1. These Revision Petitions, which are directed against a common order made by the Civil Judge at Mangalore on two interlocutory Applications before him, raise a common question of law as to whether and if so, in what manner, the provisions of sub-section (2) of Section 7(2) of the Hindu Succession Act, 1956, (Central Act 30 of 1956) operate on the death of a party in a suit for partition of the properties of a Hindu family governed by the Aliyasanthana law.
2. The details of the previous proceedings in this matter to the extent necessary for the disposal of the above question are briefly the following:
3. The parties are governed by the Aliyasanthana law prevalent in the District of South Kanara. They constituted a family or kutumba descended from a common ancestress Majekke. One Parameshwari and a daughter and a son of hers as plaintiffs instituted Original Suit No. 91 of 1950 before the Court of the Subordinate Judge at South Kanara for partition of its properties, pursuant to and in the light of the provisions of the Madras Aliyasanthana Act 1949, (Madras Act IX of 1949). Apart from the contentions based on the merits of their case, one important defence to the suit was 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(6) of the Madras Aliyasanthana Act. This was made the subject of issue No. 1. The trial court decided this issue against the plaintiffs and held that the suit for partition was not therefore sustainable. Although it recorded findings on some of the other issues also including issue No. 3 regarding the shares to which members or several branches are entitled in the event of there being a decree for partition, the Court ultimately dismissed the suit in view of its finding on the first issue.
4. There was an appeal presented against the decree dismissing the suit to the Madras High Court. After the reorganisation of the states, the said appeal stood transferred to this Court and was renumbered R. A. (M) 64 of 1956. On the question of law raised by the first issue the members of the original Bench which heard the appeal differed in their opinion resulting in a reference to a third Judge. The ultimate decision was that the previous award decree did not amount to a partition so as to make so as to make the present suit unsustainable. Accordingly, a preliminary decree for partition was passed on 28th June 1961 by this Court and the suit remanded for further proceedings.
5. Regarding the quantum of shares themselves, this Court held:--
'The learned Advocates on both sides are agreed that the suit be decreed for partition in respect of the plaint schedule immoveable properties; they also agreed that the shares be divided as indicated in para 17 of the trial Court's judgment. We direct that a preliminary decree for partition of the plaint schedule immoveable properties be drawn up accordingly.'
6. Paragraph 17 of the trial court's judgment contains its finding on the third issue as to shares. It reads:--
'In case, this suit is to be decreed, the shares to which the several parties are entitled to will be as set out in the joint memo filed by the parties on 25-9-1963, which are as follows:--Plaintiffs 81,9911st Defendant 58,565Defendants 2 to 8 & 26 1,40,5569th Defendant 65,520Defendants 22 to 24. 85,17621st Defendant 52,920Defendants 12 to 15. 38,073Defendants 16 &17. 27,19510th Defendant. 21,756Defendants 11, 18 to 20 & 25. 43,5126,15,264
7. The preliminary decree as drawn up pursuant to the judgment of this Court copied the above details of distribution and allotment of shares.
8. Defendants 22, 23 and 24, viz., Subba Shetty, Bagappa Shetty and Manjappa Shetty, to whom a share equal to 85,176 out of 6,15,264 was allotted by the decree, are all male members of the kutumba who, according to the Aliyasanthana law, cannot constitute a stock descent, and are therefore called 'nissanthathi Kavaru'.
9. The 24th defendant Manjappa Shetty died, before the preliminary decree was passed, on 10th June 1957, and pursuant to an order made on I. A. No. IV filed by the plaintiffs-appellants his wife and children were brought on record as his legal representatives. The said persons, it will be noticed, are heirs of the deceased Manjappa Shetty according to the provisions of the Hindu Succession Act. The 23rd defendant Bagappa Shetty died on 9th March 1962. In his case also, on an application made to the lower court by the plaintiffs, his wife and children, i.e., heirs under the Hindu Succession Act, were brought on record as his legal representatives.
10. In the course of the final decree proceedings, the legal representatives of the 24th defendant filed R. I. A. No. 2259 of 1966, and the legal 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 23rd defendants respectively be allotted to them. The said applications were opposed both by the surviving 22nd defendant as well as by defendants 11, 12 and 16. Defendants 11, 12 and 16 contended that each one of the defendants 22, 23 and 24 was a separate nissanthathi kavaru and that on the death of each of defendants 24 and 23, his share or interest devolved upon the santhathi kavarus nearest to him to which defendants 11, 12 and 16 belong, under sub-section (5) of Section 36 of the Madras Aliyasanthana Act. Defendant 22, on the other hand, contended that all the three defendants 22, 23 and 24 constituted one single nissanthathi kavaru to which under preliminary decree, one single or joint share was allotted, and that therefore the said share has 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, dies.
