Sri K Muddanna Shetty vs Sarojini Shedthi - Property Dispute

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Sri K Muddanna Shetty vs Sarojini Shedthi on 13 March, 2026

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NC: 2026:KHC:15128
RSA No. 1182 of 2009

                  HC-KAR

                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 13TH DAY OF MARCH, 2026

                                             BEFORE
                             THE HON'BLE MR. JUSTICE E.S.INDIRESH
                       REGULAR SECOND APPEAL NO. 1182 OF 2009 (PAR)

                  BETWEEN:

                  SRI. K. MUDDANNA SHETTY
                  S/O K. SANJEEVA SOODA
                  AGED ABOUT 56 YEARS
                  FIRST DIVISION ASSISTANT,
                  DISTRICT PRISON,
                  SHIVAMOGGA.
                                                                 ... APPELLANT

                  (BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)

                  AND:

                  1.       SAROJINI SHEDTHI
                           SINCE DECEASED REP. BY LRS.

Digitally signed by 1(a). SMT. VANITHA V. SHETTY
CHAYA S A
Location: HIGH W/O SUDHAKAR SHETTY
COURT OF
KARNATAKA D/O SMT. SAROJINI SHETTY
AGED ABOUT 38 YEARS.

                  1(b). SMT. SUNITHA V. SHETTY
                        D/O SMT. SAROJINI SHETTY
                        W/O UDAYA SHETTY
                        AGED ABOUT 36 YEARS.

                           R1(a) AND R1(b) ARE R/AT
                           SRINIDHI NIVAS, MODDU MANE
                           HANUMAN GARAJ ROAD
                           D.NO.76, BADAGU BETTU
                           -2-
                                       NC: 2026:KHC:15128
                                   RSA No. 1182 of 2009

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     CHITAPADY
     UDUPI - 576 101.

1(c). SHRI. DINESH SHETTY
C/O SMT. SUJATHA
W/O SHRI DINESH SHETTY
R/AT FLAT NO.303, ORCHID PENTA,
OPP. INDRALI RAILWAY STATION,
INDRALI, MANIPUR ROAD
UDUPI - 573 101.

1.   VIJAYALAKSHMI
    W/O VITTALA SHETTY
    AGED ABOUT 58 YEARS
    HOUSE HOLDER
    RESIDING AT
    BACK SIDE OF GANESH TIFFEN ROOM,
    NEAR ADUGODI POLICE QUARTERS,
    NANJAPPA LAYOUT,
    BENGALURU.
   

2.   B. JAYANANDA SHETTY
    S/O MAHABALA SHETTY
    AGED ABOUT 56 YEARS
    MANAGER,
    VIJAYA BANK, P.B. NO.42,
    ROTARY ROAD,
    THIRD DIBRUGER,
    ASSAM - 786 001.
   

3.   B. VINOD SHETTY
    SINCE DECEASED REP. BY LRS.
   

4(a). SMT. SANDHYA V. SHETTY
W/O LATE B. VINODA SHETTY
AGED ABOUT 62 YEARS
R/AT 1ST CROSS,
LALBAHUDUR SHASTRY ROAD,
AJJARKADA,
UDUPI - 576 101.
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RSA No. 1182 of 2009

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4(b). DR. VEEKSHIT SHETTY
S/O LATE B. VINOD SHETTY
AGED ABOUT 38 YEARS
R/AT 1ST CROSS,
LALBAHUDUR SHASTRY ROAD,
AJJARKADA,
UDUPI - 576 101.

4(c). SMT. ANKITHA VIJETH SHETTY
W/O SRI. VIJETH SHETTY
D/O LATE B. VINOD SHETTY
AGED ABOUT 36 YEARS
R/AT 1ST CROSS,
LALBAHUDUR SHASTRY ROAD,
AJJARKADA,
UDUPI - 576 101.

1.   B. HARSHAVARDHANA SHETTY
    S/O S. MAHABALA SHETTY
    AGED ABOUT 52 YEARS
    R/AT MAANI, POST: VANDARY
    TALUK: BRAHMAVARA
    DISTRICT: UDUPI - 576 223.
   

2.   SRI. LEELAVATHI SHETTY
    W/O RAGHURAM RAM SHETTY
    AGED ABOUT 48 YEARS
    HOUSE HOLDER
    R/AT HORLALL KELAMANE,
    NO.34, KUDI VILLAGE,
    UDUPI TALUK ,
    KOKKARNE POST.
   

3.   PREMAVATHI HEGGADTHI
    W/O K. BALAKRISHNA SHETTY
    AGED ABOUT 29 YEARS
    R/AT DODDABEDDU IN
    KUTKEHALLI VILLAGE,
    UDUPI TALUK .
   

4.   ROHITH HEGDE
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                                  RSA No. 1182 of 2009
   

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     S/O K. BALAKRISHNA SHETTY
     AGED ABOUT 27 YEARS
     R/AT DODDABEDDU IN
     KUTKEHALLI VILLAGE,
     UDUPI TALUK .

1.   B.K. NARAYANA SHETTY
    S/O LATE SADIYANNA HEGDE
    AGED ABOUT 64 YEARS
    R/AT BELANE KODIGIMANE POST
    AMSYE BALL KUNDAPURA TALUK
    (VIA SHANKAR NARAYANA)
   

2.  MRS. NAKSHA H. SHETTY
    W/O K. UDAYA KUMAR SHETTY
    AGED ABOUT 30 YEARS
    R/AT HOUSE NUMBER 2-90-1
    MUTTINAKATTE,
    HOSANGADY VILLAGE,
    KUNDAPUR TALUK,
    UDUPI DISTRICT - 576282.
   

3.  SRI. H. SUPREETHA SHETTY
    S/O BABU SHETTY
    AGED ABOUT 40 YEARS
    R/AT NO.4-115,
    "SREEDEVI KRUPA" HORLALI,
    KOKKARNI VILLAGE,
    BRAHMAVAR TALUK,
    UDUPI DISTRICT -576 234.
   

4.  SRI. K. UDAYAKUMAR SHETTY
    S/O GOVINDA SHETTY
    AGED ABOUT 41 YEARS
    R/AT HOUSE NO.1/176
    KEREKATTE, HOSANGADY VILLAGE
    KUNDAPURA TALUK
    UDUPI DISTRICT - 576 282.
   
                                       ... RESPONDENTS
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                                RSA No. 1182 of 2009
   

HC-KAR

(BY SRI. VITTAL SHETTY, ADVOCATE FOR R2, R3, R5 & R6;
SRI. ABHISHEK MARLA, ADVOCATE FOR R10 TO R12;
R1(a), R1(b), R4(a) TO R4(c), R7 TO R9 ARE SERVED AND
UNREPRESENTED;
R1(c) APPEAL DISMESSED V/O DATED 19.03.2014)

   THIS R.S.A. IS FILED U/S. 100 OF [CPC](https://indiankanoon.org/doc/161831507/)., AGAINST THE

JUDGMENT & DECREE DATED 24TH APRIL, 2009 PASSED IN

REGULAR APPEAL NO.24 OF 1993 ON THE FILE OF THE

PRESIDING OFFICER, FAST TRACK COURT, UDUPI, DISMISSING

THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE

DATED 17TH APRIL, 1993 PASSED IN ORIGINAL SUIT NO.719 OF

1989 ON THE FILE OF THE PRINCIPAL MUNSIFF AT UDUPI,

DAKSHINA KANNADA.

   THIS REGULAR SECOND APPEAL HAVING BEEN RESERVED

FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,

E.S. INDIRESH J., DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
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                    CAV JUDGMENT This appeal is filed by the plaintiff challenging the

judgment and decree dated 24.04.2009 passed in RA.No.24

of 1993 on the file of the Fast Track Court, Udupi, D.K., (for

short, 'First Appellate Court') dismissing the appeal and

confirming the judgment and decree dated 17.04.1993

passed in OS.No.719 of 1989 on the file of the Principal

Munsiff, at Udupi, D.K., (for short, 'Trial Court') dismissing

the suit of the plaintiff.

1. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the trial Court.

1. The plaint averments are that the defendant

No.1 to 6 are the children of late Mahabala Shetty. The

plaintiff, defendant No.7 and Sulochana Shedthi (wife of

defendant No.8) are children of Radhamma Shedthi. The

original propositus Korathi @ Venkamma Shedthi, had three

sons and three daughters, namely, Narasamma Shedthi,

Manjamma Shedthi, Mahabala Shetty, Sheenappa Shetty,

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Shivarama Shetty and Radhamma Shedthi. The parties are

governed by 'Aliyasanthana Law' and Hindu Succession Act.

Radhamma Shedthi died on 09.01.1960. Smt. Sulochana

Shedthi (daughter of Radhamma Shedthi and wife of

defendant no.8) died on 04.01.1987, having executed the

Will dated 28.10.1986 bequeathing right in favour of her

husband -defendant No.8. It is pleaded in the plaint that,

there was a Partition Deed dated 06.05.1954, in the family

of the plaintiff and defendants wherein, 'C' schedule

property is allotted in favour of Radhamma Shedthi. The

suit schedule property has been given to the Mahabala

Shetty, for limited estate, which had been allotted in favour

of Radhamma Shedthi, as per the Partition Deed. It is also

stated in the plaint that, the Mahabala Shetty had agreed

that, he shall not alienate any portion of the schedule

property, which has been the portion of 'C' schedule

property mentioned in the registered Partition Deed dated

06.05.1954. It is also stated that, in the event of any

alienation is made as to schedule property, the possession

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of these properties will revert to his family on his death. It

is the grievance of the plaintiff that, as the family members

were not present in the village on the date of death of

Mahabala Shetty, the defendant No.6, and her husband has

taken the possession of schedule properties and continued

in possession of the same. The plaintiff and defendant No.7

(son of Radhamma Shedthi) had demanded the defendant

No.6 and her husband to transfer the possession of

schedule property and same was denied and as such, the

plaintiff has filed OS No. 719 of 1989, seeking relief of

partition and separate possession in respect of schedule

property.

1. After service of summons, defendants entered

appearance, however, defendant No.1 has filed detailed

written statement, denying the averments made in the

plaint. The remaining defendants adopted the written

statement filed by the defendant No.1. It is the specific

contention of defendant No.1 that, the suit schedule

property was given to Mahabala Shetty as per Partition

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Deed dated 06.05.1954 and the Mahabala Shetty died

leaving behind his children. It is contended that, the said

Mahabala Shetty has no vested right in the suit property,

after the coming into force of the Hindu Succession Act. It is

stated that, as the Radhamma Shedthi, and her daughter-

Sulochana Shedthi, died during the lieftime of Mahabala

Shetty and therefore, there is no 'Santhathi Kavaru' in the

family of Radhamma Shedthi and therefore, there is no

reversion of the suit property to the children of Radhamma

Shedthi, and as such sought for dismissal of the suit.

1. On the basis of the rival pleadings, the trial Court

has formulated issues. Parties have adduced evidence.

Plaintiff has produced 09 documents as Exs.P1 to P9. On

the other hand, defendants produced 21 documents as

Exs.D1 to D21. The trial Court, after considering the

material on record, by its judgment and decree dated

17.04.1993 dismissed the suit of the plaintiff and being

aggrieved by the same, the plaintiff has preferred Regular

Appeal in RA.No.24 of 1993 on the file of First Appellate

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Court. The said appeal was resisted by the defendants. The

First Appellate Court, after re-appreciating the facts on

record, by its judgment and decree dated 24.04.2009

dismissed the appeal and confirmed the judgment and

decree passed by the trial Court in OS.No.719 of 1989.

Being aggrieved by the judgment and decree passed by the

Courts below, the appellant/plaintiff has preferred this

Regular Second Appeal under Section 100 of Code of Civil

Procedure, 1908.

1. This Court vide order dated 04.03.2010 has

formulated following substantial question of law:

"Whether the courts below have applied the law as set
forth in Section 7(2) of the Hindu Succession Act, 1956,
in proceeding to determine the devolution of the
property on the death of Mahabala Shetty, who had
limited right in the suit properties, which was granted to
him by way of maintenance during his life time?"
7. I have heard Sri G. Balakrishna Shasty, learned

counsel for the appellant and Sri Vittal Shetty, learned

counsel appearing for the respondent Nos. 2, 3, 5 and 6;

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Sri. Abhishek Marla, learned counsel appearing for the

respondent No.R10 to R12.

1. Sri G. Balakrishna Shastry, learned counsel for

the appellant submits that both the courts below have

committed wrong in arriving at a conclusion that, the

plaintiff is not entitled for share in the 'Santhathi Kavaru' of

late Radamma Shedthi and as such, Section 36(5) of

' Aliyasanthana Act ', is not applicable in view of [Section

7(2)](https://indiankanoon.org/doc/1148706/), Section 8 and Section 17 of the Hindu Succession Act,

1. It is also argued that, the Courts below have failed to

consider the fact that, the suit schedule properties allotted

in favour of Mahabala Shetty, as per Ex.P1 is not for

maintenance and it is the share of Radhamma Shedthi-

mother of the plaintiff and same is allotted for limited

purpose and therefore, sought for interference of this Court. In this regard, learned counsel for the appellant places

reliance on the judgment of this Court in the case of [Rathnavathi and others vs. Saraswathi Adappa and

others](https://indiankanoon.org/doc/62676987/) reported in ILR 2014 KAR 659 and submitted that

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the finding recorded by both the courts below requires to be

interfered with in this appeal.

1. Per contra, Sri Vittal Shetty, learned counsel for

the respondent Nos.2, 3 5 and 6 submits that on coming

into force of Hindu Succession Act, provisions under

' Aliyasanthana Act, was not repealed and was continued

and same is reflected in Section 4 of the Hindu Succession

Act. Learned counsel appearing for the respondents while

placing the reliance on the judgment of the Division Bench

of this Court in the case or [Ratnamala vs. State of

Mysore and others](https://indiankanoon.org/doc/1105235/) reported in 1968 (1) MLJ 599, and

argued that the interest of a reversioner is an interest

expectant on the death of a limited heir. He argued that,

such a limited interest is not a vested interest and attracts

spec successionis within the meaning of Section 6 of the

Transfer of Property Act. It is further argued that, Section

37(A) of Madras Aliyasanthan Act, ( Karnataka amendment

Act, 1961) is to be considered and as such, contended that

the judgment referred to by the learned counsel for the

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appellant in the case of Ratnavathi, supra is not applicable

to the facts of the case. Further it is argued that the plaintiff

being a 'Nissanthathi Kavaru' under the 'Madras

Aliyasanthana Act' is not eligible to get relief in view of the

judgment of the Hon'ble Supreme Court in the case of Sundari and others vs. Lakshmi and others reported in

AIR 1980 SC 198 which is applicable to the facts and

circumstances of the case. Lastly, it is argued that as both

the courts below have concurrently held on the facts and

circumstances of the case, same cannot be interfered with

in this appeal.

1. Heard the learned counsel appearing for both the

parties and perused the original records. Finding recorded

by the both the courts below was considered in the light of

the submission made by the learned counsel appearing for

the parties.

1. On careful perusal of the original records, there

is no dispute as to the relationship between the parties.

The genealogy of the parties is as follows:

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KORATHI @ VENKAMMA SHEDTHI

Narasamm Manjamma Mahabala Sheenappa Shivarama Radhamma
a Shedthi Shedthi Shetty Shetty shetty Shedthi

Balakrishna Sulochana Muddanna
Shetty Shedthy Shetty
=Narayana (Pltff)
(D-8)

Sarojini Vijayalaksh Jayananda Vinoda Harsha Balakrish
Shedthi mi Shetty Shetty Vardhana na
(D-1) (D-3) (D-4) Shetty Shetty
(D-5) (D-6)
12. It is pertinent to mention here that, Korathi @

Venkamma Shedthi is the original propositus. The said

Korathi @ Venkamma Shedthi had three sons and three

daughters namely, Narasamma Shedthi, Manjamma

Shedthi, Mahabala Shetty, Sheenappa Shetty, Shivarama

Shetty and Radhamma Shedthi. The parties are governed

by 'Aliyasanthana Law' and Hindu Succession Act.

Radhamma Shedthi died on 09.01.1960. Sulochana Shedthi

(daughter of Radhamma Shedthi) died on 04.01.1987, and

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has executed the Will dated 28.10.1986 bequeathing her

right in favour of her husband-defendant No.8. There was a

Partition Deed dated 06.05.1954 in the family of plaintiff

and defendants, which belongs to late Korathi @ Venkamma

Shedthi. The immovable properties were divided into three

parts, namely Schedule 'A', 'B' and 'C'. Schedule 'A', 'B'

and 'C' properties were allotted to three daughters namely,

Narasamma Shedthi, Manjamma Shedthi and Radhamma

Shedthi respectively. It is not in dispute that, as on the

date of the Partition Deed, law governing 'Aliyasanthana'

was existing and the male members (Nissanthathi Kavaru)

were entitled only life interest. Perusal of Ex.P1 (Partition

Deed) would makes it clear that the division of properties

are made amongst the daughters of the original propositus

(Santhathi Kavaru). Ex. P1 is a Partition Deed dated

06.05.1954 executed for devolution of the properties of the

original propositus late Korathi @ Venkamma Shedthi. It is

also reflected in Ex.P1 that the Schedule 'C' property was

allotted to Mahabala Shetty in lieu of maintenance and the

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said Mahabala Shetty is having right of life estate in respect

of the Schedule 'C' property. After considering the recitals

in the Partition Deed dated 06.05.1954 (Ex.P1) and

following the law declared by Hon'ble Supreme Court in the

case of [B. K. Muniraju vs. State of Karnataka and

others](https://indiankanoon.org/doc/1242308/) reported in (2008) 4 SCC 451, it cannot be

disputed that the Ex. P1 is nothing but a document of Deed

of Partition. It is also not in dispute that, Radhamma

Shedthi died on 09.01.1960, and Mahabala Shetty died on

05.10.1987. It is also to be noted that, Smt. Radhamma

Shedthi had three children namely, Balakrishna Shetty

(defendant No.7), late Sulochana Shedthi wife of Sri.

Narayana (defendant No.8) and Muddanna Shetty

(plaintiff). On the date of death of Mahabala Shetty, there is

no 'Santhathi Kavaru' in the family of late Radhamma

Shedthi. Therefore, the question to be answered whether

the Schedule 'C' property is revert to the children of

Radhamma Shedthi. At this juncture, it is relevant to cite

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the judgment of the Hon'ble Supreme Court in the case of Sundari (supra). Paragraphs 23 reads as under:

"23. The plea of the learned Counsel for the respondents that
even if the property of the Defendants 24 and 23 were held
to be separate property the succession would be in
accordance with Hindu Succession Act by virtue of the
provisions of Section 17 of the Hindu Succession Act will
have to be considered. Chapter II of the Hindu Succession
Act which deals with the intestate succession is applicable to
the property of Hindus and the provisions of this chapter
would prevail over any law which was in force immediately
before the commencement of this Act. Therefore the
provisions relating to succession of Aliyasanthana Hindus
would be by the provisions of the Hindu Succession Act and
not by the Aliyasanthana law. Section 7(2) and Section 17 of
the Hindu Succession Act deal specifically with succession of
the property of a Hindu belonging to Aliyasanthana family.
While Section 7(2) relates to devolution of undivided interest
in the property of a kutumba or kavaru of a Hindu belonging
to an Aliyasanthana family Section 17 makes the provisions
of Sections 8, 10, 15 and 23 with the modifications specified
in Section 17 to the devolution of separate property of a
Hindu under the Aliyasanthana law. According to the
provisions of Section 36(5) the property allotted to
nissanthathi kavaru at a partition is enjoyed by it only as a
life-interest and at the time of the death of the last of its
members shall devolve upon the kutumba. This devolution of
the life-interest is according to Section 36(5). When a Hindu

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governed by the Aliyasanthana law dies possessed of a life-
interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert back to the kutumba. This
Court in Jalaja Shedthi v. Lakshmi Shedthi [(1973) 2 SCC
773 : AIR 1973 SC 2658 : (1974) 1 SCR 707] while deciding
the rights of the parties under a will executed by a Hindu
governed by Aliyasanthana law held at p. 719 (SCC p. 783,
para 14):

