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
Firstly, the cause of action for filing O.S. No. 36
of 1963 was alleged to be the apprehension that R. Krishnammal was
about to alienate the seven items over which she acquired absolute rights
under O.S. No. 71 of 1958 (In fact, it was alleged that one item was
alienated). Secondly, we have already noticed paragraph-11 of the Plaint.
Therein, the plaintiffs have revealed their mind to be that they intend to
pursue their right qua other properties apparently which are the plaint
schedule properties in O.S. No. 89 of 1983. We have already indicated
that the bar of Order II Rule 2 of the CPC will not apply. There is some
merit in the contention of the appellants that the Decree passed in O.S.
No. 36 of 1963 did involve watering down the terms of the compromise
Decree in O.S. No. 71 of 1958. As on the date of the compromise in
O.S. No. 36 of 1963, the position was that four, out of the seven items,
had been alienated by R. Krishnammal, whereas, one property had been
acquired by the Government. As regards Item Nos. 5 and 6 in the plaint
schedule in O.S. No. 36 of 1963, the terms of the Will dated 10.05.1955,
came to be reiterated. This is for the reason that in departure from the
terms of the Decree in O.S. No. 71 of 1958, under which R. Krishnammal
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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was conferred with the absolute rights in respect of Item Nos. 5 and 6,
in regard to the very same items, under the compromise Decree in O.S.
No. 36 of 1963, R. Krishnammal was only to enjoy the properties during
her lifetime and without the power of alienation. In other words, the
terms of the Will dated 10.05.1955 are seen reflected and reinforced by
the compromise Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of
1958 and O.S. No. 36 of 1963, there is no adjudication by the court. As
to what is the expediency which led the parties to enter into the
compromise Decree, may not be decisive of the legal rights of the parties
which we are called upon to pronounce. The action of the branch of
Lakshmiah Naidu, who had also joined as parties in O.S. No. 36 of 1963,
and who were represented by the Counsel, may not obviate the need for
proving the Will on the part of the appellants.
57. The further aspect to be noticed is that in the compromise
Decree in O.S. No. 36 of 1963, our attention is invited to the fact that
the plaintiffs have stated that they are not seeking any relief against the
other defendants which include the Lakshmiah branch. From 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 before us, to point out that it would constitute a bar by way
of principles, including estoppel and acquiescence for the appellants in
instituting O.S. No. 89 of 1983 in regard to the plaint schedule properties
over which R. Krishnammal had give-up all her rights in O.S. No. 71 of
1958. It is in this regard, we must bear in mind that even in the Plaint, in
O.S. No. 36 of 1963, the properties, other than the seven items, were
admittedly not the subject matter of the Suit. More importantly, what is
stated in the compromise is that no relief is claimed against the other
Defendants in the said Suit. It is equally true that by the passing of the
Decree in O.S. No. 36 of 1963, the interest of the Lakshmiah branch
was not imperilled. This is for the reason that in regard to Item Nos. 5
and 6 in O.S. No. 36 of 1963, over which the rights of R. Krishnammal
were limited to a life estate with a taboo against alienation bringing it in
tune with the terms of the Will under the Compromise did not matter for
the branch of Lakshmiah Naidu. This is for the reason that as far as
they were concerned, they were already bound by the compromise
Decree in O.S. No. 71 of 1958 whereunder R. Krishnammal had been
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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. We would, therefore,
conclude that the passing of a Decree in O.S. No. 36 of 1963, is a
matter which is entirely between the appellants and R. Krishnammal. In
fact, the Lakshmiah Naidu branch, though made parties to the
compromise, were not actually parties to the Decree. They have not
signed as parties to the compromise Decree. Therefore, neither the
appellants nor the respondents can derive any advantage from either the
filing of O.S. No. 36 of 1963 or the passing of the compromise Decree
therein.
The plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732
of 1981. The Lakshmiah branch (among the respondents in the appeals)
were not parties. It was a Suit for partition of items 5 and 6 scheduled to
O.S. No. 36 of 1963. It is obvious that they cannot rely upon principles
of res judicata or constructive res judicata based on O.S. No.732 of
1981, being not
parties to the said Suit. What, however, is sought to be
urged, is that the premise, on the basis of which the Decree in O.S. No.
732 of 1981 was passed, is completely incongruous with the cause of
action in the present Suit. In other words, it is pointed out that in O.S.
No. 732 of 1981, the case set-up was R. Krishnammal had rights over
the property and this was inconsistent with the case set-up in the present
Suit. It was contended that the appellants were estopped from
undertaking such a course of action.  We could also deduce the following
conduct. The cause of action in O.S. No. 732 of 1981 did involve drawing
upon the rights secured (qua Item Nos. 5 and 6 in O.S. No. 36 of 1963)
in O.S. No. 71 of 1958 whereunder the Lakshmiah branch acknowledged
rights of R. Krishnammal who also gave-up her rights to properties which
included the plaint schedule items in the case. Though, we are not oblivious
to the dimensions projected, we would not think that Right to Property, if
otherwise is established in favour of the appellants, it would be lost. It
cannot be treated as a case of abandonment of rights qua the plaint
schedule properties (See in this regard Sha Mulchand & Co. Ltd. (In
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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Liquidation), By Official Receiver, High Court, Madras v. Jawahar Mills
Limited, Salem30 and Dr. Karan Singh v. State of J&K and another31.
The respondents who were not parties to O.S. No. 732 of 1981,cannot
set-up a case of estoppel.
WHETHER THE WILL DATED 10.05.1955 HAS BEEN
PROVED
[Sections 33, 68 and 69 of the Evidence Act]
58. The Will in question is an unprivileged Will. The mode of making
an unprivileged Will is provided in Section 63 of the Indian Succession
Act. In order that a valid Will be made not only, it is necessary that the
Testator must execute the document but also the execution must be
attested by at least two witnesses. What is required is not ordinary
witnessing of a document but attestation which is as is provided in Section
63 of the Indian Succession Act.
59. Section 68 of the Indian Evidence Act, 1872 (hereinafter
referred to as ‘the Evidence Act’, for short) deals with proof of execution
of a document required by the law to be attested. A perusal of the same
makes it clear that in the case of a Will, being a document which is
required to be attested by Section 63 of the Indian Succession Act, if
there is an attesting witness alive and subject to the process of the court
and capable of giving evidence, then, the Will can be proved only if one
of the attesting witness is called for proving its execution.
60. Section 69 of the Evidence Act, 1872, reads as follows:
“69. Proof where no attesting
witness found.—If no such
attesting witness can be found, or if the document purports to
have been executed in the United Kingdom, it must be proved
that the attestation of one attesting witness at least is in his
handwriting, and that the signature of the person executing the
document is in the handwriting of that person.”
61. Though the expression used 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
30AIR 1953 SC 98
31(2004) 5 SCC 698
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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.
62.  In Babu Singh and others v. Ram Sahai alias Ram Singh32,
the Court laid down as follows in regard to Section 69:
“17. It would apply, inter alia, in a case where the attesting
witness is either dead or out of the jurisdiction of the court or kept
out of the way by the adverse party or cannot be traced despite
diligent search. Only in that event, the will may be proved in the
manner indicated in Section 69 i.e. by examining witnesses who
were able to prove the handwriting of the testator or executant.
The burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be proved
keeping in view the provisions of Section 63 of the Succession
Act and Section 68 of the Act, in the event the ingredients thereof,
as noticed hereinbefore, are brought on record, strict proof of
execution and attestation stands relaxed. However, signature and
handwriting, as contemplated in Section 69, must be proved.”
(Emphasis supplied)
63. Dealing with Section
69 of the Evidence Act, we notice the
judgment of this Court in K. Laxmanan v. Thekkayil Padmini and others33:
“32. Since both the attesting witnesses have not been
examined, in terms of Section 69 of the Act it was incumbent
upon the appellant to prove that the attestation of at least one
attesting witness is in his handwriting and that the signature of the
person executing the document is in the handwriting of that person.
DW 3, who was an identifying witness also in Ext. B-2, specifically
stated that he had not signed as an identifying witness in respect
of Ext. B-2 and also that he did not know about the signature in
32(2008) 14 SCC 754
33(2009) 1 SCC 354
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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Ext. B-2. Besides, considering the nature of the document which
was a deed of gift and even assuming that no pleading is filed
specifically denying the execution of the document by the
executant and, therefore, there was no mandatory requirement
and obligation to get an attesting witness examined but still the
fact remains that the plaintiff never admitted the execution of the
gift deed and, therefore, the same was required to be proved like
any other document.”
64. In this case, there is no dispute that both the attesting witnesses
were not alive at the relevant time. The questions, therefore, would then
arise as follows:
a.
Is it still the requirement of law when both the attesting
witnesses are dead that:
under Section 69 of the Evidence Act, the attestation as
required under Section 63 of the Indian Succession Act,
viz., attestation by the two witnesses has to be proved? Or
Is it sufficient to prove that the attestation of at least one
attesting witness is in his handwriting, which is the literal
command of Section 69 of the Evidence Act apart from
proving the latter limb?
b.
The further question which would arise is whether exhibit
B7, which is the copy of the evidence of the one of the
attesting witnesses in the Will, in the proceedings under
Section 145 of the CrPC sufficiently fulfils the requirements
under Section 33 of the Evidence Act?
65. We will first take-up the issue relating to the impact of Section
33
of the Evidence Act. It is not a matter which is gone into by the High
Court. Section 33 of the Evidence Act reads as follows:
“33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein stated.—
Evidence given by a witness in a judicial proceeding, or before
any person authorized by law to take it, is relevant for the purpose
of proving, in a subsequent judicial proceeding, or in a later stage
of the same judicial proceeding, the truth of the facts which it
states, when the witness is dead or cannot be found, or is incapable
of giving evidence, or is kept out of the way by the adverse party,
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or if his presence cannot be obtained without an amount of delay
or expense which, under the circumstances of the case, the Court
considers unreasonable:
Provided— that the proceeding was between the same parties or
their representatives in interest; that the adverse party in the first
proceeding had the right and opportunity to cross-examine; that
the questions in issue were substantially the same in the first as in
the second proceeding.
Explanation.—A criminal trial or inquiry shall be deemed to
be a proceeding between the prosecutor and the accused within
the meaning of this section.”
(Emphasis supplied)
66. The contention of the respondents appears to be only that, in
the proceeding under Section 145 of the CrPC, the tussle was between
R. Krishnammal and the Executor of the Will who were styled as A
Party Nos. 1 and 2 and the B Party, viz., the respondents. The present
appellants were not parties. Therefore, the proceeding was not between
the same. The other limb of the first proviso to Section 33, viz., that in
order that Section 33 of the Evidence Act applies, the proceeding is
between their representatives in interest is not fulfilled. The contention
seen raised is that the appellants, who are the remainder men under the
Will, cannot be treated as representatives in interest of R. Krishnammal.
67. Further the nature of Section 145 proceedings is highlighted
as not one attracting the 3rd proviso. The interpretation of the word
‘representative in
interest’ has fallen for consideration before the Privy
Council in the decision reported in Krishnayya Surya Rao Bahadur Garu
and others (Defendants) v. Venkata Kumara Mahitathi Surya Rao
Bahadur Garu34 wherein the Court referred to a large body of case law
and after an exhaustive review, held as follows:
“20. Nothing would have been easier, had it been desired
so to do, than to follow the English rule, or to require that the party
to the first proceeding should be privy in estate with or the
predecessor in title of the party to the second proceeding. Instead
of using such well-known terms, a much more elastic phrase is
employed, and one which is neither technical nor a term of art.
34AIR 1933 PC 202
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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The legislative authority was, it must be remembered, dealing with
a country in which (amongst other institutions) the Hindu joint
family involved representation of interest of a kind and degree
and in circumstances unfamiliar to English law. In view of this
fact, their Lordships cannot but surmise that the omission of strict
English legal terminology and the employment of the less restricted
phrase ‘representatives in interest’’ was deliberate and intentional.
It will be a question depending for its correct answer upon the
circumstances of each case where the question arises, whether
there was a party to the first proceeding who was a representative
in interest of a party to the second proceeding within the wider
meaning which their Lord- ‘ ships attribute to these words. Turning
back to the first proviso, it requires, in their Lordships’ view, that
the party to the first proceeding should have represented in interest
the party to the second proceeding in relation to the question in
issue in the first proceeding to which “the facts which the evidence
states” were relevant. It covers not only cases of privity in estate
and succession of title, but also cases where both the following
conditions exist, viz. (1) the interest of the relevant party to the
second proceeding in the subject-matter of the first proceeding is
consistent with and not antagonistic to the interest therein of the
relevant party to the first
proceeding; and (2) the interest of both
in the answer to be given to the particular question in issue in the
first proceeding is identical. There may be other cases covered
by the first proviso; but if both the above conditions are fulfilled,
the relevant party to the first proceeding in fact represented in the
first proceeding the relevant party to the second proceeding in
regard to his interest in relation to the particular question in issue
in the first proceeding, land may grammatically and truthfully be
described as a representative in interest of the party to the second
proceeding.”
[Emphasis supplied]
68. The word ‘representative in interest’, in other words, is to be
understood liberally and not confined to cases where there is privity of
estate and succession of title. He is be such representative of the party
in the later proceedings. Answering the two tests, which have been
evolved in the facts of this case, the respondents cannot contend that
the interest of the appellants was inconsistent with the interest ofR.
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Krishnammal and in particular the executor of the Will. It was certainly
not antagonistic to their interest. The Will was indeed set-up by R.
Krishnammal and the executor. Therefore, it can be safely concluded
that the interest of both persons comprised of A Party, which was the
protection of the possession, was also in the interest of the appellants. It
may be true that the appellants do not derive their title under R.
Krishnammal. But the requirements under Section 33 of the Evidence
Act are not to be confused with the ingredients to be fulfilled even in a
case under Section 11 of the CPC. It cannot be contended that the
interest of the appellants lay in answering the question posed in Section
145 of the CrPC proceedings against R. Krishnammal and the Executor
in favour of the respondents, who were parties before the Magistrate.
The case of the Will was explicitly set up as also the declaration dated
10.5.1955 and further developments. Therefore, the contention based
on the third proviso also does not appeal to us. Also not only was there
opportunity to cross examine to the B party, it was availed of. The
applicability of Section 33 of the Evidence Act also does not depend
upon the nature of the decision which is rendered in the earlier proceeding.
We would think that on this basis, as Exhibit-B7 and even B13 (deposition
by the Executor) indeed is evidence which was tendered in the previous
proceeding before the Magistrate who was certainly authorised
by law
to take evidence, which is relevant for proving the truth of the facts
contained therein under Section 33.
69. The further question is, as posed by us, whether despite the
fact that both the attesting witnesses were dead, the matter to be proved
under Section 69 of the Evidence Act, is the same as a matter to be
proved under Section 68 of the Evidence Act. In other words, under
Section 68 of the Evidence Act, in the case of a Will covered under
Section 63 of the Indian Succession Act, it is indispensable that at least
one attesting witness must not only be examined to prove attestation by
him but he must also prove the attestation by the other attesting witness
[See 1995(6)SCC 213]. This Court has taken the view that while it is
open to prove the will and the attestation by examining a single attesting
witness, it is incumbent upon him to prove attestation not only by himself
but also attestation by the other attesting witness. It is the contention of
the respondents that under Section 69 of the Evidence Act, Exhibit-B7
falls short of the requirement of law that attestation of the execution by
both the witnesses be proved. After taking us through Exhibit-B7, it was
pointed out that it is clear that even in the said deposition, the witness
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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has not deposed about the attestation by the other witness, viz., Dr. C.S.
Ramaswamy Iyer. On the other hand, the contention of the appellants
and which has found approval with the First Appellate Court, is that
Section 69 of the Evidence Act only requires that the attestation of at
least one attesting witness in his handwriting be proved. This is, of course
apart from proving that the signature of the testator executing the
document is in the handwriting of that person.
70. We are of the view that Section 69 of the Evidence Act
manifests a departure from the requirement embodied in Section 68 of
the Evidence Act. In the case of a Will, which is required to be executed
in the mode provided in Section 63 of the Indian Succession Act, when
there is an attesting witness available, the Will is to be proved by examining
him. He must not only prove that the attestation was done by him but he
must also prove the attestation by the other attesting witness. This is, no
doubt, subject to the situation which is contemplated in Section 71 of the
Evidence Act which allows other evidence to be adduced in proof of the
Will among other documents where the attesting witness denies or does
not recollect the execution of the Will or the other document. In other
words, the fate of the transferee or a legatee under a document, which
is required by law to be attested, is not placed at the mercy of the attesting
witness and the law enables
proof to be effected of the document despite
denial of the execution of the document by the attesting witness.
71. Reverting back to Section 69 of the Evidence Act, we are of
the view that the requirement therein would be if the signature of the
person executing the document is proved to be in his handwriting, then
attestation of one attesting witness is to be proved to be in his handwriting.
In other words, in a case covered under Section 69 of the Evidence Act,
the requirement pertinent to Section 68 of the Evidence Act that the
attestation by both the witnesses is to be proved by examining at least
one attesting witness, is dispensed with. It may be that the proof given
by the attesting witness, within the meaning of Section 69 of the Evidence
Act, may contain evidence relating to the attestation by the other attesting
witness but that is not the same thing as stating it to be the legal
requirement under the Section to be that attestation by both the witnesses
is to be proved in a case covered by Section 69 of the Evidence Act. In
short, in a case covered under Section 69 of the Evidence Act, what is to
be proved as far as the attesting witness is concerned, is, that the
attestation of one of the attesting witness is in his handwriting. The
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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.
72. Now, let us turn to Exhibit-B7. It is apposite that we advert to
whole of it:
“I know the deceased Rangaswami Naidu. He wrote a will
and asked me to attest it. I went. He asked me to attest it. The
first signature is mine. The will is Ex. P-68. Every page has been
signed by the deceased. After he signed the last page, I signed as
witness. Doctor C.S. Ramaswami Iyer is the Doctor at
Ramanathapuram. He was also present. I as present when it was
registered. The Sub Registrar came home. I have also signed
before the Sub Registrar. The deceased was sick. He was able to
understand things. I am an income tax practitioner.
Cross Exam.: At that time I was living in a place 1½ or 2
miles away from the house of the deceased. I went to the
deceased’s house at about 10:30 a.m. I signed at about 11-30 to
12 noon. Doctor came after I went there. He came at 11.30 A.M.
I do not know whether the Doctor came to attend on him or came
purposely for attesting this document. Sub Registrar came later
at about 1 P.M. I remained till the arrival of the Sub Registrar. But
the Doctor went away. The Sub Registrar went away at 1-30 to
2 P.M. Doctor did not return later. Doctor was there for a total
period of 15 minutes. I remember he gave
an injection. But I am
not sure of it. When I went there the will was already typed.
Rangasami Naidu was lying on the bed. He was being fed by
tube. When I was there he was fed once. But I do not remember
whether any medicine was given. The ink portions in pages 1 and
4 I do not know who had written it in the body of the document. It
has not been subscribed here as to who wrote it or typed it. The
deceased had an alisces in the head and he was suffering. He
was in pain and suffering. I gave him the minimum trouble as
interested in his health. At times in order to recoup from the pain
and exhaustion he would lie down quietly. Not to disturb him we
asked ______ (sic) restraint. I cannot say whether at every minute
he was conscious or half conscious or in a coma.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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Re-Exam. When he talked to me he was conscious.
(Sd) B. Venkataswamy Naidu, 1-2-56.
Taken down by me in open court, read over and admitted
to be correct. (Sd) K.S. Narasimhan, EFCm. 1-2-56.”
   (Emphasis supplied)
73. We must also be detained at this stage by another aspect
about Section 69 of the Indian Evidence Act. Section 69 speaks about
proving the Will in the manner provided therein. The word ‘proved’ is
defined in the Evidence Act in Section 3, as follows: -
“Proved.- A fact is said to be proved when, after considering the
matters before it, the Court either believes it to exist, or considers
its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that it exists.”
74. Therefore, 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. We say this to clarify. In a case, where there is
evidence which appears to conform to the requirement under Section
69, the Court is not relieved of its burden to apply its mind to the evidence
and find whether the requirements of Section 69 are proved. In other
words, the reliability of the evidence or the credibility of the witnesses is
a matter for the Court to still ponder over. As far as this case is concerned,
the evidence of one of the attesting witnesses is contained in B7 and
which we have found relevant under
Section 33, establishes that he was
an Income Tax Practitioner. He was beckoned by Rangaswami Naidu,
informing him that he had written a Will and it was to be attested. He
was asked to in fact to attest even upon going there on that day. He
speaks about the testator signing on every page and also, he has spoken
about him signing. He, no doubt, therefore establishes requirement of
Section 69 in regard to the signature of one of the attesting witnesses
being proved in his handwriting.  We see no reason to doubt the testimony.
As far as signature of the testator is concerned, apart from B7 and B13,
the executor has spoken of the testator signing. Also, PW1 has deposed
that the Will was shown to him he admitted that every page is contained
with the paternal uncle signature. Thus, the requirement of proof of Will
under Section 69 are fulfilled.
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WHETHER RECEPTION OF B10 AS SECONDARY
EVIDENCE LEGAL?
75. Whether the acceptance of B10 which is the certified copy of
the Will is vulnerable in law or on facts. The Trial court has found that
B68 is the original Will which was produced before the Magistrate in the
proceedings under Section 145 of the CrPC This is after over-ruling the
contention of the respondents that B68 was not the original Will. The
Trial Court has found  little merit in the objection against secondary
evidence of the Will, viz., certified copy of the registered Will being
produced. We have in fact evidence in the form of B7 and X1 to show
that the Will came to be registered.
76. The original of the Will according to the case of the appellants
continued to be with the executor who was in fact the nephew of
R. Krishnammal, the widow of Rangaswami Naidu. An attempt was
made to get the original Will produced at the relevant time when the
executor had passed away, on the basis that his son was in possession of
the original Will. He was called upon to produce the Will by C1. He
responded by pointing out that he was not having the original Will with
him. The finding of the Trial court as affirmed by the First Appellate
Court is that circumstances warranted admission of secondary evidence
to prove the Will. We see no reason to take a different view and the
view taken by the High Court cannot be sustained.
77. It may be true that in the proceedings in O.S. No. 71 of 1958
and O.S. No. 36 of
1963, the Will was projected first by R. Krishnammal
and thereafter, the plantiffs in O.S. No. 36 of 1963 who are among the
appellants before us. However, the matter did not go to trial. We are
also of the view that the Will must be proved under the Evidence Act
and not with reference to plea of estoppel as taken by the appellants
based on the decree in O.S. No. 36 of 1963, being based on the Will and
the respondents having participated not as parties even to the compromise
but it is a far cry from finding that the facts of the case did not warrant
admission of secondary evidence regarding the Will.
THE WILL: WHETHER IT IS THE GENUINE WILL OF
RANGASWAMI NAIDU?  WHETHER IT IS VITIATED ON ANY
GROUND?
78. We notice the following to be the relevant portions of the Will:
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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“Last Will and testament executed this 10th day of May
1995 by Sri V. Rangaswami Naidu MLC son of Endapillar
Venkataswami Naidu of Uppilipalayam Coimbatore Waluk I own
the immovable properties a set out in Sch.A hereto absolutely
exclusively and in my own right. These properties include properties
purchased by me and properties that has been allotted to me in
the family partition between me and my brother Shri R.V.
Lakashmaiah Naidu in 1932 and which are in my exclusive
possession and enjoyment since that date I have been a divided
member from 1932 onwards and have continued to be so till this
date. I have also to avoid any uncertainties in this regard made an
open declaration of my divided status today. Besides the immovable
properties I am entitled to the cash and other amounts as set out
in Sch.B hereto I fell that I should make a deposition of my assets
in the manner herein indicated in view of my recent ill health and
failing strength and also in view of my diffidenceth as I may not
live long enough I am not in full possession of my mental powers
and I am making this will and Testament after deep deliberation
and consideration and with the best of intentions appoint Sri
Ramachandra Baidu son of Kangallar Venkataswami Naidu of
Metupalayam to be the executor under the will. I bequeath all my
landed properties and my house set out in Sch.A to my wife for
life. she has no powers of alienation but she is entitled to
enjoy the
income from the lands and also to manage them. It is my earnest
wish that out of the income from the landed properties in my wife
should meet the expenses of presents on ceremonial and special
occasion in my sisters families after meeting her own family
expenses maintenance of the house careto. After my wife’s
lifetime the properties V. Rangaswami, 2. ….. in Sch A shall belong
equally and absolutely to the following persons who are my sisters
sons 1. V. Kalyanasami Naidu, Son of my sister Thayammal 2. R.
Soundararaj as son of my Third Sister Nagammal 3. A.
Alagriswami Son of Ranga Nayakiammal my forth sister 4. R.
Alagiriswami Son of Krishnammal my last sister. It is my earnest
wish that these four person should keep the properties for their
respective families and should not dispose them off, but in case of
need they should sell them in the first instance to any of the other
shares. The cash and other securities set out in Sch B valued at
Rs.44,000/- (Rupees Forty Four thousand) should be realized as
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early as possible after my death and shall be paid to the following
person in the following manner 1. Srimathi Amirthim Wife of Sri
Kalyanaswami afiresaid Rs.10,000.0.0, 2. Ammaniammal my
second sister Rs.10,000.0.0 3. Nagammal my third sister
Rs.8,000.0.0 4. Ranganayakiammal my forth sister Rs.8,000.0.0
5. Krishnammal my fifth and last sister Rs.8,000,0.0 I have already
made some other provisions for my wife apart from the properties
under the will. they are not effected in any manner by these
provisions. She is entitled to the movable propertiies not covered
by the schedules hereto. … V. Rangaswami, 3. … This is my lst
will and Testament All previous dispositions and intended
dispositions are hereby finally revoked. This will shall come into
effect after my life time. …”
79. It will be seen from the Will that the Testator has recited in the
Will that he owns the immovable properties set out in Schedule A
exclusively and in his own right. The said properties are alleged to include
properties purchased by him and properties allotted to him in his family
partition between him and his brother in 1932. He further states that he
has been a divided member from 1932 onwards and has continued to be
so till the date of the Will. Finally, he states that, he, in order to avoid any
uncertainties, made an open declaration of his divided status today. The
Will further refers to amounts which he is entitled to as set out in Schedule
B. Entire properties in Schedule A,
including his house, is set out for his
wife without powers of alienation. He further states that he expects his
wife to make use of the income from the landed properties to be used to
meet the expense of presents on ceremonial and special occasions in his
sisters families after meeting her own family expense, maintenance of
the house. There is a remainder, absolute in nature, given to his four
Legatees, i.e., his Nephews through his four sisters. He expressed his
earnest wish that the four Legatees should keep the properties for their
respective families and should not dispose them off, but in case of need,
they should sell them in the first instance to any of the other sharers.
The last portion to be noted is the statement that he has already made
other provisions for his wife apart from the properties under the Will.
80. There is one aspect which is pressed before us also, in regard
to the same, by the respondents. It is contended that the fact that there
is no oral partition between brothers in 1932, makes it out to be a case
where the Testator has made a rank incorrect statement in the Will
which shrouds the Will itself as one which is not genuine.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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81. In regard to the aspect about incorrect statement in the will, it
is to be noticed that making a totally incorrect statement in a will arouses
suspicion. This is on the principle that the testator would not make an
incorrect statement when he makes a will. If he makes a rank incorrect
statement the inference is that he would not have made that will.  This
principle will not be applicable in the facts of this case. Making the
statement that there was a partition in 1932 and that the properties were
allotted to him, is apparently the understanding of the testator. This issue
generated debate in the courts. The view expressed by the testator did
not find favour with the courts but that is a far cry from describing it as
an outright false statement. As long as it is a part of the will which is
made by the testator and he believed in it the finding given by the court
in this regard will not advance the case of the respondent.
82. We further notice the following aspects:
Rangaswami Naidu was an educated man. He was a former
M.L.C.. He was an affluent man. He has no issues. He was affectionate
towards his sisters. He has chosen to favour each branch of his sisters
by selecting one son out of each branch to be the legatees in whom the
property were to vest. In fact, he has also provided that the properties
are to remain in the family and should any of the legatees wish to sell, it
should be offered to the other legatees.
As far as his health is concerned,
it is well settled that the requirement of sound disposing capacity is not
to be confused with physical well-being. A person who is having a physical
ailment may not therefore berobbed of his sound disposing capacity.
The fact that a person is afflicted with a physical illness or that he is in
excruciating pain will not deprive him of his capacity to make a will.
What is important is whether he is conscious of what he is doing and the
will reflects what he has chosen to decide. While it may be true that he
was suffering from cancer of the throat there is nothing to indicate in the
evidence that he was incapable of making up of his own mind in the
matter in leaving a will behind. The fact that he was being fed by a tube
could hardly have deprived him of his capacity to make a will. We further
notice that the will is a registered will. The Registrar came home. Exhibit
X1 would show that Rangaswami Naidu on being asked to put his thumb
impression, he insisted on signing. This course of conduct, in our view,
has been correctly appreciated by the first appellate court, the final court
on facts. The inference to the contrary sought to be drawn does not
appeal to us. From the evidence, it is also clear that the other attesting
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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.
We have already held that the requirement of Section 69 of the Evidence
Act stands fulfilled otherwise. The fact that no bequest is made in favour
of the sons of Lakshmiah Naidu cannot be treated as a suspicious
circumstance. It is clear that Lakshmiah Naidu was extremely wealthy.
Making the nephew of his wife executor of the will, in fact, does assure
us of the absence of any foul play on the part of the legatees. In his
evidence [B13 which is the evidence given by the Executor in 145
proceedings], he has spoken about the testator expressing his desire on
2-3 occasions about wanting to executing a will. From the evidence
adduced by PW1 also, we would think that the view taken by the first
appellate court regarding the will cannot be characterized as a perverse
one warranting interference in the second appeal.
83. Lastly, while the burden to prove the will and to satisfy the
conscience of the court that there are no  suspicious circumstances or if
there are any to explain them is on the propounder of the will, the burden
to prove that the will is
procured by coercion, undue influence or fraud is
on the respondents who have alleged the same. The evidence of PW1
would show that the respondents have failed to prove that the will is
vitiated in this regard. Therefore, we would arrive at the conclusion that
the will was indeed executed by R. Naidu and was his last will.
84. Undoubtedly, Rangaswami Naidu and Lakshmiah Naidu who
were brothers, were co-parceners in a Hindu Coparcenary. The case of
the appellants is based upon their being a severance of the Hindu Joint
Family. The expression ‘the Hindu Joint Family’ is in the context of this
case, to be understood as the coparcenary. The argument of the
respondents representing the Lakshmiah Naidu branch on the other hand
is that, when Rangaswami Naidu died on 01.06.1955 and when, therefore,
succession to his estate opened, Lakshmiah Naidu succeeded to the
estate of his brother as Rangaswami Naidu died issueless and, therefore,
under the law as it stood on that date, Lakshmiah Naidu succeeded to
the property by survivorship.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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85. The case of the appellants is based, in fact, on their having
been an oral partition between the two brothers in the year 1932. Three
Courts have found no merit in this contention. In fact, the appellants also
did not pursue this line of argument before us. On the other hand, the
contention which is pressed before us 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, 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.
INTEREST IN HINDU JOINT FAMILY; PARTITION; ITS
IMPLICATIONS
86. In the light of these contentions, it is necessary to examine the
concepts relating to Hindu Joint Family, the effect of its continuance, the
manner in which, the joint family comes to an end and also the distinct
shades of meaning to the expression ‘division of a joint family’. Also, we
must consider the right of a Hindu in regard to making a Will and the
limitation on the same.
87. In Appovier v. Rama Subba Aiyan and others35, the Privy
Council had occasion to consider these concepts. The appellants before
the Court, who were unsuccessful in all the three courts in India,
contended that despite there been a division in a Hindu Joint Family, it
was not
still effective insofar as it had not culminated in a partition by
metes and bounds. It was dealing with this question that the court held,
inter alia, as follows:
“1. This is an appeal brought from a decree of the Sudder Court
at Madras, which affirmed the decree of the Zillah Court of
Tinnevelly, which itself affirmed the original decree of the Sudder
Ameen of that District. It is, therefore, an appeal from three
decrees, unanimous in rejecting the claim of the Appellant. The
present appeal is founded upon an allegation that certain property
(shares in which are claimed by the Appellant) continues the
undivided property of the family of which the Appellant was a
member, and which was originally an undivided family. The
foundation of the defence to the Appellant’s claim is an instrument,
35[1866] 11 M.I.A.75
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which we will call, for the present purpose, a deed of division,
dated the 22nd of March, 1834.
2. Certain principles, or alleged rules of law, have been strongly
contended for by the Appellant. One of them is, that if there be a
deed of division between the members of an undivided family,
which speaks of a division having been agreed upon, to be
thereafter made, of the property of that family, that deed is
ineffectual to convert the undivided property into divided property
until it has been completed by an actual partition by metes and
bounds.
3. Their Lordships do not find that any such doctrine has been
established; and the argument appears to their Lordships to
proceed upon error in confounding the division of title with the
division of the subject to which the title is applied.
4. According to the true notion of an undivided family in Hindoo
law, no individual member of that family, whilst it remains undivided,
can predicate of the joint and undivided property, that he, that
particular member, has a certain definite share. No individual
member of an undivided family could go to the place of the receipt
of rent, and claim to take from the Collector or receiver of the
rents, a certain definite share. The proceeds of undivided property
must be brought, according to the theory of an undivided family,
to the common chest or purse, and then dealt with according to
the modes of enjoyment by the members of an undivided family.
But when the members of an
undivided family agree among
themselves with regard to particular property, that it shall
thenceforth be the subject of ownership, in certain defined shares,
then the character of undivided property and joint enjoyment is
taken away from the subject-matter so agreed to be dealt with ;
and in the estate each member has thenceforth a definite and
certain share, which he may claim the right to receive and to
enjoy in severalty, although the property itself has not been actually
severed and divided.
xxx
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xxx
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12. Then, if there be a conversion of the joint tenancy of an
undivided family into a tenancy in common of the members of
that undivided family, the undivided family becomes a divided family
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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with reference to the property that is the subject of that agreement,
and that is a separation in interest and in right, although not
immediately followed by a de facto actual division of the subject-
matter. This may at any time be claimed by virtue of the separate
right.”
(Emphasis supplied)
88. It is now apposite to notice the judgment of the Privy Council
reported in Girja Bai v. Sadashiv Dhundiraj and others36. In the said
case, one of the members of a Joint Mitakshara Hindu Family served a
notice expressing his desire to get partitioned his one-third share.
Thereafter, he instituted the suit for partition. During the pendency of
the suit, the plaintiff died survived by his widow. She moved for
substitution. This was opposed by the defendants on the ground that at
the time of his death, the plaintiff was an undivided member of a Joint
Hindu Family and that on his death, his share passed to them by
survivorship. This is despite the fact that earlier on, in the suit, the
defendants had admitted the plaintiffs claim and contended that they
were willing to divide the estate and that the suit was premature. The
court referred to the earlier judgement of the Privy Council reported in
Pandit Suraj Narain and another v. Pandit Iqbal Narainand others37. It is
relevant to notice what the court proceeded to lay down:
“25. It appears to their Lordships that the Appellate Court
has, in this case, confused the two
considerations to which
reference has been made above, viz., the severance of status
which is a matter of individual volition, with the allotment of shares
which may be effected by different methods : by private
agreement, by arbitrators appointed by the parties, or, in the last
resort, by the Court.”
After referring to the statements in Appovier(supra), the Court
held as follows:
“28. Some of the Courts in India have supposed Lord
Westbury’s expressions to imply that the severance of status can
take place only by agreement. Their Lordships have no doubt that
this is a mistaken view. The Board there was dealing with a case
in which division of right had already taken place, as evidenced
36AIR 1916 PC 104
37(1912-13)40 IA 40  ;  (1913) 11 All LJ 172
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by the “ deed of division.” The right which each individual member
had in this joint property did not spring from the deed or the
agreement of the parties to which it gave expression; the
agreement only recognised existing rights in each individual
member which he was entitled to assert at any time he liked. 29.
The intention to separate may be evinced in different ways, either
by explicit declaration or by conduct.”
89. Next, we must notice the judgment rendered by a Bench of
three learned Judges of this Court reported in Addagada Raghavamma
and another v. Addagada Chenchamma and another38. In the said case,
the appellant before the Court was the widow of one Piechayya. The
respondent in the case Chenchamma was the wife of one Venkayya
who was, in fact, the son of the brother of Piechayya. In substance, the
dispute revolved around the question whether there was a disruption in
the Joint Hindu Family brought about prior to the execution of a will by
the brother-in-law of the appellant. Subbarao was the son of Venkayya
from the marriage with Chenchamma). Though there were two questions,
we are only concerned with second question, viz., whether partition was
brought about prior to the execution of the will and we may also notice
the further question which arose which was whether a disruption was
brought about by the terms of the will itself.
90. The Court proceeded to elaborately consider the evidence on
record and came to the conclusion that the evidence
did not support the
contention of the appellant which was that in 1894, much before the will
was executed in the year 1946, a partition has taken place. Thereafter, it
is necessary to notice the following paragraphs in the opinion rendered
by the court:
“25. Now we shall proceed to deal with the will, Ex. A-2
(a), on which strong reliance is placed by the learned Advocate-
General in support of his contention that on January 14, 1945, that
is, the date when the Will was executed, Chimpirayya must be
deemed to have been divided in status from his grandson Subbarao.
A will speaks only from the date of death of the testator. A member
of an undivided coparcenary has the legal capacity to execute a
will, but he cannot validly bequeath his undivided interest in the
joint family property. If he died an undivided member of the family,
his interest survives to the other members of the family, and,
38AIR 1964 SC 136
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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therefore, the will cannot operate on the interest of the joint family
property. But if he was separated from the family before his death,
the bequest would take effect. So, the important question that
arises is whether the testator in the present case became separated
from the joint family before his death.”
xxx
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  xxx
27. The main question of law that arises is whether a member
of a joint Hindu family becomes separated from the other members
of the family by mere declaration of his unequivocal intention to
divide from the family without bringing the same to the knowledge
of the other member of the family. In this context a reference to
Hindu law texts would be appropriate, for they are the sources
from which Courts evolved the doctrine by a pragmatic approach
to problems that arose from time to time. The evolution of the
doctrine can be studied in two parts, viz., (1) the declaration of
the intention, and (2) communication of it to others affected thereby.
On the first part the following texts would throw considerable
light. They are collated and translated by Viswanatha Sastri, J.,
who has a deed and abiding knowledge of the sources of Hindu
lawin Adiyalath Katheesumma v. Adiyalath Beechu [ILR 1930
Mad 502] ; and we accept his translations as correct and indeed
learned counsel on both sides proceeded on that basis.
Yajnavalkya, Chapter II, Section 121. “In land, corrody (annuity,
etc.), or wealth received from
the grandfather, the ownership of
the father and the son is only equal”. Vijnaneswara commenting
on the said sloka says:
“…And thus though the mother is having menstrual courses
(has not lost the capacity to bear children) and the father has
attachment and does not desire a partition, yet by the will (or
desire) of the son a partition of the grandfather’s wealth does
take place.” (Setlur’s Mitakshara, pp. 646-48).
Saraswati Vilase, placitum 28. “From this it is known that
without any speech (or explanation) even by means of a
determination (or resolution) only, partition is effected, just as an
appointed daughter is constituted by mere intention without
speech.”
Viramitrodaya of Hitra Misra (Chapter II, Pl. 23).
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“Here too there is no distinction between a partition during
the lifetime of the father or after his death and partition at the
desire of the sons may take place or even by the desire (or at the
will of a single coparcener).
Vyavahara Mayukha of Nilakantabhatta: (Chapter IV, Section
iii-I).
“Even in the absence of any common (joint family)
property, severance does indeed result by the mere declaration
“I am separate from thee” because severance is a particular
state (or condition) of the mind and the declaration is merely a
manifestation of this mental state (or condition).”
The Sanskrit expressions “sankalpa” (resolution) in Saraswati Vilas,
“akechchaya” (will of single coparcener) in Viramitrodaya
“budhivisesha” (particular state or condition of the mind) in
Vyavahara Mayukha, bring out the idea that the severance of
joint status is a matter of individual direction. The Hindu law texts,
therefore, support the proposition that severance in status is
brought about by unilateral exercise of discretion.
28. Though in the beginning there appeared to be a conflict
of views, the later decisions correctly interpreted the Hindu law
texts. This aspect has been considered and the law pertaining
thereto precisely laid down by the Privy Council in a series of
decisions: see Suraj Narain v. Iqbal Narain [(1912) ILR 35 All
80 (PC)] ; Giria Bai v. Sadashiv Dhundiraj [(1916) ILR 43 Cal
1031 (PC)] ; Kawal Narain v. Budh Singh [(1917) ILR 39 All
496 (PC)] ; and Bamalinga
Annavi v. Naravana Annavi [(1922)
ILR 45 Mad 489 (PC)] . In Syed Kasam v. Jorawar Singh [(1922)
ILR 50 Cal 84 (PC)] the Judicial Committee, after reviewing its
earlier decision laid the settled law on the subject thus:
“It is settled law that in the case of a joint Hindu family
subject to the law of the Mitakshara, a severance of estate is
effected by an unequivocal declaration on the part of one of
the joint holders of his intention to hold his share separately,
even though no actual division takes place….”
So far, therefore, the law is well settled, viz., that a severance in
estate is a matter of individual discretion and that to bring about
that state there should be an unambiguous declaration to that effect
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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are propositions laid down by the Hindu law texts and sanctioned
by authoritative decisions of Courts. But the difficult question is
whether the knowledge of such a manifested intention on the part
of the other affected members of the family is a necessary
condition for constituting a division in status. Hindu law texts do
not directly help us much in this regard, except that the pregnant
expressions used therein suggest a line of thought which was
pursued by Courts to evolve concepts to meet the requirements
of a changing society. The following statement in Vyavahara
Mayukha is helpful in this context:
“…severance does indeed result by the mere
declaration” ‘I am separate from thee’ because severance is
a particular state (or condition) of the mind and the declaration
is merely a manifestation of this mental state (or condition).”
One cannot declare or manifest his mental state in a vacuum. To
declare is to make known, to assert to others. “Others” must
necessarily be those affected by the said declaration. Therefore
a member of a joint Hindu family seeking to separate himself
from others will have to make known his intention to the other
members of the family from whom he seeks to separate. The
process of manifestation may vary with circumstances. This idea
was expressed by learned Judges by adopting different terminology,
but they presumably found it as implicit in the concept of declaration.
Sadasiva Iyer, J., in
Soun-dararaian v. Arunachalam Chetty
[(1915) ILR 39 Mad 159 (PC)] said that the expression “clearly
expressed” used by the Privy Council in Suraj Narain v. Iqbal
Narain [(1912) ILR 35 All 80 (PC)] meant “clearly expressed to
the definite knowledge of the other coparceners”. In Girja Bai v.
Sadashive Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] the Judicial
Committee observed that the manifested intention must be “clearly
intimated” to the other coparceners. Sir George Lownles in Bal
Krishna v. Ram Ksishna [(1931) ILR 53 All 300 (PC)] took it as
settled law that a separation may be effected by clear and
unequivocal declaration on the part of one member of a joint Hindu
family to his coparceners of his desire to separate himself from
the joint family. Sir John Wallis in Babu Ramasray Prasad
Choudhary v. Radhika Devi [(1935) 43 LW 172 (PC)] again
accepted as settled law the proposition that “a member of a joint
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Hindu family may effect a separation in status by giving a clear
and unmistakable intimation by his acts or declaration of a fixed
intention to become separate.…” Sir John Wallis, C.J., and
Kumaraswami Sastri, J. in Kamepalli Avilamma v. Mannem
Venkataswamy [(1913) 33 MLJ (746)] were emphatic when they
stated that if a coparcener did not communicate, during his life
time, his intention to become divided to the other coparceners, the
mere declaration of his intention, though expressed or manifested,
did not effect a severance in status. These decisions authoritatively
laid down the proposition that the knowledge of the members of
the family of the manifested intention of one of them to separate
from them is a necessary condition for bringing about that
member’s severance from the family. But it is said that two
decisions of the Madras High Court registered a departure from
the said rule. The first of them is the decision of Madhavan Nair,
J. in Rama Ayyar v. Meenakshi Ammal [(1930) 33 LW 384] .
There, the learned Judge held that severance of status related
back to the date when the communication was sent. The learned
Judge deduced this proposition from the accepted principle that
the other coparceners had no choice or option in the matter. But
the important circumstance in that case was that the testator lived
till after the date of the service of the notice. If that was so, that
decision on the facts was correct. We shall deal with the doctrine
of
relating back at a later stage. The second decision is that of a
Division Bench of the Madras High Court, consisting of
Varadachariar and King, JJ., in Narayana Rao v. Purushotama
Rao [ILR 1938 Mad 315, 318] . There, a testator executed a will
disposing of his share in the joint family property in favour of a
stranger and died on August 5, 1926. The notice sent by the testator
to his son on August 3, 1926 was in fact received by the latter on
August 9, 1926. It was contended that the division in status was
effected only on August 9, 1926, when the son received the notice
and as the testator had died on August 5, 1926 and the estate had
passed by survivorship to the son on that date the receipt of the
notice on August 9, 1926 could not divest the son of the estate so
vested in him and the will was, therefore, not valid. Varadachariar,
J., delivering the judgment of the Bench observed thus:
“It is true that the authorities lay down generally that the
communication of the intention to become divided to other
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coparceners is necessary, but none of them lays down that the
severance in status does not take place till after such
communication has been received by the other coparceners.”
After pointing out the various anomalies that might arise in
accepting the contention advanced before them, the learned Judge
proceeded to state:
“It may be that if the law is authoritatively settled, it is not
open to us to refuse to give effect to it merely on the ground that
it may lead to anomalous consequences; but when the law has
not been so stated in any decision of authority and such a view is
not necessitated or justified by the reason of the rules, we see no
reason to interpret the reference to ‘communication’ in the various
cases as implying that the severance does not arise until notice
has actually been received by the addressee or addressees.”
We regret our inability to accept this view. Firstly, because, as we
have pointed out earlier, the law has been well settled by the
decisions of the Judicial Committee that the manifested intention
should be made known to the other members of the family affected
thereby; secondly, because there would be anomalies on the
acceptation of either of the views. Thirdly, it is implicit in the
doctrine of declaration of an intention that it should be declared to
somebody and who can that somebody be except the one that is
affected thereby.
xxx
xxx
 xxx
32. It is, therefore, clear that Hindu law
texts suggested
and Courts evolved, by a process of reasoning as well as by a
pragmatic approach that, such a declaration to be effective should
reach the person or person affected by one process or other
appropriate to a given situation.
xxx
xxx
 xxx
34. The third question falls to be decided in this appeal. It is this:
what is the date from which severance in status is deemed to
have taken place? Is it the date of expression of intention or the
date when it is brought to the knowledge of the other members?
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If it is the latter date, is it the date when one of the members first
acquired knowledge or the date when the last of them acquired
the said knowledge or the different dates on which each of the
members of the family got knowledge of the intention so far as he
is concerned? If the last alternative be accepted, the dividing
member will be deemed to have been separated from each of the
members on different dates. The acceptance of the said principle
would inevitably lead to confusion. If the first alternative be
accepted, it would be doing lip service to the doctrine of knowledge,
for the member who gets knowledge of the intention first may in
no sense of the term be a representative of the family. The second
alternative may put off indefinitely the date of severance, as the
whereabouts of one of the members may not be known at all or
may be known after many years. The Hindu law texts do not
provide any solution to meet these contingencies. The decided
cases also do not suggest a way out. It is, therefore, open to this
Court to evolve a reasonable and equitable solution without doing
violence to the principles of Hindu law. The doctrine of relation
back has already been recognized by Hindu law developed by
courts and applied in that branch of the law pertaining to adoption.
There are two ingredients of a declaration of a member’s intention
to separate. One is the expression of the intention and the other is
bringing the expression to the knowledge of the
person or persons
affected. When once the knowledge is brought home — that
depends upon the facts of each case — it relates back to the date
when the intention is formed and expressed. But between the
two dates, the person expressing the intention may lose his interest
in the family property; he may withdraw his intention to divide; he
may die before his intention to divide is conveyed to the other
members of the family: with the result his interest survives to the
other members. A manager of a joint Hindu family may sell away
the entire family property for debts binding on the family. There
may be similar other instances. If the doctrine of relation back is
invoked without any limitation thereon, vested rights so created
will be affected and settled titles may be disturbed. Principles of
equity require and common sense demands that a limitation which
avoids the confusion of titles must be placed on it. What would be
more equitable and reasonable than to suggest that the doctrine
should not affect vested rights? By imposing such a limitation we
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are not curtailing the scope of any well established Hindu law
doctrine, but we are invoking only a principle by analogy subject
to a limitation to meet a contingency. Further, the principle of
retroactivity, unless a legislative intention is clearly to the contrary,
saves vested rights. As the doctrine of relation back involves
retroactivity by parity of reasoning, it cannot affect vested rights.
It would follow that, though the date of severance is that of
manifestation of the intention to separate the right accrued to others
in the joint family property between the said manifestation and
the knowledge of it by the other members would be saved.
35. Applying the said principles to the present case, it will have to
be held that on the death of Chimpirayya his interest devolved on
Subbarao and, therefore, his will, even if it could be relied upon
for ascertaining his intention to separate from the family, could
not convey his interest in the family property, as it has not been
established that Subbarao or his guardian had knowledge of the
contents of the said will before Chimpirayya died.”
91. The Court also, in paragraph 37, expressed the view that it
was not necessary to decide whether the will contained the necessary
and unambiguous declaration of intention to divide himself from the family.
92. Next, in the line of decisions of this Court is the judgment
reported in Puttrangamma and others v. M.S. Ranganna and
others39.
The appeal arose from a suit for partition. One of the questions which
arose was whether the plaintiff had died as a divided member of a joint
family. In this context, the Court laid down as follows:
“5. It is now a settled doctrine of Hindu Law that a member
of a joint Hindu family can bring about his separation in status by
a definite, unequivocal and unilateral declaration of his intention
to separate himself from the family and enjoy his share in severalty.
It is not necessary that there should be an agreement between all
the coparceners for the disruption of the joint status. It is immaterial
in such a case whether the other coparceners give their assent to
the separation or not. The jural basis of this doctrine has been
expounded by the early writers of Hindu Law.
93. This Court allowed the appeal on the view it took, viz., that the
plaintiff indeed had effected disruption in the joint family on the principles
of law which have been articulated.
39AIR 1968 SC 1018
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94. Next, we must refer to the judgment of this Court in Krishnabai
Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar
and others40. The High Court in the said case, which was a suit for
possession and mesne profit, took the view that it was not established
that there was a partition effected in the year 1902 as was found by the
Trial Court. This Court restored the judgment of the Trial Court and held
as follows:
“16. We will take Point No. 1 canvassed by Shri Bal. The
primary question that falls to be considered is, whether in 1902 or
shortly prior to it, there was a partition between the two brothers
— Narayanarao and Ramachandrarao — in a manner known to
law. In this connection, it is necessary, at the outset, to notice the
fundamental principles of Hindu Law bearing on the point. The
parties are admittedly governed by Mitakshara School of Hindu
law. In an undivided Hindu family of Mitakshara concept, no
member can say that he is the owner of one-half, one-third or
one-fourth share in the family property, there being unity of
ownership and commensality of enjoyment while the family remains
undivided. Such unity and commensality are the essential attributes
of the concept of joint family status. Cesser of this unity and
commensality means cesser or severance of the joint family status,
or, which under Hindu law, is “partition”; irrespective of whether
it is accompanied or followed by a division of the properties by
metes and bounds.
Disruption of joint status, itself, as Lord
Westbury put it in Appovier v. Rama Subba Aiyan [(1886) 11
MIA 75 : 2 SR 218 : 8 WRPC 1] , in effect, “covers both a division
of right and division of property”. Reiterating the same position, in
Girja Bai v. Sadashiv [AIR 1916 PC 104 : (1916) 43 IA 151] ,
the Judicial Committee explained that division of the joint status,
or partition implies “separation in interest and in right, although
not immediately followed by a de facto actual division of the
subject-matter. This may at any time, be claimed by virtue of the
separate right”.
17. The division of the joint status may be brought about by
any adult member of the joint family by intimating, indicating or
representing to the other members in clear and unambiguous terms,
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his intention to separate and enjoy his share in the family property,
in severality. Such intimation, indication or representation may take
diverse forms. Sometimes it is evidenced by an explicit declaration
(written or oral); sometimes it is manifested by conduct of the
members of the family in dealing separately with the former family
properties. Service of notice or institution of a suit by one member/
coparcener against the other members/coparceners for partition
and separate possession may be sufficient to cause disruption of
the joint status.”
(Emphasis supplied)
In Kalyani(dead) by LRs v. Narayanan and others41, a Bench
of three learned Judges, laid down as follows:-
“10. The next stage in the unfolding of the case is whether Ex. P-
1 is effective as a partition. Partition is a word of technical import
in Hindu law. Partition in one sense is a severance of joint status
and coparcener of a coparcenary is entitled to claim it as a matter
of his individual volition. In this narrow sense all that is necessary
to constitute partition is a definite and unequivocal indication of
his intention by a member of a joint family to separate himself
from the family and enjoy his share in severalty. Such an
unequivocal intention to separate brings about a disruption of joint
family status, at any rate, in respect of separating member or
members and thereby puts an end to the coparcenary with right
of survivorship and such
separated member holds from the time
of disruption of joint family as tenant-in-common. Such partition
has an impact on devolution of shares of such members. It goes
to his heirs displacing survivorship. Such partition irrespective of
whether it is accompanied or followed by division of properties by
metes and bounds covers both a division of right and division of
property (see Appovier v. Rama Subba Aiyan [(1886) 11 MIA
75 : 2 Sar 218 : 8 WR PC 1] quoted with approval in Krishnabai
Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao
Nimbalkar [(1979) 4 SCC 60, 68] ). A disruption of joint family
status by a definite and unequivocal indication to separate implies
separation in interest and in right, although not immediately followed
by a de facto actual division of the subject-matter. This may at
any time, be claimed by virtue of the separate right (see Girja
41AIR 1980 SC 1173
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Bai v. Sadashiv [AIR 1916 PC 104 : 43 IA 151 : 18 Bom LR
621]). A physical and actual division of property by metes and
bounds follows from disruption of status and would be termed
partition in a broader sense.”
We may notice paragraph 18 also which reads as follows:-
18. One thing is crystal clear that Ex. P-1 is not a deed of partition
in the sense it does not purport to divide the property amongst
various coparceners by metes and bounds. However, in Hindu
law qua joint family and joint family property the word “partition”
is understood in a special sense. If severance of joint status is
brought about by a deed, a writing or an unequivocal declaration
of intention to bring about such disruption, qua the joint family, it
constitutes partition (see Raghavamma v. Chenchamma [AIR
1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593] ). To
constitute a partition all that is necessary is a definite and
unequivocal indication of intention by a member of a joint family
to separate himself from the family. What form such intimation,
indication or representation of such interest should take would
depend upon the circumstances of each case. A further
requirement is that this unequivocal indication of intention to
separate must be to the knowledge of the persons affected by
such declaration. A review of the decisions shows that this intention
to separate may be manifested in diverse ways. It may be by
notice or by filing a suit. Undoubtedly, indication or intimation
must
be to members of the joint family likely to be affected by such a
declaration.”
This Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe
and others (supra) held as under:
“14……The character of any joint family property does not change
with the severance of the status of the joint family and a joint
family property continues to retain its joint family character so
long as the joint family property is in existence and is not partitioned
amongst the co-sharers. By a unilateral act it is not open to any
member of the joint family to convert any joint family property
into his personal property.”
IS THERE CONFLICT BETWEEN KALYANI (DEAD) BY
LRS V. NARAYANAN AND OTHERS [AIR 1980 SC 1173] AND
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BHAGWANT P. SULAKHE V. DIGAMBAR GOPAL SULAKHE
AND OTHERS [AIR 1986 SC 79]
95. In Kalyani (supra), one Karappan who had two wives and
children through them was governed in the matter of inheritance and
succession essentially by customary law and in the absence of any
specified custom, he was governed by the Hindu Mitakshara Law. He
had executed a registered deed P1 which was variously described as a
Will or as a deed of partition or evidencing a family arrangement. The
Suit from which the case arose was filed by the Widow of one of his
sons from his first wife. This Court went on to find that P1 could not be
supported as Will insofar as Karappan had no power to devise by Will
ancestral property. The Court further went on to consider whether B1
was effective as a partition. It was in this context that the observations
in paragraph-10 of the judgment came to be made. The Court, after
making the observations in paragraph-10, found that there was no
effective partition by metes and bounds by B1 though the shares of sons
were specified as also the provisions for the female members were
made. Thereafter it is that the Court posed the question that if B1 is not
effective as a Deed of Partition, its effect on the continued Joint Family
status had to be examined. It is thereafter that when the court went on
to make the observations in para 18 which we have set out.  The Court
further proceeded to find that by specifying of the
share in Exhibit P1
there was first a disruption in the joint family by specifying the shares.
Once a disruption took place, it was held, in a joint family status, the
coparceners ceased to hold the property as joint tenants but they held as
tenants in common. It was further the view of the court that the fact that
the coparceners continued to stay under the same roof or enjoy the
properties without division by metes and bound, did not matter. They did
not hold as joint tenants unless reunion was pleaded and established. We
are, in this case, also called upon to reconcile what has been laid down in
this case with what has been laid down in a later Judgment in. The later
decision Bhagwant P. Sulakhe (supra)was also rendered by a bench of
three learned Judges.
96. We may briefly notice the facts involved in the said case. The
appellant, who was the plaintiff in the Suit along with the Second
Defendant therein and two of his brothers, were members of a Joint
Hindu Family. There was a public limited company and also a firm. The
appellant had acted as a Managing Agent. He had also acted as a
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Managing Director of the Company. In regard to the same, he had earned
remuneration. The question which essentially arose before this Court
was whether it was to be treated as the personal income of the appellant
or whether it belonged to the joint family. After considering the partnership
deed and other materials, the Court, inter alia, observed as follows:
“14 …The character of any joint family property does not
change with the severance of the status of the joint family and a
joint family property continues to retain its joint family character
so long as the joint family property is in existence and is not
partitioned amongst the co-sharers. By a unilateral act it is not
open to any member of the joint family to convert any joint family
property into his personal property.”
97. The Trial Court, in this case, has laid store by the observations
of this Court to the effect that as long as joint family property is in
existence and is not in partitioned, the character of the joint family property
does not change. It concluded that even if division is brought about by
issuance of B1, the properties of the joint family consisting of V.
Rangaswami Naidu and his brother remained joint and it could not be
arrogated by V. Rangaswami Naidu as his and they bequeathed, as done.
The first appellate court distinguished the decision by stating that it turned
on in facts.
98. We would think that there is really no conflict as such. We
have already noticed what has
already been laid down by the Privy
Council in Appovier (supra). The Court has laid down, inter alia, that
when members of the Hindu Undivided Family agree among themselves
that a particular property shall be thereafter be subject of ownership in
certain defined shares, then, the character of the undivided property and
joint enjoyment is taken away from it and each member will thereafter
have a definite and certain share, even though the property itself has not
been severed and divided.
99. It must be remembered that the said case actually involved an
Undivided Hindu Joint Family wherein there was a deed of division and
the contention, which had to be considered by the Court, was that, it was
ineffectual to convert the undivided property into divided property until it
had been completed by an actual partition by metes and bounds. The
Court was essentially not considering the effect of a declaration by a
coparcener to separate causing a division in a joint family status. The
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Court was also not considering the question as to whether, on such division
in status, the rights of the coparcener, over specific items of properties,
will be transformed into exclusive and absolute rights even without an
agreement or partition, by metes and bounds.
100. In Girja Bai v. Sadashiv Dhundiraj42, the Privy Council was
dealing with a situation where the appellant’s husband had served a
registered notice on the Manager of a Mitakshara Joint Family expressing
his desire to get partition and which was followed-up by a Suit for partition.
We have noticed paragraph 25 and 28 therein.
101. Therefore, on a conspectus of the discussion we would hold
as follows:
Partition has two shades of meaning in Hindu Law we are dealing
with. In the one sense, partition is the first step which would ordinarily
culminate in a metes and bounds partition. In a coparcenary, there is
joint tenancy. A Hindu Coparcenary, which cannot be created by
agreement between parties but is the creation of law, can be disrupted
or a division is caused by a unilateral declaration by a coparcener to put
an end to the joint family. What the coparcener has before the division is
produced, is an interest, as has been referred to in both Sections 6 and
30 of the Hindu Succession Act. Upon a declaration being made,
expressing intent to separate without anything more but no doubt on
communication of the same to the other coparcener/coparceners,
partition
in the above sense viz. causing a division of title takes place. As already
noticed, the partition in the aforesaid sense has far-reaching
consequences. The joint tenancy, which includes the concept of Right to
Inherit by Survivorship, is terminated with the partition being effected in
the first sense. If the coparcener dies after causing such a partition, as
the right on the basis of Doctrine of Survivorship is annihilated, his death,
after such partition, would result in his heirs becoming entitled to succeed.
In that sense, joint tenancy would be replaced by tenancy in common
but that is not the same as saying that the properties of the family, where
there has been a partition in the first sense, will without anything more
stand transformed into the separate and exclusive properties of the divided
members. This is the view, which is taken by this Court in Bhagwant P.
Sulakhe. We are unable to subscribe to the view taken by the First
Appellate Court that the principles of law, which are contained in
42AIR 1916 PC 104
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paragraph-14 of the Judgment, as extracted by us, are merely to be
understood in the special facts of the said case. Partition, in a broader
sense and as is commonly understood, is the division of the properties in
accord with the shares.
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?
102. It would appear that 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. We are
concerned in this case with 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) See in this regard para 228 of Mulla on Hindu Law 23rd edition
page 341-342. 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 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
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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.
103. Section 30 of the Hindu Succession Act reads as follows:
“30. Testamentary succession. — Any Hindu may dispose of by
will or other testamentary disposition any property, which is capable
of being sodisposed of by him or by her], in accordance with the
provisions of the Indian Succession Act, 1925 (39 of 1925), or any
other law for the time being in force and applicable to Hindus.
Explanation.— The interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a tarwad,
tavazhi, illom, kutumba or kavaru in the property of the tarwad,
tavazhi, illom, kutumba or kavaru shall notwithstanding anything
contained in this Act or in any other law for the time being in
force, be deemed to be property capable of being disposed of by
him or by her within the meaning of thissection”.
104. Does it bring about a change in law relating to power of a
Hindu to execute a will?  As noticed earlier 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. We may refer to the judgment
of
this Court in M.N. Aryamurthy v. M.D. Subbaraya Setty43; wherein
this Court held as follows:
“..But unfortunately, Lachiah, though a father, could not, under
the Hindu Law, dispose of, by will, joint family property or any
part thereof and as a will it was clearly inoperative on the various
dispositions made by him (See Parvatibai v. Bhagwant
Pandharinath: 39 Bom 593: AIR 1915 Bom 265 and Subbarami
Reddi v. Ramamma; 43 Mad 824: AIR 1920 Mad 637). This latter
case has questioned the correctness of a previous decision of that
Court in Appan Patra Chariar v. V.S. Srinivasa Charriar and
Others; 40 Mad 1122: AIR 1918 Mad 531. The decisions proceed
on the principle which was well-settled in Vital Putten v.
Yamenamma; (1874) 8 MHCR 6 and Lakshman Dada Naik v.
Ramachandra Dada Nair; 5 Bom 48 (PC): 7 IA 181, that a co-
43 1972(4) SCC 7
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parcener cannot devise joint family property by will, because, on
the date of his death when the will takes effect, there is nothing
for the will to operate on, as, at the moment of his death, his
interest passes by survivorship to the other coparceners.”
105. In Villiammai Achi v. Nagappa Chettiar and another44,
this Court, inter alia, held:
“10. … The property being joint family property Pallaniappa’s
father was not entitled to will it away and his making a will would
make no difference to the nature of the property when it came
into the hands of Pallaniappa. A father cannot turn joint family
property into absolute property of his son by merely making a will,
thus depriving sons of the son who might be born thereafter of
their right in the joint family property. It is well settled that the
share which a co-sharer obtains on partition of ancestral property
is ancestral property as regards his male issues. They take an
interest in it by birth whether they are in existence at the time of
partition or are born subsequently: [see Hindu Law by Mulla,
13th Edn., p. 249, para 223(2)(4)]. If that is so and the character
of the ancestral property does not change so far as sons are
concerned even after partition, we fail to see how that character
can change merely because the father makes a will by which he
gives the residue of the joint family property (after making certain
bequests) to the son. A father in a Mitakshara family has a very
limited right to make a
will and Pallaniappa’s father could not
make the will disposing of the entire joint family property, though
he gave the residue to his son. We are therefore of opinion that
merely because Pallaniappa’s father made the will and Pallaniappa
probably as a dutiful son took out probate and carried out the
wishes of his father, the nature of the property could not change
and it will be joint family property in the hands of Pallaniappa so
far as his male issues are concerned.”
106. As to whether Section 30 of the Hindu Succession Act brings
about the radical departure of the power of a Hindu in the matter of
making Will, we may refer to the decision of full Bench of the Mysore
High Court in Sundara Adapa v. Girija45. Justice K.S. Hegde as his
Lordship then was speaking for the Bench held:-
44 AIR 1967 SC 1153
45AIR 1962 (Mysore) 72
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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“15. It is well known that till the “Act” came into force, the interest
of a coparcener in a Hindu joint family, be it a Mitakshara family
or an Aliyasantana family, could not be disposed of by means of a
testament, as by the time his will took effect his interest in the
undivided family would have been taken by survivorship by the
other coparceners. The Indian Succession Act did not make any
inroad into that position. The relevant provisions of the Indian
Succession Act are found in Part VI (Provisions relating to
testamentary succession) read with the rules found in Schedule
III. But they are also subject to the restrictions and modifications
specified in that schedule. Restriction No. 1 in Schedule III says:—
“Nothing therein contained shall authorise a testator to bequeath
property which he could not have alienated inter vivos, or to deprive
any persons of any right of maintenance of which, but for the
application of this section, he could not deprive them by will.”
17. Neither under the customary law nor under the Aliyasantana
Act nor under the Indian Succession Act the interest of a
coparcener in an Aliyasantana Kutumba could have been disposed
of by testamentary disposition. In that regard a definite change in
the law was made by means of the Explanation to Sec. 30(1) of
the “Act”. There is no dispute that at present a member of an
undivided Aliyasantana kutumba could dispose of his interest in
the kutumba
properties by means of a will. But we are unable to
agree with Srli G.K. Govind Bhat when he says that Explanation
to Sec. 30(1) enlarged the rights of a divided coparcener. The
object of Section 30 is clear. That section neither directly nor by
necessary Implication deals with the devolution of divided interest.
As mentioned earlier, its purpose is limited. The language employed
is plain and therefore no question of interpretation arises. It is not
correct to contend, a, done by Sri Bhat, that it the Explanation to
S. 30(1) is understood in the manner the respondents want us to
understand, a coparcener who dies undivided would leave a more
valuable estate to his heirs than one who dies divided. In most
cases, the share taken by a nissanthathi kavaru though limited to
the duration of the life of kavaru would be larger in extent than
one unprovided under Sec. 7(2) of the “Act”.
We find that this Court in Jalaja Shedthi & Ors. v. Lakshmi
Shedthi & Ors.; 1973(2) SCC 773 has approved of view taken by the
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High court in the aforesaid case. In other words, as we have already
noted in the case of property of the joint family as long as the property is
joint, the right of the coparcener can be described as an interest. The
reason why we are saying this is as long as the family remains joint, a
coparcener or even a person who is entitled to share when there is a
partition cannot predicate or describe his right in terms of his share.  The
share remains shrouded and emerges only with division in title or status
in the joint family.  Once there is a division the share of a coparcener is
laid bare.  In this regard we may notice the judgment of this Court in
Hardeo Rai v. Sakuntala Devi and others46 in paragraphs 22 and 23.
It reads as under:
“22. For the purpose of assigning one’s interest in the property, it
was not necessary that partition by metes and bounds amongst
the coparceners must take place. When an intention is expressed
to partition the coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once the share of
a coparcener is determined, it ceases to be a coparcenary property.
The parties in such an event would not possess the property as
“joint tenants” but as “tenants-in-common”. The decision of this
Court in SBI [(1969) 2 SCC 33 : AIR 1969 SC 1330] , therefore,
is not applicable to the present case.
23. Where a coparcener takes definite share in the property, he is
owner of that share and as such he can alienate the
same by sale
or mortgage in the same manner as he can dispose of his separate
property.”
It is important to notice that what this Court has laid down that he
becomes owner of “that share” and he can alienate ‘the same’. It is
different from saying that he is owner of the property in the sense of
being the exclusive owner.
[See also in this regard the law as laid down in Appovier case
(supra) in para 4 thereof].
107. We may also notice that even under the law prior to Hindu
Succession Act there could be four situations.  In regard to a member of
a joint Hindu family who also has his separate property he could bequeath
his separate property. As far as joint family property is concerned, there
could be three situations. The first situation is where the family remains
462008 (7) SCC 46
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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joint in which case the coparcener would have an interest. As far as this
interest is concerned, it could not be the subject matter of the will prior
to the Hindu Succession Act. The second situation is in a case where
there is a disruption in title or a division in status. What we mean is there
is a partition in the sense of a division in the joint family status caused by
any unequivocal declaration by a coparcener which is communicated.
It can be by words. It can be by conduct. It can also embrace the very
filing of a suit for partition. When such disruption takes place then the
share of the coparcener in the joint family property becomes a reality
and takes concrete shape in accordance with law and the rights of the
members of the family. As already noticed, this may or may not be
accompanied simultaneously with a metes and bounds partition. In such
a scenario under the law prior to the Hindu Succession Act, having
achieved disruption in the joint family, the right based on the principle of
survivorship perishes. The share of the coparcener becomes undeniable.
Should he die intestate the share would go not to the other coparceners
by survivorship but to his heirs. It also opens the door to the coparcener
to exercise his right to bequeath his share in accordance with his wishes.
This power was certainly available to a Hindu even prior to Section 30
of the Hindu Succession Act. The third scenario would be a situation
where following a division in title or status in the family there is also a
metes and bounds partition of the properties of the family in accordance
with the share. It cannot be open to doubt that in fact, capacity of a
Hindu to bequeath such property existed even prior to the Hindu
Succession Act. In fact, the property obtained as a share on a partition
by a coparcener who has no male issues is treated as his separate
property. As regards the effect of a son born after partition we need not
pronounce on the same. After the amendment to the Succession Act
2005 including the daughters of a coparcener as coparceners in their
own right, if a Hindu has a female issue then the property allotted to him
on partition will partake of the nature of coparcenary property. See in
this regard the following discussion in para 228 clause (6) at page 342 in
“Mulla on Hindu Law”: 23rd Edition: Cataloguing different kinds of
separate property:-
“(6) Share on partition –  Property obtained as his share
on partition by a coparcener who has no male issue (see S. 221(4)).
This position is now materially altered with the inclusion of
daughters of a coparcener as coparceners in their own right by
the amendment in the Hindu Succession Act 2005. If therefore,
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even if a coparcener who has obtained a share on partition has no
male issue but has a female issue, the property allotted to him on
partition will partake the nature of coparcenary property. The above
proposition will therefore have to be read as a coparcener having
been allotted a share on partition, takes it as his separate property
when he has no issue.  This is since, by virtue of the amendment,
as the distinction between male and female children of a
coparcener stands abrogated and abolished, both having been
given equality of status as coparceners.”
