Case: Bhim Sen For R.S. Malik Mathra Das Vs. The State Of Punjabunion Of India--Intervener.Prem Nath Fo

evidencing an intention on the part of Sundara Pandiya to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. Here the deed was executed in favour of the widow of a deceased coparcener who as such was a stranger to the coparcenary, the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reality parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kadasami, the head of the family and it extinguished the rights of the third branch in the family zamindari. We think, however, that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circumstances that succession went to one or the other. Be that as it may, we think the decision of this case on be made to rest on a more solid foundation than furnished by the consideration set out above.34. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in cl. 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasamis suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those than put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (Vide Directors etc. of L. and S. W. Ry. Co. v. Richard Deddaridge Blackmore,4 H. L. 610.In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. This rule is good law in India as in England. The same rule has been stated in Norton on Deeds at page 206 (2nd Edn.,) thus :"the general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals."In Hailshams Edn. of Halsburys Laws of England, vol. 7, at para. 345, the rule has been stated in these terms :"General words of release will be construed with reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had knowledge at the time when it was given."In Choudhry Chintaman Singh v. Mt. Nowlukho Kunwar,2 Ind. App. 263 P. C., where the document was drafted in almost the same terms as Ex. P-17, it was said that though the words of the petitioner of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore, yet in the opinion of their Lordship the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend. The parties in the year 1890 were no thinking of their future rights of survivorship at all. What Sundara Pandiya must be taken to have said by this release was "I am giving up my present rights as a senior member in favour of Kandasami whom I recognize as the rightful heir to the zamindari as a member of the joint Hindu family." Kandasami agreed to give him the village of Dombacheri in lieu of recognition of his title by him. It was not within the ken of the parties then as to what was to happen to the zamindari in case Kandasamis line died out.

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

Explanation:
1[ds]18. The claim made by the widow that the zamindari became by the arrangement of 1890 the separate property of Kandasami was disallowed by the High Court on the short ground that the documents, Exs.8, read along with the various statements made in 1889 cannot be read as changing the character of the estate from that of an impartible estate belonging to the joint family to an estate owned by Kandasami in his individual right. In the view of the High Court the only change effected by the arrangement so far as the estate was concerned was to defer the right of Kandasami to its possession as the next in succession until after the death of Kamuluammal. Kandasami could not himself make it his own private property and this was conceded by all. After hearing Mr. Pathak at considerable length we are in agreement with the High Court on this point.Reference was made to the decisions of the Privy Council inVadrevu Ranganayakamma v. Vadrevu Bulli Ramaiya,5 Cal. L. R. 439:Shivagnana Tewar v. Perasami,5 Ind. App. 61:Thakurani Tara Kumari v. Chaturbhuj Narayan Singh,42 Ind. App. 192; and it was contended that the present case was analogous to the facts of those cases and should be decided on similar lines. We are of the opinion that the facts of none of those cases bear any close resemblance to the facts of the present case. The decision in each one of those cases was given on their own peculiar set of circumstances.21. In the first case the owner of an impartible zamindari forming part of family property died leaving four sons and an infant grandson by his eldest son. During the minority of the grandson the four surviving sons executed a sanad which directed that the zamindari should be held by the grandson and that they should take an equal share of the inam lands and also manage the zamindari during the infancy of the grandson, which on his attaining majority had to be handed over to him, each confining himself to the share of the inam lands allotted to them. Certain family jewellery was also divided in a similar manner. This grandson then died leaving a son, who also died without any issue but leaving a widow. Her title to the zamindari was denied by the descendants of the four sons of the zamindar. It was held that the sanad amounted to an agreement by which the joint family was divided and that on the death of the last holder his widow was entitled to the zamindari. It was observed in this case that having partitioned the lands, the parties to the sanad proceeded to partition the jewels and his circumstance was inconsistent with the supposition that the document was executed with the intention of merely providing allotments in lieu of maintenance. It is clear from the facts of this case that the family owned other coparcenary properties besides the zamindari and the zamindari in dispute fell to the lot of the grandson as his separate property. There were other materials in the case indicating that there was complete separation between