Case: Jalaja Shedthi &amp; Ors Vs. Lakshmi Shedthi &amp; Ors

Succession Act refers to kavaru in relation to its undivided interest. it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition. If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under Section 30 of the Succession Act. Even under the Explanation to that section, the life interest which Chandayya Shetty had on severance of status is not property capable of being disposed of by a will. As we said, he is no longer a kavaru and had, therefore, no interest in the property of the kavaru.13. A Full Bench of the Mysore High Court in Sundara Adapa v. Girija, ILR (1962) Mys 225 = (AIR 1962 Mys 225 FB) has given a similar answer on facts analogous to the one raised before us. In that case the first defendant who was a nissanthathi kavaru had claimed in his written statement a partition of his own share and was granted 75/360th share in the preliminary decree. By a will he left to his wife and children all his rights in the properties due to him on account of his share. There was also likewise a santhathi kavaru. Under the Aliyasantana Act on the cessation of the first defendants life interest the property would devolve upon the nearest santhathi kavaru according to sub-s (5) of Section 36. But it was contended as is contended in this case that by virtue of Explanation to sub-s. (1) of Section 30 of the Succession Act, the rights of the first defendant in his 75/360th share of his properties became capable of being disposed of by will and, therefore, the children of the first defendant could be entitled to the share in accordance with the terms thereof Hegde, J. as he then was, delivering the judgment of that Court observed at op. 238-239 :"The object of Section 30 is clear. That section neither directly nor by necessary implication deals with the devolution of divided interest. As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, as done by Sri Bhat, that if the Explanation to Section 3a (l) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of the kavaru would be larger in extent than one as provided under S. 7 (2) of the "Act". In the case of a share under the Aliyasanthana Act the kavaru takes his share on the basis of half-per capita, half-per-stirpes. Under Section 7 (2) the share is determined on per capita basis. Quite clearly the object of bounty under Section 7 (2) read with Sec. 30 is the donee under the will of a deceased coparcener. The fact that divided members also do not get corresponding benefits under the "Act" is no relevant test. If Parliament wanted to enlarge the interest of divided male members nothing would have been easier than to enact a provision on the lines of S. 14 (1) of the "Act", provided Parliament had competence to do so. Further, the Explanation to Section 30 (1) speaks of The interest of a Male Hindu" in his "kutumba" or "kavaru" property. The definite article the evidently refers to the interest specified or quantified in some other provision of the "Act"; it could not refer to the unascertained interest of a coparcener in a kutumba Obviously "the interest" referred to is the interest quantified under Section 7 of the "Act" to which reference will be made in greater detail at a later stage.Quite clearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30 (1) of the "Act" must fail."The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act. The learned Advocate for the appellants, however, has tried to distinguish this case on the ground that the effect of S. 17 of the Succession Act was not considered in that case. In our view, that question was not relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein. In this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. Even the argument that under S. 7 (2) Chandayya Shettys life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under S. 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shettys interest enured till his lifetime only.

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

Explanation:
0[ds]6. It is apparent from a reading of these provisions that in this case there were only two kavarus and that one of them was santhathi kavaru and the other a nissanthathi kavaru.The kavaru of Chandayya Shetty was a branch which was liable to extinction as he had no femalewhen there are two kavarus, if one is santhathi kavaru and the other a nissanthathi kavaru, at a partition the nissanthathi kavaru would take only aattempt to establish that the respondents kavaru was a nissanthathi kavaru having failed, as both the Courts held that the first respondent was below 50 years, the learned Advocate for the appellants made strenuous attempts to persuade us, that in fact the giving of a notice by the first respondent does not effect a partition of the kutumba or between the two kavarus, and that even if this be not established, S. 7 (2) of the Succession Act read with its Explanation has the effect of enlarging a lifeinterest into an absoluteargument that though a claim may be made, no partition may ever take place, and consequently there is no partition of the Kavarus, is a speculation which cannot affect the principle applicable for determining whether or not a partition takes place, and if so when. It may be thateven though a notice had been given for partition of the properties, the parties may later choose to live together and the notice withdrawn. But that is neither here nor there. What we have to ascertain is whether there has been a partition in the family or whether the family is still undivided for the purposes of Section 7 (2) of the Successioncontention of the appellants no doubt finds support from the District Judge who observed that Section 7 (2) does not speak about a division in status, but only speaks about a division in property and that it would be wrong to import the Provisions of the Aliyasantana Act in interpreting the Hindu Succession Act which prevails in spite of any provisions under the Aliyasantana Law. There was, according to the District Judge, nothing in Section 7 (2) of the Act which states that the person who dies after the commencement of the Act should not only have an undivided interest but he should also have been an undivided member of the kutumba, and it would be wrong to introduce words which are not in the Act. According to him under Section 7 (2) of the Act if the kutumba properties had not been divided and the deceased had not been allotted any portion of the kutumba properties, then he continued to have an undivided interest in the properties at the time of his death, and on his death his share is inherited by his legal heirs under theto the District Judge, S. 36 (3) of the Madras Act comes into operation only when there has been a partition and allotment of a definite share, the share to be ascertained as at the time the partition was claimed. But, when there has been no partition and no allotment of a share, then S. 36 (3) has no operation and the person who formed a nissanthathi kavaru, if he dies without getting allotted his share in the kutumba properties, dies with an undivided interest in the kutumba properties, and, therefore, S. 7 (2) of the Succession Act comes into play. This view of the District Judge has been held to be erroneous by the High Court. To ascertain which view is correct, we will have to examine the relevant provisions of the Succession Act and ascertain whether on Chandayya Shettys death, he had an undivided interest which he could dispose of by will and if he had a life interest whether it had been enlarged into an absolute interest. The Succession Act defines "aliyasantana law" by S. 3 (a) as meaning "the system of law applicable to persons who, if this Act had not been passed, would have been governed bythe Madras Aliyasantana Act, 1949, or by the customary aliyasantana law with respect to the matters for which provision is made in thisour view also, the word partition in(3) of Section 36 should be given the same meaning as in S. 36 (2) (h) of the Madras Act, if so on a demand for partition a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained.11. Even in the case of an aliyasantana kutumba this Court had held per Hegde and Grover, JJ., in Padmaraja v. Dhanavanthi, (1972) 2 SCC 100 (104) = (AIR 1972 SC 2219  ) that if the jointness of the kutumba had been disrupted there is no question of claiming any partition as there is no kutumba in existence as in the instant case before us.Similarly, on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of Section 7 (2) of the Succession Act, and if he ha, no undivided interest in the property, his interest cannot be enlarged into an absolute estate, nor can his interest in the property devolve upon his heirs by intestate succession. What S. 7 is dealing with is a situation similar to that dealt with in S. 6, namely, that when a member of joint Hindu family dies undivided, instead of his undivided interest devolving upon the other members of the family by survivorship, it is provided that on the death of an undivided member of the joint Hindu family his share in the joint family properties shall devolve on his heirs as if there had been partition in the family. The Explanation to S. 7 (2) makes this position clear. Prior to the Succession Act neither under the customary law. nor under the Madras Act, nor under the Indian Succession Act the interest of a coparcener in an aliyasantana kutumba could have been disposed of by testamentary disposition. But Section 30 of the Succession Act made a definite change in the law by enrolling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by aargument ignores the basic concepts of the aliyasantana law. As pointed out earlier there is neither a kutumba, nor can Chandayya Shetty be a kavaru. The two kavarus after the division in status, become only one kavaru, namely that of respondent 1. Chandayya Shetty will not be a kavaru within the meaning of S. 3 (b) of the Madras Act, because under S. 3 (b) (ii) there being no female line, it is only the mother of Chandayya Shetty who can be a kavaru but not Chandayya Shetty. In fact a male can never be a kavaru either under the customary law or under the Madras Act. When the Succession Act refers to kavaru in relation to its undivided interest. it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition. If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under Section 30 of the Succession Act. Even under the Explanation to that section, the life interest which Chandayya Shetty had on severance of status is not property capable of being disposed of by a will. As we said, he is no longer a kavaru and had, therefore, no interest in the property of theclearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30 (1) of the "Act" mustour view, that question was not relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein. In this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. Even the argument that under S. 7 (2) Chandayya Shettys life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under S. 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shettys interest enured till his lifetime only.