Case: V. KALYANASWAMY (D) BY LRS.  Vs. L. BAKTHAVATSALAM (D) THR. LRS.

facts of this case in view of the finding that the properties bequeathed under the Will and which are the plaint scheduled properties are not the separate properties of Rangaswamy Naidu, She would have the right to the properties under Section 3(2) of the 1937 Act. This we observe for the reason that when the Hindu Succession Act came into force, R. Krishnammal had lost her tussle under the proceedings under Section 145 of the CrPC. We have also seen the nature of the pleading which she made in O.S. No. 71 of 1958. She specifically states it that she is entitled to recover possession of the property. No doubt, she does aver that she is entitled to treat herself as in joint possession. We may however notice the decision in Kotturuswami case (supra), in fact, came to be considered by another three Judge Bench of this Court in Mangal Singh and Others v. Smt. Rattno (Dead) by her legal representatives and another reported in AIR 1967 SC 1786 . Therein, this Court held as follows:- It was urged on behalf of the appellants that, in order to attract the provisions of S.14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used in S.14(1) of the Act, the latter interpretation must be accepted. Noticing Section 14 (1) of the Act and that it covered property possessed by a female Hindu whether acquired before or after the commencement of the Act the Court proceeded to explain the circumstances in which the decision in Kotturuswami case (supra) was rendered. And thereafter the Court laid down as follows: …The Court was not laying down any general principle that S.14(1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in S.14(1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of S.14(1) arises. If, on that date, when the provisions of this Section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt. Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of the Act…. In fact, we notice that this decision was not referred to by the two Judge Bench which rendered the decision in Sadhu Singh (supra). However, we find that it has been adverted to in AIR 1996 SC 172 (see para 14) and a very recent judgment of this Court in Shyam Narayan Sigh and Ors. vs. Rama Kant Singh and Ors. reported in 2018(1) RCR (Civil)981 rendered again by a Bench of two learned Judges. Therein, this Court held inter alia as follows: In other words, all that has to be shown by her is that she had acquired the property and that she was possessed of the property at the point of time when her title was called into question. In view of the dicta in Mangal Singh (supra), we feel reassured of our view that Section 14(1) applies. 174. Incidentally, we may notice what DW1, the witness on behalf of the appellants-legatees himself says: ..When Cr.PC 145 proceedings was conducted the properties were handed over to Latchumaiah and his sons by the receiver. From that onwards the properties are under their possession till today. We never being in the possession of the properties. CIVIL APPEAL NOS. 1045-1050 of 2013 175. The appellants claim on the basis of sale deeds executed by A. Alagiriswami, who is the First Defendant in both the Suits. The case, which is sought to be set- up is that, there was a partition among the Legatees of the plaint schedule properties and the properties purchased by them, was among the properties allotted to the First Defendant. Their entire case is based on A. Alagiriswami having rights in the property. We have already come to the conclusion that A. Alagiriswami has no rights, for the reasons which we have given. The arguments based on the compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah branch from questioning the partition or the Will, cannot be upheld. Insofar as we have held that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree in O.S. No. 71 of 1958 by which she had given-up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. The plaintiffs in O.S. No. 649 of 1985, having sought a declaration of their right, and which they were entitled to. The contention that there was no challenge to the sale deeds, may not advance the case of the appellants.

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

Explanation:
0[ds]44. The property in dispute, in both the Suits, is the same. In the Will dated 10.05.1955, there were sixteen items. In O.S. No. 71 of 1958, R. Krishnammal was conferred with absolute rights in respect of seven items. The property involved in O.S. No. 36 of 1963 also related to the seven items, which figured in compromise Decree in O.S. No. 71 of 1958, wherein R. Krishnammal was conferred absolute rights. O.S. No. 632 of 1981 relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. The items which are scheduled in the present Suits are the items covered by the Will dated 10.05.1955 other than the seven items, out of which, four were alienated and one was acquired. As far as O.S. No. 71 of 1958, filed by R. Krishnammal, is concerned, since she had an alternate relief claiming partition, it encompassed the entire property belonging to the coparcenary consisting of 93 items.45. The extent of property involved in the cases before us is a little over 36 acres.We notice that similar views have been expressed in the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625. In paragraph 9, it was held as follows:9. Order 2 Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiffs claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.. In this case, it is true that when O.S. No. 36 of 1963 was instituted, the earlier Suit brought by R. Krishnammal, viz., O.S. No. 71 of 1958, had culminated in a compromise Decree. A perusal of the plaint itself would show that the plaintiffs in O.S. No. 36 of 1963 have adverted to the compromise in O.S. No. 71 of 1958. They have averred in paragraph 7 of the plaint that under the compromise, R. Krishnammal was given the property scheduled in the said Suit (Suit No. O.S. No. 36 of 1963) in lieu of the properties comprised in the Will and some cash. The rest of the properties comprised in the Will were given-up by her in favour of the respondents (the sons of Lakshmiah Naidu) it is averred. Thereafter, it is averred that the defendants claim, i.e., R. Krishnammal claimed absolute title to the properties scheduled in the plaint and which was unsustainable both in law and facts. It is contended further that the entire compromise Decree, more especially, conferring the absolute title to the suit properties therein in R. Krishnammal, was not valid and binding on the two plaintiffs and Defendants 3 and 4, who are the appellants before us. It is further averred that the appellants have vested rights in the properties. They were not impleaded in the suit (apparently, O.S. No. 71 of 1958). It was averred that R. Krishnammal did not represent the interest of the appellants. In paragraph-8 of the Plaint, it is averred that R. Krishnammal could not enlarge her rights by any compromise to which the plaint items were, only some items of the properties comprised in the Will and R. Krishnammal would, in law, be entitled to and could claim only the same interest, i.e., a life estate that she had under the Will. Thereafter, there is reference to a Notice dated 05.10.1959 to R. Krishnammal that she had only a life estate and to desist from alienating them. R. Krishnammal is alleged to have sent a reply containing untenable allegations. It is averred that she claimed, inter alia, that the appellants would not be entitled to claim anything under the Will and she was entitled to deal with the properties in any manner she liked. It is further averred that R. Krishnammal was then attempting to create nominal documents in respect of the suit properties to defeat the rights of the appellants. Paragraph-11 of the Plaint being significant, may be noticed:11. The Will of R.V. Rangaswami Naidu comprised other properties also other than those described herein which under the compromise decree have been given by the 1 st defendant to her husbands brothers sons. The plaintiffs reserve their rights to respect of those properties to a separate action.. It is accordingly that O.S. No. 36 of 1963 was filed seeking a declaration that R. Krishnammal had only a life estate without any powers of alienation and the appellants have a vested remainder in the said properties under the Will. The word said obviously refers to the items scheduled in OS No.36 of 1963.50. The Suit (O.S. No. 89 of 1983) is fundamentally premised on the death of R. Krishnammal in 1977 and the blossoming of the full rights of the appellants under the Will. In other words, R. Krishnammal having a life estate under the Will was alive when O.S. No. 36 of 1963 was filed. The absolute right under the Will, in favour of the appellants, dawned only with the death of the life estate holder. In this context, no doubt, we must clarify one aspect. Section 119 of the Indian Succession Act, 1925 (hereinafter referred to as the Indian Succession Act, for short) deals with the date of vesting of legacy when, inter alia, possession is postponed.52. Vested interest is different from the contingent interest. The two have vastly different consequences. The death of R. Krishnammal being a certain event, the interest of the remaindermen is a vested interest. The commonality between Section 19 of the TP Act and Section 119 of the Indian Succession Act, and which is apposite to the facts of this case, is as follows:When under the Will, a life estate was created in favour of R. Krishnammal with an absolute remainder in favour of the appellants, the legacy in favour of the appellants became vested from the time of death of the testator. The possession and the enjoyment of the property, however, under the Will, was the domain of the life estate holder, viz., R. Krishnammal as long as she was alive. She, however, had no right to enlarge the boundaries of her right