Jaganmohan Reddy, J. - (1.) The appellants who were the plaintiffs filed a suit against the respondents the defendants for partition, separate possession of their 7/20th share of suit properties and for mesne profits. The Trial Court decreed the suit, but the High Court dismissed it. This appeal is by special leave against that judgment.
(2.) Prior to the Hindu Succession Act, XXX of 1956 (hereinafter referred to as 'the Succession Act') the parties were governed by the Aliyasantana Law and the question before us is whether their rights are to be determined in accordance with that Law or under the Succession Act. It is not disputed that Chandayya Shetty, who died on February 13, 1957 after coming into force of the Succession Act, and the first respondent are brother and sister respectively. The first appellant is the widow and appellants 2 to 6 are the sons of Chandayya Shetty, while respondents 2 to 4 are the sons of the first respondent. In order to appreciate the contentions urged before us, it would be necessary to first set out certain underlying concepts of the Aliyasantana customary law, the changes made by the Aliyasanthana Act (Madras Act IX of 1949) hereinafter referred to as "the Madras Act" and the relevant provisions of the Succession Act. The Aliyasantana Law is a part of the customary law that governed certain communities on the West Coast of South India. The basic principle underlying the joint family composition, otherwise known as kutumba or tarwad, under the customary law known by two different names, namely, marumakkattayam and aliyasantana is the matriarchal system, in which the devolution is through females. The meaning of the two words by which the systems are known literally connotes 'inheritance in the line of nephews' or sisters' sons.' Apart from a few differences in these two systems, it may be noticed that while the marumakkattayam system was applicable to all castes, the aliyasantana system is not followed by the Brahmins (See P. R. Sundra Iyer's Malabar and Aliyasantana Law, 1922 Edn. 247). It is chiefly followed by the Bunts the Bilwa caste and the non-priestly class among the Jains (See Mayne's Hindu Law. 1950. 11th Edn. 971.) A kutumba under the Aliyasantana customary law was a family corporation:every member born in it has equal rights in the property owned by it. On the death of any member of the kutumba his or her interest in the kutumba property devolved on the other members of the kutumba by survivorship. The limited estate of Hindu female familiar to the Mitakashara Law was unknown to this system, for under it every male and female member had equal rights in the kutumba property. Under this law, though partition could not be enforced at the instance of one or more members and the members of the kutumba would be entitled to maintenance, it could be effected at the instance of all the adult members thereof. It may, however, be noticed that since the basis of the system was matriarchal, the children of the female members alone were the coparceners in the kutumba, but not the wife and the children of the male members. This customary law as applicable in certain areas of the Madras Province and in the erstwhile princely States of Travancore and Cochin was modified by the laws enacted by the respective legislatures. In this case we are concerned with the Madras Act which defined and amended in certain respects the laws relating to marriage, guardianship, maintenance, intestate succession and partition applicable to persons governed by that customary law. In respect of matters which this Act did not affect, the prevailing customary law was saved by Section 39 of the Madras Act which provided: " Nothing contained in this Act shall be deemed to affect any rule of Aliyasantana Law, custom or usage, except to the extent expressly laid down in this Act" The Madras Act conferred a right to partition properties and the mode of ascertainment of shares on partition. These provisions are dealt with in Ch. VI of that Act.
(3.) Before examining the provisions of the Madras Act and the Succession Act it may be mentioned that Chandayya Shetty had executed a Will on January 15, 1957 bequeathing his interest in favour of the appellants i. e his wife and children. A week thereafter on January 22, 1957, the first respondent and her children issued a notice to Chandayya Shetty stating that he (Chandayya Shetty) was the manager of the undivided family, that he was a nissanthathi kavaru (branch) while the respondents were santhathi kavarus, as such there were only two kavarus and that they had decided to divide the properties between Chandayya Shetty and themselves. They, therefore demanded under the Madras Act a stare belonging to their kavaru from out of the entire moveable and unmovable properties of the family Chandayya Shetty replied on January 24 1957, denying that the respondents' family was a santhathi kavaru, but was a nissanthathi kavaru as the first respondent was more than 50 years old on the date of the said notice and had no female issue. He, however, admitted that there are only two kavarus in the family, and as both the kavarus were nissanthathi kavarus, each kavaru was therefore entitled to an absolute share in the kutumba properties. He also stated that he had no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents co-operated. After this reply notice Chandayya Shetty died, as already stated, on February 13, 1957. On March 23, 1957, the appellants i e. Chandayye Shetty's widow and her children gave a notice to the respondents claiming a separate share under the will of Chandayya Shetty. A reply was given on the same day by the respondents denying that the appellants had any share because according to them Chandayya Shetty was entitled only to a life interest under the Aliyasantana Law.;