# PADMARAJA AND ORS v. DHANA VATIIl AND ORS

- **Citation:** [1973] 1 S.C.R. 383
- **Court:** Supreme Court of India
- **Decided:** 1972-04-27
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/padmaraja-and-ors-v-dhana-vatiil-and-ors-5793
- **Pages:** 9

## Headnote

Madras A/iyasantana Act (9 of 1949) s. 36(6)-Scope of-Award
decree-When evidences partition-If award decrees come withins. 36(6).
Differences having arisen among members of a family governed b.Y
the Aliyasantana Law, all the major members o'f the family except one
referred the dispute~ to arbitration.
As per the authority given to the
arbitrators the arbitrators had to decide the disputes in accordance with
the Aliyasantana Law of inheritance, according to which, partition was
impermissible except with the consent of all the adult members of the
family.
The arbitrators were not required to divide the Kutumba properties on Kavaru basis; but the arbitrators divide"<! the properties between
the two Kavarus, which were then in existence in the family, in order to
avoid disputes and to fix the responsibility for income and la.s. There
was an award decree in terms of the award,
Thereafter, the members of one Kavaru filed a suit for partition
under s. 35 of the Madras Aliyasantana Act, 1949, and the appellants and
some other members of the other Kavaru, contended that the Kutumha
had been partitioned by the award decre<• or, that the arrangement thereunder was a deemed partition under s. 36(6) of the Act.
The trial court dismissed the suit, but the High Cour!, in appeal, held
that the award decree did not evidence partition, and that it was not
covered by s. 36(6) as it was an award decree and not a mere award.
Dismissing the appeal to this Court,
HELD : (I) When the Act came into force, in addition to joint
living by the members of the Kutumba, three types of arrangements were
jn existence in variOus · Kutumbas, nam,ely, {a) When the senior most
member elf the family (Yejman) or (Yejmanthi) made maintenance
allotments which were purely temporary in character, (b) a permanent
arrangement for maintenance, and ( c) partition with the consent of all
adult members. ·In the case of a permanent arrangement for maintenance
it was usually done •Jn Kavaru basis, the jointness of the family was kept
intact, but arrangement was made for separate living and separate management of Kutumba properties on a permanent basis' which could not· be
disturbed without the consent of all the adult members of tho Kutumba.
Such of these permanent arrangements which came within the scope of
s. 36( 6) are deemed to be partitions despite the fact that under those
arrangements t)ie jointness of the Kutumb<1 was kept inlllct. [386A-FJ
"
(2) The cbnditions to be satisfied before a document can be considered
as comin~ w~hin the scope of s. 36(6) are:
(a) there, is a registered family settlement or "ward,'
(b)_';,il the major members of the Kutwnba are parties to it;
( c) the whole of the kutumba properties have been or were
intended to have been distributed; and
(d) the distribution is among all the Kavams of the Kulumha ior
the separate and absolute enjoy1nent in perpetuity. £3&7 A-DJ
SUPREME COURT REPORTS
(1973] 1 S.C.R.
Gummanna Shetty v. Nagaveniamma, (1967] 3 S.C.R. 932, followed.
(3) In the present case, the award decree did not evidence a partition;
because it contained clauses inconsistent with an out and out partition.
A
The award decree recited that 'proper arrangements were made for
the maintenance of the Kutumba without disrupting its oneness'; that
both Kavarus should together conduct auspicious functions; and the members of ooe of the Kavarus were asked ,(0 show accounts to the senior·
B
moaat member who continued to be the yejman of thee entire kutumba,
[3880-Hl
Amma/u Amma v. Vasu Menon, A.LR. 1944 Mad. 108, approved.
(4) Award decrees have to be considered as aw~rds for purposes of
s. 36(6). C:J~lB-cJ
(a) The princi[>!e underlying s. 36(6) is noi to disturb the finality
C
of arran~ements made. If that were so, such permanency should be available. in a larger measure to an award decree, for otherwise, parties could
enforce partition ignoring award decrees while they would be bound by
awards. !3900-H]
( b) After the coming into force of the Arbitrati

## Text

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383
PADMARAJA AND ORS.
v.
DHANA VATIIl AND ORS.
April 27, 1972
[K. S. HEGDE AND A. N. GROVER, JJ.J
Madras A/iyasantana Act (9 of 1949) s. 36(6)-Scope of-Award
decree-When evidences partition-If award decrees come withins. 36(6).
Differences having arisen among members of a family governed b.Y
the Aliyasantana Law, all the major members o'f the family except one
referred the dispute~ to arbitration.
As per the authority given to the
arbitrators the arbitrators had to decide the disputes in accordance with
the Aliyasantana Law of inheritance, according to which, partition was
impermissible except with the consent of all the adult members of the
family.
The arbitrators were not required to divide the Kutumba properties on Kavaru basis; but the arbitrators divide"<! the properties between
the two Kavarus, which were then in existence in the family, in order to
avoid disputes and to fix the responsibility for income and la.s. There
was an award decree in terms of the award,
Thereafter, the members of one Kavaru filed a suit for partition
under s. 35 of the Madras Aliyasantana Act, 1949, and the appellants and
some other members of the other Kavaru, contended that the Kutumha
had been partitioned by the award decre<• or, that the arrangement thereunder was a deemed partition under s. 36(6) of the Act.
The trial court dismissed the suit, but the High Cour!, in appeal, held
that the award decree did not evidence partition, and that it was not
covered by s. 36(6) as it was an award decree and not a mere award.
Dismissing the appeal to this Court,
HELD : (I) When the Act came into force, in addition to joint
living by the members of the Kutumba, three types of arrangements were
jn existence in variOus · Kutumbas, nam,ely, {a) When the senior most
member elf the family (Yejman) or (Yejmanthi) made maintenance
allotments which were purely temporary in character, (b) a permanent
arrangement for maintenance, and ( c) partition with the consent of all
adult members. ·In the case of a permanent arrangement for maintenance
it was usually done •Jn Kavaru basis, the jointness of the family was kept
intact, but arrangement was made for separate living and separate management of Kutumba properties on a permanent basis' which could not· be
disturbed without the consent of all the adult members of tho Kutumba.
Such of these permanent arrangements which came within the scope of
s. 36( 6) are deemed to be partitions despite the fact that under those
arrangements t)ie jointness of the Kutumb<1 was kept inlllct. [386A-FJ
"
(2) The cbnditions to be satisfied before a document can be considered
as comin~ w~hin the scope of s. 36(6) are:
(a) there, is a registered family settlement or "ward,'
(b)_';,il the major members of the Kutwnba are parties to it;
( c) the whole of the kutumba properties have been or were
intended to have been distributed; and
(d) the distribution is among all the Kavams of the Kulumha ior
the separate and absolute enjoy1nent in perpetuity. £3&7 A-DJ
SUPREME COURT REPORTS
(1973] 1 S.C.R.
Gummanna Shetty v. Nagaveniamma, (1967] 3 S.C.R. 932, followed.
(3) In the present case, the award decree did not evidence a partition;
because it contained clauses inconsistent with an out and out partition.
A
The award decree recited that 'proper arrangements were made for
the maintenance of the Kutumba without disrupting its oneness'; that
both Kavarus should together conduct auspicious functions; and the members of ooe of the Kavarus were asked ,(0 show accounts to the senior·
B
moaat member who continued to be the yejman of thee entire kutumba,
[3880-Hl
Amma/u Amma v. Vasu Menon, A.LR. 1944 Mad. 108, approved.
(4) Award decrees have to be considered as aw~rds for purposes of
s. 36(6). C:J~lB-cJ
(a) The princi[>!e underlying s. 36(6) is noi to disturb the finality
C
of arran~ements made. If that were so, such permanency should be available. in a larger measure to an award decree, for otherwise, parties could
enforce partition ignoring award decrees while they would be bound by
awards. !3900-H]
( b) After the coming into force of the ArbitratiOn Act, 1940, all
aw.mis had to be compulsorlly made decrees of courts if they were to
1have force. The A!iyasantana Act came into force in 1949 and the Legis.
D
lature wuuld. not have denied to the awards pasaed after 1940 (in terms
of .which decrees would have been passed) the benefit of s. 36(6) of lhe
Aliyasantana Act.
The Legislature, by using the expression 'award' . intended to include· both awards simpliciter as well as awards which bad
been made decrees of Courts. [39JA·Bl
'PllJ"ameshwari Hengsu v. Venkappa Shelly and ors., (1961) Mys. L.J.
686 on the interpretation if s. 36( 6), ove~ruled.
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(5)(a) But the second condition for the application of tl•o section is
not satisfied in the present case, as one Of the major m<mbers Of the
K11tumba wll$ not a party to the award. [3920]
(b) . Even 'lhough he acquiesced in the arrangements made under the
award decree he would not be a party to the atrangement.
Before the
arrangement C4I\ Ill' 4eemed to be aJ'artition under s. 36(6), all .the conditions. should be fully satisfied, an
substantial compliance is not stiffi.
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cienl, since, it is a case of a deemed partition and not an actual partition.
!392E-Fl
C1v1L APPllLLATE 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 11)58.
K. N. BFiat, for the appellants.
Rameshwar Nath and Swaran;it Ahuja, for the respondents
Nos. 1 to 6.
G
The Judgment of the Court was delivered by
H
Hegcle J.
This is an appeal by special leave. Defendants 34
and 35 in the suit are the appellants. The suit from which this
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PADMARAJA V; DHANAVATIU (H~gde, /,)
381
appeal arises is a suit for partition under the Madras Aliyasantana
Act, 1949 (Madras Act IX of 1949) (which will hereinafter be
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. 3 6( 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 ~ 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
mutchallika dated December 14, 1886.
By the time this mutchallika was executed, two of the sons of Pammadi, 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 the1 Act). On June 14, 1953,
all the members of the kavaru of Pammakke brought a suit for
partition of the suit proQerties 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 th11 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 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. 36 ( 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 appellaqts .by
Mr. K. N. Bhatt. Before proceeding to consider the contentions
386
SUPREME COURT REPORTS
[1973] 1 S.C.R.
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 impermissibte 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 kutunibas
increased and kutumbas became unwieldy and joint living became
intolerable. In order to· mitigate these difficulties, three types of
arrangements came to b!! made in those kutumbas.
By and large
the Y tjman 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
):' ejmanthi 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 kμtumba properties on a permanent basis. Such .arrangements ordinarily were not capable of
being disturbed except with the consent of all the adult members
of ihe 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 addi.tion to joint living by
the members of kutumbas, aforementiened types -:::f arrangements
were in existence in various kutumbas. Under s. 35 of the Act
j)Ower was given to kavarus, santhathi or nissap.thathi to claim
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. Nagave·
niamma(1), this Court while dealinJ!: 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 C01!1·
mon. An arrangement for separate enjoyment did
(I) [1967] 3 S.C.R. 932.
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PADMARAJA v. DHANAVATHI (Hegde, J.)
not effect a disruption of the family, unle;s it completely
extinguished the community of interest in the family
properties."
387
Analysing the scope of s. 36(6), this Court, approving the
decision of the Madras High Court in Kaveri v. Genga Ratna(l)
held that the followinl!) conditions should be satisfied before a
document can be considered as coming within the scope of s. 3 6( 6) :
l. there is a registered family settlement e>r award;
2. all the maior members of the kutumba are parties
to it;
3. the whole of the kutumba properties have beei.
or were intended or purport to have been distributed
under it; and
4. the distribution is among all the kavarus of the
kutumba for their separate and absolute enjoyment in
perpetuity.
