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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 999 of 1966. Appeal by Special Leave from the judgment and order dated July 7, 1965 of the Mysore High Court in Regular Appeal No. 37 of 1958.

K. N. Bhat, for the appellants.

Rameshwor Nath and Swaranji Ahuja, for the respondents Nos. 1 to 6.

The Judgment of the Court was delivered by Hegde J. This is an appeal by special leave. Defendants 34 and 35 in the suit are the appellants. The suit from which this appeal arises is a suit for partition under the Madras Aliyasantana. Act, 1949 (Madras Act IX of 1949) (which will hereinafter IV referred to as the Act).

The two questions that arise for decision in this appeal are' (1) whether under the, award decree Exh. A-2, the kutumba (family), of the plaintiffs and the defendants stood partitioned and (2) if' the answer to the first question is in the negative whether the said ,award decree comes Within the scope of s. 36(6) of the Act.

The plaintiffs and the defendants were governed by the aliyasantana law of inheritance. It is a matriarchal system of law. One' Pammadi was the prepositor of the family. She had two daughters by name Pammakke and Dejappe and three sons viz. Kanthu Hegde, Monu Hegde and Manjappa Hegde. After the death of Pammadi, differences arose in the family. Hence all the major members of the family excepting one Brahamiah referred those disputes to the arbitration of four arbitrators by means of a mutdhallika dated December 14, 1886. By the time this mutchallika was executed, two of the sons of Pamadi, Kanthu Hegde and Monu Hegde had died. At that time, in the kutumba there were only two santhathi kavaru viz. Pammakke and Dejappe and one nissanthathi kavaru namely Manjappa Hegde in existence (reference to santhathi kavaru and nissanthathi kavaru is as defined in the Act). The arbitrators divided the kutumba properties into two parts; one part was allotted to the share of Pammakkes Kavaru and the other part to Dejappes Kavaru and Manjappa Hegde. Manjappa Hegde was clubbed alongwith the kavaru of Dejappe (reference to kavaru is as defined in the Act). On June 14, 1953, all the members of the kavaru of Pammakke brought a suit for partition of the suit properties under s. 35 of the Act. The appellants and some other members of the kavaru of Dejappe resisted the suit mainly On the ground that the kutumba had been partitioned under Ex. A-2. They contended that, the said document either evidences a partition or at any rate the, arrangement made thereunder is a deemed Partition coming within the scope of s. 36(6) of the Act. The trial court came to the conclusion on that under the Award in question the. kutumba properties were partitioned. Alternatively it held that Ex. A-2 is covered by s. 36(6). In appeal a Division Bench 'of the High Court of, Mysore reversed the judgment and decree of the trial court. It held that Ex. A-2 does not evidence a partition. It, further came to the conclusion that the same is not covered by s. 16(6) as Ex. A-2 was an award decree and not a mere award. Dissatisfied with the judgment of the High Court, defendants 34 and 35 have brought this appeal. The findings of the High Court as regards the true nature of Ex. A-2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt. Before proceeding to consider the contentions of the parties, it is necessary to refer, in brief, to the customary aliyasantana law. Under that law inheritance is traced through the female line. Under that law, as interpreted by courts partition was impermissible except with the consent of all the adult members of the family. The senior most member of the family be it a male or a female was a Yejman or Yejmanthi of the family. With the passage of time, the members of the aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable. In order to mitigate these difficulties, three types of arrangements came to be made, in those kutumbas. By and large the Yejman or Yejmanthi of the family made maintenance allotments (maintenance under the aliyasantana is a mode of participation in the family properties). This, type of arrangement was purely temporary in character. It was open to the Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements for their maintenance. Another type of arrangement that came to be made was permanent arrangement for maintenance. This was ordinarily done, on kavaru basis. Under this arrangement, jointness of the family was kept intact but arrangement was made for separate living and separate management of kutumba properties on a permanent basis. Such arrangements ordinarily were not capable of being disturbed except with the consent of all the adult members of the kutumba. Lastly there are few cases of partition with the consent or concurrence of all the adult members of the kutumba. Hence when the Act came into force in addition to joint living by the members of kutumbas as, aforementioned types of arrangements were in existence in various kutumbas. Under S. 35 of the Act power was given to avarus, santhsthi or nissanthathi to claim at partition but those permanent arrangements which came within the scope of S. 36(6) were deemed to be partitions despite the fact that under those arrangements the jointness of the kutumba was kept intact. In Gummanna Shetty and ors. v. Nagaveniamma(1), this Court while dealing with an arrangement in a aliyasantana family entered into in the year 1900 observed "In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasanthana law of inheritance had no right to claim partition of the joint family properties but by a family arrangement entered into with the, consent of all its members, the properties could be divided and separately enjoyed. In such families,' an arrangement for separate, possession and enjoyment without actual disruption of the family was common. An arrangement for separate enjoyment did (1) [1967] 3 S.C.R. 932.

"Aliyasantana kattu' i.e. Aliyasantana law of inheritance did not provide, as mentioned earlier, for compulsory partition. The arbitrators undoubtedly came to the conclusion that it was difficult for the large family to live together. It is also clear from the award that the parties had agreed to "enjoy kutumba properties by living separately". They had also agreed for the separation (vingada) of the kutumba properties. As per the authority given to the arbitrators, the arbitrators were not required to divide kutumba properties on kavaru basis. They could have put together, some members of one kavaru with some members of another Kavaru. But the arbitrators thought "that if the members of two Kavarus are mixed together, in future the properties would be spent, on account of mutual disputes existing between them, and that unless the responsibility of income and loss in the Kavaru is pinned on the Kavaru having more members, to some extent', all the members will not bestow labour properly."

Somnath Iyer J. That learned judge agreed with the view taken by Sadasivayya J. The decision in Parameshwari Hengsu's case (supra), was binding on the bench which heard this case. Hence naturally that controversy was not again gone into by the High Court in this case. The learned counsel for the appellants challenged the correctness of the decision of the Mysore High Court in Parameshwari Hengsu's case (supra). He contended that the expression "award" in s. 36(6) includes also an award decree. lie urged that in the case of an award decree, the court merely accepts the award made and makes it a decree of the court and hence award decrees have also to be considered as awards for the purpose of s. 36(6). In examining the correctness of the conclusion reached by the Mysore High Court in Parameshwari Hengsu's case (supra), we must first examine the principle underlying s. 36(6). As mentioned earlier, the legislature was evidently anxious not to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of s. 36(6) award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya J. and Somnath Iyer J. opined that "it is possible that with a view not to disturb finality resulting from a decree (of whatever kind) that the legislature intentionally refrained from referring, to decrees in sub-s. (6) thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no court would be justified in equating an award to the decree passed on it."' This reasoning appears to us to be fallacious. It must be remembered the only decrees that could possibly have been included within the scope of s. 3 6 (6) were award decrees. We have earlier noticed that compulsory partition was not permissible under the aliyasantana law. Hence there could not have been any partition decrees, nor could there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in aliyasantana kutumbas. We can think of no decree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying s. 36(6) was not to disturb the finality of arrangements made. That very principle runs counter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying s. 36(6) that permanency should be available in a larger measure to an award decree. On the other hand if the view taken by those learned judges is correct, while s. 36(6) provides permanency for some awards, no such permanency is available to any award decree. Parties could enforce partition ignoring award decres while they are bound by awards. This could hardly have been the intention of, the legislature. There is yet another compelling reason not to accept the majority view in Parameshwari Hengus's case (supra). After the coining into force of the Arbitration Act, 1940, all awards had to be compulsorily made decrees of the courts if they were to have any force. The Act came into force in 1949. Many awards coming within the scope of s. 36(6) would have been made between 1940 and 1949. The legislature would not have denied to those awards the benefit of s. 36(6). The basis of every award decree is an award. Evidently the legisla- ture by using the expression "award" intended to include both awards simpliciter as well as awards which had been made the decrees of courts. Whether we consider the principle underlying s. 36(6) or the language of s. 36(6), we see no justification to exclude award decrees from the scope of s. 36(6). In our opinion Parameshwari Hengsu's case (supra) in so far as it interpreted s, 36(6) has not been correctly decided. But that conclusion of ours does not help the appellants. One of the conditions that Ire necessary to be satisfied before a deed can be deemed to be a partition under s. 36(6) is that it must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did not _join the mutchallika A-1 on the strength of which Ex. A-2, was rendered. In other words he was not a party to the award. But it was said on behalf of the appellants-the same view was taken by the learned trial judge-that Brahmiah had acquiesced in the arrangements made under Ex. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does not become a party to the arrangement. Herein we are dealing with a deemed partition and not an actual partition. Before an arrangement can be deemed to, be a partition under s. 36(6), all the conditions prescribed under that provision should be fully satisfied. In such a case, substantial compliance with the provision is not sufficient.