JALAJA SHEDTHI Vs. LAKSHMI SHEDTHI

JUDGEMENT

(1.) The appellants who were the plaintiffs filed a suit against the respondents the defendants for partition, separate possession of their 7/20th share of suit properties and for mesne profits. The Trial Court decreed the suit, but the High Court dismissed it. This appeal is by special leave against that judgment.

(2.) Prior to the Hindu Succession Act, XXX of 1956 (hereinafter referred to as 'the Succession Act') the parties were governed by the Aliyasantana Law and the question before us is whether their rights are to be determined in accordance with that Law or under the Succession Act. It is not disputed that Chandayya Shetty, who died on February 13, 1957 after coming into force of the Succession Act, and the first respondent are brother and sister respectively. The first appellant is the widow and appellants 2 to 6 are the sons of Chandayya Shetty, while respondents 2 to 4 are the sons of the first respondent.

(3.) Before examining the provisions of the Madras Act and the Succession Act it may be mentioned that Chandayya Shetty had executed a Will on January 15, 1957 bequeathing his interest in favour of the appellants i. e his wife and children. A week thereafter on January 22, 1957, the first respondent and her children issued a notice to Chandayya Shetty stating that he (Chandayya Shetty) was the manager of the undivided family, that he was a nissanthathi kavaru (branch) while the respondents were santhathi kavarus, as such there were only two kavarus and that they had decided to divide the properties between Chandayya Shetty and themselves. They, therefore demanded under the Madras Act a stare belonging to their kavaru from out of the entire moveable and unmovable properties of the family Chandayya Shetty replied on January 24 1957, denying that the respondents' family was a santhathi kavaru, but was a nissanthathi kavaru as the first respondent was more than 50 years old on the date of the said notice and had no female issue. He, however, admitted that there are only two kavarus in the family, and as both the kavarus were nissanthathi kavarus, each kavaru was therefore entitled to an absolute share in the kutumba properties. He also stated that he had no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents co-operated. After this reply notice Chandayya Shetty died, as already stated, on February 13, 1957. On March 23, 1957, the appellants i e. Chandayye Shetty's widow and her children gave a notice to the respondents claiming a separate share under the will of Chandayya Shetty. A reply was given on the same day by the respondents denying that the appellants had any share because according to them Chandayya Shetty was entitled only to a life interest under the Aliyasantana Law.