SUNDARI AND ORS. v. LAXMI AND ORS (2)

Citation: [1980] 1 S.C.R. 404

Court: Supreme Court of India

Bench: A.C. GUPTA, P.S. KAILASAM

Case summary

Hindu Act' indicates it relates to the law of succession among ! The High Court allowed the appeals holding that the property descended according to the rules of intestate succession contained in the Hindu Succession Act.

Judgment text

SUNDARI AND ORS. v. LAXMI AND ORS. August 28, 1979 [A. C. GUPTA AND P. S. KAILASAM, JJ. ] Madras Aliyasantana Act, 1949 (Madras Act IX of 1949) Sections 3(b) l! (i), (ii) {f), (h), 36(3) &· (5) read with Section 7(2), 17, 30 of Hindu Sue- . , cession Act, 1956 (Act 30 of 1956)-Devo/ution of the property allotted to a 'nissanthathi kavaru' under the Aliyasantana law and its effect on the Hindu Succession Act, explained. The parties to the litigation leading to this appeal are governed by the Aliyasantana law prevalent in the district of South Kanara. They were mem~ bers of a Kutumba descended from a common ancestress by name Manjekke. '\ One Parameshwari and her son and daughter instituted original suit No. 91 of 1950 before the Court of the Subordinate Judge South. Kanara for partition of • properties in accordance with the provisions of Madras Aliyasantana Act, 1949. The suit was dismissed~ but on appeal the High Court reversed it.

The High Court passed a preliminary decree on 28-6-1961 and remanded the suit for further proceedings. In the trial a joint memo was filed by the parties on 25th September 1963 accepting the shares as per the memo. Defendants 22 to 24 in the suit were allotted 85176 shares out of a total of 6,15,264 shares. Defendants 22,23,24 were all male members of the 'Kutumba' and were 'Nissanthathi kavaru'. On the death of the 23rd and 24th defendants their legal Representatives who . were brought on record filed R. J. A. No. 2266/66 and R. I. A. 2259/66 respectively claiming that out of the share allotted to the K. avarus of defendants 22 to 24, one-third representing the share· or interest of the 23rd and 24th defendants be allotted to them.

The petition was opposed on the ground that each one of the defendants 22, 23, and 24 was a separate 'Nissanthathi Kavaru' lUld on the death of each of the defendants 24 and 23, his share or interest devolved upon the 'Sant'1athi Kavaru' nearest to him to which defendants II, 12 and 16 belonged. The plea of the 22nd defendant ~· was that all the three defendants 22, 23 and 24 constituted one single Nissanthathi Kavarn 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... gection' (5) of Section 36 is possible until the last member of 'Nissanthathi Kavaru' viz. the 22nd defendant dies. •. The trial court found that in the High Court decree dated 20-6-1961 defendants 22 to 24 were allotted shares jointly.

It further held that defendants 22, 23 and 24 formed three 'Nissanthathi Kavarust as their mother was dead at the time of the filing of the suit and partition was effected and there was no undivided interest in the property when they died so as to attract the provisions of section 7(2) of the Hindu Succession Act. The High Court ori appeal held that when the 24th defendant died he had an undivided interest in the properties of the Kavam of himself and defendant~ SUNDARI V. LAXMI 405 22 and 23 and that the said undivided interest quantified as provided by the explariation to sub~section (2) of section 7 of the Hindu Succession_Act and woufcl devolve bY intestate succession under the Succession Act. Similarly when the 23rd defendant died he had an undivided interest in the property jointly be~ l longing to himself and the 22nd defendant. That undivided interest also get quantified under Section 7(2) of the Hindu Succei;sion Act.

The High Conrt allowed the appeals holding that the property descended according to the rule of 'intestate succession contained in Hindu Succession Act. Dismissing the appeal by special leave the Court, HEID: I. The three defendants were allotted jointly a share in the parti- . tion. In the suit filed by one Parameshwari defendants 22, 23 and 24 were made parties as they belonged to the Kavaru of their mother. They pleaded in the written statement for the allotment of their share in the event of parti~ tion. Moreover in the joint memo their. joint share was shown as 85,176 out of the total share of 615,264. [409E, 410C-D] ,. 2. The three defendants have enjoyed the interest as Nissantbathi Kavaru, and on partition are entitled only to life interest in the properties allotted to them under section 36(3) of the Madras Aliyasantana Act, 1949. [411. C-D] )) 3.