under the Will. This is, no doubt, subject to the impact of supervening Legislation which will be discussed later. By her unilateral act or by even joining together with the third party, it would not be open to life estate holder to defeat the rights of the remainder men. The significance of a case being covered under Section 119 Illustration (III), of the Indian Succession Act, is that with the death of the Testator, the right in the property becomes vested with the remainder men, from the time of death of the Testator. In other words, upon the death of the legatee under the Will, in whom the absolute right is vested after the transient possession and enjoyment of the life estate holder, a heritable right, which, in fact, arose at the time of the death of the testator, would confer legal rights upon the heirs of the absolute owner under the Will when succession to his estate opens, should he not wish to leave a Will behind. Though the right is vested in the property, the enjoyment of the property with the absoluteness of a full owner under the Will could be done by the appellants only after the death of R. Krishnammal. Having thrown light upon the words absolute rights in the context of Section 119 of the Indian Succession Act, 1925, it is this right which was sought to be made subject matter of a Decree for declaration and partition. It is clear that in the year 1963 or till the death of R. Krishnammal, the rights as sought to be enforced, did not inhere with the appellants as explained. They could not have sought a partition of the plaint scheduled properties while R. Krishnammal was alive.54. Thus, be it the omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), the fatal consequences they pose, will arise only if the cause of action is the same. Though we are not oblivious to the fact that the plaintiffs in O.S. No. 36 of 1963 could have sought a declaration about the compromise Decree in O.S. No. 71 of 1958, qua all the properties covered under the Will, we would think that, in the facts of this case, the cause of Action in O.S. No. 36 of 1963 and the present Suit (O.S. No. 1989 of 1983) are clearly distinct, having regard to what we have discussed and having regard to the factum of the date of the death of R. Krishnammal. It is significant to note that the cause of action in OS No.36 of 1963 was the threat of alienation of the items scheduled therein. We would perceive O.S. No. 36 of 1963 more as a protective action by persons who had vested interest in the property under Section 119 of the Indian Succession Act, 1925 (hereinafter referred to as the Indian Succession Act, for short). We must also not be unmindful of the principle that cause of action is not to be confused with the relief which is sought. It has more to do with the basis for the relief which is sought. We are only reiterating in this regard, what the Privy Council has laid down, when it said it refers to the media upon which the plaintiff asked the court to arrive at a conclusion in his favour (See Mohammad Khalil Khan v. Mahbub Ali Mian AIR 1949 PC 78 ).THE IMPACT OF THE PROCCEDINGS AND THE DECREE PASSED IN O.S. NO. 1971 OF 1958 AND O.S. NO. 36 OF 1963 AND O.S NO. 732 OF 1981ESTOPPEL, WAIVER, ACQUIESCENCE55. O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal. Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The Fifth Defendant was the Executor of the Will. R. Krishnammal lay store by the Will executed by her late husband V. Rangaswami Naidu. In the alternate, she also claimed a Decree for Partition, virtually giving-up her right under the Will and on the basis that V. Rangaswami Naidu died intestate. The matter did not go to trial. It ended in a compromise. The substance of the compromise is, a few of the items mentioned in the Will, seven items were recognised as absolute properties of R. Krishnammal even though, under the Will, she had only a limited right over those items. R. Krishnammal, for her part, under the compromise Decree gave-up her rights in respect of the rest of the properties. We notice the argument of V. Raghavachari, learned Senior Counsel for the respondents, that there were ninety-three items which would have been impacted if a Partition Decree, as sought by R. Krishnammal, had been passed. In other words, there was a larger body of properties, apparently which belonged to the joint family of the V. Rangaswami Naidu and Lakshmiah Naidu. The properties covered by the Will were only a much smaller part of the larger body of property, which belonged to the joint family. There is evidence to suggest that as found by the First Appellate Court that R. Krishnammal may not have been in a position to demand her full rights as such and she was satisfied with what she could get. But what is far more relevant is, the appellants were not parties to the compromise. Appellants were not tracing their rights under R. Krishnammal. Appellants were given an absolute right under the Will executed by their uncle V. Rangaswami Naidu. The bequest in their favour created a vested interest within the meaning of Section 119 of the Indian Succession Act, 1925. Of course, the enjoyment and possession of the property was to await the death of R. Krishnammal under the Will. It is quite clear that R. Krishnammal could not have also enlarged the rights of the branch of Lakshmiah Naidu, once she accepted the Will, for she had only a life estate over the properties covered under the Will. The appellants were also not bound by her acts in entering into a compromise seeking to confer absolute rights qua those properties, which were subject matter of the Will, in respect of which, they had the right to be enjoyed after the death of R. Krishnammal.56. O.S. No. 36 of 1963 came to be filed by two out of the appellants, who are Legatees under the Will. They sought a declaration to the effect that R. Krishnammal could not enlarge her right and she could not alienate the properties (the very seven items, which, under the compromise Decree of O.S. NO. 71 of 1958, were recognised as her absolute properties). It is true that the plaintiffs in O.S. No. 36 of 1963 did not choose to include the plaint schedule properties in the present Suit and seek a declaration qua them. There are two aspects to it, which we must bear in mind. Firstly, the cause of action for filing O.S. No. 36 of 1963 was alleged to be the apprehension that R. Krishnammal was about to alienate the seven items over which she acquired absolute rights under O.S. No. 71 of 1958 (In fact, it was alleged that one item was alienated). Secondly, we have already noticed paragraph-11 of the Plaint. Therein, the plaintiffs have revealed their mind to be that they intend to pursue their right qua other properties apparently which are the plaint schedule properties in O.S. No. 89 of 1983. We have already indicated that the bar of Order II Rule 2 of the CPC will not apply. There is some merit in the contention of the appellants that the Decree passed in O.S. No. 36 of 1963 did involve watering down the terms of the compromise Decree in O.S. No. 71 of 1958. As on the date of the compromise in O.S. No. 36 of 1963, the position was that four, out of the seven items, had been alienated by R. Krishnammal, whereas, one property had been acquired by the Government. As regards Item Nos. 5 and 6 in the plaint schedule in O.S. No. 36 of 1963, the terms of the Will dated 10.05.1955, came to be reiterated. This is for the reason that in departure from the terms of the Decree in O.S. No. 71 of 1958, under which R. Krishnammal was conferred with the absolute rights in respect of Item Nos. 5 and 6, in regard to the very same items, under the compromise Decree in O.S. No. 36 of 1963, R. Krishnammal was only to enjoy the properties during her lifetime and without the power of alienation. In other words, the terms of the Will dated 10.05.1955 are seen reflected and reinforced by the compromise Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, there is no adjudication by the court. As to what is the expediency which led the parties to enter into the compromise Decree, may not be decisive of the legal rights of the parties which we are called upon to pronounce. The action of the branch of Lakshmiah Naidu, who had also joined as parties in O.S. No. 36 of 1963, and who were represented by the Counsel, may not obviate the need for proving the Will on the part of the appellants.This conduct is emphasised before us, to point out that it would constitute a bar by way of principles, including estoppel and acquiescence for the appellants in instituting O.S. No. 89 of 1983 in regard to the plaint schedule properties over which R. Krishnammal had give-up all her rights in O.S. No. 71 of 1958. It is in this regard, we must bear in mind that even in the Plaint, in O.S. No. 36 of 1963, the properties, other than the seven items, were admittedly not the subject matter of the Suit. More importantly, what is stated in the compromise is that no relief is claimed against the other Defendants in the said Suit. It is equally true that by the passing of the Decree in O.S. No. 36 of 1963, the interest of the Lakshmiah branch was not imperilled. This is for the reason that in regard to Item Nos. 5 and 6 in O.S. No. 36 of 1963, over which the rights of R. Krishnammal were limited to a life estate with a taboo against alienation bringing it in tune with the terms of the Will under the Compromise did not matter for the branch of Lakshmiah Naidu. This is for the reason that as far as they were concerned, they were already bound by the compromise Decree in O.S. No. 71 of 1958 whereunder R. Krishnammal had been conferred absolute rights in regard to Item nos. 5 and 6, inter alia, and they had lost all their rights. Therefore, the arrangement inter se between the appellants and R. Krishnammal, qua those properties, was of no concern to them. What they were interested in was the rest of the properties over which