Case: Padmaraja &amp; Another Vs. Dhanavathi &amp; Others

1. This is an appeal by special leave. Defendants 34 and 35 in the suit are the appellants. The suit from which this appeal arises is a suit for partition underthe Madras Aliyasantana Act, 1949 (Madras Act IX of 1949) which will hereinafter be referred to as theThe plaintiffs and the defendants were governed by the Aliyasantana law of inheritance. It is a matriarchal system of law. One Pammadi was the prepositor of the family. She had two daughters by name Pammakke and Dejappe and three sons, viz. Kanthu Hegde, Monu Hegde and Manjappa Hegde. After the death of Pammadi, differences arose in the family. Hence all the Major members of the family excepting one Brahamiah referred those disputes to the arbitration of four arbitrators by means of a mutchallika, dated December 14, 1886. By the time this mutchallika was executed, two of the sons of Pammadi, Kanthu Hegde and Monu Hegde had died. At that time, in the Kutumba there were only two santhathi kavaru, viz. Pammakke and Dejappe and one nissanthathi kavaru namely Manjappa Hegde in existence (reference to santhathi kavaru and nissanthathi kavaru is as defined in the Act). The arbitrators divided the kutumba properties into two parts : one part was allotted to the share of Pammakkes Kavaru and the other part to Dejappes Kavaru and Manjappa Hedge. Manhjappa Hedge was clubbed alongwith the kavaru of Dejappe (reference to kavaru is as defied in the Act). On June 14, 1953, all the members of the kavaru of Pammakke brought a suit for partition of the suit properties under Section 35 of the Act. The appellants and some other members of the kavaru of Dejappe resisted the suit mainly on the ground that the kutumba had been partitioned under Ext. A-2. They contended that the said document either evidences a partition or at any rate the arrangement made thereunder is a deemed partition coming within the scope of Section 36(6) of Act. The Trial Court came to the conclusion that under the Award in question the kutumba properties were partitioned. Alternatively it held that Ex. A-2 is covered by Section 36(6). In appeal a Division Bench of the High Court of Mysore reversed the judgment and decree of the Trial Court. It held that Ext. A-2 does not evidence a partition. It further came to the conclusion that the same is not covered by Section 36(6) as Ext. A-2 was an award decree and not a mere award. Dissatisfied with the judgment of the High Court, defendants 34 and 35 have brought this appeal4. The findings of the High Court as regards the true nature of Ext. A-2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt. Before proceeding to consider the contentions of the parties, it is necessary to refer, in brief, to the customary Aliyasantana law. Under that law inheritance is traced through the female line. Under that law, as interpreted by court partition was impermissible except with the consent of all family. The senior-most member of the family be it a male or a female was a Yejman or Yejmanthi of the family. With the passage of time, the members of the Aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable. In order to mitigate these difficulties, three types of arrangements came to be made in those kutumbas. By and large the Yejman or Yejmanthi of the family made maintenance allotments (maintenance under the Aliyasantana is a mode of participation in the family properties). This type of arrangement was purely temporary in character. It was open to Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements for their maintenance. Another type of arrangement that came to be made was permanent arrangement for maintenance. This was ordinarily done on kavaru basis. Under this arrangement, jointness of the family was kept intact but arrangement was made for separate living and separate management of kutumba properties on a permanent basis. Such arrangements ordinarily were not capable of being disturbed except with the consent of all the adult members of the kutumba. Lastly, there are few cases of partition with the consent or concurrence of all the adult members of the kutumba. Hence when the Act came into force in addition to joint living by the members of the kutumbas, aforementioned types of arrangements were in existence in various kutumbas. Under Section 35 of the Act power was given to kavarus, santhathi or nissanthathi to claim partition but those permanent arrangements which came within the scope of Section 36(6) were deemed to be partitions despite the fact that under those arrangements the jointness of the kutumba was kept intact. In Gummanna Shetty and Others v. Nagaveniemma (1967 3 SCR 932   : AIR 1967 SC 1595   : 1968 1 SCJ 269.), this Court while dealing with an arrangement in a Aliyasantana family entered into in the year 1900, observed"In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasantana law of inheritance had no right to claim 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. In 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."

