Karnataka High Court
Sri K Muddanna Shetty vs Sarojini Shedthi on 13 March, 2026
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RSA No. 1182 of 2009
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1182 OF 2009 (PAR)
BETWEEN:
SRI. K. MUDDANNA SHETTY
S/O K. SANJEEVA SOODA
AGED ABOUT 56 YEARS
FIRST DIVISION ASSISTANT,
DISTRICT PRISON,
SHIVAMOGGA.
... APPELLANT
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. SAROJINI SHEDTHI
SINCE DECEASED REP. BY LRS.
Digitally signed by 1(a). SMT. VANITHA V. SHETTY
CHAYA S A
Location: HIGH W/O SUDHAKAR SHETTY
COURT OF
KARNATAKA D/O SMT. SAROJINI SHETTY
AGED ABOUT 38 YEARS.
1(b). SMT. SUNITHA V. SHETTY
D/O SMT. SAROJINI SHETTY
W/O UDAYA SHETTY
AGED ABOUT 36 YEARS.
R1(a) AND R1(b) ARE R/AT
SRINIDHI NIVAS, MODDU MANE
HANUMAN GARAJ ROAD
D.NO.76, BADAGU BETTU
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CHITAPADY
UDUPI - 576 101.
1(c). SHRI. DINESH SHETTY
C/O SMT. SUJATHA
W/O SHRI DINESH SHETTY
R/AT FLAT NO.303, ORCHID PENTA,
OPP. INDRALI RAILWAY STATION,
INDRALI, MANIPUR ROAD
UDUPI - 573 101.
2. VIJAYALAKSHMI
W/O VITTALA SHETTY
AGED ABOUT 58 YEARS
HOUSE HOLDER
RESIDING AT
BACK SIDE OF GANESH TIFFEN ROOM,
NEAR ADUGODI POLICE QUARTERS,
NANJAPPA LAYOUT,
BENGALURU.
3. B. JAYANANDA SHETTY
S/O MAHABALA SHETTY
AGED ABOUT 56 YEARS
MANAGER,
VIJAYA BANK, P.B. NO.42,
ROTARY ROAD,
THIRD DIBRUGER,
ASSAM - 786 001.
4. B. VINOD SHETTY
SINCE DECEASED REP. BY LRS.
4(a). SMT. SANDHYA V. SHETTY
W/O LATE B. VINODA SHETTY
AGED ABOUT 62 YEARS
R/AT 1ST CROSS,
LALBAHUDUR SHASTRY ROAD,
AJJARKADA,
UDUPI - 576 101.
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4(b). DR. VEEKSHIT SHETTY
S/O LATE B. VINOD SHETTY
AGED ABOUT 38 YEARS
R/AT 1ST CROSS,
LALBAHUDUR SHASTRY ROAD,
AJJARKADA,
UDUPI - 576 101.
4(c). SMT. ANKITHA VIJETH SHETTY
W/O SRI. VIJETH SHETTY
D/O LATE B. VINOD SHETTY
AGED ABOUT 36 YEARS
R/AT 1ST CROSS,
LALBAHUDUR SHASTRY ROAD,
AJJARKADA,
UDUPI - 576 101.
5. B. HARSHAVARDHANA SHETTY
S/O S. MAHABALA SHETTY
AGED ABOUT 52 YEARS
R/AT MAANI, POST: VANDARY
TALUK: BRAHMAVARA
DISTRICT: UDUPI - 576 223.
6. SRI. LEELAVATHI SHETTY
W/O RAGHURAM RAM SHETTY
AGED ABOUT 48 YEARS
HOUSE HOLDER
R/AT HORLALL KELAMANE,
NO.34, KUDI VILLAGE,
UDUPI TALUK ,
KOKKARNE POST.
7. PREMAVATHI HEGGADTHI
W/O K. BALAKRISHNA SHETTY
AGED ABOUT 29 YEARS
R/AT DODDABEDDU IN
KUTKEHALLI VILLAGE,
UDUPI TALUK .
8. ROHITH HEGDE
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HC-KAR
S/O K. BALAKRISHNA SHETTY
AGED ABOUT 27 YEARS
R/AT DODDABEDDU IN
KUTKEHALLI VILLAGE,
UDUPI TALUK .
