MAHALINGA SHETTY Vs. JALAJA SHEDTHI AND ORS.

JUDGEMENT

(1.) THESE two appeals arise out of O.S. No. 144 of 1950 on the file of the Subordinate Judge's Court, South Kanara, at Mangalore, which was a suit for partition by some members of an Aliyasantana family against the other members and the question that the learned Judge had to decide, in the main, was whether the karar Exhibit A -3, dated 30th April, 1931, did attract the operation of Section 36(6) of the Madras Aliyasantana Act (Act IX of 1949) or not. The facts may be shortly stated.

(2.) UNDER a partition deed Exhibit A -2, dated 5th June, 1918, the family of the present parties got divided from their parent kutumba and in that document the B -schedule properties were allotted to this family. One item in the schedule to Exhibit A -2 had been separately demarcated for Daiva Devara Viniyogas to be performed by the present 2nd defendant. Exhibit A -3 is a Thaka Karar to which 1st defendant, and defendant, 1st plaintiff and the deceased Nethravathi Shedthi as well as defendants 3 and 4 were parties as adults and the descendants of the female members were included as minors. In and by that document the properties were allotted jointly for the enjoyment of all the family members except the 2nd defendant to whom some items were given. The question is whether this document amounts to a partition as contemplated by Section 36(6) of the Aliyasantana Act. The learned Subordinate Judge has found that Exhibit A -3 cannot attract the operation of Section 36(6) for the reason that the distribution was not among the kavarus as the allotment was only made to one individual for his enjoyment during his life -time. It was further held that the right of enjoyment conferred upon the 2nd defendant was not absolute and was not meant to be in perpetuity. On these grounds the plaintiff's suit was decreed in accordance with the conditions prevailing on the date of the plaint.

(3.) THE question is whether these four conditions have been satisfied. With regard to the first and second conditions it is agreed between the parties that there is no difficulty. Even with regard to the third condition the whole of the kutumba properties were intended and purported to have been distributed. Here also there is no difficulty. The bone of contention is with regard to the fourth requisite namely whether there has been a distribution among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. Mr. Krishna Rao contends that though there has been no distribution individually among the number of kavarus that constitute the family at the time of Exhibit A -3, there is distribution so far as one nissanthathi kavaru is concerned and there is collective distribution regarding the other kavarus. If that is so, it would be sufficient to attract the operation of Section 36(6). In Appeal No. 545 of 1951 to which one of us was a party in discussing a similar contention it was stated as follows: