Bachawat, J. - (1.) By a registered deed dated September 4. 1900, a group of 19 persons forming a joint family with community of property governed by the Aliyasathana Law of inheritance, formed themselves into two branches and divided the family properties. The second branch consisted of the descendants of Sarasamma and Brahmi and some descendants of Nemakka -in all 10 persons. The first branch consisted of Nemakka and the rest of her descendants and her sister Sivadevi - in all 9 persons. In 1953 Darnamma was the sole surviving member of the second branch. She was a nissanthathi kavaru 70 years old having no descendants. In 1955, the members of the first branch instituted a Suit against Darnamma for partition of all the properties comprised in the deed dated September 4, 1900, alleging that the deed effected a division for convenience of enjoyment and maintenance only and was not an absolute out-right partition. The defence of Darnamma was that the deed effected an out-right partition. The trial court accepted the plaintiff's contention and passed a preliminary decree 1or partition. Darnamma filed an appeal in the Mysore High Court. During the pendency of the appeal she died and one Nagaveniamma claiming under her wil1 was substituted in her place as her legal representative. The High Court held that the deed dated September 4, 1900, effected an out-right partition. On this finding the High Court allowed the appeal, set aside the decree passed by the trial court and dismissed the suit. From this decree the present appeal has been filed under a Certificate granted by the High Court.
(2.) The joint family properties were formerly managed by its yajaman one Manjappa. Upon his death, the parties to the deed dated September 4, 1900, apprehended disputes. The object of the deed was to prevent such disputes, and consequential wastage of property and to preserve the dignity of the family. The family properties were divided into two parts, and a portion was allotted to each branch. The deed provided that the properties allotted to the first branch would be enjoyed by its members and would be mutated in Nemakka's name, and Siddappa, a member of this branch would manage the properties, pay the tirve and cesses, and conduct the maintenance of its members. The properties allotted to the second branch would be enjoyed by its members and would be mutated in the name of Nagu, a member of that branch, and Chandayia, another member of the branch, would manage the properties pay the trive and cesses, and conduct the maintenance of its members. Party of items 2 and 5 of the properties were allotted to the two branches, but the entire tirve and cesses for the two items would be paid by the first branch and the arrears of the tirve, if any, would form a charge on the properties allotted to the first branch. The deed provided that "as regards the properties enjoyed as mentioned above by the members of the said branch and the descendants that shall be born to them in future should enjoy the same and as regards the properties enjoyed by the members of the second branch, the members of the said branch and the descendants that shall be born to them in future should enjoy the same and in this manner, they should enjoy the properties separately. * * * Further after the lifetime of the member of the respective branches who obtains the kudathale of the properties allotted to the respective branches, the kudathale should be got entered successively in the name of the senior-most male or female member of the respective branches." The common debt of the family was apportioned between the two branches, and branches, and each branch would discharge its share of the debt and interest thereon as quickly as possible. If the manager of any branch allowed the interest to fall in arrears, the members of the branch would appoint another manager in his place. Each branch would have the power to execute documents creating a security over the properties allotted to it for payment of its share of the common debt No member of the family would have the right to incur other debts. The deed provided that: "If any debt is borrowed the very person who borrows the debt should discharge it with his personal liability:and further, the movable and immovable properties of this family or the members of the family should not become liable for such debt ". Another clause provided that: "These immovable properties or any portion there of and the right of maintenance of any individual should not be alienated in any manner by way of mortgage, sale, gift, mulageni, artha mulageni and vaidegeni. Contrary to this term, if alienation is made, such alienation should not be vaild."
(3.) The deed also provided: If there are no descendants at all completely in the first branch, the members belonging to the second branch shall he entitled to the entire movable and immovable properties of the said first branch, and if there are no descendants at all completely in the second branch, the members of the first branch shall be entitled t-o the entire movable and immovable properties of the said Second branch".;