9. B.K. NARAYANA SHETTY
S/O LATE SADIYANNA HEGDE
AGED ABOUT 64 YEARS
R/AT BELANE KODIGIMANE POST
AMSYE BALL KUNDAPURA TALUK
(VIA SHANKAR NARAYANA)
10. MRS. NAKSHA H. SHETTY
W/O K. UDAYA KUMAR SHETTY
AGED ABOUT 30 YEARS
R/AT HOUSE NUMBER 2-90-1
MUTTINAKATTE,
HOSANGADY VILLAGE,
KUNDAPUR TALUK,
UDUPI DISTRICT - 576282.
11. SRI. H. SUPREETHA SHETTY
S/O BABU SHETTY
AGED ABOUT 40 YEARS
R/AT NO.4-115,
"SREEDEVI KRUPA" HORLALI,
KOKKARNI VILLAGE,
BRAHMAVAR TALUK,
UDUPI DISTRICT -576 234.
12. SRI. K. UDAYAKUMAR SHETTY
S/O GOVINDA SHETTY
AGED ABOUT 41 YEARS
R/AT HOUSE NO.1/176
KEREKATTE, HOSANGADY VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT - 576 282.
... RESPONDENTS
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(BY SRI. VITTAL SHETTY, ADVOCATE FOR R2, R3, R5 & R6;
SRI. ABHISHEK MARLA, ADVOCATE FOR R10 TO R12;
R1(a), R1(b), R4(a) TO R4(c), R7 TO R9 ARE SERVED AND
UNREPRESENTED;
R1(c) APPEAL DISMESSED V/O DATED 19.03.2014)
THIS R.S.A. IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGMENT & DECREE DATED 24TH APRIL, 2009 PASSED IN
REGULAR APPEAL NO.24 OF 1993 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, UDUPI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 17TH APRIL, 1993 PASSED IN ORIGINAL SUIT NO.719 OF
1989 ON THE FILE OF THE PRINCIPAL MUNSIFF AT UDUPI,
DAKSHINA KANNADA.
THIS REGULAR SECOND APPEAL HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
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RSA No. 1182 of 2009
HC-KAR
CAV JUDGMENT
This appeal is filed by the plaintiff challenging the judgment and decree dated 24.04.2009 passed in RA.No.24 of 1993 on the file of the Fast Track Court, Udupi, D.K., (for short, 'First Appellate Court') dismissing the appeal and confirming the judgment and decree dated 17.04.1993 passed in OS.No.719 of 1989 on the file of the Principal Munsiff, at Udupi, D.K., (for short, 'Trial Court') dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments are that the defendant No.1 to 6 are the children of late Mahabala Shetty. The plaintiff, defendant No.7 and Sulochana Shedthi (wife of defendant No.8) are children of Radhamma Shedthi. The original propositus Korathi @ Venkamma Shedthi, had three sons and three daughters, namely, Narasamma Shedthi, Manjamma Shedthi, Mahabala Shetty, Sheenappa Shetty, -7- NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR Shivarama Shetty and Radhamma Shedthi. The parties are governed by 'Aliyasanthana Law' and Hindu Succession Act. Radhamma Shedthi died on 09.01.1960. Smt. Sulochana Shedthi (daughter of Radhamma Shedthi and wife of defendant no.8) died on 04.01.1987, having executed the Will dated 28.10.1986 bequeathing right in favour of her husband -defendant No.8. It is pleaded in the plaint that, there was a Partition Deed dated 06.05.1954, in the family of the plaintiff and defendants wherein, 'C' schedule property is allotted in favour of Radhamma Shedthi. The suit schedule property has been given to the Mahabala Shetty, for limited estate, which had been allotted in favour of Radhamma Shedthi, as per the Partition Deed. It is also stated in the plaint that, the Mahabala Shetty had agreed that, he shall not alienate any portion of the schedule property, which has been the portion of 'C' schedule property mentioned in the registered Partition Deed dated 06.05.1954. It is also stated that, in the event of any alienation is made as to schedule property, the possession -8- NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR of these properties will revert to his family on his death. It is the grievance of the plaintiff that, as the family members were not present in the village on the date of death of Mahabala Shetty, the defendant No.6, and her husband has taken the possession of schedule properties and continued in possession of the same. The plaintiff and defendant No.7 (son of Radhamma Shedthi) had demanded the defendant No.6 and her husband to transfer the possession of schedule property and same was denied and as such, the plaintiff has filed OS No. 719 of 1989, seeking relief of partition and separate possession in respect of schedule property.
4. After service of summons, defendants entered appearance, however, defendant No.1 has filed detailed written statement, denying the averments made in the plaint. The remaining defendants adopted the written statement filed by the defendant No.1. It is the specific contention of defendant No.1 that, the suit schedule property was given to Mahabala Shetty as per Partition -9- NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR Deed dated 06.05.1954 and the Mahabala Shetty died leaving behind his children. It is contended that, the said Mahabala Shetty has no vested right in the suit property, after the coming into force of the Hindu Succession Act. It is stated that, as the Radhamma Shedthi, and her daughter- Sulochana Shedthi, died during the lieftime of Mahabala Shetty and therefore, there is no 'Santhathi Kavaru' in the family of Radhamma Shedthi and therefore, there is no reversion of the suit property to the children of Radhamma Shedthi, and as such sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court has formulated issues. Parties have adduced evidence. Plaintiff has produced 09 documents as Exs.P1 to P9. On the other hand, defendants produced 21 documents as Exs.D1 to D21. The trial Court, after considering the material on record, by its judgment and decree dated 17.04.1993 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA.No.24 of 1993 on the file of First Appellate
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR Court. The said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 24.04.2009 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.719 of 1989. Being aggrieved by the judgment and decree passed by the Courts below, the appellant/plaintiff has preferred this Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908.
6. This Court vide order dated 04.03.2010 has formulated following substantial question of law:
"Whether the courts below have applied the law as set forth in Section 7(2) of the Hindu Succession Act, 1956, in proceeding to determine the devolution of the property on the death of Mahabala Shetty, who had limited right in the suit properties, which was granted to him by way of maintenance during his life time?"
7. I have heard Sri G. Balakrishna Shasty, learned counsel for the appellant and Sri Vittal Shetty, learned counsel appearing for the respondent Nos. 2, 3, 5 and 6;
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR Sri. Abhishek Marla, learned counsel appearing for the respondent No.R10 to R12.
8. Sri G. Balakrishna Shastry, learned counsel for the appellant submits that both the courts below have committed wrong in arriving at a conclusion that, the plaintiff is not entitled for share in the 'Santhathi Kavaru' of late Radamma Shedthi and as such, Section 36(5) of 'Aliyasanthana Act', is not applicable in view of Section 7(2), Section 8 and Section 17 of the Hindu Succession Act, 1956. It is also argued that, the Courts below have failed to consider the fact that, the suit schedule properties allotted in favour of Mahabala Shetty, as per Ex.P1 is not for maintenance and it is the share of Radhamma Shedthi- mother of the plaintiff and same is allotted for limited purpose and therefore, sought for interference of this Court. In this regard, learned counsel for the appellant places reliance on the judgment of this Court in the case of Rathnavathi and others vs. Saraswathi Adappa and others reported in ILR 2014 KAR 659 and submitted that
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR the finding recorded by both the courts below requires to be interfered with in this appeal.
9. Per contra, Sri Vittal Shetty, learned counsel for the respondent Nos.2, 3 5 and 6 submits that on coming into force of Hindu Succession Act, provisions under 'Aliyasanthana Act, was not repealed and was continued and same is reflected in Section 4 of the Hindu Succession Act. Learned counsel appearing for the respondents while placing the reliance on the judgment of the Division Bench of this Court in the case or Ratnamala vs. State of Mysore and others reported in 1968 (1) MLJ 599, and argued that the interest of a reversioner is an interest expectant on the death of a limited heir. He argued that, such a limited interest is not a vested interest and attracts spec successionis within the meaning of Section 6 of the Transfer of Property Act. It is further argued that, Section 37(A) of Madras Aliyasanthan Act, ( Karnataka amendment Act, 1961) is to be considered and as such, contended that the judgment referred to by the learned counsel for the
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR appellant in the case of Ratnavathi, supra is not applicable to the facts of the case. Further it is argued that the plaintiff being a 'Nissanthathi Kavaru' under the 'Madras Aliyasanthana Act' is not eligible to get relief in view of the judgment of the Hon'ble Supreme Court in the case of Sundari and others vs. Lakshmi and others reported in AIR 1980 SC 198 which is applicable to the facts and circumstances of the case. Lastly, it is argued that as both the courts below have concurrently held on the facts and circumstances of the case, same cannot be interfered with in this appeal.
10. Heard the learned counsel appearing for both the parties and perused the original records. Finding recorded by the both the courts below was considered in the light of the submission made by the learned counsel appearing for the parties.
11. On careful perusal of the original records, there is no dispute as to the relationship between the parties. The genealogy of the parties is as follows:
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR KORATHI @ VENKAMMA SHEDTHI Narasamm Manjamma Mahabala Sheenappa Shivarama Radhamma a Shedthi Shedthi Shetty Shetty shetty Shedthi Balakrishna Sulochana Muddanna Shetty Shedthy Shetty =Narayana (Pltff) (D-8) Sarojini Vijayalaksh Jayananda Vinoda Harsha Balakrish Shedthi mi Shetty Shetty Vardhana na (D-1) (D-3) (D-4) Shetty Shetty (D-5) (D-6)
12. It is pertinent to mention here that, Korathi @ Venkamma Shedthi is the original propositus. The said Korathi @ Venkamma Shedthi had three sons and three daughters namely, Narasamma Shedthi, Manjamma Shedthi, Mahabala Shetty, Sheenappa Shetty, Shivarama Shetty and Radhamma Shedthi. The parties are governed by 'Aliyasanthana Law' and Hindu Succession Act. Radhamma Shedthi died on 09.01.1960. Sulochana Shedthi (daughter of Radhamma Shedthi) died on 04.01.1987, and
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR has executed the Will dated 28.10.1986 bequeathing her right in favour of her husband-defendant No.8. There was a Partition Deed dated 06.05.1954 in the family of plaintiff and defendants, which belongs to late Korathi @ Venkamma Shedthi. The immovable properties were divided into three parts, namely Schedule 'A', 'B' and 'C'. Schedule 'A', 'B' and 'C' properties were allotted to three daughters namely, Narasamma Shedthi, Manjamma Shedthi and Radhamma Shedthi respectively. It is not in dispute that, as on the date of the Partition Deed, law governing 'Aliyasanthana' was existing and the male members (Nissanthathi Kavaru) were entitled only life interest. Perusal of Ex.P1 (Partition Deed) would makes it clear that the division of properties are made amongst the daughters of the original propositus (Santhathi Kavaru). Ex. P1 is a Partition Deed dated 06.05.1954 executed for devolution of the properties of the original propositus late Korathi @ Venkamma Shedthi. It is also reflected in Ex.P1 that the Schedule 'C' property was allotted to Mahabala Shetty in lieu of maintenance and the
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR said Mahabala Shetty is having right of life estate in respect of the Schedule 'C' property. After considering the recitals in the Partition Deed dated 06.05.1954 (Ex.P1) and following the law declared by Hon'ble Supreme Court in the case of B. K. Muniraju vs. State of Karnataka and others reported in (2008) 4 SCC 451, it cannot be disputed that the Ex. P1 is nothing but a document of Deed of Partition. It is also not in dispute that, Radhamma Shedthi died on 09.01.1960, and Mahabala Shetty died on 05.10.1987. It is also to be noted that, Smt. Radhamma Shedthi had three children namely, Balakrishna Shetty (defendant No.7), late Sulochana Shedthi wife of Sri. Narayana (defendant No.8) and Muddanna Shetty (plaintiff). On the date of death of Mahabala Shetty, there is no 'Santhathi Kavaru' in the family of late Radhamma Shedthi. Therefore, the question to be answered whether the Schedule 'C' property is revert to the children of Radhamma Shedthi. At this juncture, it is relevant to cite
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR the judgment of the Hon'ble Supreme Court in the case of Sundari (supra). Paragraphs 23 reads as under:
"23. 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 intestate 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 Aliyasanthana law. Section 7(2) and Section 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 kutumba or kavaru of a Hindu belonging to an Aliyasanthana family Section 17 makes the provisions of Sections 8, 10, 15 and 23 with the modifications specified in Section 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provisions of Section 36(5) 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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR governed by the Aliyasanthana law dies possessed 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 Jalaja Shedthi v. Lakshmi Shedthi [(1973) 2 SCC 773 : AIR 1973 SC 2658 : (1974) 1 SCR 707] while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719 (SCC p. 783, para 14):
"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 Section 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." (emphasis supplied) The words underlined by us [ Given here in bold] relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of Section 17 of the Hindu Succession Act as it related to intestate succession. 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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed (SCC p. 785, para 17):
"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."(emphasis supplied) The reference to devolution on intestacy is again in the nature of obiter dicta."