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 intact in status and not when there is a partition in the
sense of there being a disruption in status in the family. Thus, the right of
a Hindu in the coparcenary joint family is an interest. Upon disruption or
division, it assumes the form of a definite share. When there is a metes
and bounds partition then the share translates into absolute rights qua
specific properties.
THE IMPACT OF THE HINDU WOMENS RIGHT TO
PROPERTY ACT, 1937 (XVIII OF 1937)(HEREINAFTER
REFERRED TO AS ‘THE 1937 ACT’, FOR SHORT).
108. It is apposite to notice
Sections 2, 3 and 5 of the 1937 Act:
“2. Application. -Notwithstanding any rule of Hindu law or custom
to the contrary, the provisions of section 3 shall apply where a
Hindu dies intestate.
3. Devolution of property. -
(1) When a Hindu governed by the Dayabhaga School of Hindu
Law dies intestate leaving any property, and when a Hindu
governed by any other school of Hindu law or by customary
law dies intestate leaving separate property, his widow, or if
there is more than one widow, all his widows together, shall,
subject to the provisions of sub-section (3), be entitled in respect
of property in respect of which he dies intestate to the same
share as a son: Provided that the widow of a predeceased son
shall inherit in like manner as a son if there is no son surviving
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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of such predeceased son, and shall inherit in like manner as a
son’s son if there is surviving a son or son’s son of such
predeceased son: Provided further that the same provision shall
apply mutatis mutandis to the widow of a predeceased son of
a predeceased son.
(2) When a Hindu governed by any school of Hindu law other
than the Dayabhaga school or by customary law dies having
at the time of his death an interest in a Hindu joint family
property, his widow shall, subject to the provisions of sub-section
(3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions
of this section shall be the limited interest known as a Hindu
woman’s estate, provided however that she shall have the
same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate
which by a customary or other rule of succession or by the
terms of the grant applicable thereto descends to a single heir
or to any property to which the Indian Succession Act, 1925,
applies.
xxx        xxx          xxx
5. Meaning of expression “die intestate”. -For the purpose of
this Act a person shall be deemed to die intestate in respect of
all property of which he has not made a testamentary disposition
which is capable of taking effect.”
As can be seen, Section 3 of the 1937 Act  applies when a Hindu
dies intestate.
It is important to notice that Section
3(1) of the 1937 Act deals
with the case of the Hindu dying intestate leaving behind separate
property. In such a situation, should there be one widow, she became
entitled in respect of the property to the same share as the son. This was
made subject to sub-Section (3) which declares that, the interest
devolving on her, would be a limited interest known as Hindu 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
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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. It will be, at once, noticed
that the Legislature had not used the words “dies intestate” in Section
3(2), whereas, in Section 3(1), the Legislature contemplated a situation,
where a Hindu could bequeath his separate property and has taken care
to provide only for a contingency where he died intestate. No doubt
Section 2 proclaimed that Section 3 was to be applied when a Hindu
died intestate. When it comes to Section 3(2), in regard to a case covered
by Mitakshara law, the Legislature has, in keeping with the law as then
prevailing, recognised that a Hindu could not execute a Will in regard to
his interest in a Hindu Joint Family. It is this concept, which has been
swept away by enacting the Explanation to Section 30 of the Hindu
Succession Act, whereunder, it is open to a Hindu to even bequeath his
interest in the Hindu Joint Family property. Coming back to Section 3(2)
of the Hindu 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. It is to be noted that, a Hindu
when he dies intestate he may have an interest in a Hindu joint family
and at the same time also have separate properties. Then qua his separate
properties, Section 3(1) would apply whereas in regard to his interest in
the joint family, Section 3(2) would govern. Section 3(1) cannot apply as
the properties in dispute were not his separate properties.
What is the impact of this enactment on the claim for survivorship
made by the Lakshmiah Naidu, the brother of V. Rangaswami Naidu?
Did the Right by Survivorship, survive the passing of the 1937 Act?
What is the nature of the Right, which is granted under Section 3(2) of
the 1937 Act to a Hindu Widow? These questions have fallen for
consideration before the Courts.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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We need only refer to one judgment, i.e., Satrughan Isser v.
Sabujpari and others47. To quote:
“7. By the Act certain antithetical concepts are sought to
be reconciled. A widow of a coparcener is invested by the Act
with the same interest which her husband had at the time of his
death in the property of the coparcenary. She is thereby introduced
into the coparcenary, and between the surviving coparceners of
her husband and the widow so introduced, there arises community
of interest and unity of possession. But the widow does not on
that account become a coparcener: though invested with the same
interest which her husband had in the property she does not acquire
the right which her husband could have exercised over the interest
of the other coparceners. Because of statutory substitution of her
interest in the coparcenary property in place of her husband, the
right which the other coparceners had under the Hindu law of the
Mitakshara school of taking that interest by the rule of
survivorship remains suspended so long as that estate enures.
But on the death of a coparcener there is no dissolution of the
coparcenary so as to carve out a defined interest in favour of the
widow in the coparcenary property: Lakshmi  Perumallu v.
Krishnavanamma [AIR (1965) SC 825]. The interest acquired
by her under Section 3(2) is subject to the restrictions on alienation
which are inherent in her estate. She has still power to make her
interest definite by making a demand for partition, is a male owner
may. If the widow after being introduced into family to which her
husband belonged does not seek partition, on the termination of
her estate her interest will merge into the coparcenary property.
But if she claims partition, she is severed from the other members
and her interest becomes a defined interest in the coparcenary
property, and the right of the other coparceners to take that interest
by survivorship will stand extinguished. If she dies after partition
on her estate is otherwise determined, the interest in coparcenary
property which has vested in her will devolve upon the heirs of
her husband. It is true that a widow obtaining an interest in
coparcenary property by Section 3(2) does not inherit that interest
but once her interest has ceased to have the character of undivided
interest in the property, it will upon termination of her estate devolve
47AIR 1967 SC 272
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upon her husband’s heirs. To assume as has been done in some
decided cases that the right of the coparceners to take her interest
on determination of the widow’s interest survives even after the
interest has become definite, because of a claim for partition, is to
denude the right to claim partition of all reality.”
The position at law may therefore, may be  culled out as follows:
With the passing of the 1937 Act, in areas to which it applied,
an intrusion was indeed made upon a coparceners right to set-up
a claim to the property of a deceased coparcener based on the
Doctrine of Survivorship but the Act did not annhilate the said
Right. The Right to claim by Survivorship came to be suspended
but not extinguished. The widow, though not a coparcener, was
like a coparcener in most respects. She was also conferred with
the right to claim partition. As long as she did not claim partition
and the property remained intact upon her death, the Right to
Claim by Survivorship which stood eclipsed, revived and the
coparceners would become entitled to the property on the basis
that succession opened as if the coparcener died when the widow
died. On the other hand, if the widow claimed partition, her interest
transformed into a defined interest and the Right to Claim by
Survivorship, which stood suspended, was destroyed. The property
would then enure to the heirs of the husband. It is also to be noted
that, by virtue of Section 3(2), there is no rupture in the
coparcenary.
There is no division brought about by Section 3 (2) of the 1937
Act, in other words.
We must also not be oblivious to two developments which took
place after succession opened to the estate of V. Rangaswami
Naidu on 01.06.1955. The Hindu Succession Act, 1956 containing
Section 14 came to be passed, the effect of which will be discussed
later. Secondly, we may also notice that R. Krishnammal the widow,
filed O.S. No. 71 of 1958 wherein as an alternate prayer, she
sought partition. We have already noticed the principle which has
been laid down about the effect of a demand for partition by a
widow in whom the Right came to be vested under Section 3(2)
of the 1937 Act. But, as we have noticed, the supervening
Legislation in the form of the Hindu Succession Act, if it did confer
absolute rights under Section 14(1), it is a matter of law as to
what was the nature of the Right R. Krishnammal possessed,
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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.
109. We find legislative recognition of this concept of ‘interest’ in
joint family in Section 6 of the Hindu Succession Act.  Section 6 prior to
its substitution by Amending Act 39 of 2005 provided that in the case of
male Hindu dying after the Act possessing an interest in Mitakshara
coparcenary property, the property was to devolve by survivorship, subject
to the proviso.  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 reads
as follows:
Explanation. —For the purposes of this sub-section, the interest
of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if a
partition of the property had taken place immediately before
his death, irrespective of whether he was entitled to claim
partition or not.
110. Therefore, the concept that what a coparcener in a
Mitakshara family had prior to partition, is an interest, is reiterated. For
the purpose
of Section 6, however, in order to determine the extent of
that interest it is deemed to be the share which he would get if there was
a notional partition just prior to his death. Partition in the sense of a
disruption however determines the extent of share which would devolve
under Section 8 of the Act. We make it clear that we must not 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.
WHAT IS TITLE OF V. RANGASWAMI NAIDU, WHICH
HE COULD PASS?
111. O.S. No. 89 of 1983 is a Suit where there is a declaration of
the plaintiff’s right sought and also a Decree of Partition. The cause of
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action is based on the remainder right traced from the terms of the Will
dated 10.05.1955. It is apposite to bear in mind one aspect. In a proceeding
instituted to obtain probate of a Will, if a contention is raised about the
title of the Testator, it would be foreign to the scope of the inquiry to
enquire into the title of the Testator. The court, considering the grant or
refusal of the probate is only to deal with the question as to whether the
Will was the last and genuine Will executed by the Testator. Questions
relating to title would have to be pursued before the appropriate Forum
(See Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon48). Would that be
the position in the case of the title Suit wherein a plaintiff invites the
court to pass a Decree for partition and qua the partition suit, Defendants
1 to 3 who are among the appellants before us, would stand in the shoes
of a plaintiff. We would think that O.S. No. 89 of 1983 and even O.S.
No. 649 of 1985, are Suits based on title. The question relating to the
right to the property involved must be gone into and decided.
112. We have already found that in the claim that V. Rangawami
Naidu acquired title to the properties by way of oral partition, cannot be
accepted. The claim that he had acquired properties by way of self-
acquisition, also may not stand. If there has been a disruption in the
family status, partition in the narrow sense of a division in title takes
place. We have also found that the
mere fact that there is a division
effected in the joint family, would not mean that, in law, V. Rangaswami
Naidu could claim exclusive and absolute ownership qua the items
covered under the Will. The plaint schedule properties are, admittedly,
part of the properties scheduled to the Will. The result would be that, in
terms of the legal principles applicable, we would find that V. Rangaswami
Naidu did not have exclusive right as such qua the properties scheduled
under the Will.
113. However, the reasoning of the First Appellate Court may be
noticed in this regard. After finding that a co-owner cannot unilaterally
allot specific properties to his share, the Appellate Court took the following
aspects into consideration:
The respondents (plaintiffs in O.S. No. 649 of 1985) were
aware in the earlier litigation (O.S. No. 71 of 1958 and O.S. No.
36 of 1963) that V. Rangaswami Naidu had made unilateral
allotment, and even though they had got opportunity in the above
48(2007) 1 SCC 357
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two instances, they did not raise any objection over the unilateral
allotment. Next, the Appellate Court took note of the fact that
there were more than ninety-three items of properties of more
than hundreds acres of land of Hindu Joint Family consisting of
the brothers, and therefore, the allotment of a small portion cannot
be held as unjust one. R. Krishnammal had tried to establish her
right in the proceedings under Section 145 of the CrPC. The earlier
Suits, i.e., O.S. No. 71 of 1958 and O.S. No. 36 of 1963, were
filed on the basis of the Will. The respondents had enough
opportunities to challenge the unilateral allotment and they failed
to utilise the same, and therefore, their consequential acts gained
much importance. The Court also distinguished the judgment in
Bhagwant P. Sulakhe (supra). It is further found that since V.
Rangaswami Naidu had given written rejoinder confirming the
newspaper publication dated 10.05.1955, the declaration cannot
be held as unilateral and his actions had (‘were’ sic) changed the
character of the Hindu Joint Family properties. Therefore, it is
found that having failed to raise any objection and acted accepting
the allotment, the respondents have no right to deny the life interest
of R. Krishnammal and the vested interest of the appellants.
114. The entire reasoning of the Appellate Court is that while one
coparcener, even after there is a division, cannot unilaterally appropriate
any specific property as his exclusive property, in view of the conduct of
the respondents in not challenging the said allotment in O.S. No. 71 of
1958 and O.S. No. 36 of 1963, they cannot be permitted to challenge the
nature of the right to the properties. The Appellate Court also relied on
the fact that the plaint schedule properties (less than 37 acres) is a small
part compared to the large extent of properties which belonged to the
coparcenary consisting of the two brothers.
115. As far as O.S. No. 71 of 1958 is concerned, the respondents
have produced A1-Plaint. As already noted, there was no occasion for
adjudication of the matter as the case was compromised. The appellants,
in fact, would claim that they are not even bound by the said Decree.
This is for the reason that under the said Decree, the plaint schedule
properties herein have been recognised as the absolute properties of the
respondents. If any reliance is to be placed on the said Decree, then, the
fact that under the compromise Decree, the entire rights have been
given-up by the life estate holder R. Krishnammal, stares one in his
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face. A2 is the compromise Decree. It is dated 21.07.1958. The Suit
was filed on 10.04.1958. It apparently may have suited the respondents
to not allow the matter to go to trial. The testimony of PW1 shows, inter
alia, as follows:
R. Krishnammal has informed as how much you can give
me. R. Krishnammal has asked for one house to live and land for
food, otherwise, she did not ask for equal share in the property.
116. As far as O.S. No. 36 of 1963 is concerned, A3 is the Plaint.
In A4-Written Statement filed by R. Krishnammal-First Defendant, she
disputed the case about the compromise and she defended the
compromise in O.S. No. 71 of 1958. The respondents were, in fact,
initially not parties. We have already noticed that the compromise Decree,
which ensued even in the said case, modifying the absolute estate of R.
Krishnammal and limiting it to a life estate in regard to Item Nos. 5 and
6, did involve reiteration of the Will. The question would, however, arise
whether, by such conduct alone, viz., by being parties in the said Suit,
and later on when the compromise took place, by signing the same not
as parties but in token of their having seen the endorsement made by
plaintiff therein and R. Krishnammal and Defendant No.3 (another
Legatee), they have acknowledged the title to Item Nos. 5 and 6, that it
vested with V. Rangaswami Naidu and, furthermore, whether it should
be treated as acknowledging the exclusive title in regard to the plaint
schedule
properties involved in this case and which were not scheduled
in O.S. No. 36 of 1963.
117. It is to be remembered that while on the one hand,
R. Krishnammal, in O.S. No. 71 of 1958, set-up the Will, as also the
case of oral partition and exclusive ownership of her late husband, she
also was willing to adopt the stand of the Lakshmiah branch that her late
husband and his brother were not separated. On the said basis, she had
also laid a claim based on the Hindu Women’s Right to Property Act,
1937, and what is more, also relied upon the Hindu Succession Act. It is
this Suit which was compromised. It is certainly not possible to predicate
on what basis Lakshmiah branch became amenable for the compromise.
It might have been different if the cause of action of R. Krishnammal
was based solely on the basis of the Will. In this case, having regard to
the alternate case set-up based on the rights available to her, as aforesaid,
and noticing that some items out the Will were recognised as her own,
and the other items which included items which were included in the
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Will and also part of the larger joint family property, she has given-up her
rights, it cannot be characterised as not using of the opportunity by the
Lakshmiah branch to challenge the unilateral allocation by V. Rangaswami
Naidu.
118. In O.S. No. 36 of 1963 also, as we have already discussed,
at the time of the compromise in 1974, the Lakshmiah branch was already
party to the compromise in O.S. No. 71 of 1958, under which they had,
in fact, recognised the absolute rights in regard to Item Nos. 5 and 6 in
favour of R. Krishnammal. It mattered little to them that under the
compromise Decree in O.S. No. 36 of 1963, it was to be enjoyed as a
life estate by R. Krishnammal and to be not alienated by her. We have
noticed that it was stated that no relief was claimed against the other
Defendants in the said Suit. The inference drawn by the First Appellate
Court based on not making use of the opportunity to challenge the
unilateral allocation, in such circumstance, does not appeal to us.
119. Coming to the second aspect, the First Appellate Court has
noticed the fact that the property belonging to the family, was much
bigger, as a result of which the unilateral allotment could not be treated
as unjust. It does not address the legal issues. On the basis that there is
a division in the joint family status, undoubtedly, V. Rangaswami Naidu
would be freed from the stranglehold of the principle that a Hindu could
not bequeath his
interest in the undivided family. As we have noticed,
the moment there is a division, what emerges is the share of the erstwhile
coparcener. In this case, there are only two coparceners, viz., V.
Rangaswami Naidu and Lakshmiah Naidu. They would have one-half
share between themselves. Undoubtedly, if V. Rangaswami Naidu had
bequeathed his one-half share, it could not have generated legal
controversy. We emphasise that this is subject to there having been a
disruption. We have also noticed that if there is a disruption in the Joint
Family status and partition in the narrow sense, it produces the
consequence that as regards the share of the separated coparcener, his
share becomes immune from any claim based on the Doctrine of
Survivorship. We have also noticed that a bequest by a member of his
interest in an undivided family, was juridically anathema, as under the
Doctrine of Survivorship, persons claiming under the birth right over the
property, would be preferred to those claiming under a Will. Once, this
obstruction over the right of the legal heir is removed in the case of
intestate succession, it would be the heirs, who would succeed. If that
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be so, can not a Hindu, be it before the Hindu Succession Act, bequeath
specific properties over which he would have undoubtedly joint rights?
120. 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?
We have noticed that during the interregnum, the properties of the family
would continue to remain joint[See 1986(1) SCC 366]. In other words,
unless there is a partition, qua, the properties, though the shares are
ascertained by the partition in the sense of a division in the joint family,
no coparcener could point to any specific item and claim it to be his.