In view Of the over-riding provision in Section 4 of the Hindu Succession Act, it is clear that the provisions of Aliyasantana Act, whether customary -0r statutory will cease to apply, in so far as they are inconsistent with the provisions of the Hindu Succession Act, which came into force on 17th June 1956. Therefore, the devolution by testamentary or intestate succession is under the Hindu Succession Act. [411G-H] The explanation to Section 7 (2) of the Act provides that the interest in the property of the Kutumba or Kavaru of a Hindu shall be deemed to be the share in the property of the Kutumba or Ka. varu, as the case may be, that would have fallen to him or her if a partition of that property per capila had been made immediately before his or her death among all th~ members of the Kutumba or Kavaru, as the case may be, then living whether he or she was entitled to claim such partition or not under the Aliyasant.

ana law and such • ·share shall be deemed to have been allotted to him or her absolutely. The result_ of the Explanation is that the undivided interest in the property of the Hindu in the Aliyasantana Kutumba or Kavaru shall devolve as provided for ·~. under the Hindu Succession Act and that the share of the Hindu shall be deemed to have been allotted to him absolutely. [412G-H, 413A] • The Explanation to section 30 of the Hindu Succession Act provides that . a member of an Aliyasantana Kutumba or Kavaru can dispose of his interest in Kutumba properties by a willt while under the. Aliyasantana law the individual cannot do so. Expla-nation to section 30(1) enables the male HindU-in Kutumba or Kavaru which is deemed to be property capable of being dispOBed of by him Sections 7(2) and 30(1) would relate to undivided interest in the property of the Kutumba or Kavarn.

[413B-DJ Section 17 of ·the Hindu Succession Act deals with the intestate succession· II to the separate property of a Hindu male under the Afiyasantana law. It pr,ovides that section 8, 10, 15 and 23 shall have effect with certain modifica- • 406 SJHJ! MI COU! lT REPORTS [1980] 1 S. C. R. A tions in rel&tion to persons who would have been governed by th'e Aliyasan~ tana 1aw. Section 8 provides that the property of a male Hindu dying intestate shall devolve as 1pecified in the s'ection. The succession to the property of a male Hindu belonging to a Kutumba or Kavaru of Aliy8! antana l~w dying intestate would be governed by the provisionA of •ection 8 ao modified by · ! eetion 17, the effect being that the succession as provided for under the Aliya.. santana law woul~ not be applica. ble to Hindu femaleo under section 10 which S provides for the distribution of property among heirs in class I of the Schedule.

Section IS provideo the general rule of succession in the case of Hindu female•. The rule as to the succession is also made applicable to Hindu female under tke Aliyasantana law which provides for succession of the separate property of a Hindu male and a female. Section 14 of the Act enlarges the property possessed by afemale Hindu (and not a Hindu male) whether acquired before or after the commencement of the Hindu Succession Act by providing that she C: will hold the property as a full owner 3dld not ao a limi~ owner. The Hindu male will be entitled only to the limited rights as provided for under the Jaw applicable to him. According to the provisions of section 36(5) of the Aliyasantana law, the property allotted to Nissanthathi Kavaru at a partition .. is enjoyed by it only as a life int'erest and at the time of the death of the last of its membeni shall devolve upon the Kutumba..

But when a Hindu governed by the Aliyaoantana law dies possessed of a life interest, after his death the a property devolTes under the Hindu Succession Act to the heirs as provided for under the said Act and not und·er the Aliyasantana Act and therefore would not revert back to the Kutumba. [413H, 414A-C, 4180-E] 4. The effect of the Provisiom of the Hindu SuC'CC88ion Act i& tha. t after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided by section 7(2), while in the case of separat. e property it' would devolve on his heirs· M provided for in the Hindu Succession Act.

