Partition of ancestral
property

A little learning is a dangerous thing ;
Drink deep, or taste not the Pierian spring :
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.

The above lines are especially true for law relating to partition of ancestral property in India. Because of extreme complexity of law relating to partition of property, it is always advisable that an NRI must take help of an expert who has substantial experience in dealing with Hindu law, succession and inheritance, wills, gifts, benami transactions and law as to partition. Further it is advisable to acquire or maintain a property which has already been partitioned and in case partition of property has not taken place, it is always advisable to divide the property through a registered partition deed.

The law relating to partition of property may be divided into five divisions that is the property to be divided, the person’s who shall be entitled to a share in the property after division, what constitutes partition, what will be the mode of partition and lastly, reopening of partition in case of special circumstances. Apart from these, the law also provides for the reunion.

Only that property which has been previously held as a joint property among the coparceners can be divided among coparceners. Any separate property of a particular member of coparcenary is not subject to partition among all members of the coparcenary. Further only those assets which are actually in existence at that date of expiry of the joint status of coparcenary are available for division. For that purpose, an account is kept for considering the entire family property which is in the hands of coparceners to ascertain the existence of assets. Most importantly, all the partition may not been writing, it is important to note that for any partition in respect of immovable property when the value of immovable property is more than rupees hundred, the instrument of partition must be registered under Indian registration act. However if there is a family settlement and not partition under law, registration is not required.

One must also consider the law as to what might happen if partition has already taken place and later on after the partition a new ancestral property is discovered. In such case, under Hindu law, such property must be divided equally among coparceners.

Important judgments on partition of property are:-

Chinthamani Ammal v. Nandagopal Gounder 2007(4) SCC 163

SUPREME COURT OF INDIA

JUDGMENT

S.B. Sinha, J. – This appeal is directed against a judgment and decree dated 31.07.1998 passed by a learned Single Judge of the High Court of Judicature at Madras in Second Appeal No. 1899 of 1985 whereby and whereunder an appeal under Section 100 of the Civil Procedure Code preferred by the respondents herein from a judgment and decree dated 11.09.1985 passed by the Subordinate Judge, Arni, North Arcot District in Appeal Suit No. 68 of 1984 was allowed, in turn, allowing an appeal from a judgment and decree dated 27.07.1984 passed by the Court of the Principal District Munsif, Arni in Original Suit No. 1301 of 1979.

2. Plaintiffs in the suit are the respondents before us. The said suit was filed for declaration and injunction against the appellant herein.

3. Kesava Gounder and Respondent No. 1 were brothers. They admittedly were members of a joint family. Kesava Gounder was suffering from small pox. He died in 1943. Immediately prior to his death, he allegedly expressed his intention to severe his status as a member of the joint family.

4. The wife of the said Kesava Gounder (mother of the appellant herein) and the appellant were admittedly looked after by the respondents. However, the mother of the appellant left the family in or about 1945 and married another person. Appellant was not only brought up by Respondent No. 1, she was also given in marriage. She allegedly claimed a share in the property. Possession of the respondents was sought to be disturbed. Respondents filed a suit for declaration and injunction against her in the Court of Munsif. The principal issue which arose for consideration in the said suit was as to whether the said Kesava Gounder had expressed his intention to separate as a result whereof the joint family severed although no partition by meets and bounds took place.

5. The contention of the respondents was that the property being a joint family property on the death of Kesava Gounder in 1943, they succeeded thereto by survivorship and had been enjoying the same ever since and only at a much later date the appellant made an attempt to disturb their possession.

6. Appellant’s husband had also filed a suit claiming a leasehold right in the said property.

7. Both the suits were heard together. The Trial Court by its judgment and order dated 27.07.1984 opined that the said Kesava Gounder died in the year 1943 as a member of undivided joint family and, thus, the appellant had derived no right, title and interest in the said property by succession or otherwise. An appeal preferred there against by the appellant, however, was allowed by the Subordinate Judge holding that the father of the appellant died as a divided member of the joint family as a result whereof she became entitled to claim half share. The second appeal preferred by the respondents herein from the said judgment and decree passed by the first appellate court has been allowed by reason of the impugned judgment.

8. Mr. B. Sridhar, learned counsel appearing in support of the appellant, would submit that although the appellant at the time of her father’s death was only three years old, the factum of separation was proved by DW-2 – her aunt, who in her deposition stated :

“The father of this defendant while he was unwell became divided in status. At that prevailing situation out and out partition was not possible. The first plaintiff gave his word to take care of this defendant and her mother.”
9. The learned counsel would contend that in view of the decision of this Court in A. Raghavamma and another v. A. Chenchamma and another [ AIR 1964 Supreme Court 136], the father of the appellant and Respondent No. 1 herein having separated themselves, she succeeded to the share of her father.

10. The learned counsel appearing on behalf of the respondents, on the other hand, would support the judgment.

11. Although, before us, the appellant has made a claim of deriving right, title and interest by way of succession to the interest of late Kesava Gounder, in the written statement filed by her before the learned Trial Judge, only a limited right was claimed, which, allegedly, culminated into an absolute title in terms of Section 14(1) of the Hindu Succession Act, 1956.

12. The High Court in its judgment held that the property in suit being agricultural property, the Hindu Women’s Right to Property Act, 1937 being not applicable in relation thereto in the year 1943, the mother of the appellant or for that matter, she herself could not have succeeded to her father’s interest in the property which was a joint family property. It was further held that the plea that the said Kesava Gounder died as a divided member was put forth 36 years after his death, was wholly improbable.

13. The legal position that the appellant herein could not claim any right, title and interest whether in terms of the provisions of the Hindu Women’s Right to Property Act, 1937 or as a successor of the said Kesava Gounder, if the joint status was not severed, is not in dispute. The Hindu Women’s Right to Property Act was not applicable in relation to agricultural land. The State of Madras made an amendment in that behalf in the year 1947 whereafter, only a widow became entitled to claim limited ownership in the share of her husband. The mother of the appellant i.e. wife of the said Kesava Gounder, thus, did not derive any right, title and interest in the property of her husband in the year 1943, when he expired. Furthermore, admittedly, she left the family and married another person in the year 1945 and thus the question of her deriving any benefit in terms of the 1947 amendment also did not arise.

14. Before the learned Trial Judge, the parties adduced their respective evidences. The learned Trial Judge had an occasion to look to the demeanour of the witnesses. He came to the conclusion that the properties in suit had all along been held as a joint family property opining that the father of the appellant did not have any divided status as alleged or at all.

15. The first Appellate Court reversed the said finding relying only on or on the basis of the statement made by DW-2 – the aunt of the appellant which has been noticed by us hereinbefore. The said statement by itself does not prove that the said Kesava Gounder made an unequivocal declaration that he intended to separate himself from his brother or the same was duly communicated to the other co-sharers. DW-2 did not say when such a declaration was made in presence of all coparceners. It was not stated that at the time of making such purported declaration, the respondents were present.

16. If such a declaration had been made and the respondents herein accepted the same, ordinarily, not only the respondents would be asked to divide the property by partition by meets and bounds but also to look after the said property which fell in the share of the appellant. Allegedly, Respondent No. 1 was requested to look after his family and not their property. The property, admittedly, continued to be possessed as a joint property. It was never partitioned by meets and bounds. Appellant never paid any rent separately. No revenue record was prepared in her name.

17. Even the husband of the appellant claimed the property as a lessee. When the properties continued to be possessed jointly by the owners thereof, a presumption in regard to the status of joint family both backward and forward must be raised as no evidence was brought on records to establish unequivocal declaration on the part of Kesava Gounder to separate himself from the joint family. If having regard to the nature of oral evidences adduced before it, the learned Trial Judge came to the conclusion that the appellant had failed to prove her case, the first Appellate Court, in our opinion, as has rightly been held by the High Court, could not have reversed the said finding without assigning sufficient and cogent reason therefor.

18. In law there exists a presumption in regard to the continuance of a joint family. The party who raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor.

19. Furthermore, when the learned Trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first Appellate Court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW-2, the learned Judge did not consider any other materials brought on records by the parties.

20. In Mandholal v. Official Assistance of Bombay [AIR 1950 Federal Court 21], it was observed :

“It is true that a Judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment.”

[See also Madhusudan Das v. Narayanibai, AIR 1983 Supreme Court 114 : (1983)1 SCC 35],
21. In Smt. Rajbir Kaur and Another v. S. Chokesiri and Co. [(1989)1 SCC 19], this Court observed :

“48. Reference on the point could also usefully be made to A.L. Goodharts article in which, the learned author points out :

“A judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion.

It is obvious that, in almost all cases tried by a judge without a jury, an appellate court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him.”

(emphasis supplied)

49. The following is the statement of the same principle in “The Supreme Court Practice :”

Great weight is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the Court of Appeal, and that court cannot excuse itself from the task of weighing conflicting evidence, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.(pp. 854-55)

…Not to have seen witnesses puts appellate judges in a permanent position of disadvantage against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage for example has failed to observe inconsistencies or indisputable fact or material probabilities [ibid. and Yuill (1945) p. 15; Watt v. Thomas] the higher court ought not take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case…. (p. 855)

… But while the Court of Appeal is always reluctant to reject a finding by a judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it…. (p. 855)

50. A consideration of this aspect would be incomplete without a reference to the observations of B.K. Mukherjea, J., in Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain Singh which as a succinct statement of the rule, cannot indeed be bettered :

“The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.

51. The area in which the question lies in the present case is the area of the perceptive functions of the trial Judge where the possibility of errors of inference does not play a significant role. The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which the well- known limitation on the powers of the appellate court to reappreciate the evidence falls. The appellate court, if it seeks to reverse those findings of fact, must give cogent reasons to demonstrate how the trial court fell into an obvious error.

52. With respect to the High Court, we think, that, what the High Court did was what perhaps even an appellate court, with full fledged appellate jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. Contention (c) would also require to be upheld.”
22. In Jagannath v. Arulappa and Another [(2005)12 SCC 303], this Court while considering the scope of Section 96 of the Civil Procedure Code opined that it would be wholly improper to allow first appeal without adverting to the specific findings of the Trial Court.

23. In H.K.N. Swami v. Irshad Basith (Dead) By LRs. [(2005)10 SCC 243], this Court opined that the appellate court is required to address all the issues and determine the appeal upon assignment of cogent reasons.

24. In this view of the matter, it is not necessary for us to consider the submission of Mr. Sridhar in regard to the effect of the severance of the joint status, as adumbrated by this Court in A. Raghavamma (supra).

25. For the reasons aforementioned, there is no merit in this appeal, which is accordingly dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.

Appeal dismissed.

Shankar Balwant Lokhande (Dead) by L.Rs. v. Chandrakant Shankar Lokhande, (SC) 1995(3) SCC 413

SUPREME COURT OF INDIA

JUDGMENT

K. Ramaswamy, J. – These appeals by special leave arise from the judgment of the High Court of Bombay dated April 7, 1977 by which LPA 15/77 was dismissed in limine. The facts lie in a short compass for deciding the question of law arising in these appeals. On August 2, 1955, a preliminary decree in Spl.Civil Suit No. 296/49 was passed declaring that Chandrakant-first respondent was entitled to ⅙th share and the appellants were entitled to ⅚th share in the suit properties. An order was made on April 19, 1958 directing preparation of a final decree. On December 19, 1960, first respondent supplied non-judicial stamps to engross and sign the final decree to the extent of his ⅙th share. On January 11, 1961, a final decree, in that behalf, was engrossed on the stamped paper and signed by the trial court. Since the appellants had not supplied the non-judicial stamps, no final decree was made qua them. On the other hand, Darkhast No. 41/63 was filed by them for execution of the preliminary decree which was subsequently dismissed as withdrawn. Darkhast No. 70 was filed in 1965 which was dismissed on March 13, 1968 as the application was barred by limitation. In First Appeal No. 605/68, the High Court held that “in view of the fact that no final decree was passed on non-judicial stamps, there was no decree in existence for its execution”. Therefore, on August 12, 1975, the appeal was dismissed. On August 14, 1975, the appellants filed Misc. Application No. 538/75 before the trial court to accept the non-judicial stamps and to pass a final decree. The said application was contested by the respondent pleading bar of limitation. The trial court overruled the objection and allowed the application on 3.2.76 holding that the application was not barred by limitation. In First Appeal No. 229/76, Learned Single Judge of the High Court held that the limitation began to run from the date when the direction was given to pass final decree. Since the application was filed after the expiry of period of limitation counted from that date, the Court held on March 7, 1977 that it was barred by limitation. As stated earlier, on further appeal, the division bench dismissed the appeal in limine.

2. The crucial question for consideration is as to when the limitation begins to run for filing an application to pass final decree on stamped papers. There is no direct decision of this court on this point. Therefore, after hearing counsel at length, we reserved the judgment in the appeal and independently made detailed examination. There is divergence of opinion in the High Courts on this question.

3. Order 20 Rule 7 of Civil Procedure Code envisages that the decree “shall bear the day on which the judgment was pronounced, and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree”. Section 2(2) of Civil Procedure Code defines “decree” to mean “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final”. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. Final decree may be said to become final in two ways : (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of. It is in the latter sense the word “decree” is used in Section 2(2) of Civil Procedure Code. The appealability of the decree will, therefore, not affect its character as a final decree. The final decree merely carries into fulfilment the preliminary decree.

4. Order 20 Rule 18 envisages passing of a decree for partition of property or for separate possession of a share therein. Sub-rule (2) is material which provides that “if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required”. (Emphasis ours) Thus, it could be seen that where the decree relates to any immovable property and the partition or separation cannot be conveniently made without further inquiry, then the court is required to pass a preliminary decree declaring the rights of several parties interested in the property. The court is also empowered to give such further directions as may be required in this behalf. A preliminary decree in a partition action, is a step in the suit which continues until the final decree is passed. In a suit for partition by a coparcenar or co-sharer, the court should not give a decree only for the plaintiff’s share, it should consider shares of all the heirs after making them parties and then to pass a preliminary decree. The words “declaring the rights of the several parties interested in the property” in sub-rule(2) would indicate that shares of the parties, other than the plaintiff(s), have to be taken into account while passing a preliminary decree. Therefore, preliminary decree for partition is only a declaration of the rights of the parties and the shares they have in the joint family or coparcenary property, which is the subject-matter of the suit. The final decree should specify the division by metes and bounds and it needs to be engrossed on stamped paper.

5. The preliminary decree, in these appeals, declared that the properties belong to the joint family of the plaintiffs and defendant No. 1 set out in Schedules ‘A’ and ‘B’. The details of the properties have been enumerated and they are liable to partition as per the right of the parties mentioned in the preliminary decree. In other words, Chandrakant has ⅙th share and the appellants have ⅚th share. The former is directed to pay certain sum towards marriage expenses of his sisters with a charge on the property allotted to his share. He is also entitled to mesne profits from the date of the institution of the suit in respect of certain properties specified in para 7 of the preliminary decree. A Commissioner was directed to be appointed to partition the properties mentioned in paragraph 8 of the decree. Para 9 declares certain charges in respect of specified properties. It would, thus, be seen that except declaration of the rights of the parties and the charge on the shares, there is no final decree. The partition is to be effected by the Commissioner to be appointed and as per directions from the court in that behalf. A preliminary decree in respect of ⅙th share of the first respondent was engrossed on the stamped papers submitted by him. The question is whether the decree then became final and the rights of the parties stood crystallised, as envisaged under section 2(2) of Civil Procedure Code and, if so, when the limitation would begin to run for execution thereof?

6. It is seen that the single Judge of the High Court held that the limitation began to run from the date when the direction was given by the civil court to pass the final decree and since the application was not made by the appellants within three years from that date, the application for execution stood barred. The single Judge concluded thus :-

“I, therefore, hold that limitation for executing a final decree in a suit for partition starts on the date on which the final decree is passed, that is, on the date on which the judgment directing the final decree to be drawn is given and not from any subsequent date on which the party supplies the non-judicial stamp for engrossing the final decree and when the Court engrosses the final decree on the stamp and signs it.”
7. Question is whether the aforesaid view is correct? Since the decree is one which is prior to the Limitation Act, 1963, we are to look to the provisions contained in the Limitation Act, 1908, (for short, ‘the old Act’), for deciding the controversy. Article 182 of the First Schedule to the old Act envisages that “for the execution of a decree or order of any civil court not provided for by Article 183 or by Section 48 of Civil Procedure Code, the period of limitation of three years begins to run from the date the final order was passed on an application made in accordance with law to the proper court for execution, or to take some step in aid of execution of the decree or order. Explanation I provides that “where the decree or order has been passed severally in favour of more persons than one, distinguishing portions of the subject-matter as payable or deliverable to each, the application mentioned in note 5 of the article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application, if made by any one or more of them, or by his or their representatives, shall take effect in favour of them all.” Therefore, it would be clear that where decree or order has been passed jointly against more persons than one, the application shall take effect against them all, even if it is made by one or more. It is seen that the preliminary decree is a declaration of the rights of the parties with a charge on the properties to be allotted and a Commissioner is required to be appointed for partition of certain specified properties. Therefore, as envisaged in sub-rule (2) of Rule 18 Order 20, it was only a preliminary decree declaring the rights of the parties with power to the court to given further directions in that behalf. It is settled law that more than one final decree can be passed. With the passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallised and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in terms of the shares of the parties declared in the preliminary decree.

8. It has been seen that after passing of preliminary decree for partition, the decree cannot be made effective without a final decree. The final decree made in favour of the first respondent is only partial to the extent of his ⅙th right without any demarcation or division of the properties. Until the rights in the final decree proceedings are worked out qua all and till a final decree in that behalf is made, there is no formal expression of the adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of ⅙th and ⅚th shares of the first respondent and the appellants so as to entitle the party to make an application for execution of the final decree.

9. In Rameshwar Singh-Decree holder v. Homeswar Singh-Judgment-debtor and other, AIR 1921 Privy Council 31, the facts, in nutshell, were : There was a joint liability for the payment of some amount under a grant. A decree in that behalf was passed and the property was sought to be proceeded against the estate for execution. The contention was that since a decree was made earlier which was executable but no application was made within limitation, the decree became unexecutable, being barred by limitation. That was accepted by the High Court. On appeal, the Judicial Committee held that “in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced”. The decree being limited in its scope, it was held that limitation did not begin to run from the date of decree as drawn. The contention of Smt. Jaishree Wad, learned counsel for the respondent, is that the Privy Council upheld the principle of making an application within three years from the date when the right to apply accrues, as provided in Article 181 of the old Limitation Act, the ratio of the aforesaid case applies to the facts in this case since the application had not been made within three years or within 12 years and so, it was hopelessly barred by limitation. She placed reliance on the judgment of this Court in Yeshwant v. Walchand, AIR 1951 Supreme Court 16 also and on judgments in Maksudan Prasad v. Smt. Lakshmi Devi and others, AIR 1983 Patna 105, Pandivi Satyanandam v. P. Nammayya and other, AIR 1938 Madras 307 and Basamma v. Shivamma and another, AIR 1963 Mysore 323.

10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to be partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, no Commissioner was appointed and no final decree had been passed relating to all.

11. In Yashwant’s case (supra), the facts were that preliminary decree for accounting was passed in a suit for rendition of account of partnership. There was deficit court fee payable. It was contended that until the payment of deficit court fee was made, right had not been accrued to draw the final decree and that, therefore, limitation begins to run only from the date of paying the deficit court fee. This court negatived the contention and held that the preliminary decree was not a conditional decree and its enforceability was not dependent upon the future act, namely, payment of the deficit court fee; and payment thereof at a later date would not provide fresh limitation to run from that date.

12. As to Maksudan’s case (supra), we state that it had not been correctly decided. Limitation does not begin to run from the date when direction is given to pass final decree. Mere giving of direction to supply stamped paper for passing final decree does not amount to passing a final decree. Until the final decree determining the rights of the parties by metes and bound is drawn up and engrossed on stamped paper(s) supplied by the parties, there is no executable decree. In this behalf, it is necessary to note that Section 2(a) of the Bombay Stamp Act, 1958, as amended by the local Act, provides that a decree of civil court is required to be stamped as per Article 46 in Schedule-I. Section 34 thereof lays down that “no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped”. Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is no executable decree as envisaged in Order 20 Rule 18(2), attracting residuary Article 182 of the old Limitation Act. Contrary views of the High Courts, are not good law. A Division Bench of the Andhra Pradesh High Court in Smt. Kotipalli Mahalakshmamma v. K. Ganeswara Rao, AIR 1960 Andhra Pradesh 54, correctly decided the question of law which held that the limitation begins to run only after a final decree is engrossed on stamped papers.

13. Accordingly, the appeals are allowed. The judgments and orders of the High Court are set aside and that of the trial court stands confirmed. The trial court is directed first to pass the final decree and then to engross the same on the stamped papers already supplied by the appellants; if further stamped papers be needed, reasonable time would be given to supply the same. The final decree would then be drawn thereon. The court would, thereafter, proceed with the execution of the final decree in accordance with law.

14. In the circumstances, the parties are directed to bear their own costs throughout.

Sundari v. Laxmi, (SC) 1988(1) SCR 404

SUPREME COURT OF INDIA

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 as the surviving defendant 22 holding that defendants 22, 23 and 24 formed three different nissanthathikavarus 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 trial Court dismissed both I. As 2259 and 2266/66.

6. The High Court on appeal while agreeing with the conclusion arrived at by the Civil Judge that the clear intention of defendants 22, 23 and 24 was that one share be jointly allotted to three of them together held that when the 24th defendant died he had an undivided interest in the properties of the Kavaru of himself and defendants 22 and 23 and that the said undivided interest quantified as provided by the explanation to sub-section (2) of Section 7 of the Hindu Succession Act, and would devolve by intestate succession under the said Succession Act. Similarly when the 23rd defendant died he had an undivided interest in the property jointly belonging to himself and the 22nd defendant. That undivided interest also got quantified under Section 7(2) of Hindu Succession Act. The High Court allowed the appeals holding that the property descended according to the rules of intestate succession contained in the Hindu Succession Act.

7. In this appeal the main contention of the learned counsel for the appellants is that the High Court was in error in holding that defendants 22, 23 and 24 were male members of one Nissanthathikavaru and that the three defendants did not constitute three different Nissanthathikavarus. On a consideration of the plaint, the written statement, the consent memo and the preliminary decree passed by the High Court we agree with the conclusion arrived at by the High Court. The suit was filed by one Parameshwari and her son and daughter as plaintiffs in O.S. No. 91 of 1950 praying for a partition of the properties and for allotment of her share to her. In the suit, defendants 22, 23 and 24 were made parties as they belonged to the Kavaru of their mother. In paragraph 10 of the written statement defendants 22, 23 and 24 stated that they have no objection to the partition of the family properties according to the rights of the parties but submitted that in the event of partition their share should be allotted to them and further the plaintiffs should be directed to surrender possession of the properties in Schedule I of the written statement. The written statement was filed jointly by the three defendants and their plea was that in the event of partition their share should be allotted to them. The Statement clearly indicated that the three defendants together asked for allotment of their shares in the family properties. There was no dispute as to the quantum of shares to the parties. The trial (High ?) Court has recorded.

“The learned Advocates on both sides are agreed that the suit be decreed for partition in respect of the plaint schedule immovable properties they are also agreed that the shares be divided as indicated in para 17 of the trial Court’s Judgment. We direct that a preliminary decree for partition of the plaint schedule immovable properties be drawn up accordingly”.
Paragraph 17 of the trial Court judgment reads :

“In case this suit is to be decreed, the shares to which the several parties are entitled to will be as set out in the joint memo filed by the parties on 25-9-1963, which are as follows.”
Shares of defendants 22, 23 and 24 are mentioned as 85,176 out of total share of 615,264. On a consideration of the pleadings the consent memo and the preliminary decree the High Court came to the conclusion that the shares were allotted to the three defendants jointly. We agree with the conclusion arrived at by the High Court and hold that the three defendants were allotted jointly a share in the partition.

8. The learned counsel for the appellant submitted that this finding of fact would not conclude the appeal. He submitted that in law there was no undivided interest in the property which defendants 24 and 23 owned at the time of their death as required under Section 7(2) of the Hindu Succession Act. The submission on this aspect is twofold.

1 (a) Defendants cannot claim that they were members of the Kavaru of their mother as their mother was dead at the time when the partition suit was filed;

(b) Under the Explanation to Section 35(2) a male member of a Kutumba is deemed to be Kavaru. Therefore each one of the 3 members would constitute a separate Kavaru and therefore there was no undivided interest as amongst them.

(2) The filing of partition suit by one of the members of the Kutumba would have the effect of effecting the severance of the status and therefore there was no longer any undivided interest between the several members of the Kutumba.
9. Before dealing with the contentions it is necessary to briefly refer to the salient features of Aliyasanthana law. In the well-known treatise on Malabar and Aliyasanthana law by P.R. Sundara Aiyar, a distinguished Judge of the Madras High Court, and edited by B. Sitarama Rao, an eminent lawyer of the Madras High Court who hailed from the South Kanara, the Aliyasanthana law is stated to imply a rule of inheritance under which property descends in the line of nephews. The term “Aliyasanthana Law” is the exact Canarese equivalent of the Malayalam term Marumakkathayam. Aliyasanthana Law differs but slightly from the Marumakkathayam system. In its main features viz., impartibility, descent in the line of females and non-recognition of marriage as a legal institution it completely agrees with the Marumakkathayam law. In Aliyasanthana law the males are equal proprietors with females and joint management is recognised, while the Marumakkathayam law does not recognise a right to joint management. The succession to the separate property of an individual member in Aliyasanthana law is to the nearest heirs and not to the Tarwad as in the Marumakkathayam Law. The succession of the heirs of the separate property is, recognised by the Madras Aliyasanthana Act, 1949 Sections 18 to 24. On the facts of the present case it is not disputed that defendants 22, 23 and 24 have enjoyed the interest as nissanthathikavaru and on partition are entitled only to life interest under Section 36(3) of the Madras Aliyasanthana Act. The question that arises for consideration is how far the Aliyasanthana Act regarding partition and succession has been affected by the Hindu Succession Act. The Hindu Succession Act came into force on 17th June 1956. The preamble states that the Act amends and codifies the law relating to intestate succession among Hindus. Though the preamble refers only to “Intestate succession” as the title ‘Hindu Succession Act’ indicates it relates to the law of succession among Hindus and not merely to intestate succession as mentioned in the preamble. The law has brought about radical changes in the law of succession. The law is applicable to all Hindus as provided in Section 2 of the Act. It is made clear that the law is applicable not only to persons governed by Dayabhaga and Mitakshara law but also to persons governed by Aliyasanthana, Marumakkathayam and Nambudri systems of Hindu Law. Section 4 of the Act gives overriding application to the provisions of the Act and lays down that in respect of any of the matters dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are repealed. Any other law in force immediately before the commencement of this Act ceases to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. It is therefore clear that the provisions of Aliyasanthana law whether customary or statutory will cease to ‘apply, in so far as they are inconsistent with the provisions of the Hindu Succession Act.

10. The scheme of the Hindu Succession Act in the matter of succession in the property of a Hindu dying intestate is provided in Section 8 to 13. Section 15 and 16 provide for the succession to the property of a female dying intestate. Section 17 specifically provides for application of the Hindu Succession Act to person governed by Malabar and Aliyasanthana law. Section 14 does not relate to succession but provides that any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as limited owner.

11. Section 7(2) is the section which relates to the devolution of an undivided interest in the property of a Kutumba or Kavaru and may be extracted in full.

“7(2) When a Hindu to whom the Aliyasanthana law would have applied if this act had not been passed dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of Kutumba or Kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the Aliyasanthana law.

Explanation – For the purposes of this sub-section, the interest of a Hindu in the property of a Kutumba or Kavaru shall be deemed to be the share in the property of the Kutumba or Kavaru, as the case may be that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the 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 Aliyasanthana law, and such share shall be deemed to have been allotted to him or her absolutely.”
12. Under the customary law and under the Madras Aliyasanthana Act, 1949 the undivided interest in the property of a Hindu in Aliyasanthana Kutumba or Kavaru devolved according to the provisions of the Aliyasanthana law but after the introduction of Section 7(2) the devolution by testamentary or intestate succession is under the provisions of the Hindu Succession Act. The Explanation to Section 7(2) 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 Kavaru, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the 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 Aliyasanthana 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 Aliyasanthana 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. The Explanation to Section 30, Hindu Succession Act provides that a member of an Aliyasanthana Kutumba or Kavaru can dispose of his interest in the Kutumba properties by a will. Under the Aliyasanthana law the individual cannot dispose of his interest in the Kutumba by a will. Explanation to Section 30(1) enables the male Hindu in a Kutumba or Kavaru to dispose of his interest in a Kutumba or Kavaru which is deemed to be property capable of being disposed of by him. Thus while section 7 (2) provides that when a Hindu to whom the Aliyasanthana law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of Kutumba or Kavaru, as the case may be, under the Hindu Succession Act, Section 30 enables the male Hindu to dispose of his undivided interest in a Kutumba or Kavaru by a will. While these two sections relate to undivided interest in the property of the Kutumba or Kavaru Section 17 deals with the succession to the separate property of a Hindu male under the Aliyasanthana law. It provides that Sections 8, 10, 15 and 23 shall have effect with certion modification in relation to persons who would have been governed by the Aliyasanthana law. Section 8 provides that the property of a male Hindu dying intestate shall devolve as specified in section. The succession to the property of a male Hindu belonging to a Kutumba or Kavaru of Aliyasanthana law dying intestate would be governed by the provisions of Section 8 as modified by Section 17 the effect being that the succession as provided for under the Aliyasanthana law would not be applicable. Section 10 provides for the distribution of property among heirs in Class I of the Schedule. Section 15 provides the general rule of succession in the case of Hindu females. The rule as to the succession is also made applicable to Hindu female under the Aliyasanthana law with the modification provided for under sub-section (2) of Section 17. Section 23 of the Hindu Succession Act is not applicable to a Hindu governed by Aliyasanthana law. Thus Section 17 which makes Sections 8, 10, 15 and 23 applicable with certain modifications to a Hindu under the Aliyasanthana Law provides for succession of the separate property of a Hindu male and a female. After the coming into force of the Hindu Succession Act, the provisions of Section 7(2) is applicable as regards undivided interest of a Hindu governed by Aliyasanthana Law while the provisions of the explanation to Section 30 is applicable in the case of a will relating to his interest in the family property. Section 17 provides that Sections 8, 10, 15 and 23 with modifications will apply to the separate property of a Hindu under the Aliyasanthana law.

13. Section 14 enlarges the property possessed by a female Hindu whether acquired before or after the commencement of the Hindu Succession Act by providing that she will hold the property as full owner and not as a limited owner. This provision is applicable to Hindu females and does not have the effect of enlarging a limited estate in the hands of a Hindu male. The Hindu male will be entitled only to the limited rights as provided for under the law that is applicable to him. But when once the succession opens by the death of the Hindu Section 7 (2) provides that the share in the undivided interest of the Hindu would devolve on his heirs under the Hindu Succession Act absolutely. A Hindu under Section 30 of the Hindu Succession Act is also conferred the right to disposing of by will his interest in the Kutumba or Kavaru. While a Hindu dies intestate his undivided interest devolves absolutely on his heirs, in the case of his separate property the succession is governed by the provisions of Sections 8, 10 and 15 of the Act as modified by Section 17.

14. 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 of the Aliyasanthana family. At the time of the partition if any Kavaru taking a share is a Nissanthathi Kavaru, it shall have only a life-interest in the properties allotted to it under certain circumstances 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 Nissanthathi Kavaru at a partition and in which it had only a life-interest at the time of the death of the last member, shall devolve upon the Kutumba or where the Kutumba has broken up, at the same or at a subsequent partition, into a number of Kavarus, upon the nearest santhathi kavaru or kavarus. The devolution of the property allotted to a Nissanthathi 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 Aliyasanthana Act has to give way to the provisions of Section 8 of the Hindu Succession Act which prescribed a different mode of succession.

15. The effect of the provisions of 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 as provided for under Section 7 (2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act. Even though a Nissanthathi 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.

16. In this case the property has been found to be undivided as between defendants 22, 23 and 24 and therefore the position is that on the death of each one of the defendants his undivided interest would devolve on his heirs.

17. The learned counsel for the appellants relied on the Explanation to Section 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 kutumba got himself seperated. Kutumba is defined under Section 3(c) as meaning a group of persons forming a joint family with community of property governed by the Aliyasanthana law of inheritance, Kavaru is defined under Section 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 relation to a male, means the Kavaru of the mother of that male;”
18. In the case of defendants 22, 23 and 24 who are males the kavaru would means the kavaru of the mother of that male. The male by himself cannot be a kavaru under the definition. By virtue of the Explanation to Section 35 (2) a male member of a Kutumba is deemed to be a kavaru for the purpose of Chapter VI, 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 the plaintiff filed the suit there is no presumption that there was a division in status of all 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 of status as between defendants 22, 23 and 24. In this view the contentions of the learned counsel for the appellants that there was division 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 reliance on Explanation to Section 35(2) will not help the appellants.

19. In Jalaja v. Lakshmi, AIR 1973 Supreme Court 2658 one C and his sister and her sons were members of any Aliyasanthana Kutumba C. executed a will on January 15, 1957 bequeathing his interest in favour of the appellants. On January 22, 1957 the respondents issued a notice to C stating that he was the manager of the divided family, that 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 themselves. 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.

20. 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 Aliyasanthans law. It was held by this Court that there was neither a kutumba nor can C be a kavaru at the two kavarus after the division in status became only one kavaru, viz., that of respondents No. 1, sister of C. It was held that C is not a kavaru within the meaning of Section 3 (b) of the Madras Act because under Section 3 (b) (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 Section 30 of the Succession Act.Even under the explanation to that section, the life interest which C had on severance of status 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 had therefore no interest in the property of the kavaru, 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 Aliyasanthana law cannot enlarge under section 14.

21. Jalaja v. Lakshmi (Supra) relates to a will executed on 15th January, 1957, by Chandayya Shetty bequeathing his interest in favour of his wife and children. A week after the execution of the will on 22nd January, 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 themselves and demanded a share belonging 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 were only two kavarus and in the circumstances 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 interest it is clear that provisions of section 7 (2) of the Hindu Succession Act cannot apply. In considering the effect of the will the Court agreed with the view of a Full Bench of the High Court of Mysore in Sundara Adapa v. Girija, AIR 1962 Mysore 72 (FB).

22. It was contended before the Full Bench that by virtue of section 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 properties 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 section 30 (I) is confined to the interest of a male Hindu in his Kutumba and would not apply to the property obtained by him as his share in the preliminary decree. This Court 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 of the Succession 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 section 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 case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this Case.

23. The plea of the learned counsel for the respondents that even 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 Section 17 of the Hindu Succession Act will have to be considered. Chapter 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 Aliyasanthana law. Section 7 (2) and Section 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While section 7 (2) relates to devolution of undivided interest in the property of a Kutumba or kavaru of a Hindu belonging to an Aliyasanthana family section 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in section 17 applicable to the devolution of separate property of a Hindu under Aliyasanthana law. According to the provisions of section 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 section 36 (5). When a Hindu governed by the Aliyasanthana law dies possessed of a life-interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert back to the kutumba. This Court in Jalaja v. Lakshmi (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719. “Similarly on the same party of reasoning when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of section 7 (2) of the Succession Act, and if he has no undivided interest in the property, 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 underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of section 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under Section 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 Hindu 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 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”. The reference to devolution on intestacy is again in the nature of obiter dicta.

24. On a consideration of the contentions made by the learned counsel appearing for both the parties we agree with the conclusion reached by the High Court and dismiss this appeal with costs.

Appeal dismissed.