There is no difficulty about temporary arrangements for maintenance. These arrangements could not come. in the way of effecting partition in a kutumba.
Similarly if the jointnes~ of the
kutumba had been disrupted, there is no question of claiming any
partition as there is no kutumba in existence.
The application
of s. 3 6 ( 6) arises only when the case does not fall either under
the first category or the second. In construing karars (agreements)
evidencing perrnane.nt arrangements, we must bear in mind the
ordinary principles of construction of document>. The first is that
the whole document must be read and construed. The court must
have regard to the declared obiect of the document which is often
contained in the pre.1mble but the title given to a document is
not conclusive. It is observed in Mr. Sundara Ayyar's Malab'llr
Law that "arrangements for maintenance will not ordinarily be
viewed as permanent arrangements though it is not impossible that
there should be such arrangements. Divisions for en.!oyme.nt short
of partition that are sometimes entered into are of this character."
The characteristics of such documents were considered exhaustively by Somayya, J. in Amma/u Amma 'v. Vasu Menon( 2 ).
Therein the learned judge observed :
"No doubt it may not be common but if on a readino
of the entire document, t!1ere are clauses which are en~
tirely inconsistent with an out and out partition, the
Courts are bound to construe the clocument as a maintenance arrangement even though ii is stated to be a permanent arrangement."
(l) [1956] l, M.L.J. 98.
(11 A.LR. (l I) 1944 Mad. 108.
388
SUPREMll COURT REPORTS
[1973] l S.C.R.
Bearing in mind the principles enunciated by a long chain of
decisions, we shall first examine whether Ex. A-2 can be considered as a document affecting partition. In considermg that question
we have to primarily see whether in Ex. A-2, there are clauses
Which are entirely inconsistent with an out and out partition.
Ex. A-2 came· to be rendered on the strength of a mutchallika
executed l1y most of the members of the kutumba in favour of
three arbitrators on December 14, 1886, for slip 2 because of the
dispute that had arisen in the family about the enjoyment of the
kutu111ba properties. It is also clear from that mutchallika that
some members of the family had serious complaints against the
Yejman of the family, Adu Hegde.
The mutchallika authorised
the arbitrators to decide the disputes that had arisen "in accordance
with our "Aliyasanthana Kattu", in a manner which you deem
fit".
'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 propertie~ 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 me!'lbers 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 meinbers will not bestow labour properly."
That was the reason why they divided the properties primarily between two kavarus. It is true that the arbitrators tlivided
the family debts into two parts and each kavaru Was asked to discharge the then existing debts from out of the income of the properties that were allotted to its shares. But atthe same time Adu
Hegde continued to be the Yejnrnn of the entire kutumba. Members of each kavaru were prohibited from incurring debts on be·
half of the kutumba. Further till the existing debts were discharged, the members of Pammakke kavaru were asked to "show
accounts in respect of their income and expenditure" to Adu
Hegde. Exh. A-2 further says that "the members of the kutumba
should live in different houses, by bestowing labour and without
quarrelling with each other as proper arrangements were made for
the maintenance of the kutumba without disrupting its oneness".
From this clause it is clear that the kutumba was not disrupted.
The document further provides "both the Kavarus should together
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PADMARAJA v. tHANAVATHI (Hegde, /.)
389
conduct "Havyas Kavyas" and auspicious functions" ... The foregoing clauses clearly show that Ex. A-2 did not disrupt the kutumba
though undoubtedly it made provision . for the separate living of
the Kavarus, and for the separate enjoyment of the properties
allotted to them. For these reasons we are in agreement with the
High Court that Ex. A-2, does not evidence a partition. The terms
of Ex. A-2 are not similar to those that came up for consideration
before the Madra~ High Court in Appa and ors. v. Kachai Bayyan Kutti alid ors. (1) or those that came up for decision by that
High Court in Mudara and ors. v. Muthu Hengsu( 2). Each document has to be construed on its own terms.
Terms of any two
documents rarely, if at all are identical. Hence the construction
placed on a particular document can hardly govern the construction of another document. There is no dispute as regards the principles governing the construction of documents.
This takes us to the question whether Ex. A-2 is covered by
s. 36(6). That section reads :
"A registered famil~ settlement (by whatever name
called) or an award, to which all the major members of
a kutumba are parties and under which the whole of the
kutumba properties have been oir were intended to be
distributed, or purport to have been distributed, among
all the kavarus of the kutumba for their separate and
absolute enjoyment.in perpetuity, shall be deemed to be
a partition of the kutumba properties notwithstanding
any terms to the contrary in such settlement or award."
Evidently the legislature wanted to deem certain deeds under
which perpetual arrangement had been made in the past for. the
maintenance of all the kavarus of a kutumba as partitions. The
requirements of s. 36(6} have been la.id down by this Court as
seen earlier in Gummann Shetty's case (supra).
Therefore all
that we have to see· is whether the tests laid down by this Court
1 · in that decision are satisfied. The High Court having come to the
conclusion that the first test was not satisfied rejected the contention of the plaintiffs that the deed Ex. A-2 comes within the scope
of s. 36(6). It came to the conclusion that an award decree is
not an aware within the meaning of s. 36(6). In arriving at that
0
conclusiOO, it relied on the decision of that Court in Parameshwarl
Hangsu and ors. v. Venkappa Shttty a"4 ors.(1). Paramtshwart.
Hengsu's case (supra) first came up for heariitg before at Division Bench consisting of Sadasivayya and Mir Iqbal Husain JJ.
SadasivayYa J. held that the expression "award" in,s. 36(11) dos
not take in an award decree. But Iqbal Husain J. differed from that
view and opined that the tenrt "award" includes also an award decH .ree. In view of that difference of opmicln, the question whether the
expression "award" includes an award decree was
refetnd tG
(I) A.I.R. 1932 Mad. 689;
(2) A.I.R. 1935 Mad. 33.
(3) (1961~ Mys. L 1. 686.
3~0
SUPREME COURT REPORTS
[1973] I S.C.R.
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
Parameshwan Hengsu's case !supra). He contended that the expression 'award" in s. 36(6) includes also an award decree.
He
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 mwtioned 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 iamily 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.H
This reasoning appears to us to be fallacious. It must be remembered the onlv decrees that could possiblv have been included
within the scope of s. 3°6(6) were award decrees. We have· earlier
noticed thav compulsory partition was not permissible under the
aliyasantana law. Hence there could not have been any partition
decrees, nor could there have bten decree making permanent arrangements in the matter of enjoyment of kutumba properties in
aliyasantana kutumbas. We ca:i think of no decree ri;gulating the
affairs of kutumba which cannot be disturbed under the Act. We
agree with :hose 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
]earned 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 >uch permanency is available to
any award decree. ?arties could enforce partition ignoring award
decrcs while they are bound by awards.
This could hardly have
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PADMARAJA v. DHANAV~THI (Hegde, J.)
391
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 coming 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 legislature 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(6J 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 llengsu's case (supra) in so far as it interprcted
s. 36(6) has not been correctly decided.
But that conclusic.n of
ours does not hel,p the appellants. One of the conditions that arc
necessary to be satisfied before a deed can be deemed to be a
partition under s. 36(6) is th~.t 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 beyome a party to the
arrangement. Herein we are dealing with a deemed part:,ion and
not an actual partition. Before an arrangement can be deemed to
be a parntion 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.
As we are of the opinion that all the major members of the
kutumba were not parties to Ex. A-2, it is not necessary to examine
whether the remaining conditions prescribed under s. 36(6) were
satisfied.
In the result this appeal fails and the same is dismissed. But
in the circumstances of the case, we direct the parties to bear
their own costs in this Court.
V.P.S.
Appeal dismissed.