the members of this family.22. In the next case an impartible zamindari had devolved on the eldest of three undivided Hindu brothers. He executed an instrument appointing his second brother to be zamindar. The instrument recited that if the widow of the deceased who was pregnant did not give birth to a son but a daughter, he and his offspring would have no interest in the zamindari of which his younger brother would be the sole zamindar who would also allow maintenance to the third brother. The widow gave birth to a daughter and the second brother took over the zamindari. The third brother also died without issue. On the death of the second brother his son succeeded and the zamindari devolved on him who died leaving a widow. The son of the eldest brother who had renounced the zamindari sued to recover the estate against the widow. It was held that the instrument executed by the eldest brother was a renunciation by him for himself and his descendants of all interests in the zamindari either as the head or as a junior member of the joint family and consequently it became the separate property of the second brother and the widow was entitled to succeed to it in preference to the line of the eldest brother. The document on the interpretation of which this decision was given was in these termsand my offspring shall have no interest in the said palayapat, but you alone shall be the zamindar and rule and enjoy the same, allowing, at the same time, as per former agreement to the younger brother, P. Bodhagurusami Tevarwho in the pedigree is called Chinnasami,the village that had been assigned to himwords were interpreted as amounting to a renunciation of all interest in the palayapat either as the head of or as a junior member of the joint family. The rights of the youngest brother Chinnasami were expressly reserved. It was said that the effect of the transaction was to make the particular estate the property of the two instead of the three brothers, with, of course, all its incidents of impartibility and peculiar course of the descent, and to do so as effectually as if in the case of an ordinary partition between the elder brother on the one hand and the two younger brothers on the other, a particular property had fallen to the lot of the other two. Other clauses in the deed and the attending circumstances fully corroborated the construction placed upon it.23. In the last case the holder of an impartible estate of a joint Hindu family made a mokurari grant to his younger brother for maintenance. The grantee built a separate house, divided from his brothers by a wall, established therein a tulsi pinda and thakurbari and lived there separately from his brother. He defrayed the marriage expenses of his daughter subsequently to the grant. Upon these facts it was held that there was a complete separation between the brothers, and that the impartible estate consequently became separate property of the holder whose widow was entitled to succeed and have a widows estate in the zamindari. It was observed that the evidence clearly proved that there had been complete separation between Thakur Ranjit Narayan Singh and his brother Bhupat Narayan Singh in worship, food and estate. In our opinion, the decision in this case must be limited to the facts therein disclosed and can have no general application to cases of impartible estates where the only right left to the junior members of the family is the right to take the estate by survivorship in cases of failure of lineal heirs in the line of the last zamindar. The junior members can neither demand partition of the estate nor can they claim maintenance as of right except on the strength of custom, nor are they entitled to possession or enjoyment of the estate.24. In our opinion division amongst the members of this family by allotment of properties was not possible as the only property known to belong to the family was the impartible zamindari of which partition could not be made or demanded. To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case, it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined so that it became the separate property of the last holders branch. The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.25. Reference in this connection may be made to the decision of the Privy Council inKonammal v. Annadana, 55 Ind. App. 114 P. C. In that case on the dealt of a holder his elder son being feeble in mind, his younger son succeeded to the zamindari by an arrangement with the adult members of the family in the year 1922. The estate then descended from father to son till 1914 when the junior branch became extinct and possession was taken by a senior member of the branch who claimed it by survivorship while the mother of the last holder claimed the estate as an heir to separate property, and it was held that the setting aside of the elder son in 1822 did not deprive his descendants of their rights as members of the family to succeed on failure of the junior branch. In this case there was complete passing over of one branch of the family and succession vested in the next junior branch; yet when that branch failed, the members of the senior branch were held yet to possess their right to succeed to the zamindari by survivorship.The evidence in the present case is trivial and inconclusive and from the documents above mentioned no intention can be deduced on the part of the junior members on the part of any other member of the family of disrupting and dividing the family and renouncing their expectancy of succession. On the other hand, the statements made in 1889 and 1890 by the members of the family clearly indicate that none of them had any intention of giving up his rights of heirship to the zamindari. There was no charge of this frame of mind at any later stage of the family arrangement. Sundara Pandiya onclearly stated that the wish of the family was that the widow should be in charge of the estate and after her the next heir should succeed and that it was Kandasami. Kandasami said that he was the next heir, the family being undivided. In the compromise this statement was reiterated. Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct.29.Mr. Pathak then put his case from a different point of view. He urged that Kandasami had the power to alienate the zamindari or any part of it and by an act of alienation he could defeat the right of survivorship vesting in the other members to claim the zamindari on failure of his line. Similarly he said he could divide the impartible estate amongst the different members of the family and that is what he must be presumed to have done in the present case. The argument, though plausible is fallacious. The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof mayIn the case of an impartible estate the power to divide it amongst the members does not exist, though the power in the holder to alienate it is there and from the existence of one power the other cannot be deduced, as it is destructive of the very nature and character of the estate and makes it partible property capable of partition.30. It seems to us that Kandasami instead of intending to separate from the family was by his actions consolidating the family unity. By the family arrangement he no doubt successfully got himself declared as the next person entitled to hold the joint family zamindari, but he evinced no intention of converting it into his own separate property. He preserved the estate for the family by saving it from the attack of the widow who wanted to take it under the will of her husband and antagonistically to the family. By the suit which he brought and which was eventually compromised he successfully avoided that attack on the family estate at the sacrifice of his right of enjoying it during the lifetime of the widow. He also by this arrangement safeguarded himself against the attack of Sundara Pandiya on his title as an heir. By his act the rule of descent of lineal primogenture prevailing in the family with regard to the zamindari was firmly established. It would be unjust and uncharitable to conclude from the circumstances that the actions of Kandasami in 1890 were in any way hostile to the interests of the family. As he was throughout acting for the benefit of the family his actions were approved by all the members and they got a provision made for themselves for their maintenance in the arrangement. In the suit that he filed against Kamuluammal he in unambiguous terms alleged that he was claiming the zamindari as a member of the undivided Hindu family and it was in that status that he made the compromise with her and agreed to obtain possession of the estate after her death.31. After Kandasamis death when the zamindari came by descent to Kamaraia II he also followed in the footsteps of his ancestor. During the period of his stewardship of the estate he tried to implement it by recovering the pannai lands which under the compromise had gone out of the estate to Kamulu absolutely. He was successful in his efforts though as a result of the decision in the present case his labours in this direction have proved futile as the release deed has been held to be vitiated by fraud.32. For the reasons given above we hold that there exist no satisfactory grounds for holding that the arrangement made in 1890 evidences a partition amongst the members of the joint family or proves an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of male lineal descendants in the second branch of the family. The question whether there was separation among the members of the family is primarily a question of fact and the Courts below having held that it is not proved, there are no valid grounds for disturbing that finding. Chinnathayis claim, therefore, to the zamindari must be held to have been rightly disallowed.33. As regards the claim of Kulasekara to the zamindari, it has been disallowed in the two Courts below on the ground that the deed of release; Ex. P 17, does not extinguish the right of survivorship of the third branch to take the estate on the second branch becoming extinct and that the document could not be read as evidencing an intention on the part of Sundara Pandiya to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. Here the deed was executed in favour of the widow of a deceased coparcener who as such was a stranger to the coparcenary, the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reality parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kadasami, the head of the family and it extinguished the rights of the third branch in the family zamindari. We think, however, that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circumstances that succession went to one or the other. Be that as it may, we think the decision of this case on be made to rest on a more solid foundation than furnished by the consideration set out above.34. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in cl. 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasamis suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those than put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (Vide Directors etc. of L. and S. W. Ry. Co. v. Richard Deddaridge Blackmore,4 H. L. 610.In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed.