SUNDARI AND ORS. versus LAXMI AND ORS.

Citation: [1980] 1 S.C.R. 404 · Decided: 28-08-1979 · Supreme Court of India · Bench: A.C. GUPTA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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404 
SUNDARI AND ORS. 
v. 
LAXMI AND ORS. 
August 28, 1979 
[A. C. GUPTA AND P. S. KAILASAM, JJ.] 
Madras Aliyasantana Act, 1949 (Madras Act IX of 1949) Sections 3(b) 
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(i), (ii) {f), (h), 36(3) &· (5) read with Section 7(2), 17, 30 of Hindu Sue-
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cession Act, 1956 (Act 30 of 1956)-Devo/ution of the property allotted to a 
'nissanthathi kavaru' under the Aliyasantana law and its effect on the Hindu 
Succession Act, explained. 
The parties to the litigation leading to this appeal are governed by the 
Aliyasantana law prevalent in the district of South Kanara. 
They were mem~ 
bers of a Kutumba descended from a common ancestress by name Manjekke. 
One Parameshwari and her son and daughter instituted original suit No. 91 of 
1950 before the Court of the Subordinate Judge South. Kanara for partition of 
properties in accordance with the provisions of Madras Aliyasantana Act, 1949. 
The suit was dismissed~ but on appeal the High Court reversed it. 
The High 
Court passed a preliminary decree on 28-6-1961 and remanded the suit for 
further proceedings. In the trial a joint memo was filed by the parties on 25th 
September 1963 accepting the shares as per the memo. 
Defendants 22 to 24 
in the suit were allotted 85176 shares out of a total of 6,15,264 shares. 
Defendants 22,23,24 were all male members of the 'Kutumba' 
and were 
'Nissanthathi kavaru'. 
On the death of the 23rd and 24th defendants their 
legal Representatives who .were brought on record filed R.J.A. No. 2266/66 and 
R.I.A. 2259/66 respectively claiming that out of the share 
allotted to the 
K.avarus of defendants 22 to 24, one-third representing the share· or interest of 
the 23rd and 24th defendants be allotted to them. The petition was opposed 
on the ground that each one of the defendants 22, 23, and 24 was a separate 
'Nissanthathi Kavaru' lUld on the death of each of the defendants 24 and 23, 
his share or interest devolved upon the 'Sant'1athi Kavaru' nearest to him to 
which defendants II, 12 and 16 belonged. The plea of the 22nd defendant 
was that all the three defendants 22, 23 and 24 constituted one single Nissan-
thathi Kavarn to which, under the preliminary decree one single or joint share 
was allotted and, therefore, the said share survived to the last surviving mem-
ber thereof (22nd defendant) and that no devolution on a 'Santhathi Kavaru' 
under sub...gection' (5) of Section 36 is possible until 
the 
last 
member of 
'Nissanthathi Kavaru' viz. the 22nd defendant dies. 
The trial court found that in the High Court decree dated 20-6-1961 
de-
fendants 22 to 24 were allotted shares jointly. It further held that defendants 
22, 23 and 24 formed three 'Nissanthathi Kavarust as their mother was dead 
at the time of the filing of the suit and partition was effected and 
there 
was 
no undivided interest in the property when they died so as to attract the pro-
visions of section 7(2) of the Hindu Succession Act. 
The High Court ori appeal held that when the 24th defendant died he had 
an undivided interest in the properties of the Kavam of himself and defendant~ 
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SUNDARI V. LAXMI 
405 
22 and 23 and that the said undivided interest quantified as provided by the expla-
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riation to sub~section (2) of section 7 of the Hindu Succession_ Act and woufcl 
devolve bY intestate succession under the Succession Act. Similarly when the 
23rd defendant died he had an undivided interest in the property jointly be~ 
longing to himself and the 22nd defendant. That undivided interest also get 
quantified under Section 7(2) of the Hindu Succei;sion Act. The High Conrt 
allowed the appeals holding that the property descended according to the rule 
of 'intestate succession contained in Hindu Succession Act. 
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Dismissing the appeal by special leave the Court, 
HEID: I. The three defendants were allotted jointly a share in the parti-
. tion. In the suit filed by one Parameshwari defendants 22, 23 and 24 were 
made parties as they belonged to the Kavaru of their mother. They pleaded 
in the written statement for the allotment of their share in the event of parti~ 
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tion. Moreover in the joint memo their. joint share was shown as 85,176 out 
of the total share of 615,264. [409E, 410C-D] 
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2. The three defendants have enjoyed the interest as Nissantbathi Kavaru, 
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and on partition are entitled only to life interest in the properties allotted to 
them under section 36(3) of the Madras Aliyasantana Act, 1949

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