121. Now, what would be the position in regard to the power of a
Hindu in the erstwhile State of Madras to transfer a specific item of
property even when the family is intact. A Full Bench of the Madras
High Court has dealt with this question in the decision reported in
Aiyyagari Venkataramayya and another v. Aiyyagari Ramayya49. The
pointed question which actually arose before the Court on a reference
to the Full Bench was, the effect of the death of the vendor after he
effects sale of his interest in the Hindu Undivided Family. The contention
apparently raised was, having regard to the Doctrine of Survivorship, if
the vendee did not institute a Suit to enforce his rights, while the vendor
was alive, the vendee would have no right at all to enforce. Justice
Bashyam Ayyangar has authored a separate Judgement wherein he
has
surveyed exhaustively the entire case law. The learned Judge holds inter
alia as follows:
“The question of a member of an undivided Hindu family alienating
family property for his own purposes is not a topic dealt with, as
far as I am aware, by any texts of Hindu law or by the
commentators. No express authority on the subject can therefore
be found in the Hindu law books, and it is questionable whether
an alienation by a co-parcener of his undivided share and interest
was recognised by Hindu jurists. As observed by the Judicial
Committee “there can be little doubt that all such alienations,
whether voluntary or compulsory, are inconsistent with the strict
theory of a joint and undivided Hindu family and the law as
established in Madras and Bombay has been one of gradual growth,
founded upon the equity which a purchaser for value has to be
allowed to stand in his vendor’s shoes and work out his rights by
49(1902) ILR 25 Madras 690
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means of a partition” Suraj Bunsi Koer v. Sheo Persad I.L.R. 5
Calc. 148.”
The learned Judge further goes on to state the law in the following
terms:
“A co-parcener may profess to alienate either his undivided share
in the whole of the family property or his undivided share in some
specified portion of the family property-as in the present case-or
the whole of a specified portion of the family property-as in the
case in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R.
166. The same thing may take place in the case of involuntary
sales also. In all these cases, the sale operates upon the interest
and share of the transferor as the same existed at the date of the
transfer and the transferee must work out the transfer by bringing
a suit for ascertaining what the share and interest of the transferor
was at the date of the transfer. Such a suit is not technically a suit
for partition and the decree which he may obtain enforcing the
transfer, either in whole or in part, by a partition of the family
property will not by itself break up the joint ownership of the
members of the family in the remaining property, nor the corporate
character of the family.”
We, however, notice also the following:
“The claim of a transferee from a co-parcener to work out the
transfer is no doubt an equitable claim in the sense that he must
be a transferee for value and in cases where the transfer relates
to a specific portion of the family
property, he has no legal right,
any more than his transferor himself, to insist on that specific
portion being allotted to the share of the vendor. Being a purchaser
for value he will have an equity to have such portion or so much
thereof as is practicable so allotted, if that can be done without
prejudice to the interests of the other sharers. In any suit which
may be brought by him to enforce the sale, all the members of the
family should be joined as parties as in a partition suit, the subject-
matter of the suit being the family property as it existed at the
date of the transfer.”
In fact the Court in Venkatachela Pillay v. Chinnaiya
Mudaliar50 (1870) held as under:
50(1870) 5 M.H.C.R. 166
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“…..And the contention on behalf of the appellant is that one co-
parcener cannot object to a sale of a family property made by
another co-parcener when the portion of property sold is
unquestionably less in quantity and value than the share of the co-
parcener making the sale in the entire property.
We are of the opinion that this is an untenable objection. The
decision of this Court as to the right of a co-parcener to alienate
his vested interest in the property held in co-parcenery do not go
beyond establishing the validity of an alienation to the extent of
the coparcener’s share in the particular property which is the
subject of the alienation. And they are founded upon the principle
that each co-parcener has a vested present undivided estate in
his share, which he may at any time convert into an estate in
severalty by a compulsory or voluntary partition, and that such
estate is transferrible like any other interest in property.  Further
than this the title of the 1st defendant under the alienation in the
present case cannot, we think, be carried…
xxx
xxx
xxx
By the sale in the present case therefore the vendor, Subbaraya,
could not in our judgment transfer to the 1st defendant’s father a
valid title to any specific portion of the joint-family property but
only to his beneficial estate as an undivided co-parcener with the
incidental right of partition, and it follows that the 1st defendant is
not entitled to more than the moiety of the village lands
which
were alone the subject of the contract of sale.”
It appears there is no uniformity in regard to the power of a
coparcener to sell his undivided interest. In Sidheshwar Mukherjee v.
Bhubaneshwar Prasad Narain Singh and others51 we notice the
following :
“9. It is true that under the Mitakshara law, as it is administered in
the State of Bihar, no coparcener can alienate, even for valuable
consideration, his undivided interest in the joint property without
the consent of his coparceners; but although a coparcener is
incompetent to alienate voluntarily his undivided coparcenary
interest, it is open to the creditor, who has obtained a decree again
him personally, to attach and put up to sale this undivided interest,
51AIR 1953 SC 487
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and after purchase to have  the interest separated by a suit for
partition.”
In M.V.S. Manikayala Rao v. Narasimhaswami and others52,
a case which arose against the impugned order of the High Court
of Andhra Pradesh, it involved an auction sale therein the Court
held as follows:
“….Now it is well settled that the purchaser of a coparcener’s
undivided interest in the joint family property is not entitled to
possession of what he has purchased.  His only right is to sue for
partition  of the property and ask for allotment to him of that
which on partition might be found to fall to the shre of the
coparcener who share he had purchased….”
122. The view of Justice Bashyam Ayyangar has also been
approved by a Full Bench of five learned Judges of the High Court in K.
Peramanayakam Pillai v. S.T. Sivaraman and others53.
123. Thus, in the case of an alienation by a Hindu, even if it is of
a specific property belonging to the joint property, it would be dealt with
on an equitable basis, should the alienee bring an action to enforce the
same in a properly constituted Suit. The conclusion we would arrive at is
that the sale of such a right even over specific immovable property by a
coparcener in a Mitakshara Hindu Joint Family does take effect in law
where it is permitted and it would not be a case of a void transaction.
The purpose of undertaking this discussion is to appreciate the law relating
to the power of the coparcener to
transfer specific items even if there
has been no partition in the sense of a division of title so that we are in a
better position to appreciate the question as to whether in a case where
a Hindu executes a Will prior to the Hindu Succession Act could, he, by
a Will, after a division is brought about in the family bequeath specific
immovable property.
124. In order to understand this problem in its proper perspective,
we must advert to certain vital dimensions. The real principle on the
basis of which the interest of a coparcener in a Joint Hindu Family could
not be the subject matter of a valid bequest was that the bequest would
come into collision with the right to claim property by survivorship vested
in the other coparceners upon their birth. Thus, it is a case of a prior
52AIR 1966 SC 470
53AIR 1952 Madras 419
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right taking precedence over the bequest which can come into force
only not from the date of the making of the Will but upon the death of the
Testator. This distinction, has apparently allowed courts to recognise an
inter-vivos alienation which is possible only when the coparcener is alive
of his interest in the Joint Hindu Family as it does not involve a conflict
between the right by survivorship and rights sought to be created by the
coparcener.  However once there is a division, then right by survivorship
ceases and there can be objection to said principle applying to a bequest
of a specified immovable property. In fact, the case of a will made after
division of specific immovable property stands on a different footing and
the objection that the sale is by a coparcener when the joint family exists
does not hold good.
125. The second point of distinction which we may notice is that
as noted by Justice Bashyam Ayyangar in Aiyyagari Venkataramayya
and another (supra) is that, the right was recognised as an equitable
right in favour of an alienee who has purported to purchase the property
for valuable consideration. A bequest may be subject to an onerous
condition and the rights of the Legatee may become subject to the
Doctrine of Election. A bequest, on the other hand, may involve no liability
for the Legatee, in which case, he may not bear resemblance to an
alienee under the inter-vivos transfer who purchases property for valuable
consideration.
126. At
least, as an equitable claim, can not appellants enforce
their right and claim to be allotted the items on the basis that they could
be allotted to the share of the Testator as in the case of a transferee
from a Hindu of specific immovable property, even when the joint family
continues to exist? We have noticed that the law does not render such
transferee helpless. No doubt, one of the conditions which has been
evolved in by Justice Bashyam Ayyangar in the decision in Aiyyagari
Venkataramayya (supra) is that all the sharers must be on the party
array. In this case, the said requirement is fulfilled as they are represented
as Defendants 4 to 11 is O.S. No. 89 of 1983. No doubt, we notice that
another requirement, in such a case, would be that all the properties of
the joint family are scheduled. This requirement is not seen fulfilled and
the frame of the Suit is based on exclusive title of the plaintiff and
Defendants 1 to 3 which is based on bequest.
127. About the extent of property belonging to the family, it is
relevant to notice that PW1 has deposed, inter alia, as follow:
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My brother Baktachalam gave an extent of 750 acres of
land in Kollegal Village, Satyamangalam to his father in the name
of Government assignment in the year 1944. Those 750 acres of
land are under our family possession.  My father had purchased
an extent of 150 acres of land in Coimbatore from 1932 to 1958 in
my name and Ramathal. More than 1,000 acres of land were
purchased from 1944 to 1958 in their family. V. Rangaswami Naidu
is having right upon 1,000 acres of land purchased in Kollagal,
Kollangodu, Coimbatore and Tanjore. I know that R. Krishnammal
has right over 1,000 acres of land. R. Krishnammal did not claim
share in 1000 acres of land in A1. When we settled the matter
and gave the share to R. Krishnammal, we did not take into account
of an extent of 1,400 acres of land. R. Krishnammal did not claim
share as she is having right over more than 700 acres of land.
Above is the picture regarding the availability of the family
properties. They are of course not scheduled in the Plaint. We
are not exactly aware of the value of these lands.
128. We would certainly think that the Legatee under the Will, left
behind by a Hindu after there is division in the family status in regard to
specific properties belonging to the family, would indeed have rights qua
the property but limited to the share of the Testator. It cannot be a
principle of law in the region of controversy that a man cannot ordinarily
transfer a right
greater than what he himself has. Even under the Indian
Succession Act, under Section 59, there could be no prohibition in V.
Ranagaswami Naidu bequeathing his share, if there was division. We
have already noticed that in a bequest, the equitable consideration available
to a transferee by an intra-vivos transaction, wherein he has paid valuable
consideration, may not apply. But this cannot mean that, if everything
else is proved, the legatee should be left remediless. We did toy with the
idea of considering holding in favour of the appellants even treating it to
be an exercise of powers under Article 142 of the Constitution of India
in the special facts of this case as brought out by the testimony of PW1
as regards the inequity involved.  No doubt, we find the frame of the Suit
hardly helpful to the appellants. But having regard to the fact that the
appellants must fail otherwise, we need not explore this matter further.
DOES THE WILL EFFECT A DIVISION?
129. There is an argument raised by the appellants that if no division
was caused by B1 still the terms of the Will achieve the same result. In
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other words in so far as Rangaswami Naidu had in the Will  indicated
not only about there being a partition in 1932 but he has also stated that
he continues to  be a divided member till the date of the Will and he has
already made an open declaration of his divided status division also flows
as an inevitable result of his Will. The Will causes the disruption and
therefore the respondents who are the legal representatives of Lakshmiah
Naidu have no claim in law under the doctrine of survivorship.  We do
not think there is any merit in this argument. It may be true that though
no issue as such was raised, the trial court was indeed called upon by
the parties to answer this question. What is involved essentially is the
reading the contents of the will so as to ascertain whether it has the
impact of being the declaration of an unequivocal intent of the coparcener
to separate.
130. Shri Guru Krishnakumar, learned counsel would however
point out that even proceeding on the basis that there is a Will and its
terms amount to a declaration since Rangaswami Naidu died  on 1.6.1955
and the Will saw the light of the day as far as other coparcener is
concerned only in the course of proceeding under Section 145 of the
CrPC which took place much after the death, when succession opened
to the estate of Rangaswami, the will not having been communicated to
Lakshmiah Naidu the requirement in law was not fulfilled.
In order that Section 3(2) of the 1937 Act applies, V.
Rangaswami
Naidu must have died intestate, leaving behind an interest in the Hindu
Undivided Family. What the appellants are calling upon us to do is to
take a part of the Will which allegedly contains the declaration which in
law, effects division. But if the Will is to be acted upon, then the conundrum
which exists is, it could not be said that V. Rangaswami Naidu died
intestate qua the properties which are the plaint scheduled properties.
In fact, Section 5 of the 1937 Act has defined the words “die intestate”
to mean that “a person shall be deemed to die intestate in respect of all
property of which he has not made a testamantary deposition which is
capable of take effect”. On the one hand, the appellants would require
this Court to hold that B10-Will should govern the rights of the parties
and that it is capable of taking effect. If it is not found capable of taking
effect, the cause of action would fail. If, therefore, we proceed on the
basis that there is a will Section 3(2) did not apply, and R. Krishnammal,
the widow, would get no right under Section 3(2). If she did not get any
right under the Act with regard to the properties governed by the Will,
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then, the law relating to survivorship, under which Lakshmiah Naidu
would succeed to the estate of his brother, would spring into being
immediately on the death of V. Rangaswami Naidu on 01.06.1955. Could
it be, however, that it is possible for the appellants to contend on the
Doctrine of Relating Back propounded in Addagada Raghavamma
(supra) that by virtue of the contents of the Will, a division is achieved
upon Lakshmiah Naidu becoming aware of the Will even after the death
of his brother during the proceedings under Section 145, which is an
admitted position, and its effect being felt from 10.05.1955 when the
Will was made and, therefore, by this reasoning, on 10.05.1955, which is
before the death of V. Rangaswami Naidu, a division is effected and,
therefore, the Will becomes valid? In other words, look to the Will, to
find whether its contents amount to a declaration causing a division in
law from 10.5.1955 and since the Will speaks from the date of the death
of the Testator on 1.6.1955, the Will becomes a valid Will?
We may also, in this regard, turn to the contents of the Will, which
we have already extracted in paragraph-77 hereinbefore. It will be noted
that the Will starts off with the statement by the Testator that he owned
the properties which included properties allotted in a partition and also
which he acquired by independent purchases. Thereafter, he states that
he had been a divided member since 1932
onwards. None of these
statements would constitute a declaration. We have found that the case
of partition in 1932 and independent purchases have been found against
the appellants by three courts. Thereafter, there is only the statement
that he has, in order to avoid any uncertainties, made an open declaration
of his divided status ‘today’. It may be difficult for us to accept this
statement as a declaration sufficient in law to cause a division. However
even for a moment that it would work out as a declaration, we would
think that the law laid down by this Court in Addagada Raghavamma
(supra), may pose obstacles insuperable in nature, for the appellants.
While it may be true that under the Doctrine of Relation Back
and proceeding on the basis that the contents, as noted in the Will,
amounted to a clear declaration to separate and that it would have effect
from 10.05.1955, we cannot be oblivious to the creation of the vested
rights. If the matter is to be governed under Section 3(2) of the 1937
Act, as already noted, it must be a case where V. Rangaswami Naidu
died intestate. Therefore, if we proceed on the basis that there is a Will
as indeed we must to accept the case of the appellants, Section 3(2) will
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not apply. If Section 3(2) does not apply, the claim to the property by
survivorship, would arise, which would be fatal to the appellants case,
for the reason put forth by Shri Guru Krishnakumar, learned Senior
Counsel, as noted above. That is to say, in the facts of this case, in view
of the division being communicated through the Will only after the
succession had opened, and even allowing for the division to have effect
from 10.5.1955 when the will was made, the vested right of Lakshmiah
Naidu to claim by survivorship would spring into existence on 01.06.1955
when his brother died and the subsequent communication based on the
Will cannot take away vested right which became available proceeding
on the basis of the Will relating to the plaint schedule properties (see in
this regard para 34 of Addagada Raghavamma (supra).
DATE AND CONTENTS OF B1: EFFECT OF NON
PRODUCTION OF LETTER DATED 11.5.1955 AND 16.5.1955
131. Coming to the actual question therefore whether B1 was in
fact issued, whether its contents amount to a declaration as required to
create a division, and finally whether it was communicated to Lakshmiah
Naidu we find as follows:
132. The case of the appellants is that B1 is issued on 10.5.1955.
B1 is a declaration published in a newspaper. B1 as noted by the first
appellate Court, is as follows:
“I have been a divided member from my brother Sri R.V.
Lakshmiah Naidu ever since 1932…. I also hereby do make a
declaration of my divided and separate
status”.
133. The further case of the appellants is that the requirement of
communication to the other coparceners is complied with as is proved
by the fact that having received B1 on the very next day Lakshmiah
Naidu issued communication dated 11.5.1955 wherein he purported to
dispute the allegation in B1 that there was a partition in the year 1932.
The case of the appellants is further premised on the act of Rangaswami
Naidu in sending a rebuttal, as it were, to the communication sent by
Lakshmiah Naidu dated 11.5.1955 which he sent on 16.5.1955. Both the
trial court and the High Court have however found it to be fatal to the
appellants case that the appellants have not produced the said
communication dated 11.5.1955 and 16.5.1955. The respondents also
would contend that the High Court was right in its conclusion in that
regard. On the other hand, the appellants would point out that the court
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must not lose sight of the fact that the communication issued by Lakshmiah
Naidu dated 11.5.1955 is produced as Exhibit (43) and the communication
dated 16.5.1955 was produced as Exhibit 44 in proceeding under Section
145 of the CRPC. There is reference to these documents in the order
passed by the Magistrate which is marked as B2 in this case. Moreover,
respondents complain about absence of pleading to the effect that B1
was issuedcausing a division even by way of refuting the case set up
inOS 649 of 1985 that Rangaswami Naidu died joint.
WHETHER THERE IS LACK OF PLEADING ABOUT B1
CAUSING A DIVISION IN THE JOINT FAMILY?
134. In O.S. No. 649 of 1985, filed by the respondents, it is averred
that the plaint scheduled properties were joint family properties of the
two brothers and it is further averred that there was no partition between
them and they were living as joint family till the death of V. Rangaswami
Naidu in 1955. In paragraph-5 of the Plaint, it is specifically averred
that, till the death of V. Rangaswami Naidu, he and his brother constituted
a joint family and there was no division in status between them, and on
the death of V. Rangaswami Naidu, the surviving coparcener took all
the properties by survivorship. In the Written Statement, which is filed
on the appellants side (viz., the Second Defendant), we notice the
following pleading in paragraph-3 of the Plaint:
“3. R.V. Lakshmiah Naidu and V. Rangaswami
Naidu were
brothers. They were divided and living separately. They were
cultivating their lands separately. The claim of the plaintiffs that
R.V. Lakshmiah Naidu and V. Rangaswami Naidu were living as
joint family and that there was no division in status till the death of
V. Rangaswami Naidu is false. The joint family status between
the brothers was duly disrupted and put an end to. There was also
division of properties, and each was enjoying his respective
properties separately. V. Rangaswami Naidu also purchased lands
independently.”
(Emphasis supplied)
135. No doubt, in O.S. No. 89 of 1983, what is averred is that the
properties belonged to one V. Rangaswami Naidu. It was further averred
in paragraph-9 of the Plaint that the brothers had divided the properties
as early as in 1932. Out of the nine items scheduled in the Plaint (viz.,
O.S. No. 89 of 1983), Item Nos. 1 to 3 and Item Nos. 6 to 9 were
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allotted to the share of V. Rangaswami Naidu and were in his possession.
Item Nos. 4 and 5 were purchased by V. Rangaswami Naidu long after
the partition and belonged to him absolutely. We must also not lose sight
of the fact that the averments in the later Suit (viz. O.S. No. 89 of 1983),
makes reference to the allegations in O.S. No. 649 of 1985 (the number
of the Suit after renumbering). Still further, we notice that when the
issues were framed, the first issue was whether the Will executed by V.
Rangaswami Naidu is true and valid and whether it came into force. A
separate issue (Issue no. 2) was framed as to whether there was an oral
partition. It is also noticed that in the discussion, the matter was debated
before the Trial Court on the basis that by the publication of notice on
12.05.1955 in “Navva India” newspaper, there was division of the
property.
136. We have already noticed the pleadings of the Second
Defendant in the Written Statement in O.S. No. 649 of 1985. Both the
Suits were tried together. It has been averred that the brothers were
divided and living separately. The claim of the respondents that there
was no division in status till the death of V. Rangaswami Naidu, has
been specifically pleaded to be false. The joint family status, it has been
stated, was duly disrupted and put an end to.
137. We would think that, 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, in our view, is not fatal to the appellants
case, if it is otherwise established.
WHETHER THE CONTENTS OF B1 AMOUNT TO A
DECLARATION TO EFFECT DIVISION
138. 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 in our view is capable of standing
as a standalone statement. The use of the word ‘also’ appears to be
deliberate. It would also probablise that there was legal advice which
preceded both the making  the Will and the drafting of the Notice. In
B13, the executor has spoken about V. Rangaswami Naidu, expressing
his desire to execute the Will on two or three occasions and about their
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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being legal consultation. V. Rangaswami Naidu was an educated man.
An Ex. MLC. He was affluent. Setting up of the case of oral partition,
was also on the wings of alleged separate purchases. There was a case
that the brothers exchanged list of properties. He may have entertained
the idea that what had happened, did constitute a case for oral partition.
If we give credit to V. Rangaswami Naidu, to have the knowledge that
a division through notice declaring intent to separate, was indispensable
to the validity of the Will, as also the use of the word ‘also’, it is capable
of being understood as the declaration sufficient in law to cause disruption
in the joint family status.
139. The arguments of Mr. Gurukrishna Kumar, learned Senior
Counsel, that the sentence having regard to its grammatical implications
must persuade us to link it with the earlier partition, alleged in the year
1932, does not appeal to us. We should also not be unmindful of the fact
that 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.
WHETHER THERE WAS COMMUNICATION TO THE
OTHER COPARCENER
140. Now, we come to the aspect as to whether B1 was
communicated. 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. In fact, it was also the case of the
appellants that Lakshmiah Naidu revealed his mind to be that for bringing
about disruption, that V. Rangaswami Naidu had to communicate to the
other coparceners. 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.
141. We have noticed that 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
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sought to be overcome by the appellants by relying upon the case set up
by ‘A’ Party, as revealed in B2. It is the order passed by the Magistrate
under Section 145 of the CrPC. We do notice, as far as the Notice
issued by V. Rangaswami Naidu, it is a notice in a newspaper. It may
not be as difficult in procuring a copy of the newspaper as it might be to
procure the private communications, as contained in the letters dated
11.05.1955 and 16.05.1955. We do notice that the letters dated 10.5.1955,
11.05.1955 and 16.05.1955 have been purportedly marked as B42, B43
and B44, respectively, in proceedings which culminated in B2. The
pleadings in support of these documents are indeed adverted to in B2,
order passed by the Magistrate.
142. 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 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. Section 43 reads as follows:
“43. Judgments, etc., other than those mentioned in sections
40 to 42, when relevant.—Judgments, orders or decrees, other
than those mentioned in sections 40, 41 and 42, are irrelevant,
unless the existence of such judgment, order or decree, is a fact
in issue, or is relevant under some other provisions of this Act.”
143. In this regard, we have scanned B2-Order. The relevant
part where the pleading is set out is as follows:
“The deceased declared his divided status by a notice in the ‘Nava
India’ dated 10.5.1955 (Exhibit P42). This attracted the attention
of B Party No. 1 who wrote to him on 11.5.55 (Exhibit P43) that
all of them were undivided and that if the deceased wanted to get
divided he had to intimate it to the other copartners. The deceased
replied on 15.5.55 by Exhibit P44 that the stand taken by B Party
No. 1 was not correct. This was acknowledged by a B Party No.
1 on 17.5.55 (Exhibit P45).
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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144. What is conspicuous by its absence in B2-Order is the
response of the B Party in regard to these documents. It is not a case
where there is reference to the pleading of the B Party, viz., the
Lakshmiah branch that they admit the issuance of B42, B43 and B44.
But there is no denial either.  B2 would show  that there was a case for
the A Party on the lines we have indicated. Except for the discrepancy
in the date of ‘B1’ being 12.5.1955 whereas B42 is dated 10.5.1955,
there is consistency in the case set up by the appellants.
145. The question relating to relevancy of judgments has been
considered by a Bench of this Court in State of Bihar v. Radha Krishna
Singh and Others54. The Court took the view that reliance cannot be
placed on judgment based on Section 13 of the Evidence Act if it is not
falling under Sections 40 to 42.  Thereafter the Court held as follows:
“129. In Gadadhar Chowdhury v. Sarat Chandra
Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195
IC 412 : 72 Cal LJ 320] it was held that findings in judgments not
inter partes are not admissible in evidence. In this connection a
Division Bench of the Calcutta High Court observed as follows :
“Though the recitals and findings in a judgment not inter
partes are not admissible in evidence, such a judgment and decree
are, in our opinion, admissible to prove the fact that a decree was
made in a suit between certain parties and for finding out for
what
lands the suit had been decreed.
130. This, in our opinion, is the correct legal position
regarding the admissibility of judgments not inter partes.”
We do notice that the second of ‘A’ party in fact was the executor
of the Will under which the appellants claim.
146. Interestingly, the respondents have produced as A109 which
has been marked as the copy of the type set in the revision before the
High Court (the revision is filed against order B2 passed in Section 145
proceedings). It is shown wrongly marked as the order in the proceeding.
Therein we notice that the contents include apart from the impugned
order (B2) the respondents documents. Among the contents the Exhibits
filed on behalf of the B party are produced. It also contains the evidence
of L. Venkatapathy who is none other than PW1 in this case. Therein,
541983 (3) SCC 118
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there is no mention about B42, B43 and B44 in his examination.  In his
cross examination after stating that he found his signature(Testator) in
every page of [Exhibit B68], the Will he deposed,he did not know if his
father had replied to the publication in ‘Navva India’. We do not know
what prevented the plaintiff in O.S. No. 83 of 1989 from producing the
documents B42, B43 and B44 which would have also been available as
the documents filed by the B party has been produced by B party as part
of A109.  There is no finding in B2 about B42 publication, B43 or B44.
147. During the hearing, it was pressed before us 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. As noted, we did call for the records to verify whether
marking of the documents B1 dated 12.05.1955 was a mistake, as pointed
out byMr. C.A. Sundaram, learned Senior Counsel or it did reflect the
ground reality. We find 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. What are the
consequences that
flow from the said finding? One way to look at would be that since the
notice containing the declaration, is published in a newspaper only on
12.05.1955, the case of the appellants that Lakshmiah Naidu gave a
reply on 11.05.1955, on noticing the notice, cannot be accepted. If the
same is not accepted, then, the question of V. Rangaswami Naidu, sending
a rejoinder, as it were also, would not arise.
148. We have considered the contents of the Will. There is a
reference to the publication of the Notice on the said date. The Will is
dated 10.05.1955. It appears to us quite clear that the Will would not
have been written on 10.05.1955. It is, no doubt, executed on 10.05.1955,
which we have already found. Having regards to the details in the Will
and the other circumstances, we are 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
V. KALYANASWAMY (D) BY LRS. & ANR. v.
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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 as held in Addagada Raghavamma and
others (supra). In this regard, we notice that DW1, the witness on behalf
of the appellants, has this to say:
“On 11.05.1955, Lakshmiah Naidu gave a reply in response
to B1. The same is marked as B44 in CrPC 145 Proceedings. He
clearly admitted about the division in status made between
Rangaswami Naidu and Lakshmiah Naidu.”
149. This statement goes against the appellants case. It appears
to be the case of R. Krishnammal and the Executor in Section 145 of the
CrPC proceedings as what is stated is that on seeing B42 (which is
marked as the ‘Notice’ published on 10.05.1955), Lakshmiah Naidu sent
B43 stating that there was no partition between them, for which, the
deceased sent B44 reply. Thereafter, DW1 says that on 10.05.1955, on
publication of advertisement in “Navva India”, he came to know that
one objection advertisement was published on the very next date.
150. Let us see what PW1 said, who was 26 years of age in 1955
and who has also given evidence in Section 145 CrPC proceedings. If
there is a clear admission by him, establishing that the declaration was
known to Lakshmiah Naidu before the death of V. Rangaswami Naidu,
the appellants may succeed on this point subject to the contradiction
being resolved about
the date of B1. After stating that, on 10.05.1955, V.
Rangaswami Naidu issued Notice in India newspaper, as the partition
was done, and stating that, V. Rangaswami Naidu fictionally made such
paper advertisement, he, thereafter, says that he came to know about
the newspaper advertisement and Will, only in Section 145 of the CrPC
proceedings. Thereafter, he says, on 12.05.1955, V. Rangaswami Naidu
gave one paper publication in “Navva India”. But again, he says he
came to know regarding the same during Section 145 proceedings. He
further says that his father did not ask V. Rangaswami Naidu as to why
he gave B1 publication. The witness says, he is not aware why B1
publication was given. Thereafter, he says, he does not know now
whether the newspaper advertisement was filed by his paternal small
Uncle in Section 145 proceedings. It has been mentioned in A1 that his
father made advertisement in respondent to B1. He further says that his
father may be given that advertisement (Being translation from Tamil, it
does not obviously do justice. We read it as “his father may have give
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that advertisement”). He says that the advertisement given by his paternal
small Uncle and his father reply advertisement was filed in A1-Suit and
he says that it is not correct to say that his father had admitted that a
division in shares and his father gave newspaper advertisement as the
properties were not partitioned by metes and bound. He says that it has
been mentioned in A1 (Plaint in O.S. No. 71 of 1958), as Rangaswami
Naidu gave a reply on 16.05.1955 to his father. He then admits that it is
correct to say that those are marked as B42, B43 and B44, respectively,
in (‘as’ sic) Section 145 of the CrPC proceedings and he gave the
deposition in those proceedings. We would think that this is a vital piece
of evidence which may show that B43 is the communication dated
11.05.1955 which  must be taken to be sent by his father to which V.
Rangaswami Naidu respondend on 16.05.1955. This should mean that
the publication on 10.05.1955 became known to Lakshmiah Naidu, as
set-out in B2. The exact contents of B43 are not available.
151. When PW1 was examined in Section 145 of the CrPC
proceedings, in the chief examination, he does not say a word about
B42, B43 or B44. Then, in cross-examination, he says that he does not
know if his father had replied to the publication in “Navva India”.
152. We must notice that the High Court has proceeded on the
basis of the inconsistency in the matter. There is no pleading in regard to
B42, B43 or B44 in O.S. NO. 89 of 1983.
In answer to the plaintiffs
case, based on B1, which is dated 12.05.1955, the High Court finds that
the First Defendant set-up a case that the Notice was published on
10.05.1955. The High Court also noticed the non-production of the
communications dated 11.05.1955 and 16.05.1955.
153. However, 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 us. If we proceed
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, we would agree
with the High Court that the case relating to B1, though there is a
publication made, we cannot attribute knowledge of the same to
Lakshmiah Naidu, before the death of his brother. We are not, for a
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moment, holding 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 [See paragraphs-28 and
32 of Addagada Raghavamma (supra), extracted by us in paragraph-89
hereinbefore]. 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 we have 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 rightsin
favour of the Lakshmiah Naidu branch. We again reiterate the effect of
the death of Rangaswami Naidu being before the Hindu Succession Act
came into forceto be that it would deprive persons of rights available in
respect of a Hindu who dies intestate after the Act came into force.
Now assuming that there was a valid Will, that is, there was a
division effected in the family, we will consider whether the life estate
under the Will attractSection 14(1) or Section 14(2) of the Hindu
Succession Act.
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SECTION 14 (1) VERSUS 14 (2) OF HINDU SUCCESSION
ACT 1956
154. Section 14 of the Hindu Succession Act 1956 reads as follows:
“4. Property of a female Hindu to be her absolute property.—
(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by
her as full owner thereof and not as a limited owner. Explanation.—
In this sub-section, “property” includes both movable and
immovable property acquired by a female Hindu by inheritance
or devise, or at a partition, or in lieu of maintenance or arrears of
maintenance, or by gift from any person, whether a relative or
not, before, at or after her marriage, or by her own skill or exertion,
or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as stridhana
immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or
under a decree or order of a civil court or under an award where
the terms of the gift, will or other instrument or the decree, order
or award prescribe a restricted estate in such property.”
155. Not only is the interpretation to be placed on Section 14 not
res integra, it has engaged the attention of courts, including this Court,
on a large number of occasions. A large number of decisions has been
cited before us. The appellants would contend that in the facts
of this
case the provisions of Section 14(2) would apply whereas the branch of
Lakshmiah Naidu would invite us to uphold the view of the High Court
that Section 14(1) applies.
156. If Section 14(1) applies, it has the following impact:
The estate which R. Krishnammal had in the properties
including the plaint schedule properties would become absolute.
Then, the very edifice of the claim made by the appellants who
were legatees under the Will conferred with absolute rights on
the death of R. Krishnammal would collapse and they would have
no right. If on the other hand, Section 14(2) applies, then, again on
the basis that there is a will left behind by Rangaswami Naidu
which is otherwise valid and genuine, the appellants could claim
title as remaindermen.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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157. Before we consider the case law, it is necessary to deal with
the contention of the appellants that R. Krishnammal did not set up a
case under Section 14(1) and that she claimed only under the will in OS
No.71 of 1958 we need only refer to para 11 of OS No.71 of 1958.  The
same reads as under:
“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 the defendants 1 to 4 but as far as she has been
able to do so, she has set them out in Schedule II. The plaintiff
craves leave to add to them as and when she gets better particulrs.
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.”
It is clear that she expressly referred to the Hindu Succession
Act also.
158. Mst. Karmi v. Amru and Others55 is a judgment which is
rendered by three learned judges. It was a case where a Will was
executed revoking the earlier will by which a Hindu bequeathed
his entire
estate on his widow during her life, and thereafter, the same was to
devolve on his collaterals. The Will was dated November 13, 1937.  This
Court held that the widow having succeeded on the strength of the Will
could not claim any right over and above what was given to her under
the Will.  It was held that the life estate could not become absolute
estate under the Hindu Succession Act 1956.
159. V. Tulasamma v. Sesha Reddy56 is a Judgment  rendered by
a Bench of three learned Judges. It was a case where the husband of
the appellant therein died in a state of jointness with his brother in the
year 1939. She obtained a Decree for maintenance. This was followed
by execution proceedings wherein an out of court of settlement took
55 (1972) 4 SCC 86
56(1977) 3 SCC 99
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place under which the appellant was allotted scheduled properties which
was certified on 30th July, 1949. However, it was a limited interest with
no power of alienation. The suit out of which an appeal arose was filed
by the respondent impugning an alienation made by the appellant. On
these facts, we notice the following principles have been laid down:
“62. (1) The Hindu female’s right to maintenance is not an
empty formality or an illusory claim being conceded as a matter
of grace and generosity, but is a tangible right against property
which flows from the spiritual relationship between the husband
and the wife and is recognised and enjoined by pure Shastric Hindu
law and has been strongly stressed even by the earlier Hindu
jurists starting from Yajnavalkya to Manu. Such a right may not
be a right to property but it is a right against property and the
husband has a personal obligation to maintain his wife and if he or
the family has property, the female has the legal right to be
maintained therefrom. If a charge is created for the maintenance
of a female, the said right becomes a legally enforceable one. At
any rate, even without a charge the claim for maintenance is
doubtless a pre-existing right so that any transfer declaring or
recognising such a right does not confer any new title but merely
endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been
couched in the widest possible terms and must be liberally
construed
in favour of the females so as to advance the object of the 1956
Act and promote the socio-economic ends sought to be achieved
by this long-needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso
and has a field of its own without interfering with the operation of
Section 14(1) materially. The proviso should not be construed in a
manner so as to destroy the effect of the main provision or the
protection granted by Section 14(1) or in a way so as to become
totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments,
decrees, awards, gifts, etc. which create independent and new
titles in favour of the females for the first time and has no application
where the instrument concerned merely seeks to confirm, endorse,
declare or recognise pre-existing rights. In such cases a restricted
estate in favour of a female is legally permissible and Section
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14(1) will not operate in this sphere. Where, however, an instrument
merely declares or recognises a pre-existing right, such as a claim
to maintenance or partition or share to which the female is entitled,
the sub-section has absolutely no application and the female’s
limited interest would automatically be enlarged into an absolute
one by force of Section 14(1) and the restrictions placed, if any,
under the document would have to be ignored. Thus where a
property is allotted or transferred to a female in lieu of maintenance
or a share at partition, the instrument is taken out of the ambit of
sub-section (2) and would be governed by Section 14(1) despite
any restrictions placed on the powers of the transferee.
