Civil Appeal No 54 of 1969
From the Judgment and Order dated 23 10 1968 of the Mysore High Court in RFA No 2563
B D Dal section Bhandare A N Karkhanis and Miss M Palival for the Appellant
V section Desai and N Nettar for the Respondent
164 The Judgment of the Court was delivered by SARKARIA J
This appeal by the defendant on certificate is directed against a judgment dated October 23 1968 whereby in First Appeal the High Court of Mysore set aside the judgment and decree passed by the joint Civil Judge Senior Division Belgaum
The pedigree of the family given below will be helpful in understanding the facts leading to this appeal Ravalojirao died before 1900    Narayanarao Ramachandrarao died in 1924 died on 20 1 1955   Tuljeramarao Krishnabai died in 1944 Defendant appellant     Appasaheb Nanasaheb Pltf1 Pltf2 Sou
Vasundhararaje Pltf 3        Ashok Kumar Pushpendra Virendra Indrajit Ravalogirao  Pltf3 Singh Singh Singh Pltf9  pltf6 pltf7 pltf9 Narayanarao Pltf10 By a registered document dated July 25 1902 exhibit 39 executed by Narayanarao six Desgat lands situated in villages Nanandi Umarani and Nandikurli totalling about 120 acres were received by Ramachandrarao for separate living and maintenance of himself and his male lineal descendants
Out of the lands covered by the said deed three lands comprised in Survey Nos 114 26 acres 30 gunthas 115 9 acres 38 gunthas and 116 26 acres 34 gunthas totalling about 63 acres and 22 gunthas situate in the area of village Umarani Taluka Chikodi are the subject matter of the suit out of which this appeal has arisen
The respondents herein who are the grand sons and great grandsons of Narayanarao on July 24 1960 instituted Suit No 2660 in the Court of Civil Judge Belgaum against Smt
Krishnabai appellant for possession of the said lands and for recovery of past and future mesne profits with these allegations i that the suit lands were Desgat Watan lands and were part of the Desgat Watan estate of Nanandi ii that by virtue of an ancient and immemorial family and territorial custom the Desgat estate of Nanandi was impartible and descended from generation to generation to the seniormost member by the rule of primogeniture while the junior members of the family were only given some lands for their maintenance by the holder of the Desgat for the time being iii that till his death 165 the appellant s father continued to be an undivided member of the Joint family consisting of himself and the plaintiffs and iv that on July 31 1956 a partition by metes and bounds has taken place between the plaintiffs inter se under a partition deed
The suit was resisted by the defendant appellant
She denied the alleged ancient family and territorial custom of primogeniture
She denied that the property formed part of the Desgat Watan estate of Nanandi
She further denied that her father Ramachandrarao came into possession of the suit land for his maintenance
She further pleaded that Ramachandrarao and his brother Narayanarao had separated during their life time and the suit lands and some other lands were given to Ramachandrarao in the partition between the two brothers towards a part of his share and it was agreed that the share of Ramchandrarao in other family properties would be separated and settled at some future convenient time
She further stated that since 1902 Ramachandrarao was in separate possession and enjoyment of the suit lands till his death on January 20 1955 and that at the time of his death he was not an undivided member of the joint family of himself and the plaintiffs
She further pleaded that on her father s death she succeeded to the suit lands which were his separate property
She further relied on the Bombay Pargana and Kulkarni Wantans Abolition Act 1950 Bombay Act No 60 of 1950 for short called the Act and the re grant of the land made in favour of her father under that Act
The learned trial judge by his judgment dated September 29 1962 dismissed the respondents  suit with these findings a that the alleged custom of impartibility and devolution of property by the rule of primogeniture had not been proved b that there was a severance of the joint family consisting of the two brothers in 1902 when they had agreed to separate that since then for about 53 years till his death in 1955 Ramachandrarao was living separately and enjoying the suit land as his separate property c that the suit lands were originally Watan lands but they were not so at the date of the suit because the Bombay Act 60 of 1950 which came into force on May 1 1951 had abolished Watans and thereafter the suit lands were on the application of its holder Ramachandrarao regranted in his favour that the plaintiffs were aware of Ramachandrarao s application for the regrant and they had tacitly assented to the regrant in his favour
166 Aggrieved the plaintiffs preferred an appeal in the High Court of Mysore
The High Court affirmed the finding of the trial court that the custom pleaded by the plaintiffs with regard to the impartibility of the property had not been established
It observed that the onus of proving partition is on the defendant but the only evidence in support of her case that Ramachandrarao was divided is Exhibit No 39
The High Court construed the deed exhibit 39 with the aid of its translations into English one made by the trial judge and the other by the High Court Translator
