Judgment

HEGDE, J.:- This is an appeal by special leave Defendants 34 and 35 in the suit are the appellants. The suit from which this appeal arises is a suit for partition under the Madras Aliyasantana Act, 1949 (Madras Act IX of 1949) (which will hereinafter be referred to as the Act).

2. The two questions that arise for decision in this appeal are: (1) whether under the award decree Exh. A-2, the kutumba (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.

3. The plaintiffs and the defendants were governed by the aliyasantana law of inheritance. It is a matriarchal system of law. One Pammadi was the propositus of the family. She had two daughters by name Pammakke and Dejappe and three sons viz. Kanthu Hegde, Monu Hegde and Manjappa Hegde. After the death of Pammadi differences arose in the family. Hence all the major members of the family excepting one Brahamiah referred those disputes to the arbitration of four arbitrators by means of a mutchallika dated December 14, 1886. By the time this mutchallika was executed two of the sons of Pammadi, Kanthu Hegde and Monu Hegde had died. At that time, in the Kutumba there were only two santhathi kavaru viz. Pammakke and Dejappe and one nissanthathi kavaru namely Manjappa Hegde in existence (reference to santhathi kavaru and nissanthathi kavaru is as defined in the Act). The arbitrators divided the kutumba properties into two parts: one part was allotted to the share of Pammakkes Kavaru and the other part to Dejappes Kavaru and Manjappa Hegde. Manjappa Hegde was clubbed along with the kavaru of Dejappe (reference to kavaru is as defined in the Act). On June 14, 1953, all the members of the kavaru of Pammakke brought a suit for partition of the suit properties under S.35 of the Act. The appellants and some other members of the kavaru of Dejappe resisted the suit mainly on the ground that the kutumba had been partitioned under Ex.A-2. They contended that the said document either evidences a partition or at any rate the arrangement made thereunder is a deemed partition coming within the scope of S.36 (6) of the Act. The trial court came to the conclusion that under the Award in question the kutumba properties were partitioned. Alternatively it held that Ex.A-2 is covered by Section 36 (6). In appeal a Division Bench of the High Court of Mysore reversed the judgment and decree of the trial court. It held that Ex.A-2 does not evidence a partition. It further came to the conclusion that the same is not covered by S.36 (6) as Ex. A-2 was an award decree and not a mere award. Dissatisfied with the judgment of the High Court, a defendants 34 and 35 have brought this appeal.

4. The findings of the High Court as regards the true nature of Ex.A-2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt. Before proceeding to consider the contentions of the parties, it is necessary to refer, in brief, to the customary aliyasantana law. Under that law inheritance is traced through the female line. Under that law, as interpreted by courts partition was impermissible except with the consent of all the adult members of the family. The senior most member of the family be it a male or a female was a Yejman or Yejmanthi of the family. With the passage of time, the members of the aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable. In order to mitigate these difficulties three types of arrangements came to be made in those kutumbas. By and large the Yejman or Yejmanthi of the family made maintenance allotments ( maintenance under the aliyasantana is a mode of participation in the family properties). This type of arrangement was purely temporary in character. It was open to the Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements