Allowed

Ramanatha Bhandary v. Chandrahasa Bhandary

Kerala HC26 Oct 2017RSA/1007/2016

Case brief

AI extract

What is this about?

A Nissanthathi Kavaru male’s partitioned life estate was held not inheritable by his personal heirs under the Hindu Succession Act. The court also held the mandatory injunction suit not maintainable and defective for non-joinder. It allowed the second appeal, set aside the decrees below and dismissed the suit.

What did the court decide?

Judgments and decrees of both courts below set aside; suit dismissed.

Ramanatha Bhandary Vs Chandrahasa Bhandary — Partition | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939

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RSA.No. 1007 of 2016 (C)

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AGAINST THE JUDGMENT & DECREE IN AS 14/2014 of ADDL. DISTRICT COURT - III, KASARAGOD

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AGAINST THE JUDGMENT & DECREE IN AS 16/2014 of ADDL. DISTRICT COURT - III, KASARAGOD

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AGAINST THE JUDGMENT IN OS 117/2010 of PRL.MUNSIFF'S COURT, KASARAGOD

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APPELLANTS/APPELLANTS IN AS 14/2014 & RESPONDENTS IN AS 16/2014DEFENDANTS IN SUIT:

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1. RAMANATHA BHANDARY S/O. NANDAPPA BHANDARY, AGED 70, RESIDING AT PERUVADI BEEDU HOUSE, BERIPADAVU POST, BAYAR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN - 671 322.

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2. URMILA J. BHANDARY W/O. LATE JAYAPRAKASH BHANDARY, AGED 60, RESIDING AT PERUVADI BEEDU HOUSE, BERIPADAVU POST, BAYAR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN - 671 322.

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BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE

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RESPONDENTS/RESPONDENTS IN AS 14/2014 AND APPELLANTS IN AS 16/2014PLAINTIFFS IN SUIT:

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1. CHANDRAHASA BHANDARY S/O. AITHAPPA BHANDARY, AGED 88, RESIDING AT MADWA HOUSE, ICHILAMPADY VILLAGE, KODIYAMME POST, KUMBLA (VIA), KASARAGOD TALUK AND DISTRICT - 671 321.

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2. M.RAVICHANDRA ALVA, S/O. VADAVATHI ALVA, AGED 62, RESIDING AT MENALA HOUSE, NATTANIGE, MADHUR VILLAGE, ISHWARAMANGALA POST, PUTHUR TALUK, D.K.DISTRICT, KARANATAKA STATE - 574 313.

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RSA.No. 1007 of 2016 (C)

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:2:

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3. SURYAPRABHA SHETTY W/O. SATHEESH SHETTY, AGED 58, RESIDING AT MENALA HOUSE, NATTANIGE, MADHUR VILLAGE, ISHWARAMANGALA POST, PUTHUR TALUK, D.K.DISTRICT, KARANATAKA STATE - 574 313.

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4. RAGHUNATHA ALVA S/O. VADAVATHI ALVA, AGED 54, RESIDING AT MENALA HOUSE, NATTANIGE, MADHUR VILLAGE, ISHWARAMANGALA POST, PUTHUR TALUK, D.K.DISTRICT, KARANATAKA STATE - 574 313.

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5. PAVITHRA S. POONJA S/O. VADAVATHI ALVA, AGED 48, RESIDING AT MENALA HOUSE, NATTANIGE, MADHUR VILLAGE, ISHWARAMANGALA POST, PUTHUR TALUK, D.K.DISTRICT, KARANATAKA STATE - 574 313.

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6. RAMPRASAD ALVA

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S/O. VADAVATHI ALVA, AGED 44, RESIDING AT MENALA HOUSE, NATTANIGE, MADHUR VILLAGE, ISHWARAMANGALA POST, PUTHUR TALUK, D.K.DISTRICT, KARANATAKA STATE - 574 313.

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7. INDIRA S. ALVA D/O. LATE AITHAPPA BHANDARY, AGED 78, RESIDING AT BELLUR GUTHU HOUSE, BADAGE, BELUR VILLAGE AND POST, BANTWAL TALUK, D.K.DISTRICT, KARANATAKA STATE - 574 313.

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8. BHAGIRATHI M. SHETTY W/O. MAHABALA SHETTY, AGED 74, RESIDING AT MADWA HOUSE, ICHILAMPADY VILLAGE, KODIYAMME POST, KUMBLA VIA, KASARAGOD TALUK AND DISTRICT, KERALA - 671 321.

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R1-R2 BY ADV. SRI.JOSE JOSEPH (CHEMPLAYIL) R1 TO R8 BY ADV. SRI.K.I.MAYANKUTTY MATHER R3-R8 BY ADV. SRI.P.RAHUL

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[CR]

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B. KEMAL PASHA, J.

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R.S.A. No. 1007 of 2016

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............................................................... Dated this the 26^th day of October, 2017

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J U D G M E N T

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(1) Are the provisions contained in Section 36 of the Madras Aliyasantana Act, 1949 inconsistent with any of the provisions of the Hindu succession Act, 1956?

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(2) Does Section 30 of the Hindu succession Act, 1956, enlarge the scope of Section 7(2) of the said Act?

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(3) Can the share allotted to a Nissanthathi Kavaru male be inherited by his natural heirs on his death?

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(4) What are the eventualities wherein the limited estate of life interest of a Nissanthathi Kavaru, over the properties allotted to it in partition of the Kutumba properties, become an absolute estate?

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(5) Can persons belong to Santhathi Kavarus of the Kutumba, who are in possession of the

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R.S.A. 1007 of 2016

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-: 2 :-

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properties allotted to Nissanthathi Kavaru male in partition of the Kutumba properties on his death, be thrown out through a decree of mandatory injunction?

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These are the main questions to be answered in this Regular Second Appeal.

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O.S.No.117/2010 of Principal Munsiff's Court,

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Kasaragod was filed as a simple suit for mandatory injunction directing the defendants, their men and agents and all other persons claiming under them to discontinue the management and to surrender and restore actual possession of A schedule properties to the plaintiffs and also for submitting true and correct accounts for the income and expenses in respect of the plaint A schedule properties. A relief for directing the defendants to pay future income of the properties was also sought for.

