Requirement of necessary prerequisites for applicability of section 30(6) of the Act.

Govinda Menon, J.-Defendants 1, 5, 6 and 7 are the appellants in this appeal which is directed against the preliminary decree of the Court of the Subordinate Judge of South Kanara in O.S. No. 152 of 1950, by which partition of the plaint schedule properties into 75, 74, 112 shares and the allotment of the number of shares mentioned in pagagraph 12 of the judgment to the various groups therein, were directed. Defendants 1 and 5 to 7 are entitled thereunder to get 471, 172 shares out of the total number of shares aforesaid whereas the plaintiffs get 7,24,880 shares out of the aforesaid shares.

At the very outset one has to marvel at the phenomenally large number of shares into which the properties are to be divided and the allotment of the various shares to the respective sharers. It is stated that this state of things is the necessary result of the working of the Madras Aliyasantana Act, 1949 (Madras Act IX of 1949) by which the division of the properties is to be in a very complicated manner. It would require the skill of statisticians and mathematicians to work out the figures properly and in our opinion it is high time that the legislature intervenes to prevent this intriguing situation.

There is a geneological tree attached to the plaint about the correctness of which there is no dispute whatever. The plaintiffs form a kavaru as contemplated under the Aliyasantana Act and are entitled to partition and recovery of possession of their share in the properties of the kutumba if the provisions of the Act are applicable. The main contest in the case is at the instance of defendants 1 to 7 and 11 to 16 as well as the 17th defendant who pleaded that under Exhibit B-1, dated 15th April, 1944, there has been division of the family properties and allotment of the respective shares to the various branches with the result that no fresh partition is available. It is argued that even if under Exhibit B-1 there was no division effected still under section 36, sub-clause 6 of the Madras Aliyasantana Act, Exhibit B-1 has statutorily become a partition deed and the plaintiff’s suit is liable to be dismissed.

In the learned Subordinate Judge’s opinion, the contention that Exhibit B-1 is an instrument of partition deserves to be unceremoniously brushed aside as under that document it is declared in more than one place that the distribution of properties was brought about not to effect division in status in the family but only for the convenience of enjoyment of the various properties. In another place in the document it is stated that it was not to be construed as an instrument of partition. For these and other reasons the lower Court negatived the defendants’ plea that under Exhibit B-1 there had been a partition not only in status but by actual metes and bounds.

For a variety of reasons which were set out in extenso in Exhibit B-1, learned counsel for the appellants wants the Court to hold that on a reading of the document itself it would amount to an out and out partition even though the document is styled only as Taha Karar or family agreement and we are asked to say that the present suit is not maintainable. We have, therefore, to find out what the background is for a document of this kind to have come into existence.

It is stated in the preamble that there were family disputes as a result of which misunderstandings arose between the members of the family. O.S. No. 81 of 1936 on the file of the Subordinate Judge’s Court, South Kanara, had been filed against the yajamanthi and certain properties were put into the possession of a receiver for the purpose of discharging that decree debt. O.S. No. 5 of 1938 had been filed by some other members and it also resulted in the appointment of a receiver to take possession of the properties in dispute. Other suits, namely, O.S. Nos. 113 of 1943 and 93 of 1943 came to be filed between the various members of the family. On account of these disputes and litigations between the various members of the family, r

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