Padmara ja v. Dhanavathi

383 **A** **B** ## c **D** **E** F G **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, #### **u** 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. **B** (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. **F** cienl, since, it is a case of a deemed partition and not an actual partition. !392E-Fl (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. **F** cienl, since, it is a case of a deemed partition and not an actual partition. 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 A B ## c D E F G H 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. **A** **B** ##### c **D** **E** **F** G **H** PADMARAJA v. DHANAVATHI _(Hegde,_ J.) 387 A B ## c D E F G H not effect a disruption of the family, unle;s it completely extinguished the community of interest in the family properties." 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 pro pertie~ 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 _/_ **A** B ## c D E F G **H** •('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 PADMARAJA _v._ tHANAVATHI _(Hegde,_ /.) 389 A B ### c # ., 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_ _Bay-_ _yan 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 construc tion 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 conclusiOO, it relied on the decision of that Court in _Parameshwarl_ ###### 0 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 dec##### H .ree. In view of that difference of opmicln, the question whether the **0** 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 settle###### ments 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 **A** B #### c **D** E F G H PADMARAJA _v._ DHANAV~THI _(Hegde,_ J.) 391 A B ##### c D E F G _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._ been the intention of the legislature. There is yet another com pelling 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