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Plaint A schedule properties are the B share in

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the final decree for partition in R.I.A. No.87/1957 of the Subordinate Judge's Court, Kasaragod which was originally

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R.S.A. 1007 of 2016

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-: 3 :-

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R.I.A. No.1530/1952 in O.S.No.228/49 of the Subordinate Judge's Court, Mangalore. According to the plaintiffs, plaint A schedule properties were allotted to the exclusive and absolute share of the Nissanthathi Kavaru of late Aithappa Bhandary, as per the Madras Aliyasantana Act, 1949 (hereinafter referred to as 'the Aliyasantana Act']. Aithappa Bhandary was the first defendant in the suit and the first respondent in the final decree. He died on 23.08.1963. He was in absolute possession and enjoyment of plaint A schedule properties till his death.

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The first plaintiff is the son, plaintiffs 7 and 8 are daughters, and plaintiffs 2 to 6 are the children of the daughters of late Aithappa Bhandary, who are his legal heirs as per the provisions of the Hindu Succession Act, 1956. Plaintiffs are residing away from the plaint A schedule properties. According to the plaintiffs, therefore, they had entrusted the plaint A schedule properties to the first defendant and the husband of the 2^nd defendant for

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R.S.A. 1007 of 2016

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-: 4 :-

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management, immediately after the death of Aithappa Bhandary. It is the case of the plaintiffs that the first defendant and the husband of the 2^nd defendant were mere agents under them. After the death of the husband of the 2^nd defendant, the 2^nd defendant was also managing the property along with the first defendant. They were allowed to meet the expenses for cultivation and improvements in the property, and they were directed to pay the balance income from the properties to the plaintiffs. According to the plaintiffs, such balance income was paid by the defendants for some years only, and thereafter they avoided such payments by representing that the entire income was being spent for the cultivation and improvements in the property. They stopped the payment of any amount from the income for the last few years.

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Plaint A schedule properties is three acres of

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areca garden and 2½ acres of paddy field, which could generate sizable income from coconut, arecanut, paddy etc.

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R.S.A. 1007 of 2016 -: 5 :-

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The plaintiffs, through Ext.A2 notice dated 04.01.2010, terminated the management of the defendants over the property, and they were called upon to submit a true and correct account for the income from plaint A schedule properties, and they were directed to surrender vacant possession of plaint A schedule properties. Ext.A2 did not evoke a positive response; on the contrary, it invited a reply in the form of Ext.A3 dated 15.01.2010. According to the plaintiffs, the defendants have resorted to false and frivolous contentions in the reply notice, and hence the suit.

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Defendants filed a written statement contending

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interalia as follows: The suit itself is false, frivolous and vexatious. They have denied the plaint averments. It is admitted that plaint A schedule properties are the B share allotted to Aithappa Bhandary, who was a Nissanthathi Kavaru, and he possessed and enjoyed the properties till his death. It is also admitted that the plaintiffs are the legal heirs of Aithappa Bhandary as per the provisions of the

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R.S.A. 1007 of 2016

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-: 6 :-

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Hindu Succession Act, 1956. At the same time, it is not correct to say that the rights of Aithappa Bhandary over the properties devolved on the plaintiffs. It is contended that there was no entrustment of the estate and the defendants had never agreed to give any income to the plaintiffs.

¶61

Aithappa Bhandary, and his sisters namely Devaki and Chomu belonged to the undivided aliyasantana family which is a Kutumba known as Peruvodi family, governed by Aliyasantana Act. Devaki and Chomu are the predecessorsin-interest of the defendants. There was a partition in the family through O.S.No.228/49 of the Subordinate Judge's Court, South Canara. After the preliminary decree in the said suit, R.I.A. No.1530/52 was filed on 20.09.1956. Different Kavarus of the family( Kutumba ) were allotted with different set of properties. The said Kavarus took possession of the respective shares allotted to them. In aliyasantana law , family inheritance was recognized and therefore, Santhathi Kavaru of Devaki and Chomu could

¶62

R.S.A. 1007 of 2016

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-: 7 :-

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exclusively enjoy the properties allotted to them as their absolute properties. B schedule was allotted to Aithappa Bhandary, who himself constituted a Nissanthathi Kavaru whereby he got only a life interest in the B schedule. According to the defendants, on the death of Aithappa Bhandary, plaint A schedule properties devolved on the Santhathi Kavarus of the branches of Devaki and Chomu upon the principle of reversion.

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It is contended that the members of the kavarus of Devaki and Chomu executed a simple mortgage deed dated 19.06.1965 in respect of plaint A schedule property in favour of Smt. Gowri @ Ujjakke for ₹8,495/-, for settling the debts of late Aithappa Bhandary. Subsequently, O.S.No.66 of 1977, continued by E.P. No.116/1979 were there for recovery of the mortgage money. According to the defendants, their predecessors-in-interest paid the said mortgage money. In 1971, a partition suit as O.S.No.14/71 was filed by the Kavarus of Devaki and Chomu before the

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R.S.A. 1007 of 2016

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-: 8 :-

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Subordinate Judge's Court, Kasaragod in respect of the plaint A schedule properties. A preliminary decree was passed on 22.10.1973. The final decree is yet to be passed. It is contended that the suit is bad for non-joinder of necessary parties.

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The Munsiff's Court, Kasaragod found that the law applicable to the plaintiffs is the Hindu Succession Act, 1956 and therefore, the plaintiffs have title over the properties. The learned Munsiff further found that even though there is no evidence to show the entrustment of the property or details regarding such entrustment, the defendants are in possession of the property without any title, and their possession could only be treated merely as permissive in nature. After denying the other reliefs sought for, the learned Munsiff decreed the suit by directing the defendants to surrender possession of the properties to the plaintiffs. The reliefs for accounting and profits were denied.

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The defendants challenged the judgment and

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R.S.A. 1007 of 2016

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-: 9 :-

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decree before the District Court, Kasaragod through A.S.No.14/14. The plaintiffs also preferred A.S.No.16/14.

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Both the appeals were considered together by the Additional District Judge-III, Kasaragod. The learned Additional District Judge even though found that there was no evidence for any entrustment of the property or to show that there was any principal and agent relationship between the parties, concurred with the other findings entered by the trial court and dismissed both the appeals. Hence, the defendants have come up with this second appeal.

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This second appeal has been admitted by this

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Court on the following substantial questions of law:

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“(1) In view of the settled possession of the members of the Santhathi Kavaru of Devaki and Chomu for over 37 years, is the suit filed for ejecting two members of the kavaru, by way of mandatory injunction maintainable?

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(2) In the light of the findings of the lower appellate court that the case of agency

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R.S.A. 1007 of 2016

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-: 10 :-

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pleaded by the plaintiffs is not true, is it legal and proper to grant the relief of ejectment based on a different cause of action viz. that the defendants have failed to establish their right or legal status to remain in the property?

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(3) Is not the suit bad for non-joinder of the other members of the Santhathi kavaru of Devaki and Chomu particularly in view of the preliminary decree for partition in O.S.No.14 of 1971?

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(4) Is not the life estate of the Nissanthathi Kavaru terminated on the death of Aithappa Bhandary leading to devolution of interest under Section 36(5) of the Madras Aliyasantana Act, 1949?

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(5) Is the lower appellate court correct in law in proceeding as though a life estate of a Nissanthathi Kavaru is enlarged into a full estate capable of devolution under Section 8 of the Hindu Succession Act, 1956?

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(6) Has not Section 36(5) of the Madras Aliyasantana Act, 1949 survived the

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R.S.A. 1007 of 2016

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-: 11 :-

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repealing provisions of the Hindu Succession Act, 1956?”

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Heard the learned counsel for the appellants Sri.

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P.B. Krishnan and the learned counsel for the respondents Sri.P.Rahul.

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The learned counsel for the appellants has argued that the provisions contained in the Aliyasantana Act under sub-Sections (3), (4) and (5) of Section 36 are not inconsistent with any of the provisions of the Hindu Succession Act, 1956 and therefore, it is not covered by Section 4(1)(b) of the Hindu Succession Act, 1956. It has been argued that Section 30 of the Hindu Succession Act does not enlarge the scope of Section 7(2) of the said Act. The argument is that Section 7(2) of the Hindu Succession Act shall have application in the case of aliyasantana family, only in case of the 'undivided interest' of a Kavaru on his or her death after the commencement of the Hindu Succession Act, 1956. It is argued that in the present case, Aithappa

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R.S.A. 1007 of 2016

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-: 12 :-

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Bhandary died after the commencement of the Hindu Succession Act and at the same time, he had no undivided interest in the properties of the Kutumba at the time of his death and therefore, Section 7(2) of the Hindu Succession Act has no application with regard to the plaint A schedule properties.

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It has been argued that the only contingency wherein the life interest which the Nissanthathi Kavaru gets as his share from the Kutumba properties can become an absolute estate is the absence of any other nearest Santhathi Kavaru in the Kutumba . In case of any other nearest Santhathi Kavaru in the Kutumba , the share allotted to a Nissanthathi Kavaru on partition will devolve on such Santhathi Kavaru on the death of the member/members of the said Nissanthathi Kavaru to whom the property was allotted.

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It has also been argued that a simple suit for mandatory injunction is not maintainable in this case on two

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R.S.A. 1007 of 2016

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-: 13 :-

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reasons. The main reason is that there was no entrustment of the management of the properties, as alleged. The next reason is that there was no obligation from the part of the defendants to heed to the demand of the plaintiffs. It has been argued that the defendants have not only denied the title of the plaintiffs, but also have claimed title and interest over the property along with the other members of the Kavarus of Devaki and Chomu based on the provisions of Aliyasantana Act. It has been further argued that the suit is bad for non-joinder of necessary parties mainly because of the fact that the suit against these two defendants alone, without the junction of the other members of the Kavarus of Devaki and Chomu, is bad for non-joinder of necessary parties. It has been further argued that there is evidence of possession of the defendants for a long period and therefore, a suit for mandatory injunction alone will not lie.

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It has been argued that the Hindu Succession Act is mainly dealing with the succession; whereas, the

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R.S.A. 1007 of 2016

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-: 14 :-

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provisions contained under Sections 36(3), 36(4) and 36(5) are meant for partition and not succession. The argument is that in such case, the said provisions cannot have any inconsistency with any of the provisions contained in the Hindu Succession Act, 1956, within the meaning of Section 4(1)(b) of the Hindu Succession Act.

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Per contra , learned counsel for the respondents has argued that the entire law relating to succession among Hindus have been codified through the Hindu Succession Act, 1956 and thereafter, there has been no scope for the principle of reversion. The argument is that the right to reversion created through the Aliyasantana Act has been taken away through Section 4 of the Hindu Succession Act, 1956. It has been further argued that as per Section 36(6) of the Aliyasantana Act, the share allotted to Aithappa Bhandary through the final decree became his separate properties and therefore the rules of succession to be followed are the provisions contained under Section 18 of

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R.S.A. 1007 of 2016

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-: 15 :-

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the Aliyasantana Act. It has been further argued that Section 30 of the Hindu Succession Act and its explanation entitled Aithappa Bhandary to have and hold the property as a property capable of being disposed of by him and therefore, the rules of succession to be followed are the provisions contained under Section 8 of the Hindu Succession Act. The argument is that in such case, there is no question of any reversion within the meaning of Section 36(5) of the Aliyasantana Act so far as plaint A schedule properties are concerned and therefore, the plaintiffs are the only persons, who are entitled to claim the said property through succession.

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The learned counsel for the respondents has placed heavy reliance on the decision in Sundari and others v. Laxmi and others [AIR 1980 SC 198] and argued that it lays down the law on the subject and therefore, the rules of succession to be followed are the provisions contained in Section 8 of the Hindu Succession

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R.S.A. 1007 of 2016

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-: 16 :-

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Act. It has been further argued that, when rightly or wrongly, a decision has been rendered by the Supreme Court, no other courts in the country can deviate from the said decision on the ground that some provisions of law were not considered or on the ground that it does not lay down the law correctly. The argument is that therefore, the decision rendered by the Supreme Court in Jalaja Shedthi and others v. Lakshmi Shedthi and others [AIR 1973 SC 2658] cannot be relied on. It has also been argued that the High Court cannot distinguish a decision rendered by the Supreme Court.

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The following facts are admitted: The parties are governed by the provisions of Aliyasantana Act. The plaintiffs are the natural heirs(personal heirs) of late Aithappa Bhandary. The defendants are persons associated with Kavarus of Devaki and Chomu. There was a partition in the Kutumba (in the year 1949) in which Aithappa Bhandary along with Devaki and Chomu were Kavarus .

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R.S.A. 1007 of 2016

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-: 17 :-

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O.S.No.228/49 originated from the partition suit filed before

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the Subordinate Judge's Court, Mangalore in respect of the Kutumba properties. Plaint A schedule properties were allotted as B share to the share of the Nissanthathi Kavaru of Aithappa Bhandary. Aithappa Bhandary was in possession and enjoyment of plaint A schedule properties till his death.

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The crux of the matter to be decided is as to what is the law applicable to the parties as far as the plaint A schedule property of Aithappa Bhandary is concerned. The plaintiffs are claiming title over the property through succession within the meaning of Section 8 of the Hindu Succession Act, 1956. At the same time, the defendants have contended that the law applicable on the subject is the Aliyasantana Act and by virtue of Section 36(3) of Aliyasantana Act, the plaint A schedule properties allotted to the Nissanthathi Kavaru of Aithappa Bhandary have created merely a 'life interest' alone in favour of Aithappa Bhandary.

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R.S.A. 1007 of 2016

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-: 18 :-

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There is no dispute that the law for partition, which was available to Aithappa Bhandary and other Kavarus in the Kutumba, is the Aliyasantana Act. Section 1(2)(a) of the Madras Aliyasantana Act, 1949 says that, ' it shall apply to all Hindus and Jains, who are governed by the Aliyasantana law of inheritance'.

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Section 3(a) of the Madras Aliyasantana Act, 1949

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says-

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“' Aliyasantana ' means the system of inheritance in which descent is traced through the female line but does not include the system of inheritance known as the Marumakkattayam.”

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Kutumba is defined in Section 3(c) of the Aliyasantana Act

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as-

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“' Kutumba ' means the group of persons forming a joint family with community of property governed by the Aliyasantana Law of inheritance.”

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There is no dispute that a Kutumba contains

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various Kavarus , which can be categorised into two namely,

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R.S.A. 1007 of 2016

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-: 19 :-

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Nissanthathi Kavaru and Santhathi Kavaru . Nissanthathi Kavaru is defined in Section 3(f) of the Aliyasantana Act as

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follows:-

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“' Nissanthathi Kavaru' means a Kavaru

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which is not a santhathi kavaru.”

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Santhathi Kavaru is defined in Section3(h) of the

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Aliyasantana Act as follows:-

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“' Santhathi Kavaru' means a Kavaru of

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which at least one member is a female who has not completed the age of fifty years.”

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Therefore, as pointed out by the learned counsel

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for the appellants, it is evident that Aliyasantana law proceeds through the female line, that too, at least a woman, who can procreate children, and that is why a female, who has not completed the age of 50 years, is made as an integral part to constitute a Santhathi Kavaru .

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Admittedly, the parties are governed by the provisions of Aliyasantana Act. At the same time, according to the respondents, on account of the provisions of the

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R.S.A. 1007 of 2016

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-: 20 :-

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Hindu Succession Act, 1956, right of survivorship as well as reversion were taken away and the right of succession to the natural heirs has been identified. The argument is that therefore, the personal heirs of Aithappa Bhandary is entitled to the share allotted to Aithappa Bhandary in the partition. The respondents are harping upon Section 7(2) read with explanation to Section 30 and also Section 4(1)(b) of the Hindu Succession Act, 1956.

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Hindu Succession Act, 1956 has come into force

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with effect from 17.06.1956. Section 4 of the Hindu Succession Act, 1956 says:-

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“ 4. Over-riding effect of Act - (1) Save as otherwise expressly provided in this Act,-

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(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

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(b) any other law in force

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R.S.A. 1007 of 2016

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-: 21 :-

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immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.”

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From the wordings of Section 4(1)(b) it is evident that there cannot be a repeal of the entire statute of any other law in force immediately before the commencement of the said Act. At the same time, the provisions of such earlier statute which are inconsistent with any of the provisions contained in the Hindu Succession Act shall cease to apply to Hindus. Therefore, what has to be looked into is as to whether there are any inconsistencies in the provision relating to partition in the Aliyasantana Act with any of the provisions contained in the Hindu Succession Act.

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Evidently, there cannot be any such inconsistencies when Chapter VI of the Aliyasantana Act entirely deals with partition; whereas the Hindu Succession Act is 'an Act to amend and codify the law relating to intestate succession among Hindus'. It is correct to state

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R.S.A. 1007 of 2016

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-: 22 :-

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that the provisions of the Hindu Succession Act have nothing to do with partition.

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Section 3(b) gives the meaning of “ Kavaru ”. It

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says:

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(I) “Kavaru”, used in relation to a female, means the group of persons consisting of that female, her children and all her descendants in the female line.

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(ii) “Kavaru”, used in relation to a male, means the Kavaru of the mother of that male.

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Even though it is admitted that late Aithappa Bhandary constituted a nissanthathi kavaru in the kutumba , from the meaning of Kavaru as contained in Section 3(b) (i) and (ii), it seems that in fact, he could not have been treated as a Kavaru , especially when his mother was not alive. Had the mother been alive at the time of partition, it could have been said that he constituted a Kavaru , at least Nissanthathi

Kavaru .

R.S.A. 1007 of 2016

-: 23 :-

The provisions relating to partition in the Aliyasantana Act are contained in Sections 35 and 36 which comes under Chapter VI. Section 35(1) deals with the right of a Kavaru or Kavarus to claim partition of the Kutumba properties. Section 35(2) and its Explanations (a) and (b) says:

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“The share obtained by the Kavaru shall be taken with all the incidents of Kutumba property.

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Explanation:- For the purposes of this Chapter:-

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(a) a male member of a Kutumba, or a female member thereof who has no female descendant in the female line, shall be deemed to be a Kavaru if he or she has no living female ascendant who is a member of the Kutumba:

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(b) such male member, or such female member if she has completed the age of fifty years,

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R.S.A. 1007 of 2016

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-: 24 :-

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shall be deemed to be Nissanthathi Kavaru.”

