Judgement

PALEKAR, J.:- These are appeals by the plaintiffs on a certificate granted by the High Court of Mysore which, in Regular Appeals Nos. 120 and 121 of 1956, modified the decree of the learned District Judge, Mysore in Original Suit No 4 of 1954. The suit was originally filed by one District Judge, Bangalore, on 29th March, 1948. It was then numbered as Original Suit No. 61 of 1947-48. Nagappa Setty died on 20th February, 1949. His heirs and legal representatives were brought on record any they prosecuted the suit and the appeals. For administrative reasons, the suit was transferred to the file of the District Judge, Mysore in 1954 and there it was renumbered as O. S. No. 4/1954. That Court only partially decree the plaintiff s claim. Aggrieved by that decree. both sides went in appeal to the High Court of Mysore. These appeals were R. A. Nos. 120 and 121 of 1956. A Division Bench of the High Court heard these appeals together and, by a common judgment, modified the decree of the trial Court by its judgment and decree dated 9th July, 1962. The plaintiffs filed two applications for the grant of the certificate under Art. 133 of the Constitution. Since two certificates were granted, we have two appeals before us, but both of them are by the plaintiffs.

2. As already stated, the suit, out of which these appeals arose, and been filed by Nagappa Setty. His suit was for partition of the family properties. To start with, there were nine defendants to the suit, defendants 1-8being Nagappa s younger brothers and defendant No. 9 being their mother. On an objection raised by the defendants that necessary parties were not on record. The other defendants, who were members of the defendant s family, were joined as parties. The chief contest was between Nagappa Setty, on the one hand and defendants 1-9, on the other.

3. The plaintiff Nagappa Setty based his claim principally on the will dated 1st January 193e (Ext., AA) made by his father Lachiah Setty. He claimed that the properties in suit were, in accordance with the will, self-acquisitions of Lachiah Setty which he was entitled to dispose of at his sweet will and pleasure. Under that will, the plaintiff alleged. his father had given him a four-anna share in the family properties and, hence, he was entitled to the same; in the alternative, a claim was made that, if the suit properties were found to be joint family properties, the aforesaid will should be regarded as embodying a family arrangement and must be given effect to as such. The defendants challenged the document as being inoperative either as a valid will or a valid family arrangement. They claimed that the properties were ancestral joint family properties which Lachiah Setty was incapable of disposing of by will. There was no occasion also for a family arrangement and, hence, the will could not be regarded as a family arrangement.

4. Both the Courts held that the properties in suit were the ancestral joint family properties which could not be disposed of by Lachiah Setty by will . The Courts also hold that there was no family arrangement and, even if it were to be deemed to be a family arrangement, it was void, because one of the sons, Dasratha Setty, who is supposed to have accepted that arrangement by signing below the will, was a minor at the time. The learned district Judge, who tried the suit, therefore, held that the plaintiff Nagappa Setty was entitled to only a 1/9th share in the family properties. The High Court disagreed with the District Court on the question of Nagappa Setty s share. In its opinion ,the severance of the joint status had taken place on 30th March, 1940 when the sons referred their disputes to the Arbitrators under an Arbitration Agreement. Under the Mysore Hindu Law Women s Rights Act (Mysore Act No .X of 1933). The mother on a partition was entitled to 1/2 of the share of a son,. Since Nagappa Setty had predeceased the mother, his heirs were not entitled to share along with their uncles, the prese