GUMMANNA SHETTY Vs. NAGAVENI AMMA

JUDGEMENT

(1.) This appeal-arises from an order made in RIA.1 of 1967 in O.S.No.69 of 1953 on the file of the Court of the Civil Judge at Mangajore, South Kanara. It is by the plaintiffs in O.S. 69 of 1953 filed before the then Court of the Subordinate Judge, South Kanara. The same number has been retained in the present Court of the Civil Judge of the place.

(2.) The material facts giving pise to this appeal are briefly these. The parties in O.S.69 of 1953 are governed by . Aliyasanthana, Law. Defendant Dharnamma, got certain properties to her share by virtue of a karar of the year 1900. The present suit has been filed for partition and separate possession of the plaintiffs 26/36 share in the suit schedule properties including those that were allotted to her personally on the basis that the said ancient karar of 1900 was merely a maintenance arrangement and not a deed of partition. The defence of- Dharanamma was that it wag a partition out-right. The trial Court made a decree fox partition holding that the said deed was not a deed of partition and that Dharanamma was a "Nissanthathi kavaru". Dharanamma appealed against that decree before the High Court of Madras, which had jurisdiction at the relevant time. After the reorganisation of States that appeal stood transferred to this Court and registered as R.A. (M) 70 of 1956. By its judgment dt.22-10-1961. this Court held that the so called Karar of 1900 was in fact a deed of partition and consequently reversed the judgment of the trial Court and dismissed the suit. It is relevant to note that when the appeal was pending before this Court the defendant Dharanamma died on 7-5-1957, whereupon the present respondent 1, Nagaveni, brought herself on record on the basis of a will executed by Dharanamma, as her legal representative. Aggrieved by the judgment of this Court, the plaintiffs appealed to the Supreme Court, the judgment in which has since been reported in AIR 1967 SC 1595. By that judgment the Supreme Court reversed the judgment of this Court and restored that of the trial Court, holding inter alia that the Karar of 1900 was not a deed of partition. As a result of these proceedings the matters stood remitted to the trial Court for final decree proceedings. In the course of the said proceedings the plaintiffs (appellants herein) made an application RIA.1 of 1967 praying for delivery of possession of the entire suit schedule properties and monies in deposit in Court on the ground that once the Karar of 1900 had been field to be not a deed of partition, the life estate of Dharananima came to an end with her death in the year 1957 by virtue of S.36(5) of the Madras Aliyasanthana Act of 1949. As a result of such a consequence the appellants were entitled to the whole of the estate by virtue of devolution provided for under the provisions of that Act. This application was resisted by Nagaveni, the legal representative of Dharanamma. Her contention n the main was that by virtue of the provisions of S.14(1) of the Hindu Succession Act of 1956 and on account of the fact that Dharanammma lied subsequent to the coming into force of the said Act, Dharanamma's state stood enlarged into a full estate, and therefore, by virtue of the Will executed by the said Dharanamma she had become a full owner there of as her legatee. The Court below accepted the contention of Nagaveni 'respondent 1 herein) and dismissed the application of the plaintiffs. Hence this appeal.

(3.) On behalf of the appellants Shri B. P. Holla, the learned Counsel ubmitted, that by virtue of the opinion of a Full Bench of this Court endered in Shivadeviamma v. Sumanaji, 1973 1 Mys.L.J 401. the provisions of S.14(1) of Hindu Succession Act should be held inapplicable to the estate of nissanthathi kavaru represented by Dharanamma. On behalf of the 1st respondent Shri Padubidri Raghayendra Rao, the learned Counsel did not dispute that the opinion of the Full Bench would be conclusive of the question raised herein on behalf of the appellants, although he was unwilling to concede that the decision lays down the correct law. What he, however, contended is that the 1st respondent came on record on the basis of a Will executed by the late Dharanamma and the said Will had not been questioned on behalf of the appellants at that time. Further when the matter was taken up in appeal before the Supreme Court of India by the aforementioned case, it was open to the appellants in the context of the Acceptance of the said Will to have raised the question of the applicability of S.14(1) of Hindu Succession Act, in regard to nissanthathi kavaru of the kind represented by Dharanamma.