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As per explanation(b) to Section 35(2), a male member of a Kutumba shall be deemed to be a Kavaru , if he has no living female ascendant who is the member of the Kutumba . Therefore, instead of treating Aithappa Bhandary as Nissanthathi Kavaru one can only accept the proposition that he could only be treated as a 'deemed' Nissanthathi Kavaru as per the explanation to Section 35(2).

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The next question to be considered is as to what are the rights of a Nissanthathi Kavaru in a partition of the Kutumba properties under the Aliyasantana Act. Section 36 (2)(h) of the Aliyasantana Act says that the share of a kavaru at a partition shall be ascertained as on the date on which it makes a claim for partition. Therefore, even where a mere claim for partition is only there, the share of a Kavaru to be ascertained will be one as on the date of such claim. In the case of a suit for partition, the date on which

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R.S.A. 1007 of 2016

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-: 25 :-

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the suit is filed assumes importance. The same is evident from the explanation to Section 35(2).

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Section 36(3) says:

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“If at the time of the partition, any Kavaru taking a share is a Nissanthathi Kavaru, it shall take only a life interest in the properties allotted to it, if the Kutumba from which it separates has at least one female member who has not completed the age of fifty years, or where the Kutumba breaks up into a number of Kavarus at a partition, if at least one of such Kavarus is a Santhathi Kavaru and if there is no such female member or Santhathi Kavaru, the Kavaru shall have an absolute interest in the properties allotted to it.”

¶181

It is evident from Section 36(3) that the share

¶182

being taken by a Nissanthathi Kavaru at the time of partition creates only a life interest in the properties allotted to it, in

¶183

R.S.A. 1007 of 2016

¶184

-: 26 :-

¶185

case the Kutumba from which it separates has at least one female member who has not completed the age of 50 years or in the case of breaking up of the Kavarus at the partition if

¶186

at least one of such Kavarus is a Santhathi Kavaru. In the absence of any such Santhathi Kavaru or female member, who has not completed the age of 50 years, such Nissanthathi Kavaru will get absolute interest in the properties allotted to it. The said provision is clear as to what right the Nissanthathi Kavaru gets in a partition of the properties allotted to it.

¶187

37. Section 36(4) says:

¶188

“In the case referred to in sub-section (3), the life interest of the Nissanthathi Kavaru in the properties allotted to it at a partition shall become absolute, if the Kutumba concerned ceases to have among its members a female who has not completed the age of fifty years or if all the Kavarus into which the Kutumba broke up, whether at the same or at a subsequent partition,

¶189

R.S.A. 1007 of 2016

¶190

-: 27 :-

¶191

become Nissanthathi Kavarus.”

¶192

38. The two eventualities in which the share allotted to

¶193

a Nissanthathi Kavaru, become an absolute property are mentioned in Section 36(4). They are, (1) If the Kutumba concerned ceases to have among its members a female who has not completed the age of fifty years; and (2) In the case of breaking up of a Kutumba, all the Kavarus of the said Kutumba become Nissanthathi Kavarus at the time of the same partition or at a subsequent partition.

¶194

The consequence of the death of a member of the Nissanthathi Kavaru or last of its members has been specified in Section 36(5) which states:

¶195

“ The properties allotted to a Nissanthathi Kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, 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

¶196

R.S.A. 1007 of 2016

¶197

-: 28 :-

¶198

Kavaru or Kavarus.”

¶199

Therefore, in normal circumstances when there are other nearest santhathi kavarus or female members below the age of 50 are there, the life interest of the Nissanthathi Kavarus over the properties allotted to it shall, on the death of the last of its members, revert back to the Kutumba or the nearest Santhathi Kavarus . The eventualities wherein the normal life interest created on the Nissanthathi Kavaru become absolute estate are those eventualities specified in Section 36(4).

¶200

Now the impact of Section 7(2) of the Hindu Succession Act has to be considered. There is no quarrel to the proposition that Section 7 has no retrospective operation. It has taken effect from 17.06.1956 only. Section 7(1) is with regard to Hindus following marumakkattayam law and nambudri law and it relates to tarwad, tavazhi or illom, as the case may be.

¶201

Section 7(1) says:

¶202

R.S.A. 1007 of 2016

¶203

-: 29 :-

¶204

“Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom. –

¶205

(1) When a Hindu to whom the marumakkattayam or nambudri 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 interest in the property of a tarwad, tavazhi or illom, 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 marumakkattayam or nambudri law.

¶206

Explanation.- For the purpose of this sub-section, the interest of a Hindu in the property of a tarward, tavashi or illom shall be deemed to be the share in the property of the tarward, tavazhi or illom, as the case may be,

¶207

R.S.A. 1007 of 2016

¶208

-: 30 :-

¶209

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 tarwad, tavashi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.”

¶210

Section 7(2) deals with Hindus following

¶211

aliyasantana law and it relates to the Kutumba or Kavaru, as the case may be. Section 7(2) says:

¶212

“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

¶213

R.S.A. 1007 of 2016

¶214

-: 31 :-

¶215

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.

¶216

Explanation.- For the purpose of this sub-section, the interest of a Hindu in the property of 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.”

¶217

R.S.A. 1007 of 2016

¶218

-: 32 :-

¶219

There is subtle difference between Section 7(1) and 7(2). When the legislature considered the question relating to marumakkattayam law and nambudri law in respect of the properties of tarwad, tavazhi or illom, the wordings used were “having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be” whereas, when the question relating to a Hindu to whom aliyasantana law was applicable at the commencement of the Hindu Succession Act in respect of the properties of Kutumba or Kavaru , the wordings used are “ having at the time of his or her death an undivided interest in the property of a Kutumba or Kavaru .”(Underline supplied). Therefore, much emphasis has to be given to the terms “undivided interest” in the property of a Kutumba or Kavaru . The legislature has used such terms knowingly with definite intention. The law applicable to the marumakkattayees and nambudris relating to tarwad, tavazhi or illom is therefore, totally different from the law

¶220

R.S.A. 1007 of 2016

¶221

-: 33 :-

¶222

applicable to Hindus following aliyasantana law relating to the properties of the Kutumba or Kavaru .

