JUDGMENT
1. This is the 15th defendant's appeal against the Judgment and Decree, dated 29th June, 1988 of the learned Civil Judge at Mangalore, Dakshina Kannada District, in [CASE NUMBER] on his file.
2. The facts to this appeal may be stated briefly and they are as follows. The plaintiffs [ENTITY], [ENTITY] and [ENTITY] filed the said [CASE NUMBER] in the Court of the Civil Judge at Mangalore for partition of schedule-B and C properties said to belong to the undivided family of which their deceased grand-mother [ENTITY] was a member. They arrayed as many as 50 defendants of whom [ENTITY], the 15th defendant, appellant herein, [ENTITY] and [ENTITY] are also the grand children of the said [ENTITY] but by the daughter while the plaintiffs are the children of a predeceased son of the said [ENTITY] by name [ENTITY]. It has been stated that the suit schedule-B properties are mulgeni properties which fell to the share of the aforementioned [ENTITY] by virtue of a family karar dated 29-12-1949 under the terms of which her branch of the undivided Aliyasanthana family consisting of said [ENTITY], [ENTITY], [ENTITY] as well as [ENTITY] (since deceased) whose branch of the family was represented by dedefendants 4, 5, 25 to 37, 43 and 44. It has been further alleged by the plaintiffs that the suit schedule-C properties were the self-acquired properties of [ENTITY] and as [ENTITY]'s grand children they are entitled to succeed to half the estate in schedule-C properties as against the half share to which defendants 15, 16 and 17 are entitled to as the children of daughter of [ENTITY]. they claim, that the branch represented by [ENTITY] had 32 members and she had at the time of her death 1/32rd share in the entire B schedlue properties and therefore they were entitled to 1/64th share in the B schedule properties being the half interest to which their father [ENTITY] would have been entitled to had he survived [ENTITY].
3. They have also alleged, certain alienations made by defendants 15, 16 and 17 of some of the properties in t he C schedule to the plaint are not binding on them and that the said defendants 15, 16 and 17 who are enjoying the properties are liable to render accounts for past, current and future mesne profits. Defendants 1 to 3, 5 to 12, 14 to 17, 29 to 37, 39, 41, 42 and 44 entered appearance. Defendant 1 filed her written statement and the same was adopted by defendants 6 to 9 and 11 to 14. Defendants 15 to 17 filed separate written statement but common to them only. The minor defendants 13, 41 and 42 filed their own written statements. Defendants 47 and 50 also filed their own written statements. Generally, the defendants admitted that the plaintiffs and the defendants 1 to 44 constituted a joint Hindu family governed by the Aliyasanthana School of Law which governs their inheritance. They stated that [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were four daughters of [ENTITY] who could be taken as the prepositus of the family asset out in suit sehedule-A, the genealogy. They admitted the family karar of 1949 as well as the death of [ENTITY] on 20-11-1956. However, the defendants also claimed that the plaintiffs had left-out many other members of the undivided Aliyasanthana family and therefore the suit was liable to be dismissed for non-joinder of necessary parties. Generally, there were averments by defendants denying the income claimed by the plaintiffs from the properties in schedules B and C of the suit plaint and gave their own estimate of such income. Defendants 15 to 17 in their separate written statements denied that the plaintiffs were the members of the Aliyasanthana family to which the defendants belonged. They have alleged that their father [ENTITY] having pre-deceased [ENTITY], the question of plaintiffs inheriting from [ENTITY] did not arise in the Aliyasanthana School of Law of inheritance. They have also admitted that B schedule properties were mulgeni properties which had fallen to the share of the branch of the family represented by [ENTITY], their grand-mother. They also, like the other defendants, have denied the income from the schedules B and C properties as estimated by the plaintiffs and gave their own account of the income and pleaded that since the death of [ENTITY] they had spent vast sums of money in improving some of the properties. More important than those averments, they set up a will said to have been executed by the late [ENTITY], the said will, having been executed on 28-5-1956 in which she had bequesthed in favour of defendants 15 to 17 the entire C schedule properties as well as her share in the B schedule properties. Therefore, they have contended that the plaintiffs were not entitled to claim any share in the suit schedule C and B properties and their suit was liable to be dismissed. They have also claimed that the plaintiffs had not properly valued the suit and as such the suit was liable to be dismissed. They have further pleaded that the sales effected by them were sales effected as absolute owners by virtue of the will of [ENTITY], and as such the alienations could not be questioned by the plaintiffs.