they were given absolute rights under the compromise Decree in O.S. No. 71 of 1958. The result is that on the one hand the terms of the Will came to be reiterated under the compromise Decree in O.S. No. 36 of 1963 qua Item Nos. 5 and 6. The Decree in O.S. No. 71 of 1958 was otherwise left untouched. We would, therefore, conclude that the passing of a Decree in O.S. No. 36 of 1963, is a matter which is entirely between the appellants and R. Krishnammal. In fact, the Lakshmiah Naidu branch, though made parties to the compromise, were not actually parties to the Decree. They have not signed as parties to the compromise Decree. Therefore, neither the appellants nor the respondents can derive any advantage from either the filing of O.S. No. 36 of 1963 or the passing of the compromise Decree therein. The plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732 of 1981. The Lakshmiah branch (among the respondents in the appeals) were not parties. It was a Suit for partition of items 5 and 6 scheduled to O.S. No. 36 of 1963. It is obvious that they cannot rely upon principles of res judicata or constructive res judicata based on O.S. No.732 of 1981, being not parties to the said Suit. What, however, is sought to be urged, is that the premise, on the basis of which the Decree in O.S. No. 732 of 1981 was passed, is completely incongruous with the cause of action in the present Suit. In other words, it is pointed out that in O.S. No. 732 of 1981, the case set-up was R. Krishnammal had rights over the property and this was inconsistent with the case set-up in the present Suit. It was contended that the appellants were estopped from undertaking such a course of action. We could also deduce the following conduct. The cause of action in O.S. No. 732 of 1981 did involve drawing upon the rights secured (qua Item Nos. 5 and 6 in O.S. No. 36 of 1963) in O.S. No. 71 of 1958 whereunder the Lakshmiah branch acknowledged rights of R. Krishnammal who also gave-up her rights to properties which included the plaint schedule items in the case. Though, we are not oblivious to the dimensions projected, we would not think that Right to Property, if otherwise is established in favour of the appellants, it would be lost. It cannot be treated as a case of abandonment of rights qua the plaint schedule properties (See in this regard Sha Mulchand & Co. Ltd. (In Liquidation), By Official Receiver, High Court, Madras v. Jawahar Mills Limited, Salem AIR 1953 SC 98 and Dr. Karan Singh v. State of J&K and another (2004) 5 SCC 698 . The respondents who were not parties to O.S. No. 732 of 1981,cannot set-up a case of estoppel.58. The Will in question is an unprivileged Will. The mode of making an unprivileged Will is provided in Section 63 of the Indian Succession Act. In order that a valid Will be made not only, it is necessary that the Testator must execute the document but also the execution must be attested by at least two witnesses. What is required is not ordinary witnessing of a document but attestation which is as is provided in Section 63 of the Indian Succession Act.59. Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act, for short) deals with proof of execution of a document required by the law to be attested. A perusal of the same makes it clear that in the case of a Will, being a document which is required to be attested by Section 63 of the Indian Succession Act, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence, then, the Will can be proved only if one of the attesting witness is called for proving its execution.64. In this case, there is no dispute that both the attesting witnessing were not alive at the relevant time.66. The contention of the respondents appears to be only that, in the proceeding under Section 145 of the CrPC, the tussle was between R. Krishnammal and the Executor of the Will who were styled as A Party Nos. 1 and 2 and the B Party, viz., the respondents. The present appellants were not parties. Therefore, the proceeding was not between the same. The other limb of the first proviso to Section 33, viz., that in order that Section 33 of the Evidence Act applies, the proceeding is between their representatives in interest is not fulfilled. The contention seen raised is that the appellants, who are the remainder men under the Will, cannot be treated as representatives in interest of R. Krishnammal.68. The word representative in interest, in other words, is to be understood liberally and not confined to cases where there is privity of estate and succession of title. He is be such representative of the party in the later proceedings. Answering the two tests, which have been evolved in the facts of this case, the respondents cannot contend that the interest of the appellants was inconsistent with the interest of R. Krishnammal and in particular the executor of the Will. It was certainly not antagonistic to their interest. The Will was indeed set-up by R. Krishnammal and the executor. Therefore, it can be safely concluded that the interest of both persons comprised of A Party, which was the protection of the possession, was also in the interest of the appellants. It may be true that the appellants do not derive their title under R. Krishnammal. But the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. It cannot be contended that the interest of the appellants lay in answering the question posed in Section 145 of the CrPC proceedings against R. Krishnammal and the Executor in favour of the respondents, who were parties before the Magistrate. The case of the Will was explicitly set up as also the declaration dated 10.5.1955 and further developments. Therefore, the contention based on the third proviso also does not appeal to us. Also not only was there opportunity to cross examine to the B party, it was availed of. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding. We would think that on this basis, as Exhibit-B7 and even B13 (deposition by the Executor) indeed is evidence which was tendered in the previous proceeding before the Magistrate who was certainly authorised by law to take evidence, which is relevant for proving the truth of the facts contained therein under Section 33.This Court has taken the view that while it is open to prove the will and the attestation by examining a single attesting witness, it is incumbent upon him to prove attestation not only by himself but also attestation by the other attesting witness.70. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.71. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.We say this to clarify. In a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. In other words, the reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over. As far as this case is concerned, the evidence of one of the attesting witnesses is contained in B7 and which we have found relevant under Section 33, establishes that he was an Income Tax Practitioner. He was beckoned by Rangaswami Naidu, informing him that he had written a Will and it was to be attested. He was asked to in fact to attest even upon going there on that day. He speaks about the testator signing on every page and also, he has spoken about him signing. He, no doubt, therefore the establishes requirement of Section 69 in regard to the signature of one of the attesting witnesses being proved in his handwriting. We see no reason to doubt the testimony. As far as signature of the testator is concerned, apart from B7 in B13, the executor has spoken of the testator signing. Also, PW1 has deposed that the Will was shown to him he admitted that every page is contained with the paternal uncle signature. Thus, the requirement of proof of Will under Section 69 are fulfilled.The Trial court has found that B68 is the original Will which was produced before the Magistrate in the proceedings under Section 145 of the CrPC This is after over-ruling the contention of the respondents that B68 was not the original Will. The Trial Court has found little merit in the objection against secondary evidence of the Will, viz., certified copy of the registered Will being produced. We have in fact evidence in the form of B7 and X1 to show that the Will came to be registered.76. The original of the Will according to the case of the appellants continued to be with the executor who was in fact the nephew of R. Krishnammal, the widow of Rangaswami Naidu. An attempt was made to get the original Will produced at the relevant time when the executor had passed away, on the basis that his son was in possession of the original Will. He was called upon to produce the Will by C1. He responded by pointing out that he was not having the original Will with him. The finding of the Trial court as affirmed by the First Appellate Court is that circumstances warranted admission of secondary evidence to prove the Will. We see no reason to take a different view and the view taken by the High Court cannot be sustained.77. It may be true that in the proceedings in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, the Will was projected first by R. Krishnammal and thereafter, the plantiffs in O.S. No. 36 of 1963 who are among the appellants before us. However, the matter did not go to trial. We are also of the view that the Will must be proved under the Evidence Act and not with reference to plea of estoppel as taken by the appellants based on the decree in O.S. No. 36 of 1963, being based on the Will and the respondents having participated not as parties even to the compromise but it is a far cry from finding that the facts of the case did not warrant admission of secondary evidence regarding the Will.79. It will be seen from the Will that the Testator has recited in the Will that he owns the immovable properties set out in Schedule A exclusively and in his own right. The said properties are alleged to include properties purchased by him and properties allotted to him in his family partition between him and his brother