LAXMI Vs. PARAMESHWARI HENGSU

JUDGEMENT

(1.) These Revision Petitions, which are directed against a common order made by the Civil Judge at Mangalore on two interlocutory Applications before him, raise a common question of law as to whether and if so, in what manner, the provisions of sub-section (2) of Section 7(2) of the Hindu Succession Act, 1956, (Central Act 30 of 1956) operate on the death of a party in a suit for partition of the properties of a Hindu family governed by the Aliyasanthana law.

(2.) The details of the previous proceedings in this matter to the extent necessary for the disposal of the above question are briefly the following:

(3.) The parties are governed by the Aliyasanthana law prevalent in the District of South Kanara. They constituted a family or kutumba descended from a common ancestress Majekke. One Parameshwari and a daughter and a son of hers as plaintiffs instituted Original Suit No. 91 of 1950 before the Court of the Subordinate Judge at South Kanara for partition of its properties, pursuant to and in the light of the provisions of the Madras Aliyasanthana Act 1949, (Madras Act IX of 1949). Apart from the contentions based on the merits of their case, one important defence to the suit was that a certain award decree made in Original Suit No. 314 of 1924 on the file of the District Munsiff, Mangalore, amounted to a partition within the meaning of sub-section (6) of Section 36(6) of the Madras Aliyasanthana Act. This was made the subject of issue No. 1. The trial court decided this issue against the plaintiffs and held that the suit for partition was not therefore sustainable. Although it recorded findings on some of the other issues also including issue No. 3 regarding the shares to which members or several branches are entitled in the event of there being a decree for partition, the Court ultimately dismissed the suit in view of its finding on the first issue.