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

2. Prior to the Hindu Succession Act, XXX of 1956 (hereinafter referred to as the Succession Act) the parties were governed by the Aliyasantana Law and the question before us is whether their rights are to be determined in accordance with that Law or under the Succession Act. It is not disputed that Chandayya Shetty, who died on February 13, 1957 after coming into force of the Succession Act, and the first respondent are brother and sister respectively. The first appellant is the widow and appellants 2 to 6 are the sons of Chandayya Shetty, while respondents 2 to 4 are the sons of the first respondent.In order to appreciate the contentions urged before us, it would be necessary to first set out certain underlying concepts of the Aliyasantana customary law, the changes made by the Aliyasanthana Act (Madras Act IX of 1949) hereinafter referred to as the Madras Act" and the relevant provisions of the Succession Act. The Aliyasantana Law is a part of the customary law that governed certain communities on the West Coast of South India. The basic principle underlying the joint family composition, otherwise known as kutumba or tarwad, under the customary law known by two different names, namely, marumakkattayam and aliyasantana is the matriarchal system, in which the devolution is through females. The meaning of the two words by which the systems are known literally connotes inheritance in the line of nephews or sisters sons.Apart from a few differences in these two systems, it may be noticed that while the marumakkattayam system was applicable to all castes, the aliyasantana system is not followed by the Brahmins (See P. R. Sundra Iyers Malabar and Aliyasantana Law, 1922 Edn. 247). It is chiefly followed by the Bunts the Bilwa caste and theclass among the Jains (See Maynes Hindu Law. 1950. 11th Edn. 971.) A kutumba under the Aliyasantana customary law was a family corporation: every member born in it has equal rights in the property owned by it. On the death of any member of the kutumba his or her interest in the kutumba property devolved on the other members of the kutumba by survivorship. The limited estate of Hindu female familiar to the Mitakashara Law was unknown to this system, for under it every male and female member had equal rights in the kutumba property. Under this law, though partition could not be enforced at the instance of one or more members and the members of the kutumba would be entitled to maintenance, it could be effected at the instance of all the adult members thereof. It may, however, be noticed that since the basis of the system was matriarchal, the children of the female members alone were the coparceners in the kutumba, but not the wife and the children of the male members. This customary law as applicable in certain areas of the Madras Province and in the erstwhile princely States of Travancore and Cochin was modified by the laws enacted by the respective legislatures. In this case we are concerned with the Madras Act which defined and amended in certain respects the laws relating to marriage, guardianship, maintenance, intestate succession and partition applicable to persons governed by that customary law. In respect of matters which this Act did not affect, the prevailing customary law was saved by Section 39 of the Madras Act which providedcontained in this Act shall be deemed to affect any rule of Aliyasantana Law, custom or usage, except to the extent expressly laid down in this ActMadras Act conferred a right to partition properties and the mode of ascertainment of shares on partition. These provisions are dealt with in Ch. VI of that Act.3. Before examining the provisions of the Madras Act and the Succession Act it may be mentioned that Chandayya Shetty had executed a Will on January 15, 1957 bequeathing his interest in favour of the appellants i. e his wife and children. A week thereafter on January 22, 1957, the first respondent and her children issued a notice to Chandayya Shetty stating that he (Chandayya Shetty) was the manager of the undivided family, that he was a nissanthathi kavaru (branch) while the respondents were santhathi kavarus, as such there were only two kavarus and that they had decided to divide the properties between Chandayya Shetty and themselves. They, therefore demanded under the Madras Act a stare belonging to their kavaru from out of the entire moveable and unmovable properties of the family Chandayya Shetty replied on January 24 1957, denying that the respondents family was a santhathi kavaru, but was a nissanthathi kavaru as the first respondent was more than 50 years old on the date of the said notice and had no female issue. He, however, admitted that there are only two kavarus in the family, and as both the kavarus were nissanthathi kavarus, each kavaru was therefore entitled to an absolute share in the kutumba properties. He also stated that he had no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondentsAfter this reply notice Chandayya Shetty died, as already stated, on February 13, 1957. On March 23, 1957, the appellants i. e. Chandayye Shettys widow and her children gave a notice to the respondents claiming a separate share under the will of Chandayya Shetty. A reply was given on the same day by the respondents denying that the appellants had any share because according to them Chandayya Shetty was entitled only to a life interest under the Aliyasantana Law.

Reasoning:
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.