DEVAKI SHEDTHI v. SANJIVI SHEDTHI — 1973 DIGILAW 279 (KAR)

VENKATARAMIAH, J. ( 1 ) DEFENDANTS 1 and 2 in O. S. 38/1968 on the, file of the Principal Civil judge, Udipi, are the appellants in the above appeal. ( 2 ) THE facts of the case are briefly these: Pachu Shedthi was the common ancestress of the parties to the suit. She had three children-two daughters and a son-Kaveri Shedth, Kollu Shedthi and Subbiah Shetty kaveri Shedthi had four children-Dejappa, Shetty, Nagappa Shetty, dcvaki Shedthi (defendant 1) and Narayana Shetty. Raghava Shetty sharada Shedthi and Duggamma alias Varija (defendants 2 to 4) are the children of Devaki Shedthi (defendant 1 ). Ashok Kumar, Prasad and devaraja (defendants 5 to 7) are the children of Sharada Shedthi (defendant 3 ). Subramania (defendant 8) is the son of Duggamma alias Varija (defendant 4 ). Kollu Shedthi the second daughter of the common ancestress had three children-Krishna Shetty, Muddu Shetty and Mahabala shetty. Rukinuni Shedthi, Lcelavathi Shedthi and Kushalavathi Shedthi (defendants 9, 10 and 11) are the legal representatives of Muddu Shetty who died after the coming into force of the Hindu Succession Act. Subbiah shetty the son of the common ancestress died on 24-2-1960 leaving behind him his widow Sanjeevi Shedthi (plaintiff 1) and children, plaintiffs 2 to7. The parties are governed by the Aliyasantana Law. ( 3 ) THE plaintiffs who are the legal representatives of Subbiah Shetty instituted the suit out of which this appeal arises for partition and separate possession of their share in the properties belonging to the kutumba of which Subbiah was an undivided member at the time of his death. Defendants 1 to 8 contested the suit. The principal contention raised by them in the course of the written statement was that by virtue of a karar which came into existence on March 1, 1929, the family became divided and hence the suit for partition was not maintainable. Alternatively, it was pleaded that even though the karar referred to above did not amount to a partition under the customary law, it must be deemed to be a partition in view of the provisions of sub-sec. (6) of Sec. 36 of the Madras Aliyasanthana Act, 1949 (hereinafter referred to as the Act) and hence the suit for partition was not maintainable. (6) of Sec. 36 of the Madras Aliyasanthana Act, 1949 (hereinafter referred to as the Act) and hence the suit for partition was not maintainable. The trial Court after recording the evidence and hearing the parties negatived the contention of defendants 1 to 8 that the suit for partition was not maintainable on account of an earlier partition and passed a preliminary decree for partition. It should be mentioned here that the other defendants did not contest the claim of the plaintiffs in the court below. ( 4 ) AGGRIEVED by the preliminary decree passed by the Court below, defendants 1 and 2 have filed the above appeal. ( 5 ) THE only question which arises for consideration in this appeal is whether the Karar dt. 1-3-1929, marked as Ex/p1 in the case, amounts to a partition either under the customary law governing the members of the aliyasanthana family or under Sec. 36 (6) of the Act. The answer to the above question is dependent upon the true construction of the said document. The oral evidence adduced in this case is of very little assistance in that regard. Ext P1 is styled as an 'adalitha Karar in the family' and it is executed by Kaveri Shedthi, Kollu Shedthi and Subbiah Shetty the three children of the common ancestress, Dejappa Shetty, Nagappa Shetty, devaki Shedthi (defendant 1) and Narayana Shetty, the four children of kaveri Shedthi, Krishna Shettv, Muddu Shetty and Mahabala Shetty the three children of Kollu Shedthi and by Devaki Shedthi (defendant 1) as guardian of her children Raghava Shetty, Sharada Shedthi and Duggamma alias Varija (defendants 2 to 4 ). Defendants 5 to 8 were not born on the date of Ext. P1. It is not disputed that on the date of the suit the only persons who were entitled to an interest in the kutumba properties are the parties to the suit. ( 6 ) UNDER Ext P1 the properties which belonged to the family on the date of Ext. P1 were allotted amongst the kavarus of Kaveri Shedhi and kellu Shedthi. Some properties were allowed to remain in the possession of Subbiah Shetty who was the Yajaman of the family. It was stated that the properties were so allotted for being enjoyed by the allottees. It was stated that the arrangement contained in Ext. P1 was a maintenance arrangement. P1 were allotted amongst the kavarus of Kaveri Shedhi and kellu Shedthi. Some properties were allowed to remain in the possession of Subbiah Shetty who was the Yajaman of the family. It was stated that the properties were so allotted for being enjoyed by the allottees. It was stated that the arrangement contained in Ext. P1 was a maintenance arrangement. It is unnecessary to refer to all the recitals in Ext. P1 for the purpose of this case except the following : (1) It was stipulated that all the properties should be made out in the name of Subbiah Shetty in the revenue records after the date of Ext. P1 and that he alone should pay the assessment in respect of them: (2) Subbiah Shetty was charged with the responsibility of discharging a debt which was due by the family to a mortgagee and if necessary he could mortgage the property afresh for a period of not more than two years in order to discharge the said mortgage debt; (3) None of the members of the family was entitled to alienate the properties or to borrow any loan for and on behalf of the family; (4) It was stipulated that if any of the members of the family belonging to a kavaru of Kaveri Shedthi or of Kollu Shedthi either alienated the properties voluntarily or allowed the properties to be sold in Court or revenue proceedings, it was open to the Yajaman of the family at that point of time to challenge the said alienation or sale and to recover the properties alienated or sold; (5) In so far as the members belonging to the Kavaru of Kollu Shedthi are concerned, it was provided that they should remain with Subbiah shetty and enjoy the properties allotted to them. If for any reason they found it inconvenient to continue to enjoy the properties allotted to them along with Subbiah Shetty, it was open to them to stay away from Subbiah shetty and enjoy certain specific properties independently. If for any reason they found it inconvenient to continue to enjoy the properties allotted to them along with Subbiah Shetty, it was open to them to stay away from Subbiah shetty and enjoy certain specific properties independently. It was, however, stipulated that after the death of Kollu Shedthi and her children, the properties taken over by them for enjoyment as stated above should revert to the manager of the family who was alive at the time of the death of the last of them, and (6) After the death of Subbiah Shetty, the khata of the properties in belle Village should be made out in the name of the seniormost member in the kavaru of Kollu Shedthi and the remaining properties of the family should be transferred to the names of two persons belonging to the kavaru of Kaveri Shedthi. It is not clear from Ext. P1 whether any properties were allotted to Subbiah shetty at all to be enjoyed by him peparately and absolutely. ( 7 ) THE law governing the question whether a document executed by the members of an ajiyasanthana family amounts to a partition or a mere arrangement to enjoy the kutumba property until a partition takes place has been explained by the Supreme Court in Gummanna Shetty v. Nagaveniamma, AIR. 1967 9c. 1595. The Supreme Court has observed in the above decision as follows :"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. "it was further observed that where the terms did not declare that there was a complete disruption of the family and if the object of the deed was to prevent disputes and wastage of properties and to preserve the dignity of the family and with that object in view the members entered into an arrangement, the said arrangement could not be construed as a partition. In the instant case, the fact that there was a recital that the khata of the properties should stand in the name of one of the members of the family even after the document came into existence, the fact that there was a provision for an Yajaman of the entire family even after the deed came into existence, the fact that there were restrictions on the power of alienation of the members to whom certain properties were allotted and the fact that there wsa a provision for removal of Subbiah Shetty from the position of a manager in the event of his committing any default and appointing another if necessary, show that the parties did not intend that there should be disruption of the family on the execution of Ext. P1. These features, according to us, militate against the contentions of the contesting defendants that there was a partition amongst the members of the family in accordance with the customary law by which they were governed. In our opinion, the document is in the nature of a maintenance arrangement only and it did not bring about the disruption of the family under the customary law. ( 8 ) THE alternative submission made on behalf of the contesting defendants is that even though Ext. P1 did not amount to a partition under the customary law, the transaction covered by Ext. P1 should be deemed to be a partition by virtue of sub-sec. (6) of S. 36 of the Act. As explained by the Supreme Court in the case cited above, the four conditions that have to be established in order to attract Section 36 (6) are the following: (1) There is a registered family settlement or award; (2) All the major members of the kutumba are parties to it ; (3) The whole of the kutumba properties have been or were intended or purported to have been distributed under it; and (4) The distribution is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. ( 9 ) SUB-SC. (6) of S. 36 is a 'deeming' provision. It is well settled that such provisions should receive a strict interpretation at the hands of the court. The burden of showing that a transaction is covered by sub-sec. ( 9 ) SUB-SC. (6) of S. 36 is a 'deeming' provision. It is well settled that such provisions should receive a strict interpretation at the hands of the court. The burden of showing that a transaction is covered by sub-sec. (6) of S. 36 is on the person who asserts that the transaction amounts to a 'deemed' partition within the meaning of the said provision. It is seen from the recitals of the document Ext. P1 that in so far as one of the persons who constituted a nissanthathi kavaru, that is, Subbiah Shetty is concerned, there is no specific allotment of property in his favour to be enjoyed by him separately, absolutely and in perpetuity. Secondly, restrictions have been imposed on the power of alienation of persons in whose favour some of the family properties have been allotted. In Abbakke shedthi v. Lingamma Shedthi, 1959 Mys. L. J. 972, a Division Bench of this Court held that where there was an allotment of properties absolutely in favour of all the kavarus to be enjoyed by them absolutely, separately and in perpetuity, such transaction could not be deemed to be a partition under Sec. 36 (6 ). While expressing the said opinion, this Court did not approve of the decision of the Madras High Court in Kaveri v. Ganga Ratna, (1956) 1 Mad. L. J. 98. In Subakke shedlhi v. Ramanna Shetty, (1966) 1 Mys. L. J. 52, another Division Bench of this Court held that where under the terms of the karar none of the kavarus to which the properties were allotted was entitled to alienate or transfer family properties or to raise any loan on the security or pledge of the kutumba properties allotted to them it could not be held that the parties to the transaction intended to allot the properties in favour of several kavarus for being enjoyed by them separately, absolutely and in perpetuity. In that view, this court held that, to such a transaction S. 36 (6)of the Act was not attracted. We are in respectful agreement with the views expressed by the two Division benches in the above cases. In that view, this court held that, to such a transaction S. 36 (6)of the Act was not attracted. We are in respectful agreement with the views expressed by the two Division benches in the above cases. Hence, in view of the fact that Subbiah shetty who was a nissanthathi kavaru has not been allotted any property to be enjoyed by him as required by S. 36 (6)and that there were restrictions on the power of alienation of the persons in whose favour certain properties have been allotted under Ext. P1, we hold that the fourth condition referred to in the decision of the Supreme Court is not satisfied in this case. We, therefore, hold that the transaction covered by Ext. P1 cannot be treated as a 'deemed' partition within the meaning of S. 36 (6) of the Act. ( 10 ) IT follows that there has not been a division amongst the members of the family prior to" the date of the suit. The plaintiffs are therefore, entitled to a decree for partition. ( 11 ) IN the result, the preliminary decree passed by the Court below is confirmed and this appeal is dismissed with costs. Advocate's fee one set. --- *** --- .