Case: Sundari and Others Vs. Laxmi and Others

The facts of the case may be briefly stated. The parties to this litigation are governed by the Aliyasanthana law prevalent in the district of South Kanara. They were members of a Kutumba descended from a common ancestress by name Manjekke. One Parameshwari and her son and daughter instituted Original Suit No. 91 of 1950 before the Court of the subordinate Judge at South Kanara for partition of properties in accordance with the provisions of the Madras Aliyasanthana Act, 1949, (Madras Act IX of 1949). The suit was dismissed by the Trial Court upholding the defence raised that a certain award decree made in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, amounted to a partition within the meaning of sub-section (6) of Section 36 of the Madras Aliyasanthana Act, and therefore another suit for partition was not maintainable. Though the trial court dismissed the suit holding that the suit for partition was not sustainable it pro ceeded to record findings determining the shares to which the members of several branches are entitled in the event of there being a decree for partitionOn appeal by the plaintiffs the High Court of Karnataka reversed the decision of the Subordinate Judge and held that the award decree in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, did not amount to a partition and that the suit for partition was maintainable. The High Court passed a preliminary decree on 28th June, 1961 and remanded the suit for further proceedings. The Advocates on both sides agreed regarding the shares of the parties and the Court directed a preliminary decree for partition and specified the shares as found by the Trial Court in Paragraph 17 of its judgment. The shares were determined on a joint memo filed by the parties on 25th September, 1963. The shares allotted to defendants 22 to 24 were 85, 176 out of a total of 615, 264 shares.Defendants 22, 23 and 24 are all male members of the kutumba and are nissanthathi kavaru. The 24th Defendant died before the preliminary decree was passed on 10th June, 1957 and his wife and children were brought on record as legal representatives. The 23rd defendant died on 9th March, 1962, after the passing of the preliminary decree. His wife and children were brought on record as legal representatives. During the final decree proceedings the legal representatives of the 24th respondent filed R. I.A. No. 2259 of 1966 and the representatives of the 23rd defendant filed R.I.A. No. 2266 of 1966 claiming that out of the share allotted to the kavaru of defendants 22 to 24, one-third representing the share or interest of the 24th and the 23r d defendants be allotted to them. This petition was opposed on the ground that each one of the defendants 22, 23 and 24 was a separate nissanthathi kavaru and on the death of each of the defendants 24 and 23 his share or interest devolved upon the santhathi kavarus nearest to him to which defendants 11, 12 and 16 belonged. The plea of the 22nd defendant was that all the three defendants 22, 23 and 24 constituted one single nissanthathi kavaru to which, under the preliminary decree one single or joint share was allotted, and therefore the said share survived to the last surviving member thereof (22nd defendant), and that no devolution on a santhathi kavaru under sub-section (5) of section 36 is possible until the last member of the nissanthathi kavaru, viz., the 22nd defendant, diesThe trial court found that in the High Court decree dated 20-6-1961 defendants 22 to 24 were allotted shares jointly. It rejected the contentions of both the applicants i. e. the legal representatives of defendants 23 and 24 as well as the surviving defendant 22 holding that defendants 22, 23 and 24 formed three different nissathathi kavarus as their mother was dead at the time of the filing of the suit and partition was effected and there was undivided interest in the property when they died so as to attract the provisions of section 7(2) of the Hindu Succession Act. The trial court dismissed both I.As. 2259 &2266/66.The High Court on appeal while agreeing with the conclusion arrived at by the Civil Judge that the clear intention of defendants 22, 23 and 24 was that one share be jointly alloted to three of them together held that when the 24th defendant died he had an undivided i nterest in the properties of the kavaru of himself and defendants 22 and 23 and that the said undivided interest quantified as provided by the explanation to sub-section (2) of section 7 of the Hindu Succession Act, and would devolve by intes tate succession under the said Succession Act. Similarly when the 23rd defendant died he had an undivided interest in the property jointly belonging to himself and the 22nd defendant. That undivided interest also got quantified under section 7(2) of Hindu Succession Act. The High Court allowed the appeals holding that the property descended according to the rules of intestate succession contained in the Hindu Succession Act.

Reasoning:
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.