Gummanna Shetty & Ors Vs.
Nagaveniamma [1967] INSC 140 (4 May 1967)
04/05/1967 BACHAWAT, R.S.
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 affect 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]
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.
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