V. KALYANASWAMY (D) BY LRS. & ANR. versus L. BAKTHAVATSALAM (D) BY LRS. & ORS.
[2020] 9 S.C.R. 619, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Issues
A
B
C
D
E
F
G
H
619
V. KALYANASWAMY (D) BY LRS. & ANR.
v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
(Civil Appeal Nos.1021-1026 of 2013)
JULY 17, 2020
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Hindu Succession Act, 1956 – Death before enactment of –
Effect of – One ‘RVN’ had two sons (‘LN’ and ‘RN’) and five
daughters – ‘LN’ had four sons – ‘RN’ was married to ‘RK’, they
did not have any issue – ‘RN’ passed away on 01.06.1955 –
Litigation ensued between the parties (in five stages) inter alia
through various suits – Present appeals arise out of two civil suits
(fifth stage/the present litigation), one filed by ‘LN’s’ branch
(respondents) and the other by one of the four legatees (appellants-
nephews of ‘LN’ and ‘RN’) under a Will (dtd.10.05.55) allegedly
executed by ‘RN’ – Appellants claimed severance of the Joint Hindu
Family alleging oral partition between ‘RN’ and ‘LN’ in 1932 –
Aforesaid Will was alleged to have been executed by ‘RN’ appointing
‘RK’s’ nephew as executor – Divided status was declared by way of
notice allegedly dated.10.05.1955 in a newspaper, on which reply
dated.11.05.1955 was sent by ‘LN’ – Respondents denied appellants’
case – Trial court decreed respondents’ suit – First Appellate Court
allowed the appeals filed by the appellants – High Court inter alia
found that the Will could not be relied upon, as the requirement
u/s.68, 1872 Act was not fulfilled and restored the decree of trial
court – Held: s.69, 1872 Act manifests a departure from the
requirement
embodied in s.68 – In the present case, requirement of
proof of Will u/s.69 are fulfilled – Respondents failed to prove that
the Will is vitiated – Will was indeed executed by ‘RN’ and was his
last will – However, the notice is dated.12.05.1955 in which case
the reply being sent on 11.05.1955, becomes impossible – If there is
no reply sent on 11.05.1955, then, it will not be possible to attribute
communication of the notice to separate to ‘LN’ – Thus, though
there was a publication made, knowledge of the same cannot be
attributed to ‘LN’, before the death of his brother – Therefore, since
there was no division brought about by ‘RN’ before his death, the
Will would be invalid and end of the road for appellants – Further,
[2020] 9 S.C.R. 619
619
A
B
C
D
E
F
G
H
620
SUPREME COURT REPORTS
[2020] 9 S.C.R.
‘RN’ died on 01.06.1955, i.e. before the enactment of 1956 Act –
Thus, when he died, he left behind an interest in the Hindu joint
family – When succession opened to his estate, s.3(2), 1937 Act
would apply – A limited estate sprung in favour of his widow, ‘RK’
which bloomed u/s.14 (1), 1925 Act into an absolute estate – When
she compromised in O.S No.71 of 1958 giving up her rights over
the property including the plaint scheduled property in these cases,
it conferred absolute rights in favour of ‘LN’s’ branch – Code of
Civil Procedure, 1908 – Or.II, r.2 – – Transfer of Property Act, 1882
– s.19 – Evidence Act, 1872 – ss.3, 33, 40-43, 68, 69, 71 – Hindu
Women’s Right to Property Act, 1937 – ss.2, 3, 5 – Code of Criminal
Procedure, 1898 – s.145 – Estoppel/Waiver/Acquiescence – Indian
Succession Act, 1925 – ss.57, 59, 63, 119, 211 – Hindu Succession
(Amendment) Act, 2005 – s.6 – Doctrine of Relating Back – Doctrine
of Survivorship – Hindu Wills Act, 1870 – Indian Succession Act,
1865 – Probate and Administration Act, 1881.
Code of Civil Procedure, 1908 – Or.II, r.2 – Scope of –
Discussed.
Code of Civil Procedure, 1908 – Or.II, rr.2, 3 – Held: Be it
the omission or intentional relinquishment of a claim arising out of
a cause of action under Or. II, r.2(2) or not seeking a relief under
Or. II, r.2(3), the fatal consequences they pose, will arise only if the
cause of action is the same.
Transfer of Property Act, 1882 –
s.19 – Commonality between
s.19 and s.119, 1925 Act – Discussed – Indian Succession Act, 1925
– s.119.
Evidence Act, 1872 – s.33 – Applicability of – Held:
Applicability of s.33 does not depend upon the nature of the decision
which is rendered in the earlier proceeding.
Evidence Act, 1872 – s.33 – Held: Requirements u/s.33 are
not to be confused with the ingredients to be fulfilled even in a case
u/s.11, CPC – Code of Civil Procedure, 1908 – s.11.
Evidence Act, 1872 – First proviso to s.33 – ‘representative
in interest’ – Interpretation of – Held: ‘representative in interest’, is
to be understood liberally and not confined to cases where there is
privity of estate and succession of title.
A
B
C
D
E
F
G
H
621
Evidence Act, 1872 – s.68 vis-à-vis s.69 – Held: s.69 manifests
a departure from the requirement embodied in s.68 – In a case
covered u/s.69, the requirement pertinent to s.68 that the attestation
by both the witnesses is to be proved by examining at least one
attesting witness, is dispensed with.
Evidence Act, 1872 – s.69 – Evidence conforming to the
requirements under – Duty of Court – Held: In a case, where there
is evidence appearing to conform to the requirement u/s.69, the
Court is not relieved of its burden to apply its mind to the evidence
and find whether the requirements of s.69 are proved – Reliability
of the evidence or the credibility of the witnesses is a matter for the
Court to still ponder over.
Hindu Law – Will – Capacity to make – Held: 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
be robbed 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.
Hindu Law – Will – Burden to prove – Held: 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 – Burden to prove that the Will is procured
by coercion, undue influence or fraud is on the one alleging the
same.
Hindu Law – Joint Hindu Family –
Partition – Meaning of
and its implications – Discussed – Hindu Succession Act, 1956 –
ss.6 and 30.
Hindu Law – Property of the joint family – Right of the
coparcener – Held: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 – 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.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
622
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Hindu Law – Right of a Hindu to make a Will, before and
after 1956 Act  – Discussed – Hindu Succession Act, 1956 – s.30.
Hindu Women’s Right to Property Act, 1937 – s.3 – Application
of – Held: s.3 of the 1937 Act applies when a Hindu dies intestate.
Hindu Women’s Right to Property Act, 1937 – Contrast
between ss.3(1) & (2)– Discussed.
Hindu Succession Act, 1956 – Explanation to s.30 – Held:
Under Explanation to s.30, it is open to a Hindu to even bequeath
his interest in the Hindu Joint Family property.
Hindu Women’s Right to Property Act, 1937 – Effect of demand
for partition by a widow, on coparcener’s claim based on doctrine
of survivorship – Held: 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 annihilate the said right – Right to claim by Survivorship came
to be suspended but not extinguished – Widow, though not a
coparcener, was like a coparcener in most respects – She was also
conferred with the right to claim partition – Doctrine of Survivorship.
Practice & Procedure – Principle of no evidence, if no
pleading – When not applicable – Discussed.
Evidence Act, 1872 – ss.40-42 – When not applicable –
Discussed.
Hindu Law – Joint Hindu Family – Separation from – Notice
to other coparceners – When complete – Held: Notice in a
newspaper
serves as a notice by a coparcener to effect division – However,
merely causing a notice to be published, without there being evidence
to show that the intended recipient became aware of it, may not
suffice – There cannot be a presumption that a person has read a
particular newspaper, and even more importantly, that he has read
the notice.
Hindu Succession Act, 1956 –s.14(1), (2) – Applicability of –
Discussed.
Words & Expressions– ‘Interest’, of a coparcener in a joint
Hindu family property – Meaning of – Discussed.
A
B
C
D
E
F
G
H
623
Dismissing the appeals, the Court
HELD: 1. THE PROPERTY AT STAKE
The property in dispute, in both the Suits (O.S. No. 89 of
1983 and O.S. No. 649 of 1985- fifth stage/the present litigation,
which generated the present appeals), is the same. In the Will
dated 10.05.1955, there were sixteen items. In O.S. No. 71 of
1958 (second stage of litigation), R. Krishnammal was conferred
with absolute rights in respect of seven items. The property
involved in O.S. No. 36 of 1963 (third stage of litigation) 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 (fourth stage of litigation)
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.
[Para 44][693-B-D]
2.1 THE EFFECT OF ORDER II RULE 2 OF THE CPC
The contention raised by the respondents is, inter alia, that
O.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code of
Civil Procedure, 1908. This is for the reason that when two out
of the four appellants have instituted O.S. No. 36 of 1963, they
scheduled
only seven items in the said Suit. It was open to the
appellants to claim the relief which they have claimed in the
present Suit. Having not sued in respect of the items of properties
other than the items scheduled in O.S. No. 71 of 1958, they are
barred under Order II Rule 2 of the CPC. Order II Rule 2 (2) of
the CPC postulates a situation where a plaintiff omits to sue in
respect of any portion of his claim or intentionally relinquishes
any portion of his claim.  Then, he is debarred from suing in respect
of the portion so omitted or relinquished. A plaintiff entitled to
more than one relief arising from the same cause of action, can
do two things. He may sue in respect of all the reliefs arising
from the same cause of action in the same suit. He may, if he
omits to sue for one or more of the reliefs open to him under the
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
624
SUPREME COURT REPORTS
[2020] 9 S.C.R.
same cause of action, seek leave of the court to sue for all such
reliefs, and if the court grants such leave, then, he may institute
a suit, though based on the same cause of action in the earlier
suit, in a fresh suit. The effect of not seeking the leave of the
court, however, in regard to any of the reliefs, which it was open
to him to sue for on the same cause of action, is that, he is barred
from suing for any other reliefs so omitted.  The difference
between Order II Rule 2(2) and Order II Rule 2(3) of the CPC
may be noticed. The law contemplates a distinction between a
case where a claim arising out of the cause of action is either
intentionally relinquished or omitted to be sued upon.  Such a
claim cannot be the subject matter of a fresh suit. However, when
more than one reliefs are available stemming from the same cause
of action, then, seeking further reliefs than sought in the first
suit, except where leave is obtained, would be barred. However,
present the grant of leave by the court, his subsequent suit
seeking the reliefs which were originally not sought but for which
leave is granted, is permissible. The principle of this provision is
actually captured in Order II Rule 2 (1) of the CPC which is that
every suit is to include the whole of the claim which arises out of
the cause of action and which the plaintiff is entitled to make. It
further declares that it is open to a plaintiff to omit any portion of
the claim. However, the consequences of the same are declared
in Order II Rule 2 (2) of the CPC. 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. O.S. No. 36 of 1963 was
filed seeking a declaration that R. Krishnammal had only a life
A
B
C
D
E
F
G
H
625
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. 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. 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.
[Paras 46-50][693-E-G; 694-C-H; 695-A, H; 696-A-C, H; 697-
A-B]
Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions
(P) Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 – relied
on.
2.2 Section 119 of the Indian Succession Act, 1925 deals
with the date of vesting of legacy when, inter alia, possession is
postponed. Section 19 of the Transfer of Property Act, 1882 deals
with vested interest. 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. 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
626
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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.
[Paras 50-52][697-C; 698-A; E-H; 699-A-C]
2.3 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 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, 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. 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. O.S.
No. 36 of 1963 was more as a protective action by persons who
had vested interest in the property under Section 119 of the Indian
Succession Act, 1925. 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. [Para 54][699-F-H; 700-A-B]
A
B
C
D
E
F
G
H
627
3.1 THE IMPACT OF THE PROCCEDINGS AND THE
DECREE PASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36
OF 1963 AND O.S NO. 732 OF 1981
ESTOPPEL, WAIVER, ACQUIESCENCE
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.
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. 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. O.S. No. 36 of 1963 came to be
filed by two of the four 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
628
SUPREME COURT REPORTS
[2020] 9 S.C.R.
it, which this Court 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,
paragraph-11 of the Plaint has already been noticed. 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. As already indicated,
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 this Court is 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. [Paras 55, 56][700-D-G; 701-A-H; 702-A-
C]
3.2 In the compromise Decree in O.S. No. 36 of 1963, the
plaintiffs have stated that they are not seeking any relief against
the other defendants which include the Lakshmiah branch. From
A
B
C
D
E
F
G
H
629
this, it is sought to be contended that the interest of the branch
of Lakshmiah Naidu, which stood secured under the compromise
Decree of O.S. No. 71 of 1958, whereunder R. Krishnammal had
given up her rights in regard to all properties other than the
seven items over which she was conferred absolute rights, was
left undisturbed and unimpeached. This conduct is emphasised
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. 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, interalia, 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. 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
630
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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. The following conduct
could also be deduced. 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, this Court is not oblivious
to the dimensions projected, it
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. The respondents who
were not parties to O.S. No. 732 of 1981, cannot set-up a case of
estoppel. [Paras 57][702-D-H; 703-A-H; 704-A]
Sha Mulchand & Co. Ltd. (In Liquidation), By Official
Receiver, High Court, Madras v. Jawahar Mills Limited
Salem AIR 1953 SC 98 : [1953] SCR 351; Dr. Karan
Singh v. State of J&K and Another (2004) 5 SCC 698 :
[2004] 1 Suppl. SCR 43 – relied on.
4.1 WHETHER THE WILL DATED 10.05.1955 HAS
BEEN PROVED
[Sections 33, 68 and 69 of the Evidence Act]
The Will in question is an unprivileged Will. The mode of
making an unprivileged Will is provided in Section 63 of the Indian
A
B
C
D
E
F
G
H
631
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. Section 68 of the Indian Evidence Act, 1872 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. Though the expression
used in Section 69 of the Indian Evidence Act, 1872 is ‘if no such
attesting witness can be found, inter alia, it bears the following
interpretation’. The word ‘such’ before ‘attesting witness’ is
intended to refer to the attesting witness mentioned in Section
68 of the Evidence Act. As far as the expression ‘found’ is
concerned, it would cover a wide variety of circumstances. It would
cover a case of an incapacity to tender evidence on account of
any physical illness. It would certainly embrace a situation where
the attesting witnesses are dead. Should the attesting witness be
insane, the word “found” is capable of
comprehending such a
situation as one where the attesting witness, though physically
available, is incapable of performing the task of proving the
attestation under Section 68 the Evidence Act, and therefore, it
becomes a situation where he is not found. In this case, there is
no dispute that both the attesting witnessing were not alive at
the relevant time. [Paras 58, 59, 61 and 64][704-B-D, E, G; 705-
A-B; 706-C]
4.2 The contention of the respondents appears to be only
that, in the proceeding under Section 145 of the CrPC, 1898 (first
stage of litigation), 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
632
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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. Further the nature
of Section 145 proceedings is highlighted as not one attracting
the 3rd proviso. 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. 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.  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. On this basis, as Exhibit-B7
(deposition of the one of the attesting witnesses in the Will, in
proceedings under Section 145 of the CrPC) 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. [Paras 66-68][707-D-F; 708-G-H; 709-A-E]
4.3 Section 69 of the Evidence Act manifests a departure
from the requirement embodied in Section 68 of the Evidence
A
B
C
D
E
F
G
H
633
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. The requirement in
Section 69 of the Evidence Act 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. [Paras 70, 71][710-C-H; 711-A]
4.4 Section 69 speaks about proving the Will in the manner
provided therein. The word ‘proved’ is defined in the Evidence
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
634
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Act in Section 3. The question would be whether having regard
to the evidence before it, the Court can believe the fact as
projected in the evidence as proved. 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 is 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 establishes
requirement of Section 69 in regard to the signature of one of the
attesting witnesses being proved in his handwriting.  There is no
reason to doubt the testimony. As far as signature of the testator
is concerned, apart from B7 and B13, the executor has spoken
of the testator signing. Also, PW1 (the witness on behalf of the
respondent) 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. [Paras 73, 74][712-B-H]
5. WHETHER RECEPTION OF B10 (CERTIFIED COPY
OF THE WILL) AS SECONDARY EVIDENCE LEGAL?
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. There is no reason to take a different view and
A
B
C
D
E
F
G
H
635
the view taken by the High Court cannot be sustained. 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 this Court. However, the matter did not go to
trial. 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. [Paras 76, 77][713-C-G]
6. THE WILL: WHETHER IT IS THE GENUINE WILL
OF RANGASWAMI NAIDU? WHETHER IT IS VITIATED ON
ANY GROUND?
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 be robbed 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.
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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
636
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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. 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 won’t 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. It has
already been 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 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, the view taken by the first appellate court
regarding the will cannot be characterized as a perverse one
warranting interference in the second appeal. 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, the will was indeed
executed by R. Naidu and was his last will. 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 this Court. On the other
hand, the contention which is pressed is that when such
succession opened to the estate of Rangaswami Naidu on
01.06.1955, Rangaswami Naidu having published B1 notice dated
10.05.1955, a disruption of the joint family was effected and,
A
B
C
D
E
F
G
H
637
therefore, Rangaswami Naidu died separate from his brother. Still
furthermore, the appellants case is founded upon B10-Will
executed and also got registered on 10.05.1955 by Rangaswami
Naidu.[Paras 82, 83 and 85][716-D-H; 717-A-E; 718-A-C]
7. IS THERE CONFLICT BETWEEN KALYANI (DEAD)
BY LRS V. NARAYANAN AND OTHERS [AIR 1980 SC 1173]
AND BHAGWANT P. SULAKHE V. DIGAMBAR GOPAL
SULAKHE AND OTHERS [AIR 1986 SC 79]
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. The first appellate court distinguished the decision
by stating that it turned on in facts. There is really no conflict as
such. Partition has two shades of meaning in Hindu Law. 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 to produce before the
division, 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. 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
638
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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 Court is 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 (in Bhagwant P. Sulakhe case) 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. [Paras
97, 98 and 101][733-C-E; 734-C-G; 734-A]
Kalyani (Dead) by LRs. v. Narayanan & Ors. [1980] 2
SCR 1130; K.S. Palanisami (Dead) through LRs. & Ors.
v. Hindu Community in General and Citizens of
Gobichettipalayam & Ors. (2017) 13 SCC 15 : [2017]
4 SCR 511; Bhagwant P. Sulakhe v. Digambar Gopal
Sulakhe AIR 1986 SC 79 : [1985] 3 Suppl. SCR 169 –
referred to.
8.1 WHETHER A HINDU COULD MAKE A WILL?
WHAT WERE THE LIMITS ON HIS POWER TO
EXECUTE A WILL? ARE THERE ANY CHANGES BROUGHT
ABOUT BY ENACTING SECTION 30 OF THE HINDU
SUCCESSION ACT, 1956?
The treatises in Hindu Law do not contain reference to the
concept of a will. However, over a period of time, courts have
recognised the powers for a Hindu to make a will. This case
concerns Mitakshara Law. Thereunder, a Hindu could bequeath
his separate and self-acquired properties even prior to the Hindu
Succession
Act being enacted. A Hindu being a member of the
joint family could also possess his separate property which are of
various kinds.  They include obstructed heritage which is property
inherited by a Hindu from another who is a person other than his
father, father’s father or great grandfather, Government grant,
income of separate property,  all acquisitions by means of learning
(declared by Hindu Gains of Learning 1930). As far as the law
governing the making of the will is concerned there was no
particular law which governed the same. It is in the year 1865
that the Succession Act came to be passed. It was not applicable
A
B
C
D
E
F
G
H
639
to Hindus. The Hindu Wills Act 1870 which had limited application
(it applied inter alia to Wills by Hindus in the town of Madras) no
doubt made certain provisions of the Indian Succession Act of
1865 applicable to Hindus. Under the Probate and Administration
Act, 1881 the executor, subject to law relating to survivorship
was the legal representative of a Hindu.  Section 211 of the Indian
Succession Act, 1925 continues the same legal position. However,
the Indian Succession Act of 1925 which repealed the earlier
Succession Act has through Section 57 made the provisions of
Part VI which are set out in schedule III to the Act applicable to
all wills and codicils made by any Hindu, Buddhist, Sikh or Jain
made on or after the 1st January 1927 to which those provisions
are not applied under the preceding clauses viz. clauses (a) and
(b) Section 57. It is thus that after 1st of January, 1927 in the
matter of an unprivileged will executed by a Hindu, the
requirement of Section 63 which includes attestation of such a
will by a minimum of two witnesses became mandatory. Thus, the
execution of a will by a Hindu also came to be regulated from the
1st of January, 1927. Even prior to Hindu Succession Act, a Hindu
could execute a will bequeathing his separate and self-acquired
property.  As regards his authority to execute a will concerning
his interest in the property of the joint family of which he is a
coparcener, the law did not permit such an exercise. 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
for 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. [Paras 102, 104 and 106][735-C-H;
736-A, D-E; 739-A-B]
M.N. Aryamurthy v. M.D. Subbaraya Setty (1972) 4 SCC
1; Jalaja Shedhti & Ors. v. Lakshmi Shedhti & Ors.
(1973) 2 SCC 773 : [1974] 1 SCR 707; Hardeo Rai v.
Sakuntala Devi & Ors. (2008) 7 SCC 46 : [2008] 7
SCR 1 – referred to.
“Mulla on Hindu Law” 23rd Edition Page 341-342 (Para
228) – referred to.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
640
SUPREME COURT REPORTS
[2020] 9 S.C.R.
8.2 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. That 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. 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 this Court 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
A
B
C
D
E
F
G
H
641
property. 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. [Para 107,
108][739-G-H; 740-A-G; 741-C-D]
“Mulla on Hindu Law”: 23rd Edition [Para 228 clause
(6) at Page 342] – referred to.
9.1 THE IMPACT OF THE HINDU WOMENS RIGHT
TO PROPERTY ACT, 1937 (XVIII OF 1937)
Section 3 of the 1937 Act  applies when a Hindu dies
intestate. 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
Woman’s 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 Woman’s Estate. 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
642
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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 Women’s 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 14th 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. 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
A
B
C
D
E
F
G
H
643
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.
The Court 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. Secondly, R.
Krishnammal the widow, filed O.S. No. 71 of 1958 wherein as an
alternate prayer, she sought partition. 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 has already been noticed. But, 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 that
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.
[Para 108][742-F-H; 743-A-F; 745-B-H;
A-B]
Satrughan Isser v. Sabujpari and Others AIR 1967 SC
272 : [1967] 1 SCR 7 – relied on.
8.2 The legislative recognition of this concept of ‘interest’
in joint family is found 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.
What is of greater relevance is the terms of explanation. The
terms of the explanation I as it stood which is retained as the
explanation in sub-section (3) of Section 6 after the amendment.
Therefore, the concept that what a coparcener in a Mitakshara
family had prior to partition, is an interest, is reiterated. For the
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
644
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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. It is made clear
that this Court must not be 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. [Paras 109, 110][746-B-G]
10.1 WHAT IS TITLE OF V. RANGASWAMI NAIDU,
WHICH HE COULD PASS?
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.
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, V. Rangaswami Naidu
did not have exclusive right as such qua the properties scheduled
under the Will. In this case, having regard to the alternate case
set-up based on the rights available to R. Krishnammal, and
noticing that some items out of 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. [Paras 112,
117][747-C-F; 749-G-H; 750-A]
10.2 What would be the position after bringing about a
division in title but before there is a partition of the property by
metes and bounds? During the interregnum, the properties of
the family would continue to remain joint. Unless there is a
A
B
C
D
E
F
G
H
645
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.
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 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 this Court is 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. 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.
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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
646
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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. 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 should be left
remediless. This Court 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, the frame of the
Suit is found hardly helpful to the appellants. But having regard
to the fact that the appellants must fail otherwise, this Court need
not explore this matter further. [Paras 120, 123, 124 and 128][751-
B; 754-D-G; 755-A-C; 756-D-G]
Sidheshwar Mukherjee v. Bhubaneshwar Prasad Narain
Singh and Others AIR 1953 SC 487 : [1954]  SCR
177; M.V.S. Manikayala Rao v. Narasimhaswami and
Others AIR 1966 SC 470 : [1966] 1 SCR 628 – referred
to.
Aiyyagari Venkataramayya and Another v. Aiyyagari
Ramayya (1902) ILR 25 Madras 690; Venkatachela
Pillay v. Chinnaiya Mudaliar (1870) 5 M.H.C.R. 166
– referred to.
11. DOES
THE WILL EFFECT A DIVISION?
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. 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 this Court 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
A
B
C
D
E
F
G
H
647
declaration, the law laid down by this Court in Addagada
Raghavamma, 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, this Court 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 this Court proceeds on the basis that there
is a Will as indeed it 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. 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 [Para 130][758-
D-H; 759-A-C]
Addagada Raghavamma and Ors. v. Addagada
Chenchamma and Ors. AIR 1964 SC
136 : [1964] 2
SCR  933 – relied on.
12. WHETHER THERE IS LACK OF PLEADING ABOUT
B1 CAUSING A DIVISION IN THE JOINT FAMILY?
In the facts of this case, the principle that no amount of
evidence can be looked into, if there is no pleading, is in apposite.
As to how the joint family status was disrupted or as to whether
there was no division in status, is essentially a matter of evidence.
The mere fact that it is not specifically averred, as to the mode
by which the division was brought about is not fatal to the
appellants case, if it is otherwise established. [Para 137][761-E-
F]
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
648
SUPREME COURT REPORTS
[2020] 9 S.C.R.
13. WHETHER THE CONTENTS OF B1 AMOUNT TO
A DECLARATION TO EFFECT DIVISION
That there was no oral partition is found unassailable.
Therefore, the statement in B1, about the same, needs to be
ignored being incorrect but the last sentence  is capable of
standing as a stand alone statement. The use of the word ‘also’
appears to be deliberate. It would also probablise that there was
legal advice which preceded both making the Will and the drafting
of the Notice. B10-Will contains the statement about having made
a notice. As long as the coparcener wishes to separate, he is not
required to give any reason to separate.[Paras 138, 139][761-G-
H; 762-D]
14. WHETHER THERE WAS COMMUNICATION TO
THE OTHER COPARCENER
108. B1 has been marked in the Trial Court as dated
12.05.1955. The entire case of the appellants is that the notice
was issued on 10.05.1955 and it was published in a newspaper
“Navva India” as, admittedly, there is no case for the appellants
that the intention to separate, was given by way of a notice directly
to V. Lakshmiah Naidu. It was the case of the appellants that
noticing the notice in the newspaper, Lakshmiah Naidu responded
by issuing a communication dated 11.05.1955, disputing the
partition.Still further, the appellant’s case is sought to be built
around the communication, by V. Rangaswami Naidu on
16.05.1955 to Lakshmiah Naidu reiterating contents of B1. The
contents of B1, having regard to the last part,
would be sufficient
to cause a division in the status of the joint family. The question
is whether it was communicated, as is required in law. On the
one hand, the communication set up by the appellants dated
11.05.1955 and 16.05.1955 are not produced.  This shortcoming
is sought to be overcome by the appellants by relying upon the
case set up by ‘A’ Party (‘A’ party no. 1 was R. Krishnammal, the
widow of Rangaswami Naidu and ‘A’ party no. 2 was R.
Krishnammal’s nephew and the executor of the Will) as revealed
in B2, the order passed by the Magistrate under Section 145 of
the CrPC. Regarding B2-Order, passed under Section 145 of
Cr.PC a contention is raised that it is not relevant under Section
40 to 43 of the Evidence Act. This question is not seen raised in
the courts below. It may be true that Section 40 deals with
previous judgments which would constitute a bar to the fresh
A
B
C
D
E
F
G
H
649
proceedings and B2 is, therefore, not relevant under Section 40
of the Evidence Act. Section 41 also deals with judgments
rendered in probate, matrimonial, admiralty or insolvency
jurisdiction, which has the effect mentioned in Section 41 of the
Evidence Act. It is clearly inapplicable to the facts of the case.
Section 42 deals with decisions being relevant if they relate to
matters of public nature relevant to the inquiry. It is also not
relevant. During the hearing, it was pressed before this Court by
the respondents that B1 is dated 12.05.1955 and if it is 12.05.1955,
the very edifice of the appellant’s case would fall to the ground as
then it would be impossible to support the position that in
response to the notice which is published on 12.05.1955, the reply
could be given on the previous date, i.e., on 11.05.1955 by
Lakshmiah Naidu. It is here that the non-production of the letters
dated 11.05.1955 and 16.05.1955, are sought to be emphasized.
This Court did call for the records to verify whether marking of
the documents B1 dated 12.05.1955 was a mistake or it did reflect
the ground reality. It is found from B1 that Notice is published in
the newspaper which is dated 12.05.1955. Therefore, the marking
of the document B1, as dated 12.05.1955, is not a mistake. There
is a reference in the Will to the publication of the Notice on the
said date. The Will is dated 10.05.1955. It appears quite clear
that the Will would not have been written on 10.05.1955.
It is, no
doubt, executed on 10.05.1955. Having regards to the details in
the Will and the other circumstances, this Court is inclined to
believe that it would have been drafted earlier. Equally, publication
of a matter in a newspaper would have been arranged earlier.
But what is important is, not merely the intention of the Testator
as a coparcener to declare his mind to the other coparcener to
separate, and even have it set-out in the Will, and further even
going a step further, getting it published, but it must be proved
further that, before the Testator passed away, the matter contained
in B1 was known to the other coparcener, viz., Lakshmiah Naidu.
This requirement is indispensable.There is no case that the
Notice was published on two days, viz., on 10.05.1955 and
12.05.1955. What is evidence produced before the Court is B1,
which is dated 12.05.1955. If that is so, despite the inferences
one could possibly draw from the deposition of PW1, it would
bring it into collision with the evidence before this Court. If this
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
650
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Court proceeds on the basis of B1, which is dated 12.05.1955,
then, the reply being sent on 11.05.1955, becomes impossible. If
there is no reply sent on 11.05.1955, then, it will not be possible
to attribute communication of the Notice to separate to Lakshmiah
Naidu. In such circumstances, this Court would agree with the
High Court that the case relating to B1, though there is a
publication made, knowledge of the same cannot be attributed to
Lakshmiah Naidu, before the death of his brother. It is not being
held for a moment that a Notice in a newspaper cannot serve as a
Notice by a coparcener to effect division. However, merely
causing a Notice to be published, without there being evidence
to show that the intended recipient became aware of it, may not
suffice. Though a Notice in a newspaper is purported to serve as
Notice to the general public, what is required is Notice to the
concerned coparcener. There cannot be a presumption that a
person has read a particular newspaper, and even more
importantly, that he has read the Notice. Even the case of the
appellants appears to be that, on seeing the Notice dated
10.05.1955, the communication dated 11.05.1955 was sent by
Lakshmiah Naidu, which this Court found unacceptable, having
regard to B1 being dated 12.05.1955. The importance of the reply
dated 11.05.1955 was that it would establish knowledge of the
Notice by Lakshmiah Naidu. There is no evidence that the Notice
published in the newspaper dated 12.05.1955 was known to
Lakshmiah Naidu before his death. Since there was no division
brought about by V. Rangaswami Naidu before his death in view
of the above discussion, the Will would be invalid and therefore
it would be the end of the road for the appellants. It is to be
remembered that Rangaswami Naidu died on 1.6.1955, which was
before the enactment of Hindu Succession Act, 1956. Thus, when
he died, he left behind an interest in the Hindu joint family. When
succession opened to his estate, it is therefore, the provisions of
Section 3(2) of the Hindu Women’s Right to Property Act, 1937
which apply. A limited estate in other words sprung into being in
favour of R. Krishnammal, his widow. This estate would bloom
under Section 14 (1) of the H.S.A. into an absolute estate. When
she compromised in OS 71 of 1958 giving up her rights over the
property which included the plaint scheduled property in these
cases, it conferred absolute rights in favour of the Lakshmiah
A
B
C
D
E
F
G
H
651
Naidu branch. The effect of the death of Rangaswami Naidu being
before the Hindu Succession Act came into force is again
reiterated to be that it would deprive persons of rights available
in respect of a Hindu who dies intestate after the Act came into
force. [Paras 140, 142, 147, 148 and 153][762-E-H; 763-A, C-E;
765-C-H; 767-F-H; 766-A; 768-A-G]
15. SECTION 14 (1) VERSUS 14 (2) OF HINDU
SUCCESSION ACT 1956
It is recited in the Will that the properties mentioned in ‘A
Schedule’ are bequeathed to his wife, no doubt, for her life. This
is a case where the Will itself specifically recites that she is to
take income from the properties for her expenses, inter alia. She
is to make use of the income also for giving presents to his sisters
on ceremonial occasions. Therefore, this is a case where the very
document, which the appellants lays store by, makes it
unnecessary to search for any evidence to find out what is the
purpose of giving the property. The Testator has made his motive
clear. The argument of the appellants that the very same
document refers to the fact that she has been given other
properties towards her maintenance, does not detract from the
central question as to what impelled the Testator to create the
life estate. The Will was executed on 10.05.1955 which is prior
to the Hindu Succession Act unlike in the case of Sadhu Singh.
Obviously, such a Will could not have been executed anticipating
the provisions of Section 14(2) of the Hindu
Succession Act. R.
Krishnammal was certainly entitled to maintenance and the
bequest in question expressly refer to the purposes. The
properties involved were not bequeathed to R. Krishnammal
without her having any right at all. The Will did not purport to
bequeath property by way of creating new rights in the facts of
this case. Even the case of the appellants is that she was provided
for maintenance by giving her other properties as indicated in
the Will. If the argument of the appellants is to be accepted, the
Court would have to consider the quantum of maintenance which
the Testator would consider appropriate. The extent of the other
property is not shown. Such an exercise is unnecessary when the
terms of the Will indicate that the Testator intended that his widow
should be able to maintain herself appropriately from the income
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
652
SUPREME COURT REPORTS
[2020] 9 S.C.R.
of the properties he was bequeathing to her also, and for that
purpose, created, no doubt what can be described as, a limited
estate. In such circumstances, the view taken by the High Court
that Section 14(1) of the Hindu Succession Act applies, cannot
be characterised as erroneous. [Paras 167, 169][780-B-G; 781-
E]
Sadhu Singh v. Gurdwara Sahib Narike and Others
(2006) 8 SCC 75 : [2006] 5 Suppl. SCR 799 –
distinguished.
C.Masilamani Mudaliar and Others v. Idol of Sri
Swaminathaswami Swaminathaswami Thirukoil and
Others AIR 1996 SC 1697 : [1996] 1 SCR 1068 – relied
on.
16.‘POSSESSED’ OF IN SECTION 14(1) OF HINDU
SUCCESSION ACT, THE PLEADING AS TO POSSESSION OF
THE PLAINT SCHEDULE PROPERTY IN O.S. NO. 89/83 AND
O.S. NO. 71/58 AND ITS IMPACT.
In Eramma, this Court has made it clear that Section 14(1)
of the Hindu Succession Act does not confer title on a mere
trespasser. It does not confer any right on a person possessing
property without any vestige of title. These remarks are made in
the context of the following set of circumstances:
Following the death of her husband on 01.06.1955, there
are two streams providing right to make a claim over the property
in favour of R. Krishnammal, when the Hindu Succession Act
came into force. Under the Will, she was conferred with a life
estate. If the Will is treated as non-existent or invalid, then, again
there can be two situations. Her case would fall to be covered
either under
Section 3(1) or 3(2) of the Hindu Women’s Right to
Property Act, 1937 depending on whether the property was
separate property of V. Rangaswami Naidu or an interest in the
Joint Hindu Family Property. She was also having a right to be
maintained. Therefore, in the 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 is observed
A
B
C
D
E
F
G
H
653
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. The nature of the pleading which
she made in O.S. No. 71 of 1958 has also been seen. 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. The decision in Kotturuswami case,
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 AIR 1967 SC 1786. 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 was
rendered. In fact, this decision was not referred to by the two
Judge Bench which rendered the decision in Sadhu Singh.
However, it has been adverted to in AIR 1996 SC 172 (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. In
view of the dicta in Mangal Singh, this Court feels reassured of
its  view that Section 14(1) applies.  [Para 173][783-E-H; 784-A-
B, E; 785-C-E]
Eramma v. Veerupana AIR 1966 SC 1879 : [1966] 2
SCR 626; Gummalapura Taggina
Matada Kotturuswami
v. Setra Veeravva and Others AIR 1959 SC 577 : [1959]
1 Suppl. SCR 968; Shyam Narayan Sigh and Ors. v.
Rama Kant Singh and Ors. 2018 (1) RCR (Civil) 981;
Mangal Singh and Others v. Smt. Rattno (Dead) by her
legal representatives and Another AIR 1967 SC 1786
: [1967] 3 SCR 454 – relied on.
CIVIL APPEAL NOS. 1045-1050 of 2013
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. A. Alagiriswami has
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
654
SUPREME COURT REPORTS
[2020] 9 S.C.R.
no rights, for the reasons 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 it has been 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. DW1, A. Alagiriswami, one of the Legatees has
deposed regarding possession. The appellants did not challenge
the Decree of the Trial Court and they were apparently sailing
along with the appellants who were the Legatees under the Will.
There is no merit in any of the appeals. [Paras 175, 176][785-G-
H; 786-A-D]
Gaddam Ramakrishnareddy & Ors. v. Gaddam Rami
Reddy & Ors. (2010) 9 SCC 602 : [2010] 11 SCR 656;
Navneet Lal alias Rangi v. Gokul and Others (1976) 1
SCC 630 : [1976] 2 SCR 924 – distinguished.
Babu Singh and Others v. Ram Sahai alias Ram Singh
(2008) 14 SCC 754 : [2008] 7 SCR 250; K. Laxmanan
v. Thekkayil Padmini and Others (2009) 1 SCC 354 :
[2008] 16 SCR
1117; Kanwarjit Singh Dhillon v.
Hardyal Singh Dhillon (2007) 1 SCC 357– relied on.
Nanni Bai and Others v. Gita Bai AIR 1958 SC 706 :
[1959] SCR 479; Krishnabai Bhritar Ganpatrao
Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and
Ors. (1979) 4 SCC 60 : [1980] 1 SCR 161; Bhagwan
Krishan Gupta v. Praabha Gupta & Ors. (2009) 11 SCC
33 : [2009] 3 SCR 393; Shivdev Kaur (Dead) by LRs &
Others v. R. S. Grewal (2013) 4 SCC 636 : [2013] 5
SCR 267; Sharad Subramanyan v. Soumi Mazumdar
& Ors. (2006) 8 SCC 91; Bay Berry Apartments Pvt.
Ltd. & Ors. v. Shobha & Ors. (2006) 13 SCC 737 :
[2006] 7 Suppl. SCR 738; Usha Subarao v. B.E.
A
B
C
D
E
F
G
H
655
Vishveswariah (1996) 5 SCC 201; Janki Narayan Bhoir
v. Narayan Namdeo Kadam (2003) 2 SCC 91 : [2002]
5 Suppl.  SCR 175; Madhusudan Das v. Narayanibai
(Deceased) by LRs. and Others (1983) 1 SCC 35 :
[1983] 1 SCR 851; Benga Behera and Another v. Braja
Kishore Nanda and Others (2007) 9 SCC 728 : [2007]
6 SCR 853; Sashi Jena and Others v. Khadal Swain
and Another (2004) 4 SCC 236 : [2004] 2 SCR 260;
Krishna Beharilal v. Gulabchand (1971) 1 SCC 837 :
[1971] Suppl. SCR 27; S. Shanmugam Pillai and Others
v. K. Shanmugam Pillai and Others (1973) 2 SCC 312
: [1973] 1 SCR 570; Puttrangamma and Others v. M.S.
Ranganna and Others AIR 1968 SC 1018 : [1968] SCR
119; Villiammai Achi v. Nagappa Chettiar and Another
AIR 1967 SC 1153 : [1967] SCR 448; State of Bihar v.
Radha Krishna Singh and Others (1983) 3 SCC 118 :
[1983] 2 SCR 808; Mst. Karmi v. Amru and Others
(1972) 4 SCC 86; V. Tulasamma v. Sesha Reddy (1977)
3 SCC 99 : [1977] 3 SCR 261; Shakuntla Devi v. Kamla
(2005) 5 SCC 390; Bhura and Others v. Kashi Ram
(1994) 2 SCC 111 : [1994] 1 SCR 16; Jagan Singh
(Dead) Through LRs. v. Dhanwanti and Another (2012)
2 SCC 628 : [2012] 2 SCR 303; Jupudy Pardha Sarathy
v. Pentapati Rama Krishna (2016) 2 SCC 56; R.B.S.S.
Munnalal and Others v. S.S. Rajkumar and Others AIR
1962 SC 1493 : [1962] 3 Suppl. SCR 418; Gumpha
(Smt.) and Others v. Jai Bai (1994) 2 SCC 511 : [1994]
1 SCR 901; Gulwant Kaur and another v. Mohinder
Singh and Others AIR 1987 SC 2251 : [1987] 3 SCR
576; Bai
Vajia (Dead) by LRs. v. Thakorbhai Chelabhai
and Others AIR 1979 SC 993 : [1979] 3 SCR 291 –
referred to.
Adiyalath Katheesumma and Ors. v. Adiyalath Beechu
and Ors. AIR 1951 MAD 561; Sundara Adapa v. Girija
AIR 1962 (Mysore) 72; K. Peramanayakam Pillai v.
S.T. Sivaraman and Others AIR 1952 Madras 419 –
referred to.
Krishnayya Surya Rao Bahadur Garu and Others
(Defendants) v. Venkata Kumara Mahitathi Surya Rao
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
656
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Bahadur Garu AIR 1933 PC 202; Mohammad Khalil
Khan v. Mahbub Ali Mian AIR 1949 PC 78; Appovier
v. Rama Subba Aiyan and Others [1866] 11 M.I.A.75;
Girja Bai v. Sadashiv Dhundiraj and Others AIR 1916
PC 104; Pandit Suraj Narain and Another v. Pandit
Iqbal Narain and Others (1912-13) 40 IA 40 : (1913)
11 All LJ 172 – referred to.
Case Law Reference
[1985] 3 Suppl. SCR 169
referred to
Para 20
[1959] SCR 479
referred to
Para 20
[2006] 5 Suppl. SCR 799
distinguished
Para 33
[1980] 1 SCR 161
referred to
Para 35
[1964] 2 SCR 933
relied on
Para 35
[2009] 3 SCR 393
referred to
Para 35
[1974] 1 SCR 707
referred to
Para 35
[2008] 7 SCR 1
referred to
Para 35
[1980] 2 SCR 1130
referred to
Para 35
[2017] 4 SCR 511
referred to
Para 35
[2013] 5 SCR 267
referred to
Para 35
(2006) 8 SCC 91
referred to
Para 35
[2010] 11 SCR 656
distinguished
Para 35
[2006] 7 Suppl. SCR 738
referred to
Para 36
(1996) 5 SCC 201
referred to
Para 36
[2002] 5 Suppl. SCR 175
referred to
Para 38
[1983] 1 SCR 851
referred to
Para 43
[2007] 6 SCR 853
referred to
Para 43
[2004] 2 SCR 260
referred to
Para 43
[1971] Suppl. SCR 27
referred to
Para 43
[1973] 1 SCR 570
referred to
Para 43
[2012] 7 SCR 933
relied on
Para 47
A
B
C
D
E
F
G
H
657
[1953] SCR 351
relied on
Para 57
[2004] 1 Suppl. SCR 43
relied on
Para 57
[2008] 7 SCR 250
relied on
Para 62
[2008] 16 SCR 1117
relied on
Para 63
[1968] 3 SCR 119
referred to
Para 92
(1972) 4 SCC 7
referred to
Para 104
[1967] 2 SCR 448
referred to
Para 105
[1967] 1 SCR 7
relied on
Para 108
(2007) 1 SCC 357
relied on
Para 111
[1954] SCR 177
referred to
Para 121
[1966] 1 SCR 628
referred to
Para 121
[1983] 2 SCR 808
referred to
Para 145
(1972) 4 SCC 86
referred to
Para 158
[1977] 3 SCR 261
referred to
Para 159
(2005) 5 SCC 390
referred to
Para 160
[1994] 1 SCR 16
referred to
Para 162
[2012] 2 SCR 303
referred to
Para 163
[1976] 2 SCR 924
distinguished
Para 163
(2016) 2 SCC 56
referred to
Para 163
[1962] 3 Suppl. SCR 418
referred to
Para 163
[1994] 1 SCR 901
referred to
Para 164
[1996] 1 SCR 1068
relied on
Para 164
[1987] 3 SCR 576
referred to
Para 165
[1966] 2 SCR 626
relied on
Para 165
[1979] 3 SCR 291
referred to
Para 165
[1959] 1 Suppl. SCR 968
relied on
Para 172
[1967] 3 SCR 454
relied on
Para 173
2018 (1) RCR (Civil) 981
relied on
Para 173
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
A
B
C
D
E
F
G
H
658
SUPREME COURT REPORTS
[2020] 9 S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1021-
1026 of 2013.
From the Judgment and Order dated 12.10.2007 of the High Court
of Judicature at Madras in S.A. Nos. 314 & 315 of 1994, 41 & 42 of
1997 and 690 & 691 of 1998 respectively.
 With
C.A. Nos. 1027-1032, 1033-1038, 1039-1044, 1045-1050 of 2013.
C. A. Sundaram, Mrs. V. Mohana, E. Om Prakash, S. Nagamuthu,
Mohan Parasaran, Ms. Chitra Sampath, Basava Prabhu Patil, S. Guru
Krishna Kumar, Sr. Advs., B. Ragunath, Ms. Rohini Musa, Ms. N. C.
Zavitha, Ms. Ankita Sharma, Ms. Nikitha Cooper, Zaferinayat, Vijay
Kumar, R.Murali, Ms. Madhusmita Bora, Pawan Kishore Singh, R. N.
Keswani, M. P. Parthiban, A.S.Vairawan, R. Sudhakaran, Hardik Gautam,
Chandra Prabhu, S. Ranjith, Anil Kaushik, Abhishek Mishra, Akash
Bhardwaj, Shiv Prakash Pandey, S. Nandakumar, Ms. Deepika
Nandakumar, M. S. Saran Kumar, V. N. Raghupathy, D.S. Ashwin Kumar,
V. Balachandran, Siddharth Naidu, Ankolekar Gurudatta, Ms. Rachita
Hiremath, K. Parameshwar, M. V. Mukunda, Tushar Bakshi,
V. Raghavachari, Mrs. Prabha Swami, Nikhil Swami, G. Balaji, K. K.
Mani, Ms. T.Archana, Mrs. Revathy Raghavan, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. One R. Venkitusamy Naidu had two sons and five daughters.
Lakshmiah Naidu and Rangaswami Naidu were the sons of
R. Venkitusamy Naidu. Rangaswami Naidu was married to one
R. Krishnammal. They had no issues. Lakshmiah
Naidu had four sons,
viz., Bakthavatsalam, Venkatapathy, Jagannathan and Ramaswamy. Two
civil suits have generated these appeals by special leave before us. O.S.
No. 649 of 1985 has been filed by those who claimed under Lakshmiah
Naidu whereas the plaintiff in O.S. No. 89 of 1983 is one of legatees
under a Will allegedlyexecuted by Rangaswami Naidu. The plaint
schedule properties in both the civil suits are the same.
2. The first suit, viz., O.S. No. 649 of 1985 (as the said suit was
initially filed as O.S. No. 2063 of 1982 and it is re-numbered as O.S. No.
649 of 1985) was filed to declare the title of the plaintiffs to the suit
A
B
C
D
E
F
G
H
659
property and for injunction against the defendants in the suit properties.
The relief sought inter alia in O.S. No. 89 of 1983 are as follows:-
“(a)declaring the title of the plaintiff to an 1/3rd share of the
properties described in Schedule I, hereunder or 1/4th share in the
properties, described in Schedule II hereunder:
(b) directing the partition of the properties described in schedule I
into three equal shares with reference to good and bad soil and
granting separate possession to the plaintiff one such share or in
the alternative directing a partition of the properties described in
Schedule II into four equal shares with reference to good and bad
soil and granting separate possession to the plaintiff one such share;
(c) appointing a commissioner to effect the division;
(d) directing defendants 4 to 11 to pay the plaintiff Rs.15,000.00
as past mesne profits.
(e) directing an enquiry into future mesne profits from the date of
suit till delivery of possession and pass a decree for such amount
as may be determined on enquiry;
XXX
XXX
XXX.”
A CHEQUERED HISTORY; FIRST STAGE
3. This litigation has a chequered history. It all began way back in
the year 1955. Proceedings under Section 145 of the Code of Criminal
Procedure, 1898 (for short “CrPC”) came to be initiated before the First
Class Magistrate, Coimbatore as M.C. No. 1 of 1955 and M.C. No. 8 of
1955. Krishnammal, the widow of Rangaswami Naidu was ‘A’Party.
This was on the basis of the report of the
Sub-Inspector of Police dated
04.07.1955 to the effect that there was a dispute regarding the possession
of Survey No. 613/04 and 614/03 of Uppilipalayam Village. ‘A’ party no.
1 was R. Krishnammal, the widow of Rangaswami Naidu. ‘A’ party no.
2 was the nephew of ‘A’ party no. 1 and the executor of the Will. ‘B’
party no. 1 was the elder brother of Rangaswami Naidu, viz., Lakshmiah
Naidu. ‘B’ party nos. 2 to 4 were the sons of Lakshmiah Naidu.
The case set up by ‘A’ party was in brief as follows:
There was a partition in the year 1932 between ‘B’ party no. 1
and the late Rangaswami Naidu. Rangaswami Naidu also purchased
lands in his own name. He took several lands on lease. ‘A’ party, in
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
660
SUPREME COURT REPORTS
[2020] 9 S.C.R.
short, claimed that they were in posession of the land in question. It was,
further, the case of ‘A’ party that Rangaswami Naidu who was under
treatment of cancer but returned to Coimbatore after the first course of
treatment was over and was staying in the Bungalow at Race Course
had executed a willon 10.05.1955. He appointed ‘A’ party no. 2,viz., the
nephew of his wife as executor. He haddeclared his divided status by
way of a notice in newspaper called ‘Nava India’ dated 10.5.1955.
Lakshmiah Naidu, the first among the ‘B’ party and the brother of
Rangaswami Naidu onseeingthe notice responded to the same by
communication dated 11.05.1955 to the effect that they were undivided
and if Rangaswami wanted to get divided he had to intimate the other
co-parceners. It is the further case of ‘A’ party that Rangaswami Naidu
had replied on 16.05.1955 pointing out that the stand of Lakshmiah Naidu
in his response dated 11.5.1955 was incorrect. It is also alleged that it
was acknowledged on 17.05.1955 by ‘B’ party no. 1. After 10.05.1955
the health of Rangaswami Naidu took a turn for the worse. He left for
Bombay on 20.05.1955. He was still conscious of his duties and was
corresponding with others. Rangaswami Naidu passed away in the early
hours on 01.06.1955. ‘B’ party has, had on the other hand contended
that Rangaswami Naidu and ‘B’ party were members of the joint Hindu
Family. ‘B’ party no. 1, viz., Lakshmiah Naidu was
sufficiently aged and
could not attend to all items of work. Rangaswami Naidu and one of
Lakshmiah Naidu’s sons wereasked to look after the cultivation of fields.
The case of partition in the year 1932 was denied.Rangaswami Naidu
became unwell and unable to take food from January 1955 and was fed
by tube. In short, the contention of ‘B’ party was that Rangaswami
Naidu continued to be an undivided member.
4. The Magistrate did not undertake any discussion about the will
finding it unnecessary. Finding ‘B’ party in possession and that they
were entitled to be in possession until evicted in due course of law by
order dated 16.4.1956,the Magistrate held in favour of the ‘B’ party.
‘B’ party, it is noted, were Lakshmiah Naidu and his sons. Lakshmiah
Naidu passed away on 10.04.1958. The revision petition against the same
was dismissed.
THE SECOND STAGE OF LITIGTION
5. The second stage of the litigation is ushered in by the filing of
O.S.No.71 of 1958. The plaintiff was R. Krishnammal, the widow of
Rangaswami Naidu. The defendants in the said suit L.Ramaswamy
A
B
C
D
E
F
G
H
661
Naidu, L. Bakhtavatsalam, L.Jagannathan and L. Venkatapathy, were
all sons of Lakshmiah Naidu. The 5th defendant was one N.V. Rama
Chandra Naidu, son of Venkata Swamy Naidu (the executor of the will
set up by Krishnamaal). The plaint is dated 10.4.1958 which incidentally
is the date on which Lakshmiah Naidu passed away. In brief, the case
of the plaintiff, Krishnammal, may be noted as hereunder. Krishnammal
reiterated the case set up before the Magistrate that her husband and
Lakshmiah were living together jointly as members of an undivided family
till 1932. In 1932 there was an oral partition. The properties described in
Schedule ’I’ to the plaint fell to the share of her late husband
RangaswamiNaidu. He had separate possession and enjoyment of those
properties. Thereafter, he acquired several other properties in his name.
Those properties were scheduled as Schedule IA. Rangaswami Naidu
who was an elected member of the legislative counsel developed cancer
of the throat. He with an intention of formalizing of the oral partition in
1932 prepared a list of properties both self-acquired and ancestral and a
similar list of defendants’ properties and sent it to his brother for his
approval. Thelist was returned back with certain corrections in the
handwriting of Lakshmiah Naidu. Her late husband published a notice
on 10/05/1955 in the local daily that he was a divided member since
1932 and he was publishing the notice to make the declaration of his
separate
share and status. Lakshmiah however was alleged to have
assumed the attitude that coparcenary was undivided and disputed the
correctness and justness of notice and sent notice dated 11/05/1955.
Krishnammal’s husband sent a reply on 16/05/1955. The plaintiff
Krishnammal also stated that there was a Will on 10/5/1955 and it was
duly registered and further that in the will he has referred to the oral
partition in the year 1932. Under the Will it wasclaimed that the properties
in schedule I and IA were set apart for Krishnammal for life and also
made further disposition of the remainder mainly in favour of his sisters’
sons. She made reference to the proceedings under Section 145 of CrPC.
She also drew inspiration from the stand of Lakshmiah Naidu that the
brothers continued to be the members of the Hindu Undivided Family
and that in view of the said stand alleged that she must be deemed to be
in joint possession along with defendants 1 to 4. Krishnammal claimed
that possession by the defendants in properties Schedule I and IA was
unlawful. She further stated that as a legal representative of her husband
and as legatees under a Will she is bound to adopt the position taken viz.,
that that her husband was a divided member and that an oral partition
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
662
SUPREME COURT REPORTS
[2020] 9 S.C.R.
had taken place in 1932 and that the registered will executed by him was
valid. In the alternative it would appear she set up the following case:
“11. The plaintiff however further states that even on the very
case set up by R.V. Lakshmiah Naidu in the 145 proceedings and
the admission made by him, her rights are even better and as a
coparcener she is entitled under the combined operation of Acts
XVIII of 1937 and XXX of 1956 to an absolute state in one half
of the joint properties and to demand partition and possession of
her share. Defendants 1 to 4 are entitled to the other half share.
The plaintiff is unable to specify exactly all the properties in the
possession of defendants 1 to 4 but as far as she has been able to
do so, she has set them out I schedule II. The plaintiff craves
leave to add to them as and when she gets better particulars. The
plaintiff also prays that the defendants 1 to 4 might be called upon
to make a full and true disclosure of the joint family properties in
their possession.
12. The plaintiff states that so far as she is concerned, she is
perfectly willing to adopt the defendant’s contentions as put
forward in the 145 proceedings and that it is not open to the
defendants to go back upon the same. Consequently the plaintiff
states that in the circumstances, her rights are indisputable and
she is entitled to be placed in immediate possession of the properties
described in schedule I and I-A
pending a final decree in the suit
or she is entitled to have a receiver appointed in respect of the
properties in all the schedules so as to secure to her, her just
rights.”
6. Krishnammal further stated that in case the alternative case is
accepted, she is entitled to have an account taken as part of the relief of
partition of the income of the movable and immovable properties in the
hands of Lakshmiah Naidu. Cause of action in the said suit was set out
in para 17, as follows:
“17. The cause of action for the suit arose on 1.6.1955 when
Rangaswami Naidu died and on or about June 1955 when the
defendant No.1 to 4 unlawfully trespassed on the properties, on
16.4.1956 when the Revenue divisional Officer, Coimbatore, upheld
the possession of R.V. Lakshmiah Naidu and his sons and on
26.9.1957 when the High Court refused to interfere with the order
A
B
C
D
E
F
G
H
663
of the Revenue divisional Officer, Coimbatore within the
jurisdiction of this Hon’ble Court where the properties are situate.
The relief sought in the said suit was inter alia as follows:
“1. for a declaration that the properties inSchedule - I and I-A
belong to the plaintiff and for possession of the same with past
mesne profitsof Rs.7000/- realized by receiver appointed in 145
proceedings and future mesne profits as may be determined by
court.
2. for recovery of Rs.6000/- referred to in para 14 of the plaint:
In the alternative, I, that an account may be taken of what the
joint property of the family consists of and the income therefrom
from the date of division in status i.e. 10.5.1955:
2. that a Commissioner be appointed to divide the properties by
metes and bounds;
3. for a division of the plaint properties into two equal shares and
for possession of one such share to the plaintiff.
XXX
XXX
XXX”
The said suit came to be contested by the defendants 1 to 4 on
lines similar to the case set up before the Magistrate in 145 proceedings.
The suit however came to be compromised on the following terms. As
per the endorsement on the plaint it appeared to the court that the parties
had agreed to compromise the matter and noticing the deed of
compromise, the following decree was passed and thereafter the terms
of the compromise inter alia are set out as follows:
“1. That the plaintiff be and hereby is entitled absolutely to the
immovable properties in items 1 to
7 in the schedule described
hereunder and that defendants 1 to 4 do put the plaintiff in
possession of the same;
2. that defendants 1 to 4 to pay plaintiff monies described in items
8,9 and 13, discharge the decree debt mentioned in item 10 and
help plaintiff in getting items 11 and 12 transferred to her name
within forty five days from this date and in default, thereof, the
plaintiff be at liberty to execute this decree for the aforesaid reliefs.
3. that plaintiffs do have no right or claim in the property belonging
to her husband of R.V. Lakshmiah Naidu or defendants 1 to 4
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
664
SUPREME COURT REPORTS
[2020] 9 S.C.R.
jointly or individually, except such care as she is already in
possession of;
4. That defendants 1 to 4 do pay arrears of income tax if any, and
the Estate duty, on the estate of the plaintiff’s husband R.V.
Rangaswami Naidu and his brother R.V. Lakshmiah Naidu;
5. That defendants 1 to 3 do at their own cost and expense, attend
to any further dispute regarding the proportion belonging to the
family, that defendants 1 to 4 do bear the responsibility in protesting
the titles to the properties including the properties allotted to the
plaintiff and that plaintiff is not bound to contribute anything
therefore, that defendants 1 to 4 do have no further rights in the
properties taken by the plaintiff and that plaintiff do have no right
in respect of the properties whether in the name of R.V. Lakshmiah
Naidu or otherwise;
6. that plaintiff do act with defendants 1 to 4 is presenting for
enhanced compensation for the land …. Of which a sum of
Rs.6775/- is now in Court ..C.C. 17/58 on the file of this Court,
that defendants 1 to 4 alone be entitled to any such enhanced
compensation and that defendants 1 to 4 do bear the entire cost in
that proceeding.
7. That the parties are at liberty to register this final decree within
a week after its being ready;
8. That each party do bear her or his own costs;
There are other details we need not be detained by.
THIRD STAGE OF LITIGATION
7. This brings us to the third stage of the
seemingly unending
litigation.  Here, the curtain is raised by the filing of O.S.No. 36 of 1963.
The plaintiffs in the said Suit are R. Alagiriswami Naidu and V.
Kalyanaswami. R. Alagiriswami is the son of one Krishnamaal (sister
of one Rangaswami Naidu and Lakshmiah Naidu and different from the
widow of Rangaswami Naidu). V. Kalyanaswami is the nephew of
Rangaswami Naidu and Lakshmiah Naidu through their sister
Thayammal. Both of the plaintiffs are among the appellants before us.
The defendants were as follows:
The first defendant in the said case was none other than
R. Krishnammal, the widow of Rangaswami Naidu. M.V. Ramachandra
A
B
C
D
E
F
G
H
665
Naiduthe 2nd defendant was the executor of the disputed Will. The third
defendant was R. Sounderajan, s/o K.P. Rangappa Naidu yet another
nephew of R.V. Rangasamay Naidu and Lakshmiah Nadu. The fourth
defendant was A. Alagiriswami, yet another nephewof R.V. Rangaswami
Naidu and Lakshmiah Nadu through yet another sister.The 3rd and 4th
defendants are also appellants before us. Defendants 5 and 6 were
persons against whom the allegation was that the first defendant
R. Krishnammal had purported to conveyitems 1 to 3 and 7 respectively
to them. In brief, the case set up by the plaintiffs in O.S. No.36 of 1963
was as follows:
They referred to will dated 10/05/1955 left behind by their uncle
Rangaswami Naidu. There is reference made to the life estate in
favour of first defendant, the wife of Rangaswami Naidu and the
absolute right created in favour of plaintiffs and defendants 3 and
4. Still further there is reference to O.S.No.71 of 1958 and that
the suit came to be compromised. It was contended that there
was no necessity to enter into such compromise as it was not
beneficial to the estate also. R. Krishna had only a life estate.
She was not competent and did not represent the interest of the
plaintiffs and defendants 3 and 4. The decree insofar as it purported
to confer absolute right on R. Krishnammal was not valid or binding
on the plaintiffs and defendants 3 and 4. Plaintiffs and defendants
3 and 4 had vested interest in the properties but were not
impleaded
as parties. It is further alleged that R. Krishnammal could not
enlarge her right by any compromise. She had only a life interest.
Plaintiffs give a notice dated 10/05/1959 calling upon R.
Krishnammal, the first defendant to acknowledge her interest
being only a life estate and thus to desist from alienating the
property. Para 11 of the plaint may be noticed.  It reads as follows:
“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 1st defendant
to her husband’s brother’s sons. The plaintiffs reserve their
rights in respect of those properties to a separate action”
Issues were framed in the said suit. The suit came to be amended
by order dated 17/10/1970. Defendants 7 to 10 came to be impleaded on
the basis of order passed in IA No.925 of 1970. Defendants 7 to 10
were the four sons of Lakshmiah Naidu viz., Bakthavatsalam,
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
666
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Venkatapathy, Jagannathan and Ramaswamy. The prayer in the suit
was as follows:
a) Declaring that the 1st defendant has only life estate in the
properties described hereunder without any powers of alienation
and that plaintiffs and defendants 3 and 4 have a vested remainder
in the said properties under the will of the late R.V. Rangaswami
Naidu.
b) Directing the 1st defendant to pay the plaintiff the costs of this
suit;
and
c) Granting the plaintiff such other and further relief as this court
may deem fit and proper in the circumstances of the case.
The said suit also did not culminate in an adjudication by the Court.
Instead the parties opted for a compromise. The compromise decree is
dated 18.2.1974 and reveals the course which commended itself to the
parties and it reads as followsinter alia:
“The plaintiffs and the defendants 1 and 3 having made a joint
endorsement on the plaint and counsel appearing for the defendants
5 and 7 to 10 also having signed in token of their having seen the
endorsement, this Court in terms of the joint endorsement both
order and decree:-
1. That the 1st defendant Smt. Krishnammal has only a life estate
in the items 5 and 6 of the plaint schedule properties more
fully described hereunder, and that the 1st defendant be and
hereby is entitled to enjoy the said properties for her life without
powers of alienation and after her life – time the said items of
properties shall go to the
plaintiffs and 1 and 2 and defendants
2 and 4 herein.
2. That each party do bear his or her own costs in this suit.
Terms of joint endorsement by plaintiffs and defendants 1 to 3
made on 18.2.1974.
1.
The may be a decree prayed for by the plaintiff in respect
of plaint items 5 and 6 alone, viz. S.No.467 0.98 ac.in this
0.82 ac. Within the boundaries in the plaint and S.No.466,
6.02 ac. In this 3.60 ac. Within the boundaries described in
A
B
C
D
E
F
G
H
667
the plaint and situate in Kalapatti village. The 1st defendant
is entitled to enjoy the said items for her life without powers
of alienation and after her life time they will go to the
plaintiffs 1 and 2 and defendant 3 and 4.
The defendants 1 and 2 hereby declare that they have not
encumbered or alienated the said items in any manner.
2.
