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SUPREME COURT OF INDIA
P. JAGANMOHAN REDDY AND S.N. DWIVEDI, JJ.
Jalaja Shedthi and others, Appellants
Versus
Lakshmi Shedthi and others, Respondents.
Civil Appeal No; 1258 of 1967, D/- 20-9-1973
Hindu Succession Act, XXX of 1956 - Section 7 (2), 8, 10, 15 and 23 - Aliyasanthana Act, 1949 - Section 39, 3 (b) (i), (ii), (c), (f), 35, 36 (1), (2) (h), 7, 17 and 30 - Indian Succession Act, 1925 - Property - Partition - Separate Possession of Properties - Whether their rights are to be determined in accordance with that Law or under Succession Act - Whether a partition had been effected, whether his will is effective in respect of his share, whether he had a life interest in properties, and whether under provisions of Succession Act that interest had been enlarged into an absolute interest which could be bequeathed by a will - Whether at same or at a subsequent partition, become nissanthathi kavarus - Whether property is divided by metes and bounds - Whether or not a partition takes place, and if so when - Whether there has been a partition in family or whether family is still undivided for purposes of Section 7 (2) of Succession Act - Whether on Chandayya Shetty s death, he had an undivided interest which he could dispose of by will and if he had a life interest - Whether it had been enlarged into an absolute interest - Whether he or she was entitled to claim such partition or not under aliyasantana law – Held, On date of death, first defendant was not a member of his kutumba or kavaru - As noticed earlier, he was already divided from family - Further, his will did not relate to his interest in kutumba or kavaru property - Will purported to bequeath property obtained by him as his share as per preliminary decree - Learned Advocate for appellants, however, has tried to distinguish this case on ground that effect of S. 17 of Succession Act was not considered in that case - In Court view, that question was not relevant either in that case or in this case, because Section 17 of Succession Act applies provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by Marumakkattayam Law or Aliyasantana Law if Succession Act had not been passed with modifications provided therein - There is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy - Even argument that under S. 7 (2) Chandayya Shetty s life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in same position as a female limited owner under Hindu Law, Succession Act while enlarging right of latter under S. 14 into an absolute interest did not specifically provide for enlarging of right of former - In absence of any such specific provision Court can only hold that Chandayya Shetty s interest enured till his lifetime only - Appeal dismissed.
Judgment
JAGANMOHAN REDDY, J.:- The appellants who were the plaintiffs filed a suit against the respondents the defendants for partition, separate possession of their 7/20th share of suit properties and for mesne profits. The Trial Court decreed the suit, but the High Court dismissed it. This appeal is by special leave against that judgment.
2. Prior to the Hindu Succession Act, XXX of 1956 (hereinafter referred to as the Succession Act ) the parties were governed by the Aliyasantana Law and the question before us is whether their rights are to be determined in accordance with that Law or under the Succession Act. It is not disputed that Chandayya Shetty, who died on February 13, 1957 after coming into force of the Succession Act, and the first respondent are brother and sister respectively. The first appellant is the widow and appellants 2 to 6 are the sons of Chandayya Shetty, while respondents 2 to 4 are the sons of the first respondent.
In order to appreciate the contentions urged before us, it would be necessary to first set out certain underlying concepts of the Aliyasantana customary law, the changes made by the Aliyasanthana Act (Madras Act IX of 1949) hereinafter referred to as the Madras Act" and the relevant provisions of the Succession Act. The Aliyasantana Law is a part of the customary law that governed certain communities on the West Coast of South India. The basic principle underlying the joint family composition, otherwise known as kutumba or tarwad, under the customary law known by two different names, namely, marumakkattayam and aliyasantana is the matriarchal system, in which the devolution is through females. The meaning of the two words by which the systems are known literally connotes inheritance in the line of nephews or sisters sons. Apart from a few differences in these two systems, it may be noticed that while the marumakkattayam system was applicable to all castes, the aliyasantana system is not followed by the Brahmins (See P. R. Sundra Iyer s Malabar and Aliyasantana Law, 1922 Edn. 247). It is chiefly followed by the Bunts the Bilwa caste and the non-priestly class among the Jains (See Mayne s Hindu Law. 1950. 11th Edn. 971.) A kutumba under the Aliyasantana customary law was a family corporation: every member born in it has equal rights in the property owned by it. On the death of any member of the kutumba his or her interest in the kutumba property devolved on the other members of the kutumba by survivorship. The limited estate of Hindu female familiar to the Mitakashara Law was unknown to this system, for under it every male and female member had equal rights in the kutumba property. Under this law, though partition could not be enforced at the instance of one or more members and the members of the kutumba would be entitled to maintenance, it could be effected at the instance of all the adult members thereof. It may, however, be noticed that since the basis of the system was matriarchal, the children of the female members alone were the coparceners in the kutumba, but not the wife and the children of the male members. This customary law as applicable in certain areas of the Madras Province and in the erstwhile princely States of Travancore and Cochin was modified by the laws enacted by the respective legislatures. In this case we are concerned with the Madras Act which defined and amended in certain respects the laws relating to marriage, guardianship, maintenance, intestate succession and partition applicable to persons governed by that customary law. In respect of matters which this Act did not affect, the prevailing customary law was saved by Section 39 of the Madras Act which provided :
"Nothing contained in this Act shall be deemed to affect any rule of Aliyasantana Law, custom or usage, except to the extent expressly laid down in this Act "
The Madras Act conferred a right to partition properties and the mode of ascertainment of shares on partition. These provisions are dealt with in Ch
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