindu in a
\n\t      Mitakshara   coparcenary\t property   or\t the
\n\t      interest\tof a member of a  forward,  tavazhi,
\n\t      illom,  kutumba or kavaru in the\tproperty  of
\n\t      the  tarwad,  tavazhifi  illom,  kutumba\t or’
\n\t      kavaru\tshall,\t notwithstanding    anything
\n\t      contained in this Act or in any other law\t for
\n\t      the time being in force, be deemed to be\tpro-
\n\t      perty  capable of being disposed of by him  or
\n\t      by  her  within  the  meaning  of\t this\tsub-
\n\t      section.”\n<\/p><\/blockquote>\n
The  first  thing to be noticed is that on  the\t demand\t for
\npartition  there  is  a\t division  in  status,\tand   though
\npartition by metes and bounds may not have taken place, that
\nfamily\tcan thereafter never be considered as  an  undivided
\nfamily,\t nor can the interest of a copareener be  considered
\nto  be\tan  undivided interest.\t It  is\t a  well-established
\nprinciple  in, the Hindu Law that a member of a joint  Hindu
\nfamily has a right to, intimate his definite and unambiguous
\nintention to the other members of the joint family that\t he
\nwill separate himself from
\n718<\/span>
\nfamily\t and  enjoy  his  share\t in  severalty.\t   Such\t  an
\nunequivocal  intention\tcommunicated  to  the,\tothers\twill
\namount to a division-in status and on ,such division he will
\nhave  a\t right to get a de facto division  of  his  specific
\nshare  of the joint family property, in which till then\t all
\nof them had an undivided coparcenary interest, and in  which
\nnone  of  them\tcould claim that he had\t any  right  to\t any
\nspecific part thereof.\tOnce the decision to divide has been
\nunequivocally  expressed  and clearly intimated to  his\t co-
\nsharers,  whether  or  not the other  co-sharers  agree,  an
\nimmediate severance of the joint status is effected arid his
\nright  to  obtain  and\tpossess the share  to  which  be  is
\nadmittedly   entitled  be-Comes\t specified:  Girja  Bai\t  v.
\nSadayhiv Dhundiraj & Others.(1) Lord Westbury in Appovier v.
\nRamasubbier,(2) had earlier observed
\n\t      “If  there  be  a\t conversion  of the  joint
\n\t      tenancy of an undivided family into a  tenancy
\n\t      in  common  of the members of  that  undivided
\n\t      family, the undivided family becomes a divided
\n\t      family with reference to, the property that is
\n\t      the  subject of that agreement, and that is  a
\n\t      separation in interest and in right,  although
\n\t      not immediately followed by a de facto  actual
\n\t      division of the subject-matter.  This  may,-at
\n\t      any time, be claimed by virtue of the separate
\n\t      right.”\n<\/p>\n
This principle has been incorporated in s. 36(2) (h) of\t the
\nMadras .Act which, as already stated, specifies the point of
\ntime for ascertaining the share when a division in status is
\neffected.   The\t term  ‘partition’ in sub-s. (3)  of  s.  36
\ntherefore  must be given the same meaning ,as in s.  36\t (2)\n<\/p>\n
(h) of the Madras Act.\n<\/p>\n
In Mahalinga Shetty v. Jalaia Shedthi and others(3)  Govinda
\nMenon,\tJ.,  as he then was, speaking for the Bench  of\t the
\nMadras\tHigh  Court  came  to  a  similar  conclusion  on  a
\nconsideration of ss. 36(2) (h) and 36(3) of the Madras\tAct.
