V. KALYANASWAMY (D) BY LRS. & ANR. versus L. BAKTHAVATSALAM (D) BY LRS. & ORS. on 17 July 2020

[2020] 9 S.C.R. 619

V. KALYANASWAMY (D) BY LRS. & ANR.

v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS.

(Civil Appeal Nos.1021-1026 of 2013)

JULY 17, 2020

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Hindu Succession Act, 1956 – Death before enactment of –Effect of – One ‘RVN’ had two sons (‘LN’ and ‘RN’) and fivedaughters – ‘LN’ had four sons – ‘RN’ was married to ‘RK’, theydid not have any issue – ‘RN’ passed away on 01.06.1955 –Litigation ensued between the parties (in five stages) inter aliathrough various suits – Present appeals arise out of two civil suits(fifth stage/the present litigation), one filed by ‘LN’s’ branch(respondents) and the other by one of the four legatees (appellants-nephews of ‘LN’ and ‘RN’) under a Will (dtd.10.05.55) allegedlyexecuted by ‘RN’ – Appellants claimed severance of the Joint HinduFamily alleging oral partition between ‘RN’ and ‘LN’ in 1932 –Aforesaid Will was alleged to have been executed by ‘RN’ appointing‘RK’s’ nephew as executor – Divided status was declared by way ofnotice allegedly dated.10.05.1955 in a newspaper, on which replydated.11.05.1955 was sent by ‘LN’ – Respondents denied appellants’case – Trial court decreed respondents’ suit – First Appellate Courtallowed the appeals filed by the appellants – High Court inter aliafound that the Will could not be relied upon, as the requirementu/s.68, 1872 Act was not fulfilled and restored the decree of trialcourt – Held: s.69, 1872 Act manifests a departure from therequirement embodied in s.68 – In the present case, requirement ofproof of Will u/s.69 are fulfilled – Respondents failed to prove thatthe Will is vitiated – Will was indeed executed by ‘RN’ and was hislast will – However, the notice is dated.12.05.1955 in which casethe reply being sent on 11.05.1955, becomes impossible – If there isno reply sent on 11.05.1955, then, it will not be possible to attributecommunication of the notice to separate to ‘LN’ – Thus, thoughthere was a publication made, knowledge of the same cannot beattributed to ‘LN’, before the death of his brother – Therefore, sincethere was no division brought about by ‘RN’ before his death, theWill would be invalid and end of the road for appellants – Further,

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A‘RN’ died on 01.06.1955, i.e. before the enactment of 1956 Act –Thus, when he died, he left behind an interest in the Hindu jointfamily – When succession opened to his estate, s.3(2), 1937 Actwould apply – A limited estate sprung in favour of his widow, ‘RK’which bloomed u/s.14 (1), 1925 Act into an absolute estate – Whenshe compromised in O.S No.71 of 1958 giving up her rights overBthe property including the plaint scheduled property in these cases,it conferred absolute rights in favour of ‘LN’s’ branch – Code ofCivil Procedure, 1908 – Or.II, r.2 – – Transfer of Property Act, 1882– s.19 – Evidence Act, 1872 – ss.3, 33, 40-43, 68, 69, 71 – HinduWomen’s Right to Property Act, 1937 – ss.2, 3, 5 – Code of CriminalCProcedure, 1898 – s.145 – Estoppel/Waiver/Acquiescence – IndianSuccession Act, 1925 – ss.57, 59, 63, 119, 211 – Hindu Succession(Amendment) Act, 2005 – s.6 – Doctrine of Relating Back – Doctrineof Survivorship – Hindu Wills Act, 1870 – Indian Succession Act,1865 – Probate and Administration Act, 1881.

DCode of Civil Procedure, 1908 – Or.II, r.2 – Scope of –Discussed.

Code of Civil Procedure, 1908 – Or.II, rr.2, 3 – Held: Be itthe omission or intentional relinquishment of a claim arising out ofa cause of action under Or. II, r.2(2) or not seeking a relief underEOr. II, r.2(3), the fatal consequences they pose, will arise only if thecause of action is the same.

Transfer of Property Act, 1882 – s.19 – Commonality betweens.19 and s.119, 1925 Act – Discussed – Indian Succession Act, 1925– s.119.F

Evidence Act, 1872 – s.33 – Applicability of – Held:Applicability of s.33 does not depend upon the nature of the decisionwhich is rendered in the earlier proceeding.

Evidence Act, 1872 – s.33 – Held: Requirements u/s.33 arenot to be confused with the ingredients to be fulfilled even in a caseGu/s.11, CPC – Code of Civil Procedure, 1908 – s.11.

Evidence Act, 1872 – First proviso to s.33 – ‘representativein interest’ – Interpretation of – Held: ‘representative in interest’, isto be understood liberally and not confined to cases where there isprivity of estate and succession of title.

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V. KALYANASWAMY (D) BY LRS. & ANR. v.L. BAKTHAVATSALAM (D) BY LRS. & ORS.

Evidence Act, 1872 – s.68 vis-à-vis s.69 – Held: s.69 manifestsa departure from the requirement embodied in s.68 – In a casecovered u/s.69, the requirement pertinent to s.68 that the attestationby both the witnesses is to be proved by examining at least oneattesting witness, is dispensed with.

Evidence Act, 1872 – s.69 – Evidence conforming to therequirements under – Duty of Court – Held: In a case, where thereis evidence appearing to conform to the requirement u/s.69, theCourt is not relieved of its burden to apply its mind to the evidenceand find whether the requirements of s.69 are proved – Reliabilityof the evidence or the credibility of the witnesses is a matter for theCourt to still ponder over.

Hindu Law – Will – Capacity to make – Held: Requirement ofsound disposing capacity is not to be confused with physical well-being – A person who is having a physical ailment may not thereforebe robbed of his sound disposing capacity – The fact that a personis afflicted with a physical illness or that he is in excruciating painwill not deprive him of his capacity to make a will.

Hindu Law – Will – Burden to prove – Held: Burden to provethe Will and to satisfy the conscience of the court that there are nosuspicious circumstances or if there are any to explain them is onthe propounder of the Will – Burden to prove that the Will is procuredby coercion, undue influence or fraud is on the one alleging thesame.

Hindu Law – Joint Hindu Family – Partition – Meaning ofand its implications – Discussed – Hindu Succession Act, 1956 –ss.6 and 30.

Hindu Law – Property of the joint family – Right of thecoparcener – Held:In the case of property of the joint family aslong as the property is joint, the right of the coparcener can bedescribed as an interest – As long as the family remains joint, acoparcener or even a person who is entitled to share when there isa partition cannot predicate or describe his right in terms of hisshare – The share remains shrouded and emerges only with divisionin title or status in the joint family – Once there is a division theshare of a coparcener is laid bare.

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AHindu Law – Right of a Hindu to make a Will, before andafter 1956 Act – Discussed – Hindu Succession Act, 1956 – s.30.

Hindu Women’s Right to Property Act, 1937 – s.3 – Applicationof – Held: s.3 of the 1937 Act applies when a Hindu dies intestate.

Hindu Women’s Right to Property Act, 1937 – ContrastBbetween ss.3(1) & (2)– Discussed.

Hindu Succession Act, 1956 – Explanation to s.30 – Held:Under Explanation to s.30, it is open to a Hindu to even bequeathhis interest in the Hindu Joint Family property.

CHindu Women’s Right to Property Act, 1937 – Effect of demandfor partition by a widow, on coparcener’s claim based on doctrineof survivorship – Held: With the passing of the 1937 Act, in areasto which it applied, an intrusion was indeed made upon acoparceners right to set-up a claim to the property of a deceasedcoparcener based on the Doctrine of Survivorship but the Act didDnot annihilate the said right – Right to claim by Survivorship cameto be suspended but not extinguished – Widow, though not acoparcener, was like a coparcener in most respects – She was alsoconferred with the right to claim partition – Doctrine of Survivorship.

Practice & Procedure – Principle of no evidence, if noEpleading – When not applicable – Discussed.Evidence Act, 1872 – ss.40-42 – When not applicable –Discussed.

Hindu Law – Joint Hindu Family – Separation from – Noticeto other coparceners – When complete – Held: Notice in a newspaperFserves as a notice by a coparcener to effect division – However,merely causing a notice to be published, without there being evidenceto show that the intended recipient became aware of it, may notsuffice – There cannot be a presumption that a person has read aparticular newspaper, and even more importantly, that he has readGthe notice.

Hindu Succession Act, 1956 –s.14(1), (2) – Applicability of –Discussed.

Words & Expressions– ‘Interest’, of a coparcener in a jointHindu family property – Meaning of – Discussed.H

V. KALYANASWAMY (D) BY LRS. & ANR. v.L. BAKTHAVATSALAM (D) BY LRS. & ORS.

Dismissing the appeals, the Court

HELD: 1. THE PROPERTY AT STAKE

The property in dispute, in both the Suits (O.S. No. 89 of1983 and O.S. No. 649 of 1985- fifth stage/the present litigation,which generated the present appeals), is the same. In the Willdated 10.05.1955, there were sixteen items. In O.S. No. 71 of1958 (second stage of litigation), R. Krishnammal was conferredwith absolute rights in respect of seven items. The propertyinvolved in O.S. No. 36 of 1963 (third stage of litigation) alsorelated to the seven items, which figured in compromise Decreein O.S. No. 71 of 1958, wherein R. Krishnammal was conferredabsolute rights. O.S. No. 632 of 1981 (fourth stage of litigation)relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. The itemswhich are scheduled in the present Suits are the items coveredby the Will dated 10.05.1955 other than the seven items, out ofwhich, four were alienated and one was acquired. As far as O.S.No. 71 of 1958, filed by R. Krishnammal, is concerned, since shehad an alternate relief claiming partition, it encompassed the entireproperty belonging to the coparcenary consisting of 93 items.[Para 44][693-B-D]

2.1 THE EFFECT OF ORDER II RULE 2 OF THE CPC

2.1 THE EFFECT OF ORDER II RULE 2 OF THE CPC

The contention raised by the respondents is, inter alia, thatO.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code ofCivil Procedure, 1908. This is for the reason that when two outof the four appellants have instituted O.S. No. 36 of 1963, theyscheduled only seven items in the said Suit. It was open to theappellants to claim the relief which they have claimed in thepresent Suit. Having not sued in respect of the items of propertiesother than the items scheduled in O.S. No. 71 of 1958, they arebarred under Order II Rule 2 of the CPC. Order II Rule 2 (2) ofthe CPC postulates a situation where a plaintiff omits to sue inrespect of any portion of his claim or intentionally relinquishesany portion of his claim. Then, he is debarred from suing in respectof the portion so omitted or relinquished. A plaintiff entitled tomore than one relief arising from the same cause of action, cando two things. He may sue in respect of all the reliefs arisingfrom the same cause of action in the same suit. He may, if heomits to sue for one or more of the reliefs open to him under the A

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Asame cause of action, seek leave of the court to sue for all suchreliefs, and if the court grants such leave, then, he may institutea suit, though based on the same cause of action in the earliersuit, in a fresh suit. The effect of not seeking the leave of thecourt, however, in regard to any of the reliefs, which it was opento him to sue for on the same cause of action, is that, he is barredBfrom suing for any other reliefs so omitted. The differencebetween Order II Rule 2(2) and Order II Rule 2(3) of the CPCmay be noticed. The law contemplates a distinction between acase where a claim arising out of the cause of action is eitherintentionally relinquished or omitted to be sued upon. Such aCclaim cannot be the subject matter of a fresh suit. However, whenmore than one reliefs are available stemming from the same causeof action, then, seeking further reliefs than sought in the firstsuit, except where leave is obtained, would be barred. However,present the grant of leave by the court, his subsequent suitseeking the reliefs which were originally not sought but for whichDleave is granted, is permissible. The principle of this provision isactually captured in Order II Rule 2 (1) of the CPC which is thatevery suit is to include the whole of the claim which arises out ofthe cause of action and which the plaintiff is entitled to make. Itfurther declares that it is open to a plaintiff to omit any portion ofEthe claim. However, the consequences of the same are declaredin Order II Rule 2 (2) of the CPC. In this case, it is true thatwhen O.S. No. 36 of 1963 was instituted, the earlier Suit broughtby R. Krishnammal, viz., O.S. No. 71 of 1958, had culminated in acompromise Decree. A perusal of the plaint itself would showthat the plaintiffs in O.S. No. 36 of 1963 have adverted to theFcompromise in O.S. No. 71 of 1958. They have averred inparagraph 7 of the plaint that under the compromise, R.Krishnammal was given the property scheduled in the said Suit(Suit No. O.S. No. 36 of 1963) in lieu of the properties comprisedin the Will and some cash. The rest of the properties comprisedGin the Will were given-up by her in favour of the respondents(the sons of Lakshmiah Naidu) it is averred. Thereafter, it isaverred that the defendants claim, i.e., R. Krishnammal claimedabsolute title to the properties scheduled in the plaint and whichwas unsustainable both in law and facts. O.S. No. 36 of 1963 wasfiled seeking a declaration that R. Krishnammal had only a lifeH

L. BAKTHAVATSALAM (D) BY LRS. & ORS.

L. BAKTHAVATSALAM (D) BY LRS. & ORS.

estate without any powers of alienation and the appellants have avested remainder in the saidproperties under the Will. The word‘said’ obviously refers to the items scheduled in OS No.36 of1963. The Suit (O.S. No. 89 of 1983) is fundamentally premisedon the death of R. Krishnammal in 1977 and the blossoming ofthe full rights of the appellants under the Will. R. Krishnammalhaving a life estate under the Will was alive when O.S. No. 36 of1963 was filed. The absolute right under the Will, in favour of theappellants, dawned only with the death of the life estate holder.[Paras 46-50][693-E-G; 694-C-H; 695-A, H; 696-A-C, H; 697-A-B]

Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions(P) Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 – reliedon.

2.2 Section 119 of the Indian Succession Act, 1925 dealswith the date of vesting of legacy when, inter alia, possession ispostponed. Section 19 of the Transfer of Property Act, 1882 dealswith vested interest. Vested interest is different from thecontingent interest. The two have vastly different consequences.The death of R. Krishnammal being a certain event, the interestof the remaindermen is a vested interest. The commonalitybetween Section 19 of the TP Act and Section 119 of the IndianSuccession Act, and which is apposite to the facts of this case, isas follows:

When under the Will, a life estate was created in favour ofR. Krishnammal with an absolute remainder in favour ofthe appellants, the legacy in favour of the appellants becamevested from the time of death of the testator. Thepossession and the enjoyment of the property, however,under the Will, was the domain of the life estate holder,viz., R. Krishnammal as long as she was alive. She, however,had no right to enlarge the boundaries of her right underthe Will. This is, no doubt, subject to the impact ofsupervening Legislation. By her unilateral act or by evenjoining together with the third party, it would not be opento life estate holder to defeat the rights of the remaindermen. The significance of a case being covered under Section119 Illustration (III), of the Indian Succession Act, is thatwith the death of the Testator, the right in the property AB

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Abecomes vested with the remainder men, from the time ofdeath of the Testator. In other words, upon the death of thelegatee under the Will, in whom the absolute right is vestedafter the transient possession and enjoyment of the lifeestate holder, a heritable right, which, in fact, arose at thetime of the death of the testator, would confer legal rightsBupon the heirs of the absolute owner under the Will whensuccession to his estate opens, should he not wish to leavea Will behind. Though the right is vested in the property,the enjoyment of the property with the absoluteness of afull owner under the Will could be done by the appellantsConly after the death of R. Krishnammal. Having thrown lightupon the words ‘absolute rights’ in the context of Section119 of the Indian Succession Act, 1925, it is this right whichwas sought to be made subject matter of a Decree fordeclaration and partition. It is clear that in the year 1963 ortill the death of R. Krishnammal, the rights as sought to beDenforced, did not inhere with the appellants as explained.They could not have sought a partition of the plaintscheduled properties while R. Krishnammal was alive.[Paras 50-52][697-C; 698-A; E-H; 699-A-C]

2.3 Be it the omission or intentional relinquishment of aEclaim arising out of a cause of action under Order II Rule 2(2) ornot seeking a relief under Order II Rule 2 (3), the fatalconsequences they pose, will arise only if the cause of action isthe same. Though the plaintiffs in O.S. No. 36 of 1963 could havesought a declaration about the compromise Decree in O.S. No.F71 of 1958, qua all the properties covered under the Will, in thefacts of this case, the cause of Action in O.S. No. 36 of 1963 andthe present Suit (O.S. No. 1989 of 1983) are clearly distinct. It issignificant to note that the cause of action in OS No.36 of 1963was the threat of alienation of the items scheduled therein. O.S.No. 36 of 1963 was more as a protective action by persons whoGhad vested interest in the property under Section 119 of the IndianSuccession Act, 1925. Cause of action is not to be confused withthe relief which is sought. It has more to do with the basis for therelief which is sought. [Para 54][699-F-H; 700-A-B]

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3.1 THE IMPACT OF THE PROCCEDINGS AND THEDECREE PASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36OF 1963 AND O.S NO. 732 OF 1981

ESTOPPEL, WAIVER, ACQUIESCENCE

O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal.Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The FifthDefendant was the Executor of the Will. R. Krishnammal lay storeby the Will executed by her late husband V. Rangaswami Naidu.In the alternate, she also claimed a Decree for Partition, virtuallygiving-up her right under the Will and on the basis that V.Rangaswami Naidu died intestate. The matter did not go to trial.It ended in a compromise. The substance of the compromise is,a few of the items mentioned in the Will, seven items wererecognised as absolute properties of R. Krishnammal eventhough, under the Will, she had only a limited right over thoseitems. R. Krishnammal, for her part, under the compromiseDecree gave-up her rights in respect of the rest of the properties.The appellants were not parties to the compromise. Appellantswere not tracing their rights under R. Krishnammal. Appellantswere given an absolute right under the Will executed by theiruncle V. Rangaswami Naidu. The bequest in their favour createda vested interest within the meaning of Section 119 of the IndianSuccession Act, 1925. R. Krishnammal could not have alsoenlarged the rights of the branch of Lakshmiah Naidu, once sheaccepted the Will, for she had only a life estate over the propertiescovered under the Will. The appellants were also not bound byher acts in entering into a compromise seeking to confer absoluterights qua those properties, which were subject matter of theWill, in respect of which, they had the right to be enjoyed afterthe death of R. Krishnammal. O.S. No. 36 of 1963 came to befiled by two of the four appellants, who are Legatees under theWill. They sought a declaration to the effect that R. Krishnammalcould not enlarge her right and she could not alienate theproperties (the very seven items, which, under the compromiseDecree of O.S. NO. 71 of 1958, were recognised as her absoluteproperties). It is true that the plaintiffs in O.S. No. 36 of 1963 didnot choose to include the plaint schedule properties in the presentSuit and seek a declaration qua them. There are two aspects to A

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Ait, which this Court must bear in mind. Firstly, the cause of actionfor filing O.S. No. 36 of 1963 was alleged to be the apprehensionthat R. Krishnammal was about to alienate the seven items overwhich she acquired absolute rights under O.S. No. 71 of 1958 (infact, it was alleged that one item was alienated). Secondly,paragraph-11 of the Plaint has already been noticed. Therein, theBplaintiffs have revealed their mind to be that they intend to pursuetheir right qua other properties apparently which are the plaintschedule properties in O.S. No. 89 of 1983. As already indicated,the bar of Order II Rule 2 of the CPC will not apply. There issome merit in the contention of the appellants that the DecreeCpassed in O.S. No. 36 of 1963 did involve watering down theterms of the compromise Decree in O.S. No. 71 of 1958. As onthe date of the compromise in O.S. No. 36 of 1963, the positionwas that four, out of the seven items, had been alienated by R.Krishnammal, whereas, one property had been acquired by theGovernment. As regards Item Nos. 5 and 6 in the plaint scheduleDin 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 departurefrom the terms of the Decree in O.S. No. 71 of 1958, under whichR. Krishnammal was conferred with the absolute rights in respectof Item Nos. 5 and 6, in regard to the very same items, under theEcompromise Decree in O.S. No. 36 of 1963, R. Krishnammal wasonly to enjoy the properties during her lifetime and without thepower of alienation. In other words, the terms of the Will dated10.05.1955 are seen reflected and reinforced by the compromiseDecree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of 1958 andO.S. No. 36 of 1963, there is no adjudication by the court. As toFwhat is the expediency which led the parties to enter into thecompromise Decree, may not be decisive of the legal rights ofthe parties which this Court is called upon to pronounce. Theaction of the branch of Lakshmiah Naidu, who had also joined asparties in O.S. No. 36 of 1963, and who were represented by theGCounsel, may not obviate the need for proving the Will on thepart of the appellants. [Paras 55, 56][700-D-G; 701-A-H; 702-A-C]

3.2 In the compromise Decree in O.S. No. 36 of 1963, theplaintiffs have stated that they are not seeking any relief againstHthe other defendants which include the Lakshmiah branch. From

this, it is sought to be contended that the interest of the branchof Lakshmiah Naidu, which stood secured under the compromiseDecree of O.S. No. 71 of 1958, whereunder R. Krishnammal hadgiven up her rights in regard to all properties other than theseven items over which she was conferred absolute rights, wasleft undisturbed and unimpeached. This conduct is emphasisedto point out that it would constitute a bar by way of principles,including estoppel and acquiescence for the appellants ininstituting O.S. No. 89 of 1983 in regard to the plaint scheduleproperties over which R. Krishnammal had give-up all her rightsin O.S. No. 71 of 1958. Even in the Plaint, in O.S. No. 36 of 1963,the properties, other than the seven items, were admittedly notthe subject matter of the Suit. More importantly, what is statedin the compromise is that no relief is claimed against the otherDefendants in the said Suit. It is equally true that by the passingof the Decree in O.S. No. 36 of 1963, the interest of the Lakshmiahbranch was not imperilled. This is for the reason that in regard toItem Nos. 5 and 6 in O.S. No. 36 of 1963, over which the rights ofR. Krishnammal were limited to a life estate with a taboo againstalienation bringing it in tune with the terms of the Will under theCompromise did not matter for the branch of Lakshmiah Naidu.This is for the reason that as far as they were concerned, theywere already bound by the compromise Decree in O.S. No. 71 of1958 whereunder R. Krishnammal had been conferred absoluterights in regard to Item nos. 5 and 6, interalia, and they had lostall their rights. Therefore, the arrangement inter se between theappellants and R. Krishnammal, qua those properties, was of noconcern to them. What they were interested in was the rest ofthe properties over which they were given absolute rights underthe compromise Decree in O.S. No. 71 of 1958. The result is thaton the one hand the terms of the Will came to be reiterated underthe compromise Decree in O.S. No. 36 of 1963 qua Item Nos. 5and 6. The Decree in O.S. No. 71 of 1958 was otherwise leftuntouched. The passing of a Decree in O.S. No. 36 of 1963, is amatter which is entirely between the appellants and R.Krishnammal. In fact, the Lakshmiah Naidu branch, though madeparties to the compromise, were not actually parties to theDecree. They have not signed as parties to the compromiseDecree. Therefore, neither the appellants nor the respondents AB

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Acan derive any advantage from either the filing of O.S. No. 36 of1963 or the passing of the compromise Decree therein. Theplaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732 of1981. The Lakshmiah branch (among the respondents in theappeals) were not parties. It was a Suit for partition of items 5and 6 scheduled to O.S. No. 36 of 1963. It is obvious that theyBcannot rely upon principles of res judicata or constructive resjudicata based on O.S. No.732 of 1981, being not parties to thesaid 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 waspassed, is completely incongruous with the cause of action in theCpresent Suit. In other words, it is pointed out that in O.S. No. 732of 1981, the case set-up was R. Krishnammal had rights over theproperty and this was inconsistent with the case set-up in thepresent Suit. It was contended that the appellants were estoppedfrom undertaking such a course of action. The following conductcould also be deduced. The cause of action in O.S. No. 732 ofD1981 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 whereunderthe Lakshmiah branch acknowledged rights of R. Krishnammalwho also gave-up her rights to properties which included the plaintschedule items in the case. Though, this Court is not oblivious

Eto the dimensions projected, it would not think that Right toProperty, if otherwise is established in favour of the appellants, itwould be lost. It cannot be treated as a case of abandonment ofrights qua the plaint schedule properties. The respondents whowere not parties to O.S. No. 732 of 1981, cannot set-up a case ofestoppel. [Paras 57][702-D-H; 703-A-H; 704-A]FSha Mulchand & Co. Ltd. (In Liquidation), By OfficialReceiver, High Court, Madras v. Jawahar Mills LimitedSalem AIR 1953 SC 98 : [1953] SCR 351; Dr. KaranSingh v. State of J&K and Another (2004) 5 SCC 698 :[2004] 1 Suppl. SCR 43 – relied on.G4.1 WHETHER THE WILL DATED 10.05.1955 HASBEEN PROVED

[Sections 33, 68 and 69 of the Evidence Act]

The Will in question is an unprivileged Will. The mode ofHmaking an unprivileged Will is provided in Section 63 of the Indian Succession Act. In order that a valid Will be made not only, it isnecessary that the Testator must execute the document but alsothe execution must be attested by at least two witnesses. Whatis required is not ordinary witnessing of a document but attestationwhich is as is provided in Section 63 of the Indian SuccessionAct. Section 68 of the Indian Evidence Act, 1872 deals with proofof execution of a document required by the law to be attested. Aperusal of the same makes it clear that in the case of a Will,being a document which is required to be attested by Section 63of the Indian Succession Act, if there is an attesting witness aliveand subject to the process of the court and capable of givingevidence, then, the Will can be proved only if one of the attestingwitness is called for proving its execution. Though the expressionused in Section 69 of the Indian Evidence Act, 1872 is ‘if no suchattesting witness can be found, inter alia, it bears the followinginterpretation’. The word ‘such’ before ‘attesting witness’ isintended to refer to the attesting witness mentioned in Section68 of the Evidence Act. As far as the expression ‘found’ isconcerned, it would cover a wide variety of circumstances. It wouldcover a case of an incapacity to tender evidence on account ofany physical illness. It would certainly embrace a situation wherethe attesting witnesses are dead. Should the attesting witness beinsane, the word “found” is capable of comprehending such asituation as one where the attesting witness, though physicallyavailable, is incapable of performing the task of proving theattestation under Section 68 the Evidence Act, and therefore, itbecomes a situation where he is not found. In this case, there isno dispute that both the attesting witnessing were not alive atthe relevant time. [Paras 58, 59, 61 and 64][704-B-D, E, G; 705-A-B; 706-C]

4.2 The contention of the respondents appears to be onlythat, in the proceeding under Section 145 of the CrPC, 1898 (firststage of litigation), the tussle was between R. Krishnammal andthe Executor of the Will who were styled as A Party Nos. 1 and 2and the B Party, viz., the respondents. The present appellantswere not parties. Therefore, the proceeding was not betweenthe same. The other limb of the first proviso to Section 33, viz.,that in order that Section 33 of the Evidence Act applies, theproceeding is between their representatives in interest is not AB

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Afulfilled. The contention seen raised is that the appellants, whoare the remainder men under the Will, cannot be treated asrepresentatives in interest of R. Krishnammal. Further the natureof Section 145 proceedings is highlighted as not one attractingthe 3[rd] proviso. The word ‘representative in interest’, in otherwords, is to be understood liberally and not confined to casesBwhere there is privity of estate and succession of title. Answeringthe two tests, which have been evolved in the facts of this case,the respondents cannot contend that the interest of the appellantswas inconsistent with the interest of R. Krishnammal and inparticular the executor of the Will. It was certainly not antagonisticCto their interest. The Will was indeed set-up by R. Krishnammaland the executor. Therefore, it can be safely concluded that theinterest of both persons comprised of A Party, which was theprotection of the possession, was also in the interest of theappellants. It may be true that the appellants do not derive theirtitle under R. Krishnammal. But the requirements under SectionD33 of the Evidence Act are not to be confused with the ingredientsto be fulfilled even in a case under Section 11 of the CPC. Itcannot be contended that the interest of the appellants lay inanswering the question posed in Section 145 of the CrPCproceedings against R. Krishnammal and the Executor in favourEof the respondents, who were parties before the Magistrate. Thecase of the Will was explicitly set up as also the declaration dated10.5.1955 and further developments. Therefore, the contentionbased on the third proviso also does not appeal. Also not onlywas there opportunity to cross examine to the B party, it wasavailed of. The applicability of Section 33 of the Evidence ActFalso does not depend upon the nature of the decision which isrendered in the earlier proceeding. On this basis, as Exhibit-B7(deposition of the one of the attesting witnesses in the Will, inproceedings under Section 145 of the CrPC) and even B13(deposition by the Executor) indeed is evidence which wasGtendered in the previous proceeding before the Magistrate whowas certainly authorised by law to take evidence, which is relevantfor proving the truth of the facts contained therein underSection 33. [Paras 66-68][707-D-F; 708-G-H; 709-A-E]

4.3 Section 69 of the Evidence Act manifests a departureHfrom the requirement embodied in Section 68 of the Evidence

Act. In the case of a Will, which is required to be executed in themode provided in Section 63 of the Indian Succession Act, whenthere is an attesting witness available, the Will is to be proved byexamining him. He must not only prove that the attestation wasdone by him but he must also prove the attestation by the otherattesting witness. This is, no doubt, subject to the situation whichis contemplated in Section 71 of the Evidence Act which allowsother evidence to be adduced in proof of the Will among otherdocuments where the attesting witness denies or does notrecollect the execution of the Will or the other document. Inother words, the fate of the transferee or a legatee under adocument, which is required by law to be attested, is not placedat the mercy of the attesting witness and the law enables proof tobe effected of the document despite denial of the execution ofthe document by the attesting witness. The requirement inSection 69 of the Evidence Act would be if the signature of theperson executing the document is proved to be in his handwriting,then attestation of one attesting witness is to be proved to be inhis handwriting. In other words, in a case covered under Section69 of the Evidence Act, the requirement pertinent to Section 68of the Evidence Act that the attestation by both the witnesses isto be proved by examining at least one attesting witness, isdispensed with. It may be that the proof given by the attestingwitness, within the meaning of Section 69 of the Evidence Act,may contain evidence relating to the attestation by the otherattesting witness but that is not the same thing as stating it to bethe legal requirement under the Section to be that attestation byboth the witnesses is to be proved in a case covered by Section69 of the Evidence Act. In short, in a case covered under Section69 of the Evidence Act, what is to be proved as far as the attestingwitness is concerned, is, that the attestation of one of the attestingwitness is in his handwriting. The language of the Section is clearand unambiguous. Section 68 of the Evidence Act, as interpretedby this Court, contemplates attestation of both attestingwitnesses to be proved. But that is not the requirement in Section69 of the Evidence Act. [Paras 70, 71][710-C-H; 711-A]

4.4 Section 69 speaks about proving the Will in the mannerprovided therein. The word ‘proved’ is defined in the Evidence AB

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AAct in Section 3. The question would be whether having regardto the evidence before it, the Court can believe the fact asprojected in the evidence as proved. In a case, where there isevidence which appears to conform to the requirement underSection 69, the Court is not relieved of its burden to apply itsmind to the evidence and find whether the requirements ofBSection 69 are proved. In other words, the reliability of theevidence or the credibility of the witnesses is a matter for theCourt to still ponder over. As far as this case is concerned, theevidence of one of the attesting witnesses is contained in B7 andwhich is found relevant under Section 33, establishes that he wasCan Income Tax Practitioner. He was beckoned by RangaswamiNaidu, informing him that he had written a Will and it was to beattested. He was asked to in fact to attest even upon going thereon that day. He speaks about the testator signing on every pageand also, he has spoken about him signing. He establishesrequirement of Section 69 in regard to the signature of one of theDattesting witnesses being proved in his handwriting. There is noreason to doubt the testimony. As far as signature of the testatoris concerned, apart from B7 and B13, the executor has spokenof the testator signing. Also, PW1 (the witness on behalf of therespondent) has deposed that the Will was shown to him heEadmitted that every page is contained with the paternal unclesignature. Thus, the requirement of proof of Will under Section69 are fulfilled. [Paras 73, 74][712-B-H]5. WHETHER RECEPTION OF B10 (CERTIFIED COPYOF THE WILL) AS SECONDARY EVIDENCE LEGAL?F

The original of the Will according to the case of theappellants continued to be with the executor who was in fact thenephew of R. Krishnammal, the widow of Rangaswami Naidu. Anattempt was made to get the original Will produced at the relevanttime when the executor had passed away, on the basis that hisGson was in possession of the original Will. He was called upon toproduce the Will by C1. He responded by pointing out that hewas not having the original Will with him. The finding of the Trialcourt as affirmed by the First Appellate Court is thatcircumstances warranted admission of secondary evidence toprove the Will. There is no reason to take a different view andH

the view taken by the High Court cannot be sustained. It may betrue 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 andthereafter, the plantiffs in O.S. No. 36 of 1963 who are among theappellants before this Court. However, the matter did not go totrial. The Will must be proved under the Evidence Act and notwith reference to plea of estoppel as taken by the appellants basedon the decree in O.S. No. 36 of 1963, being based on the Will andthe respondents having participated not as parties even to thecompromise but it is a far cry from finding that the facts of thecase did not warrant admission of secondary evidence regardingthe Will. [Paras 76, 77][713-C-G]

6. THE WILL: WHETHER IT IS THE GENUINE WILLOF RANGASWAMI NAIDU? WHETHER IT IS VITIATED ONANY GROUND?

Rangaswami Naidu was an educated man. He was a formerM.L.C. He was an affluent man. He has no issues. He wasaffectionate towards his sisters. He has chosen to favour eachbranch of his sisters by selecting one son out of each branch tobe the legatees in whom the property were to vest. In fact, hehas also provided that the properties are to remain in the familyand should any of the legatees wish to sell, it should be offered tothe other legatees. As far as his health is concerned, it is wellsettled that the requirement of sound disposing capacity is not tobe confused with physical well-being. A person who is having aphysical ailment may not therefore be robbed of his sounddisposing capacity. The fact that a person is afflicted with a physicalillness or that he is in excruciating pain will not deprive him ofhis capacity to make a will. What is important is whether he isconscious of what he is doing and the will reflects what he haschosen to decide. While it may be true that he was suffering fromcancer of the throat there is nothing to indicate in the evidencethat he was incapable of making up of his own mind in the matterin leaving a will behind. The fact that he was being fed by a tubecould hardly have deprived him of his capacity to make a will.The will is a registered will. The Registrar came home. ExhibitX1 would show that Rangaswami Naidu on being asked to put histhumb impression, he insisted on signing. This course of conduct AB

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Ahas been correctly appreciated by the first appellate court, thefinal court on facts. The inference to the contrary sought to bedrawn does not appeal. From the evidence, it is also clear thatthe other attesting witness was Dr. C.S. Ramaswamy Iyer a fairlyrenowned Physician and family friend. PW1, the witness on behalfof the respondent has himself admitted publishing the obituaryBon the passing away of the said doctor. PW1 speaks about him asa gentleman and he won’t act illegal manner. In B7 the otherattesting witness has also spoken about the doctor remainingthere and no doubt leaving before the Registrar came. It hasalready been held that the requirement of Section 69 of theCEvidence Act stands fulfilled otherwise. The fact that no bequestis made in favour of the sons of Lakshmiah Naidu cannot betreated as a suspicious circumstance. It is clear that LakshmiahNaidu was extremely wealthy. Making the nephew of his wifeexecutor of the will, in fact, does assure of the absence of anyfoul play on the part of the legatees. In his evidence [B13 whichDis the evidence given by the Executor in 145 proceedings], hehas spoken about the testator expressing his desire on 2-3occasions about wanting to executing a will. From the evidenceadduced by PW1 also, the view taken by the first appellate courtregarding the will cannot be characterized as a perverse oneEwarranting interference in the second appeal. Lastly, while theburden to prove the will and to satisfy the conscience of the courtthat there are no suspicious circumstances or if there are any toexplain them is on the propounder of the will, the burden to provethat the will is procured by coercion, undue influence or fraud ison the respondents who have alleged the same. The evidence ofFPW1 would show that the respondents have failed to prove thatthe will is vitiated in this regard. Therefore, the will was indeedexecuted by R. Naidu and was his last will. The case of theappellants is based, in fact, on their having been an oral partitionbetween the two brothers in the year 1932. Three Courts haveGfound no merit in this contention. In fact, the appellants also didnot pursue this line of argument before this Court. On the otherhand, the contention which is pressed is that when suchsuccession opened to the estate of Rangaswami Naidu on01.06.1955, Rangaswami Naidu having published B1 notice dated10.05.1955, a disruption of the joint family was effected and,H

therefore, Rangaswami Naidu died separate from his brother. Stillfurthermore, the appellants case is founded upon B10-Willexecuted and also got registered on 10.05.1955 by RangaswamiNaidu.[Paras 82, 83 and 85][716-D-H; 717-A-E; 718-A-C]

7. IS THERE CONFLICT BETWEEN KALYANI (DEAD)BY LRS V. NARAYANAN AND OTHERS [AIR 1980 SC 1173]AND BHAGWANT P. SULAKHE V. DIGAMBAR GOPALSULAKHE AND OTHERS [AIR 1986 SC 79]

The Trial Court, in this case, has laid store by theobservations of this Court to the effect that as long as joint familyproperty is in existence and is not in partitioned, the character ofthe joint family property does not change. It concluded that evenif division is brought about by issuance of B1, the properties ofthe joint family consisting of V. Rangaswami Naidu and his brotherremained joint and it could not be arrogated by V. RangaswamiNaidu as his. The first appellate court distinguished the decisionby stating that it turned on in facts. There is really no conflict assuch. Partition has two shades of meaning in Hindu Law. In theone sense, partition is the first step which would ordinarilyculminate in a metes and bounds partition. In a coparcenary, thereis joint tenancy. A Hindu Coparcenary, which cannot be createdby agreement between parties but is the creation of law, can bedisrupted or a division is caused by a unilateral declaration by acoparcener to put an end to the joint family. What the coparcenerhas to produce before the division, is an interest, as has beenreferred to in both Sections 6 and 30 of the Hindu SuccessionAct. Upon a declaration being made, expressing intent to separatewithout anything more but no doubt on communication of the sameto the other coparcener/coparceners, partition in the above senseviz. causing a division of title takes place. The partition in theaforesaid sense has far-reaching consequences. The joint tenancy,which includes the concept of Right to Inherit by Survivorship, isterminated with the partition being effected in the first sense. Ifthe coparcener dies after causing such a partition, as the right onthe basis of Doctrine of Survivorship is annihilated, his death,after such partition, would result in his heirs becoming entitledto succeed. In that sense, joint tenancy would be replaced bytenancy in common but that is not the same as saying that the A

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Aproperties of the family, where there has been a partition in thefirst sense, will without anything more stand transformed intothe separate and exclusive properties of the divided members.This Court is unable to subscribe to the view taken by the FirstAppellate Court that the principles of law, which are contained inparagraph-14 of the Judgment (in Bhagwant P. Sulakhe case) areBmerely to be understood in the special facts of the said case.Partition, in a broader sense and as is commonly understood, isthe division of the properties in accord with the shares. [Paras97, 98 and 101][733-C-E; 734-C-G; 734-A]

Kalyani (Dead) by LRs. v. Narayanan & Ors. [1980] 2CSCR 1130; K.S. Palanisami (Dead) through LRs. & Ors.v. Hindu Community in General and Citizens ofGobichettipalayam & Ors. (2017) 13 SCC 15 : [2017]4 SCR 511; Bhagwant P. Sulakhe v. Digambar GopalSulakhe AIR 1986 SC 79 : [1985] 3 Suppl. SCR 169 –Dreferred to.

8.1 WHETHER A HINDU COULD MAKE A WILL?

WHAT WERE THE LIMITS ON HIS POWER TOEXECUTE A WILL? ARE THERE ANY CHANGES BROUGHT

ABOUT BY ENACTING SECTION 30 OF THE HINDUESUCCESSION ACT, 1956?

The treatises in Hindu Law do not contain reference to theconcept of a will. However, over a period of time, courts haverecognised the powers for a Hindu to make a will. This caseconcerns Mitakshara Law. Thereunder, a Hindu could bequeathFhis separate and self-acquired properties even prior to the HinduSuccession Act being enacted. A Hindu being a member of thejoint family could also possess his separate property which are ofvarious kinds. They include obstructed heritage which is propertyinherited by a Hindu from another who is a person other than hisGfather, father’s father or great grandfather, Government grant,income of separate property, all acquisitions by means of learning(declared by Hindu Gains of Learning 1930). As far as the lawgoverning the making of the will is concerned there was noparticular law which governed the same. It is in the year 1865that the Succession Act came to be passed. It was not applicableH

to Hindus. The Hindu Wills Act 1870 which had limited application(it applied inter alia to Wills by Hindus in the town of Madras) nodoubt made certain provisions of the Indian Succession Act of1865 applicable to Hindus. Under the Probate and AdministrationAct, 1881 the executor, subject to law relating to survivorshipwas the legal representative of a Hindu. Section 211 of the IndianSuccession Act, 1925 continues the same legal position. However,the Indian Succession Act of 1925 which repealed the earlierSuccession Act has through Section 57 made the provisions ofPart VI which are set out in schedule III to the Act applicable toall wills and codicils made by any Hindu, Buddhist, Sikh or Jainmade on or after the 1[st] January 1927 to which those provisionsare not applied under the preceding clauses viz. clauses (a) and(b) Section 57. It is thus that after 1[st] of January, 1927 in thematter of an unprivileged will executed by a Hindu, therequirement of Section 63 which includes attestation of such awill by a minimum of two witnesses became mandatory. Thus, theexecution of a will by a Hindu also came to be regulated from the1[st] of January, 1927. Even prior to Hindu Succession Act, a Hinducould execute a will bequeathing his separate and self-acquiredproperty. As regards his authority to execute a will concerninghis interest in the property of the joint family of which he is acoparcener, the law did not permit such an exercise. In the caseof property of the joint family as long as the property is joint, theright of the coparcener can be described as an interest. The reasonfor saying this is as long as the family remains joint, a coparceneror even a person who is entitled to share when there is a partitioncannot predicate or describe his right in terms of his share. Theshare remains shrouded and emerges only with division in titleor status in the joint family. Once there is a division the share ofa coparcener is laid bare. [Paras 102, 104 and 106][735-C-H;736-A, D-E; 739-A-B]

M.N. Aryamurthy v. M.D. Subbaraya Setty (1972) 4 SCC1; Jalaja Shedhti & Ors. v. Lakshmi Shedhti & Ors.(1973) 2 SCC 773 : [1974] 1 SCR 707; Hardeo Rai v.Sakuntala Devi & Ors. (2008) 7 SCC 46 : [2008] 7SCR 1 – referred to.

“Mulla on Hindu Law” 23[rd] Edition Page 341-342 (Para228) – referred to.

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A8.2 Even under the law prior to Hindu Succession Act therecould be four situations. In regard to a member of a joint Hindufamily who also has his separate property he could bequeath hisseparate property. As far as joint family property is concerned,there could be three situations. The first situation is where thefamily remains joint in which case the coparcener would have anBinterest. As far as this interest is concerned, it could not be thesubject matter of the will prior to the Hindu Succession Act. Thesecond situation is in a case where there is a disruption in title ora division in status. That is there is a partition in the sense of adivision in the joint family status caused by any unequivocalCdeclaration by a coparcener which is communicated. It can be bywords. It can be by conduct. It can also embrace the very filing ofa suit for partition. When such disruption takes place then theshare of the coparcener in the joint family property becomes areality and takes concrete shape in accordance with law and therights of the members of the family. This may or may not beDaccompanied simultaneously with a metes and bounds partition.In such a scenario under the law prior to the Hindu SuccessionAct, having achieved disruption in the joint family, the right basedon the principle of survivorship perishes. The share of thecoparcener becomes undeniable. Should he die intestate the shareEwould go not to the other coparceners by survivorship but to hisheirs. It also opens the door to the coparcener to exercise hisright to bequeath his share in accordance with his wishes. Thispower was certainly available to a Hindu even prior to Section 30of the Hindu Succession Act. The third scenario would be asituation where following a division in title or status in the familyFthere is also a metes and bounds partition of the properties ofthe family in accordance with the share. It cannot be open todoubt that in fact, capacity of a Hindu to bequeath such propertyexisted even prior to the Hindu Succession Act. In fact, theproperty obtained as a share on a partition by a coparcener whoGhas no male issues is treated as his separate property. As regardsthe effect of a son born after partition this Court need notpronounce on the same. After the amendment to the SuccessionAct 2005 including the daughters of a coparcener as coparcenersin their own right, if a Hindu has a female issue then the propertyallotted to him on partition will partake of the nature of coparcenaryH

L. BAKTHAVATSALAM (D) BY LRS. & ORS.

property. After the passage of the Hindu Succession Act evenwithout there being a partition in the sense of a declarationcommunicated by one coparcener to another to bring about thedivision it is open to a Hindu to bequeath his interest in the jointfamily. In other words, the words “interest in coparcenaryproperty” can be predicated only when there is a joint family whichis in tact in status and not when there is a partition in the sense ofthere being a disruption in status in the family. [Para 107,108][739-G-H; 740-A-G; 741-C-D]

“Mulla on Hindu Law”: 23[rd] Edition [Para 228 clause(6) at Page 342] – referred to.

9.1 THE IMPACT OF THE HINDU WOMENS RIGHTTO PROPERTY ACT, 1937 (XVIII OF 1937)

Section 3 of the 1937 Act applies when a Hindu diesintestate. Section 3(1) of the 1937 Act deals with the case of theHindu dying intestate leaving behind separate property. In sucha situation, should there be one widow, she became entitled inrespect of the property to the same share as the son. This wasmade subject to sub-Section (3) which declares that, the interestdevolving on her, would be a limited interest known as HinduWoman’s Estate. The more important change that was broughtabout is located in Section 3(2). Thereunder, when a Hindugoverned by any School of Law, other than Dayabagha orCustomary Law, dies, leaving behind at the time of his death, aninterest in a Hindu Joint Family property, his widow is conferredthe same interest as her husband had. This is again made subjectto the provision of sub-Section (3) which makes it a limitedinterest known as the Hindu Woman’s Estate. The Legislaturehad not used the words “dies intestate” in Section 3(2), whereas,in Section 3(1), the Legislature contemplated a situation, wherea Hindu could bequeath his separate property and has taken careto provide only for a contingency where he died intestate. Nodoubt Section 2 proclaimed that Section 3 was to be applied whena Hindu died intestate. When it comes to Section 3(2), in regardto a case covered by Mitakshara law, the Legislature has, inkeeping with the law as then prevailing, recognised that a Hinducould not execute a Will in regard to his interest in a Hindu JointFamily. It is this concept, which has been swept away by enacting A

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Athe Explanation to Section 30 of the Hindu Succession Act,whereunder, it is open to a Hindu to even bequeath his interestin the Hindu Joint Family property. Coming back to Section 3(2)of the Hindu Women’s Right to Property Act, the Legislaturehas advisedly chosen the words “interest in the Hindu Joint Familyproperty”, which may be contrasted with the provisions underBSection 3(1), which contemplates the Hindu leaving behindseparate property. Therefore, Section 3(2) contemplates thesituation, where, at the time when the Hindu dies after theenactment of the Act in 1937 (it came into force on 14[th] April,1937 and it was repealed by Section 31 of the Hindu SuccessionCAct 1956), in order that the widow acquires the same interest asher husband had under Section 3(2), the Hindu must die when heis not separated from the joint property. If a Hindu, when he dies,is separated and, at least, qua him, there is no Hindu Joint Family,it would not be a case where Section 3(2) would apply. A Hinduwhen he dies intestate he may have an interest in a Hindu jointDfamily and at the same time also have separate properties. Thenqua his separate properties, Section 3(1) would apply whereas inregard to his interest in the joint family, Section 3(2) would govern.Section 3(1) cannot apply as the properties in dispute were nothis separate properties.The position at law may therefore, mayEbe 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 toset-up a claim to the property of a deceased coparcenerbased on the Doctrine of Survivorship but the Act did notFannhilate the said Right. The Right to claim by Survivorshipcame to be suspended but not extinguished. The widow,though not a coparcener, was like a coparcener in mostrespects. She was also conferred with the right to claimpartition. As long as she did not claim partition and theproperty remained intact upon her death, the Right to ClaimGby Survivorship which stood eclipsed, revived and thecoparceners would become entitled to the property on thebasis that succession opened as if the coparcener died whenthe widow died. On the other hand, if the widow claimedpartition, her interest transformed into a defined interest H

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and the Right to Claim by Survivorship, which stoodsuspended, was destroyed. The property would then enureto the heirs of the husband. It is also to be noted that, byvirtue of Section 3(2), there is no rupture in the coparcenary.There is no division brought about by Section 3 (2) of the1937 Act, in other words.

The Court must also not be oblivious to two developmentswhich took place after succession opened to the estate of V.Rangaswami Naidu on 01.06.1955. The Hindu Succession Act,1956 containing Section 14 came to be passed. Secondly, R.Krishnammal the widow, filed O.S. No. 71 of 1958 wherein as analternate prayer, she sought partition. The principle which hasbeen laid down about the effect of a demand for partition by awidow in whom the Right came to be vested under Section 3(2)of the 1937 Act has already been noticed. But, the superveningLegislation in the form of the Hindu Succession Act, if it did conferabsolute rights under Section 14(1), it is a matter of law as towhat was the nature of the Right R. Krishnammal possessed,even when she instituted O.S. No. 71 of 1958. It is clear thatwhen succession opened to the estate on 1.6.1955 if Section 3(2)applied, then Lakshmiah Naidu would have only a suspended rightof survivorship. There is the compromise decree in OS 71 of1958 under which R. Krishnammal has given up all her rights inthe plaint schedule properties in favour of the Lakshmiah branch.[Para 108][742-F-H; 743-A-F; 745-B-H; A-B]

Satrughan Isser v. Sabujpari and Others AIR 1967 SC272 : [1967] 1 SCR 7 – relied on.

8.2 The legislative recognition of this concept of ‘interest’in joint family is found in Section 6 of the Hindu Succession Act.Section 6 prior to its substitution by Amending Act 39 of 2005provided that in the case of male Hindu dying after the Actpossessing an interest in Mitakshara coparcenary property, theproperty was to devolve by survivorship, subject to the proviso.What is of greater relevance is the terms of explanation. Theterms of the explanation I as it stood which is retained as theexplanation in sub-section (3) of Section 6 after the amendment.Therefore, the concept that what a coparcener in a Mitaksharafamily had prior to partition, is an interest, is reiterated. For the A

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Apurpose of Section 6, however, in order to determine the extentof that interest it is deemed to be the share which he would get ifthere was a notional partition just prior to his death. Partition inthe sense of a disruption however determines the extent of sharewhich would devolve under Section 8 of the Act. It is made clearthat this Court must not be treated as having pronounced thatBthe notional partition contemplated under the explanation toSection 6 is meant to bring about the demise of the coparcenaryas such. The Explanation to Section (30) also speaks of ‘interest’as being ‘property’ which a Hindu could after the HinduSuccession Act bequeath. [Paras 109, 110][746-B-G]

C10.1 WHAT IS TITLE OF V. RANGASWAMI NAIDU,WHICH HE COULD PASS?

C10.1 WHAT IS TITLE OF V. RANGASWAMI NAIDU,WHICH HE COULD PASS?