The plaintiffs give up the reliefs claimed in respect of plaint
items 1 to 3, sold to the 5th defendants, plaint items 4,
acquired by the Government and plaint item 7, which has
been sold to the 6th defendant. The plaintiffs …. On these
items and agree that the aliences are entitled to an absolute
title.
3.
Each party will bear his or her costs of the suit.
4.
The plaintiffs and defendants 1 to 3 pray that there may be
a decree on the above terms against defendants 3 and 4
also. No relief is claimed against the other defendants in
this suit.”
TWO DEATHS
8. Ramaswamy Naidu son of Lakshmiah Naidu passed away in
the year 1976. A year later in 1977 R. Krishnamaal, the widow of
Rangaswami Naidu also expired.
4TH STAGE
9. After the death of R. Krishnammal in 1977 O.S. No. 732 of
1981 was filed by R. Alagiriswami Naidu. Defendants 1 to 3 in the said
suit were V. Kalayanaswamy, Soundararajan and A. Alagiriswami. It
will be noticed that the plaintiff and the defendants 1 to 3 therein are the
legatees under the Will and are among the appellants before us. The
case set up in the said plaint(A16) was inter alia that plaint schedule
property in the said case was items 5 and 6 in O.S. No. 36 of 1963 as
noticed earlier. The compromise decree in O.S. No. 36 of 1963 entitled
R. Krishnammal only to a life interest and the vested remainder was
with the plaintiff and defendants 1 to 3. Further, the case of the plaintiff
was that in view of the death of R. Krishnammal on 30.04.1977, the
plaintiffs and defendants 1 to 3 were in joint possession of the properties.
It was complained that the first defendant had purported to sell 1.2 acres
to defendants 4 to 5. The cause of action was alleged to arise on the
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
668
SUPREME COURT REPORTS
[2020] 9 S.C.R.
basis of compromise decree in O.S. No. 36 of 1963 dated 18.02.1974
declaring the plaintiffs’ right to a vested remainder subject to the life
estate of R. Krishnammal. The prayer was for a decree of partition.
10. A17 is the written statement which was filed by the 3rd
defendant A. Alagiriswami who prayed for a decree of partition and
allotting his 1/4th share. It is also alleged that the property was in the
joint possession of the plaintiff and the defendants.
11. A18 is the decree passed in O.S. No. 732 of 1981. It is dated
21.06.1984 passed by the Additional Sub-Judge, Coimbatore ordering a
decree for partition.
5th STAGE / THE PRESENT LITIGATION
12. Apparently, the trigger for the present litigation was provided
by certain transactions by way of sale entered into by A. Alagiriswami
(one of the four legatees under the alleged Will by Rangaswami Naidu).
The first of the two suits which has generated the appeals before us
was filed by eight plaintiffs. It is O.S. No. 2087/82 [However it was
renumbered as O.S. No. 649/1985]. The first three plaintiffs are the
sons of Lakshmiah Naidu, the 4th plaintiff is the widow of Ramaswamy
Naidu who was one of the sons of Lakshmiah Naidu who, as noted,
passed away in 1976. Plaintiffs 5 to 8 are the daughters of Ramaswamy
Naidu.
13. As far as the defendants are concerned, the first defendant is
A. Alagiriswami whose actions apparently were the proximate cause of
the suit. Defendants
2, 3 and 4 are the other nephews of Rangaswami
Naidu who claim under the will. Thus, defendants 1 to 4 are the nephews
of Rangaswami Naidu and who are legatees under the will and among
the appellants before us. Defendants 5 to 26 were arrayed with allegations
that certain items of the suit properties were conveyed by first defendant
A. Alagiriswami to them. Defendants 27 to 33 are LRs of 10th defendant
impleaded vide order dated 29.4.1987. The plaintiffs have reiterated their
case as in the previous litigation which is briefly noted as hereinunder:
14. Properties belong ancestrally to R. Lakshmiah Naidu and his
brother Rangaswami Naidu. Lakshmiah Naidu and his brother
Rangaswami Naidu constituted the joint Hindu Family and the plaint
schedule property were the joint properties. Rangaswami Naidu died in
1955 without any issues and without any partition, therefore, the suit
properties, on the death of Rangaswami Naidu being coparcenary
A
B
C
D
E
F
G
H
669
properties on his death, the surviving coparcener Lakshmiah Naidu took
all the properties. Krishnamaal, the widow of Rangaswami Naidu was
only entitled to limited interest as per the law on that date. The death of
Rangaswami Naidu before Hindu Succession Act resulted in the surviving
co-parceners taking all the property by survivorship. Reference was
made to O.S.No.71 of 1958. It is averred that plaintiffs came to know of
the will only after the death of Rangaswami Naidu. Will is described as
false, frivolous and untenable. It is averred that the alleged will was
executed by Rangaswami Naidu under the undue influence of defendants
1 to 4. Taking advantage of the serious illness of Rangaswami Naidu
who was suffering from cancer, defendants seem to be coerced him to
execute the will which contains false recitals. Will is not a genuine
document. It is also untenable as per Hindu law as it stood on that date.
Any will by coparcener of his undivided interest in his property is illegal
and invalid. It was for this reason to sustain the illegal will, certain false
recitals were put in the will about the oral division that there was an oral
division between the brothers. The recital is said to be false and
unfounded. Until the death of Rangaswami Naidu, the brothers constituted
the joint Hindu Family and there was no division and there was no
partition. Thereafter, there is reference to litigation which we have
referred to already. Still later allegations were
made as follows in para
13 alone. It reads as follows:
“XIII. Defendants 1 to 4 knowing fully well that their collusive
attempt to get at the property have failed miserably started creating
trouble and complications. Recently they have purported to convey
certain items of the suit property in favour of their own partisans
out of ulterior motives. Knowing fully well that the defendants 1
to 4 cannot claim any right to the suit properties on the basis of
the will in view of their own prior conduct and also in view of the
fact that the said will is invalid and in operative have and fictitious
documents in favour of their own partisan out of ulterior motives.
The plaintiffs understand that certain items of suit property have
been sold by A. Alagirisami, the 1st defendant to defendants 5 to
26. The plaintiffs submit that the …. Are void and in operative.
These plaintiffs are not parties to the said also deeds and they are
entitled to ignore the said transactions.”
It is further stated that in 1960, the plaintiffs have divided their
properties in their own right. They have been paying kist for the properties
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
670
SUPREME COURT REPORTS
[2020] 9 S.C.R.
all along. They have been paying agricultural income tax on the basis
that the properties are their own.
It is also stated that even assuming that Krishnammal acquired
life interest in the undivided share of her husband on his death which
became subsequently absolute on her death intestate. Her husband’s
share had reverted both by survivorship and succession to plaintiffs 1 to
3 and their late brother Ramaswamy. It is further contended that without
prejudice to the contentions in the plaint, even if the will executed by
Rangaswami is sustainable, the life interest in respect of the properties
mentioned in the will conferred on his widow, Krishnammal became
absolute by virtue of Act 30 of 1956 with the result that Krishnammal
became the absolute owner of the properties including the suit property.
15. Referring to O.S. No.732 of 1981 filed before the Sub-Court,
Coimbatore in regard to claiming partition, it was contended that
R. Krishnammal having parted with the suit property in favour of the
plaintiffs under the compromise decree in O.S. No.71/1958 in the Sub-
Court, Coimbatore, the defendants 1 to 4 cannot make any claim to the
same.The same stood acknowledged by defendants 1 to 4 in proceedings
in O.S.No.36 of 1963 and O.S.No.732 of 1981 in the Sub-Court
Coimbatore.
16. The plaintiffs sought declaration of title and also prayed for
injunction. It is on the basis that they were in possession and the action
of the
first defendant (A. Alagiriswami) in executing sale deed in favour
of the other defendants was without any authority and they were
attempting to disturb the possession of the plaintiffs.
17. OS No.89 of 1983 is the other suit filed by the appellants side
by R. Alagiriswami who is one of the legatees (also the plaintiff in OS
No.732 of 1981) and showing defendants 1 to 3 as the other legatees
under the Will, defendants 4 to 11 representing the branch of Lakshmiah
Naidu and defendants 13 to 33 were the purchasers from the first
defendant. In the said suit, the relief sought was for partition of the plaint
schedule property. Plaintiff also sought compensation, mesne profits
besides declaration of their right. In brief, the case set up is as follows:
The plaintiff referred to the Will executed by his uncle. He further
based the suit on the fact that R. Krishnammal died on 30.04.1977.
It was averred that plaintiff and defendants 1 to 3 upon the death
of R.Krishnammal have equal right. The properties are in the
A
B
C
D
E
F
G
H
671
possession of defendants 4 to 6 who were the sons of Lakshmiah
Naidu. Reference is made to O.S.No.649 of 1985 and it is pointed
out that the said suit is not maintainable. There is reference to the
oral division of the properties between Lakshmiah Naidu and
Rangaswami Naidu in 1932. There is further reference to the
proceeding under Section 145 of the CrPC.  Later reference is
made to O.S. No.71 of 1958. It was averred that the decree in
the said suit was invalid. Under the Will,R.Krishnammal had only
the right to enjoy the property during her lifetime. The plaintiff
and defendants 1 to 3 were not parties and the decree will not
bind them.  Thereafter, R. Krishnammal tried to sell the aforesaid
property in her possession. Thereupon, O.S.No.36 of 1963 was
filed objecting to the sale. There is mention about the compromise.
It is their case that defendants 4 to 11 who have joined as parties
in that case have supported the compromise which means that it
must be considered that they accepted the Will. Written statements
were filed wherein as far as the respondents were concerned;
they accepted the same stand as they had in the plaint in the suit
filed by them.
Both the suits were tried together. A1 to A117 were produced on
the side of the plaintiffs in O.S.No.649 of 1985. On the defendants side,
who were the plaintiffs inOS No.89 of 1983, B1 to B18 were marked.
The trial court treated O.S.No.649 of 1985 as the leading case. C1 is
marked as Court Exhibit along
with X1 which is thefinger print register
in the Registrar’s office. By judgment dated 12.08.1989 the learned
Additional Sub Judge proceeded to dismiss O.S. No.89 of 1983 with
costs whereas O.S.No.649 of 1985 was decreed with costs.
18. The Trial Court after framing issues concluded that the case
that Rangaswami Naidu and his brother had orally partitioned the
properties in the year 1932, could not be accepted. It is further found
that the Will dated 10.5.1955 set up by Rangaswami Naidu, was invalid
for the reason that as on the said date, the Hindu Succession Act of
1956 containing, interalia, Section 30 had not come into force since
Rangaswami Naidu was joint with his brother and the Hindu undivided
family had not been disrupted under the law prior to the Hindu Succession
Act. It is also found that the Will was afflicted with many suspicious
circumstances. Though the Will was attacked by the legal heirs of
Lakshmiah Naidu on the ground that it was procured by coercion and
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
672
SUPREME COURT REPORTS
[2020] 9 S.C.R.
undue influence,the said arguments were not accepted. The Trial Court
also found that even proceeding on the basis of the Will, in favour of
Krishnammal, having regard to Section 14(1) of Hindu Succession Act,
the life estate blossomed into absolute rights in favour of Krishnammal
which meant the case set up by the appellants that they had the remainder,
could not be accepted. The suit filed by the appellants came to be
dismissed whereas the suit filed by legal heirs of Lakshmiah Naidu, came
to be decreed. In the appeals, the First Appellate Court agreed with the
Trial Court that there was no oral partition as claimed between
Rangaswami Naidu and Lakshmiah Naidu. However, the Court finds
that having regard to the publication made on 10.5.1955, in the newspaper,
there was a disruption in the status of the Hindu undivided family. It
meant that the Will was validly made by the Rangaswami Naidu. The
Appellate Court did not find merit in the findings of the Trial Court
regarding presence of suspicious circumstances.Revering the finding of
the Trial court, the Appellate Court found that having regard to the
restricted estate created under the Will, it is Section 14(2) of Hindu
Succession Act and not Section 14(1) which would apply. The First
Appellate Court found that it is Section 69 of the Evidence Act which
would apply in the facts of the case and not Section 68 of the Evidence
Act. In other words, it was found that the
present was a case where
both the attesting witnesses to the Will were dead. B-7 was a copy of
the deposition of the attesting witnesses. What is required under Section
69 stood proved.That apart, the First Appellate Court noted the fact that
the Will was registered andthat the executor appointed under the Will,
was the nephew of his wife Krishnammal and this again pointed out to
their being no foul play in the matter of the creation of the Will. Exhibit
(C-1) was an affidavit filed by the son of the executor in response to
direction to produce original of the Will. The First Appellate Court found
that the original Will was, in fact, produced before the Magistrate in
proceedings under Section 145 and marking of secondary evidence of
the Will, was in fact found justified by both the Trial Court and the First
Appellate Court. On the basis of these evidence, the First Appellate
Court allowed the appeals filed by the appellants and decreed O.S. No.
36 of 1963 and decreed partition as claimed by dividing the property into
four parts. The suit filed by the respondents came to be dismissed.
19. The High Court, in the second Appeals by the impugned
judgment has found that Will could not be relied upon, as the requirement
under Section 68 of the Evidence Act was not fulfilled. (B-7) the deposition
A
B
C
D
E
F
G
H
673
of one of the attesting witnesses to the Will did not establish due execution
of the Will,in that, it did not establish the attestation of the Will by the
other alleged attesting witness Dr. Iyer. The High Court also found that
Section 14(1) of the Hindu Succession Act, 1956 applied.This is on the
basis that R. Krishnammal, wife of Ranagasamy Naidu had a pre-existing
right to maintenance. Section 14(2) would therefore, not apply. The Will
was appreciated in the context of her pre-existing right to maintenance
to Krishnammal. This enlarged her limited estate under Section 14(1).
On the said basis of the findings and the restoration of judgment of the
Trial Court under the impugned judgment, the appeals are filed before
us.
A CLOSER LOOK AT THE ISSUES AND FINDINGS OF THE
TRIAL COURT
20. The trial court framed 14 issues in O.S.No.649 of 1985 and
an additional issue. In OS 89 of 1983 the trial Court framed 3 issues and
one additional issue. The trial court answers issue No.1 in O.S.No.89 of
1983 which was whether there was an oral partition as claimed by the
appellant between Rangaswami Naidu and Lakshmiah Naidu as follows:
It is found that it is not clearly proved that there was an oral
partition. B1 notice is referred to as letter dated 12.5.1955. It was
further found that the notice allegedly sent by Lakshmiah Naidu
dated 11.5.1955 was not produced by the plaintiffs or defendants
though the trial court referred to B43 produced in Section 145
proceedings.
Equally, the notice dated 16.5.1955 which was alleged
to have been sent by Rangaswami Naidu was also not produced
even though it is noted that B44 was produced in Section 145
proceedings. The Court also referred to the case of Bhagwant P.
Sulakhe v. Digambr Gopal Sulakhe1. It also noted the argument
that by the Will there was a division. It goes to find that though
PW1 has stated that Rangaswami Naidu has filed Estate duty
returns separately and was paying income tax separately and had
separate Bank account, A13 to A15 documents showed that
transactions were entered into which showed that the Hindu
Undivided Family consisting of coparceners continued jointly even
after 1932. This is despite noticing that there was separate
acquisition of property by Rangaswami Naidu sought to be
established by B3 to B5. These properties are treated as ancestral
1AIR 1986 SC 79
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
674
SUPREME COURT REPORTS
[2020] 9 S.C.R.
and finally the court has answered issue No.2 in favour of the
respondents by holding that there was no oral partition in the year
1932.
Issue no.1 which was whether the Will dated 12.5.1955 had been
written by Ranga Samy Naidu and was valid and genuine and whether
the Will was executed after his death, is answered as follows:
The trial court finds that the original Will was produced before the
Magistrate in the proceedings under Section 145 as Exhibit B68 rejecting
the contention of the respondents that original Will was not produced
even before the Magistrate. The trial court further refers to C1 notice to
the son of the executor of the Will to produce the Will. It also considers
the affidavit filed by the son to the effect that he was not in possession
of the Will and finds that the copy of the Will was marked as B10. The
trial court then went on to consider how far the Will was genuine and
whether B7 could be relied upon. B7 is the deposition given by
Venkataswami Naidu who was allegedly one of the attesting witnesses
to the Will dated 10.05.1955. This deposition was given by him in the
proceedings under Section 145 of the CrPC. The trial court went on to
discuss his evidence. It found that in the said evidence (B7) the attesting
witness has not spoken about the attestation by the other witness. He
has deposed that the other witness came and left before the Registrar
came. The Will was already typed. It is not
stated as to who has prepared
the Will. The witness has not deposed in B7 that the testator was
conscious. It was very doubtful. It was found doubtful as to whether he
has executed the Will out of free will. There was on pages 1 and 4 of the
Will portions written in ink. They are not referred to at the end of the
Will. The original of the Will was also not produced. This led to strong
doubts. The court took the view merely because PW1 in his previous
statement in proceedings under Section 145 has deposed that the signature
of Rangaswami Naidu was there in all the pages of the Will, it could not
be understood that the respondent had accepted the Will as genuine.