11. The Civil Judge, after observing that the suit was directed by the High Court and that defendants 22 to 24 were allotted shares jointly as per the decree dated 28th June, 1961, rejected the contention of the applicants before him in the following terms:
'The contention of the learned counsel for the petitioners is that defendants 23 and 24 were undivided at the time of their death and therefore, under the provisions of the Hindu Succession Act, the shares allotted to them would devolve upon their wife and children and therefore, the present petitioners are entitled to the shares allotted to deceased defendants 23 and 24. I am unable to accede to this contention of the petitioners. As stated, they expressed their desire to be separated in the written statement and they became divided. They took their shares as Nissanthathi Kavarus and under the provisions of Madras Aliyasanthana Act of 1949, their shares would devolve upon the nearest santhathi kavarus.'
12. Later, in para 6 of his order, he observed:--
'In the instant case, it could be seen from the genealogy appended to the plaint, that defendants 22, 23 and 24 are the children of one Thankaju. They formed three different nissanthathi kavarus as their mother was dead at the time of the filing of the suit and partition was effected. They were members of three separate kavarus and the shares allotted to them would be only of life interest and that would only devolve upon the nearest santhathi kavarus as the kutumba had been broken up by virtue of the preliminary decree for partition. The provisions of the Hindu Succession Act cannot be made applicable to the facts of the present case, and I am unable to accede to the contention that the shares of defendants 23 and 24 would devolve upon the 22nd defendant alone and after the death of the 22nd defendant, they would devolve upon the nearest santhathi kavarus.'
13. He thus rejected the contentions of both the applicants the legal representatives of defendants 23 and 24, as well as of the surviving defendant No. 22.
14. Against the said order the 22nd defendant has presented two Revision Petitions 1175 and 1681 of 1967, apparently because there were two applications by two sets of legal representatives. The legal representatives of deceased 23rd defendant have filed Civil Revision Petition No. 931 of 1967. The legal representatives of the 24th defendant have not come before this Court.
15. The contesting respondents in all the three Revision petitions are defendants 11 to 21 who support the view of the Civil Judge that the interest of the deceased defendants devolved upon the nearest santhathi kavaru or kavarus as the case ma be.
16. From the contentions summarised above, and the manner in which they have been dealt with by the Civil Judge, it becomes clear that the real controversy in this case is whether the situation upon facts is such as to attract the provisions of Section 7(2) of the Hindu Succession Act in supersession of or notwithstanding the provisions of Section 36 of the Aliyasanthana Act, or one in which the latter Act alone is to operate without there being any scope for the former to come into operation. The first question for investigation, therefore, is what are circumstances in which the provisions of the Hindu Succession Act can operate to the exclusion of or notwithstanding the provisions of the Aliyasanthana Act.
17. Now, it is not disputed that the parties to this litigation are governed by the Aliyasanthana law within the meaning of the definition thereof given in the clause (b) of Sub-section (1) of Section 3 of the Hindu Succession Act. Therefore everyone of the parties to the suit would be a Hindu to whom Aliyasanthana law would have applied, if the Hindu Succession Act had not been passed. It is the devolution of the interest of such a person in the property of his kutumba or kavaru that is dealt with in sub-section (2) of section 7 of the Hindu Succession Act. That sub-section reads as follows:--
'7(2) When a Hindu to whom Aliyasanthana law would have applied if this Act had not been passed dies after the commencement of this Act, having a the time of his or her death an undivided interest in the property of a Kutumba or kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the Aliyasanthana law.
Explanation :--For the purpose of this sub-section, the interest of a Hindu in the property of a Kutumba or kavaru shall be deemed to be the share in the property of the kutumba or kavaru, as the case may be, that would have fallen to him or her, if a partition of that property per capita had been made immediately before his or her death among all members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the Aliyasanthana law, and such share shall be deemed to have been allotted to him or her absolutely.'
Intestate succession is dealt with in Section 8 and connected Sections of the Hindu Succession Act, Section 17 making special provisions respecting persons governed by the Aliyasanthana Law. Testamentary succession is dealt with in section 30 of the Hindu Succession Act, which reads as follows:--
'30 Testamentary succession,--
(1) Any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925) or any other law for the time being in force and applicable to Hindus.
Explanation :--The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section.