in 1932. He further states that he has been a divided member from 1932 onwards and has continued to be so till the date of the Will. Finally, he states that, he, in order to avoid any uncertainties, made an open declaration of his divided status today. The Will further refers to amounts which he is entitled to as set out in Schedule B. Entire properties in Schedule A, including his house, is set out for his wife without powers of alienation. He further states that he expects his wife to make use of the income from the landed properties to be used to meet the expense of presents on ceremonial and special occasions in his sisters families after meeting her own family expense, maintenance of the house. There is a remainder, absolute in nature, given to his four Legatees, i.e., his Nephews through his four sisters. He expressed his earnest wish that the four Legatees should keep the properties for their respective families and should not dispose them off, but in case of need, they should sell them in the first instance to any of the other sharers. The last portion to be noted is the statement that he has already made other provisions for his wife apart from the properties under the Will.81. In regard to the aspect about incorrect statement in the will, it is to be noticed that making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will. This principle will not be applicable in the facts of this case. Making the statement that there was a partition in 1932 and that the properties were allotted to him, is apparently the understanding of the testator. This issue generated debate in the courts. The view expressed by the testator did not find favour with the courts but that is a far cry from describing it as an outright false statement. As long as it is a part of the will which is made by the testator and he believed in it the finding given by the court in this regard will not advance the case of the respondent.82. We further notice the following aspects:Rangaswami Naidu was an educated man. He was a former M.L.C.. He was an affluent man. He has no issues. He was affectionate towards his sisters. He has chosen to favour each branch of his sisters by selecting one son out of each branch to be the legatees in whom the property were to vest. In fact, he has also provided that the properties are to remain in the family and should any of the legatees wish to sell, it should be offered to the other legatees. As far as his health is concerned, it is well settled that the requirement of sound disposing capacity is not to be confused with physical well-being. A person who is having a physical ailment may not therefore berobbed of his sound disposing capacity. The fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will. What is important is whether he is conscious of what he is doing and the will reflects what he has chosen to decide. While it may be true that he was suffering from cancer of the throat there is nothing to indicate in the evidence that he was incapable of making up of his own mind in the matter in leaving a will behind. The fact that he was being fed by a tube could hardly have deprived him of his capacity to make a will. We further notice that the will is a registered will. The Registrar came home. Exhibit X1 would show that Rangaswami Naidu on being asked to put his thumb impression, he insisted on signing. This course of conduct, in our view, has been correctly appreciated by the first appellate court, the final court on facts. The inference to the contrary sought to be drawn does not appeal to us. From the evidence, it is also clear that the other attesting witness was Dr. C.S. Ramaswamy Iyer a fairly renowned Physician and family friend. PW1, the witness on behalf of the respondent has himself admitted publishing the obituary on the passing away of the said doctor. PW1 speaks about him as a gentleman and he wont act illegal manner. In B7 the other attesting witness has also spoken about the doctor remaining there and no doubt leaving before the Registrar came. We have already held that the requirement of Section 69 of the Evidence Act stands fulfilled otherwise. The fact that no bequest is made in favour of the sons of Lakshmiah Naidu cannot be treated as a suspicious circumstance. It is clear that Lakshmiah Naidu was extremely wealthy. Making the nephew of his wife executor of the will, in fact, does assure us of the absence of any foul play on the part of the legatees. In his evidence [B13 which is the evidence given by the Executor in 145 proceedings], he has spoken about the testator expressing his desire on 2-3 occasions about wanting to executing a will. From the evidence adduced by PW1 also, we would think that the view taken by the first appellate court regarding the will cannot be characterized as a perverse one warranting interference in the second appeal.83. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. The evidence of PW1 would show that the respondents have failed to prove that the will is vitiated in this regard . Therefore, we would arrive at the conclusion that the will was indeed executed by R. Naidu and was his last will.84. Undoubtedly, Rangaswami Naidu and Lakshmiah Naidu who were brothers, were co-parceners in a Hindu Coparcenary.85. The case of the appellants is based, in fact, on their having been an oral partition between the two brothers in the year 1932. Three Courts have found no merit in this contention. In fact, the appellants also did not pursue this line of argument before us.In Kalyani(dead) by LRs v. Narayanan and others AIR 1980 SC 1173 , a Bench of three learned Judges, laid down as follows:-10. The next stage in the unfolding of the case is whether Ex. P-1 is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in- common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier v. Rama Subba Aiyan [(1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1] quoted with approval in Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar [(1979) 4 SCC 60, 68] ). A disruption of joint family status by a definite and unequivocal indication to separate 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 (see Girja Bai v. Sadashiv [AIR 1916 PC 104 : 43 IA 151 : 18 Bom LR 621] ). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broadere may notice paragraph 18 also which reads as follows:-18. One thing is crystal clear that Ex. P-1 is not a deed of partition in the sense it does not purport to divide the property amongst various coparceners by metes and bounds. However, in Hindu law qua joint family and joint family property the word partition is understood in a special sense. If severance of joint status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition (see Raghavamma v. Chenchamma [AIR 1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593] ). To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration.This Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and others (supra) held as under:14 ……The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.95. In Kalyani (supra), one Karappan who had two wives and children through them was governed in the matter of inheritance and succession essentially by customary law and in the absence of any specified custom, he was governed by the Hindu Mitakshara Law. He had executed a registered deed P1 which was variously described as a Will or as a deed of partition or evidencing a family arrangement. The Suit from which the case arose was filed by the Widow of one of his sons from his first wife. This Court went on to find that P1 could not be supported as Will insofar as Karappan had no power to devise by Will ancestral property. The Court further went on to consider whether B1 was effective as a partition. It was in this context that the observations in paragraph-10 of the judgment came to be made. The Court, after making the observations in paragraph-10, found that there was no effective partition by metes and bounds by B1 though the shares of sons were specified as also the provisions for the female members were made. Thereafter it is that the Court posed the question that if B1 is not effective as a Deed of Partition, its effect on the continued Joint Family status had to be examined. It is thereafter that when the court went on to make the observations in para 18 which we have set out. The Court further proceeded to find that by specifying of the share in Exhibit P1 there was first a disruption in the joint family by specifying the shares. Once a disruption took place, it was held, in a joint family status, the coparceners ceased to hold the property as joint tenants but they held as tenants in common. It was further the view of the court that the fact that the coparceners continued to stay under the same roof or enjoy the properties without division by metes and bound, did not matter. They did not hold as joint tenants unless reunion was pleaded and established. We are, in this case, also called upon to reconcile what has been laid down in this case with what has been laid down in a later Judgment in. The later decision Bhagwant P. Sulakhe (supra) was also rendered by a bench of three learned Judges.96. We may briefly notice the facts involved in the said case. The appellant, who was the plaintiff in the Suit along with the Second Defendant therein and two of his brothers, were members of a Joint Hindu Family. There was a public limited company and also a firm. The appellant had acted as a Managing Agent. He had also acted as a Managing Director of the Company. In regard to the same, he had earned remuneration. The question which essentially arose before this Court was whether it was to be treated as the personal income of the appellant or whether it belonged to the joint family. After considering the partnership deed and other materials, the Court, inter alia, observed as follows:14 …The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.. The Trial Court, in this