Govinda Menon, J.
1. These two appeals arise out of O.S. No. 144 of 1950 on the file of the Subordinate Judge's Court, South Kanara, at Mangalore, which was a suit for partition by some members of an Aliyasantana family against the other members and the question that the learned Judge had to decide, in the main, was whether the karar Exhibit A-3, dated 30th April, 1931, did attract the operation of Section 36(6) of the Madras Aliyasantana Act (Act IX of 1949) or not. The facts may be shortly stated.
2. Under a partition deed Exhibit A-2, dated 5th June, 1918, the family of the present parties got divided from their parent kutumba and in that document the B-schedule properties were allotted to this family. One item in the schedule to Exhibit A-2 had been separately demarcated for Daiva Devara Viniyogas to be performed by the present 2nd defendant. Exhibit A-3 is a Thaka Karar to which 1st defendant, and defendant, 1st plaintiff and the deceased Nethravathi Shedthi as well as defendants 3 and 4 were parties as adults and the descendants of the female members were included as minors. In and by that document the properties were allotted jointly for the enjoyment of all the family members except the 2nd defendant to whom some items were given. The question is whether this document amounts to a partition as contemplated by Section 36(6) of the Aliyasantana Act. The learned Subordinate Judge has found that Exhibit A-3 cannot attract the operation of Section 36(6) for the reason that the distribution was not among the kavarus as the allotment was only made to one individual for his enjoyment during his life-time. It was further held that the right of enjoyment conferred upon the 2nd defendant was not absolute and was not meant to be in perpetuity. On these grounds the plaintiff's suit was decreed in accordance with the conditions prevailing on the date of the plaint.
3. The 2nd defendant, the appellant in Appeal No. 632 of 1951, puts forward the contention that by the application of Section 36(6) to Exhibit A-3 it should be construed as amounting to a partition. On more than one occasion we have laid down the four requisites necessary for the attraction of Section 36(6) and they are as follows:
(1) There must be a registered family settlement or award;
(2) All the major members of the kutumba must be parties to that;
(3) The whole of the kutumba properties must have been or were intended or purported to have been distributed and;
(4) The distribution must be among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity.
4. The question is whether these four conditions have been satisfied. With regard to the first and second conditions it is agreed between the parties that there is no difficulty. Even with regard to the third condition the whole of the kutumba properties were intended and purported to have been distributed. Here also there is no difficulty. The bone of contention is with regard to the fourth requisite namely whether there has been a distribution among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. Mr. Krishna Rao contends that though there has been no distribution individually among the number of kavarus that constitute the family at the time of Exhibit A-3, there is distribution so far as one nissanthathi kavaru is concerned and there is collective distribution regarding the other kavarus. If that is so, it would be sufficient to attract the operation of Section 36(6). In Appeal No. 545 of 1951 to which one of us was a party in discussing a similar contention it was stated as follows:
The second argument of Mr. T. Krishna Rao, for the appellants is that there has been no distribution among all the kavarus, and he placed considerable reliance on the Explanation to Section 35 of the Aliyasantana Act. We have to see how far this argument is justified.
'Kavaru' is defined in Section 3, Clause (b), Sub-clauses (i) and (ii). In Sub-clause (i) it is stated that the word 'kavaru' as used in relation to a female, means the group of persons consisting of that female, her children and all her descendants in the female line, and Sub-clause (ii) says that 'kavaru' used in relation to a sale, means the kavaru of the mother of the male. It is clear that unless there is a specific exception in the Act, in every place where the word 'kavaru' occurs, the meaning to be given to that expression should be as defined in Sub-clauses (i) and (ii) of Section 3 (b). But the Explanation to Section 35 says that for the purpose of Chapter VI, 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. From this Explanation Mr. Krishna Rao contends that for the application of Section 36(6) the word 'kavaru' should be interpreted in the way in which the Explanation to Section 35, intends it to be understood. It is clear that on the date of Exhibit A-10, Venkamma was dead and therefore her sons, Sankaya Shetty, Monappa Shetty, Annaya Shetty and Thungamma Shetty, would each of them be a separate kavaru as contemplated in the Explanation to Section 35. In the case, the distribution of the property should have been in the following manner : one group consisting of Muthakka and all her descendants would be one kavaru and the others would consist of each of the descendants of Venkamma separately. That means there would be five kavarus with regard to Venkammal's descendants and one kavaru with regard to Muthakka. The learned Counsel argues that as the distribution is only in two groups and not in six groups, which, according to him, should have been the proper mode, the fourth pre-requisite mentioned by us above has not been satisfied. The answer to this argument is that Section 36(6) only says that there should be a distribution among all the kavarus. It is not said that the distribution should be among the kavarus separately or individually. We have to read the Section as not intending such distributive distribution. It is possible that two or three kavarus may combine together and the properties jointly distributed to them. If a family has three or four kavarus, Section 36(6) does not contemplate a necessary distribution among as many kavarus as exist. There is nothing preventing the distribution among two or three kavarus as a composite whole. That would still satisfy the provisions of Section 36(6). We are, therefore, of the opinion that Exhibit A-10 does not suffer from the infirmity of the non-distribution of the properties among all the kavarus. This second argument also fails, and has to be rejected.
5. This view has been accepted by the learned Chief Justice and Panchapakesa Ayyar, J., in A.S. No. 69 of 1951.
6. Are we then to interpret Exhibit A-3, as the distribution of the properties among the kavarus? On behalf of the plaintiffs (respondents) Mr. Hedge contends that Exhibit A-3 was intended only as an allotment of some properties for the enjoyment of the 2nd defendant, and the rest of the properties remained with the group consisting of all the other members. It is as if one member of a kutumba was given certain properties for enjoyment which were separated while the others remained joint. If this is so, the principle enunciated in the above decisions of a distribution among all the kavarus of the kutumba cannot have any application here.
7. In our opinion, for the disposal of the present case it is unnecessary to decide this point because even if there has been a distribution among the kavarus individually it seems to us that there is nothing to show that the distribution in favour of Mahalinga Shetty under this document is a distribution in prepetuity. With regard to the properties given over to the 2nd defendant, the provision is that he must enjoy them for life without alienating them as if it is a life-estate. The document does not provide as to what should happen to these properties on his death. Unless there is a provision by which the mode of devolution of these propertied is regulated it will be difficult to say that under the document there is a distribution in perpetuity. We do not know whether on the death of the 2nd defendant the properties allotted to him should devolve upon the entire branch or whether the senior-most member as yajaman or yajamanthi should have management of the properties. Mr. Krishna Rao contends that under ordinary rule of Aliyasantana law if a person forming nissanthathi kavaru dies, his properties will be taken jointly by all the remaining members. We see no reason to doubt that proposition. But what is contemplated under the Act is that the distribution in perpetuity must be under the document and unless the document definitely lays down what should happen to the properties of a nissanthathi kavaru, it is difficult to say that there is distribution in perpetuity. We are, therefore, of the opinion that the second part of the prerequisite is absent in this case.
8. In addition to it there is another circumstance to be considered with regard to the properties allotted to Mahalinga Shetty. It is stated that the mulageni should be paid by the other members. If this is so, there can be no distribution at all in perpetuity. But since we have already held that under the document with regard to the properties of Mahalinga Shetty there is no distribution in perpetuity we cannot hold that the provisions of Section 36(6) can be attracted. With respect to the item in Exhibit A-2, which is reserved for Daiva Devara Viniyoga to be performed by the 2nd defendant, all that we need say is that such property should not be made the subject of partition and should remain in the hands of the 2nd defendant so long as he is alive and be considered as trust property after the death of the 2nd defendant without being divided among the members of the family. With these observations the appeal No. 632 of 1951 is dismissed. The parties will bear their costs in this Court.
