Padmaraja & Ors Vs. Dhanavathi
& Ors  INSC 124 (27 April 1972)
CITATION: 1972 AIR 2219 1973 SCR (1) 383 1972
SCC (2) 100
F 1973 SC2658 (11)
Madras Aliyasantana Act (9 of 1949) s.
36(6)-Scope of-Award decree-When evidences partition-If award decrees come
within s. 36(6).
Differences having arisen among members of a
family governed by the Aliyasantana Law, all the major members of the family
except one referred the disputes to arbitration. As per the authority given to
the arbitrators the arbitrators had to decide the disputes in accordance with
the Aliyasantana Law of inheritance, according to which, partition was
impermissible except with the consent of all the adult members of the family.
The arbitrators were not required to divide the Kutumba properties on Kavaru
basis; but the arbitrators divided the properties between the two Kavarus,
which were then in existence in the family, in order to avoid disputes and to
fix the responsibility for income, and loss. There was an award decree in terms
of the award, Thereafter, the members of one Kavaru filed a suit for partition
under s. 35 of the Madras Aliyasantana Act, 1949, and the appellants and some
other members of the other Kavaru, contended that the Kutunba had been
partitioned by the award, decree or, that the arrangement thereunder was a
deemed partition under s. 36(6) of the Act.
The trial court dismissed the suit, but the
High Court, in appeal, held that the award decree did not evidence partition,
and that it was not covered by s. 36(6) as it was an award decree and not a
Dismissing the appeal to this Court,
HELD : (1) When the Act came into force, in
addition to joint living by the members of the Kutumba, three types of
arrangements were in existence in various Kutumbas, namely, (a) When the senior
most member of the family (Yejman) or (Yejmanthi) made maintenance allotments
which were purely temporary in character, (b) a permanent arrangement for
maintenance, and (e) partition with the consent of all adult members. In the
ease of a permanent, arrangement for maintenance it was usually done on Kavairu
basis, the jointness of the family was kept intact, but arrangement was made
for separate living and separate management of Kutumba properties on a
permanent basis which; could not be disturbed without the consent of all the
adult members of the Kutumba. Such of these permanent arrangements which came
within the scope of s. 36(6) are deemed to be partitions despite the fact that
under those arrangements the jointness of the Kutumba was kept intact. [386A-F]
(2) The conditions to be satisfied before a document can be considered as
coming within the scope of s. 36(6) are :
(a) there is a registered family settlement
or award (b) all the major members of the Kutumba are parties to it;
(c) the whole of the kutumba properties have
been or were intended to have been distributed; and (d) the distribution is
among all the Kavarus of the Kutumba for the separate and absolute enjoyment in
perpetuity. [387 A-D] 384 Gummanna Shetty v. Nagaveniamma,  3 S,C.R. 932,
(3) In the present case, the award decree did
not evidence a partition; because it contained clauses inconsistent with an out
and out partition.
The award decree recited that 'proper
arrangements were made for the maintenance of the Kutumba Without disrupting
its oneness'; that both Kavarus should together conscious functions; and the
members of one of the Kavarus were to show accounts to the senior most member
who continued to be the yejman of thee entire kutumba.
[388G-H] Ammalu Amma v. Vasu Menon, A.I.R.
1944 Mad. 108, approved.
(4) (6) Award decrees have to be considered
as awards for purposes of s. 36(6). [391B-C] (a) The principle underlying s.
36(6) is not to disturb the finality of, arrangements made. If that were so,
such permanency should be available, in a larger measure to an award decree,
for otherwise, parties could enforce partition ignoring award decrees while
they would be bound by awards. [390 G-H] (b) After the coming into force of the
Arbitration Act, 1940, all awards had to be compulsorily made decrees of courts
if they were to have force. The Akiyasahntana Act came into force in 1994 and
the legislature would not have denied to the awards passed after 1940 (in terms
of which decrees would have been passed) the benefit of s. 36(6) of the
Aliyasanatana Act. The Legislature, by using the expression 'award' intended to
include both awards simpliciter as well as awards which had been made decrees
of Courts. [391A-B] Parameshwari Hengsu v. Venkappa Shetty and ors., (1961)
Mys. L.J. 686 on the interpretation if s. 36(6), overruled.
(5) (a) But the second condition for the
application of the section is not satisfied in the present case, as one of the
major members of the Kutumba was not a party to the award.
[392D] (b) Even though he acquiesced in the
arrangements made under the award decree he would not-be a party to the
arrangement. Before the arrangement can be deemed to be a partition under s.
36(6), all the conditions should be fully satisfied, and substantial compliance
is not sufficient, since, it is a case of a deemed partition and not an actual
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 999 of 1966.
Appeal by Special Leave from the judgment and
order dated July 7, 1965 of the Mysore High Court in Regular Appeal No.37 of
K. N. Bhat, for the appellants.
Rameshwor Nath and Swaranji Ahuja, for the
respondents Nos. 1 to 6.
The Judgment of the Court was delivered by
Hegde J. This is an appeal by special leave. Defendants 34 and 35 in the suit
are the appellants. The suit from which this 385 appeal arises is a suit for
partition under the Madras Aliyasantana. Act, 1949 (Madras Act IX of 1949)
(which will hereinafter IV referred to as the Act).
The two questions that arise for decision in
this appeal are' (1) whether under the, award decree Exh. A-2, the kutumba
(family), of the plaintiffs and the defendants stood partitioned and (2) if'
the answer to the first question is in the negative whether the said ,award
decree comes Within the scope of s. 36(6) of the Act.
The plaintiffs and the defendants were
governed by the aliyasantana law of inheritance. It is a matriarchal system of
law. One' Pammadi was the prepositor of the family. She had two daughters by
name Pammakke and Dejappe and three sons viz. Kanthu Hegde, Monu Hegde and
After the death of Pammadi, differences arose
in the family.
Hence all the major members of the family
excepting one Brahamiah referred those disputes to the arbitration of four
arbitrators by means of a mutdhallika dated December 14, 1886. By the time this
mutchallika was executed, two of the sons of Pamadi, Kanthu Hegde and Monu
Hegde had died. At that time, in the kutumba there were only two santhathi
kavaru viz. Pammakke and Dejappe and one nissanthathi kavaru namely Manjappa
Hegde in existence (reference to santhathi kavaru and nissanthathi kavaru is as
defined in the Act). The arbitrators divided the kutumba properties into two
parts; one part was allotted to the share of Pammakkes Kavaru and the other
part to Dejappes Kavaru and Manjappa Hegde. Manjappa Hegde was clubbed
alongwith the kavaru of Dejappe (reference to kavaru is as defined in the Act).
On June 14, 1953, all the members of the kavaru of Pammakke brought a suit for
partition of the suit properties under s. 35 of the Act. The appellants and some
other members of the kavaru of Dejappe resisted the suit mainly On the ground
that the kutumba had been partitioned under Ex.
A-2. They contended that, the said document
either evidences a partition or at any rate the, arrangement made thereunder is
a deemed Partition coming within the scope of s. 36(6) of the Act. The trial
court came to the conclusion on that under the Award in question the. kutumba
properties were partitioned. Alternatively it held that Ex. A-2 is covered by
s. 36(6). In appeal a Division Bench 'of the High Court of, Mysore reversed the
judgment and decree of the trial court. It held that Ex. A-2 does not evidence
a partition. It, further came to the conclusion that the same is not covered by
s. 16(6) as Ex. A-2 was an award decree and not a mere award. Dissatisfied with
the judgment of the High Court, defendants 34 and 35 have brought this appeal.
The findings of the High Court as regards the
true nature of Ex. A-2 were challenged before us on behalf of the appellants by
Mr. K. N. Bhatt. Before proceeding to consider the contentions 386 of the
parties, it is necessary to refer, in brief, to the customary aliyasantana law.
Under that law inheritance is traced through the female line. Under that law,
as interpreted by courts partition was impermissible except with the consent of
all the adult members of the family.