"Similarly, on the same parity of reasoning, when there are
two kavarus, a demand for partition would disrupt them and
Chandayya Shetty could no longer claim that he had an
undivided interest within the meaning of Section 7(2) of the
Succession Act, and if he has no undivided interest in the
property, his interest cannot be enlarged into an absolute
estate, nor can his interest in the property devolve upon his
heirs by intestate succession." (emphasis
supplied)

The words underlined by us [ Given here in bold] relate to
intestate succession and the Court has specifically stated that
it was not referring to the provisions of Section 17 of the
Hindu Succession Act as it related to intestate succession.
These observations relating to intestate succession are
therefore in the nature of obiter. The separate property is not
enlarged into an absolute estate under Section 7(2) but on
death it devolves on the heirs as provided under the Hindu
Succession Act. Therefore it will not revert back to the
kutumba but only to the heirs as provided for under the

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Hindu Succession Act. Similarly in the observations at p. 721
of the Reports where it has observed (SCC p. 785, para 17):

"In this case also, as already stated, there is no kavaru of
Chandayya Shetty, and on separation he had only a life-
interest which is not a heritable property and cannot be
disposed of by a will, nor could it devolve as on
intestacy."(emphasis supplied)

The reference to devolution on intestacy is again in the
nature of obiter dicta."
13. At this juncture, it is relevant to follow the

declaration of law made by the Hon'ble Supreme Court

in the case of [Jalaja Shedthi and others vs. Lakshmi

Shedthi and others](https://indiankanoon.org/doc/239562/) reported in (1973) 2 SCC 773.

Paragraphs 16 and 17 as under:

"16. A Full Bench of the Mysore High Court in Sundara Adapa
v. Girija [AIR 1962 Mys 72 : ILR 1962 Mys 225] has given a
similar answer on facts analogous to the one raised before
us. In that case the first defendant who was a nissanthathi
kavaru had claimed in his written statement a partition of his
own share and was granted 75/360th share in the
preliminary decree. By a will he left to his wife and children
all his rights in the properties due to him on account of his
share. There was also likewise a santhathi kavaru. Under the
Aliyasanthana Act on the cessation of the first defendant's

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life interest the property would devolve upon the nearest
santhathi kavaru according to sub-section (5) of Section 36.
But it was contended as is contended in this case that by
virtue of Explanation to sub-section (1) of Section 30 of the
Succession Act, the rights of the first defendant is his
75/360th share of his properties became capable of being
disposed of by will and, therefore, the children of the first
defendant could be entitled to the share in accordance with
the terms thereof. Hegde, J., as he then was, delivering the
judgment of that Court observed at pp. 238-239:

"The object of Section 30 is clear. That section neither
directly nor by necessary implication deals with the
devolution of divided interest. As mentioned earlier, its
purpose is limited. The language employed is plain and
therefore no question of interpretation arises. It is not
correct to contend, as done by Sri Bhat, that if the
Explanation to Section 30(1) is understood in the manner the
respondents want us to understand, a coparcener who dies
undivided would leave a more valuable estate to his heirs
than one who dies divided. In most cases, the share taken by
a nissanthathi kavaru though limited to the duration of the
life of the kavaru would be larger in extent than one as
provided under Section 7(2) of the 'Act'. In the case of a
share under the Aliyasanthana Act the kavaru takes his share
on the basis of half-per capita, half perstirpas. Under Section
7(2) the share is determined on per capita basis. Quite
clearly the object of bounty under Section 7(2), read with Section 30 is the donee under the will of a deceased
coparcener. The fact that divided members also do not get

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corresponding benefits under the Act is no relevant test. If
Parliament wanted to enlarge the interest of divided male
members nothing would have been easier than to enact a
provision on the lines of Section 14(1) of the "Act", provided
Parliament had competence to do so. Further, the
Explanation to Section 30(1) speaks of 'The interest of a Male
Hindu' in his 'kutumba' or 'kavaru' property. The definite
article 'the' evidently refers to the interest specified or
quantified in some other provision of the 'Act', it could not
refer to the unascertained interest of a coparcener in a
kutumba. Obviously 'the interest' referred to is the interest
quantified under Section 7 of the 'Act' to which reference will
be made in greater detail at a later stage.

Quite clearly, on the date of his death, the first defendant
was not a member of his kutumba or kavaru. As noticed
earlier, he was already divided from the family. Further, his
will did not relate to his interest in the kutumba or kavaru
property. The will purported to bequeath the property
obtained by him as his share as per the preliminary decree.
Therefore, the contention that interest obtained by the first
defendant under the preliminary decree stood enlarged as a
result of Section 30(1) of the 'Act' must fail."
17. The above statement of the law which meets the several
contentions raised before us is in consonance with our own
reading of the provisions of the Madras Act and the
Succession Act. The learned Advocate for the appellants,
however, has tried to distinguish this case on the ground that
the effect of Section 17 of the Succession Act was not
considered in that case. In our view, that question was not

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relevant either in that case or in this case, because Section
17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who
would have been governed by the Marumakkattayam Law or
Aliyasanthana Law if the Succession Act had not been passed
with the modifications provided therein. In this case also, as
already stated, there is no kavaru of Chandayya Shetty, and
on separation he had only a life-interest which is not a
heritable property and cannot be disposed of by a will, nor
could it devolve as on intestacy. Even the argument that
under Section 7(2) Chandayya Shetty's life interest has been
enlarged into an absolute interest is equally untenable,
because a male with a life interest under the Aliyasanthana
Law being in the same position as a female limited owner
under the Hindu Law, the Succession Act while enlarging the
right of the latter under Section 14 into an absolute interest
did not specifically provide for the enlarging of the right of
the former. In the absence of any such specific provision we
can only hold that Chandayya Shetty's interest enured till his
lifetime only."

1. It is also to be noted that, this Court in Ratnamala supra, at paragraph 6 and 7 held as

follows:

"6. Under the customary Aliyasantana Law, every member of
a Kutumba has equal rights in the properties of the Kutumba
by reason of his or her birth. On the death of any member
his or her interest in the Kutumba properties devolves on

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other members of the Kutumba by survivorship as both male
and female members have equal right in the Kutumba
property. The limited estate of a Hindu woman, so familiar to
Mitakshara, is unknown to Aliyasantana system.

1. Till the passing of the Madras Aliyasantana Act (Madras Act No. IX of 1949) (hereinafter referred to as the Madras Act), no member of a Kutumba nor even a Kavaru could enforce compulsory partition. A partition in an Aliyasantana family could be effected only with the consent of all the adult members of the family. Such partition would ordinarily be binding on minors. Junior members of the family were entitled to be maintained by the Yajaman or Yajamanti (head of the family). The right to maintenance was the mode in which a junior member enforced his or her right of co- proprietorship in the Kutumba properties. Under certain circumstances, junior members were also entitled to separate maintenance. While awarding maintenance to junior members, the Courts used to divide the family income on per capita basis after making due provision for family expenses like 'Viniyogas'."

1. In the case of Ramanna Rai and another, vs.

Janannatha and others reported in AIR 1982 KAR 270,

it is held that, after coming into the force of [Hindu

Succession Act](https://indiankanoon.org/doc/685111/), Succession of the parties, to the property

allotted to 'Nissanthathi Kavaru', is as per Section 7(2) and Section 17 of the Hindu Succession Act and not under the

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provisions of ' Aliyasanthana Act '. In this regard, it is

relevant to extract paragraphs 10 to 16 reads as under:

"10. It is no doubt true that under the Aliyasanthana Law,
the shares allotted to the 'Nissanthathi Kavaru' were to be
enjoyed by the members of that 'Kavaru' for life and, on the
death of any of the brothers, the properties would devolve on
the rest of the surviving brothers, and when all the members
of that 'Kavaru' die, the properties would revert back to the
nearest 'Santhathi Kavaru' under Sec. 36(5) of Madras
Aliyasantana Act. It is in that view that the learned Counsel
pointed out that the partition effected among the three
brothers in 1966 in 'D' Schedule properties after the death of
Muthappa Shetty was illegal and opposed to the provisions of
Sec. 36(5) of the aforesaid Act.

1. That may be so before the amendment of the
   Aliyasantana Law by the Hindu Succession Act as also by Karnataka Act No. 1 of 1962.

2. Section 7(2) of the Hindu Succession Act reads:--

"When a Hindu to whom the aliyasantana Law would have
applied if this Act had not been passed dies after the
commencement of this Act, having at the time of his or her
death an undivided interest in the property of a Kutumba or
kavaru, as the case may be, his or her interest in the
property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not
according to the Aliyasantana law."
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     An explanation is added to that sub-section, which

reads:--

"For the purposes of this sub-section, the interest of
Hindu in the property of a Kutumba or kavaru shall be
deemed to be the share in the property of the kutumba or
kavaru, as the case may be that would have fallen to him or
her if a partition of that property per capita had been made
immediately before his or her death among all the members
of the kutumba or kavaru, as the case may be, then living,
whether he or she was entitled to claim such partition or not
under the Aliyasantana law, and such share shall be deemed
to have been allotted to him or her absolutely."
13. It is needless for me to point out that the Hindu
Succession Act came into force on 17-6-1956. Thereafter,
there was a further amendment to the Madras Aliyasantana
Law by Karnataka Amendment Act No. 1 of 1962. Inter alia, Sec. 3 of that Act amends Sec. 36. It reads:--

"In sub-section (2) of Sec. 36 of the principal Act, clauses

(e), (f) and (g) shall be omitted."
It further inserts a new Section numbered as '37A' which
reads:--

"Partition of properties of Kutumba or kavaru after the
commencement of the Madras Aliyasantana (Mysore
amendment) Act, 1961: (1) on and after the date of
commencement of the Madras Aliyasantana (Mysore
Amendment) Act 1961 any male or female member of a
kutumba or kavaru having undivided interest in the

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properties of the kutumba or kavaru shall be entitled to claim
partition of his or her share in the properties of the kutumba
or kavaru, as the case may be.

(2) Where any male or female member of a kutumba or
kavaru entitled to claim partition under sub-sec. (1), claims
partition of his or her share, such person shall be allotted
such share in the properties of the kutumba or kavaru as the
case may be, that would fall to him or her if a division of
such properties were made per capital among all the
members of the kutumba or kavaru, as the case may be,
living on the date on which the partition is claimed.

