LexPADMARAJA AND ORS. versus DHANAVATHI AND ORS.
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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 pro-
perties 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 there-
under 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 manage-
ment 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 mem-
bers 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 avail-
able. 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.Excerpt shown. Read the full judgment & AI analysis in Lexace.