9. Appeal No. 191 of 1952. - This raises the question regarding the interpretation of Section 36(1)(h) and Section 36(3). How it arises is in the following manner. At the time of sending the notice demanding partition, Jalaja Shedthi 1st plaintiff, was below 50 years of age she having become a widow earlier with three children, plaintiffs 2 to 4. According to Clause (h) of Section 3 she was a santhathi kavaru on the date when notice for partition was made, viz., 'a kavaru of which at least one member is a female who has not completed the age of fifty years'. Jalaja Shedthi and her children therefore constituted Santhathi kavaru. At the time when the suit was filed she was above 50 years of age. The question is whether in allotting the properties, the plaintiffs should be considered as santhathi kavaru or nissanthathi kavaru. The learned Subordinate Judge has held that the point of time crucial for the decision is the date on which notice was given when a division in status was effected and viewing it in that light decided that Jalaja Shedthi and her children had been constituted as santhathi kavaru. Mr. Ramayya Nayak, for defendants 1, 5, 6, 7, and the descendants of the 6th defendant, contends that we should consider the time of actual partition as the important one to ascertain whether the kavaru is santhathi or nissanthathi. He interprets 'the time of partition' as the point of time at which properties are actually divided by metes and bounds after the final decree. We do not think that this contention can be accepted. Clause (h) of Section 36(1) is as follows:
(h) The share of a kavaru at a partition shall be ascertained as on the date on which it makes a claim for partition.
Explanation : For the purpose of this sub-section, the date on which a partition is claimed shall be
(a) where the claim is made by a suit for partition the date of the institution of the suit (whether the suit is prosecuted or not); and (b) where the claim is made otherwise than by a suit, the date on which such claim is made.
Obviously this clause was inserted as a result of the decision in Karthiyayini Kunchi v. Minakshi Ammal (1935) 70 M.L.J. 114, in which a Bench of this Court held that the theory of division in status by a unilateral declaration of intention is applicable to persons following the Marumakkattayam Law just as it applies to Mitakshara joint family. Burn, J., who delivered the judgment stated that the principle is not restricted to the case of joint Hindu families following the Mitakshara or any other system of Jaw but is one of universal application. It is to remove any doubts about this that Clause (h) has been inserted in Section 35(1). There is, therefore, no doubt that the division in status in this case took place at the time when the notice was given.
10. Mr. Ramayya Nayak then referred to Clause (3) of Section 36 which is as follows:
If, at the time of the partition, any kavaru taking a share is a nissanthathi kavaru, it shall have only a life interest in the properties allotted to it, if the kutumba from which it separates has at least one female member who has not completed the age of fifty years, or where the kutumba breaks up into a number of kavarus at the partition, if at least one of such kavarus is a santhathi kavaru and if there is no such female member or santhathi kavaru, the kavaru shall have an absolute interest in the properties allotted to it.
11. The learned Counsel urges that the words 'if at the time of the partition' should be understood as the exact time when division by metes and bounds is made. It seems to us that the 'partition' in Sub-clause (3) of Section 36 should be given the same meaning as in Section 36(1)(h) and if in the latter case the point of time is when the division in status is effected, there is no cause for giving it a different interpretation in the former one. The phrase 'at the time of partition' should be understood as 'at the time when the parties effect a severance in status', the partition being only a division of status. If we accede to the contention of Mr. Ramayya Nayak the result would be this that the law's delay will enable a party to gain an advantage. Ordinarily partition suits in Marumakkathayam and Aliyasantana families where a large number of members exist, drag on for considerably a long time, as many as 12 to 15 years in certain cases, and a santhathi. kavaru at the time of the filing of the suit would become nissanthathi by the time the final decree is passed. We do not think that the Legislature intended that the duration, of a suit should decide the question whether santhathi or nissanthathi kavaru exists. We are of the opinion that there is no reason to give a different meaning of the word 'partition' under Section 36(1)(h) and Section 36(3). The time of partition should be understood as the time when disruption in status takes place.
12. This appeal is dismissed. No costs.