case, has laid store by the observations of this Court to the effect that as long as joint family property is in existence and is not in partitioned, the character of the joint family property does not change. It concluded that even if division is brought about by issuance of B1, the properties of the joint family consisting of V. Rangaswami Naidu and his brother remained joint and it could not be arrogated by V. Rangaswami Naidu as his and they bequeathed, as done. The first appellate court distinguished the decision by stating that it turned on in facts.98. We would think that there is really no conflict as such. We have already noticed what has already been laid down by the Privy Council in Appovier (supra). The Court has laid down, inter alia, that when members of the Hindu Undivided Family agree among themselves that a particular property shall be thereafter be subject of ownership in certain defined shares, then, the character of the undivided property and joint enjoyment is taken away from it and each member will thereafter have a definite and certain share, even though the property itself has not been severed and divided.99. It must be remembered that the said case actually involved an Undivided Hindu Joint Family wherein there was a deed of division and the contention, which had to be considered by the Court, was that, it was ineffectual to convert the undivided property into divided property until it had been completed by an actual partition by metes and bounds. The Court was essentially not considering the effect of a declaration by a coparcener to separate causing a division in a joint family status. The Court was also not considering the question as to whether, on such division in status, the rights of the coparcener, over specific items of properties, will be transformed into exclusive and absolute rights even without an agreement or partition, by metes and bounds.100. In Girja Bai v. Sadashiv Dhundiraj AIR 1916 PC 104 , the Privy Council was dealing with a situation where the appellants husband had served a registered notice on the Manager of a Mitakshara Joint Family expressing his desire to get partition and which was followed-up by a Suit for partition. We have noticed paragraph 25 and 28 therein.101. Therefore, on a conspectus of the discussion we would hold as follows:Partition has two shades of meaning in Hindu Law we are dealing with. In the one sense, partition is the first step which would ordinarily culminate in a metes and bounds partition. In a coparcenary, there is joint tenancy. A Hindu Coparcenary, which cannot be created by agreement between parties but is the creation of law, can be disrupted or a division is caused by a unilateral declaration by a coparcener to put an end to the joint family. What the coparcener has before the division is produced, is an interest, as has been referred to in both Sections 6 and 30 of the Hindu Succession Act. Upon a declaration being made, expressing intent to separate without anything more but no doubt on communication of the same to the other coparcener/coparceners, partition in the above sense viz. causing a division of title takes place. As already noticed, the partition in the aforesaid sense has far-reaching consequences. The joint tenancy, which includes the concept of Right to Inherit by Survivorship, is terminated with the partition being effected in the first sense. If the coparcener dies after causing such a partition, as the right on the basis of Doctrine of Survivorship is annihilated, his death, after such partition, would result in his heirs becoming entitled to succeed. In that sense, joint tenancy would be replaced by tenancy in common but that is not the same as saying that the properties of the family, where there has been a partition in the first sense, will without anything more stand transformed into the separate and exclusive properties of the divided members. This is the view, which is taken by this Court in Bhagwant P. Sulakhe. We are unable to subscribe to the view taken by the First Appellate Court that the principles of law, which are contained in paragraph-14 of the Judgment, as extracted by us, are merely to be understood in the special facts of the said case. Partition, in a broader sense and as is commonly understood, is the division of the properties in accord with the shares.we may refer to the decision of full Bench of the Mysore High Court in Sundara Adapa v. Girija AIR 1962 (Mysore) 72 . Justice K.S. Hegde as his Lordship then was speaking for the Bench held:-15. It is well known that till the Act came into force, the interest of a coparcener in a Hindu joint family, be it a Mitakshara family or an Aliyasantana family, could not be disposed of by means of a testament, as by the time his will took effect his interest in the undivided family would have been taken by survivorship by the other coparceners. The Indian Succession Act did not make any inroad into that position. The relevant provisions of the Indian Succession Act are found in Part VI (Provisions relating to testamentary succession) read with the rules found in Schedule III. But they are also subject to the restrictions and modifications specified in that schedule. Restriction No. 1 in Schedule III says:—Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of this section, he could not deprive them by will.17. Neither under the customary law nor under the Aliyasantana Act nor under the Indian Succession Act the interest of a coparcener in an Aliyasantana Kutumba could have been disposed of by testamentary disposition. In that regard a definite change in the law was made by means of the Explanation to Sec. 30(1) of the Act. There is no dispute that at present a member of an undivided Aliyasantana kutumba could dispose of his interest in the kutumba properties by means of a will. But we are unable to agree with Srli G.K. Govind Bhat when he says that Explanation to Sec. 30(1) enlarged the rights of a divided coparcener. The object of Section 30 is clear. That section neither directly nor by necessary Implication deals with the devolution of divided interest. As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, a, done by Sri Bhat, that it the Explanation to S. 30(1) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of kavaru would be larger in extent than one unprovided under Sec. 7(2) of the Act.We find that this Court in Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors.; 1973(2) SCC 773 has approved of view taken by the High court in the aforesaid case. In other words, as we have already noted in the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest. The reason why we are saying this is as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare. In this regard we may notice the judgment of this Court in Hardeo Rai v. Sakuntala Devi and others 2008 (7) SCC 46  in paragraphs 22 and 23. It reads as under:22. For the purpose of assigning ones interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as joint tenants but as tenants-in-common. The decision of this Court in SBI [(1969) 2 SCC 33 : AIR 1969 SC 1330 ] , therefore, is not applicable to the present case.23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.It is important to notice that what this Court has laid down that he becomes owner of that share and he can alienate the same. It is different from saying that he is owner of the property in the sense of being the exclusive owner. [See also in this regard the law as laid down in Appovier case (supra) in para 4 thereof].107. We may also notice that even under the law prior to Hindu Succession Act there could be four situations. In regard to a member of a joint Hindu family who also has his separate property he could bequeath his separate property. As far as joint family property is concerned, there could be three situations. The first situation is where the family remains joint in which case the coparcener would have an interest. As far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act. The second situation is in a case where there is a disruption in title or a division in status. What we mean is there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. When such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. As already noticed, this may or may not be accompanied simultaneously with a metes and bounds partition. In such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. The share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. This power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act. The third scenario would be a situation where following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act. In fact, the property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. As regards the effect of a son born after partition we need not pronounce on the same. After the amendment to the Succession Act 2005 including the daughters of a coparcener as coparceners in their own right, if a Hindu has a female issue then the property allotted to him on partition will partake of the nature of coparcenary property.108. After the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. In other words, the words interest in coparcenary property can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.As can be seen, Section 3 of the 1937 Act applies when a Hindu dies intestate.It is important to notice that Section 3(1) of the 1937 Act deals with the case of the Hindu dying intestate leaving behind separate property. In such a situation, should there be one widow, she became entitled in respect of the property to the same share as the son. This was made subject to sub-Section (3) which declares that, the interest devolving on her, would be a limited interest known as Hindu Womans Estate. The more important change that was brought about is located in Section 3(2). Thereunder, when a Hindu governed by any School of Law, other than Dayabagha or Customary Law, dies, leaving behind at