(2) For the removal of doubts it is hereby declared that nothing contained in sub-section (1) shall affect the right to maintenance of any heir specified in the schedule by reason only of the fact that under a will or other testamentary disposition made by the deceased the heir has been deprived of a share in the property to which he or she would have been entitled under this Act if the deceased had died intestate'.
18. The validity of a will executed by a male Hindu governed by the Aliyasanthana law in respect of the share allotted to him in a suit for partition of kutumba properties was questioned in a suit which came on appeal to this Court. The Bench which heard the appeal referred the following questions to a Full Bench:
'1. Whether by virtue of the Explanation to sub-section (1) of Section 30 of the Hindu Succession Act, 1956, the interest of the 1st defendant in the share taken by him as the sole member of a nissanthathi kavaru, became capable of being disposed of by will?
2. Whether sub-sections (3), (4) and (5) of Section 36 of the Aliyasanthana Act are inconsistent with the Explanation to sub-section (1) of Section 30 of the Hindu Succession Act, 1956, and do they, by the operation of sub-section (1)(b) of Section 4 of the Hindu Succession Act, cease to apply?'.
The opinion of the Full Bench is reported in Sundara v. Girija, 40 Mys LJ 1 = (AIR 1962 Mys 72 (FB)).
19. Although the provisions of the Hindu Succession Act, the interpretation of which directly arose in the case was the explanation to sub-section (1) of Section 30 of the Succession Act, the full Bench has discussed the general effect of the Hindu Succession Act upon the provisions of the Aliyasanthana Act dealing with partition. Before answering both the questions referred to it in the negative, the full Bench after an elaborate examination of the relevant provisions of both the statutes, has pointed out that the interest of a Hindu governed by the Aliyasanthana law in the property of kutumba or kavaru, as the case may be, which descends by intestate succession according to the rules contained in the Hindu Succession Act or is capable of being disposed of by him or her by means of a will or other testamentary disposition is the interest specified and quantified in sub-section (2) of Section 7 of the Succession Act. By the very language of the Section, it is an interest which is specified as 'an undivided interest in the property of a kutumba or kavaru, which the person in question had at the time of his or her death, and is to be quantified by postulating a partition made immediately before his or her death of the said property per capita among all the members of the kutumba or kavaru, as the case may be, then living; the sub-section further states that such partition is to be postulated whether or not he or she is entitled to claim such partition under the Aliyasanthana law, and that the share as quantified under the Section shall be deemed to have been allotted to him or her absolutely. The Full Bench points out that the interest so specified can only be the theoretical interest of the person who dies undivided, and that the quantification thereof under Section 2 of the Hindu Succession Act is a quantification quite different from the quantification made for the purpose of partition under Section 36 of the Aliyasanthana Act. It is such an undivided interest of a person who dies without having divided himself from the kutumba or kavaru, as the case may be, and quantified under the theoretical partition, postulated under the section that descends by intestate succession or becomes capable of being disposed of testamentary under the provisions of the Hindu Succession Act. Dealing with the overriding effect of the Succession Act provided for under Section 4 thereof as well as the larger question of repugnancy under Art. 254 of the Constitution, the Full Bench points out that the topic of succession dealt with under the Hindu Succession Act is a field of legislation distinct and different from the topic of partition dealt with in Chapter VI comprising Sections 36 and 37 of the Aliyasanthana Act.
20. Applying the principles stated by the Full Bench Somnath Iyer, J., has pointed out in Lakshmi Shedthi v. Jalaja Shedthi, (1963) 2 Mys LJ 552, that what is capable of being disposed of testamentary by a member of an aliyasanthana family is his undivided interest in the property of the kutumba or kavaru, as the case may be, and never a divided interest therein, and that if, before the death of a testator on which alone the will comes into operation, he becomes divided from the kutumba or kavaru, as the case may be, and never a divided interest therein, and that if before the death of the testator on which alone the will comes into operation, he becomes divided from the kutumba or kavaru, as the case may be, by means of a partition or even by severance of status brought about by a claim for partition the testator cannot be said to have died having an undivided interest in the property, with the result that the will becomes inoperative. In the same case, it is pointed out that there must be at least two persons to constitute a kutumba or kavaru but that a single individual cannot constitute a kutumba or kavaru, both of which are defined as groups of persons, which mean tow or more persons.
21. In the case which was considered by the full Bench, the person who executed the will, viz., the 1st defendant therein, was not an undivided member of the kutumba or kavaru but a single individual who, having claimed a share for himself alone as constituting a nissanthathi kavaru, has had such a share allotted to him under the preliminary decree from the point of view of the kutumba he was a divided member of the kutumba even before his death, from the point of view of the kavaru, he was a single member thereof with no other members thereof with no other members belonging to that kavaru. There was no question, therefore, of his being considered an undivided member of either the kutumba or the kavaru who died having an undivided interest in the property of the kutumba or kavaru.
22. Now, a kavaru is defined in Section 3(b) of the Aliyasanthana Act as follows:--
'(b)(i) 'kavaru' used in relation to a female, means the group of persons consisting of that female, or her children and all her descendants in the female line,
(ii) 'kavaru' used in relation to a male, means the kavaru of the mother of the male.'
Normally, therefore, kavaru, whether used in relation to a female or to a male, can only mean a group of persons. Under Section 35 of the Act, partition is climbable not by individuals but by kavarus alone, but there is an explanation appended to the section which reads:--
'Explanation--For the purposes of this Chapter.--(a) a male member of a kutumba, or a female member thereof who has no living descendant in the female line, shall be deemed to be a kavaru if he or she has no living female ascendant who is a member of the kutumba.
(b) Such male member, or such female member if she has completed the age of fifty years, shall be deemed to be a nissanthathi kavaru.'
Referring to this Explanation, a Division Bench of this Court in the case reported in Koragappa Rai v. Sankappa Rai (1960) 38 Mys LJ 409, has pointed out that the said Explanation does not provide a different definition intended to replace or take the place of the general definition given in Section 3(b) but must be regarded as an enabling provision under which a single person is enabled to ask for a partition notwithstanding the general provision that partition can only be claimed by kavarus. The Bench adds:--
'....... this Explanation cannot be understood as depriving the larger unit, namely, a kavaru as defined in Section 3(b) of its right to claim partition or of the share due to it. When a joint claim has been made by all the members of the Channamma's kavaru for the partition of the share of that kavaru, there is no reason as to why any such members should be compelled to a partition from Channamma's kavaru and to have a separate share on the ground that under the Explanation to Section 35(2) he or she would be a kavaru.'
That a nissanthathi kavaru need not necessarily consist of a single individual but may be made up of two or more persons is also clear from sub-sec (5) of Section 36 which provides for devolution of properties allotted to a nissanthathi kavaru or the nearest santhathi kavaru or kavarus 'at the time of the death of the last of its members.'
23. Such being the principles which can be clearly gathered from the decisions of this Court discussed above, there only remains to apply those principles to the facts of this case.
24. The sole question of fact to be decided is whether the nissanthathi kavaru in this case was made up of three male members defendants 22, 23 and 24, or the said three defendants were in the circumstances three different nissanthathi kavarus. The Civil Judge, as clearly stated, while noticing the fact that the preliminary decree for partition passed by this court allotted a share jointly to defendants 22, 23 and 24, nevertheless proceeded to say that the said three different nissanthathi kavarus and that on the death of each one of them his interest would devolve upon the nearest santhathi kavaru or kavarus on the footing that each one of them was a divided member at the time of his death. Mr. Holla appearing for the members of the santhathi kavaru supports this view. Mr. Gopalkrishna Shetty for the 22nd defendant as well as Mr. Ganapati Bhat for the legal representative of the 23rd defendant, contend that defendants 22, 23 and 24 together constituted a single nissanthathi kavaru under the preliminary decree, it is seen that in the original suit defendants 22, 23 and 24 did not file separate written statements of their own but joined in the written statement filed by defendants 9 to 15 and 18 to 20, all of them together filing one single written statement. In paragraph 10 of the said written statement, they stated :--
'That these defendants submit that they have no objection for a partition of the family properties according to the rights of the parties. But submit that in the event of such a partition, their share should be allotted to them and further that the plaintiffs should be directed to surrender possession of the properties in Schedule 1 of written statement.'
Mr. Holla argues that this averment is not clear claim for a joint share but that it can be read in the light of the statute as involving a claim for allotment of separate shares to defendants 22, 23 and 24 on the footing that each of them constitutes a nissanthathi kavaru entitled to ask for allotment of a separate share to him by virtue of the Explanation appended to Section 35 (2). I do not think that so much can be read into the 10th paragraph of the written statement copied by me. If it is a question of reading the averment in the light of the statutory provisions, I do not think we can ignore what the Bench of this Court has stated in the case of Koragappa Rai v. Sankappa Rai, (1960) 38 Mys LJ 409 already cited viz., that while the Explanation to section 35 enables an individual in certain circumstances to claim partition as if he was a kavaru in himself, it does not deprive the larger group falling within the definition of the kavaru given in Section 3(b) of the right of claiming a share for itself as group, nor does it compel individual members of the said group to divide himself or herself from the said group, it is a question of ascertaining the intention of the parties, it is perfectly clear from paragraph 17 of the trial Court's judgment that the specification of shares contained therein was made on the basis of a joint memo filed by all the parties, which means that the parties clearly expressed their intention in the said memo as to how the property should be divided, and the clear intention of defendants 22, 23 and 24 as stated therein is that one share be jointly allotted to all of them together. The judgment of this Court also pursuant to which a preliminary decree was passed, records that all the counsel appearing for the parties agreed that the allocation of shares may be as set out in paragraph 17 of the lower Court's judgment.