\nIt  was held in that case +.hat the phrase ‘at the  time  of
\npartition  should  be understood as ‘at the  time  when\t the
\nparties\t effect a severance in status’ the  partition  being
\nonly a disruption of status.  It does not mean the point  of
\ntime  when  the actual division by metes  and  bounds  takes
\nplace,\twhich might take a long time after the\tdivision  in
\nstatus\ttakes place, either by the institution of a suit  or
\nby  a notice of ($aim for ‘partition’.\tIt was pointed\t,out
\nin  that  case that clause (h) in sub-s. (2) of\t S.  36\t was
\nobviously   inserted  as  a  result  of\t the   decision\t  in
\nKarthiyayini Kunchi v. Minakshi Ammal(4) in which a Bench of
\nthat Court held that the theory of division in\t  status  by
\na  unilateral  declaration  of intention  is  applicable  to
\npersons\t  following  the  Marumakkattayam  Law\tjust  as  it
\napplies to Mitakshara\t joint\t family.   Burn,   J.,\t who
\ndelivered  the\tjudgment stated that the  principle  is\t not
\nrestricted to the case of joint Hindu families following the
\nMtakshara or  any  other  system of  law  but  is  one\tof
\nuniversal  application.\t  It is to remove any  doubts  about
\nthis that clause (h) has been inserted in S. 36(2).  In\t our
\nview also, the word partition’ in sub-s. (3) of S. 36 should
\nbe given the same meaning, as.in s. 36(2) (h) of the  Madras
\nAct, if so on a demand for partition
\n(1)  L. R. 43 I. A. 151.\n<\/p>\n
(2)  (1866) It M. T. A. 75.\n<\/p>\n
(3)  (1956) 2 M. L. J. 446.\n<\/p>\n
(4)  (1935) 70 M. L. J. 114.\n<\/p>\n
719<\/span><\/p>\n
a  severance  of status takes place and the share  to  which
\neach   is   entitled  in  the,\t undivided   properties\t  is
\nascertained.\n<\/p>\n
Even in the case of an aliyasantana kutumba this Court\thad
\nheld  per Hegde and Grover, JJ. in Padmaraja and  others  v.
\nDhanavanthi  and  others(1)  that if the  jointness  of\t the
\nkutumba had been disrupted, there is no question of planning
\nany partition as there is no kutumba in existence as in\t the
\ninstant\t case before us.  Similarly, on the same  parity  of
\nreasoning,  when there are two kavarus, a demand for  parti-
\ntion would disrupt them and Chandayya Shetty could no longer
\nclaim  that he had an undivided interest within the  meaning
\nof s. 7(2) of the Succession Act, and if he has no undivided
\ninterest  in the property, his interest cannot\tbe  enlarged
\ninto  an  absolute  estate,  nor can  his  interest  in\t the
\nproperty  devolve, upon his heirs by  intestate\t succession.
\nWhat  s.  7 is dealing with is a situation similar  to\tthat
\ndealt  with  in s. 6, namely, that when a  member  of  joint
\nHindu  family  dies  undivided,\t instead  of  his  undivided
\ninterest  devolving upon the other members of the family  by
\nsurvivorship,  it  is  provided\t that on  the  death  of  an
\nundivided member of the joint Hindu family his share in\t the
\njoint  family  properties shall devolve on his heirs  as  if
\nthere had been partition in the family.\t The Explanation  to
\ns. 7(2) makes this position clear.  Prior to the  Succession
\nAct  neither under the customary law, nor under\t the  Madras
\nAct,  nor under the Indian Succession Act the interest of  a
\ncoparcener  in\tan  aliyasantana  kutumba  could  have\tbeen
\ndisposed  of by testamentary disposition.  But s. 30 of\t the
\nSuccession  Act\t made  a  definite change  in  the  law,  by
\nenabling a member of an undivided aliyasantana kutumba or of
\na kavaru to dispose of his interest in the kutumba or kavaru
\nproperties by a will.\n<\/p>\n
The learned Advocate for the appellants submits. that merely
\nbecause a person has asked for a partition and that also not
\nby  Chandayya Shetty but by the first respondent, it  should
\nnot deprive him of his right to dispose of that property  by
\na  will,  or  deprive  his legal  heirs\t of  inheriting\t his
\nproperty by intestate succession.  This argument ignores the
\nbasic  concepts\t of the aliyasantano law.   As\tpointed\t out
\nearlier there is neither a kutumba, nor can Chandayya Shetty
\nbe a kavaru.  The two kavarus after the division in  status,
\nbecome\tonly  one  kavaru,  namely  that  of  respondent  1.
\nChandayya Shetty will not be ‘a kavaru within the meaning of
\ns. 3(b) of the Madras Act, because under s. 3(b) (ii)  there
\nbeing  no  female line, it is only the mother  of  Chandayya
\nShetty\twho- can be a kavaru but not Chandayya\tShetty.\t  In
\nfact a male can never be a kavaru either under the customary
\nlaw or under the Madras Act.  When the Succession Act refers
\nto  kavaru in relation to its undivided interest, it is\t the
\nkavaru\tunder the custom or the Madras Act and not a  deemed
\nkavaru\tfor the purposes of partition.\tIf Chandayya  Shetty
\nis not a kavaru, there is no property of a kavaru which\t can
\nbe  disposed  of under s. 30 of the  Succession\t Act.\tEven
\nunder  the  Explanation to that section, the  life  interest
\nwhich  Chandayya  Shetty had no severance of status  is\t not
\nproperty capable of being disposed of by a will.  As we said
\nhe is no longer a kavaru and had, therefore, no interest  in
\nthe property of the, kavaru.\n<\/p>\n
(1) [1972] 2 S. C. C. 100, 104.\n<\/p>\n
92SupC\/74
\n720<\/span>
\nA  Full Bench of the Mysore High Court in Sundara Adapa\t and
\nothers v. Girija and Others(1) has given a similar answer on
\nfacts  analogous to the one raised before us.  In that\tcase
\nthe  first  defendant  who was\ta  nissanthathi\t kavaru\t had
\nclaimed\t in  his written statement a partition\tof  his\t own
\nshare  and  was granted 751360th share\tin  the\t preliminary
\ndecree.\t By a will he left to his wife and children all\t his
\nrights in the properties due to him on account of his share.
\nThere  was  also  likewise a  santhathi\t kavaru,  Under\t the
\nAliyasantana  Act on the cessation of the first\t defendant’s
\nlife  interest the property would devolve upon\tthe  nearest
\nsanthathi kavaru according to sub-s. (5) of s.\t  36. But it
\nwas  contended as is contended in this case. that by  virtue
\nof   Explanation  to sub s. (1) of s. 30 of  the  Succession
\nAct, the rights of  the\t first\tdefendant  in  his  75\/360th
\nshare of his properties became capable of being disposed  of by wi
\nll and, therefore, the children of the first defendant
\ncould be entitled to the share in accordance with the  terms
\nthereof.  Hegde, J., as he then was, delivering the judgment
\nof that Court observed at pp. 238-239 ;\n<\/p>\n
\t      “The  object  of section 30  is  clear.\tThat
\n\t      section  neither\tdirectly  nor  by  necessary
\n\t      implication  deals  with\tthe  devolution\t  of
\n\t      divided  interest.  As mentioned earlier,\t its
\n\t      purpose is limited.  The language employed  is
\n\t      plain    and   therefore\t no   question\t  of
\n\t      interpretation  arises.  It is not correct  to
\n\t      contend,\tas  done by Sri Bhat,  that  if\t the
\n\t      Explanation  to s. 30(1) is understood in\t the
\n\t      manner the respondents want us to\t understand,
\n\t      a coparcener who dies undivided would leave  a
\n\t      more valuable estate to his heirs than one who
\n\t      dies divided.  In most cases, the share  taken
\n\t      by a nissanthathi kavaru though limited to the
\n\t      duration\tof the life of the kavaru  would  be
\n\t      larger  in extent than one as  provided  under
\n\t      sec.  7  (2) of the “Act”.  In the case  of  a
\n\t      share  under the Aliyasanthana Act the  kavaru
\n\t      takes  his  share\t on the\t basis\tof  half-per
\n\t      capita, half per stirpes.\t Under sec. 7(2) the
\n\t      share  is\t determined  on\t per  capita  basis.
\n\t      Quite  clearly  the  object  of  bounty  under
\n\t      section  7 (2) read with sec. 30 is the  donee
\n\t      under the will of a deceased coparcener.\t The
\n\t      fact  that  divided members also\tdo  not\t get
\n\t      corresponding  benefits under the “Act” is  no
\n\t      relevant\t test.\t If  Parliament\t wanted\t  to
\n\t      enlarge  the interest of divided male  members
\n\t      nothing would have been easier than to enact a
\n\t      provision\t on the lines of sec. 14(1)  of\t the
\n\t      “Act”,  provided Parliament had competence  to
\n\t      do  so.  Further, the Explanation\t to  section
\n\t      30(1) speaks of “The interest of a Male Hindu”<\/p><\/blockquote>\n
\t\t\t    in\this “kutumba” or “kavaru”  propert
\ny.   The
\n\t      definite article ‘the’ evidently refers to the
\n\t      interest specified or quantified in some other
\n\t      provision of the “Act”; it could not refer  to
\n\t      the unascertained interest of a coparcener  in
\n\t      a kutumba.  Obviously “the interest”  referred
\n\t      to is the interest quantified under section  7
\n\t      of  the “Act” to which reference will be\tmade
\n\t      in greater detail at a later stage.\n<\/p>\n
\t      (1) T. L. R. [1962] Mysore 225.\n<\/p>\n
\t      721<\/span><\/p>\n
\t      Quite  clearly, on the date of his  death\t the
\n\t      first  defendant\twas  not  a  member  of\t his
\n\t      kutumba or kavaru.  As noticed earlier, he was
\n\t      already divided from the family.\tFurther, his
\n\t      will  did\t not relate to his interest  in\t the
\n\t      kutumba\tor   kavaru  property.\t  The\twill
\n\t      purported to bequeath the property obtained by
\n\t      him  as  his  share  as  per  the\t preliminary
\n\t      decree.\t Therefore,  the   contention\tthat
\n\t      interest obtained by the first defendant under
\n\t      the  preliminary, decree stood enlarged  as  a
\n\t      result  of  section 30(1) of  the\t “Act”\tmust
\n\t      fail.”\n<\/p>\n
The  above  statement  of the law which\t meets\tthe  several
\ncontentions  raised before us is in consonance with our\t own
\nreading\t of  the  provision  of\t the  Madras  Act  and\t the
\nSuccession  Act.  The learned Advocate for  the\t appellants,
\nhowever,  has tried to distinguish this case on\t the  ground
\nthat  the  effect  of s. 17 of the Succession  Act  was\t not
\nconsidered in that case.  In our view, that question was not
\nrelevant either in that case or in this case, because s.  17
\nof  the Succession Act applies the provisions of ss. 8,\t 10,
\n15  and 23 which deal with intestacy, to Persons  who  would
\nhave   been   governed\tby  the\t  Marumakkattayam   Law\t  or
\nAliyasantana  Law if the Succession Act had not been  passed
\nwith the modifications provided therein. in this case  also,
\nas  already stated, there is no kavaru of  Chandayya  Shetty
\nand  on\t separation he Succession Act  while  enlarging\t the
\nright of an absolute interest did not specifically the right
\nof  the\t former.  In the absence had only  a  life  interest
\nwhich is not a heritable property and cannot be disposed  of
\nby  a will, nor could it devolve as on intestacy.  Even\t the
\nargument that under s. 7(2) Chandayya Shett’s life  interest
\nhas  been  enlarged  into an absolute  interest\t is  equally
\nuntenable,  because  a male with a life interest  under\t the
\nAliyasantana  Law  being in the same position  as  a  female
\nlimited\t owner under the Hindu Law, the\t latter under s.  14
\ninto  provide  for  the\t enlarging  of\t any  such  specific
\nprovision we can only hold that Chandayya Shetty’s  interest
\nenured till his life time only.\n<\/p>\n
In  the result the judgment of the High Court is  sustained,
\nand the appeal dismissed but without,costs.\n<\/p>\n
3.B.W.\t\t\t     Appeal dismissed.\n722<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jalaja Shedthi & Ors vs Lakshmi Shedthi & Ors on 20 September, 1973 Equivalent citations: 1973 AIR 2658, 1974 SCR (1) 707 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: JALAJA SHEDTHI & ORS. Vs. RESPONDENT: LAKSHMI SHEDTHI & ORS. DATE OF JUDGMENT20\/09\/1973 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. […]<\/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-195024","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJalaja Shedthi & Ors vs Lakshmi Shedthi & Ors on 20 September, 1973 - 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\/jalaja-shedthi-ors-vs-lakshmi-shedthi-ors-on-20-september-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jalaja Shedthi & Ors vs Lakshmi Shedthi & Ors on 20 September, 1973 - 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