(3) The share which a male or female member of the
kutumba or kavaru is entitled to take at a partition under
sub-sec. (2) shall vest in him or her absolutely with effect
from the date on which the partition is claimed.
Explanation:-- For the purposes of sub-sees. (2) and (3),
the date on which the partition is claimed shall be:--

(i) Where the claim is made by a suit for partition, the date of
the institution of the suit (whether the suit is prosecuted or
not), and

(ii) where the claim is made otherwise than by a suit, the date
on which such claim is made."
14. Reading Sec. 37A of the Madras Aliyasantana (Mysore
Amendment) Act, 1961, with Explanation, the learned
Counsel appearing for the respondents submitted that from
the date on which the registered partition took place among

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the surviving brothers in 1966, the properties vested
absolutely in the various shares, including Beeranna Rai, the
deceased father of the plaintiffs; for, the Amending
Karnataka Act No. 1 of 1962 has come into force on 11-1-
1962, it having received the assent of the President on 2-1-
1962. It was first published in the Karnataka Gazette after
having received the assent of the President, on 11-1-1962.

1. The Supreme Court of India had an occasion to consider the effect of Sec. 7(2) of the Hindu Succession Act, 1956, on the Aliyasantana Law, in the case of Sundari v. Laxmi ((1980) 1 SCC 19 : AIR 1980 SC 198). It is on an appeal from this Court, (Vide 1968 (2) Mys LJ 454) : (AIR 1969 Mys

175). In para 14 inter alia, their Lordships have observed:--

"At the time of the partition if any Kavaru taking a share
is a Nissanthathi Kavaru, it shall have only a life-interest in
the properties allotted to it under certain circumstances and
the property would revert back to a Santhathi Kavaru if it is
in existence. Section 36(3) of the Madras Aliyasantana Act
provides that the properties allotted to Nissanthathi Kavaru
at a partition and in which it had only a life-interest at the
time of the death of the last member, shall devolve upon the
Kutumba or where the Kutumba has broken up, at the same
or at a subsequent partition, into a number of Kavarus, upon
the nearest santhathi kavaru or kavarus. The devolution of
the property allotted to a Nissanthathi Kavaru which has only
a life interest devolves upon a kutumba or the nearest
santhathi kavaru. This mode of devolution prescribed by Sec.
36(5) of the Aliyasanthana Act has to give way to the

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provisions of Sec. 8 of the Hindu Succession Act which
prescribed a different mode of succession."
Proceeding further, in para 15 of the judgment, their
Lordships have observed:--

"The effect of the provisions of Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would
devolve as provided for under Sec. 7(2) while in the case of
separate property it would devolve on heirs as provided for in
the Hindu Succession Act. Even though a Nissanthathi
Kavaru might have a limited interest as the devolution
prescribed for in the Madras Aliyasanthana Act is no more
applicable the devolution will be under the Hindu succession
Act."
Speaking on the effect of Sec. 7(2) of the Hindu Succession
Act as also the observations made by the Supreme Court of
India in the case of Jalaja v. Lakshmi ((1973) 2 SCC 773 :

AIR 1973 SC 2658). Their Lordships, in para 23 have
observed:--

"The plea of the learned counsel for the respondents that
even if the property of the defendants 24 and 23 were held
to be separate property the succession would be in
accordance with Hindu Succession Act by virtue of the
provisions of Sec. 17 of the Hindu Succession Act will have to
be considered. Chapter II of the Hindu Succession Act which
deals with the intestate succession is applicable to the
property of Hindus and the provisions of this Chapter would

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prevail over any law which was in force immediately before
the commencement of this Act. Therefore the provisions
relating to succession of Aliyasanthana Hindus would be by
the provisions of the Hindu Succession Act and not by the
Aliysanthana law. Section 7(2) and Sec. 17 of the Hindu
Succession Act deal specifically with succession of the
property of a Hindu belonging to Aliyasanthana family. While Sec. 7(2) relates to devolution of undivided interest in the
property of a Aliyasanthana family Sec. 17 makes the
provisions of Secs. 8, 10, 15 and 23 with the modifications of
specified in Sec. 17 applicable to the devolution of separate
property of a Hindu under Aliyasanthana law. According to
the provisions of Sec. 36(5) of the property allotted to
Nissanthathi Kavaru at a partition is enjoyed by it only as a
life-interest and at the time of the death of the last of its
members shall devolve upon the Kutumba. This devolution of
the life-interest is according to Section 36(5). When a Hindu
governed by the Aliyasanthana law dies possession of a life-
interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert back to the kutumba. This
Court in Jalaja v. Lakshmi (supra), while deciding the rights
of the parties under a will executed by a Hindu governed by
Aliyasanthana law held at p. 719: "Similarly on the same
parity of reasoning when there are two kavarus, a demand
for partition would disrupt them and Chandayya Shetty could
no longer claim that he had an undivided interest within the
meaning of Sec-7(2) of the Succession Act, and if he has no
undivided interest in the property, his interest cannot be
enlarged into an absolute estate nor can his interest in the

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property devolve upon his heirs by intestate succession. The
words underlined by us relate to intestate succession and the
Court has specifically stated that it was not referring to the
provisions of Sec. 17 of the Hindu Succession Act as it
related to intestate succession are these observations
relating to intestate succession are therefore in the nature of
obiter. The separate property is not enlarged into an absolute
estate under Sec. 7(2) but on death it devolves on the heirs
as provided under the Hindu Succession Act. Therefore, it will
not revert back to the kutumba but only to the heirs as
provided for under the Hindu Succession Act. Similarly in the
observations at p. 721 of the Reports where it has observed:
'In this case also as already stated, there is no kavaru of
Chandayya Shetty, and on separation he had only a life-
interest which is not a heritable property and cannot be
disposed of by a will, nor could it devolve as on intestacy.'
The reference to devolution on intestacy is again in the
nature of obiter dicta."
16. Thus, it is obvious that after the coming into force of the Hindu Succession Act, the succession opens even with regard
to property allotted to the 'Nissanthathi Kavaru, under the
'Aliyasanthana Law under Sec. 7(2) or Sec. 17, as the case
may be and not under the Aliyasantana Act and, as is stated
very clearly in the Karnataka Amendment Act No. 1 of 1962,
if the members of a 'Nissanthathi Kavaru' partition amongst
themselves, the properties vest in them absolutely from the
date of partition. That is made very clear by reading Section
37A as also the Statement of Objects and Reasons to the
Section published in the Gazette. It is relevant to reproduce

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here the Statement of Objects and Reasons of Karnataka Act
No. 1 of 1962. It reads:

"Representations have been received from the Jains
governed by the Aliyasantana law that the provisions of the
Madras Aliyasantana Act 1949, should be amended to enable
the members of a Kutumba or kavaru to take their share in
the properties of the kutumba or kavaru, as the case may
be. The Aliyasantaniga Women's Association of South Kanara
and others have also represented that there is urgent need
to amend the said Act.

The Madras Aliyasantana Act, 1949, has made provision for
partition of the properties of a kutumba among the kavarus
of such kutumba. Under Sub-sec. (2) of Sec. 7 of the Hindu
Succession Act, 1956, (Central Act 30 of 1956), it has been
laid down that when a Hindu who has an undivided interest
in such property of a kutumba or kavaru dies, his or her
interest in such property shall devolve by testamentary or
intestate succession under that Act and not according to the
Aliyasantana law. The explanation to this sub-section
indicates that his or her interest in the property will be the
share which he or she would have got if a partition per capita
of the property of the kutumba or kavaru then living, and
that the share of such person shall be deemed to have been
allotted to him, or her absolutely. The effect of these
provisions is that in the case of a Hindu governed by the
Aliyasantana law, his or her heirs will be entitled to his or her
share in the property of the kutumba or kavaru only on his or
her death; but the person concerned cannot himself enjoy
the property by taking it at a partition. In view of the

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representations made, it is considered desirable to amend
the law to enable such Hindus to take their share in the
kutumba or kavaru properties by partition during their
lifetime also. Hence this Bill."
16. Therefore, following the declaration of law made

by the Hon'ble Supreme Court in the Sundari (supra) and

also in the case of Jalaja Shedthi, (supra

), I am of the view that as the Partition Deed, dated

06.05.1954 (Ex.P1) executed prior to the promulgation of Hindu Succession Act, 1956 and further, 'C' schedule

property was allotted in favour of Radhamma Shedthi, who

died on 09.01.1960 and that apart, the daughter of

Radhamma Shedthi-Sulochana Shedthi died on 04.01.1987,

issueless, and therefore in the absence of Santhathi Kavaru

in the family of Radhamma Shedthi, the finding recorded by

the both the courts below is just and proper and therefore,

there is no reversion of the 'C' Schedule property to the

legal heirs of Radhamma Shedthi. The applicability of

judgment of Division Bench of this Court in Ratnavati (supra), as contended by the learned counsel for the

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appellant is applicable only if the succession opens after the

death of Radhamma Shedthi, before the enactment of Hindu Succession Act, 1956. Since, Radhamma Shedthi,

died after the promulgation of Hindu Succession Act, 1956 and till then the succession was not opened in the family of

Radhamma Shedthi and therefore, judgment of the Hon'ble

Supreme Court in the case of Sundari (supra) is aptly

applicable to the facts and not the judgment of Ratnavati (supra) under the circumstances of the case, as per the

mode of devolution of 'C' schedule property is as per

Section 36(5) of Madras Aliyasanthana Act. Therefore, the

provisions under Section 7(2) and Section 17 of the Hindu

Succession Act, is applicable to the facts of the case, in

view of Section 4 of the Hindu Succession Act, having

precedence over, the Aliyasanthana Law. In that view of the

matter, the finding recorded by both the courts below is to

be confirmed and the judgment of this court in the case of Ratnavati (supra), is not applicable to the facts of this

Case. Hence, the substantial question of law referred to

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above, favours the defendants and as such, the Regular

Second Appeal is accordingly, dismissed.

SD/-

(E.S.INDIRESH)
JUDGE

SB
List No.: 1 Sl No.: 49