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Kerala High Court · body

2011 DIGILAW 910 (KER)

Shankara Rai v. Thimmanna Rai

2011-08-17

P.BHAVADASAN

body2011
Judgment : 1. The short question that arises for consideration in this appeal is whether Ext.B4 evidences partition or is it merely a maintenance arrangement. The lower court held that it amounts to partition and disruption of the family and dismissed the suit. Aggrieved by the said decree, the plaintiff has come up in appeal. 2. The suit was one for partition. Plaintiff and defendants 1 to 16 belong to an undivided Aliyasanthana family. The plaintiff claimed 1/7 share in plaint B and C schedule properties. Pointing out that he did not wish to continue the joint status the suit was laid. 3. Defendants 4 and 5 resisted the suit. They pointed out that by Ext.B4 document dated 27.2.1940 there had already been a partition in the family and properties were allotted to various sharers. Details of the devolution of the property have been narrated in the written statement, which is not very relevant for the present purpose. Suffice it to say, they prayed for a dismissal of the suit. 4. The other defendants have also filed separate written statements, most of them claiming their separate share and supporting the plaintiff. 5. On the above pleadings issues were raised by the trial court. The evidence consists of the documents marked as Exts.A1 to A4 from the side of the plaintiff. The contesting defendants examined D.W.1 and had Exts.B1 to B4 marked. The trial court applying Section 36(6) of the Madras Aliyasanthanam Act, 1949 came to the conclusion that Ext.B4 evidences partition in the family and therefore the suit is not maintainable. Having so found, it did not go into the other issues that arose in the case and dismissed the suit. 6. The only question that arises for consideration, as already mentioned, is whether the finding of the trial court is justified. 7. It may be noticed that the parties are governed by Aliyasanthanam Law. Before going into the merits of the case, it will be useful to understand what are the attributes of Aliyasanthanam Law. 8. Aliyasanthanam Law resembles to a great extent the Marumakkathayam law and the common element in both the systems is that the inheritance under which the property descends is in the line of females. P.R.Sundara Aiyar in his book Malabar and Aliyasanthana Law mentions that Aliyasanthanam Law is the exact Canarese equivalent to the term Marumakkathayam. 8. Aliyasanthanam Law resembles to a great extent the Marumakkathayam law and the common element in both the systems is that the inheritance under which the property descends is in the line of females. P.R.Sundara Aiyar in his book Malabar and Aliyasanthana Law mentions that Aliyasanthanam Law is the exact Canarese equivalent to the term Marumakkathayam. Aliyasanthana system of law is mostly followed by non-Bhrahmin communities in Tulunada or otherwise known as Canara and mostly speak Tulu. The word corresponding to Marumagan in Tulu is Marumaya. It is believed that the rules of Aliyasanthana Law has its origin in Canarese pamphlet known as Bhutala Pandya's Kattu Kattalai. In fact the Bunts, the Billawas and the non-Priestly class among the Jainas in Kanara are governed by this system. 9. Like in the case of Marumakkathayam Law, Aliyasanthana is a system of inheritance through female line which gives property right to the lady and the rights are centralized around her. So also in Aliyasanthana system more importance is given to the mother's side of the family. It would appear that more respect is given to maternal uncles than to paternal uncles. In this system of law the eldest member is known as Ejaman and the eldest female member is known as Ejamanthi. The senior-most member, whether male or female, is entitled to carry on the family management. No member of the tarwad had a right to claim partition or separate possession of his share without the concurrence of other members. Just as statutory intervention in the Marumakkathayam law brought about some healthy changes in the Marumakkathayam law, the same happened in the case of Aliyasanthanam law also with the coming into force of the Madras Aliyasanthanam Act of 1949. A member was given a right to separate himself or herself from the joint family and claim partition. The ascertainment of share at the time of partition is per capita and not per stripes. The vital difference between Aliyasanthana system and Marumakkatayam law is that while in Aliyasanthana system the senior most member, whether male or female is entitled to carry on family arrangement, in Marumakkattayam system the senior most male member has the right and power to carry on the family management and in the absence of male adult members, the senior most female member has the power to carry on family management. Moreover, as per the precedents, the self acquired property of a female member in Marumakkattayam system descended to her tavazhi. In the case of male member, if the property has not been disposed during his life time, it lapses to the tarwad. However, in the Aliyasanthana system there is no distinction as to the devolution of property of a male or female member. The self acquired property of a member goes to the nearest branch. 10. The two words by which Marumakkathayam and Aliyasanthanam law are known to literally mean inheritance through the nephews or sister's sons. A kutumbam under the Aliyasanthanam customary law was a family corpus. Any person born into the family had equal rights to the property owned by it. On the death of a member of the kutumba, his rights in the kutumba property devolved on the other members of the kutumba survived by him. The limited estate of Hindu female, which is similar in the Mithakshashara law was unknown to Aliyasanthanam system. In the Aliyasanthanam system every male and female member had an equal right in the kutumba property. In Aliyasanthanam law partition could be effected only at the instance of all the adult members of the family. It may be noticed that since the basis of the system is matriarchal, the children of the female members alone were co-parcenaries in the kutumba and the wife and children of the male members were not co-parcenaries in the Kutumba. 11. Aliyasanthana system of practice to a great extent came to be regulated by Madras Aliyasanthana Act, 1949. However in matters not covered by the Act, the prevailing customary law continued to be in force. The Madras Aliyasanthana Act, 1949, hereinafter referred to as Act IX of 1949 provided for marriage, maintenance, guardianship intestate succession, family management of the Kudumba and partition. 12. It will be only appropriate at this stage to refer to certain definitions in Act IX of 1949. The unit in Aliyasanahtana law are Kutumba, Kavaru and Nissanthathi Kavaru and Santhathi Kavaru. These are defined as follows: "3(a). "Aliyasanthana" means the system of inheritance in which descent is traced through the female line but does not include the system of inheritance known as the Marumakkattayam. 3(b) (i). The unit in Aliyasanahtana law are Kutumba, Kavaru and Nissanthathi Kavaru and Santhathi Kavaru. These are defined as follows: "3(a). "Aliyasanthana" means the system of inheritance in which descent is traced through the female line but does not include the system of inheritance known as the Marumakkattayam. 3(b) (i). "Kavaru", 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; 3(b) (ii). "Kavaru" used in relation to a male, means the Kavaru of the mother of that male; 3(c). "Kutumba" means the group of persons forming a joint family with community of property governed by the Aliyasantana Law of inheritance. 3(f). "nissanthathi kavaru" means a kavaru which is not a santhathi kavaru. 3(h). "santhathi kavaru" means a kavaru of which at least one member is a female who has not completed the age of fifty years." On going through the definitions, it is clear that the presence of one female in the kavaru will have the effect of a continuing kavaru and the absence of a female would amount to absence of progeny. Nissanthathi kavaru is liable to the extinction of the branch. It appears that since partition was not easy before the commencement of Act IX of 1949, the members of the family used to enter into family arrangement or maintenance arrangement. As a result of the large number of members in the kutumba, it became difficult to manage the same and that led to execution of certain type of documents whereby separate properties were given to persons and those persons were empowered to be in possession thereof and enjoy the same. Those arrangements were either family arrangement or maintenance arrangement. Those arrangements would be temporary or permanent. The arrangement may or may not amount to the disruption of the kutumba or tarwad. This is how the family functioned before the commencement of the Act. 13. In the case on hand, we get a genealogy scheduled to the plaint . Ext.B4 is the relevant document. If as a matter of fact as found by the trial court Ext.B4 is to be construed as an out and out partition bringing about disruption of the family, then the appeal has necessarily to fail. 13. In the case on hand, we get a genealogy scheduled to the plaint . Ext.B4 is the relevant document. If as a matter of fact as found by the trial court Ext.B4 is to be construed as an out and out partition bringing about disruption of the family, then the appeal has necessarily to fail. If on the other hand it is found that it is only a maintenance arrangement, then necessarily the appeal will have to be allowed and the matter will have to be remanded to the consideration of other issues that have been raised in the suit. 14. Section 35 of the Act provides for partition. It provided that any kavaru represented by the majority of its members may claim to take its share of all properties of the Kutumba. What is relevant in the present context is Section 36(6). Before going into that provision, it may be noticed that the other provisions in Section 36 deal with the allocation of shares when a partition is sought to be effected under section 35 of the Act. A reading of the other provisions would indicate that the claim is to be made on per capatia basis and not per stirpes. We are not much concerned with the shares that may be available to each of the parties. But we are more concerned with the nature of the document namely, Ext.B4 as already stated. In order to resolve the controversy involved in this appeal it is necessary to look into Section 36(6), which, the lower court, found was applicable in the facts of the case. The said provision reads as follows: "36(6). A registered family settlement (by whatever name called) or an award to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award." 