BHAVANI SHEDTHI Vs. LALITHA ALVA

JUDGEMENT

(1.) Defendants 2 to 8 in O.S. 15/1967, on the file of the Civil Judge, Udipi have filed this appeal against the preliminary decree for partition passed therein. The plaintiffs instituted the said suit fox partition and separate possession of their share in the kutumba properties. The properties are governed by Aliyasanthana Law. Before instituting the said suit, they caused a notice dt. 25-1-1965, issued to the first defendant who was the yajaman of the kutumba claiming their share in the family properties. Later or the suit was instituted on 11-4-1967. Some of the defendants- contended that the members of the kutumba had become divided in the year 1959 and not on the date on which the notice was issued by the plaintiffs. Defendant 9 claimed that, the kutumba became divided in September, 1966. The Court below was of the opinion that the kutumba became divided on the date of the plaint i.e., on 11-4-1967 and on that basis, passed a preliminary decree.

(2.) Aggrieved by the said preliminary decree, the defendants 2 to 8 have filed this appeal. The only question canvassed by Sri Mohandas N. Hegde for defendants 2 to 8 before us relates to the date on which the family became divided . It is not disputed that if 25-1-1965 on which date the plaintiffs caused a notice issued to the first defendant claiming their share, is taken as the relevant date, some of the defendants 'who were born subsequently cannot be taken into account for the p'urpose of determining the shares to which the parties are entitled. That is so in view of the amendment to the Madras Aliyasanthana Act made by Mysore Act I of 1961. The Explanation in S.37(a) of Madras Aliyasanthana Act as amended by the Madras Aliyasanthana (Mysore Amendment) Act, 1961 (I of 1962), which has a bearing on the question involved in this appeal, reads as follows : " Explanation:-For the purposes of sub-secs(2) and (3), the date on which a partition is claimed shall be- (a) Where the claim is made by a suit for partition, the date of the institution of the suit (whether the suit is prosecuted or not), and (b) Where the claim is made otherwise than by a suit, the date on which such claim is made." It was not, disputed that the plaintiffs issued notice dt.25-1-1985, claiming their share in the Kutumba properties and that the said notice was also received by the first defendant who was the yajaman of the family. The question for consideration is whether the issue of a notice resulted in the disruption of the entire family.

(3.) Sri Tilak Hegde, learned Counsel for the defendants 9 to 20, contended that the separation of one or few members of Aliyasanthana family, need not result in the division of the remaining members of the family and hence the date of suit or the date of the written statement in which any member of the family claimed his or her share in the family properties, should be taken as the date of division of status. He was not able to cite any decision either of this Court or of any other High Court in which the said question has been considered in relation to an Aliyasanthana family, in so far as a joint Hindu family governed by the Mitakshara law is concerned, the law on the above question is settled by the decision of the Supreme Court in Bhagawati Prasad Sha v. D. R. Kuer AIR. 1952 SC. 72,, Mukherjea, J. (as he then was), speaking for the Supreme Court observed in the above decision as follows :