Even though a Nissanthathi Kavaru might have a limited interetSt which would in tum devolve upon a Kutumba or the nearest Santhttthi Kava111 under Section 36(5) of the Aliyasantana Act, the devolution will be under the Hindu Succession Act, as the mode of devolution prescribed under section 36(5) of the Aliyasantana Act, has to give way to the provisions of section 8 of the Hindu Succession Act, Which prescribed a different mode of succession. [414G-H, 415-A] • In thi5 c.. e, th• property hao been found to be undivided' ao between defendants 22, 23 and 2-4 and th'erefore, the position is that on the death of each one of the defendants his undivided intdrest would devolTe on his heirs. [415E] The contention that there w~ a. division in status on the filing of guit for partition or that 8.! the mother Wa! dead th'ere were separate Kavarus is G not correct. . Jn the case of defendant!

22, 23 and 24 who aro malec; the Kavaru would mean the Kavaru of the mother Of that male under section 3(b)(ii) of the Aliyasantana Act The malo by himoelf cannot be a Kavarn under the definition. By virtue of the Explanation to Section 35(2) a male member of a Kutumba ;. deemed to be a Kavaru for the purpooo of Chapter VI, which deal• with partition of Kutumba. In thio case, tlie •nit wao filed by Parameshwari and her two children for the partition and separate possession of their •hare of the Kntnmba property. When the ouit is not filed by a male • member the provisions of Chapter vt will not be applicable. The deemed proYision io only applicable in eonsidering the right to claim partition. Further SUNDARl v. LAXMI (Kailasam, ]. ) 407 when the plaintiff filed the suit, there is no presumption that there w3s_ a division in status of all the Kiwarus that constituted the Kutumba. .

The filing of the suit will no doubt result in the "disruption of the joint status of the plaintiff/ Kavaru. but the other Kavarus may continue to be joint in the . ~utumba. ' · \Vhether tho other Ka"Varus continued to be joint in the Kavaru or not. is (. question of fact. [415E-H, 416A] ~· · Jalaia Shedthi and Ors. v. Lakshmi Shedthi and Or.. , [1974] I S. C. R. 707, • and Sundara Adappa and Ors. T. Girija and Or~. A. I. R. 1962 Mys~ 72, explained and cllitino t of the Hindu would devolve on his heirs under the Hindu s. cCesaion Act absolutely. A Hindu under section 30 of the Hindu Saccessio:Q Act is alw conferred the right to disposing of by will his interest ia the kutumba or kavani. While a Hindu dies intestate his undivided interest devolves absolu,foly on his heirs, in the case of his separate property the succession is governed by the provisions of sectioru; 8, 10 and 15 of the Act as modi. tied by section 17.

It may be noted that regarding the separate property of a Hindu the Madras Aliyasanthana Act provides that the provisions of sections 19, 20, 21, 22, 23 and 24 of the Act would be applicable. The separate property does not revert back to the kutumba or kavaru ot the Aliyasanthana family. At the time of the partition if any kavarn taking a share is a nissanthathi kavaru, it shall have only a life-interest in the properties allotted to it under certain circumsl'ances and the property would revert back to a santhathi kavaru if it is in existence. Section 36 (3) of the Madras Aliyasanthana Act provides that the properties allotted to a nissanthathi kavaru at a partition and in which it had only a life-interest at the time of the death of the last memlx:r, shall devolve upon the kut. umba or where the kutumba has brok'm up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi ka. varu or kavarus.

The devolution of the property allotted to a nissanthati kavaru which has only a life-interest devolves upon a kutumba or the nearest santhathi kavaru. This mode of devolution prescribed by section 36(5) of the Aliyasa'nthana Act has to g:iv. ~ way to the provisions of section 8 of the Hindu Succession Act which prescribed a different mode of succession. The effect of the provisions of the Hindu Succession Act above • referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a' Hindu would devolve 'ilS provided J'oc SUNDARI v. LAXMI (Kailasam, J. ) 415 cunder sec. 7 (2) while in the case of separate property it would de- A" volve on his heirs as provided for in the Hindu Succession Act. Even though -a nissant/zathi kavaru might have a limited interest as the devolution prescribed· for in the Madras Aliyasanthana Act is no more applicable the devolution will be under the Hindu Succession Act.

fa this case ihc property bas been found to be undivided as bet- • ir· ·ween defendants 22, 23 and 24 and therefore the position is that on the death of each one of the defendants his undivided intetest would -devolve on his heirs. The learned counsel for the appellants Polied on the Explanation to sec. 35 (2) of the Madras Aliyasanthana Act and submitted that every male member of a kutumba shall be deemed to be a kavaru and on filing of a suit for partition it must be deemed that every male member ·Of the kut11mba got himself separated. Kutumba is defined under cSec. 3(c) as mea'ning a group of persons forming a joint family ·with community of property govcrnod by the Aliyasanthana law of inheritance. Kavam is defined under sec.

3(b) (i) and (ii) as , :under:- "3(b) (i) "Kavaru", used in relation to a female, means the group of persons consisting of that female, her children and all her descendants in the female line; (ii) "Kavaru" used in re1'ation to a male, means the Kavaru of the mo_thcr of that male;" ; In the case of defendants 22, 23 and 24 _who are males the karnm would mean the kavam of the mother of that male. The male by l:timself cannot be a kavaru under the definition. By virtue of the Ex- -planation to sec. 35(2) a male member of a kutumba is deemed to be a kavam for the purpose of Chapter V~. Chapter VI deals with partition of kutumba. In this case the suit was filed by Parmeshwari and her two children for the partition and separate possession of their share of the kutumba property. When the suit is not filed by a male member the provisions of Chapter VI will not be applicable. ·The -deemed definition is only applicable in considering the right to claim partition.

Further, when tlie plaintiff filed the suit there is no presumpction that there was a division in status of 111! the kavarus that' constituted the kutumba. The filing of the suit will no. doubt result in the· -division of the status of the plaintiff kavaru but the other kavarus may continue to be joint in the kutumba. Whether the other kavarus continued to be joint in the. kavaru or not is a. question of fact. In this case it is found there is no material to hold that there was division . ·ef status as between defendants 22, 23 and 24.. In this view the con- 1entions of the learned counsel for the appellants that there was divi- sion in status on the filing of the suit for partition or that as the mother was dead there were separate kavarus will have to be negatived. "' The r,liance on Explanation to sec. 35(2) will not help the appellants. ~ ' 1 In Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors. ( ) one C and his sister and her sons were members of an Aliyasanthana Kutumba. .. ...

~ C executed a will on January 15, 1957 bequeathing his, interest in favour of the appellants. On January 25, 1957 the respondents issued a notice to C stating that he was the manager of the divided family, ·rthat he was a nissanthathi kavaru while ,the respondents were santhathi "' kavarus, as such there were only two kavarus and that they had decided to divide the properties between C and themsdves. The respondents demanded a share belonging to their kavaru from out of · the entire movable and immovable properties of the family. C replied on January 24, 1957. that there were only two kavarus in the family '·· and both the kavarus were nissanthathi kavarus. C also expressed ; that he had no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated. C subsequently died on February 13, 1957 after the coming. into force of the Succession Act On March 23, 1957 the appellants gave a notice to the respondents.

claiming a· separate share under C's will. The respondents replied to the notice on the same day denying that the appellants had any share because according to them C was entitled only to a life-interest under the Aliyasanthana law. It was held by this Court that there was neither a kutumba nor can C be a kavaru as the two kavarus after the division in status became only one kavaru, viz. that of respondent No. 1, sister of C. It was held that the C is not a kavaru within the meaning of sec. 3(b) of the Madras Act because under sec. 3(br (ii), there being no female line, it is only C's mother who can be a kavaru but not C. If C is not a kavaru there is no property of a kavaru, which can be disposed of under sec. 30 of the Succession Act. Even under the explanation fo that section, the life-interest which C had on severance of statns is not properly capable of being disposed of by a will nor could it devolve by survivorship.

