GUMMANNA SHETTY Vs. NAGAVENIAMMA

JUDGEMENT

(1.) By a registered deed dated September 4. 1900, a group of 19 persons forming a joint family with community of property governed by the Aliyasathana Law of inheritance, formed themselves into two branches and divided the family properties. The second branch consisted of the descendants of Sarasamma and Brahmi and some descendants of Nemakka -in all 10 persons. The first branch consisted of Nemakka and the rest of her descendants and her sister Sivadevi - in all 9 persons. In 1953 Darnamma was the sole surviving member of the second branch. She was a nissanthathi kavaru 70 years old having no descendants. In 1955, the members of the first branch instituted a Suit against Darnamma for partition of all the properties comprised in the deed dated September 4, 1900, alleging that the deed effected a division for convenience of enjoyment and maintenance only and was not an absolute out-right partition. The defence of Darnamma was that the deed effected an out-right partition. The trial court accepted the plaintiff's contention and passed a preliminary decree 1or partition. Darnamma filed an appeal in the Mysore High Court. During the pendency of the appeal she died and one Nagaveniamma claiming under her wil1 was substituted in her place as her legal representative. The High Court held that the deed dated September 4, 1900, effected an out-right partition. On this finding the High Court allowed the appeal, set aside the decree passed by the trial court and dismissed the suit. From this decree the present appeal has been filed under a Certificate granted by the High Court.

(2.) The joint family properties were formerly managed by its yajaman one Manjappa. Upon his death, the parties to the deed dated September 4, 1900, apprehended disputes. The object of the deed was to prevent such disputes, and consequential wastage of property and to preserve the dignity of the family. The family properties were divided into two parts, and a portion was allotted to each branch. The deed provided that the properties allotted to the first branch would be enjoyed by its members and would be mutated in Nemakka's name, and Siddappa, a member of this branch would manage the properties, pay the tirve and cesses, and conduct the maintenance of its members. The properties allotted to the second branch would be enjoyed by its members and would be mutated in the name of Nagu, a member of that branch, and Chandayia, another member of the branch, would manage the properties pay the trive and cesses, and conduct the maintenance of its members. Party of items 2 and 5 of the properties were allotted to the two branches, but the entire tirve and cesses for the two items would be paid by the first branch and the arrears of the tirve, if any, would form a charge on the properties allotted to the first branch. The deed provided that

(3.) The deed also provided: If there are no descendants at all completely in the first branch, the members belonging to the second branch shall he entitled to the entire movable and immovable properties of the said first branch, and if there are no descendants at all completely in the second branch, the members of the first branch shall be entitled t-o the entire movable and immovable properties of the said Second branch".