Case: Gummanna Shetty &amp; Ors Vs. Nagaveniamma

The object of the deed was to prevent disputes and wastage of properties and to preserve the dignity of the family. In terms, the creed did not declare that there was a complete disruption of the family. In case of a partition, a Kutumba governed by the Alivasanthana law is usually split up according to natural kavarus but under this deed, the Kutumba was split up into two artificial branches. The members of the two branches were restrained from incurring debts binding on the family properties and from alienating the properties or any portion thereof and granting any leases except in the ordinary court of management. These restrictions were obviously placed for the purpose of reserving the family properties intact for the benefit of both branches. The High Court said that as the deed effected an outright partition, the conditions restraining alienations were void under Section 10 of the Transfer of Property Act. But the point in issue is whether the deed effected an Outright partition. The restrictions on alienation rather indicate that the parties did not intend to effect an out-right partition, and they wanted a division for convenience of enjoyment on the footing that neither branch had the right to alienate. If the family arrangement took effect as a division for convenience of enjoyment only, and not as an out-right partition, the restrictions on alienations were not hit by Section 10 of the Transfer of Property Act. Moreover, the deed provided that if any branch would become nissanthathi, its properties would pass to the members of the other branch. This clause indicates that on one branch becoming extinct, the properties allotted to it would pass by survivorship to the other branch. Had there been an out-right partition, the sole surviving kavaru would be entitled to dispose of her separate, property by a will under the provisions of the Malabar Wills Act 1898. The absence of such a right indicates that the creed did not effect a complete disruption of the joint family. On a consideration of the deed as a whole iii all its parts, we are constrained to hold that the deed on fits true construction did not effect an outright partition of the joint family. We may add that in compromise dated August 10, 1909 in O.S. No. 10 of 1909 to which the members of the second branch were parties, Darnamma solemnly admitted and declared that the deed was not a partition deed, but was a family arrangement for the convenient enjoyment of the properties by the members of the family so that the properties may be increased and not wasted.6. Counsel for the respondent contended that the deed should be deemed to have effected a partition of the joint family properties under Section .36 (6) of the Madras Aliyasanthana Act, 1949 This contention was repelled by the trial court and was not pressed in the High Court. Section .36 (6) 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 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." 7. As was pointed out by Ramaswami J. in Kaveri v. Ganga Ratna, 1956-1 Mad LJ 98 (106) the following four conditions are the necessary pre-requisites for the application of Section 36(6):(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. The onus is upon the respondent to prove that the deed dated September 4, 1900, satisfies all these four conditions. The plea that the deed satisfies the conditions of S. 36 (6), was not taken in the written statement, nor was any issue raised on the point. The materials on the record do not show that the creed satisfies all the conditions of S. 36 (6). The trial court found that though Darnamma, a member of the kutumba was a major on September 4, 1900 she did not execute the deed. The deed described her as a minor under the guardianship of Padmaraja. From the materia is on the record it is not possible to say definitely that the whole of the kutumba properties was distributed under the deed. Moreover, S. 36 (6) Can apply only if the distribution was "among all the kavarus of the kutumba. S. 3 (b) defines kavaru Used in relation to a female. it means the group of persons consisting of that female, her children and all her descendants in the female line, and used in relation to a male. it means the kavaru of the mother of that male. Having, regard to the scheme of S. 36, we think that S. 36 (6) applies to a family settlement under which the kutumba is split up according to kavaru as defined in S. 3 (b) and the kutumba properties are distributed among such kavarus. Section, 36 (6) cannot apply to the creed dated September 4, l900, under which the kutumba was split up into two artificial groups, one consisting of the descendants of Sarasamma and Brahmi and some descendants of Nemakka the other consisting of Namakka, the rest of her descendants, and Sivadevi, and the properties were divided between these two artificial groups. 8. It follows that the deed dated September 4, 1900, on its true construction, did not effect an out-right partition nor can it be deemed to be a deed of partition under S. 36 (6) of the Madras Aliyasanthana Act, 1949.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]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 a 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.1n such families, an arrangement for separate possession and enjoyment without actual disruption of the family was common. An arrangement for separate enjoyment did not effect a disruption of the family, unless it completely extinguished the community of interest in the family properties. The character of the deed dated September 4, 1900, must be judged in this backgroundThe restrictions on alienation rather indicate that the parties did not intend to effect an out-right partition, and they wanted a division for convenience of enjoyment on the footing that neither branch had the right to alienate. If the family arrangement took effect as a division for convenience of enjoyment only, and not as an out-right partition, the restrictions on alienations were not hit by Section 10 of the Transfer of Property Act. Moreover, the deed provided that if any branch would become nissanthathi, its properties would pass to the members of the other branch. This clause indicates that on one branch becoming extinct, the properties allotted to it would pass by survivorship to the other branch. Had there been an out-right partition, the sole surviving kavaru would be entitled to dispose of her separate, property by a will under the provisions of the Malabar Wills Act 1898. The absence of such a right indicates that the creed did not effect a complete disruption of the joint family. On a consideration of the deed as a whole iii all its parts, we are constrained to hold that the deed on fits true construction did not effect an outright partition of the joint family. We may add that in compromise dated August 10, 1909 in O.S. No. 10 of 1909 to which the members of the second branch were parties, Darnamma solemnly admitted and declared that the deed was not a partition deed, but was a family arrangement for the convenient enjoyment of the properties by the members of the family so that the properties may be increased and not wasted.The onus is upon the respondent to prove that the deed dated September 4, 1900, satisfies all these four conditions. The plea that the deed satisfies the conditions of S. 36 (6), was not taken in the written statement, nor was any issue raised on the point. The materials on the record do not show that the creed satisfies all the conditions of S. 36 (6). The trial court found that though Darnamma, a member of the kutumba was a major on September 4, 1900 she did not execute the deed. The deed described her as a minor under the guardianship of Padmaraja. From the materia is on the record it is not possible to say definitely that the whole of the kutumba properties was distributed under the deed. Moreover, S. 36 (6) Can apply only if the distribution was "among all the kavarus of the kutumba. S. 3 (b) defines kavaru Used in relation to a female. it means the group of persons consisting of that female, her children and all her descendants in the female line, and used in relation to a male. it means the kavaru of the mother of that male. Having, regard to the scheme of S. 36, we think that S. 36 (6) applies to a family settlement under which the kutumba is split up according to kavaru as defined in S. 3 (b) and the kutumba properties are distributed among such kavarus. Section, 36 (6) cannot apply to the creed dated September 4, l900, under which the kutumba was split up into two artificial groups, one consisting of the descendants of Sarasamma and Brahmi and some descendants of Nemakka the other consisting of Namakka, the rest of her descendants, and Sivadevi, and the properties were divided between these two artificial groups8. It follows that the deed dated September 4, 1900, on its true construction, did not effect an out-right partition nor can it be deemed to be a deed of partition under S. 36 (6) of the Madras Aliyasanthana Act, 1949.