15. The decision reported in Kaveri v. Ganga Ratna (1956 (1) M.L.J. 98) is considered to be an authority for the proposition as to the necessary requirements that have to be established in order to attract Section 36(6) of the Madras Aliyasanthana Act. They are as follows: "1. The decision reported in Kaveri v. Ganga Ratna (1956 (1) M.L.J. 98) is considered to be an authority for the proposition as to the necessary requirements that have to be established in order to attract Section 36(6) of the Madras Aliyasanthana Act. 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. If these conditions are satisfied, notwithstanding any other terms to the contrary in such a settlement or award the same should be deemed to have effected partition on the date of its execution. Where a family settlement thus statutorily amounts to an instrument of partition, a suit for general partition of the family properties cannot be maintained." 16. One may now have a look at Ext.B4, which is the document in dispute. Admittedly all the major members are parties to the document. A reading of the document shows that executants 2, 5 and 7 among the parties to Ext.B4 had filed a suit for recovery of maintenance against executants 1, 3, 4 and 6 as O.S.41 of 1937. That suit was decreed in favour of the plaintiffs. Defendants had filed A.S. 553 of 1939 before the District Judge, Mangalore. The parties thought it fit that during the pendency of the appeal in order to avoid further disputes, it is better to enter into a compromise. It is stated as follows: "... whereas the disputes between us are compromised in the presence of mediators and for the purposes of maintenance we have divided the joint family properties for the purpose of enjoyment into 2 schedules as schedule A and B described below and the properties described in Schedule A is put in the possession of the plaintiffs in the suit, i.e. executant Nos. 2, 5 and 7 among us and the properties described in schedule B is put in the possession of No.1, 3 4 and 6 among us." 17. 2, 5 and 7 among us and the properties described in schedule B is put in the possession of No.1, 3 4 and 6 among us." 17. It is provided that that basic tax and cess in respect of the said properties shall be paid by the respective parties to the Government and the income of the respective properties shall be utilised by the respective parties for their maintenance. Certain provisions have been made for family viniyogas, the details of which are not very relevant in the present context. The next important provision is as follows: "The parties shall have no right to mortgage, alienate, gift, lease the properties and shall have no right to encumber and indemnify the property. If any one among us borrow amount, they alone shall be personally liable for the same and the family property or the income thereof shall not be charge for the same. The properties put in the possession of male members among us shall be enjoyed by them during their life time and after their death the properties shall vest with No.2 among us and her daughter Akku and to the children to be born to her. If no children are born to Akku the properties shall vest with the remaining members in the family. As the properties are put in possession of the respective parties for the purpose of past maintenance and towards the court costs also awarded in the suit, the plaintiffs shall have no right to seek recovery of the amount decreed in the suit. We have no right of entry over the property put in the possession of others. Apart from the right to reside in the house situated in the A schedule and which are permitted to be occupied by B sharers, they shall have no other right over the A schedule properties or the standing trees therein." It is also provided that "If they fail to pay the assessment and cause loss to the others, such loss shall be recovered from them on the charge of the crops in the properties put in their possession. They shall be liable to pay as such." 18. Learned counsel appearing for the appellants pointed out that a reading of the document, namely, Ext.B4 leaves one in no doubt that it is at best only a family arrangement for maintenance. They shall be liable to pay as such." 18. Learned counsel appearing for the appellants pointed out that a reading of the document, namely, Ext.B4 leaves one in no doubt that it is at best only a family arrangement for maintenance. The reason for entering into such a transaction is apparent from the document itself and the interest that is created under the document is limited as is clear from a reading of the document. It was nothing but an attempt to settle the disputes between the parties, for maintenance and the parties thought it fit to allot properties to the parties to the deed separately for their maintenance alone. Learned counsel pointed out that one cannot omit to note the restrictions placed regarding the dealing of the properties by the respective groups. Right of alienation, mortgage etc are prohibited and it is significant to notice that there is a recital that the properties allotted to the male members shall be kept by them during their lifetime and after their death the properties shall vest with No.2 among them and her daughter Akku and to the children to be born to her. Learned counsel also pointed out that the two groups consisting of executant Nos. 2, 5 and 7 on the one hand and executant Nos. 3, 4 and 6 on the other do not form natural kavarus. According to learned counsel, there can be no doubt regarding the fact that the document does not evidence disruption of the joint family status. But it is only a maintenance arrangement and cannot come within the ambit of Section 36(6) of the Act. Even assuming that the maintenance arrangement is a permanent one, it could not be said that the respective groups have absolute rights over the property and that there is a total disruption of the jointness of the kutumba. 19. Per contra, learned counsel appearing for the respondents pointed out that it is evident from a reading of Ext.B4 that the arrangement is absolute and permanent and the respective groups have absolute powers over the properties allotted to them. Learned counsel brought to the attention of this court that the fact that the document is of the year 1940 and the suit has been laid only in 1980. Learned counsel brought to the attention of this court that the fact that the document is of the year 1940 and the suit has been laid only in 1980. For 40 years the arrangement continued and it is unwise now to say that it was only a maintenance arrangement and not partition as provided for under Section 36(6) of the Act. 20. Documents similar to Ext.B4 have come up for consideration in a number of cases. The ingredients necessary to attract Section 36(6) of the Act have already been referred to. We may seek guidance for certain precedents to ascertain whether a particular document is to be construed as a maintenance arrangement or a family partition. 21. In the decision reported in Appa v. Kachai Bayyan Kutti (AIR 1932 Madras 688) it was held that it is not the name given by the parties to the document that is conclusive, but it is real nature and effect though the nomenclature is a circumstance to be taken into consideration along with the contents of the document. In the said decision it was held as follows: "The mere fact that a document is styled a "karar" and there are no provisions expressly conferring right of alienation by sale, etc., on the members of the two sets, between whom a partition was effected by the document, nor any express provision that in future there should be only community of blood relationship but no community of property between the two sets of members will not by itself prevent the document from taking effect as a partition deed. Non-mention of rights of alienation etc., in a document would not prevent the usual legal incidents from attaching to ownership of property in case it is found that ownership of such property passed to particular persons by virtue of the provisions of a document." The recitals in the document that came up for consideration in the said case is discernible from page 690 column 2. In the said case, the facts show that the document was styled as a karar, though it had all the ingredients of a partition deed. The trial court on going through the recitals in the document held that it is a partition. In the said case, the facts show that the document was styled as a karar, though it had all the ingredients of a partition deed. The trial court on going through the recitals in the document held that it is a partition. Construing the recitals it was held as follows: "The various circumstances mentioned by us in para.3 of this judgment indicate, in our opinion, that the arrangement was not by way of maintenance merely; there is the right of suit given to each "set" of people independently of the other; the value of the properties allotted to each set is the same, -the number of members in each set being also the same. On the death of No.1, the properties allotted for his maintenance was to be "partitioned and taken" by the two sets equally." It was also held as follows: "It goes without saying that non-mention of rights of alienation etc., in a document would not prevent the usual legal incidents from attaching to ownership of property in case it is found that ownership of such property passed to particular persons by virtue of the provisions of a document." 22. In the decision reported in Ammalu Amma v. Vasu Menon (AIR 1944 Madras 108) it was held that if on a reading of the entire document there are clauses which are entirely inconsistent with an out and out partition, the courts are bound to construe the document as a maintenance arrangement even though it may be a permanent arrangement. In the said case also it was held that the document must be read and construed as a whole and that the courts must have regard to the declared object of the document which is often contained in the preamble. One needs to ascertain whether the arrangement was brought for separate maintenance of the members or to bring about a complete division of the family. It is observed as follows: "A few principles have been down by all the decisions and they may be referred to. The first is that the whole document must be read and construed. The courts must have regard to the declared object of the document which is often contained in the preamble whether the arrangement was brought about to ensure the maintenance of the members or to bring about a division. The first is that the whole document must be read and construed. The courts must have regard to the declared object of the document which is often contained in the preamble whether the arrangement was brought about to ensure the maintenance of the members or to bring about a division. Ordinarily, maintenance arrangements are revokable and are not, except in some extraordinary cases, permanent. "Arrangements for maintenance will not ordinarily be viewed as permanent arrangements, though it is not impossible there should be such arrangement. Divisions for enjoyment short of partition that are sometimes entered into are of this character."" The terms of the deed which came up for consideration in the said case are seen extracted in column 2 in page 109. On an evaluation of the terms of the document, it was held in the said case that the document under scrutiny was only a deed for maintenance and not a partition deed. 23. The next case in which a similar issue was considered is the decision reported in Kaveri's case (supra). The principles laid down in the above decision have already been referred to. One fact that needs to be noticed in the above decision is that, it held that one has to presumably look at the document in question. The decision also emphasized the need to consider the passage of time between the execution of the document and a claim agitated subsequently. It also refers to the need to look at the conduct of the parties subsequent to the execution of the document. After referring to almost all the decisions on the point till then, and also the various literature on the subject, the decision went on to hold that the document involved in that case was an out and out partition and not a maintenance arrangement as contended. The relevant portion reads as follows: "What has happened as a result of Ext.B1 is that before the division of the properties among the kavarus of the kutumba certain items have been dedicated for the purpose of worship of the family deity and by such a dedication the family ceased to have uncontrolled powers of disposition over those items. The relevant portion reads as follows: "What has happened as a result of Ext.B1 is that before the division of the properties among the kavarus of the kutumba certain items have been dedicated for the purpose of worship of the family deity and by such a dedication the family ceased to have uncontrolled powers of disposition over those items. There is no prohibition if all the members of the kutumba or family were to dedicate a small fraction of the family properties for the religious worship of the family deity and if that is done such an arrangement cannot be disputed by anybody else. The result of such an arrangement would be that though the trust is a private one the properties so dedicated are taken out of the category of family properties and when once such a state of things come into existence the rest of the properties alone will remain as family properties. Viewed in the light that the trust properties have been separated from the family properties and the rest have been distributed among the various kavarus of the kutumba for their separate and absolute enjoyment there can be no difficulty in concluding that all the elements necessary for the application of Sub-section (6) of Section 36 of the Madras Aliyasanthana Act of 1949 are present in the instant case. I am, therefore, of the opinion that all the conditions laid down in Sub-section (6) of Section 36 have been complied with and that therefore Ext.B1 statutorily amounts to an instrument of partition and that being he case the suit by the plaintiffs for the partition of the family properties cannot be maintained." 24. The next decision which has relevance is the decision reported in Gummanna Shetty v. Nagaveniamma (AIR 1967 SC 1595). The issue considered there was an identical one. The decision refers to the requirements to attract Section 36(6) as laid down in Kaveri's case (supra). In paragraphs 2 and 3 of the judgment the contents of the document that came up for consideration are seen extracted. On a scrutiny of the terms of the document, it was held that it was only a family arrangement. The decision refers to the requirements to attract Section 36(6) as laid down in Kaveri's case (supra). In paragraphs 2 and 3 of the judgment the contents of the document that came up for consideration are seen extracted. On a scrutiny of the terms of the document, it was held that it was only a family arrangement. What is relevant is the observation which reads as follows: "....In case of a partition, a Kutumba governed by the Aliyasanthana law is usually split up according to natural kavarus but under this deed, the kutumba was split up into two artificial branches. The members of the two branches were restrained from incurring debts binding on the family properties and from alienating the properties or any portion thereof and granting any leases except in the ordinary course of management. In the said decision the principles laid down in Kaveri's case (supra) was provided in paragraph 7 of the judgment. 25. The next decision which needs consideration is the decision reported in Padmaraja v. Dhanavathi (AIR 1972 SC 2219) wherein again the question of application of Section 36(6) came up for consideration. The two questions that arose for decision are as follows: "The two questions that arise for decision in this appeal are: (1) whether under the award decree Ext.A2, the kuttumba (family) of the plaintiffs and the defendants stood partitioned and (2) if the answer to the first question is in the negative whether the said award decree comes within the scope of S.36(6) of the Act." The decision refers to the decision reported in Gummanna Shetty v. Nagaveniamma (AIR 1967 SC 1595) and also the principle laid down in the decision reported in Kaveri v. Ganga Ratna (1956 Madras LJ 98). The decision also refers to Ammalu Amma v. Vasu Menon (AIR 1944 Madras 108). In paragraph 9 of the judgment, the Apex court refers to the reasons for having entered into the deed which came up for consideration. Paragraph 10 refers to the various clauses in the deed and in paragraph 13 it is observed as follows: ".....It must be remembered the only decrees that could possibly have been included within the scope of S.36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the aliyasantana law. Paragraph 10 refers to the various clauses in the deed and in paragraph 13 it is observed as follows: ".....It must be remembered the only decrees that could possibly have been included within the scope of S.36(6) was award decrees. We have earlier noticed that compulsory partition was not permissible under the aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in Aliyasantana kutumbas. We canthink of no decree regulating the affairs of Kutumba which cannot be disturbed under the Act. we agree with those learned judges that the principle underlying S.36(6) that permanency should be available in a larger measure to an award decree. On the other hand if the view taken by those learned judges is correct, while S.36(6) provides permanency for some award, no such permanency is available to any award decree. Parties could enforce partition ignoring award decrees while they are bound by awards. This could hardly have been the intention of the legislature. ........One of the conditions that are necessary to be satisfied before a deed can be deemed to be a partition under Section 36(6) is that it must be shown that all the major members of the kutumba were parties to it. ..........A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to be a partition under S.36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient." 26. The application of Act IX of 1949 was considered in the decision reported in Jalaja v. Lakshmi (AIR 1973 SC 2658). The decision refers to the underlying concepts of Aliyasantanam customary law and changes brought out by Act IX of 1949. The decision also refers to the various definitions under the Act. It is seen that Sections 35 and 36 are extracted in the decision. It is observed that on a consideration of the provisions, it appears that any kavaru represented by majority of its members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal. It is seen that Sections 35 and 36 are extracted in the decision. It is observed that on a consideration of the provisions, it appears that any kavaru represented by majority of its members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal. It was observed that a kavaru may therefore takes its share and separate from the kutumba, provided that where a kavaru consists of only two persons, such a claim can be made by either of them but no kavaru can make such a claim during the lifetime of any common ancestress who is common to such kavaru and to any other kavaru of kavarus of the kutumba, who has not completed fifty years unless she has signified her consent in writing or two thirds of the major members of the kavaru have joined in making the claim for partition. The common ancestress can however on her own volition claim a partition. The share obtained by the kavaru on partition is taken within all the incidents of a kutumba property. The decision also refers to the decisions reported in Mahalinga Shetty v. Jalaja Shedthi ((1956) 2 Mad.L.J. 446) and Padmaraja v. Dhanawathi (AIR 1972 SC 2219). On the facts of the case it was held as follows: "As pointed out earlier there is neither a kutumba, nor can Chandayya Shetty be a kavaru. The two kavarus after the division in status, become only one kavaru, namely that of respondent. 1. Chandayya Shetty will not be a kavaru within the meaning of S.3 (b) of the Madras Act, because under S.3(b) (ii) there being no female line, it is only the mother of Chandayya Shetty who can be a kavaru but not Chandayya Shetty. In fact a male can never be a kavaru either under the customary law or under the Madras Act. When the succession Act refers to kavaru in relation to its undivided interest, it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition." 27. The issue was again considered in the decision reported in Sundari v. Laxmi (AIR 1980 SC 198). It is unnecessary to refer to the details. When the succession Act refers to kavaru in relation to its undivided interest, it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition." 27. The issue was again considered in the decision reported in Sundari v. Laxmi (AIR 1980 SC 198). It is unnecessary to refer to the details. The relevant observation for the present purpose is contained in paragraph 18 of the judgment, wherein it is observed as follows: "In the case of defendants 22, 23 and 24 who are males the kavaru would mean the kavaru of the mother of that male. The male by himself cannot be a kavaru under the definition. By virtue of the Explanation to Section 35(2) a male member of a Kutumba is deemed to be a kavaru for the purpose of Chapter VI, Chapter VI deals with partition of Kutumba. In this case the suit was filed by Parmeshwari and her two children for the partition and separate possession of their share of the kutumba property." 28. The following points emerge from the above decisions: i). The document involved has to be read as a whole. ii). The nomenclature given to the document is not decisive though maybe relevant. iii). The nature of the disposition made under the document has to be carefully scrutinized. iv). One has to keep in mind the state of affairs at the time of execution of the deed. v). The relevant provisions have to be construed to ascertain the true purport and nature of the document and the right which it seeks to convey. vi). Merely because there is a restrain on alienation, that by itself may not be a ground to hold that the deed is not one of partition. vii). The aspect to be ascertained is whether the document brings about the disruption of the status of the joint family. viii) The passage of time between execution of the document and bringing of the action is also a relevant factor. 29. Bearing the above principles in mind, one shall now construe the provisions of Ext.B4 which has already been extracted. It is nomenclatured as a maintenance arrangement. It was entered into as a result of a suit by executants 2, 5 and 7 against executants 1, 3, 4 and 6 which was decreed and an appeal was pending. 29. Bearing the above principles in mind, one shall now construe the provisions of Ext.B4 which has already been extracted. It is nomenclatured as a maintenance arrangement. It was entered into as a result of a suit by executants 2, 5 and 7 against executants 1, 3, 4 and 6 which was decreed and an appeal was pending. The document clearly states that the purpose of entering into the transaction was only for the purpose of maintenance. The income from the properties will be used only for maintenance and the document mentions that the parties will have no right to alienate, encumber or lease the properties nor shall they have the right to indemnify the property. It also provides that if any of the parties borrows any amount, he would be personally liable and the family property or the income thereof shall not be charged. Further, it is also stated that the male members may enjoy the property during their life time and after their death the property shall vest with No.2 among the parties and her daughter Akku and her children. Of course, the parties were given liberty to pay basic tax and cess in respect of the properties allotted to them. 30. It is difficult to construe the above document as one of partition in the light of the principles laid down in the various decisions referred to above. The document appears to be purely a maintenance arrangement and the various clauses referred to above would clearly show that the rights obtained by parties to Ext.B4 is considerably restricted and it could not be said that they have absolute rights over the properties so allotted to them. It is not possible to hold that in spite of the restrain on alienation, gift etc., the document could be construed as a deed of partition and it could be said that the restrain imposed could be ignored. There is nothing to indicate that there is a complete disruption of the jointness of the family and the persons who have been allotted with properties under Ext.B4 are to enjoy the respective shares allotted to them independently and with full incidents of ownership and possession. 31. Considerable reliance was placed on Ext.B2 document, which is the subsequent deed of arrangement made by some of the sharers under Ext.B4. It is an undated document. 31. Considerable reliance was placed on Ext.B2 document, which is the subsequent deed of arrangement made by some of the sharers under Ext.B4. It is an undated document. Moreover it is surprising to note that none of the executants to that document has been examined. The person examined to prove Ext.B2 is its scribe. One fails to understand what could be achieved by examining the scribe of the document. 32. There is absolutely no evidence to show that after the execution of Ext.B4 maintenance deed, there was a disruption of the family and the respective sharers enjoyed the properties allotted to them independently with full incidents of ownership. It is significant to notice that neither side adduced oral evidence in respect of the respective claims. But in the light of the fact that the property was a joint family property, it is for the defendants to show that there had been a partition. It has been noticed that Ext.B4 by itself is insufficient to come to the conclusion that there has been an disruption of the family. 33. Analysing the various clauses in Ext.B4, it is difficult to come to a conclusion that it satisfies the ingredients laid down in the decision reported in Kaveri's case (supra) as approved by the subsequent decisions of the Apex Court. The court below does not appear to have construed Ext.B4 in the proper perspective and the finding of the court below that the document falls within the ambit of Section 36(6) of Act IX of 1949 cannot be sustained. In the result, this appeal is allowed, the impugned judgment and decree are set aside and it is held that the plaint schedule properties are available for partition. Since the other issues have not been dealt with by the court below, it has become necessary to remand the matter for that purpose. While holding that the plaint schedule properties are available for partition, the matter is remanded to the trial court for decision on the other issues in the case in the light of the evidence already available and in the light of the evidence the parties may choose to adduce in the matter. The parties shall appear before the trial court on 27.9.2011. The trial court shall make every endeavour to dispose of the suit as expeditiously as possible at any rate within six months from the date of appearance of the parties. The parties shall appear before the trial court on 27.9.2011. The trial court shall make every endeavour to dispose of the suit as expeditiously as possible at any rate within six months from the date of appearance of the parties. It is made clear that the finding that the plaint schedule properties are available for partition is not open for reconsideration challenge. There will be no order as to costs in this appeal. Forward a copy of this judgment to the trial court forthwith.