It then took note of these features in support of the theory of partition  a Permanency of the arrangement
The deed provides that Ramachandrarao and his descendants in the male line shall enjoy the property from generation to generation without interference from the grantor
b Cesser of commonsality
The deed says that Ramachandrarao desired to live separately and therefore the lands were granted to him
The evidence is that Ramachandrarao lived separate from 1902
There is no evidence to the contrary
 It then listed these features to negative the theory of partition  a The nomenclature of the deed
It is styled as a deed of maintenance
b It was executed by one of the parties only
If it was intended to be a partition deed it would have been executed by both the parties each relinquishing his rights in the properties not allotted to him
c The deed says that the lands were given to the grantee and his descendants in the male line for maintenance only and they should enjoy the lands continuously
d The total extent of the Desgat lands was over eight thousand acres if partition was intended Ramachandrarao who was entitled to a one half share would not have been contented with 90 acres valued at Rs 3400 
 After cataloguing these pros and cons the High Court concluded In our judgment Exhibit 39 considered along with the circumstances in which it was executed does not establish the defendant s case that Ramachandrarao was divided from Narayanarao in 1902 and that the suit lands among others were allotted to Ramachandrarao s share
We are of the view that on the erroneous but honest belief that Des 167 gat was an impartible estate Narayanarao granted the lands to Ramachandrarao and his descendants in the male line in lieu of their maintenance
When Ramachandrarao died without male issue the interest granted ceased or the tenure came to an end
The plaintiffs who are the surviving members of the family are entitled to resume the lands
 Although no such plea was taken by the plaintiffs in the plaint the High Court held that in view of Section 90 of the Indian Trust Act the regrant made after the abolition of Watans under the Act in favour of Ramachandrarao must ensure for the benefit of the family of the Watandars including the plaintiffs because Ramachandrarao at the time of his death was holding the suit land as an undivided member of the joint family for his own benefit and that of the other members of the undivided family
Since there was no evidence as to the occupancy price paid by Ramachandrarao to obtain the regrant the High Court after allowing the appeal and setting aside the decree of the Trial Court remanded the matter to the court below with a direction that it should ascertain the amount of occupancy price paid by Ramachandrarao and then pass a decree for possession in favour of the plaintiffs subject to the repayment of the said amount
Hence this appeal by the defendant on the basis of a certificate granted by the High Court under Article 1331e and c of the Constitution
Shri B A Bal learned counsel for the appellant has in the course of his arguments sought to make out two main points 1
a Sometime prior to the execution of the deed
exhibit 39 dated July 25 1902 there was a severance of the joint Hindu family as a result of an intimation by Ramachandrarao of his intention to separate and Narayanarao s acceptance of the same
Such severance can he clearly inferred from i the recitals in the deed exhibit 39 the permanent allocation of the suit land along with some other land to Ramachandrarao and his descendants and ii the subsequent conduct of the members of the erstwhile joint family
b Since the deed exhibit 39 it is argued is more than 75 years old and Narayanarao Ramachandrarao and others who might have given evidence with regard to the circumstances resulting in this transaction are all deed and gone the recitals in the deed coupled with the subsequent conduct of the parties and supplemented by reasonable inferences were more than sufficient to discharge the initial 168 onus if any on the defendant to show severance of the joint family since 1902 or thereabout and the same continued till Ramachandrarao s death in 1955
Reference in this connection has been made to Bhagwan Dayal vs Mst
Reoti Devi1 c Since at the time of his death in 1955 Ramachandrarao was not a member of an undivided Hindu family and the suit land was his separate property his daughter the defendant would even according to traditional Hindu Law inherit his estate to the exclusion of the plaintiff collaterals
2 Section 4 of the Bombay act 60 of 1950 abolished Watons with effect from May 1 1951
Section 5 of the same Act abrogated the rule of primogeniture and also every law or custom by virtue of which females were postponed to males in the matter of succession
After the abolition of the Watons Ramachandrarao alone to the knowledge of the plaintiff respondents obtained a regrant of the suit land from the Government in his favour
Similarly the plaintiffs applied for regrant of the other Ex watan lands measuring about 8000 acres to the exclusion of Ramachandrarao
The regrant of the suit land in favour of Ramachandrarao created new rights exclusively in his favour
