1. This appeal by defendants 1 and 2 directed against the judgment and decree dated 28-1-1975 passed by the Principal Civil Judge, Mangalore, in Regular Appeal No. 32 of 1974, on his file, allowing the appeal on reversing the judgment and decree dated 19-12-1973 passed b, the Principal Munsiff. Putlur, South Kanara, in Original Suit No. 163 of 1973, on his file: dismissing the suit of the plaintiffs for permanent injunction.
2. It is the case of the plaintiff that in a family partition among the defendants and one Beeranna Rai, the father of the plaintiffs, under a registered partition deed dated 13-5-1966, Beeranna Rai was allotted and put in exclusive possession of the plaint 'A, schedule properties. Beeranna Rai died in the year 1969 and. after his death, his wife Seethu Hengsu, the mother of the plaintiffs, was in exclusive possession of the plaint 'A, schedule properties till her death in 1970, Thereafter, the mother of Seethu Hengsu i.e., the grand mother of the plaintiffs, as guardian of the plaintiffs, has been in possession of the plaint 'A' schedule properties on behalf of the plaintiffs ' The defendants are in possession of the properties allotted to their respective shares as per the aforesaid partition deed. The defendants requested the grandmother of the plaintiffs to lease out the plaint schedule properties to them. But the request was not granted and, therefore, the defendants, according to the plaintiffs, have been trying to take forcible possession of the plaint 'A' schedule properties. On 12-6-1973 at about 7.00 A. M., when the grandmother of the plaintiffs sent her men to Plough the paddy fields, the defendants, according to the plaintiffs, came with armed men and obstructed the ploughing. Hence, the plaintiffs, instituted, through their grandmother as guardian, the suit for injunction before the trial Court as Original suit No. 163. of 1973 on the file of the Principal Munsiff. Puttur.
3. The suit was resisted by the defendants. The defendants and late Beeranna Rai were members of an 'Aliyasantana family which entered into to a registered partition deed dated 13-4-1955 whereunder the properties covered by the '131 schedule thereof were allotted to the shares of the defendants and late Beeranna. Rai as well as deceased Muthappa Shetty. These four persons constituted a 'Nisanthathi Kavaru' and had limited estate in the properties so allotted and the properties are to revert. according to them, to the nearest 'Santhathi Kavarul after the death of all the shares. Thus, these four persons had a right to enjoy those properties during their lifetime. After the death of Muthappa Shetty, the entire 'D' Schedule properties stated above were enjoyed by the surviving three sharers. Beeranna Rai, being one of them, had only a right of enjoyment only. The plaintiffs are his children. They have no right in the plaint 'A' schedule properties which are a part of the said 'D' schedule properties as noted in the partition deed of 1955. A registered partition deed was entered into on H-51966 and the said properties were purported to be allotted to the share of late Beeranna Rai. Beeranna. Rai died in about 1969. Beeranna. Rai was no( in exclusive possession and enjoyment of the plaint 'A' schedule properties. They denied that. Beeranna Rai and, after his death, his wife Seethu Hengsu were in possession of those properties and that the plaintiffs continued in possession of the plaint 'A' schedule properties thereafter with their grandmother as their guardian, They further contended that the life estate of Beeranna Rai could not enlarged by consent of parties. According to them. the partition was void in the eye of law. Hence, they contended that the suit for injunction was not maintainable.
4. The trial court raised the following issues as arising from the pleadings.
(1) Whether the plaintiffs were in lawful possession of the suit 'A' schedule properties on the date of the suit?
(2) Whether the alleged interference is true?
(3) If so, whether the plaintiffs are entitled for permanent injunction, as prayed for?