(5) The use of express terms like ‘property acquired by a
female Hindu at a partition’, ‘or in lieu of maintenance’, ‘or arrears
of maintenance’, etc. in the Explanation to Section 14(1) clearly
makes sub-section (2) inapplicable to these categories which have
been expressly excepted from the operation of sub-section (2).
(6) The words ‘possessed by’ used by the legislature in
Section 14(1) are of the widest possible amplitude and include the
state of owning a property even though the owner is not in actual
or physical possession of the same. Thus, where a widow gets a
share in the property under a preliminary decree before or at the
time when the 1956 Act had been passed but had not been given
actual
possession under a final decree, the property would be
deemed to be possessed by her and by force of Section 14(1) she
would get absolute interest in the property. It is equally well settled
that the possession of the widow, however, must be under some
vestige of a claim, right or title, because the section does not
contemplate the possession of any rank trespasser without any
right or title.
(7) That the words ‘restricted estate’ used in Section 14(2)
are wider than limited interest as indicated in Section 14(1) and
they include not only limited interest, but also any other kind of
limitation that may be placed on the transferee.”
160. In Shakuntla Devi v. Kamla57,  again, a Bench of three learned
Judges was dealing with a case where Hindu wife was given a life
interest for maintenance by a Will. The Court followed the Judgment in
57 (2005) 5 SCC 390
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V. Tulsamma (supra) and took the view that it is Section 14(1) which
would apply.  The terms of the Will inter alia provided that the property
was not to be alienated and it was meant for their maintenance. This is
a case where testator had three wives of which one had pre deceased
him. Under the Will after the death of the second wife the life estate
came to be vested with the third wife. The Will provided that the wife
was provided with the property for her maintenance without any power
of alienation.
161. In Sadhu Singh v. Gurdwara Sahib Narike58, a Bench of two
learned Judges had the following facts before it. The property in question
was self-acquired property. It became the subject matter of the Will by
a Hindu in favour of his wife on 07.10.1968. His widow gifted the property
to a Gurudwara. This became subject matter of the litigation and the
question arose whether the matter fell under Section 14 (1) or 14(2).
This Court speaking though P.K. Balasubramaniam, J. noted the
provisions of the Hindu Adoption and Maintenance Act and held that, in
the absence of the any instrument or Decree providing for it, no charge
for maintenance is created in the separate property of the husband. The
Court proceeded to notice the facts in V. Tulsamma (supra) and found
that it was a case where the female Hindu possessed the property on
the date of the Act (Hindu Succession Act, 1956) in which she had a
pre-existing right which got transformed into an absolute right.
Thereafter,
the Court proceeded to hold as follows:
“7. Now, it is clear from the section and implicit from the
decisions of this Court, that for Section 14(1) of the Act to get
attracted, the property must be possessed by a female Hindu on
the coming into force of the Hindu Succession Act. In Mayne on
Hindu Law, 15th Edn., p. 1171, it is stated:
“On a reading of sub-section (1) with Explanation, it is clear
that wherever the property was possessed by a female Hindu as
a limited estate, it would become on and from the date of
commencement of the Act her absolute property. However, if
she acquires property after the Act with a restricted estate, sub-
section (2) applies. Such acquisition may be under the terms of a
gift, will or other instrument or a decree or order or award.”
58 AIR 2006 SC 3282
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8. In Gummalapura Taggina Matada Kotturuswami v. Setra
Veeravva [1959 Supp (1) SCR 968 : AIR 1959 SC 577] this Court
quoted with approval (at SCR pp. 977-78) the following words of
Justice P.N. Mookherjee, in Gostha Behari Bera v. Haridas
Samanta [AIR 1957 Cal 557 : 6 CWN 325] (AIR at p. 559, para
12):
“The opening words ‘any property possessed by a female
Hindu’ obviously mean that, to come within the purview of the
section, the property must be in possession of the female concerned
at the date of commencement of the Act. They clearly contemplate
the female’s possession when the Act came into force. That
possession might have been either actual or constructive or in any
form, recognised by law, but, unless the female Hindu, whose
limited estate in the disputed property is claimed to have been
transformed into absolute estate under this particular section, was
at least in such possession, taking the word ‘possession’ in its
widest connotation, when the Act came into force, the section
would not apply.” and added: (SCR p. 978)
“In our opinion, the view expressed above is the correct
view as to how the words ‘any property possessed by a female
Hindu’ should be interpreted.”
9. In Eramma v. Verrupanna [(1966) 2 SCR 626 : AIR
1966 SC 1879] this Court emphasised that the property possessed
by a female Hindu as contemplated in the section is clearly the
property to which she has acquired some kind of title whether
before or
after the commencement of the Act and negatived a
claim under Section 14(1) of the Act in view of the fact that the
female Hindu possessed the property on the date of the Act by
way of a trespass after she had validly gifted away the property.
The need for possession with a semblance of right as on the date
of the coming into force of the Hindu Succession Act was thus
emphasised.”
162. Still further, the Court proceeds to hold that V. Tulsamma
(supra) is applicable when a female Hindu possesses the property on
the date of the Act under semblance of a right whether it is limited or
pre-existing act. It further held that it cannot be applied ignoring the
requirement of the female Hindu having to be in possession of property
directly or constructively as on the date of the Act though she may
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acquire a right to it even after the Act. It relied on judgment of this Court
in Bhura and others v. Kashi Ram59, which was a case where the father
had bequeathed the property under the Will and it is held that it is 14 (2)
which will apply.  Lastly, the Court also relied on Sharad Subramanyan
v. Soumi Mazumdar and others60. It is  finally also  necessary to notice
paragraphs-11, 12, 13 and 14 of the judgment in Sadhu Singh v. Gurdwara
Sahib Narike and others61:
“11. … What emerges according to us is that any acquisition
of possession of property (not right) by a female Hindu after the
coming into force of the Act, cannot normally attract Section 14(1)
of the Act. It would depend on the nature of the right acquired by
her. If she takes it as an heir under the Act, she takes it absolutely.
If while getting possession of the property after the Act, under a
devise, gift or other transaction, any restriction is placed on her
right, the restriction will have play in view of Section 14(2) of the
Act.
12. When a male Hindu dies possessed of property after
the coming into force of the Hindu Succession Act, his heirs as
per the Schedule, take it in terms of Section 8 of the Act. The heir
or heirs take it absolutely. There is no question of any limited
estate descending to the heir or heirs. Therefore, when a male
Hindu dies after 17-6-1956 leaving his widow as his sole heir, she
gets the property as Class I heir and there is no limit to her estate
or limitation on
her title. In such circumstances, Section 14(1) of
the Act would not apply on succession after the Act, or it has no
scope for operation. Or, in other words, even without calling in aid
Section 14(1) of the Act, she gets an absolute estate.
13. An owner of property has normally the right to deal
with that property including the right to devise or bequeath the
property. He could thus dispose it of by a testament. Section 30 of
the Act, not only does not curtail or affect this right, it actually
reaffirms that right. Thus, a Hindu male could testamentarily
dispose of his property. When he does that, a succession under
the Act stands excluded and the property passes to the
testamentary heirs. Hence, when a male Hindu executes a will
59(1994) 2 SCC 111
60(2006) 8 SCC 91
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bequeathing the properties, the legatees take it subject to the terms
of the will unless of course, any stipulation therein is found invalid.
Therefore, there is nothing in the Act which affects the right of a
male Hindu to dispose of his property by providing only a life
estate or limited estate for his widow. The Act does not stand in
the way of his separate properties being dealt with by him as he
deems fit. His will hence could not be challenged as being hit by
the Act.
14. When he thus validly disposes of his property by providing
for a limited estate to his heir, the wife, the wife or widow has to
take it as the estate falls. This restriction on her right so provided,
is really respected by the Act. It provides in Section 14(2) of the
Act, that in such a case, the widow is bound by the limitation on
her right and she cannot claim any higher right by invoking Section
14(1) of the Act. In other words, conferment of a limited estate
which is otherwise valid in law is reinforced by this Act by the
introduction of Section 14(2) of the Act and excluding the operation
of Section 14(1) of the Act, even if that provision is held to be
attracted in the case of a succession under the Act. Invocation of
Section 14(1) of the Act in the case of a testamentary disposition
taking effect after the Act, would make Sections 30 and 14(2)
redundant or otiose. It will also make redundant, the expression
“property possessed by a
female Hindu” occurring in Section 14(1)
of the Act. An interpretation that leads to such a result cannot
certainly be accepted. Surely, there is nothing in the Act compelling
such an interpretation. Sections 14 and 30 both have play. Section
14(1) applies in a case where the female had received the property
prior to the Act being entitled to it as a matter of right, even if the
right be to a limited estate under the Mitakshara law or the right
to maintenance.”
163. This Judgment came to be followed in Jagan Singh (Dead)
Through Lrs. v. Dhanwanti and another62 by a Bench of two learned
Judges.  It was a case where the testator executed a registered Will in
respect of Plot X with the restriction that the Legatee would not have
the right to transfer the property. The matter arose out of a suit for
injunction restraining alienation of Property X. This Court purported to
follow the judgment rendered by a Bench of three learned Judges in
62 (2012) 2 SCC 628
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Navneet Lal alias Rangi v. Gokul and others63. We have perused the
Judgment in Navneet Lal alias Rangi (supra). We notice that the question
which arose for consideration was whether the Will bestowed an absolute
estate or limited estate on a widow. The Court, on a construction of the
Will, found that it only created a limited interest on the widow. It is
noteworthy that the Court was not dealing with the question whether the
limited estate would blossom into Section 14(1). In Sharad Subramanyan
v. Soumi Mazumdar and others64, the Court found that there was no
material to indicate that the property was given to a Hindu female in lieu
of her right to maintenance.  It is a case where it is found that the wife
was living with her husband, and till the Will was probated, she was
enjoying the property as her own. Jupudy Pardha Sarathy v. Pentapati
Rama Krishna65 is a Judgment rendered by two learned judges. It was a
case where a Hindu executed a Will in favour of his wife which she was
to enjoy but after her death one of her sons was to have the property
with absolute right.  The question arose again whether the case attracted
Section 14(1) or 14(2). The Court noticed Mst. Karmi (supra),V.
Tulasamma (supra), Sadhu Singh (supra) and Sharad Subramnayan
(supra)apart from Shivdev Kaur (Dead) by Lrs. (supra). Thereafter, the
Court referred to R.B.S.S. Munnalal and others v. S.S. Rajkumar and
others66 among other decisions and distinguished Sadhu Singh noting
that
therein the court proceeded on the basis that women had no pre-
existing right in the property and therefore the life estate could not be
enlarged to absolute under Section 14(1). We further notice that it was
found that it was not disputed that the widow was enjoying the property
by way of maintenance. The Court, therefore, distinguished Judgment
of G. Rama Rao.
164. In Gumpha (Smt.) and others v. Jai Bai67, a Bench of two
learned Judges was dealing with a case where a Will was executed in
the year 1941 by a Hindu giving one-half share to each of his wives for
their life and the only daughter was to be the ultimate beneficiary. There
was a further Will executed by one of the wives in favour of a complete
stranger to the family, viz., her domestic servant. The alienation was
challenged and the question arose whether the right fell under Section
63 (1976) 1 SCC 630
64(2006) 8 SCC 91
65 (2016) 2 SCC 56
66 AIR 1962 SC 1493
67(1994) 2 SCC 511
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14(1) or 14(2) of the Hindu Succession Act. The Court undertook an
elaborate discussion and came to the conclusion that it was a case which
fell under Section 14(2) of Hindu Succession Act. The Court, in fact,
took the view that the Legislature did not intend to confer a higher right
on a Hindu woman as against a man. This Judgment came to be
considered in a later Judgment by a Bench consisting of three learned
Judges, i.e., in C. Masilamani Mudaliar and others v. Idol of Sri
Swaminathaswami Swaminathaswami Thirukoil and others68. This case
also involved a Will in favour of the widow of one Somasundaram Pillai.
The statements in the Will indicated Testator entertained in his mind his
duty to provide maintenance to his wife. The Court undertook a review
of the earlier case law. It proceeded to find that the view taken in Gumpha
(Smt.) (supra) was a restrictive interpretation which did not appear to
be sound in law.
165. In Gulwant Kaur and another v. Mohinder Singh and others69,
a Bench of two learned Judges referred to the elaborate correspondence
between the husband and his wife and found that the case attracted
Section 14(1) of the Hindu Succession Act. It was found from perusal
of the letter from the husband to his wife that the land was given in lieu
of her maintenance. The Court, in fact, expressed its inability to understand
the distinction between the day-to-day expenses and maintenance. The
Court distinguished
Eramma v. Veerupana70. Further, the Court dealt
with the argument that the decision of this Court in Bai Vajia (Dead) by
Lrs. v. Thakorbhai Chelabhai and others71 must be understood as laying
down that what was enlarged under Section 14(1) of the Hindu
Succession Act was a womans estate under Hindu law. We notice
pararagraph-8A of Gulwant Kaur (supra), which reads as follows:
“8A. Shri Tarkunde particularly relied on the following
passage in Bai Vajia v. Thakorbhai case [(1979) 3 SCC 300:
AIR 1979 SC 993 :
“A plain reading of sub-section (1) makes it clear that the
concerned Hindu female must have limited ownership in property,
which limited ownership would get enlarged by the operation of
that sub-section. If it was intended to enlarge any sort of a right
68AIR 1996 SC 1697/(1996) 8 SCC 525
69AIR 1987 SC 2251
70AIR 1966 SC 1879
71AIR 1979 SC 993
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which could in no sense be described as ownership, the expression
‘and not as a limited owner’ would not have been used at all and
becomes redundant, which is against the well recognised principle
of interpretation of statutes that the legislature does not employ
meaningless language.”
We do not understand the court as laying down that what
was enlarged by sub-section (1) of Section 14 into a full estate
was the Hindu woman’s estate known to Hindu law. When the
court uses the word “limited estate”, the words are used to connote
a right in the property to which the possession of the female Hindu
may be legitimately traced, but which is not a full right of
ownership. If a female Hindu is put in possession of property
pursuant to or in recognition of a right to maintenance, it cannot
be denied that she has acquired a limited right or interest in the
property and once that position is accepted, it follows that the
right gets enlarged to full ownership under Section 14(1) of the
Act. That seems to us to follow clearly from the language of
Section 14(1) of the Act.”
(Emphasis supplied)
166. Appellants cannot derive support from the judgment reported
in Gaddam Ramakrishnareddy and Others v. Gaddam Ramireddy
and Another72. Therein, a gift deed was executed on 21.12.1952 creating
a life estate and which no doubt was prior to the Hindu Succession Act.
It was held that the right did not blossom into an absolute estate under
Section 14(1). It is necessary to notice
that the decision turned essentially
on the consideration of the terms of gift deed and what is more important
is the following finding:
“28. The aforesaid provision has been considered by both the courts
below which have concurrently held that the life estate created
by Pullareddy in favour of Sheshamma was not in lieu of her
maintenance as she was already managing the properties in
question and in no uncertain terms it was the donee’s desire that
the said properties should ultimately go to his son Ramireddy,
Respondent 1 herein. Once that is established, apart from other
surrounding circumstances, the immediate fallout is that
Sheshamma’s rights in the properties came to be governed by
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sub-section (2) of Section 14 of the Hindu Succession Act, 1956,
and her right does not blossom into an absolute estate as
contemplated under sub-section (1).”
167. We have already adverted to the terms of the Will. 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 for us 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, in our view, 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 (supra). 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, we would have to consider whether what would be
the quantum of maintenance which the Testator would consider
appropriate. The extent of the other property is not shown. We would
think that 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 of the properties he was
bequeathing to her also, and for that purpose, created, no doubt what
can be described as, a limited estate.
168. In this regard, we may also notice that the following
observations in C.Masilamani Mudaliar v. Idol of Sri
Swaminathaswami73:
73AIR 1996 SC 1697
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“30. Shri Rangam then contended that when the testator has
thought of providing only maintenance to the two widows, the
properties being more than 10 acres, the maintenance must be
only proportionate to the needs of the widow and to that extent
the widow acquires an absolute right but not the entire property.
We find no force in that contention. It is to be seen that under the
pre-existing law, she is entitled to remain in possession of the
whole estate known as widow’s estate and after the Act has come
into force that widow’s estate was blossomed into an absolute
estate by operation of Section 14(1). Even in the Will Ex. A-1, no
such restrictive covenant was engrafted giving reasonable
proportion of income consistent with her needs for maintenance.
On the other hand, the express covenant is that, he recognised
her right to maintenance and in lieu of the maintenance property
was given to her for her maintenance during her lifetime. That is
the pre-existing right as per then existing law. After the Act has
come into force, the limited estate has blossomed into an absolute
estate. Therefore, the doctrine of proportionality of maintenance
is not applicable and cannot be extended.”
169. In such circumstances, we would think that the view taken
by the High Court that Section 14(1) of the Hindu Succession Act applies,
cannot be characterised as erroneous.
‘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.
170. In O.S. No. 89 of 1983, there is reference to the death of
Krishnammal on 30.04.1977 and that thereupon the plaintiff and
defendants 1 to 3 have become entitled to possession. We further notice
paragraph 5 wherein it is stated that the plaintiff and Defendants 1 to 3
(branch of Lakshmiah Naidu) were in possession of the properties and
enjoyment thereof jointly. However, we further notice that in paragraph
21, it is alleged that the defendants 4 to 11 (branch of Lakshmiah Naidu)
are in possession without any title whatsoever, and that their possession
is wrongful.
171. If we revert backwards in point of time, we notice the
following pleadings in O.S. No. 71 of 1958, the suit filed by
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]