¶223

Now the next question to be considered is whether

¶224

there is any inconsistency in the provisions contained in Section 36(3)of the Aliyasantana Act with Section 7(2) of the Hindu Succession Act of 1956. Evidently, there is no inconsistency between these two provisions. Section 7(2) of the Hindu Succession Act specifically deals with the undivided interest of an aliyasantana Hindu over the properties of the Kutumba, as on the date of his death. What has been stated in Section 36(3) of the Aliyasantana Act is that the properties allotted to a Nissanthathi Kavaru in a partition, at the time of partition, shall create only a life interest, which means that in case the said Kavaru gets a female in the line, necessarily it will be transformed as a Santhathi Kavaru , in which case the said properties allotted to the said Kavaru will automatically be transformed into an absolute estate.

¶225

R.S.A. 1007 of 2016

¶226

-: 34 :-

¶227

The provision under Section 7(2) of the Hindu Succession Act is relating to the intestate succession of the properties of aliyasantana Hindu on his or her death; whereas, Section 36(3) of the Aliyasantana Act relates to the right of a Nissanthathi Kavaru over the properties allotted to it in a partition, at the time of partition. Therefore, there is no inconsistency between Section 7(2) of the Hindu Succession Act and Section 36(3) of the Aliyasantana Act.

¶228

Admittedly, late Aithappa Bhandary constituted a Nissanthathi Kavaru . In the plaint itself it has been specifically pleaded that the B schedule in the final decree was allotted to the share of the Nissanthathi Kavaru of Aithappa Bhandary. There is no case for the plaintiffs that till the death of Aithappa Bhandary his Nissanthathi Kavaru had transformed into a Santhathi Kavaru or that there was no nearest Santhathi Kavaru s in the Kutumba . The fact that Devaki and Chomu, who were sisters of Aithappa Bhandary constitute separate Santhathi Kavaru s, has not been denied

¶229

R.S.A. 1007 of 2016

¶230

-: 35 :-

¶231

by the plaintiffs. Therefore, this is a case wherein Section 36(3) of the Aliyasantana law is squarely applicable.

¶232

According to the learned counsel for the

¶233

respondents, when explanation to Section 30 of the Hindu Succession Act has been incorporated, the interest of a member of a Kavaru over the properties of a Kutumba or Kavaru shall not, notwithstanding anything contained in the Hindu Succession Act or any other law for the time being in force, be deemed to be a property capable of being disposed of by him within the meaning of Section 30. As per Section 30, any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, or any other law for the time being in force and applicable to Hindus. Admittedly, the law applicable to the parties at the commencement of Hindu Succession Act was Aliyasantana Act. Section 30 specifically deals with the right of a Hindu to dispose of any

¶234

R.S.A. 1007 of 2016

¶235

-: 36 :-

¶236

property which is capable of being so disposed of by him through a Will or other testamentary disposition. When the law applicable to a Hindu following Aliyasantana Act was one governed by Section 36(3), in the case of a Nissanthathi Kavaru , it cannot be said that the properties allotted to such a Nissanthathi Kavaru in a partition is a property which is capable of being disposed of by him or by such members of the Nissanthathi Kavaru .

¶237

The next question to be examined is whether Section 30 of the Hindu Succession Act has in any way enlarged the scope of Section 7(2) or it is a substitute to Section 7(2) for creating a right of a Hindu following Aliyasantana Act to treat the properties allotted to him as a Nissanthathi Kavaru in a partition, as an absolute estate. The question was considered by the Full Bench of the High Court of Mysore in Sundara Adapa and others v. Girija and others [AIR 1962 Mysore 72(FB)] .

¶238

On a threadbare examination of all the provisions

¶239

R.S.A. 1007 of 2016

¶240

-: 37 :-

¶241

of law dealt with above, their Lordships held that Section 30 does not enlarge the scope of Section 30 of the Hindu Succession Act, 1956. It was held therein that there is absolutely no conflict between the provisions contained under Chapter VI of the Aliyasantana Act and the provisions contained in the Hindu Succession Act. The facts of the case relating to the decision in Sundara Adapa (supra) are almost the same and identical to the facts of the case in hand.

¶242

In that case the male constituting a Nissanthathi Kavaru, who derives properties through a partition in the Kutumba, executes a Will in favour of his wife and children in respect of the properties allotted to him, prior to his death. He died after the commencement of the Hindu Succession Act. The wife and children took up the plea that the testamentary disposition through a Will is valid as per the provisions contained in Section 30. The said plea was found against. In Sundara Adapa (supra), it was emphatically held

¶243

R.S.A. 1007 of 2016

¶244

-: 38 :-

¶245

that the right conferred on a Nissanthathi Kavaru in a partition is merely 'life interest' and therefore, he could not have executed a Will.

¶246

The question again came up for consideration before the Apex Court in Jalaja Shedthi and others v. Lakshmi Shedthi and others [AIR 1973 SC 2658]. The Apex Court held that the 'life interest' created on such a Nissanthathi Kavaru under Aliyasantana law is in the same position of a female limited owner under the Hindu law and that the Hindu Succession Act has enlarged the right of the female Hindu alone in such cases through Section 14. It was held that the right created under Section 7(2) of the Hindu Succession Act has not been enlarged by Section 30. The decision in Sundara Adapa (supra) was fully approved by the Apex Court in Jalaja Shedthi (supra).

¶247

It seems that the courts below have heavily relied

¶248

on the decision in Sundari and others v. Laxmi and others [AIR 1980 SC 198] in holding that the natural heirs of

¶249

R.S.A. 1007 of 2016

¶250

-: 39 :-

¶251

Aithappa Bhandary have the right to inherit plaint A schedule properties. In fact, it seems that both the courts below have misread the judgment in Sundari (supra). In paragraph 12 of Sundari (supra), it was held:

¶252

“The result of the Explanation is that the undivided interest in the property of the Hindu in the Aliyasantana Kutumba or Kavaru shall devolve as provided for under the Hindu Succession Act and that the share of the Hindu shall be deemed to have been allotted to him absolutely.”(Emphasis supplied)

¶253

While dealing with Section 7(2) as well as Section

¶254

30 of the Hindu Succession Act, the Apex Court has repeatedly held in Sundari (supra) that Section 30 enables the male Hindu to dispose of his undivided interest in a Kutumba or Kavaru by a Will. In the case in Sundari (supra), it was found that what was being claimed was the undivided share of the Nissanthathi Kavaru . The entire discussion in the judgment relating to the provisions of law

¶255

R.S.A. 1007 of 2016

¶256

-: 40 :-

¶257

both Aliyasantana law as well as the Hindu Succession Act was in relation to the right of the deceased persons on their undivided interests in the properties. In paragraph 13 of Sundari (supra), it was held that-

¶258

“The Hindu male will be entitled only to the limited rights as provided for under the law that is applicable to him. But when once the succession opens by the death of the Hindu Section 7(2) provides that the share in the undivided interest of the Hindu would devolve on his heirs under the Hindu Succession Act absolutely. A Hindu under Section 30 of the Hindu Succession Act is also conferred the right to disposing of by will his interest in the Kutumba or Kavaru. While a Hindu dies intestate his undivided interest devolves absolutely on his heirs, in the case of his separate property the succession is governed by the provisions of Sections 8, 10 and 15 of the Act as modified by Section 17.”(Emphasis supplied)

¶259

Paragraph 16 of Sundari (supra) makes it clear

¶260

R.S.A. 1007 of 2016

¶261

-: 41 :-

¶262

that what was considered therein was relating to the undivided interest of Hindus, who were following Aliyasantana law. Paragraph 16 says-

¶263

“In this case the property has been found to be undivided as between defendants 22, 23 and 24 and therefore the position is that on the death of each one of the defendants his undivided interest would devolve on his heirs.”(Emphasis supplied)

¶264

In paragraph 22 of Sundari (supra), the Apex Court has made it clear as to why the Apex Court was not following the decision in the Mysore case in Sundara Adapa (supra). It was held therein that-

¶265

“This Court rejected the pleas that the effect of section 17 of the Succession Act was not considered in the Mysore Case, holding that the question was not relevant in the case before them or in the Mysore case because section 17 of the Succession Act applies to provisions of Ss.8, 10, 15 and 23 which dealt with intestacy. As we are concerned in the present case with the intestate succession to the estate of

¶266

R.S.A. 1007 of 2016

¶267

-: 42 :-

¶268

defendants 24 and 23, the decisions are not applicable to the facts of this case.”

¶269

In the case of defendants 24 and 23 in the said case, it was

¶270

found that the interest in the property was undivided. It was mainly because of that, the other decisions were not followed in Sundari (supra).

¶271

The learned counsel for the appellants has relied on the decision in Smt.Rathnavathi & Others v. Smt.Saraswathi Adappa & Others [ILR 2014 KAR 659] rendered by a Division Bench. It was held therein that the properties already divided prior to the commencement of the Hindu Succession Act among the members of Kutumba and if a life interest has already been allotted in favour of Nissanthathi Kavaru in such partition, the Nissanthathi Kavaru would continue to enjoy the properties in a limited manner during his life time. It was further held that the said life interest granted in favour of the Nissanthathi Kavaru under the partition prior to 17.06.1966 would not

¶272

R.S.A. 1007 of 2016

¶273

-: 43 :-

¶274

automatically enlarge into an absolute interest and devolve upon his personal heirs after the coming into force of the Hindu Succession Act, 1956.

¶275

In Smt.Rathnavathi (supra) also, the question as to what was dealt with by the Apex Court in Sundari (supra) was considered in detail. It was held therein that the Apex Court has not dealt with the divided interest of the Nissanthathi Kavaru in Sundari (supra). It was held that in Sundari' s case, the properties were found to be undivided among defendants 22, 23 and 24 and therefore, it would devolve absolutely on the legal heirs on the death of each of such defendants, who were members of the Nissanthathi Kavaru .

¶276

Here, in this particular case, the succession had already opened and the estate was vested prior to the coming into force of the Hindu Succession Act, in the form of limited interest with Aithappa Bhandary, who was a male governed by the Aliyasantana law. As noted earlier, the

¶277

R.S.A. 1007 of 2016

¶278

-: 44 :-

¶279

provisions of the Hindu Succession Act contained under Section 30, 7(2) or 8 do not have retrospective operation. At the same time, regarding the limited interest of a female, retrospective operation has been given through Section 14, when full ownership has been conferred on the female in respect of such limited ownership, whether acquired before or after the commencement of the Hindu Succession Act. A male has not been included within the purview of Section 14. If the Legislature wanted to create an absolute estate in respect of the life interest created to a Nissanthathi Kavaru , definitely, an identical provision as the one contained in Section 14 would have been incorporated in the Hindu Succession Act, or at least, males also could have included in Section 14.

¶280

The learned counsel for the respondents has relied on Section 36(6) of the Aliyasantana Act, which reads:-

¶281

“A registered family settlement (by

¶282

R.S.A. 1007 of 2016

¶283

-: 45 :-

¶284

whatever name called) or an award to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award.”

¶285

Even though what has been mentioned is an award, the said provision is applicable to a judgment in a partition suit. The provision shows that even though the properties were distributed among all the Kavarus of the Kutumba for their separate and absolute enjoyment in perpetuity, it shall be deemed to be a partition of the Kutumba properties, notwithstanding any terms to the contrary in such a judgment. The provision merely says that whatever be the terms to the contrary incorporated in such a settlement or judgment, it would be a deemed partition

¶286

R.S.A. 1007 of 2016

¶287

-: 46 :-

¶288

within the meaning of Chapter VI. When it is a partition, all the ingredients of Chapter VI shall follow.

¶289

The learned counsel for the respondents has argued that when such a partition deed has been effected by giving separate and absolute enjoyment in perpetuity, it will invite Section 18 of the Aliyasantana Act. Section 18 says-

¶290

“On the death of an intestate Aliyasantana male, his property which is self-acquired or separate, shall devolve in the order and according to the rules contained in Sections 19, 20, 21, 22, 23 and 24.” (Emphasis supplied)

¶291

Evidently, Section 18 deals with the property of a Aliyasantana male, which is self acquired or separate. By harping upon Section 36(6), it is idle to contend that the partition resulted in treating the property as separate. Section 18 deals with intestate succession; whereas, Chapter VI, which contains Sections 35 and 36 only, specifically deals with partition. All the incidents of partition

¶292

R.S.A. 1007 of 2016

¶293

-: 47 :-

¶294

are narrated in Chapter VI and the same shall squarely apply to all the members of a Kutumba or Kavaru .

¶295

From the discussions made above, it can safely be concluded that the property allotted to a Nissanthathi Kavaru in a partition of the properties of the Kutumba merely creates a life interest in favour of such Nissanthathi Kavaru and the same is not capable of an inheritance by the personal heirs of such Nissanthathi Kavaru on his death. Section 7(2) of the Hindu Succession Act specifically deals with the undivided interest of a Hindu in a Kutumba or Kavaru and it does not deal with the divided interest. Merely on a demand for partition, there is a separation of status, which involves a division of status within the meaning of Sections 35 and 36.

¶296

A male attached to a Nissanthathi Kavaru in a Kutumba to whom properties are allotted in partition, can possess and enjoy the properties during his life time. In order to pass on the properties to his personal heirs, he

¶297

R.S.A. 1007 of 2016

¶298

-: 48 :-

¶299

shall keep the properties intact with the Kutumba without a division or partition. Of course, there is an eventuality in such case that another member can frustrate the intention of such a person by merely demanding such a partition. When any of the members of a Kavaru or Kutumba, as the case may be demands a partition, there occurs a division of status, which has all the incidents of a partition. Unfortunately, that is the law!

¶300

Regarding the maintainability of the present suit, the learned counsel for the appellants has argued that a simple suit for mandatory injunction is not maintainable in this case. It has to be noted that the case of the respondents is that they had entrusted the property for management to the 1^st defendant and the husband of the 2^nd defendant, and they were permitted to take the income from the properties and to meet all the expenses for carrying out the cultivation and improvements in the property. Subsequently, the husband of the 2^nd defendant died.

¶301

R.S.A. 1007 of 2016

¶302

-: 49 :-

¶303

According to the plaintiffs, thereafter, the 2^nd defendant continued to manage the property along with the 1^st defendant. Even according to the plaintiffs, for some period, the defendants paid the balance income to the plaintiffs and thereafter, they stopped the said practice. Thereafter, Ext.A2 notice was issued, which evoked a response in the form of Ext.A3 reply.

¶304

Over and above it, through Ext.A3, defendants have clearly denied the title claimed by the plaintiffs. Moreover, they have asserted their title along with that of the other members of the Kutumba over the property with the aid of Section 36(3) of the Aliyasantana Act. Even then, the plaintiffs have chosen to file the suit merely for mandatory injunction by paying court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act, 1959 alone. It is evident that the defendants had denied the title of the plaintiffs. There was a rival claim of title from the part of the defendants.

¶305

R.S.A. 1007 of 2016

¶306

-: 50 :-

¶307

Apart from all the above, it is evident that Ext.B1 mortgage was created over the plaint A schedule properties on 19.06.1965. According to the defendants, the same was

¶308

created by the members of the Kavarus of Devaki and Chomu, for settling the debts of Aithappa Bhandary. The said mortgage created in the year 1965 was redeemed through OS No.66/1977 and EP No.116/1979 in it, and the mortgage money was paid by the predecessors-in-interest of the defendants. It is true that the plaintiffs were not parties to Ext.B1. At the same time, Ext.B1 shows that the defendants had dealt with the property and had created Ext.B1. Ext.B1 was in effect for almost 12 years and finally, the mortgage money was paid and the property was redeemed. Matters did not end there.

¶309

In the year 1971, a partition suit was instituted in respect of the properties as OS No.14/1971 by some of the members of the Kavarus of Devaki and Chomu. A preliminary decree was passed on 22.10.1973. The final

¶310

R.S.A. 1007 of 2016

¶311

-: 51 :-

¶312

decree is yet to be passed. Of course, it is true that the plaintiffs were not parties to the said suit and they can very well say that they were not aware of the mortgage, its redemption, or the partition suit or the decree. Whatever it be, it is a fact that the defendants were dealing with the properties for decades. In such case, it is not possible to throw them out with the aid of a mere mandatory injunction. The suit is not maintainable as a simple suit for mandatory injunction.

¶313

Regarding non-joinder projected by the learned counsel for the appellants, it is a fact that the defendants are in possession of the properties. According to the plaintiffs, the defendants were entrusted to manage the property. The defendants contended that they are entitled to have and hold the property as members of the Kavarus of Devaki and Chomu, who were the sisters of late Aithappa Bhandary. The lower appellate court has found that there is no evidence for any such entrustment. The lower appellate

¶314

R.S.A. 1007 of 2016

¶315

-: 52 :-

¶316

court has found that there is no evidence for any principal and agent relationship. In such case, the argument of licence goes. In that respect also, a suit for mandatory injunction is not maintainable. Apart from that, the other members of the Kavarus of Devaki and Chomu, who claimed title over the property based on Section 36(3) of the Aliyasantana Act are necessary parties to the suit. The resultant position is that the suit is bad for non-joinder of necessary parties also.

¶317

As found earlier, both the courts below have totally misread the decision in Sundari (supra) and have chosen to decree the suit for the relief of mandatory injunction by directing the defendants to surrender the possession of the property to the plaintiffs. Those judgments and decrees passed by both the courts below are not legally sustainable and the same are liable to be set aside.

¶318

In the result, this Regular Second Appeal is allowed. The judgments and decrees passed by both the courts

¶319

R.S.A. 1007 of 2016

¶320

-: 53 :-

¶321

below are set aside. The suit is dismissed. In the nature of this appeal, there is no order as to costs. All pending interlocutory applications in this appeal are closed.

¶322

Sd/- B. KEMAL PASHA, JUDGE.

¶323

ul/aks/-

¶324

// true copy //

¶325

P.S. to Judge.

Ramanatha Bhandary v. Chandrahasa Bhandary

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Ramanatha Bhandary v. Chandrahasa Bhandary

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