Since on May 1 1951 he was holding the suit land separately as a divided member of the family the regrant did not ensure for benefit of the plaintiffs
As against this Shri V section Desai submits that since it was the admitted case of the parties that sometime before the execution of the deed exhibit 39 dated July 25 1902
Narayanarao and Ramachandrarao constituted a joint Hindu family governed by Mitakshra and the presumption of jointness in case of brothers is stronger the burden was on the defendant to prove by cogent and convincing evidence that the joint family had disrupted and Ramachandrarao had separated in 1902 and the suit land was his separate property which fell to his share in partition
It is maintained that the recitals in the deed exhibit 39 do not furnish any evidence that Ramachandrarao had communicated an unambiguous and clear intention to separate from his brother in estate and thenceforth hold it in defined shares
It is urged that the transaction evidenced by the deed should be construed by the Court not according to its own sense of right and wrong but according to the notions and beliefs prevailing among orthodox Hindus in 1902 of a strata of society to which Narayanarao and Ramachandrarao belonged
In 1902 proceeds the argument to cause disruption of a joint Hindu family of Watandars 169 was considered to be a sin
According to Shri Desai if the document exhibit 39 is considered from that view point it would appear that the arrangement devised thereby was consistent with the continuance and preservation of the jointness of the family and its estate rather than its division and disruption
It is pointed out that the area of Watan Land held by the joint Hindu family in 1902 was about eight thousand acres and if the intention of the brothers was to sever the joint family status there was no difficulty in declaring that thenceforth the two brothers would hold the entire estate in equal defined shares
It is emphasised though Ramchandrarao died in 1955 he never asked for partition and possession of his one half share in the remaining seven or eight thousand acres held by Narayanarao and his descendants but remained contented with a mere 118 or 120 acres given to him for maintenance under exhibit 39 in 1902
It is further submitted that the Court cannot construe the deed exhibit 39 as a deed of partition but only as a deed of maintenance as it expressly purports to be because in view of Section 92 of the Evidence Act no extrinsic evidence is admissible to contradict or vary its terms
In support of his arguments Shri Desai has referred to Paragraph 448 of Mayne s Hindu Law 1953 Edn
Learned counsel further submits that in view of the paucity of evidence produced by the defendant appellant to show division of the joint family the High Court was right in holding that Ramchandrarao died as an undivided member of the joint Hindu family consisting of himself and the plaintiffs
It is submitted in that view of the matter the second point urged by Shri Bal does not survive for decision
Nevertheless Shri Desai took us through the relevant provisions of the Bombay Act LX of 1950 and the Watan Act of 1874 to show that there is nothing in those provisions which militates against the finding of the High Court to the effect that if Ramchandrarao died as an undivided member of the joint family the regrant would enure for the benefit of all the members of the family
We will take Point No 1 canvassed by Shri Bal
The primary question that falls to be considered is whether in 1902 or shortly prior to it there was a partition between the two brothers Narayanarao and Ramchandrarao in a manner known to law
In this connection it is necessary at the outset to notice the fundamental principles of Hindu Law bearing on the point
The parties are admittedly governed by Mitakshra School of Hindu Law
In an undivided Hindu family of Mitakshra concept no member can say that he is 170 the owner of one half one third or one fourth share in the family property there being unity of ownership and commonsality of enjoyment while the family remains undivided
Such unity and commonsality or the essential attributes of the concept of joint family status
Cesser of this unity and commonsality means cesser or severance of the joint family status or which under Hindu Law is partition  irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds
Disruption of joint status itself as Lord Westbury put it in Appovier vs Rama Subha Aivan
1 in effect covers both a division of right and division of property
 Reiterating the same position in Giria Bai vs Sadashiv2 the Judicial Committee explained that division of the joint status or partition implies  separation in interest and in right although not immediately followed by a de facto actual division of the subject matter
This may at any time be claimed by virtue of the separate right
 The division of the joint status may be brought about by any adult member of the joint family by intimating indicating or representing to the other members in clear and unambiguous terms his intention to separate and enjoy his share in the family property in severality
Such intimation indication or representation may take diverse forms
Sometimes it is evidenced by an explicit declaration written or oral sometimes it is manifested by conduct of the members of the family in dealing separately with the former family properties
Service of notice or institution of a suit by one membercoparcener against the other memberscoparceners for partition and separate possession may be sufficient to cause disruption of the joint status
We will now deal with the first proposition propounded by Shri Bal in the light of these principles
The primary question that arises for consideration is whether Ramchandrarao had brought about a division of the joint family status or partition by intimating to his brother in clear terms sometime in 1902 or shortly prior thereto his intention to separate and enjoy his share in severality
Answer to this question depends on inferences which may reasonably be drawn from the contents of the deed exhibit 39 and the subsequent conduct of the parties
The original deed Ex39 is in Marathi
It was rendered into English by the trial judge himself who concededly had adequate knowledge of Marathi
According to him the deed Ex39 speaks of a division of 171 the joint family status and separation of interests
For this construction the trial judge drew much on the word Vibhaktarahave which according to him connotes division of status
The learned Judges of the High Court however did not accept this interpretation
They preferred to rely on the English translator of this deed made by the High Court Translator
Since there is some variation between the two translations it will be worthwhile to extract the same here for facility of comparison and reference
The translation effected by the trial judge reads as under You Ramchandra Rao are my younger brother
We were living jointly till today
Recently you have desired to take some property for maintenance Nirwah Kurat and live separate after division Vibhaktarahave
Since I have deemed it proper to give you some property for your maintenance as befits our Sansthan I have given you the following properties for your maintenance
Then follows the description of the properties
All these lands have been given to you along with the appurtenances for meeting the livelihood of you and your family members
Hence you and your successors ie your natural born male descendants should enjoy the properties from generation to generation and live happily
The Sansthan will not interfere with the lands any longer
Only you and your natural male descendants should enjoy the property
You shall also pay the Joodi to the Government hereafter The disputed words have now been underlined
The translation made by the High Court Translator reads as below You are my younger brother and you have been residing with me only in jointness up till now
As you have been recently thinking of residing separately yourself by receiving some properties for your maintenance I found it proper to give you some property for your maintenace as befits our Sansthan and have given you for your maintenance the Desgat  lands of our Khata situate in the below mentioned villages in Taluka Chikodi Sub District Belgaum District
Particulars thereof are as under Lands situate at Village Nanadi
1 Bagayat Land of No bearing Survey No 189 measuring 14 acres 23 guntas assessed at Rs 20 0 0
The land together with a well valued at Rs 1000 
2 The land 172 measuring 9 acres 30 guntas assessed at Rs 41 8 0 out of Survey No 187 is bounded on the east by a land in our possession out of the same No on the west by the village limits on the south by the land No 196 and on the north by the land bearing Survey No 198
In the land enclosed within the aforesaid boundary there is a well
This well has two Veravantas ie one on the Eastern side and another on the Southern side
It has 10 motes 
Out of the motes  of that well we are to get water with 3 motes  and you are to get water with 2 motes 
Repairs to the said well also are to be carried in that portion only and the expenses required to remove the mud etc are also to be borne in the same proportion itself
Value Rs 1000 Lands situate at the Village Umarani
Rs No Acres Assessment 3 99 26 30 14 0 0 The said 3 4 100 9 38 9 0 0 lands are 5 101 26 34 17 0 0 entire No and are valueed at Rs 1000 together with the appurte nant thereof
Land situate at Majere Kenpatte in the Village Nandikurli
6 120 24 18 9 0 0 This land of entire No together with the appurtenances thereof is valued at Rs400 
The lands as mentioned above are given to you for your maintenance and the maintenance of your dependants
Hence you and your descendants ie natural male descendants should enjoy the said lands continuously and live happily
In respect of the said lands given to you you will not be put to any trouble from the state Sansthan in any manner but the said lands are to be continued with you and your natural male descendants
You should go on paying the joodi payable by you to the Government in respect of the said lands in our possession are given to your possession today
To the above effect the deed of maintenance is duly executed
 A comparative study of the above extracts would show that except for the English rendering of the word Vibhaktarahave by the learned trial judge there is no substantial difference between the two translations
The Marathi word Vibhaktarahave according to my learned Brother on this Bench who has working knowledge of Marathi is a compound of two words namely Vibhakta and Rahave
Vibhakta appears to have its root in the Sanskrit word Vibhaga