13. At this juncture, it is relevant to follow the declaration of law made by the Hon'ble Supreme Court in the case of Jalaja Shedthi and others vs. Lakshmi Shedthi and others reported in (1973) 2 SCC 773. Paragraphs 16 and 17 as under:
"16. A Full Bench of the Mysore High Court in Sundara Adapa v. Girija [AIR 1962 Mys 72 : ILR 1962 Mys 225] has given a similar answer on facts analogous to the one raised before us. In that case the first defendant who was a nissanthathi kavaru had claimed in his written statement a partition of his own share and was granted 75/360th share in the preliminary decree. By a will he left to his wife and children all his rights in the properties due to him on account of his share. There was also likewise a santhathi kavaru. Under the Aliyasanthana Act on the cessation of the first defendant's
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR life interest the property would devolve upon the nearest santhathi kavaru according to sub-section (5) of Section 36. But it was contended as is contended in this case that by virtue of Explanation to sub-section (1) of Section 30 of the Succession Act, the rights of the first defendant is his 75/360th share of his properties became capable of being disposed of by will and, therefore, the children of the first defendant could be entitled to the share in accordance with the terms thereof. Hegde, J., as he then was, delivering the judgment of that Court observed at pp. 238-239:
"The object of Section 30 is clear. That section neither directly nor by necessary implication deals with the devolution of divided interest. As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, as done by Sri Bhat, that if the Explanation to Section 30(1) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of the kavaru would be larger in extent than one as provided under Section 7(2) of the 'Act'. In the case of a share under the Aliyasanthana Act the kavaru takes his share on the basis of half-per capita, half perstirpas. Under Section 7(2) the share is determined on per capita basis. Quite clearly the object of bounty under Section 7(2), read with Section 30 is the donee under the will of a deceased coparcener. The fact that divided members also do not get
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR corresponding benefits under the Act is no relevant test. If Parliament wanted to enlarge the interest of divided male members nothing would have been easier than to enact a provision on the lines of Section 14(1) of the "Act", provided Parliament had competence to do so. Further, the Explanation to Section 30(1) speaks of 'The interest of a Male Hindu' in his 'kutumba' or 'kavaru' property. The definite article 'the' evidently refers to the interest specified or quantified in some other provision of the 'Act', it could not refer to the unascertained interest of a coparcener in a kutumba. Obviously 'the interest' referred to is the interest quantified under Section 7 of the 'Act' to which reference will be made in greater detail at a later stage.
Quite clearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30(1) of the 'Act' must fail."
17. The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act. The learned Advocate for the appellants, however, has tried to distinguish this case on the ground that the effect of Section 17 of the Succession Act was not considered in that case. In our view, that question was not
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasanthana Law if the Succession Act had not been passed with the modifications provided therein. 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. Even the argument that under Section 7(2) Chandayya Shetty's life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasanthana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under Section 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shetty's interest enured till his lifetime only."
14. It is also to be noted that, this Court in Ratnamala supra, at paragraph 6 and 7 held as follows:
"6. Under the customary Aliyasantana Law, every member of a Kutumba has equal rights in the properties of the Kutumba by reason of his or her birth. On the death of any member his or her interest in the Kutumba properties devolves on
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR other members of the Kutumba by survivorship as both male and female members have equal right in the Kutumba property. The limited estate of a Hindu woman, so familiar to Mitakshara, is unknown to Aliyasantana system.
7. Till the passing of the Madras Aliyasantana Act (Madras Act No. IX of 1949) (hereinafter referred to as the Madras Act), no member of a Kutumba nor even a Kavaru could enforce compulsory partition. A partition in an Aliyasantana family could be effected only with the consent of all the adult members of the family. Such partition would ordinarily be binding on minors. Junior members of the family were entitled to be maintained by the Yajaman or Yajamanti (head of the family). The right to maintenance was the mode in which a junior member enforced his or her right of co-
proprietorship in the Kutumba properties. Under certain circumstances, junior members were also entitled to separate maintenance. While awarding maintenance to junior members, the Courts used to divide the family income on per capita basis after making due provision for family expenses like 'Viniyogas'."
15. In the case of Ramanna Rai and another, vs. Janannatha and others reported in AIR 1982 KAR 270, it is held that, after coming into the force of Hindu Succession Act, Succession of the parties, to the property allotted to 'Nissanthathi Kavaru', is as per Section 7(2) and Section 17 of the Hindu Succession Act and not under the
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR provisions of 'Aliyasanthana Act'. In this regard, it is relevant to extract paragraphs 10 to 16 reads as under:
"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 'Kavaru' die, the properties would revert back to the nearest 'Santhathi Kavaru' under Sec. 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 'D' Schedule properties after the death of Muthappa Shetty was illegal and opposed to the provisions of Sec. 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 intestate succession, as the case may be, under this Act and not according to the Aliyasantana law."
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR An explanation is added to that sub-section, 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, Sec. 3 of that Act amends Sec. 36. It reads:--
"In sub-section (2) of Sec. 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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR 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-sec. (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 capital 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-sec. (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-sees. (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 Sec. 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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR 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 Sec. 7(2) of the Hindu Succession Act, 1956, on the Aliyasantana Law, in the case of Sundari v. Laxmi ((1980) 1 SCC 19 : AIR 1980 SC 198). 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 Sec. 36(5) of the Aliyasanthana Act has to give way to the
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR provisions of Sec. 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 Sec. 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 Sec. 7(2) of the Hindu Succession Act as also the observations made by the Supreme Court of India in the case of Jalaja v. Lakshmi ((1973) 2 SCC 773 :
AIR 1973 SC 2658). 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 Sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR 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 Sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While Sec. 7(2) relates to devolution of undivided interest in the property of a Aliyasanthana family Sec. 17 makes the provisions of Secs. 8, 10, 15 and 23 with the modifications of specified in Sec. 17 applicable to the devolution of separate property of a Hindu under Aliyasanthana law. According to the provisions of Sec. 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 Jalaja 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 Sec-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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR property devolve upon his heirs by intestate succession. The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of Sec. 17 of the 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 Sec. 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 Sec. 7(2) or Sec. 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 Kavaru' 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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR 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 Aliyasantaniga 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-sec. (2) of Sec. 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 his 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
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR 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."
16. Therefore, following the declaration of law made by the Hon'ble Supreme Court in the Sundari (supra) and also in the case of Jalaja Shedthi, (supra ), I am of the view that as the Partition Deed, dated 06.05.1954 (Ex.P1) executed prior to the promulgation of Hindu Succession Act, 1956 and further, 'C' schedule property was allotted in favour of Radhamma Shedthi, who died on 09.01.1960 and that apart, the daughter of Radhamma Shedthi-Sulochana Shedthi died on 04.01.1987, issueless, and therefore in the absence of Santhathi Kavaru in the family of Radhamma Shedthi, the finding recorded by the both the courts below is just and proper and therefore, there is no reversion of the 'C' Schedule property to the legal heirs of Radhamma Shedthi. The applicability of judgment of Division Bench of this Court in Ratnavati (supra), as contended by the learned counsel for the
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR appellant is applicable only if the succession opens after the death of Radhamma Shedthi, before the enactment of Hindu Succession Act, 1956. Since, Radhamma Shedthi, died after the promulgation of Hindu Succession Act, 1956 and till then the succession was not opened in the family of Radhamma Shedthi and therefore, judgment of the Hon'ble Supreme Court in the case of Sundari (supra) is aptly applicable to the facts and not the judgment of Ratnavati (supra) under the circumstances of the case, as per the mode of devolution of 'C' schedule property is as per Section 36(5) of Madras Aliyasanthana Act. Therefore, the provisions under Section 7(2) and Section 17 of the Hindu Succession Act, is applicable to the facts of the case, in view of Section 4 of the Hindu Succession Act, having precedence over, the Aliyasanthana Law. In that view of the matter, the finding recorded by both the courts below is to be confirmed and the judgment of this court in the case of Ratnavati (supra), is not applicable to the facts of this Case. Hence, the substantial question of law referred to
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NC: 2026:KHC:15128 RSA No. 1182 of 2009 HC-KAR above, favours the defendants and as such, the Regular Second Appeal is accordingly, dismissed.
SD/-
(E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 49