Reasoning:
12. Evidently the legislature wanted to deem certain deeds under which perpetual arrangement had been made in the past for the maintenance of all the kavarus of a kutumba as partitions. The requirements of Sections 36(6) have been laid down by this Court as seen earlier in Gummanna Shettys case (supra). Therefore all that we have to see is whether the tests laid down by this Court in that decision are satisfied. The High Court having come to the conclusion that the first test was not satisfied rejected the contention of the plaintiffs that the deed Ext. A-2 comes within the scope of Section 36(6). It came to the conclusion that an award decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force ofthe Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were4. The findings of the High Court as regards the true nature of Ext. A-2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt. Before proceeding to consider the contentions of the parties, it is necessary to refer, in brief, to the customary Aliyasantana law. Under that law inheritance is traced through the female line. Under that law, as interpreted by court partition was impermissible except with the consent of all family. The senior-most member of the family be it a male or a female was a Yejman or Yejmanthi of the family. With the passage of time, the members of the Aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable. In order to mitigate these difficulties, three types of arrangements came to be made in those kutumbas. By and large the Yejman or Yejmanthi of the family made maintenance allotments (maintenance under the Aliyasantana is a mode of participation in the family properties). This type of arrangement was purely temporary in character. It was open to Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements for their maintenance. Another type of arrangement that came to be made was permanent arrangement for maintenance. This was ordinarily done on kavaru basis. Under this arrangement, jointness of the family was kept intact but arrangement was made for separate living and separate management of kutumba properties on a permanent basis. Such arrangements ordinarily were not capable of being disturbed except with the consent of all the adult members of the kutumba. Lastly, there are few cases of partition with the consent or concurrence of all the adult members of the kutumba. Hence when the Act came into force in addition to joint living by the members of the kutumbas, aforementioned types of arrangements were in existence in various kutumbas. Under Section 35 of the Act power was given to kavarus, santhathi or nissanthathi to claim partition but those permanent arrangements which came within the scope of Section 36(6) were deemed to be partitions despite the fact that under those arrangements the jointness of the kutumba was kept intact. In Gummanna Shetty and Others v. Nagaveniemma (1967 3 SCR 932   : AIR 1967 SC 1595   : 1968 1 SCJ 269.), this Court while dealing with an arrangement in a Aliyasantana family entered into in the year 1900, observed"In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasantana law of inheritance had no right to claim 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. In 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.Evidently the legislature wanted to deem certain deeds under which perpetual arrangement had been made in the past for the maintenance of all the kavarus of a kutumba as partitions. The requirements of Sections 36(6) have been laid down by this Court as seen earlier in Gummanna Shettys case (supra). Therefore all that we have to see is whether the tests laid down by this Court in that decision are satisfied. The High Court having come to the conclusion that the first test was not satisfied rejected the contention of the plaintiffs that the deed Ext. A-2 comes within the scope of Section 36(6). It came to the conclusion that an award decree is not an award within the meaning of Section 36(6). In arriving at that conclusion, it relied on the decision of that Court in Parameshwari Hengsu and Others v. Venkappa Shetty and Others (1961 Mys LJ 686.). Parameshwari Hengsus case (supra) first came up for hearing before a Division Bench consisting of Sadasivayya and Mir Iqbal Husain, JJ. Sadasivayya, J., held that the expression "award" in Section 36(6) does not take in an award decree. But Iqbal Husain, J., differed from that view and opined that the term "award" includes also an ward decree. In view of that difference of opinion, the question whether the expression "award" includes an award decree was referred to Somnath Iyer, J. That learned judge agreed with the view taken by Sadasivayya, J. The decision in Parameshwari Hengsus case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsus case (supra). He contended that the expression "award" in Section 36(6) includes also an award decree. He urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of Section 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsus (supra), we must first examine the principle underlying Section 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of Section 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya, J., and Somnath Iyer, J., opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring to decrees in sub-section (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it"13. This reasoning appears to us to be fallacious. It be remembered the only decrees that could possibly have been included within the scope of Section 36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the Aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying Section 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying Section 36(6) that permanency of should be available in a larger measure to an award decree. On the other had if the view taken by those learned judges is correct, while Section 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decree while they are bound by awards. This could hardly have been the intention of the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengsus case (supra). After the coming into force ofthe Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of Section 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of Sections 36(6). The basis of every award decree is an award decree is an award. Evidently the legislature by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying Section 36(6) or the language of Section 36(6), we see no justification to exclude award decree from the scope of Section 36(6). In our opinion Parameshwari Hengsus case (supra), in so far as it interpreted Section Section 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that is must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not join the mutchallika A-1 on the strength of which Ext. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants - the same view was taken by the learned trial judge that Brahmiah had acquiesced in the arrangements made under Ext. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under Section 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient14. As we are of the opinion that all the major members of the kutumba were not parties to Ex. A-2, it is not necessary to examine whether the remaining conditions prescribed under Section 36(6) were