5. The trial Court, appreciating the evidence on record, held that the plaintiffs were in possession of the suit schedule properties. But, it came to the conclusion that the possession was not juridical. According to it, though the interference was true, injunction could not be issued since possession of the plaintiffs was not juridical. In that view, the trial Court dismissed the suit. The plaintiffs, aggrieved by the said judgment and decree, went up in appeal before the Principal Civil Judge, Mangalore, in Regular Appeal No. 32 of 1974, on his file, The learned Civil Judge. in the course of the judgment, raised the following points as arising for his consideration-,
(1) Whether the plaintiffs were in possession of the suit properties as on the date of the suit?
(2) Whether the possession of the plaintiffs was lawful?
(3) Whether the alleged interference is true?
(4) What order?
6. Reassessing the evidence on record. the learned Civil Judge answered Points Nos, 1 to 3 in the affirmative and, in that view, he allowed the appeal, reversed the judgment and decree of the trial Court and decreed the suit of the plaintiffs as prayed for, Aggrieved by the same, defendants I and 2 have come up with the above second appeal before this Court,
7. The learned Counsel appearing for the appellants strenuously urged before me that the learned Civil Judge was not justified in coming to the conclusion that the plaintiffs were in juridical possession of the suit properties. According to him, the entire properties were allotted, as per schedule 'D' in the partition deed of 1955 to the 'Nissanthathi Kavaru' and according to Aliyasanthana Law as also as per the stipulations in the deed, the properties were to go to the surviving persons. In all, there were four brothers in the 'Nissanthathi Kavaru.' When Muthappa Shetty died, the remaining three remained as owners. When Beeranna Rai died, the present defendants were the owners and, as such he contended that the learned Munsiff was perfectly justified in coming to the conclusion that possession of the plaintiffs was not lawful. Hence, he submitted that the judgment and decree of the learned Civil Judge should be set aside and those of the learned Munsiff sustained and restored.
8. As against that, the learned Counsel! appearing for the respondents/plaintiffs invited my attention to See. 7 (2) of the Hindu Succession Act as also the amendment to the Madras Aliyasantana (Mysore Amendment) Act, (Karnataka Act No. 1 of 1962) That way he submitted that the possession of the Plaintiff is perfectly lawful and that the learned Civil Judge was justified in decreeing the suit of the plaintiffs, as ,prayed for.
9. The sole point, therefore, that arises for my consideration in this appeal is: 'Whether the learned Civil Judge was justified in holding that the plaintiffs were in juridical possession of the suit properties on the date of the suit?
10. It is no doubt true that under the Aliyasanthana Law, the shares allotted to the 'Nissanthathi Kavaru' were to be enjoyed by the members of that 'Kavaru' for life and. on the death of any of the brothers, the properties would devolve on the rest of the surviving brothers, and when all the members of that 'Kavarul die, the properties would revert back to the nearest 'Santhathi Kavaru' under Section 36(5) of Madras Aliyasantana Act. It is in that view that the learned Counsel pointed out that the partition effected among the three brothers in 1966 in ID' Schedule properties after the death of Muthappa Shetty was illegal and opposed to the provisions of Section 36 (5) of the aforesaid Act.
11. That may be so before the amendment of the Aliyasantana Law by the Hindu Succession Act as also by Karnataka Act No. 1 of 1962.
12. Section 7(2) of the Hindu Succession Act reads :-
'When a Hindu to whom the aliyasantana Law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a Kutumba or kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or interstate succession, as the case may be, under this Act and not according to the Aliyasantana law.'
An explanation is added to that subsection. which reads:-
'For the purposes of this sub-section, the interest of Hindu in the property of a Kutumba or kavaru shall be deemed to be the share in the property of the kutumba or kavaru, as the case may be that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the Aliyasantana law. and such share shall be deemed to have been allotted to him or her absolutely.'
13. It is needless for me to point out that the Hindu Succession Act came into force on 17-6-1956. Thereafter, there was a further amendment to the Madras Aliyasantana Law by Karnataka Amendment Act No. 1 of 1962. Inter alia, Section 3 of that Act amends Section 36. It reads :-
'In sub-section (2) of Section 36 of the principal Act, clauses (e), (f) and (g) shall be omitted.'