25. I cannot therefore accept the argument addressed by Mr. Holla nor can uphold the conclusion stated by the Civil Judge without giving reasons in support thereof to the effect that defendants 22, 23 and 24 secured separate shares for each one of them under the preliminary decree for partition.
26. The only correct conclusion, in my opinion in this regard is that defendants 22, 23 and 24 together constituted a nissanthathi kavaru and divided itself from the main kutumba but that the said three members of the said kavaru did not get themselves divided from each other.
27. The first consequence of this finding is that so long as the last surviving member of the said kavaru, viz., 22nd defendant is still alive, devolution in favour of the nearest santhathi kavaru or kavarus under sub-section (5) of Section 36 cannot take place.
28. The second consequence is that when the 24th defendant died, he had an undivided interest in the properties of the kavaru himself and other 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, would devolve by intestate succession under the said Succession Act, as if upon partition between him and the other tow members of the kavaru taking place immediately before his death on per capita basis, as share equal to one third of the total properties of the kavaru had been allotted to him absolutely. After his death, the remaining two thirds belonged or continued to belong jointly to defendants 22 and 23. Hence, 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 as quantified pursuant to the Explanation to sub-section (2) of Section 7 of the Hindu Succession Act, must be held to have descended according to the rules of intestate succession contained in the said Act.
29. In the result, therefore, the Civil Judge should have allowed both the R. I. As. 2259 and 2266 of 1966 on his file.
30. Mr. Holla has argued that the interpretation of the statutes leading to this result should not be acted upon because it will lead, according to him, to several anomalies. He has also argued that there has been an amendment of Section 36 by the Mysore Legislature subsequent in point of time to the Hindu Succession Act, and that therefore under Article 254 of the Constitution, such amendment should be given effect to notwithstanding the Central Act, because the amending Act having been reserved for consideration by the President has received his assent.
31. Neither of these arguments, in my opinion, is of any value.
32. Any question under Article 254 of the Constitution cannot at all arise in view of the clear decision of the Full Bench of this Court in 40 Mys LJ 1 = (AIR 1962 Mys 72 (FB)) to the effect that the two statutes deal with two different fields of legislation altogether and that no question of any repugnancy can arise as between the topic of partition dealt with under the Aliyasanthana Act and the topic of succession dealt with under the Hindu Succession Act.
33. The anomalies referred to by Mr. Holla arise out of the basic concept that the destination of the property that devolves, varies or may vary from person to person, depending upon whether he died divided or undivided and on the relative dates of death of different of different persons. Such different results depending upon the situation of the property, the plurality of persons owning the same, the nature of their interest during different dates of their life time and the quantum and nature of the property owned by a person at the time of his death, are ordinary consequences of different rules of law governing the ownership, enjoyment, disposal and devolution of property. If it is contended that in the light of this decision the interest of defendants 24 and 23 will devolve under the Aliyasanthana Act and that the same is an anomaly, such anomaly can be cured only by legislation and not by decisions of Courts. Apparently section 37-A introduced into the Aliyasanthana Act by the Madras Aliyasanthana (Mysore Amendment) Act, 1961, is intended to remove such contingencies, though of course the said amendment, as pointed out by division Bench of this Court in Ratnamala v. State of Mysore, (1968) 1 Mys LJ 599 = (AIR 1968 Mys 216) will operate only prospectively.
34. For the above reasons, I dismiss Civil Revision Petitions 1175 and 1681 of 1967 and allow Civil Revision Petition No. 931 of 1967.
35. Although no Revision Petition has been filed by the legal representatives of the 24th defendant, the benefit of this decision must in the circumstances, be given to them also. Hence both the R. I. As. 2259 and 2266 of 1966 on the file of the Civil Judge will stand allowed.
36. The parties will bear their own costs in this Court.
37. Order accordingly.