The claim that V. Rangawami Naidu acquired title to theproperties by way of oral partition, cannot be accepted. The claimthat he had acquired properties by way of self-acquisition, alsoDmay not stand. If there has been a disruption in the family status,partition in the narrow sense of a division in title takes place.The mere fact that there is a division effected in the joint family,would not mean that, in law, V. Rangaswami Naidu could claimexclusive and absolute ownership qua the items covered underEthe Will. The plaint schedule properties are, admittedly, part ofthe properties scheduled to the Will. The result would be that, interms of the legal principles applicable, V. Rangaswami Naidudid not have exclusive right as such qua the properties scheduledunder the Will. In this case, having regard to the alternate caseset-up based on the rights available to R. Krishnammal, andFnoticing that some items out of the Will were recognised as herown, and the other items which included items which wereincluded in the Will and also part of the larger joint family property,she has given-up her rights, it cannot be characterised as notusing of the opportunity by the Lakshmiah branch to challengeGthe unilateral allocation by V. Rangaswami Naidu. [Paras 112,117][747-C-F; 749-G-H; 750-A]

10.2 What would be the position after bringing about adivision in title but before there is a partition of the property bymetes and bounds? During the interregnum, the properties ofthe family would continue to remain joint. Unless there is aH

partition, qua, the properties, though the shares are ascertainedby the partition in the sense of a division in the joint family, nocoparcener could point to any specific item and claim it to be his.In the case of an alienation by a Hindu, even if it is of a specificproperty belonging to the joint property, it would be dealt withon an equitable basis, should the alienee bring an action to enforcethe same in a properly constituted Suit. The sale of such a righteven over specific immovable property by a coparcener in aMitakshara Hindu Joint Family does take effect in law where itis permitted and it would not be a case of a void transaction. Thepurpose of undertaking this discussion is to appreciate the lawrelating to the power of the coparcener to transfer specific itemseven if there has been no partition in the sense of a division oftitle so that this Court is in a better position to appreciate thequestion as to whether in a case where a Hindu executes a Willprior to the Hindu Succession Act could, he, by a Will, after adivision is brought about in the family bequeath specificimmovable property. The real principle on the basis of which theinterest of a coparcener in a Joint Hindu Family could not be thesubject matter of a valid bequest was that the bequest would comeinto collision with the right to claim property by survivorshipvested in the other coparceners upon their birth. Thus, it is acase of a prior right taking precedence over the bequest whichcan come into force only not from the date of the making of theWill but upon the death of the Testator. This distinction, hasapparently allowed courts to recognise an inter-vivos alienationwhich is possible only when the coparcener is alive of his interestin the Joint Hindu Family as it does not involve a conflict betweenthe right by survivorship and rights sought to be created by thecoparcener. However once there is a division, then right bysurvivorship ceases and there can be objection to said principleapplying to a bequest of a specified immovable property. In fact,the case of a will made after division of specific immovable propertystands on a different footing and the objection that the sale is bya coparcener when the joint family exists does not hold good.The Legatee under the Will, left behind by a Hindu after there isdivision in the family status in regard to specific propertiesbelonging to the family, would indeed have rights qua the propertybut limited to the share of the Testator. It cannot be a principle of AB

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[2020] 9 S.C.R.

Alaw in the region of controversy that a man cannot ordinarilytransfer a right greater than what he himself has. Even under theIndian Succession Act, under Section 59, there could be noprohibition in V. Ranagaswami Naidu bequeathing his share, ifthere was division. In a bequest, the equitable considerationavailable to a transferee by an intra-vivos transaction, wherein heBhas paid valuable consideration, may not apply. But this cannotmean that, if everything else is proved, the legatee should be leftremediless. This Court did toy with the idea of consideringholding in favour of the appellants even treating it to be anexercise of powers under Article 142 of the Constitution of IndiaCin the special facts of this case as brought out by the testimony ofPW1 as regards the inequity involved. No doubt, the frame of theSuit is found hardly helpful to the appellants. But having regardto the fact that the appellants must fail otherwise, this Court neednot explore this matter further. [Paras 120, 123, 124 and 128][751- B; 754-D-G; 755-A-C; 756-D-G]DSidheshwar Mukherjee v. Bhubaneshwar Prasad NarainSingh and Others AIR 1953 SC 487 : [1954] SCR177; M.V.S. Manikayala Rao v. Narasimhaswami andOthers AIR 1966 SC 470 : [1966] 1 SCR 628 – referredto.

EAiyyagari Venkataramayya and Another v. AiyyagariRamayya (1902) ILR 25 Madras 690; VenkatachelaPillay v. Chinnaiya Mudaliar (1870) 5 M.H.C.R. 166– referred to.

11. DOES THE WILL EFFECT A DIVISION?FThe Will starts off with the statement by the Testator thathe owned the properties which included properties allotted in apartition and also which he acquired by independent purchases.Thereafter, he states that he had been a divided member since1932 onwards. None of these statements would constitute aGdeclaration. The case of partition in 1932 and independentpurchases have been found against the appellants by three courts.Thereafter, there is only the statement that he has, in order toavoid any uncertainties, made an open declaration of his dividedstatus ‘today’. It may be difficult for this Court to accept thisstatement as a declaration sufficient in law to cause a division.HHowever even for a moment that it would work out as a declaration, the law laid down by this Court in AddagadaRaghavamma, may pose obstacles insuperable in nature, for theappellants. While it may be true that under the Doctrine ofRelation Back and proceeding on the basis that the contents, asnoted in the Will, amounted to a clear declaration to separateand that it would have effect from 10.05.1955, this Court cannotbe oblivious to the creation of the vested rights. If the matter isto be governed under Section 3(2) of the 1937 Act, as alreadynoted, it must be a case where V. Rangaswami Naidu diedintestate. Therefore, if this Court proceeds on the basis that thereis a Will as indeed it must to accept the case of the appellants,Section 3(2) will not apply. If Section 3(2) does not apply, theclaim to the property by survivorship, would arise, which wouldbe fatal to the appellants case. In the facts of this case, in view ofthe division being communicated through the Will only after thesuccession had opened, and even allowing for the division to haveeffect from 10.5.1955 when the will was made, the vested right ofLakshmiah Naidu to claim by survivorship would spring intoexistence on 01.06.1955 when his brother died and thesubsequent communication based on the Will cannot take awayvested right which became available proceeding on the basis ofthe Will relating to the plaint schedule properties [Para 130][758-D-H; 759-A-C]

Addagada Raghavamma and Ors. v. AddagadaChenchamma and Ors. AIR 1964 SC 136 : [1964] 2SCR 933 – relied on.

12. WHETHER THERE IS LACK OF PLEADING ABOUTB1 CAUSING A DIVISION IN THE JOINT FAMILY?

In the facts of this case, the principle that no amount ofevidence can be looked into, if there is no pleading, is in apposite.As to how the joint family status was disrupted or as to whetherthere was no division in status, is essentially a matter of evidence.The mere fact that it is not specifically averred, as to the modeby which the division was brought about is not fatal to theappellants case, if it is otherwise established. [Para 137][761-E-F]

AB

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DE

F

G

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A13. WHETHER THE CONTENTS OF B1 AMOUNT TOA DECLARATION TO EFFECT DIVISION

That there was no oral partition is found unassailable.Therefore, the statement in B1, about the same, needs to beignored being incorrect but the last sentence is capable ofBstanding as a stand alone statement. The use of the word ‘also’appears to be deliberate. It would also probablise that there waslegal advice which preceded both making the Will and the draftingof the Notice. B10-Will contains the statement about having madea notice. As long as the coparcener wishes to separate, he is notrequired to give any reason to separate.[Paras 138, 139][761-G-CH; 762-D]14. WHETHER THERE WAS COMMUNICATION TOTHE OTHER COPARCENER

108. B1 has been marked in the Trial Court as dated12.05.1955. The entire case of the appellants is that the noticeDwas issued on 10.05.1955 and it was published in a newspaper“Navva India” as, admittedly, there is no case for the appellantsthat the intention to separate, was given by way of a notice directlyto V. Lakshmiah Naidu. It was the case of the appellants thatnoticing the notice in the newspaper, Lakshmiah Naidu respondedby issuing a communication dated 11.05.1955, disputing theEpartition.Still further, the appellant’s case is sought to be builtaround the communication, by V. Rangaswami Naidu on16.05.1955 to Lakshmiah Naidu reiterating contents of B1. Thecontents of B1, having regard to the last part, would be sufficientto cause a division in the status of the joint family. The questionFis whether it was communicated, as is required in law. On theone hand, the communication set up by the appellants dated11.05.1955 and 16.05.1955 are not produced. This shortcomingis sought to be overcome by the appellants by relying upon thecase set up by ‘A’ Party (‘A’ party no. 1 was R. Krishnammal, thewidow of Rangaswami Naidu and ‘A’ party no. 2 was R.GKrishnammal’s nephew and the executor of the Will) as revealedin B2, the order passed by the Magistrate under Section 145 ofthe CrPC. Regarding B2-Order, passed under Section 145 ofCr.PC a contention is raised that it is not relevant under Section40 to 43 of the Evidence Act. This question is not seen raised inHthe courts below. It may be true that Section 40 deals withprevious judgments which would constitute a bar to the fresh proceedings and B2 is, therefore, not relevant under Section 40of the Evidence Act. Section 41 also deals with judgmentsrendered in probate, matrimonial, admiralty or insolvencyjurisdiction, which has the effect mentioned in Section 41 of theEvidence Act. It is clearly inapplicable to the facts of the case.Section 42 deals with decisions being relevant if they relate tomatters of public nature relevant to the inquiry. It is also notrelevant. During the hearing, it was pressed before this Court bythe 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 asthen it would be impossible to support the position that inresponse to the notice which is published on 12.05.1955, the replycould be given on the previous date, i.e., on 11.05.1955 byLakshmiah Naidu. It is here that the non-production of the lettersdated 11.05.1955 and 16.05.1955, are sought to be emphasized.This Court did call for the records to verify whether marking ofthe documents B1 dated 12.05.1955 was a mistake or it did reflectthe ground reality. It is found from B1 that Notice is published inthe newspaper which is dated 12.05.1955. Therefore, the markingof the document B1, as dated 12.05.1955, is not a mistake. Thereis a reference in the Will to the publication of the Notice on thesaid date. The Will is dated 10.05.1955. It appears quite clearthat the Will would not have been written on 10.05.1955. It is, nodoubt, executed on 10.05.1955. Having regards to the details inthe Will and the other circumstances, this Court is inclined tobelieve that it would have been drafted earlier. Equally, publicationof a matter in a newspaper would have been arranged earlier.But what is important is, not merely the intention of the Testatoras a coparcener to declare his mind to the other coparcener toseparate, and even have it set-out in the Will, and further evengoing a step further, getting it published, but it must be provedfurther that, before the Testator passed away, the matter containedin B1 was known to the other coparcener, viz., Lakshmiah Naidu.This requirement is indispensable.There is no case that theNotice was published on two days, viz., on 10.05.1955 and12.05.1955. What is evidence produced before the Court is B1,which is dated 12.05.1955. If that is so, despite the inferencesone could possibly draw from the deposition of PW1, it wouldbring it into collision with the evidence before this Court. If this AB

C

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ACourt proceeds on the basis of B1, which is dated 12.05.1955,then, the reply being sent on 11.05.1955, becomes impossible. Ifthere is no reply sent on 11.05.1955, then, it will not be possibleto attribute communication of the Notice to separate to LakshmiahNaidu. In such circumstances, this Court would agree with theHigh Court that the case relating to B1, though there is aBpublication made, knowledge of the same cannot be attributed toLakshmiah Naidu, before the death of his brother. It is not beingheld for a moment that a Notice in a newspaper cannot serve as aNotice by a coparcener to effect division. However, merelycausing a Notice to be published, without there being evidenceCto show that the intended recipient became aware of it, may notsuffice. Though a Notice in a newspaper is purported to serve asNotice to the general public, what is required is Notice to theconcerned coparcener. There cannot be a presumption that aperson has read a particular newspaper, and even moreimportantly, that he has read the Notice. Even the case of theDappellants appears to be that, on seeing the Notice dated10.05.1955, the communication dated 11.05.1955 was sent byLakshmiah Naidu, which this Court found unacceptable, havingregard to B1 being dated 12.05.1955. The importance of the replydated 11.05.1955 was that it would establish knowledge of theENotice by Lakshmiah Naidu. There is no evidence that the Noticepublished in the newspaper dated 12.05.1955 was known toLakshmiah Naidu before his death. Since there was no divisionbrought about by V. Rangaswami Naidu before his death in viewof the above discussion, the Will would be invalid and thereforeit would be the end of the road for the appellants. It is to beFremembered that Rangaswami Naidu died on 1.6.1955, which wasbefore the enactment of Hindu Succession Act, 1956. Thus, whenhe died, he left behind an interest in the Hindu joint family. Whensuccession opened to his estate, it is therefore, the provisions ofSection 3(2) of the Hindu Women’s Right to Property Act, 1937Gwhich apply. A limited estate in other words sprung into being infavour of R. Krishnammal, his widow. This estate would bloomunder Section 14 (1) of the H.S.A. into an absolute estate. Whenshe compromised in OS 71 of 1958 giving up her rights over theproperty which included the plaint scheduled property in thesecases, it conferred absolute rights in favour of the LakshmiahH

Naidu branch. The effect of the death of Rangaswami Naidu beingbefore the Hindu Succession Act came into force is againreiterated to be that it would deprive persons of rights availablein respect of a Hindu who dies intestate after the Act came intoforce. [Paras 140, 142, 147, 148 and 153][762-E-H; 763-A, C-E;765-C-H; 767-F-H; 766-A; 768-A-G]

15. SECTION 14 (1) VERSUS 14 (2) OF HINDUSUCCESSION ACT 1956

It is recited in the Will that the properties mentioned in ‘ASchedule’ are bequeathed to his wife, no doubt, for her life. Thisis a case where the Will itself specifically recites that she is totake income from the properties for her expenses, inter alia. Sheis to make use of the income also for giving presents to his sisterson ceremonial occasions. Therefore, this is a case where the verydocument, which the appellants lays store by, makes itunnecessary to search for any evidence to find out what is thepurpose of giving the property. The Testator has made his motiveclear. The argument of the appellants that the very samedocument refers to the fact that she has been given otherproperties towards her maintenance, does not detract from thecentral question as to what impelled the Testator to create thelife estate. The Will was executed on 10.05.1955 which is priorto the Hindu Succession Act unlike in the case of Sadhu Singh.Obviously, such a Will could not have been executed anticipatingthe provisions of Section 14(2) of the Hindu Succession Act. R.Krishnammal was certainly entitled to maintenance and thebequest in question expressly refer to the purposes. Theproperties involved were not bequeathed to R. Krishnammalwithout her having any right at all. The Will did not purport tobequeath property by way of creating new rights in the facts ofthis case. Even the case of the appellants is that she was providedfor maintenance by giving her other properties as indicated inthe Will. If the argument of the appellants is to be accepted, theCourt would have to consider the quantum of maintenance whichthe Testator would consider appropriate. The extent of the otherproperty is not shown. Such an exercise is unnecessary when theterms of the Will indicate that the Testator intended that his widowshould be able to maintain herself appropriately from the income A

B

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Aof the properties he was bequeathing to her also, and for thatpurpose, created, no doubt what can be described as, a limitedestate. In such circumstances, the view taken by the High Courtthat Section 14(1) of the Hindu Succession Act applies, cannotbe characterised as erroneous. [Paras 167, 169][780-B-G; 781-E]B

Sadhu Singh v. Gurdwara Sahib Narike and Others(2006) 8 SCC 75 : [2006] 5 Suppl. SCR 799 –distinguished.

C.Masilamani Mudaliar and Others v. Idol of SriCSwaminathaswami Swaminathaswami Thirukoil andOthers AIR 1996 SC 1697 : [1996] 1 SCR 1068 – reliedon.

16. ‘POSSESSED’ OF IN SECTION 14(1) OF HINDUSUCCESSION ACT, THE PLEADING AS TO POSSESSION OF

THE PLAINT SCHEDULE PROPERTY IN O.S. NO. 89/83 ANDDO.S. NO. 71/58 AND ITS IMPACT.

In Eramma, this Court has made it clear that Section 14(1)of the Hindu Succession Act does not confer title on a meretrespasser. It does not confer any right on a person possessingEproperty without any vestige of title. These remarks are made inthe context of the following set of circumstances:

Following the death of her husband on 01.06.1955, thereare two streams providing right to make a claim over the propertyin favour of R. Krishnammal, when the Hindu Succession Actcame into force. Under the Will, she was conferred with a lifeFestate. If the Will is treated as non-existent or invalid, then, againthere can be two situations. Her case would fall to be coveredeither under Section 3(1) or 3(2) of the Hindu Women’s Right toProperty Act, 1937 depending on whether the property wasseparate property of V. Rangaswami Naidu or an interest in theGJoint Hindu Family Property. She was also having a right to bemaintained. Therefore, in the facts of this case in view of thefinding that the properties bequeathed under the Will and whichare the plaint scheduled properties are not the separateproperties of Rangaswamy Naidu, she would have the right tothe properties under Section 3(2) of the 1937 Act. This is observedH

for the reason that when the Hindu Succession Act came intoforce, R. Krishnammal had lost her tussle under the proceedingsunder Section 145 of the CrPC. The nature of the pleading whichshe made in O.S. No. 71 of 1958 has also been seen. Shespecifically states it that she is entitled to recover possession ofthe property. No doubt, she does aver that she is entitled to treatherself as in joint possession. The decision in Kotturuswami case,in fact, came to be considered by another three Judge Bench ofthis Court in Mangal Singh and Others v. Smt. Rattno (Dead) byher legal representatives and anotherAIR 1967 SC 1786. NoticingSection 14 (1) of the Act and that it covered property possessedby a female Hindu whether acquired before or after thecommencement of the Act the Court proceeded to explain thecircumstances in which the decision in Kotturuswami casewasrendered. In fact, this decision was not referred to by the twoJudge Bench which rendered the decision in Sadhu Singh.However, it has been adverted to in AIR 1996 SC 172 (para 14)and a very recent judgment of this Court in Shyam Narayan Sighand Ors. vs. Rama Kant Singh and Ors.reported in 2018(1) RCR(Civil) 981 rendered again by a Bench of two learned Judges. Inview of the dicta in Mangal Singh, this Court feels reassured ofits view that Section 14(1) applies. [Para 173][783-E-H; 784-A-B, E; 785-C-E]

Eramma v. Veerupana AIR 1966 SC 1879 : [1966] 2SCR 626; Gummalapura Taggina Matada Kotturuswamiv. Setra Veeravva and Others AIR 1959 SC 577 : [1959]

1 Suppl. SCR 968; Shyam Narayan Sigh and Ors. v.Rama Kant Singh and Ors. 2018 (1) RCR (Civil) 981;Mangal Singh and Others v. Smt. Rattno (Dead) by herlegal representatives and Another AIR 1967 SC 1786: [1967] 3 SCR 454 – relied on.

CIVIL APPEAL NOS. 1045-1050 of 2013

The appellants claim on the basis of sale deeds executedby A. Alagiriswami, who is the First Defendant in both the Suits.The case, which is sought to be set-up is that, there was a partitionamong the Legatees of the plaint schedule properties and theproperties purchased by them, was among the properties allottedto the First Defendant. Their entire case is based on A.Alagiriswami having rights in the property. A. Alagiriswami has A

B

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D

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Ano rights, for the reasons given. The arguments based on thecompromise Decree in O.S. No. 71 of 1958, barring theLakshmiah branch from questioning the partition or the Will,cannot be upheld. Insofar as it has been held that R. Krishnammalhad become the absolute owner under Section 14(1) of the HinduSuccession Act, and having regard to the compromise Decree inBO.S. No. 71 of 1958 by which she had given-up all her rights infavour of the respondents, no right vested with A. Alagiriswamiwhich he could have passed to the appellants. The plaintiffs inO.S. No. 649 of 1985, having sought a declaration of their right,and which they were entitled to. The contention that there wasCno challenge to the sale deeds, may not advance the case of theappellants. DW1, A. Alagiriswami, one of the Legatees hasdeposed regarding possession. The appellants did not challengethe Decree of the Trial Court and they were apparently sailingalong with the appellants who were the Legatees under the Will.There is no merit in any of the appeals. [Paras 175, 176][785-G-DH; 786-A-D]

Gaddam Ramakrishnareddy & Ors. v. Gaddam RamiReddy & Ors. (2010) 9 SCC 602 : [2010] 11 SCR 656;Navneet Lal alias Rangi v. Gokul and Others (1976) 1SCC 630 : [1976] 2 SCR 924 – distinguished.

E

Babu Singh and Others v. Ram Sahai alias Ram Singh(2008) 14 SCC 754 : [2008] 7 SCR 250; K. Laxmananv. Thekkayil Padmini and Others (2009) 1 SCC 354 :[2008] 16 SCR 1117; Kanwarjit Singh Dhillon v.Hardyal Singh Dhillon (2007) 1 SCC 357– relied on.

F

Nanni Bai and Others v. Gita Bai AIR 1958 SC 706 :[1959] SCR 479; Krishnabai Bhritar GanpatraoDeshmukh v. Appasaheb Tuljaramarao Nimbalkar andOrs. (1979) 4 SCC 60 : [1980] 1 SCR 161; BhagwanKrishan Gupta v. Praabha Gupta & Ors. (2009) 11 SCCG33 : [2009] 3 SCR 393; Shivdev Kaur (Dead) by LRs &Others v. R. S. Grewal (2013) 4 SCC 636 : [2013] 5SCR 267; Sharad Subramanyan v. Soumi Mazumdar& Ors. (2006) 8 SCC 91; Bay Berry Apartments Pvt.Ltd. & Ors. v. Shobha & Ors. (2006) 13 SCC 737 :[2006] 7 Suppl. SCR 738; Usha Subarao v. B.E.H

Vishveswariah (1996) 5 SCC 201; Janki Narayan Bhoirv. Narayan Namdeo Kadam (2003) 2 SCC 91 : [2002]5 Suppl. SCR 175; Madhusudan Das v. Narayanibai(Deceased) by LRs. and Others (1983) 1 SCC 35 :[1983] 1 SCR 851; Benga Behera and Another v. BrajaKishore Nanda and Others (2007) 9 SCC 728 : [2007]6 SCR 853; Sashi Jena and Others v. Khadal Swainand Another (2004) 4 SCC 236 : [2004] 2 SCR 260;Krishna Beharilal v. Gulabchand (1971) 1 SCC 837 :[1971] Suppl. SCR 27; S. Shanmugam Pillai and Othersv. K. Shanmugam Pillai and Others (1973) 2 SCC 312: [1973] 1 SCR 570; Puttrangamma and Others v. M.S.Ranganna and Others AIR 1968 SC 1018 : [1968] SCR119; Villiammai Achi v. Nagappa Chettiar and AnotherAIR 1967 SC 1153 : [1967] SCR 448; State of Bihar v.Radha Krishna Singh and Others (1983) 3 SCC 118 :[1983] 2 SCR 808; Mst. Karmi v. Amru and Others(1972) 4 SCC 86; V. Tulasamma v. Sesha Reddy (1977)3 SCC 99 : [1977] 3 SCR 261; Shakuntla Devi v. Kamla(2005) 5 SCC 390; Bhura and Others v. Kashi Ram(1994) 2 SCC 111 : [1994] 1 SCR 16; Jagan Singh(Dead) Through LRs. v. Dhanwanti and Another (2012)2 SCC 628 : [2012] 2 SCR 303; Jupudy Pardha Sarathyv. Pentapati Rama Krishna (2016) 2 SCC 56; R.B.S.S.Munnalal and Others v. S.S. Rajkumar and Others AIR1962 SC 1493 : [1962] 3 Suppl. SCR 418; Gumpha(Smt.) and Others v. Jai Bai (1994) 2 SCC 511 : [1994]1 SCR 901; Gulwant Kaur and another v. MohinderSingh and Others AIR 1987 SC 2251 : [1987] 3 SCR576; Bai Vajia (Dead) by LRs. v. Thakorbhai Chelabhaiand Others AIR 1979 SC 993 : [1979] 3 SCR 291 –referred to.

Adiyalath Katheesumma and Ors. v. Adiyalath Beechuand Ors. AIR 1951 MAD 561; Sundara Adapa v. GirijaAIR 1962 (Mysore) 72; K. Peramanayakam Pillai v.S.T. Sivaraman and Others AIR 1952 Madras 419 –referred to.

Krishnayya Surya Rao Bahadur Garu and Others(Defendants) v. Venkata Kumara Mahitathi Surya Rao A

B

C

D

E

F

G

H

ABahadur Garu AIR 1933 PC 202; Mohammad KhalilKhan v. Mahbub Ali Mian AIR 1949 PC 78; Appovierv. Rama Subba Aiyan and Others [1866] 11 M.I.A.75;Girja Bai v. Sadashiv Dhundiraj and Others AIR 1916PC 104; Pandit Suraj Narain and Another v. PanditIqbal Narain and Others (1912-13) 40 IA 40 : (1913)B11 All LJ 172 – referred to.

Case Law Reference

ACIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1021-1026 of 2013.

From the Judgment and Order dated 12.10.2007 of the High Courtof Judicature at Madras in S.A. Nos. 314 & 315 of 1994, 41 & 42 of1997 and 690 & 691 of 1998 respectively.B

With

C.A. Nos. 1027-1032, 1033-1038, 1039-1044, 1045-1050 of 2013.

