IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 AS.No. 699 of 1995() -------------------- OS.30/1980 of SUB COURT, KASARAGOD .................... APPELLANT(S)/PLAINTIFF: ------------------------------------- SHANKARA RAI, (DIED) S/O. DEYYAKKU, KALVANJE, BELLOOR VILLAGE, KASARAGOD TALUK, P.O. BELLOOR, (VIA) MULLERIA. APPELLANTS 2 TO 7 IMPLEADED. 2. WIDOW, CHENNAMMA, RESIDING AT KALVAJE, BELLOOR VILLAGE, P.O. KINNINGAR, KASARAGOD DISTRICT. CHILDREN: 3. PARAMESHWARI OF DO. DO. 4. JAYALAKSHMI OF DO. DO. 5. CHANDRASEKHARA RAI, (DIED) OF DO. DO. 6. KRISAHNAKANTHA RAI, OF DO. DO. 7. BALAKRISHNA RAI, OF DO. DO. ADDL.APPELLANTS 8 TO 10 IMPLEADED. 8. YASHODA C. RAI, 206, DWARAKA APARTMENT, JAVGHAR ROAD, OPP: HOTEL GOPIMAHAL, BHAYENDER (E), MUMBAI. 9. DEEPTHI C. RAI, OF -DO- -DO- 10. DIVYA C. RAI, OF -DO- -DO- APPELLANTS 2 TO 7 ARE IMPLEADED BEING THE LEGAL REPRSENTATIVES OF THE DECEASED APPELLANT AS PER ORDER DT.24.10.1996 ON C.M.P.4334/1996. 2ND APPELLANT IS RECORDED BEING THE LEAL REPRESENTATIVE OF THE DECEASED 5TH APPELLANT AS PER ORDER DTD. 6.12.2010 IN I.A.4300/2010. ADDL.APPELLANTS 8 TO 10 ARE IMPLEADED BEING LEGAL REPRESENTATIVES OF DECEASED 5TH APELLANT AS PER ORDER DTD.6.12.2010 IN I.A.4300/2010. BY ADV. SRI.T.P.KELU NAMBIAR(SR), P.G.RAJAGOPALAN, M.GOPIKRISHNAN NAMBIAR RESPONDENT(S)/DEFENDANTS 1, 2, 4 TO 18 AND 20 TO 38: --------------------------------------------------------------------------------- 1. THIMMANNA RAI (DIED) S/O. DEYYAKKU, KALLADKU, DELAMPADY VILLAGE, KASARAGOD TALUM, P.O. DELAMPADY, (VIA) MULLERIA. (RESPONDENTS 40 TO 43 IMPLEADED) 2. BIRAMANNA RAI, S/O. DEYYAKKU, KAMMANTHILA, ANGADIMOGRU VILLAGE, KASARAGOD TALUK, P.O. ANGADIMOGRU, (VIA) KUMBLA. 3. RAMMANNA RAI, S/O. DEYYAKKU, OF DO. DO. 4. NARAYANA RAI, D/O. DEYYAKU, OF DO. DO. 5. DAMODARA BHANDARY, D/O. DEYYAKKU, READER AND HEAD OF THE DEPARTMENT OF MATHEMATICS, K.G.F. FIRST GRADE COLLEGE, OORGAM P.O., KOLAR GOLD FIELD - 2. 6. KARIYAPPA RAI, S/O. CHOMU ALIAS AKKU, KAMMANTHILA, ANGADIMOGRU VILLAGE, KASARAGOD TALUK, P.O. ANGADIMOGRU, (VIA) KUMBLA. 7. BALAKRISHNA RAI, S/O. CHOMU ALIAS AKKU, KALVAJE, BELLOOR VILLAGE, KASARAGOD TALUK, P.O. BELLOOR , (VIA) MULLERIA. 8. BHAGIRATHI, D/O. CHOMU ALIAS AKKU, MAILENKI, KATUKUKKE VILLAGE, KASARAGOD TALUK, P.O. KATUKUKKE (VIA) PERLA. 9. SRIDHARA SHETTY (MINOR) REPRSENTED BY GUARDIAN AND FATHER, VITTALA SHETTY, PERVATHODY HOUSE, BELLOOR VILLAGE, KASARAGOD TALUK, P.O. BELLOOR, (VIA) MULLERIA. 10. PADMANABHA SHETTY (MINOR) REPRESENTED BY GUARDIAN AND FATHER, VITTALA SHETTY, OF -DO- -DO- 11. MADHAVA SHETTY (MINOR) REPRESENTED BY GUARDIAN AND FATHER, VITTALA SHETTY, OF -DO- -DO- 12. DAMODARA SHETTY (MINOR) REPRESENTED BY GUARDIAN AND FATHER, VITTALA SHETTY, OF -DO- -DO- 13. VIJAYAKUMARI (MINOR) REPRESENTED BY GUARDIAN AND MOTHER, BHAGIRATHI, MAILENKI, KATUKUKKE VILLAGE, KASARAGOD TALUK, P.O. KATUKUKKE, (VIA) PERLA. 14. VEENAKUMAR (MINOR) REPRESENTED BY GUARDIAN AND MOTHER, BHAGIRATHI, OF -DO- -DO- 15. VIDYAKUMARI, (MINOR) REPRESENTED BY GUARDIAN AND MOTHER, BHAGIRATHI, OF -DO- -DO- 16. LEXMI HENGSU, D/O. DOOMANNA RAI, PERVATHODI HOUSE, BELLOOR VILLAGE, KASARAGOD TALUK, P.O. BELLOOR, (VIA) MULLERIA. 17. MEENAKSHI, D/O. DOOMANNA RAI, OF -DO- -DO- 18. UNHAKKE ALIAS SULOCHANA, D/O. DOOMANNA RAI, ALIKE HOUSE, ALIKE VILLAGE, BANTWAL TALUK, P.O. ALIKE, (VIA) S.S. VIHAR. 19. DOOMAKKE HENGSU, (DIED) W/O. THYAMPANNA RAI, PERVATHODI HOUSE, BELLOOR VILLAGE, KASARAGOD TALUK, P.O. VELLOOR, (VIA) MULLERIA. 20. BEERABBA RAI, (DIED) S/O. THYAMPANNA RAI, OF -DO- -DO- 21. AMMANNA RAI, S/O. THYAMPANNA RAI, THURUKARADODI HOUSE, KALIYUR VILLAGE, KASARAGOD TALUK, P.O. VERKADY, (VIA) MANJESHWAR. 22. VISHWANATHA RAI, S/O. THYAMPANNA RAI, ARCHAL, BADOOR VILLAGE, KASARAGOD TALUK, P.O. MAIRE. 23. VEDAVATHI, D/O. THAMPANNA RAI, THURUKARADODI HOUSE, KALIYUR VILLAGE, KASARAGOD TALUK, P.O. VERKADU, (VIA) MANJESWAR. 24. ABBAKKE, D/O. THYAMPANNA RAI, PERVATHODI HOUSE, BELLOOR VILLAGE, KASARAGOD TALUK, P.O. BELLOOR, (VIA) MULLERIA. 25. PADMAVATHI, D/O. THYAMPANNA RAI, KUNDAPU, ARIKADI VILLAGE, KASARAGOD TALUK, P.O. KUMBLA. 26. MUTHAKKE HENGSU, (DIED) W/O. KINHANNA RAI, AREPPADI HOUSE, BADAGANNUR VILLAGE, PUTHUR TALUK, P.O. BADAGANNUR, SOUTH KANARA DISTRICT. 27. BEERANNA RAI, S/O. KINHANNA RAI, OF -DO- -DO- 28. SUBHANNA RAI, S/O. KINHANNA RAI, OF -DO- -DO- 29. NARAYANA RAI, S/O. KINHAN NA RAI, OF -DO- -DO- 30. SANKAPPA RAI, S/O. KINHANNA RAI, OF -DO- -DO- 31. BALAKRISHNA RAI, S/O. KINHANNA RAI, OF -DO- -DO- 32. NIRMALA, S/O. SIVA POONJA, PERVATHODY, BELLOOR VILLAGE, KASAAGOD TALUK, P.O. BELLOOR. 33. JAYALALITHA (MINOR) REPRESENTED BY GUARDIAN MOTHER NIRMALA, OF -DO- -DO- 34. VIJAYALEKSHMI (MINOR) REPRESENTED BY GUARDIAN MOTHER NIRMALA, OF -DO- -DO- 35. KUMAA (MINOR) REPRESENTED BY GUARDIAN MOTHER NIRMALA, OF -DO- -DO- 36. GOPALA (MINOR) REPRESENTED BY GUARDIAN MOTHER NIRMALA, OF -DO- -DO- ADDL. R37 TO 39 IMPLEADED. 37. VARIJA, RESIDING AT PERVATHODI, BELLOOR VILLAGE, P.O. KINNINGAR, PIN : 671 543, KASARAGOD DISTRICT. 38. SADANANDA OF -DO- -DO- 39. RATHNAKARA, OF -DO- -DO- ADDL.R40 TO R43 IMPLEADED 40. WIDOW PARAMESHWARI , KUDREMAJALU, BALNAD VILLAGE, P.O. UJRUPADE, PUTTUR TALUK, DAKSHGINA KANNADA DISTRICT. CHILDREN: 41. BHAGIRATHI, OF -DO- -DO- 42. GULABI, OF -DO- -DO- 43. CHANDRASEKHARA RAI, OF -DO- -DO- ADDL.RESPONDENTS 37 TO 39 ARE IMPLEADED BEING THE LEAL REPRESENTATIVES OF THE DECEASED 20TH RESPONDENT AS PER ORDER DTD.24.10.1996 ON C.M.P.989/1996. ADDL.RESPONDENTS 40 TO 43 ARE IMPLEADED BEING THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 5.10.2010 IN C.M.P.4335 OF 1996. RESPONDENTS 20 TO 25 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 19TH RESPONDENT AS PER MEMO DTD.26.2.1996.(C.F.2466/96) RESPONDENTS 27 TO 31 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECASED R26 BY ORDER DATED 5.10.2010 ON MEMO DATED 15.9.2010. (C.F..5166/10.) ADV. SRI.K.G.GOWRISHANKAR RAI FOR R3 & R4 SRI.M.C.SEN (SENIOR) FOR R6 SMT.P.VANI, P.SHRIHARI FOR R5 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON 17/08/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 699 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011. JUDGMENT The short question that arises for consideration in this appeal is whether Ext.B4 evidences partition or is it merely a maintenance arrangement. The lower court held that it amounts to partition and disruption of the family and dismissed the suit. Aggrieved by the said decree, the plaintiff has come up in appeal. 2. The suit was one for partition. Plaintiff and defendants 1 to 16 belong to an undivided Aliyasanthana family. The plaintiff claimed 1/7 share in plaint B and C schedule properties. Pointing out that he did not wish to continue the joint status the suit was laid. 3. Defendants 4 and 5 resisted the suit. They pointed out that by Ext.B4 document dated 27.2.1940 there had already been a partition in the family and properties A.S.699/1995. 2 were allotted to various sharers. Details of the devolution of the property have been narrated in the written statement, which is not very relevant for the present purpose. Suffice it to say, they prayed for a dismissal of the suit. 4. The other defendants have also filed separate written statements, most of them claiming their separate share and supporting the plaintiff. 5. On the above pleadings issues were raised by the trial court. The evidence consists of the documents marked as Exts.A1 to A4 from the side of the plaintiff. The contesting defendants examined D.W.1 and had Exts.B1 to B4 marked. The trial court applying Section 36(6) of the Madras Aliyasanthanam Act, 1949 came to the conclusion that Ext.B4 evidences partition in the family and therefore the suit is not maintainable. Having so found, it did not go into the other issues that arose in the case and dismissed the suit. A.S.699/1995. 