4. On such pleadings, the Court framed as many as 26 issues. We do not think there is need to set out all the issues in the light of the arguments advanced before us for and on behalf of the 15th defendant-appellant and having regard to the fact that only 15th defendant has come up in appeal against the Judgment and decree of the learned civil Judge and not the others. For brevity, we have set out the issues with which the plaintiffs and defendants 15 are concerned and not the others.
(4) to (6)
(7) to what share, if any are the plaintiffs entitled to in the suit schedule B properties?
(8) What is the income of the suit schedule C properties?
(9) Whether the plaintiffs prove that defendants Nos. 15 to 17 have committed acts of waste and damage in the suit schedule B and C properties as alleged in Para III(3) of the plaint?
(10) Whether the plaintiffs prove that defendants Nos. 15 to 17 in collusion with defendant No. 45 have sold certain properties out of the stnt schedule C properties under a sale deed dated 18-10-1972 and have received much more consideration than recorded in the said sale deed as alleged in para III (4) of the plaint?
(11) Whether the plaiutiifs further prove that defendant Nos. 15 to 17 have afienated certain properties out of the suit schedule C properties to defendant Nos. 46 to 50 under the sale deeds dated 20-9-1975 and the consideration mentioned in the said sale deeds is low and. in fact, they have received much mure consideration as alleged in para III (4) of the plaint?
(12) Whether the plaintiffs prove that they are entitled to a share in the suit schedule C properties tree of the sale deeds executed by the defendant Nos. 15 to 17 in favour of defendant Nos. 46 to 50?
(13) To what share, if any. are the plaintiffs entitled to in the suit schedule C properties?
(14) Whether defendant Nos. 15 to 17 prove that [ENTITY] executed a will dated 28-5-1956 bequething her interest in the suit schedule B properties and all the suit schedule C properties in their favour as alleged in para 8 of their written statement?
(15) Whether defendants Nos. 15 to 17 prove that they have effected improvements in the properties in their possession as alleged in para Nos. 6 and 10 of their written statement? If so. to what equities, they are entitled?
(16) Whether defendants Nos. 15 to 17 prove that [ENTITY] at the time of her death had left debts as alleged in para 12 of their written statement? If so. to what reliefs they are entitled?
(17) Whet her defendants Nos. 15 to 17 prove that they had been in possession of the suit schedule B properties allotted to [ENTITY] and the suit schedule C properties openly, adversely and in their own right as alleged in para 9 of their written statement?
(18) Whether they further prove that the right and interest, if any, ol the plaintiffs is lost by adverse possession and prescription?
(19) Whether the claim of defendants Nos-. 15 to 17 of execution of will by [ENTITY] on 28-5-1956 is barred by the principles ol res judieata in view of the judgment and decree passed by this Court on 1-4-1976 in [CASE NUMBER]?
(21) Whether the plaintiffs are entitled to seek the reliefs of partition and possession without seeking the relief of declaration that the sale deeds executed by defendants Nos. 15 to 17 in favour of defendants Nos. 45 to 50 are not binding on them and without getting the sale deeds set aside?
(22) to (24)
(25) Are the plaintiffs entitled to accounts?
If so, from what period and from which of the defendants and at what rate?
5. We may state the plaintiffs have been granted the reliefs prayed for by them by the trial Court after appreciating the evidence adduced by the parties before it. On the issues framed, the plaintiffs examined their mother and plaintiff No. 2 as P.Ws. 1 and 2. Exhibits P1 to P22 were marked for the plaintiffs. Defendant 9 and defendant 15 and one [ENTITY] one of the attesting witnesses to the will set up by defendant 15 were examined as D. Ws. 1, 2 and 3. Defendants together produced 82 documents marked as Exhibits D1 to D82.
6. We may also state that before us, Shri [ENTITY], learned Counsel for the appellant-defendant 15. did not submit any arguments in regard to the findings recorded by the trial Court on other issues than issue No. 14 concerning the will of 28-5-1956 said to have been executed by [ENTITY]. He however argued one other point founded on [SECTION] of the [ACT]. which for reasons, which we will give later in the course of this judgment, was neither urged by the defendants in the written statements parti-cularh the written statement filed by defendants 15, 16 and 17 nor raised as an issue by the Court below.
