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247). It is chiefly followed by the Bunts, the Bilwa caste and the non-priestly class among the Jains (See Myne's Hindu Law, 1950), 11th Edn. 971). A kutumba under the Aliyasantana customary law was a family corporation: every member born in it has equal rights in the property owned by it. On the death of any member of the kutumba his or her interest in the kutumba property devolved on the other members of the kutumba by survivorship. The limited estate of Hindu female familiar to the Mitakshara Law was unknown to this ,system, for under it every male and female member had equal rights in the kutumba property. Under this law, though partition could not be enforced at the instance of on(-, or more members and the members of the kutumba would be entitled to maintenance. it could be effected at the instance of all the adult members thereof. It may, however, be noticed that 'since the basis of the system was matriarchal, the children of the female members alone were the coparceners in the kutumba, but not the wife and the children of the mate members. This customary law as applicable in certain areas of the Madras Province and in the erstwhile princely State of Travancore and Cochin was modified by the laws enacted by the respective legislatures. In this case we are concerned with the Madras Ast which defined and amended in certain respects the laws relating. to marriage, guardianship, maintenance, intestate succession and partition applicable to persons governed by that customary law. In respect of matters which this Act did not affect, the prevailing customary law was saved by s. 39 of the Madras Act which provided :

(5) The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, 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 position that emerges on a consideration of these provisions is that, any kavaru represented by the majority of its major members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal. It may thereafter take its share and separate from the kutumba, provided that where a kavaru consists of only two persons, such a claim can be. made by either of them but no kavaru can make such a claim during the life-time of any common ancestress who is common to such kavaru and to any other kavaru or kavarus of the kutumba, who has not completed fifty years unless she has signified her consent in writing or two-thirds of the major members of the kavaru have joined in making the claim for partition. The common ancestress can however on her own volition claim a partition. The share obtained by the kavaru on partition is taken with all the incidents of a kutumba property. Under s. 36 of that Act the property of a kutumba is on partition divisible in a certain proportion for a period of fifteen years from the commencement of that Act and thereafter all the property, is to be divided per stripes and each kavaru gets a share on that basis. The provision is also applicable to every kavaru possessing separate property as if it were a kutumba. However, under sub-s. (3) of S. 36 of that Act if at the time of the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life- interest in the property allotted to it if the; kutumba from which it separated has at least one female member who has not completed the age of fifty years or where the kutumba broke up into a number of kavarus at partition if at least one such kavaru is a santhathi kavaru. But if there is no such female member or santhathi kavaru the nissanthathi kavaru would have an absolute interest in the properties allotted to it. Sub-section (4) of that section provides for circumstances under which the life-estate in a ,divided share above referred to becomes absolute property' and sub- s. (5) of that section provides that the properties allotted to a nissanthathi kavaru at a partition and in which it had only a life-interest at the time of the death of the last of its members devolves upon the kutumba or where the kutumba is broken up at the same or at a subsequent partition into a number of kavarus, upon the nearest santhathi kavaru or kavarus. See Gupte's Hindu Law of Succession, 2nd Edn., (p.

"7. (2) 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. Explanation.-For the purposes of this sub- section, the interest of a 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 in 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.' "17. The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if- ,

(2) (1866) It M. T. A. 75.

(3) (1956) 2 M. L. J. 446.

(4) (1935) 70 M. L. J. 114.

a severance of status takes place and the share to which each is entitled in the, undivided properties is ascertained.

Even in the case of an aliyasantana kutumba this Court had held per Hegde and Grover, JJ. in Padmaraja and others v. Dhanavanthi and others(1) that if the jointness of the kutumba had been disrupted, there is no question of planning any partition as there is no kutumba in existence as in the instant case before us. Similarly, on the same parity of reasoning, when there are two kavarus, a demand for parti- tion would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of s. 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. What s. 7 is dealing with is a situation similar to that dealt with in s. 6, namely, that when a member of joint Hindu family dies undivided, instead of his undivided interest devolving upon the other members of the family by survivorship, it is provided that on the death of an undivided member of the joint Hindu family his share in the joint family properties shall devolve on his heirs as if there had been partition in the family. The Explanation to s. 7(2) makes this position clear. Prior to the Succession Act neither under the customary law, nor under the Madras Act, nor under the Indian Succession Act the interest of a coparcener in an aliyasantana kutumba could have been disposed of by testamentary disposition. But s. 30 of the Succession Act made a definite change in the law, by enabling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will.