Case: Valliammai Achi Vs. Nagappa Chettiar &amp; Ors

Pallaniappa had either to confirm the disposition or dissent from it, and his conduct showed that he had confirmed it for he took out probate. Therefore, it must be held that after probate was taken out the residue became the absolute property of Pallaniappa and lost its character as joint Hindu family property.9. Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the will.The matter is brought out in Halsburys Laws of England, Third Edition, Vol. 14, at p. 588, para. 1091, in the following words:"Where a testator by his will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. in such circumstances B is not allowed to take the full benefit given him by the will unless he is prepared to carry into effect the whole of the testators dispositions. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under the will without compensating A out of such benefits to the extent of the value of the property of which A is disappointed.Following this principle the High Court held that as the property which the will gave to Pallaniappa would in any case have come to him as a member of the joint family there was no question of election even by Pallaniappa in this case. This view appears to us to be correct.10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappas father would change merely because Pallaniappas father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappas father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition, p. 249, para. 223 (2) (4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappas father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappas father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.11. Further it is equally well settled that "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father....." (see Mullas Hindu Law, Thirteenth Edition, p. 251, para. 224). It follows therefore that the character of the property did not change in this case because of the will of Palluniappas father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election for he is not claiming through his father.12. In this view of the matter it is unnecessary to consider the question whether Pallaniappa after the respondents adoption threw the property into the family hotch-pot.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by theview appears to us to be correct.10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappas father would change merely because Pallaniappas father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappas father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are bornIf that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappas father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappas father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues arefollows therefore that the character of the property did not change in this case because of the will of Palluniappas father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election for he is not claiming through his father.12. In this view of the matter it is unnecessary to consider the question whether Pallaniappa after the respondents adoption threw the property into the family hotch-pot.Now it is clear from S. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by the will. This shows that election under S. 180 would only arise where the legatee derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by thewill.The matter is brought out in Halsburys Laws of England, Third Edition, Vol. 14, at p. 588, para. 1091, in the followinga testator by his will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. in such circumstances B is not allowed to take the full benefit given him by the will unless he is prepared to carry into effect the whole of the testators dispositions. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under the will without compensating A out of such benefits to the extent of the value of the property of which A isthis principle the High Court held that as the property which the will gave to Pallaniappa would in any case have come to him as a member of the joint family there was no question of election even by Pallaniappa in this case.