the time of his death, an interest in a Hindu Joint Family property, his widow is conferred the same interest as her husband had. This is again made subject to the provision of sub-Section (3) which makes it a limited interest known as the Hindu Womans Estate. It will be, at once, noticed that the Legislature had not used the words dies intestate in Section 3(2), whereas, in Section 3(1), the Legislature contemplated a situation, where a Hindu could bequeath his separate property and has taken care to provide only for a contingency where he died intestate. No doubt Section 2 proclaimed that Section 3 was to be applied when a Hindu died intestate. When it comes to Section 3(2), in regard to a case covered by Mitakshara law, the Legislature has, in keeping with the law as then prevailing, recognised that a Hindu could not execute a Will in regard to his interest in a Hindu Joint Family. It is this concept, which has been swept away by enacting the Explanation to Section 30 of the Hindu Succession Act, whereunder, it is open to a Hindu to even bequeath his interest in the Hindu Joint Family property. Coming back to Section 3(2) of the Hindu Womens Right to Property Act, the Legislature has advisedly chosen the words interest in the Hindu Joint Family property, which may be contrasted with the provisions under Section 3(1), which contemplates the Hindu leaving behind separate property. Therefore, Section 3(2) contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14 th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply. It is to be noted that, a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.The position at law may therefore, may be culled out as follows:With the passing of the 1937 Act, in areas to which it applied, an intrusion was indeed made upon a coparceners right to set-up a claim to the property of a deceased coparcener based on the Doctrine of Survivorship but the Act did not annhilate the said Right. The Right to claim by Survivorship came to be suspended but not extinguished. The widow, though not a coparcener, was like a coparcener in most respects. She was also conferred with the right to claim partition. As long as she did not claim partition and the property remained intact upon her death, the Right to Claim by Survivorship which stood eclipsed, revived and the coparceners would become entitled to the property on the basis that succession opened as if the coparcener died when the widow died. On the other hand, if the widow claimed partition, her interest transformed into a defined interest and the Right to Claim by Survivorship, which stood suspended, was destroyed. The property would then enure to the heirs of the husband. It is also to be noted that, by virtue of Section 3(2), there is no rupture in the coparcenary. There is no division brought about by Section 3 (2) of the 1937 Act, in other words.We must also not be oblivious to two developments which took place after succession opened to the estate of V. Rangaswami Naidu on 01.06.1955. The Hindu Succession Act, 1956 containing Section 14 came to be passed, the effect of which will be discussed later. Secondly, we may also notice that R. Krishnammal the widow, filed O.S. No. 71 of 1958 wherein as an alternate prayer, she sought partition. We have already noticed the principle which has been laid down about the effect of a demand for partition by a widow in whom the Right came to be vested under Section 3(2) of the 1937 Act. But, as we have noticed, the supervening Legislation in the form of the Hindu Succession Act, if it did confer absolute rights under Section 14(1), it is a matter of law as to what was the nature of the Right R. Krishnammal possessed, even when she instituted O.S. No. 71 of 1958. It is clear than when succession opened to the estate on 1.6.1955 if Section 3(2) applied, then Lakshmiah Naidu would have only a suspended right of survivorship. There is the compromise decree in OS 71 of 1958 under which R. Krishnammal has given up all her rights in the plaint schedule properties in favour of the Lakshmiah branch.109. We find legislative recognition of this concept of interest in joint family in Section 6 of the Hindu Succession Act. Section 6 prior to its substitution by Amending Act 39 of 2005 provided that in the case of male Hindu dying after the Act possessing an interest in Mitakshara coparcenary property, the property was to devolve by survivorship, subject to the proviso.110. Therefore, the concept that what a coparcener in a Mitakshara family had prior to partition, is an interest, is reiterated. For the purpose of Section 6, however, in order to determine the extent of that interest it is deemed to be the share which he would get if there was a notional partition just prior to his death. Partition in the sense of a disruption however determines the extent of share which would devolve under Section 8 of the Act. We make it clear that we must not treated as having pronounced that the notional partition contemplated under the explanation to Section 6 is meant to bring about the demise of the coparcenary as such. The Explanation to Section (30) also speaks of interest as being property which a Hindu could after the Hindu Succession Act bequeath.111. O.S. No. 89 of 1983 is a Suit where there is a declaration of the plaintiffs right sought and also a Decree of Partition. The cause of action is based on the remainder right traced from the terms of the Will dated 10.05.1955. It is apposite to bear in mind one aspect. In a proceeding instituted to obtain probate of a Will, if a contention is raised about the title of the Testator, it would be foreign to the scope of the inquiry to enquire into the title of the Testator. The court, considering the grant or refusal of the probate is only to deal with the question as to whether the Will was the last and genuine Will executed by the Testator. Questions relating to title would have to be pursued before the appropriate Forum (See Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon (2007) 1 SCC 357 ). Would that be the position in the case of the title Suit wherein a plaintiff invites the court to pass a Decree for partition and qua the partition suit, Defendants 1 to 3 who are among the appellants before us, would stand in the shoes of a plaintiff. We would think that O.S. No. 89 of 1983 and even O.S. No. 649 of 1985, are Suits based on title. The question relating to the right to the property involved must be gone into and decided.112. We have already found that in the claim that V. Rangawami Naidu acquired title to the properties by way of oral partition, cannot be accepted. The claim that he had acquired properties by way of self-acquisition, also may not stand. If there has been a disruption in the family status, partition in the narrow sense of a division in title takes place. We have also found that the mere fact that there is a division effected in the joint family, would not mean that, in law, V. Rangaswami Naidu could claim exclusive and absolute ownership qua the items covered under the Will. The plaint schedule properties are, admittedly, part of the properties scheduled to the Will. The result would be that, in terms of the legal principles applicable, we would find that V. Rangaswami Naidu did not have exclusive right as such qua the properties scheduled under the Will.114. The entire reasoning of the Appellate Court is that while one coparcener, even after there is a division, cannot unilaterally appropriate any specific property as his exclusive property, in view of the conduct of the respondents in not challenging the said allotment in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, they cannot be permitted to challenge the nature of the right to the properties. The Appellate Court also relied on the fact that the plaint schedule properties (less than 37 acres) is a small part compared to the large extent of properties which belonged to the coparcenary consisting of the two brothers.115. As far as O.S. No. 71 of 1958 is concerned, the respondents have produced A1-Plaint. As already noted, there was no occasion for adjudication of the matter as the case was compromised. The appellants, in fact, would claim that they are not even bound by the said Decree. This is for the reason that under the said Decree, the plaint schedule properties herein have been recognised as the absolute properties of the respondents. If any reliance is to be placed on the said Decree, then, the fact that under the compromise Decree, the entire rights have been given-up by the life estate holder R. Krishnammal, stares one in his face. A2 is the compromise Decree. It is dated 21.07.1958. The Suit was filed on 10.04.1958. It apparently may have suited the respondents to not allow the matter to go to trial. The testimony of PW1 shows, inter alia, as follows:R. Krishnammal has informed as how much you can give me. R. Krishnammal has asked for one house to live and land for food, otherwise, she did not ask for equal share in the property.116. As far as O.S. No. 36 of 1963 is concerned, A3 is the Plaint. In A4-Written Statement filed by R. Krishnammal-First Defendant, she disputed the case about the compromise and she defended the compromise in O.S. No. 71 of 1958. The respondents were, in fact, initially not parties. We have already noticed that the compromise Decree, which ensued even in the said case, modifying the absolute estate of R. Krishnammal and limiting it to a life estate in regard to Item Nos. 5 and 6, did involve reiteration of the Will.117. It is to be remembered that while on the one hand, R. Krishnammal, in O.S. No. 71 of 1958, set-up the Will, as also the case of oral partition and exclusive ownership of her late husband, she also was willing to adopt the stand of the Lakshmiah branch that her late husband and his brother were not separated. On the said basis, she had also laid a claim based on the Hindu Womens Right to Property Act, 1937, and what is more, also relied upon the Hindu Succession Act. It is this Suit which was compromised. It is certainly not possible to predicate on what basis Lakshmiah branch became amenable for the compromise. It might have been different if the cause of action of R. Krishnammal was based solely on the basis of the Will. In this case, having regard to the alternate case set-up based on the rights available to her, as aforesaid, and noticing that some items out the Will were recognised as her own, and the other items which included items which were included in the Will and also part of the larger joint family property, she has given-up her rights, it cannot be characterised as not using of the opportunity by the Lakshmiah branch to challenge the unilateral allocation by V. Rangaswami Naidu.118. In O.S. No. 36 of 1963 also, as we have already discussed, at the time of the compromise in 1974, the Lakshmiah branch was already party to the compromise in O.S. No. 71 of 1958, under which they had, in fact, recognised the absolute rights in regard to Item Nos. 5 and 6 in favour of R. Krishnammal. It mattered little to them that under the compromise Decree in O.S. No. 36 of 1963, it was to be enjoyed as a life estate by R. Krishnammal and to be not alienated by her. We have noticed that it was stated that no relief was claimed against the other Defendants in the said Suit. The inference drawn by the First Appellate Court based on not making use of the opportunity to challenge the unilateral allocation, in such circumstance, does not appeal to us.119. Coming to the second aspect, the First Appellate Court has noticed the fact that the property belonging to the family, was much bigger, as a result of which the unilateral allotment could not be treated as unjust. It does not address the legal issues. On the basis that there is a division in the joint family status, undoubtedly, V. Rangaswami Naidu would be freed from the stranglehold of the principle that a Hindu could not bequeath his interest in the undivided family. As we have noticed, the moment there is a division, what emerges is the share of the erstwhile coparcener. In this case, there are only two coparceners, viz., V. Rangaswami Naidu and Lakshmiah Naidu. They would have one-half share between themselves. Undoubtedly, if V. Rangaswami Naidu had bequeathed his one-half share, it could not have generated legal controversy. We emphasise that this is subject to there having been a disruption. We have also noticed that if there is a disruption in the Joint Family status and partition in the narrow sense, it produces the consequence that as regards the share of the separated coparcener, his share becomes immune from any claim based on the Doctrine of Survivorship. We have also noticed that a bequest by a member of his interest in an undivided family, was juridically anathema, as under the Doctrine of Survivorship, persons claiming under the birth right over the property, would be preferred to those claiming under a Will. Once, this obstruction over the right of the legal heir is removed in the case of intestate succession, it would be the heirs, who would succeed. If that be so, can not a Hindu, be it before the Hindu Succession Act, bequeath specific properties over which he would have undoubtedly joint rights?We have noticed that during the interregnum, the properties of the family would continue to remain joint[See 1986(1) SCC 366]. In other words, unless there is a partition, qua, the properties, though the shares are ascertained by the partition in the sense of a division in the joint family, no coparcener could point to any specific item and claim it to be his.A Full Bench of the Madras High Court has dealt with this question in the decision reported in Aiyyagari Venkataramayya and another v. Aiyyagari Ramayya (1902) ILR 25 Madras 690 . The pointed question which actually arose before the Court on a reference to the Full Bench was, the effect of the death of the vendor after he effects sale of his interest in the Hindu Undivided Family. The contention apparently raised was, having regard to the Doctrine of Survivorship, if the vendee did not institute a Suit to enforce his rights, while the vendor was alive, the vendee would have no right at all to enforce. Justice Bashyam Ayyangar has authored a separate Judgement wherein he has surveyed exhaustively the entire case law. The learned Judge holds inter alia as follows:The question of a member of an undivided Hindu family alienating family property for his own purposes is not a topic dealt with, as far as I am aware, by any texts of Hindu law or by the commentators. No express authority on the subject can therefore be found in the Hindu law books, and it is questionable whether an alienation by a co-parcener of his undivided share and interest was recognised by Hindu jurists. As observed by the Judicial Committee there can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to be allowed to stand in his vendors shoes and work out his rights by means of a partition Suraj Bunsi Koer v. Sheo Persad I.L.R. 5 Calc.e learned Judge further goes on to state the law in the following terms:A co-parcener may profess to alienate either his undivided share in the whole of the family property or his undivided share in some specified portion of the family property-as in the present case-or the whole of a specified portion of the family property-as in the case in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R. 166. The same thing may take place in the case of involuntary sales also. In all these cases, the sale operates upon the interest and share of the transferor as the same existed at the date of the transfer and the transferee must work out the transfer by bringing a suit for ascertaining what the share and interest of the transferor was at the date of the transfer. Such a suit is not technically a suit for partition and the decree which he may obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property, nor the corporate character of the, however, notice also the following:The claim of a transferee from a co- parcener to work out the transfer is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor. Being a purchaser for value he will have an equity to have such portion or so much thereof as is practicable so allotted, if that can be done without prejudice to the interests of the other sharers. In any suit which may be brought by him to enforce the sale, all the members of the family should be joined as parties as in a partition suit, the subject-matter of the suit being the family property as it existed at the date of the transfer.It appears there is no uniformity in regard to the power of a coparcener to sell his undivided interest.123. Thus, in the case of an alienation by a Hindu, even if it is of a specific property belonging to the joint property, it would be dealt with on an equitable basis, should the alienee bring an action to enforce the same in a properly constituted Suit. The conclusion we would arrive at is that the sale of such a right even over specific immovable property by a coparcener in a Mitakshara Hindu Joint Family does take effect in law where it is permitted and it would not be a case of a void transaction. The purpose of undertaking this discussion is to appreciate the law relating to the power of the coparcener to transfer specific items even if there has been no partition in the sense of a division of title so that we are in a better position to appreciate the question as to whether in a case where a Hindu executes a Will prior to the Hindu Succession Act could, he, by a Will, after a division is brought about in the family bequeath specific immovable property.124. In order to understand this problem in its proper perspective, we must advert to certain vital dimensions. The real principle on the basis of which the interest of a coparcener in a Joint Hindu Family could not be the subject matter of a valid bequest was that the bequest would come into collision with the right to claim property by survivorship vested in the other coparceners upon their birth. Thus, it is a case of a prior right taking precedence over the bequest which can come into force only not from the date of the making of the Will but upon the death of the Testator. This distinction, has apparently allowed courts to recognise an inter-vivos alienation which is possible only when the coparcener is alive of his interest in the Joint Hindu Family as it does not involve a conflict between the right by survivorship and rights sought to be created by the coparcener. However once there is a division, then right by survivorship ceases and there can be objection to said principle applying to a bequest of a specified immovable property. In fact, the case of a will made after division of specific immovable property stands on a different footing and the objection that the sale is by a coparcener when the joint family exists does not hold good.125. The second point of distinction which we may notice is that as noted by Justice Bashyam Ayyangar in Aiyyagari Venkataramayya and another (supra) is that, the right was recognised as an equitable right in favour of an alienee who has purported to purchase the property for valuable consideration. A bequest may be subject to an onerous condition and the rights of the Legatee may become subject to the Doctrine of Election. A bequest, on the other hand, may involve no liability for the Legatee, in which case, he may not bear resemblance to an alienee under the inter-vivos transfer who purchases property for valuable consideration.126. At least, as an equitable claim, can not appellants enforce their right and claim to be allotted the items on the basis that they could be allotted to the share of the Testator as in the case of a transferee from a Hindu of specific immovable property, even when the joint family continues to exist? We have noticed that the law