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PETITIONER: GUMMANNA SHETTY & ORS.

       Vs.

RESPONDENT: NAGAVENIAMMA

DATE OF JUDGMENT: 04/05/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR 1595            1967 SCR  (3) 932  CITATOR INFO :  R          1972 SC2219  (4,12)

ACT: Madras Aliyasanthana Act (9 of 1949), s. 3(6)-Scope of.

HEADNOTE: By a registered deed dated September 4, 1900, a group of  19 persons  forming a joint family with community  of  property governed  by  the Aliyasanthana law of  inheritance,  formed themselves  into  two  branches  not  according  to  natural Kavaruts but into artificial branches and divided the family properties.   In  1953,  the members of  one  of  these  two artificial  branches  instituted  a suit  against  the  sole surviving member of the other branch who was a nissan thathi kavaru for partition of all the properties comprised in  the deed  of  1900,  allegation that the deed  only  effected  a division  for convenience of enjoyment and not  an  outright partition. On  the  question  whether  under s.  36(6)  of  the  Madras Aliyasanthana  Act, 1949, the deed of 1900 should be  deemed to have effected a partition of the properties, HELD : The deed on its true construction, did not effect  an out-right  partition nor could it be deemed to be a deed  of partition  under s. 36(6) ,of the Act, because, the  kutumba was  split into two artificial groups and not  according  to the kavarus. [937C-D] One of the four conditions necessary as a pre-requisite  for the  application of the section is that the distribution  of properties is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity.  That is, the sub-section  applies to a family settlement under which  the kutumba  is split up according to kavarus as defined  in  s. 3(b)  of  the Act, and the  kutumba  properties  distributed among such kavarus. [936F-G; 937B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 910 of 1964. Appeal  from the judgment and order dated February 28,  1961

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,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

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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.

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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

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             notwithstanding  any terms to the contrary  in               such settlement or award." As  was  pointed  out by Ramaswami J.  in  Kaveri  v.  Ganga Ratna(1),  the following four conditions are  the  necessary prerequisites for the application of Sec. 36(6) :               (1)   there is a registered family  settlement               or               award;               (2)   all the major members of the kutumba are               par-               ties to it;               (3)   the whole of the kutumba properties have               been or were intended or purport to have  been               distributed under it; and               (4)   the   distribution  is  among  all   the               kavarus of the kutumba for their separate  and               absolute enjoyment in perpetuity. The  onus  is  upon the respondent to prove  that  the  deed dated,   September  4,  1900,  satisfies  all   these   four conditions.  The plea that the deed satisfies the conditions of S. 36(6), was not taken in the written statement, nor was any issue raised on the point.  The materials on the  record do  not show that the. deed satisfies all the conditions  of S.  36(6).   The trial court found that  though  Damamma,  a member of the kutumba, was a major on September 4, 1900, she did not execute the deed.  The deed described her as a minor under the guardianship of Padmaraja.  From the (1)  [1956] I.M.L.J. 98, IC6. 93 7 materials on the record it is not possible to say definitely that  the  whole of the kutumba properties  was  distributed under  the deed.  Moreover, S. 36(6) can apply only  if  the distribution was "among all the kavarus of the kutumba".  S. 3(b) defines kavaru.  Used in relation to a female, it means the group of persons consisting of that female, her children and  all  her descendants in the female line,  and  used  in relation  to  a male, it means the kavaru of the  mother  of that  male.  Having regard to the scheme of S. 36, we  think that S. 36(6) applies to a family settlement under which the kutumba is split up according to kavarus as defined in S.  3 (b)  and the kutumba properties are distributed  among  such kavarus.   Section  36(6)  cannot apply to  the  deed  dated September 4, 1900, under which the kutumba was split up into two artificial groups, one consisting of the descendants  of Sarasamma  and Brahmi and some descendants of  Nemakka,  and the other consisting of Nemakka, the rest of her descendants and Sivadevi, and the properties were divided between  these two artificial groups. It  follows  that the deed dated September 4, 1900,  on  its true construction, did not effect an out-right partition nor can it be deemed to be a deed of partition under S. 36(6) of the Madras Aliyasantana Act, 1949. In  -the  result, the appeal is allowed without  costs,  the judgment and decree passed by the High Court is sell  aside, and the decree of the trial court is restored. V.T.S.                                      Appeal allowed. 938