7. In that circumstance in this appeal what falls for our determination are only two questions. They are :
(1) Whether the trial Court below erred in recording a finding that defendants 15, 16 and 17 had failed to clear the suspicious circumstances surrounding the execution of the Will of [ENTITY] dated 28-5-1956 and as such the Will could not be acted upon and the defendams 15, 16 and 17 given the benefit of the bequests made therein?
(2) Whether [SECTION] of the [ACT] acts as a bar for Schedules B and C properties particularly the agricultural lands in Schedule B properties from being divided in accordance with the law applicable to Hindu families governed by Alisasanthana School of Law?
8. On 22-2-1989 when this appeal was heard at length by us. Shri [ENTITY], as we have noticed earlier, confined his submissions for success or failure of the appeal before us solely to the ground related to issue No. 14, namely, the validity of the said Will propounded by defendants 15, 16 and 17. A number of decisions of the Supreme Court of India on the subject were brought to our notice on that day and when we expressed doubts whether defendant 15 eould derive any benefit from those rulings to dislodge the conclusions reached by the trial Court that defendants 15, 16 and 17 had failed to dispel the clouds of suspicion surrounding the execution of the Will, he brought to our notice that Schedule B properties in so far as they consisted of mulgeni lands had been registered in favour of the plaintiffs as well as defendants 15, 16 and 17 in equal proportion and that would not be correct having regard to [SECTION] of the [ACT], as the plaintiffs were the children of [ENTITY] who predeceased his mother [ENTITY], and as such, the plaintiffs belonged to nissanthathi kavaru not entitled to inherit the tenancy rights as the customary Hindu Law is not applicable in terms of [SECTION] of the [ACT] and this had been sought lo be raised as an issue by amending the pleadings in the trial Court but due to lapse, negligence or oversight of the Counsel in the Court below, was not pressed at the appropriate time and as such he sought permission to move by application to produce certain copies of the order of the Land Tribunal in respect of the occupancy rights granted to both sides, namely, the plaintiffs and the defendants 15 to 17. It was, in that circumstance, after recording our detailed impressions and the arguments of Shri [ENTITY] by a separate order, we adjourned the case to another date to enable the Counsel to make applications [CASE NUMBER] for additional evidence which on the subsequent date were heard along with the main appeal and they also stand disposed of by our conclusions reached in this judgment.
9. It is on this account, there has been some delay in disposing of this appeal by us. Even otherwise when we were about to pronounce orders on 9-3-1989 the learned Counsel on both sides, (the plaintiffs having entered caveat) requested us to defer passing orders to find out whether the parties could reach a settlement out of Court. In that event, they would inform us and therefore, we deferred passing the judgment and reserved the same for pronouncement later. This is yet another reason why there has been some delay.
10. We do not think it is necessary for us to set out in detail the evidence on record having regard to the arguments submitted on the limited compass of the two questions formulated by us.
11. Exhibit D-3 is the Will propounded by defendants 15 to 17 and it is dated 28-5-1956. [ENTITY] died on 20-11-1956 is also not in dispute. The learned trial Judge while discussing issue No. 14 relied upon two major factors to hold that the Will was not a valid will executed by [ENTITY] on account of the unnatural disposition of her entire properties in favour of daughter's children as against the exclusion of plaintiffs, the children of her son who had predeceased, as well as the active participation of the 15th defendant in the execution of the Will and his subsequent conduct of not referring to the Will any time after the death of [ENTITY] till the filing of the suit i.e., tor nearly 20 years. We will make reference to the evidence in this behalf. But before doing so, we must point out the thrust of the argument of Shri [ENTITY], learned Counsel for the 15th defendant-appellant.
12. Mr. [ENTITY] contended that it was in evidence which could not be disputed that 15th defendant and his brothers and their mother spent most of the time with [ENTITY] and assisted her in the management of the properties during her lifetime while the children of [ENTITY] lived far away and they were only occasional visitors so far as [ENTITY] was concerned at her family residence which led to [ENTITY] showering greater affection on them than children of her predeceased son. Thus, he claims, the exclusion of the male line would not in all circumstances he an unnatural disposition. He therefore placed reliance upon a decision of the Supreme Court in the case of [PRECEDENT], wherein in similar circumstance the Supreme Court ruled that such disposition was not an unnatural disposition in all circumstances.
13. We see from the judgment of the trial Court that he has discussed all the leading cases on the subject. It is now well settled since the decision of the Supreme Court in the case of [PRECEDENT], , that burden is heavy on the propounder of the Will to dispel the shrouds of suspicious circumstances surrounding the execution of a Will and the propounder must discharge that burden to the satisfaction of the judicial conscience of the Court before such a Will is accepted. The aforementioned decision also laid down what may constitute generally the circumstances that could be termed suspicious circumstances surrounding the execution of a Will.
14. It has been quoted in [PRECEDENT]'s case (supra) as follows at para 10 of the judgment as reported in A.I.R. "10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in on elaborate judgment of this Court in [PRECEDENT]. . The Court, speaking through [ENTITY] J., laid down in that case the following propositions:
1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainly.
2. Since [SECTION] of the [ACT] requires a Will to be attested, it cannoi be used as evidence until, as required by [SECTION] of the [ACT], one allesting witness at least has been called for the purpose of proving its execution, if there be an attesling witness alive, and subject to the process of the Court and capable of giving evidence.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeable mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can he accepted as the lust Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has heen evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to he satisfied fully that the Will has been validly executed by the testator.
6. If a caveat or alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the exe-cution of the Will may raise a doubt as to whether the testor was acting of his own free Will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the mutter."
15. We have been taken through the oral and documentary evidence adduced hy the parties to the suit in the trial Court with reference to issue No. 14. The learned Civil Judge has discussed the evidence as well as his reasoning to reach the conclusion which he did in paragraphs 25 to 32 of the judgment and decree under appeal. From the evidence in regard to the said issue the following emerge as undisputed facts.
(1) In the replv notice got issued by defendants 15 to 17 as at Exhibit P-9 there was no mention of Exhibit D-3, the Will.
(2) Written statement of defendants 15 to 17 specifically averred that both suit schedules B and C properties were bequeathed to him and his brothers while Exhibit D-3 the Will had made bequest of C schedule properties only in favour of defendants 15, 16 and 17. There was no bequest of the B schedule properties at all.
(3) Defendant 15 at the relevant time was the Revenue Officer at Surthkal and caused mutation of his own name in place of deceased [ENTITY] on the basis of inheritance and not on the basis of any testamentary disposition or the Will as at Exhibit D-3. Significantly, in mutating his own name, he had even excluded his own brothers, in the revenue records. That was soon after the death of [ENTITY].
(4) The Will was not produced along with the written statement.
(5) In the course of oral evidence for the plaintiff as well as the defendant, it came out that in certain land acquisition proceedings relating to part of the schedule B properties, there were many claimants including the plaintiffs and defendant 15 and his brothers and [ENTITY] defend ant 1. Those claims were referred for adjudication to Civil Court in the said proceedings. In [CASE NUMBER] defendant 15 and his brothers defendants 16 and 17 did not produce the Will as at Exhibit D-3 to claim the entire compensation in their favour as the sole legatees. On the other hand, the adjudication resulted in half of the compensa-tion being awarded to defendant 1 [ENTITY] and the other half to plaintiffs and defendants 15, 16 and 17 in equal proportion.
(6) Defendant 15 who deposed at the trial admitted that he secured the scribe who was none other than the [ENTITY] who worked under him in the revenue department, as well as the attesting witnesses. He also admitted that he produced the paper on which the Will Exhibit D-3 was written. One of the witnesses attesting the Will was not a local resident but a resident of Mangalore which is more than 15 Kms. from the village where [ENTITY] lived.
(7) Both P.W. 1 and D.W. 1 (defendant 15) in their depositions stated that plaintiffs were constantly visiting [ENTITY] and maintained excellent relations with her till her death. This version of P.W. 1 was never seriously challenged in cross-examination. In fact it was stated that the plaintiffs had provided assistance of a lady to slay in the house with [ENTITY] who was ailing, well before her death, and as such there was no reason for [ENTITY] to leave them out of her Will, Exhibit D-3, and viewed in that circumstance the disposition solely in favour of defendants 15, 16 and 17 was unnatural.
(8) For nearly 20 years the Will had not seen the daylight till it was produced as Exhibit D-3 in the course of the trial.
16. The learned Civil Judge having regard to the undisputed facts that emerged in the course of the trial as stated above, rejected the explanations offered in the course of arguments by the Counsel for defendants 15, 16 and 17 in the trial Court. The Counsel for defendant 15 contended that in land acquisition proceedings there was no need to produce the Will because the acquisition related to part of schedule B properties which was not the subject-matter of bequest in Exhibit D-3. That ran contrary to the assertions in the written statement, and therefore the learned Judge rejected that explanation and having regard to the cumulative effect of the totality of circumstances came to the conclusion that the Will set up was an after thought and could have been got up even after the filing of the written statement in the partition suit resulting in the judgment and decree under appeal. He, however, concluded, having regard to other circumstances, undoubtedly there were suspicious circumstances with which the Will at Exhibit D-3 was shrouded which were not dispelled by the propounder, defendant 15.
17. We have, while reappreciating the evidence on record, found that D.W. 15 himself pin pointed his date of marriage which was two days before Exhibit D-3, the Will, is claimed to have been executed. We consider that itself to be a suspicious circumstance in that an ailing woman in the atmosphere prevailing after a wedding in the family would venture to make a bequest in favour of the bride-groom who was but only one of her grand children and his brothers to the exclusion of other grandchildren for whom at no time she bore any ill-will.
18. Even otherwise the claim of defendant 15 that he was assist ing in the management of properties of [ENTITY] appear to be a doubtful claim. He was employed as a Revenue Inspector and admilledly working at Surathkal some distance away from the village where [ENTITY] resided. It is highly improbable that he could find time to commute between the village and Surathkal, perform his official duties which would involve considerable travelling in and around the revenue area over which he had jurisdiction as well as assist [ENTITY] in the management of her properties. In fact, that is the basis on which defendants 15, 16 and 17 sought to make out that they were favoured by [ENTITY], We do not find any substance in that claim.
19. However. Mr, [ENTITY], learned Counsel appearing for the appellant-defendant 15, placed reliance on the decision of the Supreme Court in the case of [PRECEDENT], . That was a case which arose out of the judgment and decree of this Court. It also related to a Will made by a person governed by Aliyasanthana School of Law. The plaintiffs therein had specifically alleged that the signature of the testator was a forged signature. They also questioned the testator's disposing state of mind and also contended that the disposal made in the Will was unnatural and unfair which went to show the unsound diposing state of mind of the testator. It was urged therein, on the facts of that case, the Will had not come from proper custody of a public authority or a family solicitor and dispositions made in the Will were unnatural, improbable or unfair and therefore the pro-pounder from whose custody the Will had come forward, the Will should be rejected. Affirming the view of this Court, the Supreme Court found, on the facts of that case, that the plaintiffs who urged that the Will was a forged one would not nave succeeded to the estate of the testator under the personal law viz., the Aliyasanthana School ol Hindu Law and further that it had come out in evidence that the defendants at one time or other lived with the testator and as such were near and dear to him which made the disposition under the contested will neither unnatural nor unjust.
20. The facts here are not similar except that in this as well as in [PRECEDENT]'s case (supra), parties were governed by Aliyasanthana Law. We must notice the distinction which we think to he an important distinction. It is that there the plaintiffs were held to be not capable of inheriting under the personal law while here despite the contentions by the defendants 15 to 17 that the plaintiffs belonged to nissan-thalhi kavaru and as such not capable of inheritance, it was found that such contention was without foundation in view of [SECTION] of the [ACT] which specifically provided that grandchildren of the intestate by a deceased child shall be entitled in equal shares to what the deceased child would have taken, had he or she survived the intestate. Therefore, one of the reasons for upholding the Will therein does not appear here on the facts of this case.
21. We also must notice, as has been noticed by the trial Court that there is not an iota of evidence to believe the version of the defendants that they alone lived with [ENTITY]. On the other hand, we find that defendant 15 in his deposition has admitted that the plaintiffs were also constant visitors and stayed with [ENTITY]. They had even provided appropriate help to their ailing grandmother in the form of a lady from outside the family to assist her. No other witness has spoken to any ill-will between the grand children through the deceased son and [ENTITY]. Therefore, the decision of the Supreme Court in [PRECEDENT]'s case (supra) is of no assistance to the defendant 15 appellant.
22. We have already noticed what may constitute generally suspicious circumstances as summarised in [PRECEDENT]'s case (supra). In almost identical circumstances on hand in the case of [PRECEDENT] decided on 28-3-1985)* following some of the Supreme Court decisions and adverting to the suspicious circumstances a Division Bench of this Court to which one of us was a party laid down as follows :
"11. We must first have in mind the principles which govern the proving of a Will. They are well settled by a string of decisions of the Supreme Court. See : (i) [PRECEDENT]; (ii) [PRECEDENT], ; (iii)Shashi [PRECEDENT], ; and (iv) [PRECEDENT], .
