Case: Sundari and Others Vs. Laxmi and Others

a notice to Chandayya Shetty stating that they had decided to divide the properties between Chandayya Shetty and themselves and demanded a share belonging to their kavaru. Chandayya Shetty subsequently died on 13th February, 1957. On 23rd March, 1957 Chandayya Shettys wife and her children gave notice claiming a separate share under the will of Chandayya Shetty. It was found that on a demand for partition there was a division of status though partition by metes and bounds had not taken place. There was only two kavarus and in the circumstances it could not be pleaded that joint status between other kavarus continued. There was therefore no undivided interest of a coparcener, within the meaning of section 7 (2) of the Hindu Succession Act. If there was no undivided interest it is clear that provisions of section 7(2) of the Hindu Succession Act cannot apply. In considering the effect of the will the Court agreed with the view of a full Bench of the High Court of Mysore in Sundara Adappa and Ors. v. Girija &Ors. 16. It was contended before the full Bench that by virtue of sec. 30(1) of the Hindu Succession Act the right of the first defendant who had obtain ed a preliminary decree for his 75/360th share of his properties became capable of being disposed of by will and therefore the children of the first defendant would be entitled to the share in accordance with the terms thereof. The Mysore High Court held that the benefit referred to in the Explanation to sec. 30(1) is confined to the interest of a male Hindu in his kutumba and would not apply to the property obtained by him as his share in the preliminary decree. This Court in approving the a bove observations observed."The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act". 17. This Court rejected the pleas t hat the effect of section 17 of the Succession Act was not considered in the Mysore case, holding that the question was not relevant in the case before them or in the Mysore case because sec. 17 of the Succession Act applies to provisions of sect ions 8, 10, 15 and 23 which dealt with intestacy. As we are concerned in the present case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this case.The plea of the learn ed counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasanthana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to a n Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provision s of sec. 36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its members shall devolve upon the kutumba. This devolution of the life-interest is acc ording to sec. 36(5). When a Hindu governed by the Aliyasanthana law dies possessed of a life interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert ba ck to the kutumba. This Court in Jalaja Shedthi &Ors. v. Lakshmi Shedthi &Ors. (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719:"Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of sec. 7(2) 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." 18. The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed:"In this case also as already stated, there is no kavaru of Chandayya Shetty, and on separation he 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." 19. The reference to devolution on intestacy is again in the nature of obiter dicta.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The result o f the Explanation is that the undivided interest in the property of the Hindu in the Aliyasanthana kutumba or kavaru shall devolve as provided for under the Hindu Succession Act and that the share of the Hindu shall be deemed to have been allotted to him absolutely. The Explanation to sec. 30 of the Hindu Succession Act provides that a member of an Aliyasanthana kutumba or kavaru can dispose of his interest in the kutumba properties by a will. Under the Aliyasanthana law the individual cannot dispose of his interest in the kutumba by a will. Explanation to sec. 30(1) enables the male Hindu in a kutumba or kavaru to dispose of his interest in a kutumba or kavaru which is deemed to be property capable of being dispos ed of by him. Thus while sec. 7(2) provides that when a Hindu to whom the Aliyasanthana 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 kutumba or kavaru as the case may be, under the Hindu Succession Act, sec. 30 enables the male Hindu to dispose of his undivided interest in a kutumba or kavaru by a will. While these two sections relate to undivided interest in the property of the kutumba or kavaru sec. 17 deals with the succession to the separate property of a Hindu male under the Aliyasanthana law. It provides that sections 8, 10, 15 and 23 shall have effect with certain modifications in relation to persons who would have been governed by the Aliyasanthana lawIt may be noted that regarding the separate property of a Hindu the Madras Aliyasanthana Act provides that the provisions of sections 19, 20, 21, 22, 23 and 24 of the Act would be applicable. The separate property does not revert back to the kutumba or kavaru of the Aliyasanthana family. At the time of the partition if any kavaru taking a share is a nissanthathi kavaru, it shall have only a life-interest in the properties allotted to it under certain circumstances and the property would revert back to a santhathi kavaru if it is in existence. Section 36(3) of the Madras Aliyasanthana Act 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 member, shall d evolve 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 devolution of the property allotted to a nissathati kavaru which has only a life-interest devolves upon a kutumba or the nearest santhathi kavaru. This mode of devolution prescribed by section 36(5) of the Aliyasanthana Act has to give way to the provisions of section 8 of the Hindu Succession Act which pr escribed a different mode of succession.The effect of the provisions of the Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under sec. 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act. Even though a nissanthathi kavaru might have a limited interest as the devolution prescribed for in the Madras Aliyasanthana Act is no more applicable the devolution will be under the Hindu Succession ActIn this case the property has been found to be undivided as between defendants 22, 23 and 24 and therefore the position is that on the death of each one of the defendants his undivided interest would devolve on his heirsIn this case it is found there is no material to hold that there was division of status as between defendants 22, 23 and 24. In this view the contentions of the learned counsel for the appellants that the re was division in status on the filing of the suit for partition or that as the mother was dead there were separate kavarus will have to be negativedAs we are concerned in the present case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this case.The plea of the learn ed counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasanthana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to a n Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provision s of sec. 36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its members shall devolve upon the kutumba. This devolution of the life-interest is acc ording to sec. 36(5). When a Hindu governed by the Aliyasanthana law dies possessed of a life interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert ba ck to the kutumba. This Court in Jalaja Shedthi &Ors. v. Lakshmi Shedthi &Ors. (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719:"Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of sec. 7(2) 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."The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed:"In this case also as already stated, there is no kavaru of Chandayya Shetty, and on separation he 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."The reference to devolution on intestacy is again in the nature of obiter dicta.