Case: Gummanna Shetty &amp; Ors Vs. Nagaveniamma

1. By a registered deed dated September 4. 1900, a group of 19 persons forming a joint family with community of property governed by the Aliyasathana Law of inheritance, formed themselves into two branches and divided the family properties. The second branch consisted of the descendants of Sarasamma and Brahmi and some descendants of Nemakka -in all 10 persons. The first branch consisted of Nemakka and the rest of her descendants and her sister Sivadevi - in all 9 persons. In 1953 Darnamma was the sole surviving member of the second branch. She was a nissanthathi kavaru 70 years old having no descendants. In 1955, the members of the first branch instituted a Suit against Darnamma for partition of all the properties comprised in the deed dated September 4, 1900, alleging that the deed effected a division for convenience of enjoyment and maintenance only and was not an absolute out-right partition. The defence of Darnamma was that the deed effected an out-right partition. The trial court accepted the plaintiffs contention and passed a preliminary decree 1or partition. Darnamma filed an appeal in the Mysore High Court. During the pendency of the appeal she died and one Nagaveniamma claiming under her wil1 was substituted in her place as her legal representative. The High Court held that the deed dated September 4, 1900, effected an out-right partition. On this finding the High Court allowed the appeal, set aside the decree passed by the trial court and dismissed the suit. From this decree the present appeal has been filed under a Certificate granted by the High Court.

Reasoning: 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.