3 6. The only question that arises for consideration, as already mentioned, is whether the finding of the trial court is justified. 7. It may be noticed that the parties are governed by Aliyasanthanam Law. Before going into the merits of the case, it will be useful to understand what are the attributes of Aliyasanthanam Law. 8. Aliyasanthanam Law resembles to a great extent the Marumakkathayam law and the common element in both the systems is that the inheritance under which the property descends is in the line of females. P.R.Sundara Aiyar in his book Malabar and Aliyasanthana Law mentions that Aliyasanthanam Law is the exact Canarese equivalent to the term Marumakkathayam. Aliyasanthana system of law is mostly followed by non-Bhrahmin communities in Tulunada or otherwise known as Canara and mostly speak Tulu. The word corresponding to Marumagan in Tulu is Marumaya. It is believed that the rules of Aliyasanthana Law has its origin in Canarese pamphlet known as Bhutala A.S.699/1995. 4 Pandya's Kattu Kattalai. In fact the Bunts, the Billawas and the non-Priestly class among the Jainas in Kanara are governed by this system. 9. Like in the case of Marumakkathayam Law, Aliyasanthana is a system of inheritance through female line which gives property right to the lady and the rights are centralized around her. So also in Aliyasanthana system more importance is given to the mother's side of the family. It would appear that more respect is given to maternal uncles than to paternal uncles. In this system of law the eldest member is known as Ejaman and the eldest female member is known as Ejamanthi. The senior-most member, whether male or female, is entitled to carry on the family management. No member of the tarwad had a right to claim partition or separate possession of his share without the concurrence of other members. Just as statutory intervention in the Marumakkathayam law brought about some healthy changes in the Marumakkathayam law, the same happened in the case of Aliyasanthanam law also with A.S.699/1995. 5 the coming into force of the Madras Aliyasanthanam Act of 1949. A member was given a right to separate himself or herself from the joint family and claim partition. The ascertainment of share at the time of partition is per capita and not per stirpes. The vital difference between Aliyasanthana system and Marumakkatayam law is that while in Aliyasanthana system the senior most member, whether male or female is entitled to carry on family arrangement, in Marumakkattayam system the senior most male member has the right and power to carry on the family management and in the absence of male adult members, the senior most female member has the power to carry on family management. Moreover, as per the precedents, the self acquired property of a female member in Marumakkattayam system descended to her tavazhi. In the case of male member, if the property has not been disposed during his life time, it lapses to the tarwad. However, in the Aliyasanthana system there is no distinction as to the devolution of property of a male or female member. The self A.S.699/1995. 6 acquired property of a member goes to the nearest branch. 10. The two words by which Marumakkathayam and Aliyasanthanam law are known to literally mean inheritance through the nephews or sister's sons. A kutumbam under the Aliyasanthanam customary law was a family corpus. Any person born into the family had equal rights to the property owned by it. On the death of a member of the kutumba, his rights in the kutumba property devolved on the other members of the kutumba survived by him. The limited estate of Hindu female, which is similar in the Mithakshashara law was unknown to Aliyasanthanam system. In the Aliyasanthanam system every male and female member had an equal right in the kutumba property. In Aliyasanthanam law partition could be effected only at the instance of all the adult members of the family. It may be noticed that since the basis of the system is matriarchal, the children of the female members alone were co-parcenaries in the kutumba and the wife and children of the male members were not co-parcenaries in the Kutumba. A.S.699/1995. 7 11. Aliyasanthana system of practice to a great extent came to be regulated by Madras Aliyasanthana Act, 1949. However in matters not covered by the Act, the prevailing customary law continued to be in force. The Madras Aliyasanthana Act, 1949, hereinafter referred to as Act IX of 1949 provided for marriage, maintenance, guardianship intestate succession, family management of the Kudumba and partition. 12. It will be only appropriate at this stage to refer to certain definitions in Act IX of 1949. The unit in Aliyasanahtana law are Kutumba, Kavaru and Nissanthathi Kavaru and Santhathi Kavaru. These are defined as follows: “3(a). “Aliyasanthana” means the system of inheritance in which descent is traced through the female line but does not include the system of inheritance known as the Marumakkattayam. 3(b) (i). “Kavaru”, used in relation to a female, means the group of persons consisting of that female, her children and all her descendants in the female line; A.S.699/1995. 8 3(b) (ii). “Kavaru” used in relation to a male, means the Kavaru of the mother of that male; 3(c). “Kutumba” means the group of persons forming a joint family with community of property governed by the Aliyasantana Law of inheritance. 3(f). “nissanthathi kavaru” means a kavaru which is not a santhathi kavaru. 3(h).”santhathi kavaru” means a kavaru of which at least one member is a female who has not completed the age of fifty years.” On going through the definitions, it is clear that the presence of one female in the kavaru will have the effect of a continuing kavaru and the absence of a female would amount to absence of progeny. Nissanthathi kavaru is liable to the extinction of the branch. It appears that since partition was not easy before the commencement of Act IX of 1949, the members of the family used to enter into family arrangement or maintenance arrangement. As a result of the large number of members in the kutumba, it became difficult to manage the same and that led to execution of certain type of documents whereby separate properties A.S.699/1995. 9 were given to persons and those persons were empowered to be in possession thereof and enjoy the same. Those arrangements were either family arrangement or maintenance arrangement. Those arrangements would be temporary or permanent. The arrangement may or may not amount to the disruption of the kutumba or tarwad. This is how the family functioned before the commencement of the Act. 13. In the case on hand, we get a genealogy scheduled to the plaint . Ext.B4 is the relevant document. If as a matter of fact as found by the trial court Ext.B4 is to be construed as an out and out partition bringing about disruption of the family, then the appeal has necessarily to fail. If on the other hand it is found that it is only a maintenance arrangement, then necessarily the appeal will have to be allowed and the matter will have to be remanded to the consideration of other issues that have been raised in the suit. A.S.699/1995. 10 14. Section 35 of the Act provides for partition. It provided that any kavaru represented by the majority of its members may claim to take its share of all properties of the Kutumba. What is relevant in the present context is Section 36(6). Before going into that provision, it may be noticed that the other provisions in Section 36 deal with the allocation of shares when a partition is sought to be effected under section 35 of the Act. A reading of the other provisions would indicate that the claim is to be made on per capatia basis and not per stirpes. We are not much concerned with the shares that may be available to each of the parties. But we are more concerned with the nature of the document namely, Ext.B4 as already stated. In order to resolve the controversy involved in this appeal it is necessary to look into Section 36(6), which, the lower court, found was applicable in the facts of the case. The said provision reads as follows: “36(6). A registered family settlement (by whatever name called) or an award to which all A.S.699/1995. 11 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, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award.” 15. The decision reported in Kaveri v. Ganga Ratna (1956 (1) M.L.J. 98) is considered to be an authority for the proposition as to the necessary requirements that have to be established in order to attract Section 36(6) of the Madras Aliyasanthana Act. They are as follows: “1. There must be a registered family settlement or award. 2. All the major members of the kutumba must be parties to that. 3. The whole of the kutumba properties must have been or were intended or or purported to have been distributed, and A.S.699/1995. 12 4. The distribution must be among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. If these conditions are satisfied, notwithstanding any other terms to the contrary in such a settlement or award the same should be deemed to have effected partition on the date of its execution. Where a family settlement thus statutorily amounts to an instrument of partition, a suit for general partition of the family properties cannot be maintained.” 16. One may now have a look at Ext.B4, which is the document in dispute. Admittedly all the major members are parties to the document. A reading of the document shows that executants 2, 5 and 7 among the parties to Ext.B4 had filed a suit for recovery of maintenance against executants 1, 3, 4 and 6 as O.S.41 of 1937. That suit was decreed in favour of the plaintiffs. Defendants had filed A.S. 553 of 1939 before the District Judge, Mangalore. The parties thought it fit that during the pendency of the appeal A.S.699/1995. 13 in order to avoid further disputes, it is better to enter into a compromise. It is stated as follows: “... whereas the disputes between us are compromised in the presence of mediators and for the purposes of maintenance we have divided the joint family properties for the purpose of enjoyment into 2 schedules as schedule A and B described below and the properties described in Schedule A is put in the possession of the plaintiffs in the suit, i.e. executant Nos. 2, 5 and 7 among us and the properties described in schedule B is put in the possession of No.1, 3 4 and 6 among us.” 17. It is provided that that basic tax and cess in respect of the said properties shall be paid by the respective parties to the Government and the income of the respective properties shall be utilised by the respective parties for their maintenance. Certain provisions have been made for family viniyogas, the details of which are not very relevant in the present context. The next important provision is as follows: A.S.699/1995. 14 “The parties shall have no right to mortgage, alienate, gift, lease the properties and shall have no right to encumber and indemnify the property. If any one among us borrow amount, they alone shall be personally liable for the same and the family property or the income thereof shall not be charge for the same. The properties put in the possession of male members among us shall be enjoyed by them during their life time and after their death the properties shall vest with No.2 among us and her daughter Akku and to the children to be born to her. If no children are born to Akku the properties shall vest with the remaining members in the family. As the properties are put in possession of the respective parties for the purpose of past maintenance and towards the court costs also awarded in the suit, the plaintiffs shall have no right to seek recovery of the amount decreed in the suit. We have no right of entry over the property put in the possession of others. Apart from the right to reside in the house situated in the A schedule and which are permitted to be occupied by B sharers, they shall have no other right over the A schedule properties or the standing trees therein.” A.S.699/1995. 15 It is also provided that “If they fail to pay the assessment and cause loss to the others, such loss shall be recovered from them on the charge of the crops in the properties put in their possession. They shall be liable to pay as such.” 18. Learned counsel appearing for the appellants pointed out that a reading of the document, namely, Ext.B4 leaves one in no doubt that it is at best only a family arrangement for maintenance. The reason for entering into such a transaction is apparent from the document itself and the interest that is created under the document is limited as is clear from a reading of the document. It was nothing but an attempt to settle the disputes between the parties, for maintenance and the parties thought it fit to allot properties to the parties to the deed separately for their maintenance alone. Learned counsel pointed out that one cannot omit to note the restrictions placed regarding the dealing of the properties by the respective groups. Right of alienation, mortgage etc are prohibited and it is significant to notice A.S.699/1995. 16 that there is a recital that the properties allotted to the male members shall be kept by them during their lifetime and after their death the properties shall vest with No.2 among them and her daughter Akku and to the children to be born to her. Learned counsel also pointed out that the two groups consisting of executant Nos. 2, 5 and 7 on the one hand and executant Nos. 3, 4 and 6 on the other do not form natural kavarus. According to learned counsel, there can be no doubt regarding the fact that the document does not evidence disruption of the joint family status. But it is only a maintenance arrangement and cannot come within the ambit of Section 36(6) of the Act. Even assuming that the maintenance arrangement is a permanent one, it could not be said that the respective groups have absolute rights over the property and that there is a total disruption of the jointness of the kutumba. 19. Per contra, learned counsel appearing for the respondents pointed out that it is evident from a reading of Ext.B4 that the arrangement is absolute and permanent and A.S.699/1995. 17 the respective groups have absolute powers over the properties allotted to them. Learned counsel brought to the attention of this court that the fact that the document is of the year 1940 and the suit has been laid only in 1980. For 40 years the arrangement continued and it is unwise now to say that it was only a maintenance arrangement and not partition as provided for under Section 36(6) of the Act. 20. Documents similar to Ext.B4 have come up for consideration in a number of cases. The ingredients necessary to attract Section 36(6) of the Act have already been referred to. We may seek guidance for certain precedents to ascertain whether a particular document is to be construed as a maintenance arrangement or a family partition. 21. In the decision reported in Appa v. Kachai Bayyan Kutti (AIR 1932 Madras 688) it was held that it is not the name given by the parties to the document that is conclusive, but it is real nature and effect though the nomenclature is a circumstance to be taken into A.S.699/1995. 18 consideration along with the contents of the document. In the said decision it was held as follows: “The mere fact that a document is styled a “karar” and there are no provisions expressly conferring right of alienation by sale, etc., on the members of the two sets, between whom a partition was effected by the document, nor any express provision that in future there should be only community of blood relationship but no community of property between the two sets of members will not by itself prevent the document