Case: Kallyani Vs. Narayanan And Ors

Bom LR 461), an ikrarnama was produced which showed that defined shares in the whole estate had been allotted to the several coparceners. There was a passage which gave liberty to any of the parties either to live together as a member of the joint family or to separate his own business Mahabir was given four annas share and others defined shares in the remainder. Contention raised was that Mahabir alone separated and others remained joint. Subsequent conduct was relied upon to substantiate the contention that they remained together. Negativing this contention it was held that the ikrarnama effected a separation of estate even if the parties elected either to have a partition of their shares by metes and bounds, or to continue to live together and enjoy their property in common as before. Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property on their interest in it. The ikrarnama effected a separation in estate, its legal construction and effect could not be controlled or altered by the subsequent conduct. Once the shares were determined and allotted, it was held consistently with Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1) that this converted them from joint holders into tenants-in-common.27. In Boddu Venkatakrishna Rao v. Boddu Satyavathi, the following passage in Mullas TRANSFER OF PROPERTY ACT (Fifth Edn.), was approved :"The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family."28. Once disruption of joint family status takes place as Lord Westbury puts it in Appoviers case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1), it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties.29. Now, in this case Ex. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wifewise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Therefore, tavazhi wife-wise stated in Ex. P-1 have to be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ex. P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of reunion as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so-called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants-in-common.30. There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.31. In view of our conclusion that since the execution of Ex. P-1 on January 25, 1910 or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property and left the family there was a disruption of the joint family and the sons of the Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the plaintiff would be entitled to and therefore, there would be a preliminary decree in her favour to that effect. Plaintiffs claim to a share in that properties set out in Schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan. This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed. Therefore, plaintiffs suit with regard to a share in B and C schedule properties has been rightly dismissed.32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kalyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kalyani. Both had applied to the exclusion of each other for being substituted as legal representative of the deceased. For purposes of this appeal both were substituted for the deceased appellant. It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kalyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter.

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

Explanation:
1[ds]Thus, when property is described as tarvad property in a broad sense it is admitted to be joint family property. This also becomes clear from the recital in Ex. P-1 that properties in A and B schedules were tarvad properties in C schedule were claimed by him as his self-acquired properties and they were to be kept joint and were not sought to be dealt with by Ex. P-1. Therefore, to the extent Ex. P-1 purports to dispose of ancestral properties by will it would be ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral properties in his hand. And he has not attempted to dispose of his undivided share in the ancestral properties by Ex. P-1 it is not necessary here to examine the question whether Mitakshara law as administered in Tamil Nadu and Kerala enables as undivided coparcener to dispose of his share in joint family property by will. Therefore, Ex. P-1 is not effective as a will and the respondents did not invite us to affirm their rights under Ex. P-1 as if it is a bindingHindu father joint with his sons and governed Mitakshara law in contradictions to other manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his sons with himself as well as amongst his sons inter se without the consent and this large power to divide the property by metes and bounds and to allocate the shares to each of his sons and to himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family status which must either precede to be simultaneously taken with partition of property by metes anddoes, therefore, appear that a Hindu father governed by Mitakshara law has power to partition the joint family property belonging to the joint family consisting of himself and his sons and that this power comprehends the power to disrupt joint familythough the father has a right to make a partition of the joint family property in his hand, he has no right to make a partition by will of joint family property amongst various members of the family except, of course, if it would be made with theirif by Ex. P-1 Karappan attempted to make a partition of the property by his will, Ex. P-1 would be ineffective as a partition. By Ex. P-1 Karappan does (sic did) not divide his property by metes and bounds vesting the share of each in present in each of his sons.14. One thing that is not in dispute is that Karappan did not intend Ex. P-1 to be effective from the date on which it was executed. In his own words he states that he was seriously ill and as he would like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his property shall be enjoyed after his death in the manner stated in Ex. P-1. He reserved to himself the full powers of disposition over all the properties more particularly described in the various schedules annexed to Ex. P-1 during his lifetime and whatever directions were given in Ex. P-1 were to be effective after his death. It is, therefore, inescapable that Ex. P-1 was not to be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed. It was to be effective from a future date and that future uncertain event was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will. Further, there was no effective partition by metes and bounds by Ex. P-1 though the shares of sons were specified as also the provision for female members was made. If intention of the testator is to be gathered from the language of Ex. P-1 Karappan intended it to be a will to be effective after his death. He never intended it to be a partition in presenti. Therefore, Ex. P-1 cannot be effective as a deed of partition in the broader sense, i.e., partition by metes andHigh Court after referring the Brijraj Singh case (40 IA 161 : ILR 35 All 337 : 15 Bom LR 652) overlooked the fact that in accepting the deed before it, the Judicial Committee was impressed by the fact that it was intended to speak from the on which it was written and not future date, viz., death of the writer. Exhibit P-1 in terms reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death. The High Court completely overlooked this material difference. Assuming that Ex. P-1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to a share, to the terms of Ex. P-1 when it was executed, the absence of any dispute at or about the time Ex. P-1 was executed amongst the members of the family sought to be settled by Ex. P-1, and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that Ex. P-1 would furnish evidence of family arrangement. We have grave doubt whether a Hindu father can impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death. Therefore, Ex. P-1 does not furnish evidence of family arrangement.17. Now, if Ex. P-1 cannot be effective as a deed of partition inasmuch as it did not result in division of property by metes and bounds, its effect on continued joint family status may be examined. If it is disrupted joint family status by its very execution, there was thereafter no question of directing any family arrangement to be effective from a future date as per its terms and even though it may spell out a family arrangement what effect disruption of joint family status would have on the mode of succession has to bethe mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a member joint family can separate himself from other members of the joint family and is on separation entitled to have his share in the property ascertained and partitioned off for him and that the remaining coparceners without any special agreement amongst themselves may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated fromis no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or they remained united. Except that four sons by Nani remained under one roof and were joint in food and laboured together there is no evidence that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be created by agreement. And if Karappan specified even the share of each of his sons by Nani in Ex. P-1, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four sons constituted a coparcenary. Ex. P-1 could not support such a conclusion and High Court was in error in spelling out such conclusion from Ex. P-1 overlooking its specific direction of a specified share of each of his sons and liability to pay owelty.Now, in this case Ex. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wifewise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Therefore, tavazhi wife-wise stated in Ex. P-1 have to be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ex. P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of reunion as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so-called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants-in-common.30. There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.31. In view of our conclusion that since the execution of Ex. P-1 on January 25, 1910 or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property and left the family there was a disruption of the joint family and the sons of the Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the plaintiff would be entitled to and therefore, there would be a preliminary decree in her favour to that effect. Plaintiffs claim to a share in that properties set out in Schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan. This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed. Therefore, plaintiffs suit with regard to a share in B and C schedule properties has been rightly dismissed.32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kalyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kalyani. Both had applied to the exclusion of each other for being substituted as legal representative of the deceased. For purposes of this appeal both were substituted for the deceased appellant. It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kalyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter.