JUDGMENT

P. S. KAILASAM, J.—This appeal is by special leave granted by this Court against the judgment and order of the High Court of Mysore in C.R.P. No. 931 of 1967 allowing a revision against the order passed by the Civil Judge, Mangalore, in R. I. A. No. 2266 of 1966 in O. S. No. 91 of 1950.

2. The facts of the case may be briefly stated. The parties to his litigation are governed by the Allyasanthana law prevalent in the district of South Kanara. They were members of a Kutumba descended from a common ancestress by name Manjekee. One Parameshwari and her son and daughter instituted Original Suit No. 91 of 1950 before the Court of the subordinate Judge at South Kanara for partition of properties in accordance with the provisions of the Madras Aliyasanthana Act, 1949, (Madras Act IX of 1949). The suit was dismissed by the trial Court upholding the defence raised that a certain award decree made in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, amounted to a partition within the meaning of sub-section (6) of Section 36 of the Madras Aliyasanthana Act, and therefore another suit for partition was not maintainable. Though the trial Court dismissed the suit holding that the suit for partition was not sustainable it proceeded to record findings determining the shares to which the members of several branches are entitled in the event of there being a decree for petition.

3. On appeal by the plaintiffs the High Court of Karnataka reversed the decision of the subordinate Judge and held that the award decree in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, did not amount to a partition and that the suit for partition was maintainable. The High Court passed a preliminary decree on 28th June, 1961 and remanded the suit for further proceedings. The Advocates on both sides agreed regarding the shares on the parties and the Court directed a preliminary decree for partition and specified the shares as found by the trial Court in Paragraph 17 of its judgment. The shares were determined on a joint memo filed by the parties on 25th September, 1963. The shares allotted to defendants 22 to 24 were 85,176 out of a total of 6,15,264 shares.

4. Defendants 22, 23 and 24 are all male members of the Kutumba and are nissanthathikavaru. The 24th Defendant died before the preliminary decree was passed on 10th June, 1957 and his wife and children were brought on record as legal representatives. The 23rd Defendant died on 9th March, 1962, after the passing of the preliminary decree. His wife and children were brought on record as legal representatives. During the final decree proceedings the legal representatives of the 24th respondents filed R. I. A. No. 2259 of 1966 and the representatives of the 23rd defendant filed R. I. A. No. 2266 of 1966 claiming that out of the share allotted to the Kavaru of defendants 22 to 24, one-third representing the share or interest of the 24th and the 23rd defendants be allotted to them. This petition was opposed on the ground that each one of the defendants 22, 23 and 24 was a separate nissanthathikavaru and on the death of each of the defendants 24 and 23 his share or interest devolved upon the Santhathi Kavarus nearest to him to which defendants 11, 12 and 16 belonged. The plea of the 22nd defendant was that all the three defendants 22, 23 and 24 constituted one single nissanthathi-kavaru to which, under the preliminary decree one single or joint share was allotted, and therefore the said share survived to the last surviving member thereof (22nd defendant), and that no devolution on a Santhathi Kavaru under sub-section (5) of Section 36 is possible until the last member of the nissanthathi kavaru, viz., the 22nd defendant, dies.

5. The trial court found that in the High Court decree dated 20-6-1961 defendants 22 to 24 were allotted shares jointly. It rejected the contentions of both the applicants i.e. the legal representatives of defendants 23 and 24 as well a