SHIVADEVIAMMA Vs. SUMANAJI

JUDGEMENT

(1.) A Division Bench of this Court consisting of Honniah and Venkataramiah JJ. has, by its order dated 23-6-1972, referred to a Full Bench the following qestions: Whether it is open to a Full Bench to decline to answer the questions referred to it under S.7 of the Mysore High Court Act, 1961, and to said back the case to the Division Bench, without answering the questions referred to it, but with a direction to give reasons in support of the order of reference? We shall briefly narrate how the above question came to be referred to this Full Bench. In the present appeal (in which the above question has been referred to this Full Bench) one of the questions that arose for determination was whether a female member of an Aliyasanthana family constituting a Nissanthathi Kavaru, can dispose of by a will her share in the Kutumba of which she is a member. It was contended on behalf of the appellant that though under 3.36(3) of the Madras Aliyasanthana Act 1949, such a member has only a life interest in the properties allotted to her, such life interest gets enlarged into an absolue estate by virtue of S.14(l) of the Hindu Succesion Act, 1956. The above contention runs counter to the ruling of a Division Bench of this Court in Amba Shedthi v. Paddakke Shedthi (1969 (2) Mys.L.J. 377) in which it was held that it was never intended by Parliament to apply the provision of S.14 of the Hindu Succession Act to Aliyasanthana females who were Nissanthathi Kavarus under the Aliyasanthana Act. After considering the aforesaid contention of the appellant's Counsel, the Division Bench, by its order dt.3-11-1970, formulated the following three questions of law and referred them to a Full Bench under S.7 of the Mysore High Court Act, 1961. (1) Does S.14(l) of the Hindu Succession Act, 1956, apply to the case of life interest acquired before or after the commencement of the said Act under Ss.35 and 36 of the Madras Aliyansanthana Act 1949 (Madras Act No.IX of 1949) by a female who has completed fifty years of age (a Nissanthathi Kavaru) and possessed by her and does such female hold such property absolutely and not as a holder of life interest? (2) Are provisions of S.36(3), (4) and (5) of Madras Aliyasanthana

(2.) Act 1949 (Madras Act IX of 1949), inconsistent with S.14(l) of the Hindu Succession Act, 1946, in so far as they relate to females governed by Aliyasanthana Law and do these provisions cease to apply to such females even though they may have completed fifty years of age by virtue of S.14 of the Hindu Succession Act, 1956 ? (3) Has a female, governed by Aliyasanthana Law who has completed fifty years of age, the power to bequeath under a Will her divided interest in the property acquired by her at a partition under S.35 of the Madras Aliyasanthana Act, 1949 (Madras Act IX of 1949) ? The material portion of the order of reference reads : We find that the several questions argued before us have not been examined in the decision in Amba Shedthi's case. We, therefore, feel that the question decided in that case requires to be re-considered by a larger Bench, in view of the decision of this Court in Mallawwa v. Kallappa (1966 (2) Mys.L.J. 633) mentioned earlier and the two decisions of the Supreme Court referred to above. Having regard to the importance of the questions involved, we think that this is a fit case to be decided by a Full Bench.

(3.) Accordingly, the aforesaid three questions came up for consideration befora a Full Bench (consisting of Govinda Bhat, Venkataramiah and Datar JJ,) Govinda Bhat, J. (with whom Dtar, J. agreed) was of the opinion that the case should be referred back to the Division Bench for a dear order of reference, as his Lordship felt that the order of reference did not contain the reasons for casting a doubt on the correctness of the decision in Amba Shedthis's case or a reasoned criticism of the view accepted therein. His Lordship observed thus in the course of his opinion: The order of referrence does neither state that the Bench of two Judges differs from the view taken by the earlier Division Bench in Amba Shedthvs case (1969 (2) Mys.L.J. 377) nor do they formulate a reasoned criticism of the view accepted therein. ' They do not also state in express words that they doubt the correctness of the decision in Amba Shedthi's Case (1969 (2) Mys.L.J. 377)'. The order of reference does not state that there are decisions of other High Courts in India which are strongly persuasive and take a different view from the view which prevails in this High Court.