The senior most member of the family be it a
male or a female was a Yejman or Yejmanthi of the family. With the passage of
time, the members of the aliyasantana kutumbas increased and kutumbas became
unwieldy and joint living became intolerable. In order to mitigate these
difficulties, three types of arrangements came to be made, in those kutumbas.
By and large the Yejman or Yejmanthi of the family made maintenance allotments
(maintenance under the aliyasantana is a mode of participation in the family
properties). This, type of arrangement was purely temporary in character. It
was open to the Yejman or Yejmanthi to resume the properties allotted for
maintenance to the junior members and make alternative arrangements for their
maintenance. Another type of arrangement that came to be made was permanent
arrangement for maintenance. This was ordinarily done, on kavaru basis. Under
this arrangement, jointness of the family was kept intact but arrangement was
made for separate living and separate management of kutumba properties on a
permanent basis. Such arrangements ordinarily were not capable of being
disturbed except with the consent of all the adult members of the kutumba.
Lastly there are few cases of partition with the consent or concurrence of all
the adult members of the kutumba. Hence when the Act came into force in
addition to joint living by the members of kutumbas as, aforementioned types of
arrangements were in existence in various kutumbas. Under S. 35 of the Act
power was given to avarus, santhsthi or nissanthathi to claim at partition but
those permanent arrangements which came within the scope of S. 36(6) were
deemed to be partitions despite the fact that under those arrangements the
jointness of the kutumba was kept intact.
In Gummanna Shetty and ors. v.
Nagaveniamma(1), this Court while dealing with an arrangement in a aliyasantana
family entered into in the year 1900 observed "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 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 (1)
 3 S.C.R. 932.
387 not effect a disruption of the family,
unless it completely extinguished the community of interest in the family
properties." Analysing the scope of s. 36(6), this Court, approving the
decision of the Madras High Court in Kaveri v. Ganga Ratna(1) held that the
following, conditions should be satisfied before a document can be considered
as coming within the scope of s. 36(6) 1. there is a registered family
settlement or award;
2. all the major members of the kutumba are
parties 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.
There is no difficulty about temporary
arrangements for maintenance. These arrangements could not come in the way of
effecting partition in a kutumba. Similarly if the jointness of the kutumba had
been disrupted, there is no question of claiming any partition as there is no
kutumba in existence. The application of s. 36(6) arises only when the case
does not fall either under the first category or the second. In construing
karars (agreements) evidencing permanent arrangements, we must bear in mind the
ordinary principles of construction of documents. The first is that the whole
document must be read and construed. The court must have regard to the declared
object of the document which is often contained in the preamble but the title
given to a document is not conclusive. It is observed in Mr.
Sundara Ayyar's Malabar Law that
"arrangements for maintenance will not ordinarily be viewed as permanent
arrangements though it is not impossible that there should be such
arrangements. Divisions for enjoyment short of partition that are sometimes
entered into are of this character." The characteristics of such documents
were considered exhau- stively by Somayya, J. in Ammalu Amma v. Vasu Menon (2
Therein the learned judge observed :
"No doubt it may not be common but if on
a reading of the entire document, there are clauses which are entirely inconsistent
with an out and out partition, the Courts are bound to construe the document as
a maintenance arrangement even though it is stated to be a permanent
arrangement." (1)  1, M.L.J. 98.
(2) A.I.R. (31) 1944 Mad. 108.
388 Bearing in mind the principles enunciated
by a long chain of decisions, we shall first examine whether Ex. A-2 can be
considered as a document affecting partition. In considering that question we
have to primarily see whether in Ex. A-2, there are clauses which are entirely
inconsistent with an out and out partition.
Ex. A-2 came to be rendered on the strength
of a mutchallika executed by most of the members of the kutumba in favour of
three arbitrators on December 14, 1886, for slip 2 because of the dispute that
had arisen in the family about the enjoyment of the kutumba properties. It is
also clear from that mutchallika that some members of the family had serious
complaints against the Yejman of the family, Adu Hegde. The mutchallika
authorised the arbitrators to decide the disputes that had arisen "in
accordance with our "Aliyasanthana Kattu", in a manner which you deem
"Aliyasantana kattu' i.e. Aliyasantana
law of inheritance did not provide, as mentioned earlier, for compulsory
partition. The arbitrators undoubtedly came to the conclusion that it was
difficult for the large family to live together. It is also clear from the
award that the parties had agreed to "enjoy kutumba properties by living
separately". They had also agreed for the separation (vingada) of the
kutumba properties. As per the authority given to the arbitrators, the
arbitrators were not required to divide kutumba properties on kavaru basis.
They could have put together, some members of one kavaru with some members of
another Kavaru. But the arbitrators thought "that if the members of two
Kavarus are mixed together, in future the properties would be spent, on account
of mutual disputes existing between them, and that unless the responsibility of
income and loss in the Kavaru is pinned on the Kavaru having more members, to
some extent', all the members will not bestow labour properly." That was
the reason why they divided the properties prima- rily between two kavarus. It
is true that the arbitrators divided the family debts into two parts and each
kavaru was asked to discharge the then existing debts from out of the income of
the properties that were allotted to its shares.
But at the same time Adu Hegde continued to
be the Yejman of the entire kutumba. Members of each kavaru were prohibited
from incurring debts on behalf of the kutumba. Further till the existing debts
were discharged, the members of Pammakke kavaru were asked to "show
accounts in respect of their income and expenditure" to Adull Hegde. Exh.
A-2 further says that "the members of the kutumba should live in different
houses, by bestowing labour and without quarreling with each other as proper
arrangements were made for the maintenance of the kutumba without disrupting
its oneness". From this clause it is clear that the kutumba was not disrupted.
The document further provides "both the kavarus should together 389
conduct "Havyas Kavyas" and auspicious functions". The
fore-going clauses clearly show that Ex. A-2 did not disrupt the kutumba though
undoubtedly it "made provision for the separate living of the Kavarus, and
for the separate enjoyment of the properties allotted to them. For these
reasons we are in agreement with the High Court that Ex. A- 2, does not
evidence a partition. The terms of Ex. A-2 are not similar to those that came
up for consideration before the Madras High Court in Appa and ors . v. Kachai
Bay van Kuti and ors.(1) or those that came up for decision by that High Court
in Mudara and ors. v. Muthu Hengsu(2). Each document has to be construed on its
own terms. Tern-is of any two documents rarely, if at all are identical. Hence
the construction placed on a particular document can hardly govern the
construction of another document. There is no dispute as regards the principles
governing the construction of documents.
This takes us to the question whether Ex. A-2
is covered by s. 36(6). That section 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,
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." Evidently the legislature wanted to deem certain deeds under
which perpetual arrangement had been made in the past for the maintenance of
all the kavarus of a kutumba as partitions. The requirements of s. 36(6), have
been laid down by this Court as seen earlier in Gummann Shetty's case (supra).
Therefore all that we have to see is whether the tests laid down by this Court
in that decision are satisfied. The High Court having come to the conclusion
that the first test was not satisfied rejected the.conten- tion of the
plaintiffs that the deed Ex. A-2 comes within the scope of s. 36(6). It came to
the conclusion that an award decree is not an award within the meaning of s.
In arriving at that conclusion, it relied on
the decision of that Court in Parameshwari (3 ). Hangsu and ors. v. Venkappa
Shetty and ors. Parameshwari Hengsu's case (supra) first came up for hearing
before at Division Bench consisting of Sadasivayya and Mir Iqbal Husain JJ.
Sadasivayya J. held that the expression "award" in s. 36(6) does not
take in an award decree. But lqbal Husain J. differed from that view and opined
that the term "award" includes also an award dec- ree. In view of
that difference of opinion, the question whether the expression
"award" includes an award decree was referred to (1) A.I.R. 1932 Mad.
689. (2) A.I.R. 1935 Mad. 33.
(3)  Mys. L. J. 686.