The case of the appellants that the other attesting witness who was the
doctor and a family friend would not have lend his name if the Will was
concocted and that B12 was an advertisement issued by the family on
the death of the other attesting witness, that is, the doctor also did not
appeal to the court and it entered the finding that Will was not genuine.
The court also in paragraph 32 notices that the testator had 5 sisters out
of which one sister did not have any issue. The 4 other sisters had male
A
B
C
D
E
F
G
H
675
and female children. The fact that only one son born to each sister was
bequeathed the property under the Will, also created doubt. The issue
was accordingly answered. It is also found that as it was not proved that
there was a partition, the Will would be invalid. The decision of this
Court in Nanni Bai and Others v. Gita Bai2 and Bhagwant P. Sulakhe vs
Digambar Gopal Sulakhe And Ors.(supra) were adverted to. Issue No.1
was accordingly answered. The finding was that the Will was not genuine
and it was not valid.
21. Issue No.3 was whether Lakshmiah Naidu inherited the
property by survivorship. It was found that Rangaswami Naidu died
without leaving behind a Will but he was survived by his widow
R. Krishnammal. R. Krishnammal had right of maintenance in the half
share of the property of Rangaswami Naidu. She had right under the
Hindu Women Right to Property Act, 1937. The trial court therefore,
answered the issue against the respondents and in favour of the appellants.
This means that the finding of the trial court is that the respondents are
not entitled to the plaint scheduled property in their own right on the
basis that indu Women Right to Property Act, 1937. The trial Court
therefore answered the issue against the respondent and in favour of
theLakshmiah Naidu became absolutely entitled under Hindu law being
the sole survivor upon the death of his brother Rangaswami Naidu.
22. Next issue which is issue No.4 was whether plaintiff in OS
No.89 of 1983
and defendant 1 to 3 were estopped by the proceedings
under Section 145 CrPC. The issue was answered in favour of the
appellantsby holding that they were not made parties and order will not
bind them.
23. Issue No.5 was whether the decree in OS No.71 of 1958 was
deceitful, invalid and whether it binds the plaintiff (plaintiff in OS No.89
of 1983). This issue was answered as follows:
It was found that A2 decree in OS No.71 of 1958 resulted
in R. Krishnammal the widow being conferred absolute right upon
her in regard to Items 1 to 7 in the said suit. It was found that
there was no evidence of any deceit. It was further found that in
OS No.36 of 1963 (A3) in the written statement filed by
R. Krishnammal (A4), it was stated that the compromise was as
desired by her. The issue was answered thus against the appellants.
2AIR 1958 SC 706
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
676
SUPREME COURT REPORTS
[2020] 9 S.C.R.
24. The trial court thereafter considered Issue No.6 and additional
issue No.1 in OS No.89 of 1983. Answering issue No.6 which was
whether the decree in O.S. No.36 of 1963 would constitute res judicata,
itwas found that there is no bar of res judicata involved as the suit had
been compromised. Regarding the additional issue which was whether
by virtue of having filed O.S. No.36 of 1963, the bar under Order II Rule
2 of C.P.C. stood attracted and barred the filing of the OS No.89 of
1983,the court found that permission was not sought from the court to
reserve the right to file a fresh suit in regard to property other than those
which were scheduled in OS No.36 of 1963. The plaintiff had acted
unilaterally in the matter. The Court found that the bar under Order II
Rule2was attracted.
25. Issue No.7 which was whether the case set up by defendant
No.1 (A. Alagiriswami) that there was an oral partition between him
and plaintiff and defendants 2 and 3, it was answered against defendant
No. 1 and it was found that such a partition was not proved.
26. Issue No.8 and 10 related to non-joinder, misjoinder and whether
defendants 13 to 34 in OS No.83 of 1983 were necessary parties was
answered by finding that there was no misjoinder or non- joinder and
there was no evidence that there was any unnecessary party. (It must
be remembered in this regard that the relevance of defendants 13 to 34
is that they are persons to whom part of
plaint scheduled property stood
transferred by the first defendant on the basis of the alleged oral partition).
27. Allied to this issue was issue No.12 which was whether
defendants 13 to 34 were entitled to any equitable relief. This issue was
answered against defendants 13 to 34.
28. Issue No.11 and 13 related to questions ancillary to the issue
whether the plaintiff had right in the property and right to partition.  Both
the issues were answered against the plaintiffs. Then the Court went on
to consider issue No.1 in OS No.649 of 1985. The issue was whether
R. Krishnammal had absolute right over the property governed by the
Will on the basis of Hindu Succession Act. The Court went on to hold
that the right of R. Krishnammal became absolute under Section 14(1)
of the Act.
29. Finally, the court took up the issue in OS No.649 of 1985
which was whether the plaintiffs therein were entitled to relief, as prayed
in the plaint and whether they were entitled to injunction. The court
A
B
C
D
E
F
G
H
677
found that the plaint schedule property was ancestral property. The
plaintiffs were legal heirs of Lakshmiah Naidu and on the death of
Rangaswami Naidu and they became entitled on the basis of the
compromise decree passed in OS No.71 of 1958 as a result of
R. Krishnammal giving up her right.  OS No.649 of 1985 was decreed
and OS No.89 of 1983 came to be dismissed.
PROCEEDINGS BEFORE THE FIRST APPELLATE COURT
30. Four first appeals were filed against the common judgment -
AS No.194 of 1989 was filed by the plaintiff in OS No.89 of 1989,  AS
No.195 of 1989 was filed by the same person R. Alagiriswami but as
defendant in OS No.649 of 1985 challenging the decree in the said suit.
AS No.320 of 1992 was filed by one V. Kalyanaswami who was
defendant No.2 in OS No.649 of 1985 challenging the decree therein.
V. Kalyanaswami is also the appellant in AS No.225 of 1992 challenging
the judgment in OS No.89 of 1983 wherein he was defendant No.2 (be
it noted that there was no appeal filed by any of the other defendants
including defendant D13 to D34 in OS No.89 of 1983) who were also
defendants in O.S. No.689 of 1985.
FINDINGS OF THE FIRST APPELLATE COURT
31. The first appellate court agreed with the trial court that it was
not proved that the suit property and the other property were separate
property as they were given to Rangaswami Naidu in 1932. The court
however finds that this could not lead to the conclusion that Rangaswami
Naidu died joint and not separated
from Hindu Undivided Family at the
time of death. The appellate court finds that by giving B1 advertisement
in a newspaper, a division was effected in status. Rangaswami Naidu
unilaterally allotted some of the properties of the HUF share and detailed
Will was written as would be explained later. The court went on to then
hold that he was a member of the Tamil Nadu Legislative Council. He
and his brother possessed several properties between 1944 and 1958.
PW1 accepted that in addition the family has purchased 1000 acres of
land. Sisters of Rangaswami Naidu were leading ordinary life. He was
very much attached to his sisters. He was living in the residential bungalow
of his sister-Ammani Ammal. He selected one son each of his own
sister.  Shares in a Mill was given to his brother. The selection of his
wife’s nephew, as executor was also considered. The court found
acceptance of the registered copy of the Will as secondary evidence as
“totally correct”. Relying upon B7 deposition and Section 69 of the
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
678
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Evidence Act, it was found that the requirements of Section 69 of the
Evidence Act were fulfilled. Registration dispelled all suspicion. The
fact that R1 testator refused to affix the mark impression and insisted on
signing, was also relied upon to show that he had sound disposing
capacity. The suspicious circumstances noted by the trial court did not
appeal to the court as such. B10 Will was found to be genuine. The
burden to prove that the Will was obtained by coercion and undue influence
was not discharged by the respondents. The court went on to find that
B1 had caused a division in status. It finds that B1 was published by
Rangaswami Naidu on 10.5.1955. Lakshmiah Naidu wrote a letter to
Rangaswami Naidu on 11.05.1955 rejecting B1 and stated that
Rangaswami Naidu was still continuing as member of HUF.
Rangaswami Nadu sent a reply letter on 16.05.1955 confirming B1.
They were marked as B43 and B44 is Section 145 proceedings. Rejecting
the argument of the respondents that there was no issue raised as to
whether division was effected vide B1 newspaper statement, it found
that there was pleading in the written statement of defendant No.1 and
in the counter statement of the other defendants. Plaintiffs and the
respondents were not surprised as regards the contention that it was not
open to a member of an undivided family to unilaterally allot property to
his share, as was done by Rangaswami Naidu. It was found
meritless
and supported as follows:
Respondents did not raise any objection regarding unilateral
allotment in OS 71 OF 1958 and OS 36 of 1963. Secondly, it was
noticed that there were more than 93 items amounting to 100s of
acres belonging to HUF and what was unilaterally allotted was
only a small part of the properties. The court finds that “it could
not think of that as totally unjustified”. The court noticed the
decision 
of 
this 
Court 
in 
Bhagwant
P. Sulakhe case (supra). This was dealt with by holding that that
was a case where there was a problem of partnership and it was
so decided.  The letter of Rangaswami Naidu dated 16.05.1955
was relied upon wherein he confirmed B1 advertisement and it
was found that it was unable “to consider this as a unilateral act
of declaration” and to decide that this act does not change the
joint family character of the properties.  It is stated that regarding
the problem, it is decided that B1 created a division in status.
Even though Rangaswami Naidu did unilateral allotment,
Lakshmiah Naidu and sons accepted the unilateral allotment in
A
B
C
D
E
F
G
H
679
their subsequent conduct and therefore not entitled to challenge
the Will.
32. The argument of estoppel raised against the appellants based
on the conduct of the appellants in OS No.36 of 1963 in accepting the
absolute title of R. Krishnammalin items No.1 to 3, 4 and 7 was found
without merit. It found that items 1,3 and 4 were items sold by
R. Krishnammal to defendants 5 and 6 in the said suit.Item No.7 was
the land acquired by the government. It was found that there was no
evidence to reveal on what basis defendants 1 to 4 have acted qua the
compromise in regard to the properties sold and item acquired by the
Government. It was found further that the compromise was with regard
to the items sold and acquired and even the court cannot decide this
situation as acting against the appellants. Thereafter, the Court finds
that in B10 Will, 19 items of properties are mentioned. Items 1 to 7 to
which R.Krishnammal was given absolute title under the compromise
decree were scheduled as suit properties in OS No. 36 of 1963. The
argument of the respondents that as the appellants had accepted that
R.Krishnammal has abandoned her right in the other property in OS No.
71 of 1958 those properties were not scheduled in OS No. 36 of 1963
and the bar of Order II Rule 2 would apply, was repelled. The Court
found that the plaintiff in OS No. 36 of 1963 had reserved the right.
Secondly the bar of Order II, Rule 2 will not apply having regard to the
death of R. Krishnammal
much after 1963, which was in 1977. It was
found that Order II Rule 2 cannot apply, as in 1963 the plaintiff did not
have the right which accrued to them (legatees) only upon the death of
R.Krishnammal as absolute owners under the Will. It was further found
that the decree in OS No. 36 of 1963 further diluted the compromise
decree in OS No. 71 of 1958 wherein R. Krishnammal was conferred
absolute title in items 1 to 7. Under decree in OS No. 36 of 1963 the
sons of Lakshmiah Naidu were joined as parties. They had appointed an
advocate. The advocate has made a joint endorsement for the compromise
decree. Under the decree in OS No. 36 of 1963, the right over items 5
and 6 was by way of reserving life interest in favour of R.Krishnammal
and this was found to be against respondents. Thus, a right under the
Will was conferred by the conduct of the parties. Regarding the
controversy qua Section 14 of the Hindu Succession Act, it was found
that R.Krishnammal had prayed for the right under Section 14 (1) only
as alternative relief in OS No.71 of 1958. The court found it unable to
decide that the absolute right given to R.Krishnammal in OS No. 71 of
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
680
SUPREME COURT REPORTS
[2020] 9 S.C.R.
1958 was given in accordance with her right under Section 14 (1) and
had it being the case the appellants should have been made parties and
the executor of the Will would not have been exonerated. It was found
that R. Krishnammal had no intention to obtain absolute right under
Section 14 (1). It was further found that the conduct of the respondents
was in a manner that she should not get her share in property. Lakshmiah
Naidu and his sons conducted proceedings under Section 145 to withhold
property in their possession. In OS No.  71 of 1958 they gave items 1 to
7 by a pittance for the compromise.  R.Krishnammal, it was held, accepted
her estate for life as something was better than nothing. It was found
noteworthy that in OS No. 71 of 1958, it was not openly stated by
R. Krishnammal that she had a right under Section 14 (1) and she has
abandoned all the properties except items 1 to 7 therein. The compromise
decree in OS No. 36 of 1963 revealed that the parties intended to follow
the Will, as could be seen from bestowing life interest in items by them
by diluting the compromise decree in OS No. 71 of 1958. Accordingly
Appeal No. 195 of 1989 and Appeal no. 20 of 1989 were allowed. OS
No. 649 of 1985 was dismissed. Appeal No. AS No. 194 of 1989, AS
No. 225 of 1992 were also allowed setting aside the judgement in OS
No. 89 of 1983, the said suit was decreed. It was ordered that schedule
II properties should be divided
into 4 equal shares and one share should
be allotted to the plaintiff. A preliminary decree for partition was passed
and further mesne profit was to be decided based on application under
Order 20 Rule 12 CPC.
FINDINGS OF HIGH COURT IN THE IMPUGNED
JUDGMENT
33. In one common judgment, the High Court disposed of the
second appeals. It found that both the courts had concurrently found
that there was no proof that there was a partition in 1932. It went on to
find that in such circumstance, the question was whether there was a
division before the death of Rangaswami Naidu. It notes that there is no
issue raised that a division was brought about by issuing B1. The first
appellate court, it was noticed, framed specific issue of division based
on B1. Based on B1, division of status was not proved. It went on to
agree with respondents that the plaintiff in OS No.89 of 1983 relied
upon B1 dated 12.05.1955 while the first defendant in OS No.649 of
1985 in the written statement has stated that Rangaswami Naidu had
issued the public notice on 10.05.1955 that he was a divided member
A
B
C
D
E
F
G
H
681
from his brother since 1932 for which a notice was issued on 11.05.1955
and for which a reply was also given by Rangaswami Naidu. It was
further found that apart from the newspaper “Navva India” dated
12.05.1955, no other document was filed in the proceedings. The court
found there is absolutely no reason to conclude that there was any division
between the brothers before Rangaswami Naidu died. It is further stated
that it is not in dispute that the publication stated to have been effected
by Rangaswami Naidu, is on the basis of the previous partition between
him and his brother in 1932 and inasmuch as the courts have concurrently
held that there was no prior partition and in absence of any proof of
separation by Rangaswami Naidu with his brother before his death, the
finding of the first appellate court, was described as baseless. It was
found that it was doubtful whether RangaswamiNaidu had any right to
make a Will. The original Will was not produced. The plaintiff (the plaintiff
in OS No.89 of 1983) did not take any steps to produce the Will. None
was examined though the registration book from the Sub-Registrar was
summoned and marked as X1. The Magistrate in Section 145 proceedings
did not discuss the Will and the appellant-plaintiff in OS No.89 of 1983
placed sole reliance on the order of the Executive Magistrate. It is further
noticed that the Will was presented for registration as per the endorsement
at the residence of Ammani Ammal whereas in B7
deposition of the
attesting witness, the registration took place at the home of the deceased.
