# GUMMANNA SHETTY & ORS v. NAGA VENIAMMA

- **Citation:** [1967] 3 S.C.R. 932
- **Court:** Supreme Court of India
- **Decided:** 1967-05-04
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gummanna-shetty-ors-v-naga-veniamma-4075
- **Pages:** 6

## Headnote

GUMMANNA SHETTY & ORS.
A
v.
NAGA VENIAMMA
May 4, 1967
IR. S. BACHAWAT, J, M. SHELAT AND V. BHARGAVA, JJ.]
B
Madras Aliyasanthana Act (9 of 1949), s. 3(6)-Scope of.
By a registered deed dated September 4, 1900, a group of 19 per-
~ons forming a joint family with community of property governed by
1he Aliyasanthana law of inheritance,
formed
themselves
into
two
branches not according to natural Kavarus, but into artificial branches and
<livided the family prol?erties.
In 1953, the members of one of these
C
two artificial branches xnstitutecl a suit against the sole surviving mem~
ber of the other branch who was a 11issanthathi kavaru, for partition of
all the properties comprised in the deed of 1900, allegation that tho deed
only effected a division for convenience of enjoyment and not an outright partition.
On the question whether under s. 36(6) of the Madras Aliyasanthana
Act, 1949, the deed of 1900 should be deemed to have effected a partiD
tion of the properties,
HELD : The deed on its true construction, did not ·zffect an out-right
partition nor could it be deemed to be a deed of partition under s. 36(6)
of the Act, because, the kutumba ·was split into two artificial groups and
not according to the kavarus.
[937C-DJ
One of the four conditions necessary as a pre-requisite for the appli·
E
cation of the section is that the distribution of properties is among all
the kavarus of the kutumba for their separate and absolute enjoyment
in perpetuity.
That is, the sub-section applies to a family
settlement
.under which the ku111mba is split up according to kavarus as defined in
s. 3(b) of the Act, and the kutumba properties distributed among ·such
kal'arus.
[936F-G; 937B-C']
CIVIL APPELLATE JuRrsmcnoN: Civil Appeal No. 910 of
F
1964.
Appeal from the judgment and order dated February 28, 1961
·of the Mysore High Court in Regular Appeal No. (M) 70 o(
1956.
V. K. Krishna Menon, M. Veerappa, Sreedharan Nambiar,
G
D .. P. Singh and H. K. Puri, for the appellants.
S. T. Desai, R. Thiagarajan and R. Ganapathy Iyer, for thi?
respondent.

## Text

GUMMANNA SHETTY & ORS.
A
v.
NAGA VENIAMMA
May 4, 1967
IR. S. BACHAWAT, J, M. SHELAT AND V. BHARGAVA, JJ.]
B
Madras Aliyasanthana Act (9 of 1949), s. 3(6)-Scope of.
By a registered deed dated September 4, 1900, a group of 19 per-
~ons forming a joint family with community of property governed by
1he Aliyasanthana law of inheritance,
formed
themselves
into
two
branches not according to natural Kavarus, but into artificial branches and
<livided the family prol?erties.
In 1953, the members of one of these
C
two artificial branches xnstitutecl a suit against the sole surviving mem~
ber of the other branch who was a 11issanthathi kavaru, for partition of
all the properties comprised in the deed of 1900, allegation that tho deed
only effected a division for convenience of enjoyment and not an outright partition.
On the question whether under s. 36(6) of the Madras Aliyasanthana
Act, 1949, the deed of 1900 should be deemed to have effected a partiD
tion of the properties,
HELD : The deed on its true construction, did not ·zffect an out-right
partition nor could it be deemed to be a deed of partition under s. 36(6)
of the Act, because, the kutumba ·was split into two artificial groups and
not according to the kavarus.
[937C-DJ
One of the four conditions necessary as a pre-requisite for the appli·
E
cation of the section is that the distribution of properties is among all
the kavarus of the kutumba for their separate and absolute enjoyment
in perpetuity.
That is, the sub-section applies to a family
settlement
.under which the ku111mba is split up according to kavarus as defined in
s. 3(b) of the Act, and the kutumba properties distributed among ·such
kal'arus.
[936F-G; 937B-C']
CIVIL APPELLATE JuRrsmcnoN: Civil Appeal No. 910 of
F
1964.
Appeal from the judgment and order dated February 28, 1961
·of the Mysore High Court in Regular Appeal No. (M) 70 o(
1956.
V. K. Krishna Menon, M. Veerappa, Sreedharan Nambiar,
G
D .. P. Singh and H. K. Puri, for the appellants.
S. T. Desai, R. Thiagarajan and R. Ganapathy Iyer, for thi?
respondent.
The Judgment of the Court was delivered by
Bachawat, J.
By a registered deed dated September 4, 1900.
H
a group of 19 persons forming a joint family with community
of property governed by the Aliyasanthana Law of inheritance,
formed themselves into two branches and divided the famiiy pro·
SHETTY V. NAGAVENIAMMA (Bachawat, !.)
933
perties.
The second branch consisted of the descendants of Sarasamma and Brahmi and some descendants of Nemakka-in all
IO persons.
The first branch consisted of Nemakka and
the
r~st of her descendants and her sister Sivadevi-in all 9 persons.
t In 1953, Darnamma was the sole surviving member of the second
'
branch.
She was a nissanthathi kavaru, 70 years old having
no descendants. In 1953, the members of the first branch instituted a suit against Darnamma for partition of all the properties
comprised in the deed dated September 4, 1900, alleging that
the deed effected a division for convenience of enjoyment and
maintenance only and was not an absolute or out-right partition
The defence of Darnamma was that the deed effected an out8
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right partition.
The trial court accepted the plaintiff's contention
and passed a preliminary decree for partition. Darnamma filed
an appeal in the Mysore High Court. During the pendency of
the appeal she died and one Nagaveniamma claiming under her
will was substituted in her place as her legal reprt15entative.
The
High Court held that the deed dated September 4, 1900, effected
an out-right partition. On this finding, the High Court allowed
the appeal, set aside the decree passed by the trial court and dismissed the suit.
From this decree the present appeal has been
filed under a certificate granted by the High Court.
The joint family properties were formerly managed by its
yajaman, one Manjappa.
Upon his death, the parties to the deed
dated September 4, 1900, apprehended disputes.
The object of
the deed was to prevent such disputes, and consequential wastage
of property and to preserve the dignity of the family.
The family
properties were divided into two parts, and a portion was allotted
to each branch.
The deed provided that the properties allotted
to the first branch would be enjoyed by its members and would
be mutated in Nemakka's name, and Siddappa, a member of this
branch, would manage the properties, pay the tirve and cesses, and
conduct the maintenaI1ce of its members.
The properties allotted
to the second branch would be enjoyed by its members and would
be mutated in the name of Nagu, a member of that branch, and
Ch~dayia, anoth~r member of the branch, would manage the properties, pay the tirve and cesses, and conduct the maintenance
of its members.
Parts of items 2 and 5 of the properties were
allotted to the two branches, but the entire tirve, and cesses for
the two items would be paid: by the first branch and the arrears
of the _tirve, if any, would form a charge on ' the properties
allotted to the first branch.
The deed provided that "as regards
the properties enjoyed as mentioned above by the members of
the first branch, the members of the said branch and the descendants that shall be born to them in future should enjoy the same
and as regards the properties en.joyed by the members of the
second branch, the members of the said branch and the descendants that shall be born to them in future should enjoy the same
934
SUPREME COURT REPORTS
[I 967] 3 s.c.R.
and in this manner, they should enjoy the properties separately.
Further, after the lifetime of the member of the respective branches who obtains the kudathale of the properties allotted to the
respective branches, the kudathale should be got entered successively in the name of the senior-most male or female member of
the respective branches."
The common debt of the family was
apportioned between the two branches, and each branch would
discharge its share of the debt and interest thereon as quickly as
possible. If the manager of any branch allowed the interest to
fall in arrears, the members of the branch would appoint another
manager in his place.
Each branch would have the power to
execute documents creating a security over the properties allotted
to it for payment of its share of the common debt. No member
of the family would have the right to incur other debts. The deed
provided that : "If any debt is borrowed, the very person who
borrows the debt should discharge it with his personal liability;
and further, the movable and immovable properties of this family
or the members of the family should not become liable for such
debt."
Another clause provided that : "These immovable properties or any portion thereof and the right of maintenance of any
individual should not be alienated in any manner by way
of
mortgage, sale, gift, mulageni, artha mulageni and vaide geni.
Contrary to this term, if alienation is made, such alienation should
not be valid."
The deed also provided : "If there are no descendants at all completely in the first branch, the members belonging
to the second branch shall be entitled to the entire movable and
immovable properties of the said first branch; and if there are
no descendants at all completely in the second branch, the members of the first branch .shall be entitled to the entire movable
and immovable properties of the said second branch."
The sole question arising in this appeal is whether the deed
dated September 4, 1900, effected a disruption of the joint family
or whether it made a division for convenience of enjoyment and
