Indian Kanoon - Search engine for Indian Law

Under the customary law and under the Madras Aliyasanthana Act, 1949 the undivided interest in the property of a Hindu in Aliyasanthana kutumba or kavaru devolved according to the provisions of the Aliyasanthana law but after the introduction of sec. 7(2) the devolution by testamentary or intestate succession is under the provisions of the Hindu Succession Act. The Explanation to sec. 7(2) provides that the interest in the property of the kutumba or kavaru of a Hindu 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 Aliyasanthana law, and such share shall be deemed to have been allotted to him or her absolutely. The result of the Explanation is that the undivided interest in the property of the Hindu in the Aliyasanthana kutumba or kavaru shall devolve as provided for under the Hindu Succession Act and that the share of the Hindu shall be deemed to have been allotted to him absolutely. The Explanation to sec. 30 of the Hindu Succession Act provides that a member of an Aliyasanthana kutumba or kavaru can dispose of his interest in the kutumba properties by a will. Under the Aliyasanthana law the individual cannot dispose of his interest in the kutumba by a will. Explanation to sec. 30(1) enables the male Hindu in a kutumba or kavaru to dispose of his interest in a kutumba or kavaru which is deemed to be property capable of being disposed of by him. Thus while sec. 7(2) provides that when a Hindu to whom the Aliyasanthana 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 kutumba or kavaru as the case may be, under the Hindu Succession Act, sec. 30 enables the male Hindu to dispose of his undivided interest in a kutumba or kavaru by a will. While these two sections relate to undivided interest in the property of the kutumba or kavaru sec. 17 deals with the succession to the separate property of a Hindu male under the Aliyasanthana law. It provides that sections 8, 10, 15 and 23 shall have effect with certain modifications in relation to persons who would have been governed by the Aliyasanthana law. Section 8 provides that the property of a male Hindu dying intestate shall devolve as specified in the section. The succession to the property of a male Hindu belonging to a kutumba or kavaru of Aliyasanthana law dying intestate would be governed by the provisions of sec. 8 as modified by sec. 17 the effect being that the succession as provided for under the Aliyasanthana law would not be applicable. Section 10 provides for the distribution of property among heirs in Class I of the Schedule. Section 15 provides the general rule of succession in the case of Hindu females. The rule as to the succession is also made applicable to Hindu female under the Aliyasanthana law with the modifications provided for under sub-sec. (2) of section 17. Section 23 of the Hindu Succession Act is not applicable to a Hindu governed by Aliyasanthana law. Thus sec. 17 which makes sections 8, 10, 15 and 23 applicable with certain modifications to a Hindu under the Aliyasanthana law provides for succession of the separate property of a Hindu male and a female. After the coming into force of the Hindu Succession Act, the provisions of section 7(2) are applicable as regards undivided interest of a Hindu governed by Aliyasanthana law 8--531SCI/79 while the provisions of the explanation to section 30 are applicable in the case of a will relating to his interest in the family property. Section 17 provides that sections 8, 10, 15 and 23 with modifications will apply to the separate property of a Hindu under the Aliyasanthana law.

Section 14 enlarges the property possessed by a female Hindu whether acquired before or after the commencement of the Hindu Succession Act by providing that she will hold the property as full owner and not as a limited owner. This provision is applicable to Hindu females and does not have the effect of enlarging a limited estate in the hands of a Hindu male. The Hindu male will be entitled only to the limited rights as provided for under the law that is applicable to him. But when once the succession opens by the death of the Hindu sec. 7(2) provides that the share in the undivided interest of the Hindu would devolve on his heirs under the Hindu Succession Act absolutely. A Hindu under section 30 of the Hindu Succession Act is also conferred the right to disposing of by will his interest in the kutumba or kavaru. While a Hindu dies intestate his undivided interest devolves absolutely on his heirs, in the case of his separate property the succession is governed by the provisions of sections 8, 10 and 15 of the Act as modified by section 17.

It may be noted that regarding the separate property of a Hindu the Madras Aliyasanthana Act provides that the provisions of sections 19, 20, 21, 22, 23 and 24 of the Act would be applicable. The separate property does not revert back to the kutumba or kavaru of the Aliyasanthana family. 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 Aliyasanthana Act 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 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 nissathati 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 way to the provisions of section 8 of the Hindu Succession Act which prescribed a different mode of succession.

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 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 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 kutumba or kavaru of a Hindu belonging to an Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provisions of sec. 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 sec. 36(5). When a Hindu 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 & Ors. v. Lakshmi Shedthi & Ors. (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 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. 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.