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 1958
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 section 366 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 Manjappa Hegde
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 section 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 exhibit 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 section 366 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 exhibit A 2 is covered by section 366
In appeal a Division Bench of the High Court of Mysore reversed the judgment and decree of the trial court
It held that exhibit A 2 does not evidence a partition
It further came to the conclusion that the same is not covered by section 166 as exhibit 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 exhibit 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 section 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 section 366 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
vs Nagaveniamma1 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  387 not effect a disruption of the family unless it completely extinguished the community of interest in the family properties
 Analysing the scope of section 366 this Court approving the decision of the Madras High Court in Kaveri vs Ganga Ratna1 held that the following conditions should be satisfied before a document can be considered as coming within the scope of section 366 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 section 366 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 vs 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 2 AIR 31 388 Bearing in mind the principles enunciated by a long chain of decisions we shall first examine whether exhibit A 2 can be considered as a document affecting partition
In considering that question we have to primarily see whether in exhibit A 2 there are clauses which are entirely inconsistent with an out and out partition
exhibit 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 fit
Aliyasantana kattu  ie 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
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 exhibit 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 exhibit A 2 does not evidence a partition
The terms of exhibit A 2 are not similar to those that came up for consideration before the Madras High Court in Appa and ors 
vs Kachai Bay van Kuti and ors1 or those that came up for decision by that High Court in Mudara and ors
vs Muthu Hengsu2
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 exhibit A 2 is covered by section 366
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 section 366 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 theconten tion of the plaintiffs that the deed exhibit A 2 comes within the scope of section 366
It came to the conclusion that an award decree is not an award within the meaning of section 366
In arriving at that conclusion it relied on the decision of that Court in Parameshwari 3 
Hangsu and ors
vs 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 section 366 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 AIR 1932 Mad 689
2 AIR 1935 Mad 33
3 390 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 section 366 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 section 366
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 section 366
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 section 366 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 section
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 section 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 aliyasantana kutumbas
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 section 366 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 section 366 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 section 366 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  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 section 366 would have been made between 1940 and 1949
The legislature would not have denied to those awards the benefit of section 366
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 section 366 or the language of section 366 we see no justification to exclude award decrees from the scope of section 366
In our opinion Parameshwari Hengsu s case supra in so far as it interpreted s 366 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 section 366 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 exhibit 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 exhibit 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 section 366 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 exhibit A 2 it is not necessary to examine whether the remaining conditions prescribed under section 366 were satisfied
In the result this appeal fails and the same is dismissed
But in the circumstances of the case we direct the parties to bear their own costs in this Court
VPS Appeal dismissed


Summary:
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 section 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 section 366 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 section 366 as it was an award decree and not a mere award
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 section 366 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 section 366 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 vs Nagaveniamma   followed
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 vs Vasu Menon AIR 1944 Mad
108 approved
4 6 Award decrees have to be considered as awards for purposes of section 366
391B C a The principle underlying section 366 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  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 section 366 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 vs Venkappa Shetty and ors 1961 Mys
LJ 686 on the interpretation if section 366 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 section 366 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 partition
392E F