Appeal No 1258 of 1967
Appeal by Special Leave from the Judgment and Order dated the 10th July 1963 of the Mysore High Court at Bangalore in Second Appeal No 345 of 1961
710 section section Javali B P Singh and B R Agrawala for the appellants
K N Bhatt and Saroja Gopalakrishnan for respondents Nos 1 3
The Judgment of the Court was delivered by JAGANMOHAN REDDY J
The appellants who were the plaintiffs filed a suit against the respondents the defendants for partition separate possession of their 720th share of suit properties and for mesne profits
The Trial Court decreed the suit but the High Court dismissed it
This appeal is by special leave against that judgment
Prior to the Hindu Succession Act XXX of 1956 hereinafter referred to as the Succession Act the parties were governed by the Aliyasantana Law and the question before us is whether their rights are to be determined in accordance with that Law or under the Succession Act
It is not disputed that Chandayya Shetty who died on February 13 1957 after coming into force of the Succession Act and the first respondent are brother and sister respectively
The first appellant is the widow and appellants 2 to 6 are the sons of Chandayya Shetty while respondents 2 to 4 are the sons of the first respondent
In order to appreciate the contentions urged before us it would be necessary to first set out certain underlying concepts of the Aliyasantana customary law the changes made by the Aliyasantana Act Madras Act IX of 1949 hereinafter referred to as the Madras Act and the relevant provisions of the Succession Act
The Aliyasantana Law is a part of the customary law which governed certain communities on the West Coast of South India
The basic principle underlying the joint family composition otherwise known as kutmba or tarwad under the customary law known by two different names namely marumakkattayvam and aliyasantana is the matriarchal system in which the devolution is through females
The meaning of the two words by which the systems are known literally connotes inheritance in the line of nephews  or sisters  sons
Apart from a few differences in these two systems
it may be noticed that while the marumakkattayam system was applicable to all castes the aliyasantana system is  not followed by the Brahmins See P R Sundra Iyer s Malabar and Aliyasantana Law 1922 Edn 247
It is chiefly followed by the Bunts the Bilwa caste and the non priestly class among the Jains See Myne s Hindu Law 1950 11th Edn 971
A kutumba under the Aliyasantana customary law was a family corporation every member born in it has equal rights in the property owned by it
On the death of any member of the kutumba his or her interest in the kutumba property devolved on the other members of the kutumba by survivorship
The limited estate of Hindu female familiar to the Mitakshara Law was unknown to this system for under it every male and female member had equal rights in the kutumba property
Under this law though partition could not be enforced at the instance of on  or more members and the members of the kutumba would be entitled to maintenance
it could be effected at the instance of all the adult members thereof
It may however be noticed that since the basis of the system was matriarchal the children 711 of the female members alone were the coparceners in the kutumba but not the wife and the children of the mate members
This customary law as applicable in certain areas of the Madras Province and in the erstwhile princely State of Travancore and Cochin was modified by the laws enacted by the respective legislatures
In this case we are concerned with the Madras Ast which defined and amended in certain respects the laws relating
to marriage guardianship maintenance intestate succession and partition applicable to persons governed by that customary law
In respect of matters which this Act did not affect the prevailing customary law was saved by section 39 of the Madras Act which provided  Nothing contained in this Act shall be deemed to affect any rule of Aliyasantana Law custom or usage except to the extent expressly laid down in this Act
 The Madras Act conferred a right to partition properties and the mode of ascertainment of shares on partition
These provisions are dealt with in Ch
VI of that Act
Before examining the provisions of the Madras Act and the Succession Act it may be mentioned that Chandayya Shetty had executed a Will on January 15 1958 bequeathing his interest in favour of the appellants ie
his wife and children
A week thereafter on January 22 1957 the first respondent and her children issued a notice to Chandayya Shetty stating that he Chandayya Shetty was the manager of the undivided family that he was a nissanthathi kavaru branch while the respondents were santhathi kavarus as such there were only two kavarus and that they had decided to divide the properties between Chandayya Shetty and themselves
They therefore demanded under the Madras Act a share belonging to their kavaru from out of the entire movable and immovable properties of the family
Chandiyya Shetty replied on January 24 1957 denying that the respondents  family was a santhathi kavaru but was a nissanthethi kavaru as the first respondent was more than 50 years old on the date of the said notice and had no female issue
He however admitted that there are only two kavarus in the family and as both the kavarus were nissanthathi kavarus each kavaru was therefore entitled to an absolute share in the kutumba pro perties
He also stated that he had no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated
After this reply notice Chandayya Shetty died as already stated on February 13 1957
On March 23 1957 the appellants ie Chadayya Shetty s widow and her children gave a notice to the respondents claiming a separate share under the Will of Chandayya Shetty
A reply was given on the same day by the respondents denying that the appellants had any share because according to them Chandayya Shetty was entitled only to a life interest under the Aliyasantana Law
On these facts it may be necessary to ascertain under the provisions of the Madras Act the interest which Chandayya Shetty had in the joint family properties on the date of his death whether a partition had 712 been effected whether his will is effective in respect of his share whether he had a life interest in the properties and whether under the provisions of the Succession Act that interest had been enlarged into an absolute interest which could be bequeathed by a Will
Before examining the provisions of Ch
VI of the Madras Act which deal with partition it will be useful to ascertain what under that Act is a kutumba  and a kavaru  and what is meant by a santliathi kavaru  and a nissanthathi kavaru  A kavaru  has been defined in section 3 b i in relation to a female as meaning the group of persons consisting of that female her children and all her descendants in the female line and under section 3 b ii when used in relation to a male as meaning the kavaru of the mother of that male
Under section 3c kutuniba  means the group of persons forming a joint family with community of property governed by the Aliyasantana Law of inheritance
Under section 3 f nissanthathi kavaru  has been defined as meaning a kavaru which is not a santhathi kavaru and santhathi kavaru  under section 3 h means a kavaru of which at least one member is a female who has not completed the age of fifty years
It is apparent from these definitions that the basic concept of inheritance through a female has been maintained under this Act in that the presence of even one female in the kavaru will have the effect of continuing the kavaru and the absence of a female would amount to the absence of progeny a nissanthathi liable to the extinction of the branch
Keeping in view these definitions section 35 which provides for partition may now be read 35
1 Any kavaru represented by the majority of its major members may claim to take its share of all the properties of the kutumba over which the kutumba has power of disposal and separate from the kutumba Provided that 
i where a kavaru consists of only two persons such a claim may be made by either of them ii no kavaru shall make such a claim during the lifetime of any ancestress common to such kavaru and to any other kavaru or kavarus of the kutumba who has not completed fifty years of age unless a she has signified her consent in writing or b two thirds of the major members of the kavaru join in making the claim for partition iii the common ancestress may on her own volition claim a partition
2 The share obtained by the kavaru shall be taken by it with all the incidents of kutumba property
Explanation
For the purposes of this Chapter a a male member of a kutumba or a female member thereof who has no living descendant in the female line shall be deemed to be a kavaru if he or she has no living female ascendant who is a member of the kutumba 713 b such male member or such female member if she has completed the age of fifty Years shall be deemed to be a nissanthathi kavaru Under section 361 any kavaru entitled to partition under section 35 shall be allotted a share of the kutumba properties in accordance with the provisions of sub section
2 and the share of a kavaru at a partition under sub section
2 h shall be ascertained as on the date on which it make a claim for partition
Explanation to that sub section provides that  For the purposes of this sub section the date on which a partition is claimed shall be a where the claim is made by a suit for partition the date of the institution of the suit whether the suit is prosecuted or not and b where the claim is made otherwise than by a suit the date on which such claim is made
 The following sub sections 3 to 5 on which reliance has been placed are also given below  3 If at the time of the partition any kavaru taking a share is a nissanthathi kavaru it shall have only a life interest in the properties allotted to it if the kutumba from which it separates has at least one female member who has not completed the age of fifty years or where the kutumba breaks up into a number of kavarus at the partition if at least one of such kavarus is a santhathi kavaru and if there is no such female member or santhathi kavaru the kavaru shall have an absolute interest in the properties allotted to it
4 In the case referred to in sub section 3 the life interest of the nissanthathi kavaru in the properties allotted to it at the partition shall become absolute if the kutumba concerned ceases to have among its members a female who has not completed the age of fifty years or if all the kavarus into which the kutumba broke up whether at the same or at a subsequent partition become nissanthathi kavarus
5 The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members shall devolve upon the kutumba or where the kutumba has broken up at the same or at a subsequent partition into a number of kavarus upon the nearest santhathi kavaru or kavarus
 The position that emerges on a consideration of these provisions is that any kavaru represented by the majority of its major members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal
It may thereafter take its share and separate from the kutumba provided that where a kavaru consists of only two persons such a claim can be
made by either of them 714 but no kavaru can make such a claim during the life time of any common ancestress who is common to such kavaru and to any other kavaru or kavarus of the kutumba who has not completed fifty years unless she has signified her consent in writing or two thirds of the major members of the kavaru have joined in making the claim for partition
The common ancestress can however on her own volition claim a partition
The share obtained by the kavaru on partition is taken with all the incidents of a kutumba property
Under section 36 of that Act the property of a kutumba is on partition divisible in a certain proportion for a period of fifteen years from the commencement of that Act and thereafter all the property is to be divided per stripes and each kavaru gets a share on that basis
The provision is also applicable to every kavaru possessing separate property as if it were a kutumba
However under sub section
3 of section 36 of that Act if at the time of the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life interest in the property allotted to it if the kutumba from which it separated has at least one female member who has not completed the age of fifty years or where the kutumba broke up into a number of kavarus at partition if at least one such kavaru is a santhathi kavaru
But if there is no such female member or santhathi kavaru the nissanthathi kavaru would have an absolute interest in the properties allotted to it
Sub section 4 of that section provides for circumstances under which the life estate in a divided share above referred to becomes absolute property  and sub section 5 of that section provides that the properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members devolves upon the kutumba or where the kutumba is broken up at the same or at a subsequent partition into a number of kavarus upon the nearest santhathi kavaru or kavarus
See Gupte s Hindu Law of Succession 2nd Edn p 484
It is apparent from a reading of these provisions that in this case there were only two kavarus and that one of them was santliathi kavaru and the other a nissanthathi kavaru
The kavaru of Chandayya Shetty was a branch which was liable to extinction as he had no female progeny
The appellants however sought to characterise the kavaru of the respondents as a nissanthathi kavaru because though there was a female namely the first respondent she was said to be not under fifty years for if this was so then since both the kavarus would be nissanthathi kavarus at a partition each of the two kavarus would take an absolute interest
But when there are two kavarus if one is sintbathi kavaru and the other a nissanthathi kavaru at a partition the nissantbathi kavaru would take only a life interest
The attempt to establish that the respondents  kavaru was a nissanthathi kavaru having failed as both the Courts held that the first respondent was below 50 years
the learned Advocate for the appellants made strenuous attempts to persuade us that in fact the giving of a notice by the first respondent does not effect a partition of the kutumba or between the two kavarug and that even if this be not established section 72 of the Succession Act read with its Explanation has the effect of enlarging a 715 life interest into an absolute interest
If so the learned Advocate submits that Chandayya Shetty had an interest in the properties which he could bequeath by Will
It appears to us that the provisions of the Madras Act particularly section 362h with its Explanation without doubt indicates the time when a share of kavaru is ascertained or a partition in the family and whether propertyis divided by metes and bounds or not the share in property has to be determined as on the date when the claim is made
In this case the claim was made on January 22 1957 and therefore the share of the parties has to be determined as on that date even though the physical partition of the properties by metes and bounds may take place some time later
The argument that though a claim may be made no partition may
ever take place and consequently there is no partition of the kavarus is a speculation which cannot affect the principle applicable for determining whether or not a partition takes place and if so when
it may be that even though a notice bad been given for partition of the properties the parties may later choose to live together and the notice withdrawn
But that is neither her nor there
What we have to ascertain is whether there has been a partition in the family or whether the family is still undivided for the purposes of section 72 of the Succession Act
The learned Advocate for the appellants has made a great play on the words undivided interest in the property in section 72 of the Succession Act as in his submission when Chandayya Shetty died he had undivided interest in the kutumba properties and hence the provisions of the Succession Act applied and the appellants were entitled to their shares
This contention of the appellants no doubt finds support from the District Judge who observed that section 7 2 does not speak about a division in status but only speaks about a division in property and that it would be wrong to import the provisions of the Aliyasantana Act in interpreting the Hindu Succession Act which prevails in spite of any provisions under the Aliyasantana Law
There was according to the District Judge nothing in section 72 of the Act which states that the person who dies after the commencement of the Act should not only have an undivided interest but he should also have been an undivided member of the kutumba and it would be wrong to introduce words which are not in the Act
According to him under section 72 of the Act if the kutumba properties had not been divided and the deceased had not been allotted any portion of the kutumba properties then he continued to have an undivided interest in the properties at the time of his death_ and on his death his share is inherited by his legal heirs under the Act
The learned Advocate again drew support from the observations made by the District Judge that even if the provisions of the Madras Act could be taken into consideration in interpreting the provisions of the Succession Act then sub section
3 of section 36 could not be invoked to say that even where an allotment could have been made but was not made there would have been an allottee who was only entitled to life estate
According to the District Judge section 363 of the Madras Act comes into operation only when there has been a partition and allotment of a definite share the share to be ascertained 716 as at the time the partition was claimed
But when there has been no partition and no allotment of a share then section 363 has no operation and the person who formed a nissanthathi kavaru if he dies without getting allotted his share in the kutumba properties dies with an undivided interest in the kutumba properties and therefore section 72 of the Succession Act comes into play
This view of the District Judge has been held to be erroneous by the High Court
To ascertain which view is correct we will have to examine the relevant provisions of the Succession Act and ascertain whether on Chandayya Shetty s death he had an undivided interest which he could dispose of by will and if he had a life interest whether
it had been enlarged into an absolute interest
The Succession Act defines aliyansantana law by section 3 a as meaning the system of law applicable to persons who if this Act had not been passed would have been governed by the Madras Aliyasantana Act 1949 or by the customary aliyasantana law with respect to the matters for which provision is made in this Act
 Section 41 on which reliance has been placed for contending that the Aliyasantana Law as in force prior to the Succession Act has no application provides thus  4
1 Save as otherwise expressly provided in this Act a any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act b any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions of this Act
 Sections 8and 10 of the Succession Act make provisions for the devolution and succession of the property of a male  Hindu dying intestateS 15 deals with the general rules of succession in the case of female Hindus dying intestate and section 23 makes special provision in respect of dwelling houses where a Hindu dies intestate leaving him or her both male and female heirs specified in class I of the Schedule
Sections 7 17 and 30 of the Act on which reliance has been placed will now be read insofar as they are relevant 7
2 When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed dies after the commencement of this Act having at the time of his or her death an undivided interest in the property of a kutumba or kavaru as the case may be his or her interest in the property shall devolve by testamentary or intestate succession as the case may be under this Act and not according to the aliyasantana law
Explanation
For the purposes of this sub section the interest of a Hindu in the property of a kutumba or 717 kavaru shall be deemed to be the share in the property of the kutumba or kavaru as the case may be that would have fallen to him or her in a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru as the case may be then living whether he or she was entitled to claim such partition or not under the aliyasantana law and such share shall be deemed to have been allotted to him or her absolutely  17
The provisions of sections 8 10 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if  i for sub cluses c and d of section 8 the following had been substituted namely   c x x x ii for clauses a to e of sub section 1 of section 15 the following had been substituted namely a x x x x b x x x x c x x x x d x x x x e x x x x iii clause a to subsection 2 of section 15 had been omitted iv section 23 had been omitted 30
Any Hindu may dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the  or any other law for the time being in force and applicable to Hindus
Explanation
The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a forward tavazhi illom kutumba or kavaru in the property of the tarwad tavazhifi illom kutumba or  kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force be deemed to be pro perty capable of being disposed of by him or by her within the meaning of this sub section
 The first thing to be noticed is that on the demand for partition there is a division in status and though partition by metes and bounds may not have taken place that family can thereafter never be considered as an undivided family nor can the interest of a copareener be considered to be an undivided interest
It is a well established principle in the Hindu Law that a member of a joint Hindu family has a right to intimate his definite and unambiguous intention to the other members of the joint family that he will separate himself from 718 family and enjoy his share in severalty
Such an unequivocal intention communicated to the others will amount to a division in status and on such division he will have a right to get a de facto division of his specific share of the joint family property in which till then all of them had an undivided coparcenary interest and in which none of them could claim that he had any right to any specific part thereof
Once the decision to divide has been unequivocally expressed and clearly intimated to his co sharers whether or not the other co sharers agree an immediate severance of the joint status is effected arid his right to obtain and possess the share to which be is admittedly entitled be Comes specified Girja Bai vs Sadayhiv Dhundiraj  Others1 Lord Westbury in Appovier vs Ramasubbier2 had earlier observed If there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family the undivided family becomes a divided family with reference to the property that is the subject of that agreement and that is a separation in interest and in right although not immediately followed by a de facto actual division of the subject matter
This may at any time be claimed by virtue of the separate right
 This principle has been incorporated in section 362 h of the Madras Act which as already stated specifies the point of time for ascertaining the share when a division in status is effected
The term partition  in sub section
3 of section 36 therefore must be given the same meaning as in section 36 2 h of the Madras Act
In Mahalinga Shetty vs Jalaia Shedthi and others3 Govinda Menon J as he then was speaking for the Bench of the Madras High Court came to a similar conclusion on a consideration of sections 362 h and 363 of the Madras Act
It was held in that case hat the phrase at the time of partition should be understood as at the time when the parties effect a severance in status  the partition being only a disruption of status
It does not mean the point of time when the actual division by metes and bounds takes place which might take a long time after the division in status takes place either by the institution of a suit or by a notice of aim for partition 
It was pointed out in that case that clause h in sub section
2 of section 36 was obviously inserted as a result of the decision in Karthiyayini Kunchi vs Minakshi Ammal4 in which a Bench of that Court held that the theory of division in status by a unilateral declaration of intention is applicable to persons following the Marumakkattayam Law just as it applies to Mitakshara joint family
Burn J who delivered the judgment stated that the principle is not restricted to the case of joint Hindu families following the Mtakshara or any other system of law but is one of universal application
It is to remove any doubts about this that clause h has been inserted in section 362
In our view also the word partition  in sub section
3 of section 36 should be given the same meaning asin section 362 h of the Madras Act if so on a demand for partition 1 L R 43 I A 151
2 1866 It M T A 75
3 4 719 a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained
Even in the case of an aliyasantana kutumba this Court had held per Hegde and Grover JJ
in Padmaraja and others vs Dhanavanthi and others1 that if the jointness of the kutumba had been disrupted there is no question of planning any partition as there is no kutumba in existence as in the instant case before us
Similarly on the same parity of reasoning when there are two kavarus a demand for parti tion would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of section 72 of the Succession Act and if he has no undivided interest in the property his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession
What section 7 is dealing with is a situation similar to that dealt with in section 6 namely that when a member of joint Hindu family dies undivided instead of his undivided interest devolving upon the other members of the family by survivorship it is provided that on the death of an undivided member of the joint Hindu family his share in the joint family properties shall devolve on his heirs as if there had been partition in the family
The Explanation to section 72 makes this position clear
Prior to the Succession Act neither under the customary law nor under the Madras Act nor under the the interest of a coparcener in an aliyasantana kutumba could have been disposed of by testamentary disposition
But section 30 of the Succession Act made a definite change in the law by enabling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will
The learned Advocate for the appellants submits
that merely because a person has asked for a partition and that also not by Chandayya Shetty but by the first respondent it should not deprive him of his right to dispose of that property by a will or deprive his legal heirs of inheriting his property by intestate succession
This argument ignores the basic concepts of the aliyasantano law
As pointed out earlier there is neither a kutumba nor can Chandayya Shetty be a kavaru
The two kavarus after the division in status become only one kavaru namely that of respondent 1
Chandayya Shetty will not be a kavaru within the meaning of section 3b of the Madras Act because under section 3b ii there being no female line it is only the mother of Chandayya Shetty who can be a kavaru but not Chandayya Shetty
In fact a male can never be a kavaru either under the customary law or under the Madras Act
When the Succession Act refers to kavaru in relation to its undivided interest it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition
If Chandayya Shetty is not a kavaru there is no property of a kavaru which can be disposed of under section 30 of the Succession Act
Even under the Explanation to that section the life interest which Chandayya Shetty had no severance of status is not property capable of being disposed of by a will
As we said he is no longer a kavaru and had therefore no interest in the property of the kavaru
1   104
92SupC74 720 A Full Bench of the Mysore High Court in Sundara Adapa and others vs Girija and Others1 has given a similar answer on facts analogous to the one raised before us
In that case the first defendant who was a nissanthathi kavaru had claimed in his written statement a partition of his own share and was granted 751360th share in the preliminary decree
By a will he left to his wife and children all his rights in the properties due to him on account of his share
There was also likewise a santhathi kavaru Under the Aliyasantana Act on the cessation of the first defendant s life interest the property would devolve upon the nearest santhathi kavaru according to sub section
5 of section 36
But it was contended as is contended in this case
that by virtue of Explanation to sub section 1 of section 30 of the Succession Act the rights of the first defendant in his 75360th share of his properties became capable of being disposed of by wi ll and therefore the children of the first defendant could be entitled to the share in accordance with the terms thereof
Hegde J as he then was delivering the judgment of that Court observed at pp
238 239  The object of section 30 is clear
That section neither directly nor by necessary implication deals with the devolution of divided interest
As mentioned earlier its purpose is limited
The language employed is plain and therefore no question of interpretation arises
It is not correct to contend as done by Sri Bhat that if the Explanation to section 301 is understood in the manner the respondents want us to understand a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided
In most cases the share taken by a nissanthathi kavaru though limited to the duration of the life of the kavaru would be larger in extent than one as provided under sec
7 2 of the Act
In the case of a share under the Aliyasanthana Act the kavaru takes his share on the basis of half per capita half per stirpes
Under sec
72 the share is determined on per capita basis
Quite clearly the object of bounty under section 7 2 read with sec
30 is the donee under the will of a deceased coparcener
The fact that divided members also do not get corresponding benefits under the Act is no relevant test
If Parliament wanted to enlarge the interest of divided male members nothing would have been easier than to enact a provision on the lines of sec
141 of the Act provided Parliament had competence to do so
Further the Explanation to section 301 speaks of The interest of a Male Hindu in his kutumba or kavaru propert y The definite article the  evidently refers to the interest specified or quantified in some other provision of the Act it could not refer to the unascertained interest of a coparcener in a kutumba
Obviously the interest referred to is the interest quantified under section 7 of the Act to which reference will be made in greater detail at a later stage
1 T L R 721 Quite clearly on the date of his death the first defendant was not a member of his kutumba or kavaru
As noticed earlier he was already divided from the family
Further his will did not relate to his interest in the kutumba or kavaru property
The will purported to bequeath the property obtained by him as his share as per the preliminary decree
Therefore the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of section 301 of the Act must fail
 The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provision of the Madras Act and the Succession Act
The learned Advocate for the appellants however has tried to distinguish this case on the ground that the effect of section 17 of the Succession Act was not considered in that case
In our view that question was not relevant either in that case or in this case because section 17 of the Succession Act applies the provisions of sections 8 10 15 and 23 which deal with intestacy to Persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein
in this case also as already stated there is no kavaru of Chandayya Shetty and on separation he Succession Act while enlarging the right of an absolute interest did not specifically the right of the former
In the absence had only a life interest which is not a heritable property and cannot be disposed of by a will nor could it devolve as on intestacy
Even the argument that under section 72 Chandayya Shett s life interest has been enlarged into an absolute interest is equally untenable because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law the latter under section 14 into provide for the enlarging of any such specific provision we can only hold that Chandayya Shetty s interest enured till his life time only
In the result the judgment of the High Court is sustained and the appeal dismissed but withoutcosts
3BW Appeal dismissed


Summary:
Prior to the Hindu Seccession Act 1956 the parties were governed by the Aliyasantana law
The customary Aliyasantana law was known by two different names namely marumakattayam and aliyasantana which literally connotes inheritance in the line of nephews  or sisters  sons respectively
The basic principle underlying the joint family composition otherwise known as kutumba or tarwad is the matriarchal system in which devolution is through females
A kutumba under the customary Aliyasantana law was a family corporation every member male or female born in it has equal rights in the property owned by it
On the death of any member of the kutumba his or her interest in the kutumba property devolved on the remaining members by survivorship
Partition could be effected only at the instance of all the adult members
The children of the female members alone were the coparceners in the kutumba but not the wife and children of the male members
The Madras Aliyasantana Act 1949 defined and amended in certain respects the customary Aliyasantana laws relating to inter alia intestate succession and partition and in other respects saved the prevailing laws
Thereafter the Hindu Secession Act 1956 came into operation whereby the antecedent Hindu Law ceased to have effect to the extent that it was either provided for or was inconsistent with the Act
The first appellant and the other appellants are the widow and sons respectively of C while the first respondent and the other respondents are C s sister and her sons respectively
C executed a will on January 15 1957 bequeathing his interest in favour of the appellants
On January 25 1957 the respondents issued a notice to C stating that he was the manager of the undivided family that he was a missanthathi kavaru while the respondents were santhathi kavaurs as such there were only two kavarus and that they had decided to divide the properties between C and themselves
They therefore demanded under the Madras Act a share belonging to their kavaru from out of the entire movable and immovable properties of the family
C replied on January 24 1957 stating that the respondents  family was not a santhathi kavaru but a nissanthathi kavaru as the first respondent was mere than fifty years old on the date of the said notice and had no female issue
He admitted however that there are only two kavarus in the family and as both the kavarus were nissanthathi kavarus each kavaru was entitled to a absolute share in the kutumba properties
He also stated that he bad no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated
C subsequently died on February 13 1957 after the coming into force of the Succession Act
On March 23 1957 the appellants gave a notice to the respondents claiming a separate share under C s will
The respondents replied to the notice on the same day denying that the appellants had any share because according to them C was entitled only to a life interest under the Aliyasantana law
The appellants plaintitfs then filed a suit against the respondents defendants for partition separate possession of their 720th share of the suit Properties and for mesne profits
The trial court decreed the suit but the High Court dismissed
In appeal by special leave to this Court the questions that arose for consideration were  i whether the rights of the parties are to be determined in accordance with the Aliyasantana law or under the Succession Act ii what interest C had 708 under the Madras Act in the joint family properties on the date of his death iii whether a partition had been effected iv whether C s will is effective in respect of his share v whether he had a life interest in the properties and vi whether under the Succession Act
that interest had been enlarged into an absolute interest which could be bequeathed by a will
Dismissing the appeal HELD  i From the definitions of kavaru  section 3 b i  ii  Kutumba  section 3c Nissanthathi kavaru  section 3f and Santhathi Kavaru section 3h under the Madras Act it is apparent that the basic concept of inheritance through a female has been maintained
The presence of even one female in the kavaru will have the effect of continuing the kavaru while the absence of a female would amount to the absence of progeny
712D ii Under the provisions of Sections 35 and 36 of the Madras Act any kavaru represented by the majority of its major members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal
It may thereafter take its share and separate from the kutumba provided that where a kavaru consists of only two persons such a claim can be made by either of them
But no kavaru can make such a claim during the life time of any common ancestress who is common to such kavaru and to any other kavaru or kavarus of the kutumba who has not completed 50 years unless she has signified her consent in writing or 23 of the major members of the kavaru have joined in making the claim for partition
The common ancestress can however on her own volition claim a partition
The share obtained by the kavaru on partition is with all the incidents of a kavaru property which is divisible into certain proportion for a period of 15 years from the commencement of that Act and thereafter is divisible per stirpes and each kavaru gets a share on the basis
The same position applies to every kavaru possessing separate property as if it were a kutumba
However us 363 if at the time of the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life interest in the property allotted to it if the kutumba from which it separated has at least one family member who has not completed the age of 50 years or where the kutumba broke up into a number of kavarus at partition if at least one such kavaru is the santhathi kavaru
But if there is no such female member or santhathi kavaru the nissanthathi kavaru would have an absolute interest in the properties allotted to it
The properties allotted to a nissanthithi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members devolves upon the kutumba or where the kutumba is broken up at the same or at a sub sequent partition into a number of kavarus upon the nearest santhathi kavaru or kavarus
713H Gupte Hindu Law of Succession 2nd edition at page 484 referred to
iii The provisions of the Madras Act particularly section 362h with its explanation without doubt indicates the time when a share of a kavaru is ascertained on a partition in the family and whether the property is divided by metes and bounds or not the share in the property has to be determined as on the date when the claim is made
In the present case the claim was made on January 22 1957 and therefore the share of the parties has to be determined as on that date even though the physical partition of the properties by metes and bounds may take place some time later
715B iv Under the provisions of the Succession Act on the demand for partition there is a division in status and though partition by metes and bounds may not have taken place that family can thereafter never be considered as an undivided family nor can the interest of a coparcener be considered to be an undivided interest
It is a well established principle in the Hindu Law that a member of a joint Hindu family has a right to intimate his definite and unambiguous intention to the other members of the joint family that he will separate himself from the family and enjoy his share in severally
Such an unequivocal intention communicated to the other will amount to a division in status and on such division he will have a right to get the division of his specific share of the joint family property in which till then all of them had an undivided coparcenary interest and in which none of them could claim that he had any right 709 to any specific part thereof
Once the decision to divide has been unequivocally expressed and clearly intimated to his co sharers whether or not the other co sharers agree an immediate severance of the joint status is effected and his right to obtain and possess the share to which he is admittedly entitled becomes specified
This principle enunciated in Girja Bai vs Sadashiv Dhundiraj and others LR 43 IA 151 and Appovier vs Ramasubbier 1866 11 MIA 75 has been enacted in section 362 h of the Madras Act which specifies the point of time for ascertaining the share when a division in status is effected
The term partition in sub section 3 of section 36 therefore must be given the same meaning as in Sec
362h of the Madras Act
If so on a demand for partition a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained
In the case of an Aliyasantana kutumba this Court in Panduraja and others vs Dhanawanti and others held that if the jointness of the kutumba had been disrupted there is no question on claiming any partition as there is no kutumba in existence as in the present case
Similarly on the same parity of reasoning when there are two kavarus demand for partition would disrupt them within the meaning of section 72 of the Succession Act
If he had no undivided interest in the property his interest cannot be enlarged into an absolute estate nor can his interest devolve upon his heirs by intestate succession
Prior to the Succession Act neither under the customary law nor under the Madras Act nor under the Indian Succession Act the interest of a coparcener in an Aliyanasantana kutumba could have been disposed of by testamentary disposition
But section 30 of the Succession Act made a definite change in the law by enabling a member of an undivided Aliyanasanta kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will
717H Karthiyayini Kunehi vs Minakshi Ammal 1935 MLF 114 and Mahalinga Sherty vs Jataja Shedthi and others 1956 2 MLF 446 approved
Padmaraja and others vs Dhanavanthi and Ors
1972 2 SCC 100 104 applied
Girja Bai vs Sadashiv Dhundiraj and others LR 43 IA 151 and Appovier vs Ramasubbier 1866 11 MIA 75 referred to
v In the present case there is neither a kutumba nor can C be a kavaru
The two kavarus after the division in status became only one kavaru viz that of respondent No 1 C s sister
C will not be a kavaru within the meaning of section 3b of the Madras Act because us 3bii there being no female line it is only C s mother who can be a kavaru but not C
In fact a male can never be a kavaru either under the customary law or under the Madras Act
When Sec
72 of the Succession Act refers to kavaru in relation to its undivided interest  it is the kavaru under the customary law or the Madras Act and not a deemed kavaru for the purpose of partition
If C is not a kavaru there is no property of a kavaru which can be disposed of under sec
30 of the Succession Act
Even under the explanation to that section the life interest which C had on severance of status is not property capable of being disposed of by a will nor could it devolve by survivorship
He is no longer a kavaru and had therefore no interest in the property of the kavaru
C s live interest is also not enlarged us 72 of the Succession Act into an absolute interest because a male with a life interest under the Aliyasantana law being in the same position as a female limited owner under the Hindu law the Succession Act while enlarging the right of the latter under sec
14 into an absolute interest did not specifically provide for the enalrging of the right of the former
In the absence of any such specific provisions it must be held that C s interest enured till his life time only
721 Dundara Adapa and others vs Girija  Ors
ILR  applied