It further inserts a new Section numbered as '37A' which reads:-
'Partition of properties of Kutumba or kavaru after the commencement of the Madras Aliyasantana (Mysore amendment) Act, 1961: (1) on and after the date of commencement of the Madras Aliyasantana (Mysore Amendment) Act 1961 any male or female member of a kutumba or kavaru having undivided interest in the properties of the kutumba or kavaru shall be entitled to claim partition of his or her share in the properties of the kutumba or kavaru. as the case may be.
(2) Where any male or female member of a kutumba or kavaru entitled to claim partition under sub-section (1), claims partition of his or her share, such person shall be allotted such share in the properties of the kutumba or kavaru, as the case may be, that would fall to him or her if a division of such properties were made per capita among all the members of the kutumba or kavaru, as the case may be, living on the date on which the partition is claimed.
(3) The share which a male or female member of the kutumba or kavaru is entitled to take at a partition under sub-see. (2) shall vest in him or her absolutely with effect from the date on which the partition is claimed.
Explanation:- For the purposes of sub-secs. (2) and (3), the date on which the partition is claimed shall be:-
(i) 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
(ii) where the claim is made otherwise than by a suit, the date on which such claim is made.'
14. Reading See. 37A of the Madras Aliyasantana (Mysore Amendment) Act, 1961, with Explanation, the learned Counsel appearing for the respondents submitted that from the date on which the registered partition took place among the surviving brothers in 1966, the properties vested absolutely in the various shares, including Beeranna Rai, the deceased father of the plaintiffs, for, the Amending Karnataka Act No. 1 of 1962 has come into force on 11-1-1962. it having received the assent of the President on 2-1-1962. It was first published in the Karnataka Gazette after having received the assent of the President, on 11-1-1962.
15. The Supreme Court of India had an occasion to consider the effect of Section 7(2) of the Hindu Succession Act, 1956, on the Aliyasantana Law, in the case of Sundari v Laxmi : [1980]1SCR404 . It is on an appeal from this Court, (Vide 1968 (2) Mys LJ 454): (AIR 1969 Mys 175). In Para 14 inter alia, their Lordships have observed:-
'At the time of the partition if any Kavaru taking a share is a Nissanthathi Kavaru. it shall have only a life-interest in the properties allotted to it under certain circumstances and the property would revert back to a Santhathi Kavaru if it is in existence. Section 36 (3) of the Madras Aliyasantana Act provides that the properties allotted to Nissanthathi Kavaru at a partition and in which it had only a life-interest at the time of the death of the last member, shall devolve upon the Kutumba or where the Kutumba has broken up, at the same or at a subsequent partition, into a number of Kavarus, upon the nearest santhathi kavaru or kavarus. The devolution of the property allotted to a Nissanthathi Kavaru which has only a life interest devolves upon a kutumba or the nearest santhathi kavaru. This mode of devolution prescribed by Section 36 (5) of the Aliyasanthana Act has to give wav to the provisions of See. 8 of the Hindu Succession Act which prescribed a different mode of succession.'
Proceeding further, in Para 15 of the judgment, their Lordships have observed:-
'The effect of the provisions of Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under Section 7(2) while in the case of separate property it would devolve on heirs as provided for in the Hindu Succession Act. Even though a Nissanthathi Kavaru might have a limited interest as the devolution prescribed for in the Madras Aliyasanthana Act is no more applicable the devolution will be under the Hindu succession Act.'
Speaking on the effect of Section 7(2) of the Hindu Succession Act as also the observations made by the Supreme Court of India in the case of Jalaia v. Lakshmi : [1974]1SCR707 . Their Lordships, in para 23 have observed:-
'The plea of the learned counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of Section 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the interstate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and not by the Aliysanthana law. Section 7(2) and See. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While Section 7(2) relates to devolution of undivided interest in the property of a Aliyasanthana family Sec. 17 makes the provisions of Sees. 8, 10, 15 and 23 with the modifications of specified in Section 17 applicable to the devolution of separate property of a Hindu under Aliyasanthana law. According to the provisions of Section 36 (5) of the property allotted to Nissanthathi Kavaru at a partition is enjoyed by it only as a life interest and at the time of the death of the last of its members shall devolve upon the Kutumba. This devolution of the life-interest is according to Section 36 (5). When a Hindu governed by the Aliyasanthana law dies possession of a life-interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert back to the kutumba. This Court in Jalaia v. Lakshmi (supra). While deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at P. 719 : 'Similarly on the same parity of reasoning when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of See 7(2) of the Succession Act, and if he has no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession. The words underlined by us relate to in7 testate succession and the Court has specifically stated that it was not referring to the provisions of Section 17 of 1he Hindu Succession Act as it related to intestate succession are these observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under Section 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore. it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed: 'In this case also as already stated, there is no kavaru of Chandayya Shetty. and on separation he had only a life-interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy., The reference to devolution on intestacy is again in the nature of obiter dicta.'
16. Thus, it is obvious that after the coming into force of the Hindu Succession Act, the succession opens even with regard to property allotted to the 'Nissanthathi Kavaru. under the 'Aliyasanthana Law under See, 7(2) or Section 17, as the case may be and not under the Aliyasantana Act and, as is stated very clearly in the Karnataka Amendment Act No. 1 of 1962, if the members of a 'Nissanthathi Kavarul partition amongst themselves, the properties vest in them absolutely from the date of partition. That is made very clear by reading Section 37A as also the Statement of Objects and Reasons to the Section published in the Gazette. It is relevant to reproduce here the Statement of Objects and Reasons of Karnataka Act No. 1 of 1962. It reads:
'Representations have been received from the Jains governed by the Aliyasantana law that the provisions of the Madras Aliyasantana Act 1949, should be amended to enable the members of a Kutumba or kavaru to take their share in the properties of the kutumba or kavaru. as the case may be. The Ahyasantaniga Women's Association of South Kanara and others have also represented that there is urgent need to amend the said Act.
The Madras Aliyasantana Act, 1949. has made provision for partition of the properties of a kutumba among the kavarus of such kutumba, Under Sub-see. (2) of See. 7 of the Hindu Succession Act 1956, (Central Act 30 of 1956). it has been laid down that when a Hindu who has an undivided interest in such property of a kutumba or kavaru dies, his or her interest in such property shall devolve by testamentary or intestate succession under that Act and not according to the Aliyasantana law. The explanation to this sub-section indicates that hi-s or her interest in the property will be the share which he or she would have got if a partition per capita of the property of the kutumba or kavaru then living, and that the share of such person shall be deemed to have been allotted to him or her absolutely. The effect of these provisions is that in the case of a Hindu governed by the Aliyasantana law, his or her heirs will be entitled to his or her share in the property of the kutumba or kavaru only on his or her death: but the person concerned cannot himself enjoy the property by taking it at a partition. In view of the representations made. it is considered desirable to amend the law to enable such Hindus to take their share in the kutumba or kavaru properties by partition during their lifetime also.
Hence -this Bill.'
17. That being so, it is obvious that neither the ruling of this Court reported in (1962) 40 Mys LJ 1: (AIR 1962 Mys 72) (FB) or the ruling in : [1974]1SCR707 , hold the field now. Examining the facts in this perspective, I am satisfied that the possession of the plaintiffs on the date of the suit is perfectly legal /and valid since these properties were allotted to the share of Beeranna Rai in the partition among the members of the 'Nissanthathi Kavaru' in 1966. Both the Courts below have concurrently held that possession is with the plaintiffs and, agreeing with the learned Civil Judge. I have no hesitation to hold that their possession is juridical for reasons stated above.
18. In the result, therefore the appeal fails and is dismissed.
No costs.
19. Appeal dismissed.