Indian Kanoon - Search engine for Indian Law

10. In the course of the final decree proceedings, the legal representatives of the 24th defendant filed R. I. A. No. 2259 of 1966, and the legal representatives of the 23rd defendant filed R. I. A. No. 2266 of 1966 claiming that out of the share allotted to the kavaru of defendants 22 to 24, one third representing the share or interest of the 24th and 23rd defendants respectively be allotted to them. The said applications were opposed both by the surviving 22nd defendant as well as by defendants 11, 12 and 16. Defendants 11, 12 and 16 contended that each one of the defendants 22, 23 and 24 was a separate nissanthathi kavaru and that on the death of each of defendants 24 and 23, his share or interest devolved upon the santhathi kavarus nearest to him to which defendants 11, 12 and 16 belong, under sub-section (5) of Section 36 of the Madras Aliyasanthana Act. Defendant 22, on the other hand, contended that all the three defendants 22, 23 and 24 constituted one single nissanthathi kavaru to which under preliminary decree, one single or joint share was allotted, and that therefore the said share has survived to the last surviving member thereof (22nd defendant), and that no devolution on a Santhathi kavaru under sub-section (5) of Section 36 is possible until the last member of the nissanthathi kavaru, viz., the 22nd defendant, dies.

11. The Civil Judge, after observing that the suit was directed by the High Court and that defendants 22 to 24 were allotted shares jointly as per the decree dated 28th June, 1961, rejected the contention of the applicants before him in the following terms:

"The contention of the learned counsel for the petitioners is that defendants 23 and 24 were undivided at the time of their death and therefore, under the provisions of the Hindu Succession Act, the shares allotted to them would devolve upon their wife and children and therefore, the present petitioners are entitled to the shares allotted to deceased defendants 23 and 24. I am unable to accede to this contention of the petitioners. As stated, they expressed their desire to be separated in the written statement and they became divided. They took their shares as Nissanthathi Kavarus and under the provisions of Madras Aliyasanthana Act of 1949, their shares would devolve upon the nearest santhathi kavarus."

12. Later, in para 6 of his order, he observed:--

"In the instant case, it could be seen from the genealogy appended to the plaint, that defendants 22, 23 and 24 are the children of one Thankaju. They formed three different nissanthathi kavarus as their mother was dead at the time of the filing of the suit and partition was effected. They were members of three separate kavarus and the shares allotted to them would be only of life interest and that would only devolve upon the nearest santhathi kavarus as the kutumba had been broken up by virtue of the preliminary decree for partition. The provisions of the Hindu Succession Act cannot be made applicable to the facts of the present case, and I am unable to accede to the contention that the shares of defendants 23 and 24 would devolve upon the 22nd defendant alone and after the death of the 22nd defendant, they would devolve upon the nearest santhathi kavarus."

33. The anomalies referred to by Mr. Holla arise out of the basic concept that the destination of the property that devolves, varies or may vary from person to person, depending upon whether he died divided or undivided and on the relative dates of death of different of different persons. Such different results depending upon the situation of the property, the plurality of persons owning the same, the nature of their interest during different dates of their life time and the quantum and nature of the property owned by a person at the time of his death, are ordinary consequences of different rules of law governing the ownership, enjoyment, disposal and devolution of property. If it is contended that in the light of this decision the interest of defendants 24 and 23 will devolve under the Aliyasanthana Act and that the same is an anomaly, such anomaly can be cured only by legislation and not by decisions of Courts. Apparently section 37-A introduced into the Aliyasanthana Act by the Madras Aliyasanthana (Mysore Amendment) Act, 1961, is intended to remove such contingencies, though of course the said amendment, as pointed out by division Bench of this Court in Ratnamala v. State of Mysore, (1968) 1 Mys LJ 599 = (AIR 1968 Mys 216) will operate only prospectively.