It has been stated and reiterated in all thesedecisions that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by [SECTION] of the [ACT]. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the Will, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the context. In all such cases, the Court would naturally expect the propounder to remove completely such suspicious circumstances before the document is accepted as the last Will of the testator. There is one other aspect which needs to be emphasised. If the propounder himself takes part in the execution of a Will which confers on him substantial properties, it will be a greater suspicious circumstance which must be properly explained by the propounder by clear and satisfactory evidence."
Therefore, we must take the cumulative effect of the suspicious circumstances surrounding the execution of the Will such as the active participation, unnatural disposition, suppression of the Will for 20 years, the conduct of the propounder of the Will and then apply the test whether in the circumstances of the case the judicial conscience of the Court is satisfied that the propounder has dispelled all clouds of suspicion with which the execution of the Will is shrouded with. In the light of the facts we have pointed out which are undisputed and based on the evidence on record, we must concur with the findings of the trial Court that the Will was not proved by the propounders and therefore the judgment and decree under appeal does not call for interference.
23. This takes us to the next question formulated for our consideration. The interlocutory applications which were filed seeking permission to adduce additional evidence and present additional documents when this appeal had been heard in part on an earlier date of hearing may be deemed to have been allowed and as such we deal with the contention of Shri [ENTITY], learned Counsel for the defend ant 15 appellant, founded on [SECTION] of the [ACT]. [SECTION] of the [ACT], reads as follows :
"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 contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural hold ings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."
24. It is on [SECTION] of the [ACT] that Shri [ENTITY] has laid emphasis and addressed arguments. He contended that B schedule properties being mulgeni properties, which, by family arrangement fell to the share of the branch of [ENTITY] as the tenant and therefore having regard to the provision made in [SECTION] of the [ACT], the tenancy was not heritable and as such the award of the Land Tribunal gunning occupancy rights both in favour of the plaintiffs and defendants in equal proportions in respect of B schedule properties was without the authority ol law and to that extent the judgment and decree under appeal should be set aside. We do not think there is any force in the contention. Sub-see. (2) of [SECTION] of the [ACT] provides that the [ACT] shall not affect the laws providing for the prevention of fragmentation and for devolution of tenancy rights, it such laws were in force for the time being. Therefore, it cannot be said that there was no law providing on the date of the death oi Pa:[ENTITY], for tenancy being heritable. In iact, tenancy was protected and made heritable by suitable legislation in the erstwhile Madras State even before October, 1956 when the [ACT] came into force. Therefore, we are of the view that the judgment and decree under appeal has committed no error of law in holding that B schedule properties are also liable for partition between defen-dants 15, 16 and 17 and the plaintiffs. In fact, that partition has become a superfluity as occupancy rights have been granted by the concerned Land Tribunal having jurisdiction on both the branches of the family of [ENTITY] in equal proportion in accordance with the provisions of the [ACT]. If any one is aggrieved by the order of the 1 and Tribunal, the proper forum to set right such gnevance or eliminate that grievance is provided in the [ACT] itself and in these proceedings arising out oi a partition suit, this Court has no jurisdiction to go into that aspect of the matter and that is vet another reason why this Court should not countenance the argument which has been raised for the lirst time in this Court [SECTION] and [SECTION] of the [ACT] totally bars the iurisdiction of the civil Courts. That must have been the reason why defendant 15 did not pursue his applications for amendment of written statement and additional evidence.
25. For the. above reasons, we think it proper to dismiss the appeal and direct that final decree proceedings must be expediti-ously concluded. But in the circumstances of the case, there will be no order as to costs in this appeal.
26. In terms of the short order we dictated on 5-1-1990. we have today pronounced the judgment in the appeal. As observed by us on the earlier date, this judgment though pronounced will be subject to the result of the compromise petition which is now filed in the trial Court and our judgment and decree of this Court which has done no more than confirming the decree of the trial Court will stand modified by the terms and conditions to which the parties have agreed to in the compromise petition.
27. We add this a! the request of the Counsel for appellant and respondents after the pronouncement of our judgment and this will be part of our judgment delivered today.
28. Order accordingly.