As he is no longer a kavaru and liad therefore no interest in the property of the kiivaru, C'. s life-interest is also not enlarged under section 7 (2) of the Hindu Succession Act, into an absolute interest. Section 14 of the Hindu Succession Act cannot also be availed of as the life-interest of a male under the . h-~ Aliyasanthana law cannot enlarge under section 14. (I) [1974] I S. C. R. 707. SUNDARI v. LAXMI (Kai/asam, J. ) 417 Ja/aja Shedthi & Or's. v. Lakshmi Shedthi & Ors. (supra) relates to a will executed on 15th January, 1958 by Chandayya Shetty bequeathing his interest in favour of his wife and children. A week after the execution of the will on 22nd fanuary, the first respondent i. e. the sister of Chandayya Shetty and her children issued a notice to Chandayya Shetty stating that they had decided to divide the properties ,. (· between Chandayya Shetty and· them&olves and demanded a share be- ,. longing to their kavaru.

Chandayya Shetty subsequently died on 13th February, 1957. On 23rd March, 1957 Chandayya Shetty's wife and her children gave notice claiming a separate share under the will of Chandayya Shetty. It was found that on a demand for partition there was a division of status though partition by metes and bounds had not taken place. There was only two kavarus and in the circumstanres it could not be pleaded that joint status between other kavarus continued. There was therefore no undivided interest of a coparcener, within the meaning of section 7 (2) of the Hindu Succession Act. If there was no undivided inDorest it is clear that provisions of section 7(2) of the Hindu Succession Act cannot apply. 111 considering the effect of the will the Court agreed with the view of a full Bench of the High Court of Mysore in Sundara Adappa and Ors. v. Girija & Ors. (! ) It was contended before the full Bench that by virtne of sec.

30(1) of the Hindu Succession Act the right of the first defendant who had obtained a preliminary decree for his 75/360th share of his ! Jr<>perties became capable of being disposed of by will and therefore the children of the first defendant would be entitled to the share in accordance with the terms thereof. The Mysore High Court held that the benefit referred to in the Explanation to sec. 30(1) is confined to the int:rest of a male Hindu in his kutwnba and would not apply to the proper! )' obtained by him as his share in the preliminary decree. This Conrt in approving the above observations observed. "The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the ' Madras Act and the Succession Act".

This Court rejected the pleas that the effect of section 17 ofi the Snccession Act was not considered in the Mysore case, holding that the question was not relevant in the case before them or in the Mysore case because sec. 17 of the Succession Act applies to provisions of sections 8, 10, 15 and 23 which dealt with intestacy. As we are concerned in the present c-ase with the iniestate succession to tl1e estate of defendants 24 and 23 the deci- . . , s1ons are not applicable to the facts of this case. (l) A. l. R. 1962 Mys. 72. The plea of the learned counsel for the respondents that ". Ven if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act· by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapte. r II of the Hindu Succession Act which deals with the intestate succession is applicable.

to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasautbana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasantbana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to an Aliyasanthana family sec. 17 • . makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property 'of a Hindu under the Aliyasanthana law. According to the provisions of sec.

36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its ,members shall devolve. upon the kutumba. This devolution of the life-interest is according to sec. 36(5). When a Hindu governed by the Aliyasantbana law dies possessed of a lifeinterest, after his death the property devolves under the Hindu Succession Act and not under t:\le' Aliyasanthana Act arn:I therefore would not revert back to the kutumba. This Court in Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors. (supra) while deciding the rights of the parties under a will execnted by a Hindu governed by Aliyasanthana law l:teld at p. 719 : "Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and ·Chiindayya Sbetty could no longer claim that be had an undivided interest within the meaning of sec.

7(2) of the Succession Act, and if he has no undivided interest in the pr~erty, his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession. '' The words underliaed by us relate to intestate succession and the Court has specifically I stated that it was not referring to the provis\ons of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of I\.... obiter. The separate property is not enlarged into an absolute ei~te under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hie. du ' SUNDARI v. LAXMI (Kailasam, J. ) 419 A Succession Act. Similarly in the observations at p. 721 of the Reports .... ) ..

, where it has observed : "In this case also as already stated, there is no ~avaru of Chandayya Shetty, and on separation he had only a lifeirnterest which is not· a. heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. " The reference to devolution on intestacy is again in the nature of obiter dicta. B On a consideration of the contehtions mad·~ by the learned counsel appearing for both the pqrties we agree with the conclusion reached by the High Court and dismiss this appeal with costs. V. D. K. Appeal dismissed. •