In the absence of the original Will and non-compliance with the
requirement of Section 68 and 69 of the Evidence Act, the court found
that the Will was not proved. Registration of the Will does not dispense
with the proof of the Will. It agreed with the findings of the trial court in
this regard. The Executor is stated to have died in 1990 but no steps
were taken to produce the Will during that time. It was not known why
the plaintiff did not take steps to summon the records of proceedings
under Section 145. R. Krishnammal acquired right under Section 14(1)
of the Hindu Succession Act on the basis of the compromise. The rights
of R. Krishnammal opened on 01.06.1955 when her husband died.
R. Krishnammal had right to maintenance which was an existing right.
The High Court distinguished the judgment of this Court in Sadhu Singh
v. Gurdwara Sahib Narike and Others3. By virtue of that right under
Section 14(1) she had entered into the compromise in OS No.71 of 1958
and this was entirely recognised by the appellants. The appeals were
allowed and the decree of the trial court was restored.
32006 (8) SCC 75
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
682
SUPREME COURT REPORTS
[2020] 9 S.C.R.
CONTENTIONS OF PARTIES
THE DEBATE IN THE COURT AND THE WRITTEN
SUBMISSIONS
34. We have heard the learned counsel appearing for the parties.
We heard Shri C.A. Sundaram, learned Senior Counsel who led the
arguments on behalf of the appellants. We heard Mrs. Mohana and Shri
V. Giri, learned Senior Counsels also, on behalf of the appellants. We
further heard Shri Mohan Parasaran, Shri S. Guru Krishnakumar,
Mrs. Chitra Sampath, and Shri V. Raghavachari, learned Senior Counsel,
on behalf of the respondents. This is besides noting the submission of
Shri S. Nagamuthu, learned senior counsel on behalf of some of the
alienees from defendant No. 1 in OS 649/ 1985.
35. The appellants were led by Shri. C.A. Sundaram, learned
senior counsel. He contended that the High Court had in the impugned
judgment transgressed the limits under Section 100 of the CPC and re-
appreciated the findings based on facts which was impermissible. He no
doubt also does not invite us to find that there was an oral partition in the
year 1932 but he contended that before Rangaswami Naidu died on
01.06.1955 by virtue of issuing B1 paper advertisement, the requirement
in law for bringing about a division in the status of the Hindu Undivided
Family was achieved. He took us to the terms of B1 and submitted that
there is an unequivocal declaration of Rangaswami Naidu being separated.
Response by his brother by communication dated 11.05.1955 purported
to
dispute the contents of B1. This fact was harnessed to contend that
the requirement in law that not only a member who wishes a division in
the joint family to be brought about, should communicate his intention
but the communication should reach the other coparceners, was fulfilled.
The elder brother did respond and till further, lending credence to the
case set up by the appellant communication dated 16.05.1955 was issued
by Rangaswami Naidu reiterating his stand manifested in Exhibit B1. It
is not the law, learned senior counsel pointed out, that there must be any
reason at all for a member of the Hindu Undivided Family to severe its
connection with the family and to withdraw as it were from the undivided
status. All that is required is an unequivocal declaration which is
communicated and the same was achieved issuing in B1. He would
further submit that the Will was indeed genuine and free from taint or
suspicious circumstances, which at any rate was found by the first
appellate court which is the final court on facts. Rangaswami Naidu
A
B
C
D
E
F
G
H
683
was indeed fond of his sisters. He did not have any issues. It is only
natural and probable that therefore finding that death was not too far
away he wanted to provide for both - his wife in the form of life estate
and also to bequeath the absolute right in the 4 legatees (appellants before
us) and he has drawn from each of the 4 branches of his sisters. The
evidence given by the attesting witness in Section 145 proceedings fulfilled
the requirement of Section 69 of the Evidence Act, as was correctly
found by the first appellate court. In regard to the discrepancy in the
date of Exhibit B1, viz., that it is shown in the Appendix to the trial court
judgment as being dated 12.05.1955 it is only a mistake and the date is
actually 10.05.1955.  In regard to the requirement to be fulfilled to bring
about a division in joint family he relied on the following judgments:
1. Krishnabai Bhritar Ganpatrao Deshmukhv. Appasaheb
Tuljaramarao Nimbalkar and Ors.4;
2. Addagada Raghavamma and Ors.v.Addagada Chenchamma
and Ors.5
3. Adiyalath Katheesumma and Ors.v.Adiyalath Beechu and
Ors.6;
The appellants also relied upon B2 order passed in the
proceedings under Section 145 CrPC to show that
Rangaswami Naidu declared his divided status vide
communication dated 10.05.1955. Another contention addressed
is that even the execution of the Will amounted to declaration
of status. Reliance is placed on Addagada Raghavamma
case(supra) and Bhagwan Krishan Gupta v. Praabha Gupta&
Ors7.
The execution of the Will shows thatRangaswami Naidu
was in control of specific properties. Evidence of R.
Krishnammal and the executor in the will in 145 proceedings
establishes that testator was capable of dealing with the
properties and executing Will in respect of portion of his huge
estate.  Reliance is placed on the judgment of this Court
reported in Jalaja Shedhti& Ors. v. Lakshmi Shedhti & Ors.8,
41979 (4) SCC 60
5 AIR 1964 SC 136
6 AIR 1951 MAD 561
72009 (11) SCC 33
81973 (2) SCC 773
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
684
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Hardeo Rai v. Sakuntala Devi & Ors.9 and Kalyani (Dead) by
LRs v. Narayanan & Ors.10. It is the submission of the appellant
that Rangaswami Naidu was capable of identifying and
disposing of properties in the Will. Rangaswami Naidu has
purchased properties in his name with his money which was
dealt with by him as his own portion. Partition by metes and
bounds is not mandatory. The requirement of Section 69 of the
Evidence Act stands fulfilled on perusing the deposition of one
of the attesting witness in Section 145 proceedings. The
signature of the testator was identified by PW1 himself. The
original Will has been produced in Section 145 proceedings. R.
Krishnammal has based her case on the will in 145 proceedings
and in the subsequent suits, viz., OS No.71 of 1958 and OS
No.36 of 1963. The respondents however admitted to a
compromise though an issue was framed regarding the Will.
We are reminded that the Will is a registered document and
that registration is a solemn act. It is the contention of the
appellants that the wording in the Will and the surrounding
circumstances clearly show the intention of Rangaswami Naidu
to be that he wanted some properties of his estate to go to his
sisters’ sons with whom he was very affectionate. Our attention
is drawn to the reasoning of this Court in K.S. Palanisami
(Dead) through LRs & Ors. v. Hindu Community in General
and Citizens of Gobichettipalayam& Ors.11. It is the further
submission of the appellant that R. Krishnammal, the widow
has only limited estate during her lifetime which does not blossom
into absolute right under Section 14(1) of the Hindu Succession
Act. It is contended that the primary relief sought by R.
Krishnammal in OS No.71 of 1958 was itself based on the
right under the Will. She never claimed under Section 14(1) of
the Hindu Succession Act. She knew the intention of the testator
and accepted it by her conduct. The property bequeathed to
her was only limited estate with onerous condition that she has
to maintain sisters etc. and on her death the property was to
devolve upon her sisters’ sons. Considerable reliance was
placed upon the judgment of this Court in Sadhu Singh’s case
92008 (7) SCC 46
101980 (2) SCR 1130
112017 (13) SCC 15
A
B
C
D
E
F
G
H
685
(supra). Taking us through the Will the appellants contend that
the testator has provided other properties for the maintenance
of Krishnammal, and therefore, it could not be argued that the
plaint schedule property which are included in the Will were
given in lieu of her right to maintenance which should become
absolute after passing of the Hindu Succession Act. Reliance
is placed on the following judgments:
(1) Shivdev Kaur (Dead) by LRs & Others v. R. S. Grewal12
(2) Sharad Subramanyan v. Soumi Mazumdar & Ors.13and
(3) Gaddam Ramakrishnareddy & Ors. V. Gaddam Rami
Reddy & Ors.14
36. As regards the finding of the High Court that the suit filed by
the legatee is barred under Order II Rule 2, it is contended that though
there is a vested right under Section 119 (1) of the Indian Succession
Act in favour of the appellants (legatees), the cause of action to sue in
respect of the bequeathed property arose only after the death of
R. Krishnammal. O.S. No.36 of 1963 was a protective action to deal
with R. Krishnammal purporting to alienate certain properties. Plaintiffs-
appellants in OS No.36 of 1963 were not parties to the suit in 1958 and
the compromise in OS No.71 of 1958 will not bind the appellants.
R. Krishnammal, the widow did not have any right to deal with the
properties which were given to her by way of life estate. She could not
have entered into compromise without including the appellants. The
decree is described as void ab initio and therefore,
there is no need to
declare that decree or any transaction thereon as such. Still further it is
contended that perusal of the plaint in OS No.36 of 1963 would show
that plaintiffs have reserved their rights in respect of the rest of the
properties to initiate separate action. The respondents have agreed for a
declaration that Krishnammal had only a life estate and they are therefore
estopped from contending that R. Krishnammal had absolute right. The
cause of action arose only after 1977 on the death of R. Krishnammal.
Reliance is placed on judgments of this Court in Bay Berry Apartments
Pvt. Ltd. & Ors. Shobha & Ors.15 and Usha Subarao v. B.E.
Vishveswariah16. It is contended that Krishnammal did not have any
122013 (4) SCC 636
132006 (8) SCC 91
142010 (9) SCC 602
152006 (13) SCC 737
161996 (5) SCC 201
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
686
SUPREME COURT REPORTS
[2020] 9 S.C.R.
right to give away the properties which was not for any legal necessity
or family necessity. The transaction itself has been challenged as
fraudulent and collusive in OS No.89 of 1983 and an issue was also
framed. A contention is also taken that the compromise decree was not
registered and therefore could not convey any title to the respondents.
It is also submitted that the challenge made to the will in the year 1982 is
barred by limitation. It is further contended that respondents are estopped
from challenging the validity of the will in the light of admitting the
existence of the Will and compromising the suits OS No.71 of 1958 and
OS No.36 of 1963. The High Court erred in decreeing OS No.649 of
1985 without declaring earlier compromise decree between the same
parties in OS No.71 of 1958 and OS No.36 of 1963 as null and void.
Any such declaration would be barred by limitation in the year 1982.
Under the decree in OS No.36 of 1963 R. Krishnammal had only the life
estate and Section 14(2) would apply. The right to the property by
survivorship which was set up by the respondents was negatived by the
trial court and no appeal was carried against the same. It is also the
submission of the appellants that even on the death of Krishnammal on
the basis that she had acquired absolute right under Section 14(1), the
brothers and sisters’ sons were equally entitled to 1/8th share in the entire
50 per cent of the property which
fell to the share of Rangaswami Naidu.
37. We also heard Shri V. Giri, learned senior counsel for the
appellants. Shri Nagamuthu, learned senior counsel canvassed
contentions for the transferees from the 1st defendant in OS No.89 of
1983 and complained that their contentionshas not been considered and
accepted.
38. We notice the following submissions by Mrs. V. Mohana,
learned Senior Counsel on behalf of the appellants. There are sufficient
pleadings in regard to the division of status. The newspaper in “Navva
India” dated 10.05.1955 has never been disputed. She drew our attention
to the evidence of the Executor in the proceedings under Section 145 of
the CrPC. The declaration was communicated. Rangaswami Naidu had
the capacity to bequeath the properties. The brothers were dealing with
the properties separately. In this regard, reliance is placed upon judgments
of this Court in Hardeo Rai v. Sakuntala Devi and others17. It is not
necessary to prove partition by metes and bounds. The original Will was
produced before the Magistrate in proceedings under Section 145 of the
17 (2008) 7 SCC 46
A
B
C
D
E
F
G
H
687
CrPC. The Will is a registered document. The Will has been proved
under Section 33 of the Evidence Act. The Magistrate Court is a Court.
Reliance is placed on Krishnayya Surya Rao Bahadur Garu and others
(Defendants) v. Venkata Kumara Mahitathi Surya Rao Bahadur Garu18.
The earlier proceedings in O.S. No. 71 of 1958 is not binding upon the
appellants. R. Krishnammal did not have the right to deal with the
properties. The Decree in O.S. No. 71 of 1958 was void. Appellants
have never abandoned their rights. Principle of Order II Rule 2 of the
CPC will not apply. Though the appellants had vested rights they could
not have filed the case for getting possession till the death of
R. Krishnammal. As per the compromise Decree in O.S. No. 71 of
1958, rest of the properties were in the control of the plaintiffs. Therefore,
they have reserved their right in O.S. No. 36 of 1963. The issue of
Order II Rule 2 of the CPC was never argued nor any finding was given
by the High Court. In the Suit for Partition, there is a prayer for possession.
Anyways, the partition could be effected only when the final Decree
Proceedings are over. The question of limitation was never agitated by
the respondents, and at any rate, the period begins to run only in the year
1977. The Will is not in lieu of maintenance. The case falls under Section
14(2) of the Hindu Succession Act. Attempt has been made to distinguish
decision of this Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe
and others (supra). Shri Om Prakash, learned Senior Counsel in his written
submission in Civil Appeal Nos. 1027 to 1032 of 2013, would contend,
inter alia, that division and severance of the joint family stood proved.
He lays store by the judgments of this court in Addagada Raghavamma
and another v. Addagada Chenchamma and another19, Janki Narayan
Bhoir v. Narayan Namdeo Kadam20 and Hardeo Rai (supra). The Will
is covered under Section 63 of the Evidence Act and Section 68 of the
Indian succession Act. The right in the joint family properties, devolving
by survivorship, is negatived by the all the courts below and there is no
appeal against such finding and there is no cross appeal.
CIVIL APPEAL NO. 1039-1044 OF 2013
In the Written Submission, it is sought to be contended that the
challenge to the Will made by the plaintiffs (in O.S. No.649 of 1985) in
the year 1982 is barred by limitation. They are estopped in view of the
18AIR 1933 PC 202
29AIR 1964 SC 136
20(2003) 2 SCC 91
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
688
SUPREME COURT REPORTS
[2020] 9 S.C.R.
compromise in O.S. No. 71 of 1958 and O.S. No. 36 of 1963. Without
declaring Compromise Decrees, in the earlier two cases null and void,
O.S. No. 649 of 1985 could not have been decreed. Such a relief is
barred by limitation in the year 1982. Section 14 (1) of the Hindu
Succession Act does not apply in view of the Compromise Decree in
O.S. No. 36 of 1963. The case based on survivorship was rejected by
the Trial Court and, against the same, no appeal was filed by the plaintiffs.
If the finding under Section 14(1) is confirmed, then, on the death of R.
Krishnammal, by operation of law, the brother’s and sister’s son are
equally entitled to 1/8th share in the entire 50 per cent of the property
which fell to the share of V. Rangaswami Naidu. Since, the plaintiffs
had knowledge of the Will in the Section 145 of the CrPC proceedings,
they were not entitled to challenge the Will in 1982.
39. In C.A.No.1045-1050 of 2013, the appellants are among
defendants 13 to 34 in OS No.89 of 1983. They are also defendants in
the other suit (O.S. No. 649 of 1985). It is their contention that they
purchased 7 acres and 4 cents from A. Alagiriswami who is defendant
No.1 in OS No.89 of 1983 and also the first defendant in OS No.649 of
1985. The said purchase was prior to the filing of the suit and after the
Hindu Succession Act, 1956 came into force. After referring to Section
14(1), it is contended that the right given to R. Krishnammal for
a lifetime
became her exclusive right after the said Act came into force. After
referring to Section 14(2), it is pointed out that even according to
Lakshmiah Naidu on their contention that the will is not genuine and
there was no partition, there would not be any restriction under Section
14(2) for having absolute right by R. Krishnammal under Section 14(1).
Referring to the Compromise Decree in OS No.71 of 1958, it is stated
that when there was no objection by the sons and grandsons of Lakshmiah
Naidu now they cannot raise dispute about partition in 1932 and the
execution of the will. Upon the death of Rangaswami Naidu in 1955 and
R. Krishnammal on 30.4.1977 under oral partition between the family of
the sister of Rangaswami Naidu, the property purchased by the appellants
came into possession of A. Alagiriswami from whom they purchased.
None of the parties till date challenged their sale deed and the sons of
Lakshmiah Naidu filed O.S. No.649 of 1985, after 3 years of sale without
even challenging the sale. Interference by the High Court with the
findings is complained against.
40. Mr. Guru Krishnakumar, learned senior counsel appearing on
behalf of the branch representing Lakshmiah Naidu submitted that the
A
B
C
D
E
F
G
H
689
declaration B1 is shrouded in serious doubt. The discrepancy in the date
viz., that it is dated 12.05.1955 and not 10.05.1955 looms large. Even
while accepting the document before this Court, the date of B1 was
conspicuously left out. The cross examination of PW1 and the reliance
placed on the same is misplaced. Secondly, it is further contended that
B1 is an unsigned document. No witness has deposed that the testator
arranged for its publication. Further, it is contended that the declaration
seeks to reaffirm the alleged partition of the year 1932 which partition
has not been believed by three courts. B1 could not be believed
independent of the alleged partition. Once the alleged partition was
disbelieved B1 would have no legs to stand on. It is contended that the
words relied upon by the appellants is in past continuous, insofar as it
says “I also hereby make a declaration of my divided and separate status”,
it was not to be from that date that the severance was to take effect.
The findings of the first appellate court are attacked as being perverse
for the reason that response to B1 and the rejoinder to the same which
were marked as B43 and B44 in the proceedings under Section 145
were not exhibited in the present proceedings. B2 order does not reveal
any findings on the same. It is further contended that partition is used in
a narrow and wide sense. B1 even if relied upon would only result in
separation of status but not actual partition by metes and
bounds.  Reliance
is placed in Addagada Raghavamma v. Addagada Chenchamma21. The
position at law is pointed out to be that the members of the undivided
family even after a unilateral communication of severance of status must
agree to a particular portion of the property being earmarked to a member.
Reliance is placed on the judgment of this Court in Nanni Bai & Ors.
V. Gita Bai Rama Gunge22 and Bhagwant P. Sulakhe v. Digambar Gopal
Sulakhe & Ors.(supra) besides Kalyani (Dead) by LRs v. Narayanan
and Others(supra). It is pointed out that in Addagada Raghavamma
case(supra), this Court did not consider the specific issue as to whether
specific items of property could be unilaterally willed without the consent
of the other coparceners or without partition by metes and bounds. The
non-production of the original will is made a ground of attack. The finding
of the trial court that the original will was produced in Section 145
proceeding is also pointed out to be the product of error.  No steps were
taken to produce the Will. The reliance placed on B7 deposition which is
the deposition in proceedings under Section 145 of the CrPC is impugned
21AIR 1964 SC 136
221959 SCR 479
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
690
SUPREME COURT REPORTS
[2020] 9 S.C.R.
as being not binding as the proceedings under Section 145 could not be
the forum for establishing the Will. Adjudication under the said provision
could not be used as conclusive evidence to prove the Will in view of
Section 41 of the Evidence Act. Reference is also made to Section 42 of
the Evidence Act. It was further contended that the ingredients of Section
69 of the Evidence Act have not been met. It is pointed out that without
conditions of Section 69 being not met for the purposes of Section 145
CrPC, the same evidence could not be used to rely upon for the purpose
of Section 68 of the Evidence Act. Further it is contended that the evidence
which did not fulfil the requirements of Section 68 could not be used to
prove the Will under Section 69 of the Evidence Act. Even otherwise, it
is contended B7 falls short of the requirement when there is no evidence
to prove the signature of the testator, the original Will not having been
produced. The exercise should not be undertaken as DW1 does not
even know the signature of the testator. It is pointed out that suspicious
circumstances surrounding the Will has not been explained.  The argument
that Will could be taken as a declaration of the severance of status is
disputed. It is pointed out that the Will was communicated only with the
proceedings under Section 145 which was after the death of the
Rangaswami Naidu on 01.06.1955 on which date the partition had opened
under the Mitakshra Law. It is also contended that the Section 33 of the
Evidence Act does not apply. This is for the reason that under the
explanation to Section 33 it would apply where a person claims under
the party in the other proceedings. It is contended that the appellant (the
plaintiff in OS No.89 of 1983 apparently) has not claimed under
Krishnammal. It is further contended that Section 14(1) of the Hindu
Succession Act would apply.
41. Learned senior counsel appearing on behalf of the respondent-
Shri Raghavachari, contended as follows:
There was no partition. Paper publication dated 12.05.1955 spoke
of an earlier division. The unilateral declaration is unacceptable.
Suspicious circumstances include testator being bed ridden being
in his last days as he was suffering from the cancer of the food
pipe and was being fed by a tube and not being conscious are
referred to. The question of letting in secondary evidence did not
arise. The alleged Will contains inked portion and interlineations.
It is further contended that OS No.71 of 1958 was filed by the
widow R. Krishnammal for partition of the joint family properties
A
B
C
D
E
F
G
H
691
in which suit she had enlisted all 93 items of the joint family
properties and claimed half share. The suit was compromised
and she accepted 16 items and confirmed rights to 77 items in
favour of the sons of Lakshmiah Naidu. R. Alagiriswami and V.
Kalyanaswami (among the appellants before us) filed OS No.36
of 1963 and the children of Lakshmiah Naidu were also made
parties. The right of R. Krishnammal to enter into a compromise
in OS No.71 of 1958 was challenged as according to them she
had only a life interest. R. Krishnammal, the defendant contended
that she had absolute right under Section 14(1) and hence the
authority to enter into compromise. Entering into a compromise in
OS No.36 of 1963 by taking two items out of 16 items after the
lifetime of R. Krishnammal meant that the plaintiffs in OS No.36
of 1963 accepted the superior rights of R. Krishnammal and they
gave up their claim and accepted  the sale to third parties effected
by R.Krishnammal of 5 items. Reference is also made to OS
No.732 of 1981 filed by the plaintiff also in OS No.36 of 1963. In
the said suit plaintiffs have sought to divide the two items which
they secured in OS No.36 of 1963. Our attention is drawn to the
pleading in OS No.732 of 1981 to the effect that the properties
belong to one R. Krishnammal which was allotted to her share in
OS No.71 of 1958 and the said properties were in her possession
till her death. In other words, it is pointed out that right was not set
up under
the will. The right was abandoned in 1974 and which
abandonment was affirmed in 1981 thus attracting the principles
of estoppel, acquiescence and waiver. The contention is also taken
that OS No.89 of 1983 is hopelessly barred by limitation even
proceeding on the basis that there is a Will and that will is true,
Section 14(1) of the Hindu Succession Act would apply.
42. Shri Mohan Parasaran, Senior Advocate would submit inter
alia that there is no pleading for the case of severance. The Will was not
proved in accordance with law. The proceedings under Section 145 of
the CrPC were summary in nature and not inter-parties. The subject
matter was possession. Therefore, the evidence adduced in the said
proceedings should not be used. The right available to Krishnammal
was under Section 14(1). The bar under Order II Rule 2 applied.
43. Smt.Chithra Sampath, learned senior counsel appearing for
some of the respondents contended that plaint schedule property was in
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
692
SUPREME COURT REPORTS
[2020] 9 S.C.R.
the possession of the respondents (the children of Lakshmiah Naidu)
right from the time of proceeding under Section 145. While this was the
position yet there is no prayer for recovery of possession in OS 89 of
1983. Any such relief would be barred by limitation.Relying on the
judgment of this Court in (2007) 12 SCC 695, it is contended that since
there is no pleading regarding division of status is O.S. No. 89 of 1983
and in the Written Statement in O.S. No. 649 of 1985, in spite of the
specific plea of the respondents in O.S. 649 of 1985 that there was no
division, no amount of evidence can be looked into. There is no issue
framed regarding division. The Appellate Court has relied on documents
not filed in these proceedings. The content of the same was not known
to the parties as they were not discussed and findings rendered. [This is
with reference to the Order passed, Exhibit-B2]. The proceedings under
Section 145 of the CrPC are summary in nature and do not bind the Civil
Court. There is no communication to bring about a division of status
prior to the death. Reliance is placed on Madhusudan Das v. Narayanibai
(Deceased) by Lrs. and others23. It is not a case where the Will is lost.
Relying on Benga Behera and another v. Braja Kishore Nanda and
others24, it is contended that only after pleading and proving loss of
original Will beyond reasonable doubt, that secondary evidence could be
adduced. In regard to
reliance placed on B7, our attention is drawn to
the Judgment of this Court in Sashi Jena and others v. Khadal Swain and
another25. It is contended that the issue involved in the proceedings under
Section 145 of the CrPC were related to possession and the issue of Will
by Rangaswami was not considered, and therefore, two conditions in
Section 33 of the Evidence Act are not met. The other condition is
obviously the first condition in the proviso on the basis that that the plaintiff
in O.S. No. 89 of 1983 is not tracing his title through the parties in Section
145 proceedings. Suspicious circumstances, including even refusal by
the Testator as reflected in X1, to prefixing his thumb impression pointing
to his mental condition, are pointed out. Incorrect statements in the Will
are enlisted to impugn the Will. The case falls under Section 14(1) of the
Hindu Succession Act. Conduct of the plaintiff in O.S. No. 89 of 1983 in
filing O.S. No. 732 of 1981, on the basis it was filed, renders it a fit case
for applying the principle in Krishna Beharilal v. Gulabchand26 and S.
Shanmugam Pillai and others v. K. Shanmugam Pillai and others27. This
23(1983) 1 SCC 35
24 (2007) 9 SCC 728
25(2004) 4 SCC 236
26(1971) 1 SCC 837
27(1973) 2 SCC 312
A
B
C
D
E
F
G
H
693
is besides pointing out the effect of filing O.S. No. 1936 of 1963 and
endorsement in the Plaint that no relief was claimed against the other
defendants, thus, making it a case where no right was reserved in O.S.
No. 36 of 1963 to agitate their rights in respect of other properties in the
Will.
THE PROPERTY AT STAKE
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. The extent of property involved in
the cases before us is a little over 36 acres.
THE EFFECT OF ORDER II RULE 2 OF THE CPC
45. The contention raised by the respondents is, inter alia, that
O.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code of Civil
Procedure, 1908
(hereinafter referred to as ‘the CPC’, for short) CPC.
This is for the reason that when two out of the four appellants have
instituted O.S. No. 36 of 1963, they have scheduled only seven items in
the said Suit. It was open to the appellants to claim the relief which they
have claimed in the present Suit. Having not sued in respect of the items
of properties other than the items scheduled in O.S. No. 71 of 1958, they
are barred under Order II Rule 2 of the CPC. This is countered by the
appellants by pointing out two aspects. Firstly, it is contended that under
the Will, though they had vested right, O.S. No. 36 of 1963 had to be
instituted when R. Krishnammal-the widow of Rangaswami Naidu had
made preparations for alienating the items scheduled in O.S. No. 36 of
1963 and which were covered by the Decree in O.S. No. 71 of 1958.
Secondly, it is pointed out by the appellants that under the Will, R.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
694
SUPREME COURT REPORTS
[2020] 9 S.C.R.
Krishnammal-the Widow had a life estate in respect of the plaint
scheduled properties. Consequently, as long as she was alive, a Suit of
the nature, as is filed, viz., O.S. No. 89 of 1983, could not be filed, when
under the Will, R. Krishnammal had the right. It is only upon her death
that under the Will, a suit of the nature filed by them, could have been
filed. R. Krishnammal died only in 1977.
46. In order that provisions of Order II Rule 2 of the CPC apply,
there must be identity of cause of action. Thus, on the one hand, while it
was open to the appellants to institute a protective action, as was done
by filing O.S. No. 36 of 1963, in respect of the properties scheduled
threin. On the basis of the cause of action projected in the said Suit, it
would certainly not be a bar to the prosecution of the present Suit.
47. Order II Rule 2 of the CPC has been a subject matter of a
large number of decisions of this Court. Order II Rule 2 (2) of the CPC
postulates a situation where a plaintiff omits to sue in respect of any
portion of his claim or intentionally relinquishes any portion of his claim.
Then, he is debarred from suing in respect of the portion so omitted or
relinquished. A plaintiff entitled to more than one relief arising from the
same cause of action, can do two things. He may sue in respect of all
the reliefs arising from the same cause of action in the same suit. He
may, if he omits to sue for one or more
of the reliefs open to him under
the same cause of action, seek leave of the court to sue for all such
reliefs, and if the court grants such leave, then, he may institute a suit,
though based on the same cause of action in the earlier suit, in a fresh
suit. The effect of not seeking the leave of the court, however, in regard
to any of the reliefs, which it was open to him to sue for on the same
cause of action, is that, he is barred from suing for any other reliefs so
omitted. The difference between Order II Rule 2(2)and Order II Rule
2(3) of the CPC may be noticed. The law contemplates a distinction
between a case where a claim arising out of the cause of action is either
intentionally relinquished or omitted to be sued upon.  Such a claim cannot
be the subject matter of a fresh suit. However, when more than one
reliefs are available stemming from the same cause of action, then,
seeking further reliefs than sought in the first suit, except where leave is
obtained, would be barred. However, present the grant of leave by the
court, his subsequent suit seeking the reliefs which were originally not
sought but for which leave is granted, is permissible. The principle of
this provision is actually captured in Order II Rule 2 (1) of the CPC
which is that every suit is to include the whole of the claim which arises
A
B
C
D
E
F
G
H
695
out of the cause of action and which the plaintiff is entitled to make. It
further declares that it is open to a plaintiff to omit any portion of the
claim. However, the consequences of the same are declared in Order II
Rule 2 (2) of the CPC.  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 plaintiff’s 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.”
48. 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
696
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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 1st defendant to her
husband’s brother’s sons. The plaintiffs reserve their rights to
respect of those properties to a separate action.”
49. 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
A
B
C
D
E
F
G
H
697
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. The provision with the relevant illustration reads as follows:
“119. Date of vesting of legacy when payment or possession
postponed.—Where by the terms of a bequest the legatee is not
entitled to immediate possession of the thing bequeathed, a right
to receive it at the proper time shall, unless a contrary intention
appears by the Will, become vested in the legatee on the testator’s
death, and shall pass to the legatee’s representatives if he dies
before that time and without having received the legacy, and in
such cases the legacy is from the testator’s death said to be vested
in interest.
Explanation.—An intention that a legacy to any
person shall
not become vested in interest in him is not to be inferred merely
from a provision whereby the payment or possession of the thing
bequeathed is postponed, or whereby a prior interest therein is
bequeathed to some other person, or whereby the income arising
from the fund bequeathed is directed to be accumulated until the
time of payment arrives, or from a provision that, if a particular
event shall happen, the legacy shall go over to another person.
   Illustrations:
(i)   xxx
xxx
(ii)  xxx
xxx
(iii) A fund is bequeathed to A for life, and after his death to B. On
the testator’s death the legacy to B becomes vested in interest in B.
xxx
xxx
xxx
xxx”
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
698
SUPREME COURT REPORTS
[2020] 9 S.C.R.
51. It is also apposite that we notice Section 19 of the Transfer of
Property Act, 1882 (hereinafter referred to as ‘the TP Act’, for short).
Section 19 deals with vested interest. It reads as follows:
“19. Vested interest.—Where, on a transfer of property, an
interest therein is created in favour of a person without specifying
the time when it is to take effect, or in terms specifying that it is to
take effect forthwith or on the happening of an event which must
happen, such interest is vested, unless a contrary intention appears
from the terms of the transfer. A vested interest is not defeated
by the death of the transferee before he obtains possession.
Explanation.—An intention that an interest shall not be
vested is not to be inferred merely from a provision whereby the
enjoyment thereof is postponed, or whereby a prior interest in the
same property is given or reserved to some other person, or
whereby income arising from the property is directed to be
accumulated until the time of enjoyment arrives, or from a provision
that if a particular event shall happen the interest shall pass to
another person.”
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
A
B
C
D
E
F
G
H
699
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.
53. We listen to the words of this Court again in Virgo Industries
(Eng.) Private Limited v. Venturetech Solutions Private Limited28 found
in paragraph-11 of the judgment:
“11. The cardinal requirement for application of the
provisions contained in Order 2 Rules 2(2) and (3), therefore, is
that the cause of action in the later
suit must be the same as in the
first suit. …”
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
28(2013) 1 SCC 625
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
700
SUPREME COURT REPORTS
[2020] 9 S.C.R.
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 Mian29).
THE IMPACT OF THE PROCCEDINGS AND THE DECREE
PASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36 OF 1963 AND
O.S NO. 732 OF 1981
ESTOPPEL, WAIVER, ACQUIESCENCE
55. 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
29AIR 1949 PC 78
A
B
C
D
E
F
G
H
701
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 four
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.