In the Mitakshra Vijnanesvara defines the word 173 Vibhaga which is usually rendered into English by the word partition as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate See Para 448 of Mayne s Hindu Law 11th Edition Rahave  means living
In view of this etymological analysis it cannot be said that the learned trial judge s interpretation of the word Vibhaktarahave as equivalent to live separately after division was literally wrong
Even the learned Judges of the High Court who did not claim to know Marathi have not held in categoric terms that this translation of Vibhaktarahave made by the trial judge is grammatically wrong
What the learned Judges appear to say is that the context in which the word Vibhaktarahave has been used gives it a meaning different from its grammatical sense so that it cannot be understood as signifying an intention to divide but connotes only a desire to live separately
The learned Judges have sorted out four features from the context of the deed exhibit 39 which according to them militate against the literal interpretation of the word Vibhaktarahave and negative the theory of division of status
Those features it will bear repetition are i The deed is styled as one for maintenance ii It was executed by Narayanarao only iii The lands under the deed were given to Ramchandrarao and his descendants in the male line for maintenance only iv The total extent of Desgat  lands was over 8000 acres
Ramchandrarao should have claimed half of the entire Desgat  area and not remained contented with about 90 acres given to him under the deed exhibit 39
In our opinion none of these features if appreciated in the right perspective detracts from the conclusion that there was a division of joint family status as a result of an intimation to Narayanarao by Ramchandrarao of his intention to separate followed by allotment to Ramchandrarao in furtherance of that division the lands mentioned in exhibit 39
The four features listed above rested on erroneous assumptions
Even according to the High Court both the brothers were at the time of execution of the document exhibit 39 labouring under an erroneous belief that the Desgat  lands were impartible and held by the eldest member of the family in the male line while the junior members were entitled only to maintenance
The High Court has expressly upheld the finding of the trial Court that no custom was established according to which the Desgat  lands of the family were impartible and vested only in the eldest male member of the family to the exclusion of the junior members
The High Court has further not disagreed with the trial courts finding that no custom of primogeniture in this family has been established
174 Once it is held that this two fold assumption or belief about the impartibility of the estate and its devolution in the male line by rule of primogeniture was fallacious the said four features stemming therefrom lose their significance
These features which purport to give the transaction exhibit 39 the colour of a mere maintenance arrangement as distinguished from an absolute transfer or allotment have to be credited with no more substance than phantoms conjured out of phantasy probably by the sole executant of the deed with a self serving motive
In any case they are words of vain show or form lacking reality
We have therefore to peal aside this jejune and illusory cover to reach at the kernel and concentrate on the crucial features of the document exhibit 39
We are unable to accept Shri Desai s argument that the process adopted by us would involve contravention of Section 92 of the Evidence Act
Firstly in this process which is essentially one of construction of the deed exhibit 39 no question of contradicting varying adding to or subtracting any term of the disposition is involved
The deed exhibit 39 falls into two distinct parts The first of them comprises the preamble or the preliminary recital of a past fact
This part does not contain any term of disposition of property
Such terms are confined only to the second part
Section 92 prohibits only the varying of terms of the documents not the memoranda or recitals of facts bereft of dispositive terms particularly when the correctness of the whole or any part of the recital is in question
We are primarily concerned with this preliminary recital which does not fall under the dispositive or operative portion of the document
The question is whether or not this recital of a past oral intimation by Ramchandrarao to Narayanarao had caused severance of joint family status
It is settled law that a clear intimation by a coparcener to the other coparcener of his intention to sever the joint status need not be in writing
For these two fold reasons the bar in section 92 against the admissibility of extrinsic evidence for the purpose of showing that the insertion of the words for your maintenance in the recital is wrong unreal unmeaning and the coinage of the executant s own brain is not attracted
Secondly there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing evidence de hors the document can be led to show that the writing was not the real nature of the transaction but was only an illusory fictitious and colourable device which cloaked something else and that the appa 175 rent state of affairs was not the real state of affairs
See Chandi Prasad Singh vs Piari Bedi CA No 75 of 1964 decided on 16 3 1966 and Bhagwan Dayal vs Mst
Reoti Devi supra 
This preliminary recital in the deed exhibit 39 as translated by the learned trial judge with due emphasis on the words recently  and Vibhaktarahave  coupled with the surrounding circumstances and natural probabilities of the case definitely raises the inference that sometime in the recent past prior to the date of the deed exhibit 39 Ramchandrarao had clearly and persistently intimated to his coparcener Narayanarao his intention to sever the joint family status and to hold and enjoy his share of the joint family property in severalty
The immediate and inexorable consequence of this intimation was disruption or division of the joint status which in the eye of Hindu Law amounted to partition 
From that date onwards which preceded the date of the deed exhibit 39 Narayanarao and Ramchandrarao ceased to be coparceners and held the former coparcenary property as tenants in common
Thus at the time of execution of the deed exhibit 39 the joint family status did not exist it had already been put an end to by Ramchandrarao s intimation to Narayanarao of his intention to divide and separate
If that be the true position it was not open even to Ramchandrarao much less to Narayanarao to nullify the effect of the communication of the former s intention which had resulted in severance of the joint status by revoking or withdrawing that communication
Ramchandrarao could not get back to the old position by mere revocation of the intention
A coparcenary is purely a creature of Hindu Law it cannot be created or recreated after disruption by the act of par ties save in so far that by adoption a stranger may be introduced as a member thereof or in the case of reunion
See paragraphs 214 and 325 of Mulla s Hindu Law and this Court s decision in Puttorangama vs Ranganna Bhagwan Dayal vs Mst
Reoti Devi supra There is hot evidence that after the severance of the joint family status there was a reunion
As before the High Court here also an argument was raised that the preliminary recital in the deed exhibit 39 being qualified furnishes little or no evidence for a finding that Ramchandrarao had declared and intimated in clear and unambiguous terms his intention to sever the joint family status
176 We are unable to accept this argument
It has to be borne in mind that this document has been let in evidence more than 70 years after its execution
Narayanarao and Ramchandrarao and all others who might have given evidence with regard to the circumstances of this recital in particular and the deed in general are long deed and gone
There is no dearth of authority for the proposition that in such a situation it is permissible to draw reasonable inferences to fill the gaps or details obliterated by time
See Chintamanibhatia Vankat Reddy vs Rani of Wadhavan Sree Sree Iswar Gopal Jien Thakur vs Pratapmal Bagaria
The preliminary recital in the deed therefore assumes importance
Read in the light of the surrounding circumstances and in the perspective that the Desgat  land was partible coparcenary property of the two brothers each of whom had an equal interest therein and an equal right to get his share divided and thereafter enjoy it in severalty this recital establishes with a preponderance of probability that sometime before the execution of the deed exhibit 39 Ramachandrarao had communicated to his brother in clear unmistakable terms his intention not only to separate in residence and user and put an end to commonsality but also to sever the unity of ownership and enjoy his share in severalty
The result was division of the joint status
Once it is found that the division of the joint status preceded the execution of the deed exhibit 39 then the disposition made thereunder could only be a step towards the implementation of that division and in recognition of Ramchandrarao s right to have his share wholly or partly demarcated and specified for separate enjoyment as an absolute and exclusive owner thereof
While giving the land measuring 118 or 120 acres to Ramchandrarao in recognition of the latter s equal right in the Desgat Narayanarao had no power to impose the futile condition that the land was being given to Ramchandrarao and his male lineal descendants for maintenance
As already discussed this insertion by the executant from an ulterior self serving motive was devoid of substance it could not be attached any greater importance and realty than the phantasmic assumption from which it was conjured up a fortiori when in the deed exhibit 39 there is no stipulation that in the event of Ramchandrarao s male line becoming extinct the land would revert to the Desgat  and Narayanarao or his descendants would have a right of re entry
177 We are in agreement with the trial court that the expressions Potgi maintenance or Nirwahkrit in the deed cannot be construed as conferring an estate with restricted rights of ownership  limited to the lifetime of Ramchandrarao and his linear male descendants
The deed evidence a permanent transfer or allotment of about 118 or 120 acres of land to Ramchandrarao to be enjoyed from generation to generation to the entire exclusion of Narayanarao and his descendants
In terms Narayanarao did not reserve any right of reversion in favour of himself and his branch in any circumstances
Irrigation rights also with regard to the land transferred or allotted under this deed were divided
It was further provided that from the date of the deed payment of Joodi to the Government in respect of this land shall also be the exclusive liability of Ramchandrarao and his descendants
The inference that this land measuring about 118 acres was given to Ramchandrarao in partial implementation of division of joint family status or partition receives further confirmation from the following circumstances a From the date of the deed exhibit 39 till Ramchandrarao s death in 1955 for a period of about 53 years the lands disposed of by the deed throughout remained in the full exclusive and uninterrupted enjoyment of Ramchandrarao
The relevant entries in the revenue records during this period also stand exclusively in his name as owner in possession thereof
b After the abolition of Watans in 1951 Ramchandrarao alone applied for regrant of this land in his favour under the Watan Abolition Act
The plaintiffs were at all material times admittedly aware that Ramchandrarao had applied for the regrant of this land exclusively in his favour but they never objected and tacitly assented to the same
On the other hand the plaintiffs applied and obtained regrant of the Desgat  lands other than those which were the subject of the deed exhibit 39 in their favour to the exclusion of Ramchandrarao
In the light of the above discussion we are of opinion i that there was partition or division of the joint family status sometime prior to the execution of deed exhibit 39 and ii that the disposition of about 118 or 120 acres made under that deed was in substance an absolute allotment of that land to Ramchandrarao towards implementation of that division or partition in recognition of the latter s right to have his share demarcated by metes and bounds to be enjoyed exclusively in severalty
Point No 1 is thus found in favour of the appellant
In view of the above finding that the suit property was the separate divided 178 property of Ramchandrarao at the date of his death and under the traditional Hindu Law would go by succession to his daughter the appellant herein to the exclusion of the plaintiff collaterals it is not necessary to decide Point No 2 canvassed by the appellant
In the result for all the reasons aforesaid we allow this appeal and dismiss the plaintiffs suit with costs throughout
PBR Appeal allowed


Summary:
The grandfather and great grand father of the respondents and the father of the appellant were brothers
By a registered deed Ext 39 the elder brother purportedly gave the younger brother appellant s father some lands for separate living and maintenance of himself and his male lineal descendants for ever
The lands in dispute were a part of the lands covered by the deed
In their suit the plaintiffs alleged that the suit lands were part of Desgat Watan estate which by virtue of an immemorial family and territorial custom was impartible and the junior members were given lands only for their maintenance and that till his death the appellant s father continued to be an undivided member of the joint family consisting of himself and the plaintiffs and that on the death of the appellant s father the lands should go to them
The trial court held 1 that the impartibility of the estate and the rule of primogeniture had not been proved 2 that there was severance of the joint family in 1902 since when the brothers were living separately 3 that on the abolition of Watans by Bombay Act 60 of 1950 the suit lands which originally were Watan lands were re granted in favour of the appellant s father and that the plaintiffs tacitly assented to the regrant of the lands exclusively in his favour
On appeal the High Court affirmed the view of the trial court that the estate was not impartible and that the onus of proving partition was on the defendant appellant herein
It was held that Ext
39 did not establish that the brothers were divided in 1902 and that the suit lands were allotted to the appellant s father that on the erroneous but honest belief that Desgat lands were impartible the elder brother granted the lands to his brother and his descendants in the male line in lieu of their maintenance and that the younger brother having died without male issue the tenure came to an end whereupon the plaintiffs who were the surviving male members of the family were entitled to resume the lands
The High Court remitted the matter to the trial court with certain directions
In appeal to this Court the appellant contended i that her father prior to the execution of Ext
39 had clearly intimated to his brother his intention to divide the estate and to live separately after division resulted in a severance of the joint family status and that such severance was evident from the recitals in Ext
39 and the subsequent conduct of the members of the erstwhile family
162 Since the appellant s father after such division was holding the suit lands as his separate property the same were inherited by the appellant to the exclusion of the plaintiffs
ii Since the regrant of the suit lands to the appellant s father created new rights exclusively in his favour the regrant did not enure for the benefit of the plaintiffs
Allowing the appeal and dismissing the plaintiff s suit  HELD 1
Unity of ownership and commonsality of enjoyment are the essential attributes of an undivided Hindu family of Mitakshra concept
So long as the family remains undivided no member can predicate a definite share to himself
Cesser of this unity and commonsality means cesser or severance of the joint family status which in Hindu Law amounts to partition irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds
Disruption of joint status covers both division of right and division of property
Division of joint status may be brought about by any adult member of the joint family by intimating the others his intention to separate and enjoy his share in the family property in severalty
Such intimation may be an explicit declaration written or oral or manifested by conduct of the members of the family
170A B i In the instant case Ext
39 speaks of a division of the joint family status and separation of interests
The trial judge translated the term Vibhaktarahave in Marathi as connoting division of status
But the High Court did not agree with the translation made by the trial judge and preferred to rely on the translation by the High Court translator
Except for the English translation of the word Vibhaktarahave there is no substantial difference between the two translations
171 A B The word Vibhaktarahave is a compound of two words viz Vibhakta and Rahave
Vibhakta appears to have its roots in the Sanskrit word Vibhaga
In the Mitakshra Vijnanesvara defines the word Vibhaga  which is usually rendered into English by the word partition  as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate
Rahave means living
Understood in its etymological sense the word Vibhaktarahave means living separately after division172H ii None of the four features which according to the High Court militate against the literal interpretation of the word Vibhaktarahave viz that the deed was one for maintenance that it was executed by the elder brother that the lands were given to the appellant s father and his descendants in the male line and that the appellant s father would not have remained contended with only a small portion instead of claiming entire half share detracts from the conclusion that in substance and reality the document evidence a division of joint family status as a result of an intimation by the appellant s father to his brother of his intention to live separately after division
173D 2
Section 92 of the Evidence Act prohibits only the varying of terms of a document not the memorandum or recitals of facts bereft of dispositive terms particularly when the correctness of the whole or any part of the recital is in question
174E 163 In the instant case the preliminary recital does not fall under the dispositive or operative portion of the document
The bar under section 92 against the admissibility of extrinsic evidence for the purposes of showing that the insertion of the words for your maintenance  in the recital is wrong is not attracted
174G 3
a When there is a dispute in regard to the true character of a writing evidence de hors the document can be led to show that the writing was not the real nature of the transaction but was only illusory which cloaked something else and that the apparent state of affairs was not the real state of affairs
174H Chandi Prasad Singh vs Piari Bidi CA No 75 of 1964 decided on 16 3 1966 Bhagwan Dayal vs Reoti Devi   referred to
b The preliminary recital in Ext
39 raises an inference that sometime prior to the date of the deed the younger brother had clearly intimated to his coparcener of his intention to sever the joint family status and to enjoy the joint family property in severalty
Disruption of the joint family status ensued
From that date onwards the brothers ceased to be coparceners
That is at the time of the execution of the deed joint family status did not exist
There is no evidence that after the severance of the joint family status there was a re union
175 E F c It cannot be said that the preliminary recital furnished little or no evidence that the younger brother intimated in clear terms his intention to sever the joint family status
The document had been let in evidence more than 70 years after its execution
All those who might have given evidence were dead
In such a situation it is permissible to draw reasonable inferences to fill the gap of details obliterated by time
175H 176A Chintamanibhatla Vankat Reddy vs Rani of Wadhawan 47 IA 6 at p 10 Sree Sree Iswar Gopal Jien Thakur vs Pratapmal Begaria  referred to
d Once it is found that the division of joint status preceded the execution of the deed the elder brother had no power to impose a condition that the land was being given to his younger brother and male lineal descendants for their maintenance
176 E F e The expression Potgi  maintenance or Nirwahkrit  used in the deed could not be construed as conferring an estate with restricted rights of ownership to the younger brother and his descendants
The deed evidences a permanent transfer of land to be enjoyed from generation to generation
Moreover the younger brother remained in full ownership of the land till his death
After the abolition of Watans he alone applied for re grant of this land in his favour
The plaintiffs were aware of this position
177A B