does not render such transferee helpless. No doubt, one of the conditions which has been evolved in by Justice Bashyam Ayyangar in the decision in Aiyyagari Venkataramayya (supra) is that all the sharers must be on the party array. In this case, the said requirement is fulfilled as they are represented as Defendants 4 to 11 is O.S. No. 89 of 1983. No doubt, we notice that another requirement, in such a case, would be that all the properties of the joint family are scheduled. This requirement is not seen fulfilled and the frame of the Suit is based on exclusive title of the plaintiff and Defendants 1 to 3 which is based on bequest.127. About the extent of property belonging to the family, it is relevant to notice that PW1 has deposed, inter alia, as follow:My brother Baktachalam gave an extent of 750 acres of land in Kollegal Village, Satyamangalam to his father in the name of Government assignment in the year 1944. Those 750 acres of land are under our family possession. My father had purchased an extent of 150 acres of land in Coimbatore from 1932 to 1958 in my name and Ramathal. More than 1,000 acres of land were purchased from 1944 to 1958 in their family. V. Rangaswami Naidu is having right upon 1,000 acres of land purchased in Kollagal, Kollangodu, Coimbatore and Tanjore. I know that R. Krishnammal has right over 1,000 acres of land. R. Krishnammal did not claim share in 1000 acres of land in A1. When we settled the matter and gave the share to R. Krishnammal, we did not take into account of an extent of 1,400 acres of land. R. Krishnammal did not claim share as she is having right over more than 700 acres of land.Above is the picture regarding the availability of the family properties. They are of course not scheduled in the Plaint. We are not exactly aware of the value of these lands.128. We would certainly think that the Legatee under the Will, left behind by a Hindu after there is division in the family status in regard to specific properties belonging to the family, would indeed have rights qua the property but limited to the share of the Testator. It cannot be a principle of law in the region of controversy that a man cannot ordinarily transfer a right greater than what he himself has. Even under the Indian Succession Act, under Section 59, there could be no prohibition in V. Ranagaswami Naidu bequeathing his share, if there was division. We have already noticed that in a bequest, the equitable consideration available to a transferee by an intra-vivos transaction, wherein he has paid valuable consideration, may not apply. But this cannot mean that, if everything else is proved, the legatee shouldbe left remediless. We did toy with the idea of considering holding in favour of the appellants even treating it to be an exercise of powers under Article 142 of the Constitution of India in the special facts of this case as brought out by the testimony of PW1 as regards the inequity involved. No doubt, we find the frame of the Suit hardly helpful to the appellants. But having regard to the fact that the appellants must fail otherwise, we need not explore this matter further.We do not think there is any merit in this argument. It may be true that though no issue as such was raised, the trial court was indeed called upon by the parties to answer this question. What is involved essentially is the reading the contents of the will so as to ascertain whether it has the impact of being the declaration of an unequivocal intent of the coparcener to separate.In order that Section 3(2) of the 1937 Act applies, V. Rangaswami Naidu must have died intestate, leaving behind an interest in the Hindu Undivided Family. What the appellants are calling upon us to do is to take a part of the Will which allegedly contains the declaration which in law, effects division. But if the Will is to be acted upon, then the conundrum which exists is, it could not be said that V. Rangaswami Naidu died intestate qua the properties which are the plaint scheduled properties. In fact, Section 5 of the 1937 Act has defined the words die intestate to mean that a person shall be deemed to die intestate in respect of all property of which he has not made a testamantary deposition which is capable of take effect . On the one hand, the appellants would require this Court to hold that B10-Will should govern the rights of the parties and that it is capable of taking effect. If it is not found capable of taking effect, the cause of action would fail. If, therefore, we proceed on the basis that there is a will Section 3(2) did not apply, and R. Krishnammal, the widow, would get no right under Section 3(2). If she did not get any right under the Act with regard to the properties governed by the Will, then, the law relating to survivorship, under which Lakshmiah Naidu would succeed to the estate of his brother, would spring into being immediately on the death of V. Rangaswami Naidu on 01.06.1955.We may also, in this regard, turn to the contents of the Will, which we have already extracted in paragraph-77 hereinbefore. It will be noted that the Will starts off with the statement by the Testator that he owned the properties which included properties allotted in a partition and also which he acquired by independent purchases. Thereafter, he states that he had been a divided member since 1932 onwards. None of these statements would constitute a declaration. We have found that the case of partition in 1932 and independent purchases have been found against the appellants by three courts. Thereafter, there is only the statement that he has, in order to avoid any uncertainties, made an open declaration of his divided status today. It may be difficult for us to accept this statement as a declaration sufficient in law to cause a division. However even for a moment that it would work out as a declaration, we would think that the law laid down by this Court in Addagada Raghavamma (supra), may pose obstacles insuperable in nature, for the appellants.While it may be true that under the Doctrine of Relation Back and proceeding on the basis that the contents, as noted in the Will, amounted to a clear declaration to separate and that it would have effect from 10.05.1955, we cannot be oblivious to the creation of the vested rights. If the matter is to be governed under Section 3(2) of the 1937 Act, as already noted, it must be a case where V. Rangaswami Naidu died intestate. Therefore, if we proceed on the basis that there is a Will as indeed we must to accept the case of the appellants, Section 3(2) will not apply. If Section 3(2) does not apply, the claim to the property by survivorship, would arise, which would be fatal to the appellants case, for the reason put forth by Shri Guru Krishnakumar, learned Senior Counsel, as noted above. That is to say, in the facts of this case, in view of the division being communicated through the Will only after the succession had opened, and even allowing for the division to have effect from 10.5.1955 when the will was made, the vested right of Lakshmiah Naidu to claim by survivorship would spring into existence on 01.06.1955 when his brother died and the subsequent communication based on the Will cannot take away vested right which became available proceeding on the basis of the Will relating to the plaint schedule properties (see in this regard para 34 of Addagada Raghavamma (supra).134. In O.S. No. 649 of 1985, filed by the respondents, it is averred that the plaint scheduled properties were joint family properties of the two brothers and it is further averred that there was no partition between them and they were living as joint family till the death of V. Rangaswami Naidu in 1955. In paragraph-5 of the Plaint, it is specifically averred that, till the death of V. Rangaswami Naidu, he and his brother constituted a joint family and there was no division in status between them, and on the death of V. Rangaswami Naidu, the surviving coparcener took all the properties by survivorship. In the Written Statement, which is filed on the appellants side (viz., the Second Defendant), we notice the following pleading in paragraph-3 of the Plaint:3. R.V. Lakshmiah Naidu and V. Rangaswami Naidu were brothers. They were divided and living separately. They were cultivating their lands separately. The claim of the plaintiffs that R.V. Lakshmiah Naidu and V. Rangaswami Naidu were living as joint family and that there was no division in status till the death of V. Rangaswami Naidu is false. The joint family status between the brothers was duly disrupted and put an end to. There was also division of properties, and each was enjoying his respective properties separately. V. Rangaswami Naidu also purchased lands independently.135. No doubt, in O.S. No. 89 of 1983, what is averred is that the properties belonged to one V. Rangaswami Naidu. It was further averred in paragraph-9 of the Plaint that the brothers had divided the properties as early as in 1932. Out of the nine items scheduled in the Plaint (viz., O.S. No. 89 of 1983), Item Nos. 1 to 3 and Item Nos. 6 to 9 were allotted to the share of V. Rangaswami Naidu and were in his possession. Item Nos. 4 and 5 were purchased by V. Rangaswami Naidu long after the partition and belonged to him absolutely. We must also not lose sight of the fact that the averments in the later Suit (viz. O.S. No. 89 of 1983), makes reference to the allegations in O.S. No. 649 of 1985 (the number of the Suit after renumbering). Still further, we notice that when the issues were framed, the first issue was whether the Will executed by V. Rangaswami Naidu is true and valid and whether it came into force. A separate issue (Issue no. 2) was framed as to whether there was an oral partition. It is also noticed that in the discussion, the matter was debated before the Trial Court on the basis that by the publication of notice on 12.05.1955 in Navva India newspaper, there was division of the property.