maintenance only.
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 a 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 not effect a disruption of the family, unless it completely
extinguished the community of interest in the family properties.
The character of the deed dated September 4, 1900, must be
judged in this background.
The respondent relies on several features of the deed as indicative of an out-right partition. The properties were divided
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B
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B
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II
SHETTY v. NAGAVENIAMMA (Bachawat, /.)
935
into two shares.
Each branch was to enjoy its share in perpetuity
from generation to generation without any interference from the
other branch.
There would be separate mutations and separate
pattas in respect of the properties allott.ed to -each branch. The
assessments were to be paid separately. Each branch would have
a separate manager.
The share of the common debt allotted to
each branch and the interest thereon would be paid separately.
All these.features coupled with other circumstances may indicate
a complete disruption of the family.
See Su/aiman v. Biyathumma('). But there are other features of the deed which indicate
that it did not effect an out-right partition. The object of the deed
was to prevent disputes and wastage of properties and to presen·e the dignity of the family. In terms, the deed did not declare that there was a complete disruption of the family. In case
of a partition, a Kutumba governed by the Aliyasanthana Jaw
is usually split up according to natural kavarus but under this;
deed, the Kutumba was split up into two artificial branches. The
members of the two branches were restrained from
incurring
debts binding on the family properties and from alienating the'
properties or ~y portion thereof and granting any leases except
in the ordinary course of management. These restrictions were
obviously placed for· the purpose of preserving the family properties intact for the benefit of both branches. The High Court said
that as the deed effected an out-right partition, the conditions
restraining alienations were void under Sec. 10 of the Transfer of
Property Act.
But the point in issue is whether the deed effected'
an out-right partition.
The restrictions
on
alienation
rather
indicate that the parties did not intend to effect an out-right partition, and they wanted a division for convenience of enjoyment on
the footing that neither branch had the right to alienate. If the·
family arrangement took effect as a division for convenience or
enjoyment only, and not as an out-right partition, the restrictions
on alienations were not hit by Sec. I 0 of the Transfer of Property
A ct.
Moreover, the deed provided that if any branch would become nissanthathi, its properties would pass to the members of the
other branch.
This clause indicates that on one branch becoming extinct, the properties allotted to it would pass by survivorshi~
to the other branch.
Had there been an out-right partition, the
sole surviving kavaru would be entitled to dispose of her separate
property by a will under the provisions of the Malabar Wills Act
1898.
The absence of such a right indicates that the deed did
not effect a complete disruption of the joint family.
On a consideration of the deed as a whole in all its parts, we are constrained
to hold that the deed on its true construction did not effect an
out-right partition of the joint family. We may add that in a
compromise dated August 10, 1909 in O.S. No. 10 of 1909 to
(I) 32 M.U. 137 P.C.
9Sur. Cf/67-16
936
SUPREME COURT REPORTS
[1967} 3 S.C.R.
which the members of the second branch were parties, Darnamma
solemnly admitted and declared that the deed was not a partition
deed, but was a family arrangement for the convenient enjoyment of the properties by the members of the family so that the
properties may be increased and not wasted.
Counsel for the respondent contended that the deed should
be deemed to have effected a partition of the joint family properties under section 36(6) of the Madras Aliyasantana Act,
1949. This contention was repelled by the trial court and was
not pressed in the High Court.
Section 36(6) reads :
"A registered family settlement (by whatever name
called) or an award, to which all the major members
of a kutumba are parties and under which the wh,ole
of the kutumba properties have been or were intended
to be distributed, or purport to have been distributed,
among all . the kavarus of the kutumba for their sepa-
. lei) ~
'and absolute enjoyment in perpetuity' shall be
,:';deemed to be a partition of the kutumba properties
'~limtwithstanding any terms to the
contra~ in such
settlement or award."
As was pointed out by Ramaswami J. in Kaveri v. Ganga
Ratna('), the following four conditions are the necessary prerequisites for the application of Sec. 36(6) :
'(l) there is a registered family
settlement
or
award;
(2) all the major members of the kutumba are parties to it;
( 3) the whole of the kutumba properties have been
or were intended or purport to have been distributed
undei: it; and
( 4) the distribution is among all the kavarus of the
kutumb:i for their separate and absolute enjoyment· in
perpetmty.
Tb.e onus is upon the respondent to prove that the deed dated
.September 4, 1900, satisfies all these four conditions. The plea
!hat the ~eed satisfies the conditions of. s. 36(6), was not tabn
m the wntten statement, nor was any ISSUe raised on the point
The materials on the record do not show that the deed satisfie~
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all the conditions of S. 36(6). The trial court found that though
Damamma, a member of the kutumba, was a major ori September
4, 1900, she did not execute the. deed. The deed described her
H
as a minor under the 'Wiardianship of Padmaraja.
From the
(I) [1956] I.M.L.J. 98, 106.
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SHETTY v. NAGAVENIAMMA (Bachawat, J.)
937
materials on the record it is not possible to say definitely that
the whole of the kutumba properties was distributed under the
deed: Moreover, S. 36(6) can apply only if the distribution
was "among all the kavarus of the kUtumba".
S. 3 (b) defines
kavaru. Used in relation to a female, it means the group of
persons consistin~ of that female, her children and all her descendants in the female line, and used in relation to a male, it means
the kavaru of the mother of that male. Having regard to the
scheme of S. 36, we think that S. 36(6) applies to a family
settlement under which the kutumba is split up according to
kavarus as defined in S. 3 (b) and the kutumba properties are
distributed among such kavarus. Section 36(6) cannot apply
to the deed dated September 4, 1900, under which the kutumba
was split up into two artificial groups, one consisting of the descendants of Sarasamma and Brahmi and some descendants of
Nemakka, and the other consisting of Nemakka, the rest of her
descendants and Sivadevi, and the properties were divided between
these two artificial group&.
It follows that the deed dated September 4, 1900, on its true
construction, did not effect an out-right partition nor can it be
deemed to be a deed of partition under S. 36(6) of the Madras
Aliyasantana Act, 1949.
In the result, the appeal is allowed without costs, the judgment and decree passed by the High Court is set aside, and the
decree of the trial court is restored.
·
V.l.S.
Appeal allowed.