390 Somnath Iyer J. That learned judge agreed
with the view taken by Sadasivayya J. The decision in Parameshwari Hengsu's
case (supra), was binding on the bench which heard this case. Hence naturally
that controversy was not again gone into by the High Court in this case. The
learned counsel for the appellants challenged the correctness of the decision
of the Mysore High Court in Parameshwari Hengsu's case (supra). He contended
that the expression "award" in s. 36(6) includes also an award
decree. lie urged that in the case of an award decree, the court merely accepts
the award made and makes it a decree of the court and hence award decrees have
also to be considered as awards for the purpose of s. 36(6). In examining the
correctness of the conclusion reached by the Mysore High Court in Parameshwari
Hengsu's case (supra), we must first examine the principle underlying s. 36(6).
As mentioned earlier, the legislature was evidently anxious not to disturb
certain permanent arrangements made in the kutumbas either by means of any
registered family settlements or by awards. That being the case one fails to
understand why the legislature should be held to have excluded from the scope
of s. 36(6) award decrees while bringing within its scope awards. Dealing with
this aspect both Sadasivayya J. and Somnath Iyer J.
opined that "it is possible that with a
view not to disturb finality resulting from a decree (of whatever kind) that
the legislature intentionally refrained from referring, to decrees in sub-s.
(6) thereby confining the scope of that sub-section only to the registered
family settlements and awards expressly mentioned therein. If that be so, no
court would be justified in equating an award to the decree passed on
it."' This reasoning appears to us to be fallacious. It must be remembered
the only decrees that could possibly have been included within the scope of s.
3 6 (6) were award decrees.
We have earlier noticed that compulsory
partition was not permissible under the aliyasantana law. Hence there could not
have been any partition decrees, nor could there have been decree making
permanent arrangements in the matter of enjoyment of kutumba properties in
We can think of no decree regulating the
affairs of kutumba which cannot be disturbed under the Act. We agree with those
learned judges that the principle underlying s. 36(6) was not to disturb the
finality of arrangements made. That very principle runs counter to the
reasoning adopted by those learned judges. If permanency of an arrangement is
the principle underlying s. 36(6) that permanency should be available in a
larger measure to an award decree. On the other hand if the view taken by those
learned judges is correct, while s. 36(6) provides permanency for some awards,
no such permanency is available to any award decree.
Parties could enforce partition ignoring
award decres while they are bound by awards. This could hardly have 391 been
the intention of, the legislature. There is yet another compelling reason not
to accept the majority view in Parameshwari Hengus's case (supra). After the
coining into force of the Arbitration Act, 1940, all awards had to be
compulsorily made decrees of the courts if they were to have any force. The Act
came into force in 1949. Many awards coming within the scope of s. 36(6) would
have been made between 1940 and 1949. The legislature would not have denied to
those awards the benefit of s. 36(6). The basis of every award decree is an
award. Evidently the legisla- ture by using the expression "award"
intended to include both awards simpliciter as well as awards which had been
made the decrees of courts. Whether we consider the principle underlying s.
36(6) or the language of s. 36(6), we see no justification to exclude award
decrees from the scope of s. 36(6). In our opinion Parameshwari Hengsu's case
(supra) in so far as it interpreted s, 36(6) has not been correctly decided.
But that conclusion of ours does not help the appellants. One of the conditions
that Ire necessary to be satisfied before a deed can be deemed to be a
partition under s. 36(6) is that it must be shown that all the major members of
the kutumba were parties to it.
Admittedly Brahmiah did not _join the
mutchallika A-1 on the strength of which Ex. A-2, was rendered. In other words
he was not a party to the award. But it was said on behalf of the
appellants-the same view was taken by the learned trial judge-that Brahmiah had
acquiesced in the arrangements made under Ex. A-2. A person by merely
submitting to an arrangement made may be bound by the arrangement but thereby
he does not become a party to the arrangement. Herein we are dealing with a deemed
partition and not an actual partition. Before an arrangement can be deemed to,
be a partition under s. 36(6), all the conditions prescribed under that
provision should be fully satisfied. In such a case, substantial compliance
with the provision is not sufficient.
As we are of the opinion that all the major
members of the kutumba were not parties to Ex. A-2, it is not necessary to
examine whether the remaining conditions prescribed under s.
36(6) were satisfied.
In the result this appeal fails and the same
But in the circumstances of the case, we
direct the parties to bear their own costs in this Court.
V.P.S. Appeal dismissed.