Case: Potti Lakshmi Perumallu Vs. Potti Krishnavenamma

1. This is an appeal by special leave from the judgment of the High Court of Andhra Pradesh affirming the decrees for partition and separate possession of certain movable and immovable properties, passed by the second Additional Subordinate Judge, Vijayawada.2. The genealogical table showing the relationship between the parties set out below will be of assistance in appreciating the facts of the case :POTTI SUBBA RAO(died in 1919)First wife Sitaramaiah (died on 10-8-1938) Second wife(Plaintiff) Krishna venamma Lakshmi Perumallu(defendant) Krishnamurti (died in 1930)Pulla Rao (died in 1939)Potti Subba Rao who died in the year 1919 was survived by three sons Sitaramiah, Lakshmi Perumallu and Krishnamurti. Sitaramaiah was married twice. From the first wife he had a son named Pulla Rao. After the death of the first wife he married Krishnavenamma, the plaintiff in the suit. Sitaramaiah died on August 10, 1938. No issue was born to Krishnavenamma who was only 14 years of age at the time of Sitaramaiahs death. Pulla Rao died in the year 1939 at the age of 11 years. Krishnamurti died in the year 1930 i.e. , before sitaramaiah, without leaving any issue or a widow. The plaintiff continued to stay in the same house as the defendant till the beginning of July, 1950. Then she suddenly left the house and instituted the suit in question on the 6th of that month. According to her Sitaramaiah and his two brothers, the defendant and Krishnamurti, acquired large movable and immovable property at Vijayawada, described in the schedule to the plaint, with the aid of their ancestral business. She claimed half share in the entire property set out in the schedules, by virtue of the provisions of the Hindu Womens Rights to Property Act, 1937. She admitted that her husband had purported to execute a will before his death but contended that it was inoperative because he was a member of a Hindu joint family at the time of his death.3. The defendant contested the claim on various grounds. According to him there was no ancestral property and the suit properties were acquired by the brothers by their individual efforts and treated as self-acquisition. Further according to him the will executed by Sitaramaiah is vali and binding on the plaintiff and that the property allotted to the plaintiff under the will was being enjoyed by the plaintiff and further the properties allotted to Pulla Rao devolved upon him after Pulla Raos death. Lastly, according to him even if the property were held to be joint family property of Sitaramaiah and the defendant the plaintiff would be entitled only to 1/4th share in them and not half share.4. The courts below have found that the suit properties were the joint family properties of Sitaramaiah and the defendant, that the will executed by Sitaramaiah was inoperative and not binding on the plaintiff and that the plaintiff is entitled to half share in the suit properties. The trial court give direction to the effect that a commissioner be appointed for ascertaining the property liable to be partitioned and for dividing them into two equal shares by metes and bounds for the purpose of awarding to the plaintiff the separate possession of her half share in the properties.

Reasoning:
It seems to us difficult to infer from the recitals in these paragraphs that Sitaramaiah had expressed his unequivocal intention to get separated in status. No doubt, in the 4th paragraph he has observed that in certain circumstances certain property will be included in the half share of the property that would pass to his son after his death and he has also said in paragraph 5 that the plaintiff shall be at liberty to take possession of the two properties indicated in paragraph 4, enjoy them during her lifetime and that on her death they will pass to Pulla Rao. But in paragraph 6 he has referred to the remaining property as "joint property" and has repeated that in paragraph 7. Again, what he has said in paragraph 8 militates wholly against the inference of separation in status. There he has enjoined upon the defendant to keep the remaining property joint till Pulla Rao attained majority, manage the same and divide that property between himself and Pulla Rao after the latter attained majority. Nowhere in the will has he stated that he wanted to put an end to the coparcenary. Indeed, the very assertion which has been concurrently found to be untrue that the property was not joint-family property would preclude an inference that Sitaramaiah intended to express his intention to separate in status and put an end to a coparcenary which, according to that assertion, in fact did not exist. In the circumstances we cannot accept the first contention of Mr. Desai.7. No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a court of law. But before the court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon. It is quite clear that there is complete absence of evidence to show that there was such an occasion or the arrangement indicated in the will was acted upon. The letter Ex. B-12 upon which reliance was placed before the High Court on behalf of the defendant has not been found by it to be genuine. The defendant had also pleaded that the provisions under the will were given effect to but no satisfactory evidence has been adduced to prove that the plaintiff was in enjoyment of the properties allotted to her under the will. We cannot therefore, accept the second contention of Mr.seems to us that the learned Judges were not quite correct in saying that the property of one person can, off his death, devolve on another only by survivorship or by inheritance and in no other way. For, it is competent for the legislature to confer a right on a person to get the property of another on the latters death in certain circumstances. This is precisely what has been done by the legislature in enacting S. 3, sub-s. (2) of the Hindu Womens Rights to Propertywe have already pointed out the interest devolving upon the widow need not necessarily be either by survivorship or by inheritance but could also be in a third way i.e., by statute and where the interest is taken by her under a statute no further difficulty arises.The High Court itself referred to the decision in AIR 1954 Mad 576   (FB) which is a decision of the Full Bench constituted for resolving an apparent conflict between the decisions in Chinniah Chettiar v. Sivagami Achi, AIR 1945 Mad 21   and Subba Naicker v. Nallammal, AIR 1950 Mad 192  . In the opinion of the Full Bench there was really no conflict between the two decisions and that the right conferred by the Hindu Womens Rights to Property Act was a new right in modification of theone. The Full Bench further held that S. 3(2) of tie Act does not bring about a severance of interest of the deceased coparcener, that his widow is not raised to the status of a coparcener though she continues to be a member of the joint Hindu family as she was before the Act, that, the joint family would continue to exist as before subject only to her statutory rights and that the rights of the other members of the family would be worked out on the basis that the husband died on the date when the widow passed away the right to survivorship being suspended till then. Further according to the Full Bench a widow can under the Act claim a share not only in the property owned and polsessed by the family at the time of his death but also in the accretions arising therefrom, irrespective of the character of the accretions. The various decisions to which we have adverted rest on the view that the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu widows estate. This interest is in substitution of her right under theHindu law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to those decisions her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. In our opinion these decisions lay down the law correctly. To hold, as contended for by Mr. Desai and as would appear from the two decisions upon which reliance was placed by him before usJadaobai v. Puranmal, ILR (1944) Nag 832 : (AIR 1944 Nag 243) and Siveshwar Pradsad v. Har Narain, ILR 23 Pat 760 : (AIR 1945 Pat 116  ), would mean that whenever acoparcener in aHindu joint family dies leaving a widow a disruption takes palce in the family. For, unless a disruption is deemed to take place, it would not be possible for the widows share to be crystallised.