OVERVIEW OF THE CASE
- The Title of the case is Sundari And Ors v. Laxmi And Ors. The case was decided by The Hon’ble Supreme Court of India on 28th August 1979 by the two-judges bench of A.C. Gupta and; P.S. Kailasam, JJ.
- Relevant Act and Sections of the case are- Madras Aliyasantana Act, 1949, Sections 3(b), 36(3) and (5) read with Section 7(2), 17 and 30 of Hindu Succession Act, 1956.
BRIEF FACTS AND LEGAL HISTORY OF THE CASE:
In this case, both Appellant and respondent are members of a Kutumba and lineal descendant of a common ancestress Manjekke and are regulated by the Aliyasantana law which was prevailing in the locality of South Kanara.
One Parameshwari and her two children filed a suit before the trial Court of South Kanara for the partition of Kutumba properties under the Madras Aliyasantana Act, 1949.
The suit was rejected by the trial court on the ground that suit for partition was not sustainable and the further decree was passed to find the shares of each member of several branches whom all are entitled to this partition.
The plaintiffs move to the High Court of Karnataka with an appeal for the same. Karnataka high court reversed the decision of the trial court and said that the suit for partition was maintainable.
The preliminary decree was passed by the Hon’ble High court and suit of partition was remanded for further proceedings also directed the shares for partition found by the trial court was allotted to defendants 22 to 24 jointly which were 85,176 out of a total of 615,264 shares.
Now, all the defendants 22, 23 and 24 found to be a male member of Kutumba and are nissanthathi kavaru. A preliminary decree was passed on 10th June 1957 by the court and before that the 24th Defendant died. The 23rd defendant also died in March 1962 after the decree was passed. Therefore, the wife and children of defendant 24 and 23 were brought as legal representatives.
The representatives of the 23rd and 24th defendant during the proceedings of final decree claims that out of share allotted to kavaru of defendants 22 to 24, one-third share of the defendants should be allotted to them.
The petition was opposed on the base that defendants 22, 23 and 24 belong to separate nissanthathi kavaru and according to section 36 (5) of Madras Aliyasantana Act, 1949 on the death of the defendants 24 and 23 his share shall devolve upon the nearest santhathi kavaru that is defendants 11, 12 and 16.
The 22nd defendant made a plea before the court that defendants 22, 23 and 24 constituted one single nissanthathi kavaru to which joint share was allotted under the preliminary decree to the last surviving member which is 22nd defendant, therefore, no share can be devolved to santhathi kavaru under section 36 (5) until the last member of the nissanthathi kavaru dies.
ISSUES BEFORE THE COURT:
- Whether the one-third share of the defendant 23 and 24 should be allotted to their legal representatives?
- Whether the santhathi kavaru are entitled to the share of deceased descendent 23 and 24?
- Whether the other Kavarus continued to be joint in the Kavarus or not?
RATIO OF THE COURT:
It was observed by the court that the Shares of defendants 22, 23 and 24 was mentioned as 85,176 out of the total share of 615,264 in the High Court decree and the shares were allotted to the three defendants jointly in the partition. Therefore, the trial court dismissed the contentions of both the applicants to provide a one-third share of the defendant to them.
Santhathi kavaru are not entitled to the share of deceased descendent 23 and 24 because defendants 22, 23 and 24 constituted one single nissanthathi kavaru to which joint share was allotted under the preliminary decree to the last surviving member which is 22nd defendant, therefore, no share can be devolved to santhathi kavaru under section 36 (5) until the last member of the nissanthathi kavaru dies.
The court was of the opinion that any other law in force immediately before the commencement of Madras Aliyasanthana Act ceases to apply to Hindus as it is inconsistent with any of the provisions contained in the Act and that the provisions of Aliyasanthana law whether customary or statutory will cease to apply, in so far as they are inconsistent with the provisions of the Hindu Succession Act.
The Court comes to the conclusion that when the 24th defendant died he had an undivided interest in the properties of the kavaru of himself and defendants 22 and 23 and that undivided interest would devolve by intestate succession under the clause (2) of section 7 of the Hindu Succession Act.
Similarly, when the 23rd defendant died he had an undivided interest in the property belonging to himself and the 22nd defendant. That undivided interest also got devolve by intestate succession under section 7(2) of Hindu Succession Act. The Court allowed the appeals holding that the property descended according to the rules of intestate succession contained in the Hindu Succession Act.
Similarly, in the case of Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors., All parties are governed by Aliyasantana law and defendant contended that she is the nisanthathi kavaru of the appellant deceased father and demand their share in their property. As the kavaru was only continued when they have any female member and court held that if there is an undivided share of a person died after the commencement of Hindu succession act, there share is devolved by section 7(2) of Hindu succession act by testamentary or intestate succession only.
DECISION HELD BY COURT:
The court held that in this case that the defendants 22, 23 and 24 have an undivided interest in the property and therefore the provisions of Section 7 (2) of the Hindu Succession Act, 1956 will be applicable here so, according to this provision the undivided share of the defendants would pass on to their heirs after the death of each defendant. So, the court comes with the conclusion that Section 36 (5) of the Madras Aliyasantana Act, 1949 will not be followed for the devolution of property.
 1980 AIR 198, 1980 SCC (1) 19.
 1973 AIR 2658, 1974 SCR (1) 707.
Author: RISHABH MANCHANDA,
Delhi Metropolitan Education affiliated to GGSIPU/ 2nd Year/ Law Student