C. A. Sundaram, Mrs. V. Mohana, E. Om Prakash, S. Nagamuthu,Mohan Parasaran, Ms. Chitra Sampath, Basava Prabhu Patil, S. GuruCKrishna Kumar, Sr. Advs., B. Ragunath, Ms. Rohini Musa, Ms. N. C.Zavitha, Ms. Ankita Sharma, Ms. Nikitha Cooper, Zaferinayat, VijayKumar, R.Murali, Ms. Madhusmita Bora, Pawan Kishore Singh, R. N.Keswani, M. P. Parthiban, A.S.Vairawan, R. Sudhakaran, Hardik Gautam,Chandra Prabhu, S. Ranjith, Anil Kaushik, Abhishek Mishra, AkashBhardwaj, Shiv Prakash Pandey, S. Nandakumar, Ms. DeepikaDNandakumar, M. S. Saran Kumar, V. N. Raghupathy, D.S. Ashwin Kumar,V. Balachandran, Siddharth Naidu, Ankolekar Gurudatta, Ms. RachitaHiremath, K. Parameshwar, M. V. Mukunda, Tushar Bakshi,V. Raghavachari, Mrs. Prabha Swami, Nikhil Swami, G. Balaji, K. K.Mani, Ms. T.Archana, Mrs. Revathy Raghavan, Advs. for the appearingEparties.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. One R. Venkitusamy Naidu had two sons and five daughters.Lakshmiah Naidu and Rangaswami Naidu were the sons ofFR. Venkitusamy Naidu. Rangaswami Naidu was married to oneR. Krishnammal. They had no issues. Lakshmiah Naidu had four sons,viz., Bakthavatsalam, Venkatapathy, Jagannathan and Ramaswamy. Twocivil suits have generated these appeals by special leave before us. O.S.No. 649 of 1985 has been filed by those who claimed under LakshmiahGNaidu whereas the plaintiff in O.S. No. 89 of 1983 is one of legateesunder a Will allegedlyexecuted by Rangaswami Naidu. The plaintschedule properties in both the civil suits are the same.

2. The first suit, viz., O.S. No. 649 of 1985 (as the said suit wasinitially filed as O.S. No. 2063 of 1982 and it is re-numbered as O.S. No.H649 of 1985) was filed to declare the title of the plaintiffs to the suit

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

property and for injunction against the defendants in the suit properties.The relief sought inter alia in O.S. No. 89 of 1983 are as follows:- “(a)declaring the title of the plaintiff to an 1/3[rd] share of theproperties described in Schedule I, hereunder or 1/4[th] share in theproperties, described in Schedule II hereunder:

(b) directing the partition of the properties described in schedule Iinto three equal shares with reference to good and bad soil andgranting separate possession to the plaintiff one such share or inthe alternative directing a partition of the properties described inSchedule II into four equal shares with reference to good and badsoil and granting separate possession to the plaintiff one such share;

(c) appointing a commissioner to effect the division; (d) directing defendants 4 to 11 to pay the plaintiff Rs.15,000.00as past mesne profits.

(e) directing an enquiry into future mesne profits from the date ofsuit till delivery of possession and pass a decree for such amountas may be determined on enquiry; XXXXXXXXX.”

A CHEQUERED HISTORY; FIRST STAGE

3. This litigation has a chequered history. It all began way back inthe year 1955. Proceedings under Section 145 of the Code of CriminalProcedure, 1898 (for short “CrPC”) came to be initiated before the FirstClass Magistrate, Coimbatore as M.C. No. 1 of 1955 and M.C. No. 8 of1955. Krishnammal, the widow of Rangaswami Naidu was ‘A’Party.This was on the basis of the report of the Sub-Inspector of Police dated04.07.1955 to the effect that there was a dispute regarding the possessionof Survey No. 613/04 and 614/03 of Uppilipalayam Village. ‘A’ party no.1 was R. Krishnammal, the widow of Rangaswami Naidu. ‘A’ party no.2 was the nephew of ‘A’ party no. 1 and the executor of the Will. ‘B’party no. 1 was the elder brother of Rangaswami Naidu, viz., LakshmiahNaidu. ‘B’ party nos. 2 to 4 were the sons of Lakshmiah Naidu.

The case set up by ‘A’ party was in brief as follows:

There was a partition in the year 1932 between ‘B’ party no. 1and the late Rangaswami Naidu. Rangaswami Naidu also purchasedlands in his own name. He took several lands on lease. ‘A’ party, in A

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Ashort, claimed that they were in posession of the land in question. It was,further, the case of ‘A’ party that Rangaswami Naidu who was undertreatment of cancer but returned to Coimbatore after the first course oftreatment was over and was staying in the Bungalow at Race Coursehad executed a willon 10.05.1955. He appointed ‘A’ party no. 2,viz., thenephew of his wife as executor. He haddeclared his divided status byBway of a notice in newspaper called ‘Nava India’ dated 10.5.1955.Lakshmiah Naidu, the first among the ‘B’ party and the brother ofRangaswami Naidu onseeingthe notice responded to the same bycommunication dated 11.05.1955 to the effect that they were undividedand if Rangaswami wanted to get divided he had to intimate the otherCco-parceners. It is the further case of ‘A’ party that Rangaswami Naiduhad replied on 16.05.1955 pointing out that the stand of Lakshmiah Naiduin his response dated 11.5.1955 was incorrect. It is also alleged that itwas acknowledged on 17.05.1955 by ‘B’ party no. 1. After 10.05.1955the health of Rangaswami Naidu took a turn for the worse. He left forBombay on 20.05.1955. He was still conscious of his duties and wasDcorresponding with others. Rangaswami Naidu passed away in the earlyhours on 01.06.1955. ‘B’ party has, had on the other hand contendedthat Rangaswami Naidu and ‘B’ party were members of the joint HinduFamily. ‘B’ party no. 1, viz., Lakshmiah Naidu was sufficiently aged andcould not attend to all items of work. Rangaswami Naidu and one ofELakshmiah Naidu’s sons wereasked to look after the cultivation of fields.The case of partition in the year 1932 was denied.Rangaswami Naidubecame unwell and unable to take food from January 1955 and was fedby tube. In short, the contention of ‘B’ party was that RangaswamiNaidu continued to be an undivided member.

F4. The Magistrate did not undertake any discussion about the willfinding it unnecessary. Finding ‘B’ party in possession and that theywere entitled to be in possession until evicted in due course of law byorder dated 16.4.1956,the Magistrate held in favour of the ‘B’ party.‘B’ party, it is noted, were Lakshmiah Naidu and his sons. LakshmiahNaidu passed away on 10.04.1958. The revision petition against the sameGwas dismissed.

THE SECOND STAGE OF LITIGTION

5. The second stage of the litigation is ushered in by the filing ofO.S.No.71 of 1958. The plaintiff was R. Krishnammal, the widow ofHRangaswami Naidu. The defendants in the said suit L.Ramaswamy

Naidu, L. Bakhtavatsalam, L.Jagannathan and L. Venkatapathy, wereall sons of Lakshmiah Naidu. The 5[th] defendant was one N.V. RamaChandra Naidu, son of Venkata Swamy Naidu (the executor of the willset up by Krishnamaal). The plaint is dated 10.4.1958 which incidentallyis the date on which Lakshmiah Naidu passed away. In brief, the caseof the plaintiff, Krishnammal, may be noted as hereunder. Krishnammalreiterated the case set up before the Magistrate that her husband andLakshmiah were living together jointly as members of an undivided familytill 1932. In 1932 there was an oral partition. The properties described inSchedule ’I’ to the plaint fell to the share of her late husbandRangaswamiNaidu. He had separate possession and enjoyment of thoseproperties. Thereafter, he acquired several other properties in his name.Those properties were scheduled as Schedule IA. Rangaswami Naiduwho was an elected member of the legislative counsel developed cancerof the throat. He with an intention of formalizing of the oral partition in1932 prepared a list of properties both self-acquired and ancestral and asimilar list of defendants’ properties and sent it to his brother for hisapproval. Thelist was returned back with certain corrections in thehandwriting of Lakshmiah Naidu. Her late husband published a noticeon 10/05/1955 in the local daily that he was a divided member since1932 and he was publishing the notice to make the declaration of hisseparate share and status. Lakshmiah however was alleged to haveassumed the attitude that coparcenary was undivided and disputed thecorrectness and justness of notice and sent notice dated 11/05/1955.Krishnammal’s husband sent a reply on 16/05/1955. The plaintiffKrishnammal also stated that there was a Will on 10/5/1955 and it wasduly registered and further that in the will he has referred to the oralpartition in the year 1932. Under the Will it wasclaimed that the propertiesin schedule I and IA were set apart for Krishnammal for life and alsomade further disposition of the remainder mainly in favour of his sisters’sons. She made reference to the proceedings under Section 145 of CrPC.She also drew inspiration from the stand of Lakshmiah Naidu that thebrothers continued to be the members of the Hindu Undivided Familyand that in view of the said stand alleged that she must be deemed to bein joint possession along with defendants 1 to 4. Krishnammal claimedthat possession by the defendants in properties Schedule I and IA wasunlawful. She further stated that as a legal representative of her husbandand as legatees under a Will she is bound to adopt the position taken viz.,that that her husband was a divided member and that an oral partition AB

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Ahad taken place in 1932 and that the registered will executed by him wasvalid. In the alternative it would appear she set up the following case:

“11. The plaintiff however further states that even on the verycase set up by R.V. Lakshmiah Naidu in the 145 proceedings andthe admission made by him, her rights are even better and as aBcoparcener she is entitled under the combined operation of ActsXVIII of 1937 and XXX of 1956 to an absolute state in one half of the joint properties and to demand partition and possession ofher share. Defendants 1 to 4 are entitled to the other half share.The plaintiff is unable to specify exactly all the properties in thepossession of defendants 1 to 4 but as far as she has been able toCdo so, she has set them out I schedule II. The plaintiff cravesleave to add to them as and when she gets better particulars. Theplaintiff also prays that the defendants 1 to 4 might be called uponto make a full and true disclosure of the joint family properties intheir possession.

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12. The plaintiff states that so far as she is concerned, she isperfectly willing to adopt the defendant’s contentions as putforward in the 145 proceedings and that it is not open to thedefendants to go back upon the same. Consequently the plaintiffstates that in the circumstances, her rights are indisputable andEshe is entitled to be placed in immediate possession of the propertiesdescribed in schedule I and I-A pending a final decree in the suitor she is entitled to have a receiver appointed in respect of theproperties in all the schedules so as to secure to her, her justrights.”

6. Krishnammal further stated that in case the alternative case isFaccepted, she is entitled to have an account taken as part of the relief ofpartition of the income of the movable and immovable properties in thehands of Lakshmiah Naidu. Cause of action in the said suit was set outin para 17, as follows:

“17. The cause of action for the suit arose on 1.6.1955 whenRangaswami Naidu died and on or about June 1955 when thedefendant No.1 to 4 unlawfully trespassed on the properties, on16.4.1956 when the Revenue divisional Officer, Coimbatore, upheldthe possession of R.V. Lakshmiah Naidu and his sons and on26.9.1957 when the High Court refused to interfere with the order G

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V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

of the Revenue divisional Officer, Coimbatore within thejurisdiction of this Hon’ble Court where the properties are situate.

The relief sought in the said suit was inter alia as follows:

“1. for a declaration that the properties inSchedule - I and I-Abelong to the plaintiff and for possession of the same with pastmesne profitsof Rs.7000/- realized by receiver appointed in 145proceedings and future mesne profits as may be determined bycourt.

2. for recovery of Rs.6000/- referred to in para 14 of the plaint:

In the alternative, I, that an account may be taken of what thejoint property of the family consists of and the income therefromfrom the date of division in status i.e. 10.5.1955:

2. that a Commissioner be appointed to divide the properties bymetes and bounds;

3. for a division of the plaint properties into two equal shares andfor possession of one such share to the plaintiff.

XXXXXXXXX”

The said suit came to be contested by the defendants 1 to 4 onlines similar to the case set up before the Magistrate in 145 proceedings.The suit however came to be compromised on the following terms. Asper the endorsement on the plaint it appeared to the court that the partieshad agreed to compromise the matter and noticing the deed ofcompromise, the following decree was passed and thereafter the termsof the compromise inter alia are set out as follows:

“1. That the plaintiff be and hereby is entitled absolutely to theimmovable properties in items 1 to 7 in the schedule describedhereunder and that defendants 1 to 4 do put the plaintiff inpossession of the same;

2. that defendants 1 to 4 to pay plaintiff monies described in items8,9 and 13, discharge the decree debt mentioned in item 10 andhelp plaintiff in getting items 11 and 12 transferred to her namewithin forty five days from this date and in default, thereof, theplaintiff be at liberty to execute this decree for the aforesaid reliefs.

3. that plaintiffs do have no right or claim in the property belongingto her husband of R.V. Lakshmiah Naidu or defendants 1 to 4

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SUPREME COURT REPORTS

[2020] 9 S.C.R.

Ajointly or individually, except such care as she is already inpossession of;

4. That defendants 1 to 4 do pay arrears of income tax if any, andthe Estate duty, on the estate of the plaintiff’s husband R.V.Rangaswami Naidu and his brother R.V. Lakshmiah Naidu; B

5. That defendants 1 to 3 do at their own cost and expense, attendto any further dispute regarding the proportion belonging to thefamily, that defendants 1 to 4 do bear the responsibility in protestingthe titles to the properties including the properties allotted to theplaintiff and that plaintiff is not bound to contribute anythingCtherefore, that defendants 1 to 4 do have no further rights in theproperties taken by the plaintiff and that plaintiff do have no rightin respect of the properties whether in the name of R.V. LakshmiahNaidu or otherwise;

6. that plaintiff do act with defendants 1 to 4 is presenting forDenhanced compensation for the land …. Of which a sum ofRs.6775/- is now in Court ..C.C. 17/58 on the file of this Court,that defendants 1 to 4 alone be entitled to any such enhancedcompensation and that defendants 1 to 4 do bear the entire cost inthat proceeding.

E7. That the parties are at liberty to register this final decree withina week after its being ready;

8. That each party do bear her or his own costs; There are other details we need not be detained by.THIRD STAGE OF LITIGATIONF

7. This brings us to the third stage of the seemingly unendinglitigation. Here, the curtain is raised by the filing of O.S.No. 36 of 1963.The plaintiffs in the said Suit are R. Alagiriswami Naidu and V.Kalyanaswami. R. Alagiriswami is the son of one Krishnamaal (sisterof one Rangaswami Naidu and Lakshmiah Naidu and different from theGwidow of Rangaswami Naidu). V. Kalyanaswami is the nephew ofRangaswami Naidu and Lakshmiah Naidu through their sisterThayammal. Both of the plaintiffs are among the appellants before us.The defendants were as follows:

The first defendant in the said case was none other thanHR. Krishnammal, the widow of Rangaswami Naidu. M.V. Ramachandra

Naiduthe 2[nd] defendant was the executor of the disputed Will. The thirddefendant was R. Sounderajan, s/o K.P. Rangappa Naidu yet anothernephew of R.V. Rangasamay Naidu and Lakshmiah Nadu. The fourthdefendant was A. Alagiriswami, yet another nephewof R.V. RangaswamiNaidu and Lakshmiah Nadu through yet another sister.The 3[rd] and 4[th]defendants are also appellants before us. Defendants 5 and 6 werepersons against whom the allegation was that the first defendantR. Krishnammal had purported to conveyitems 1 to 3 and 7 respectivelyto them. In brief, the case set up by the plaintiffs in O.S. No.36 of 1963was as follows:

Issues

They referred to will dated 10/05/1955 left behind by their uncleRangaswami Naidu. There is reference made to the life estate infavour of first defendant, the wife of Rangaswami Naidu and theabsolute right created in favour of plaintiffs and defendants 3 and4. Still further there is reference to O.S.No.71 of 1958 and thatthe suit came to be compromised. It was contended that therewas no necessity to enter into such compromise as it was notbeneficial to the estate also. R. Krishna had only a life estate.She was not competent and did not represent the interest of theplaintiffs and defendants 3 and 4. The decree insofar as it purportedto confer absolute right on R. Krishnammal was not valid or bindingon the plaintiffs and defendants 3 and 4. Plaintiffs and defendants3 and 4 had vested interest in the properties but were not impleadedas parties. It is further alleged that R. Krishnammal could notenlarge her right by any compromise. She had only a life interest.Plaintiffs give a notice dated 10/05/1959 calling upon R.Krishnammal, the first defendant to acknowledge her interestbeing only a life estate and thus to desist from alienating theproperty. Para 11 of the plaint may be noticed. It reads as follows:

“11. The will of R.V. Rangaswami Naidu comprised otherproperties also other than those described herein which underthe compromise decree have been given by the 1[st] defendantto her husband’s brother’s sons. The plaintiffs reserve theirrights in respect of those properties to a separate action”

Issues were framed in the said suit. The suit came to be amendedby order dated 17/10/1970. Defendants 7 to 10 came to be impleaded onthe basis of order passed in IA No.925 of 1970. Defendants 7 to 10were the four sons of Lakshmiah Naidu viz., Bakthavatsalam, AB

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AVenkatapathy, Jagannathan and Ramaswamy. The prayer in the suitwas as follows:

a) Declaring that the 1[st] defendant has only life estate in theproperties described hereunder without any powers of alienationand that plaintiffs and defendants 3 and 4 have a vested remainderBin the said properties under the will of the late R.V. RangaswamiNaidu.

b) Directing the 1[st] defendant to pay the plaintiff the costs of thissuit;

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c) Granting the plaintiff such other and further relief as this courtmay deem fit and proper in the circumstances of the case.

The said suit also did not culminate in an adjudication by the Court.Instead the parties opted for a compromise. The compromise decree isdated 18.2.1974 and reveals the course which commended itself to theDparties and it reads as followsinter alia:

“The plaintiffs and the defendants 1 and 3 having made a jointendorsement on the plaint and counsel appearing for the defendants5 and 7 to 10 also having signed in token of their having seen theendorsement, this Court in terms of the joint endorsement bothEorder and decree:-

1. That the 1[st] defendant Smt. Krishnammal has only a life estatein the items 5 and 6 of the plaint schedule properties morefully described hereunder, and that the 1[st] defendant be andhereby is entitled to enjoy the said properties for her life withoutFpowers of alienation and after her life – time the said items ofproperties shall go to the plaintiffs and 1 and 2 and defendants2 and 4 herein.

2. That each party do bear his or her own costs in this suit.

GTerms of joint endorsement by plaintiffs and defendants 1 to 3made on 18.2.1974.

1. The may be a decree prayed for by the plaintiff in respectof plaint items 5 and 6 alone, viz. S.No.467 0.98 ac.in this0.82 ac. Within the boundaries in the plaint and S.No.466,6.02 ac. In this 3.60 ac. Within the boundaries described inH

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

the plaint and situate in Kalapatti village. The 1[st] defendantis entitled to enjoy the said items for her life without powersof alienation and after her life time they will go to theplaintiffs 1 and 2 and defendant 3 and 4.

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The defendants 1 and 2 hereby declare that they have notencumbered or alienated the said items in any manner.

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2. The plaintiffs give up the reliefs claimed in respect of plaintitems 1 to 3, sold to the 5[th] defendants, plaint items 4,acquired by the Government and plaint item 7, which hasbeen sold to the 6[th] defendant. The plaintiffs …. On theseitems and agree that the aliences are entitled to an absolutetitle.

Ctitle.3.Each party will bear his or her costs of the suit.4.The plaintiffs and defendants 1 to 3 pray that there may bea decree on the above terms against defendants 3 and 4also. No relief is claimed against the other defendants inDthis suit.”

TWO DEATHS

8. Ramaswamy Naidu son of Lakshmiah Naidu passed away inthe year 1976. A year later in 1977 R. Krishnamaal, the widow ofRangaswami Naidu also expired.

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4[TH] STAGE

9. After the death of R. Krishnammal in 1977 O.S. No. 732 of1981 was filed by R. Alagiriswami Naidu. Defendants 1 to 3 in the saidsuit were V. Kalayanaswamy, Soundararajan and A. Alagiriswami. Itwill be noticed that the plaintiff and the defendants 1 to 3 therein are thelegatees under the Will and are among the appellants before us. Thecase set up in the said plaint(A16) was inter alia that plaint scheduleproperty in the said case was items 5 and 6 in O.S. No. 36 of 1963 asnoticed earlier. The compromise decree in O.S. No. 36 of 1963 entitledR. Krishnammal only to a life interest and the vested remainder waswith the plaintiff and defendants 1 to 3. Further, the case of the plaintiffwas that in view of the death of R. Krishnammal on 30.04.1977, theplaintiffs and defendants 1 to 3 were in joint possession of the properties.It was complained that the first defendant had purported to sell 1.2 acresto defendants 4 to 5. The cause of action was alleged to arise on the F

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Abasis of compromise decree in O.S. No. 36 of 1963 dated 18.02.1974declaring the plaintiffs’ right to a vested remainder subject to the lifeestate of R. Krishnammal. The prayer was for a decree of partition.

10. A17 is the written statement which was filed by the 3[rd]defendant A. Alagiriswami who prayed for a decree of partition andBallotting his 1/4[th] share. It is also alleged that the property was in thejoint possession of the plaintiff and the defendants.

11. A18 is the decree passed in O.S. No. 732 of 1981. It is dated21.06.1984 passed by the Additional Sub-Judge, Coimbatore ordering adecree for partition.C5[th ]STAGE / THE PRESENT LITIGATION

12. Apparently, the trigger for the present litigation was providedby certain transactions by way of sale entered into by A. Alagiriswami(one of the four legatees under the alleged Will by Rangaswami Naidu).The first of the two suits which has generated the appeals before usDwas filed by eight plaintiffs. It is O.S. No. 2087/82 [However it wasrenumbered as O.S. No. 649/1985]. The first three plaintiffs are thesons of Lakshmiah Naidu, the 4[th] plaintiff is the widow of RamaswamyNaidu who was one of the sons of Lakshmiah Naidu who, as noted,passed away in 1976. Plaintiffs 5 to 8 are the daughters of RamaswamyNaidu.E

13. As far as the defendants are concerned, the first defendant isA. Alagiriswami whose actions apparently were the proximate cause ofthe suit. Defendants 2, 3 and 4 are the other nephews of RangaswamiNaidu who claim under the will. Thus, defendants 1 to 4 are the nephewsFof Rangaswami Naidu and who are legatees under the will and amongthe appellants before us. Defendants 5 to 26 were arrayed with allegationsthat certain items of the suit properties were conveyed by first defendantA. Alagiriswami to them. Defendants 27 to 33 are LRs of 10[th] defendantimpleaded vide order dated 29.4.1987. The plaintiffs have reiterated theircase as in the previous litigation which is briefly noted as hereinunder:

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14. Properties belong ancestrally to R. Lakshmiah Naidu and hisbrother Rangaswami Naidu. Lakshmiah Naidu and his brotherRangaswami Naidu constituted the joint Hindu Family and the plaintschedule property were the joint properties. Rangaswami Naidu died in1955 without any issues and without any partition, therefore, the suitHproperties, on the death of Rangaswami Naidu being coparcenary

properties on his death, the surviving coparcener Lakshmiah Naidu tookall the properties. Krishnamaal, the widow of Rangaswami Naidu wasonly entitled to limited interest as per the law on that date. The death ofRangaswami Naidu before Hindu Succession Act resulted in the survivingco-parceners taking all the property by survivorship. Reference wasmade to O.S.No.71 of 1958. It is averred that plaintiffs came to know ofthe will only after the death of Rangaswami Naidu. Will is described asfalse, frivolous and untenable. It is averred that the alleged will wasexecuted by Rangaswami Naidu under the undue influence of defendants1 to 4. Taking advantage of the serious illness of Rangaswami Naiduwho was suffering from cancer, defendants seem to be coerced him toexecute the will which contains false recitals. Will is not a genuinedocument. It is also untenable as per Hindu law as it stood on that date.Any will by coparcener of his undivided interest in his property is illegaland invalid. It was for this reason to sustain the illegal will, certain falserecitals were put in the will about the oral division that there was an oraldivision between the brothers. The recital is said to be false andunfounded. Until the death of Rangaswami Naidu, the brothers constitutedthe joint Hindu Family and there was no division and there was nopartition. Thereafter, there is reference to litigation which we havereferred to already. Still later allegations were made as follows in para13 alone. It reads as follows:

“XIII. Defendants 1 to 4 knowing fully well that their collusiveattempt to get at the property have failed miserably started creatingtrouble and complications. Recently they have purported to conveycertain items of the suit property in favour of their own partisansout of ulterior motives. Knowing fully well that the defendants 1to 4 cannot claim any right to the suit properties on the basis ofthe will in view of their own prior conduct and also in view of thefact that the said will is invalid and in operative have and fictitiousdocuments in favour of their own partisan out of ulterior motives.The plaintiffs understand that certain items of suit property havebeen sold by A. Alagirisami, the 1[st] defendant to defendants 5 to26. The plaintiffs submit that the …. Are void and in operative.These plaintiffs are not parties to the said also deeds and they areentitled to ignore the said transactions.”

It is further stated that in 1960, the plaintiffs have divided theirproperties in their own right. They have been paying kist for the properties AB

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It is also stated that even assuming that Krishnammal acquiredlife interest in the undivided share of her husband on his death whichbecame subsequently absolute on her death intestate. Her husband’sBshare had reverted both by survivorship and succession to plaintiffs 1 to3 and their late brother Ramaswamy. It is further contended that withoutprejudice to the contentions in the plaint, even if the will executed byRangaswami is sustainable, the life interest in respect of the propertiesmentioned in the will conferred on his widow, Krishnammal becameabsolute by virtue of Act 30 of 1956 with the result that KrishnammalCbecame the absolute owner of the properties including the suit property.

15. Referring to O.S. No.732 of 1981 filed before the Sub-Court,Coimbatore in regard to claiming partition, it was contended thatR. Krishnammal having parted with the suit property in favour of theplaintiffs under the compromise decree in O.S. No.71/1958 in the Sub-DCourt, Coimbatore, the defendants 1 to 4 cannot make any claim to thesame.The same stood acknowledged by defendants 1 to 4 in proceedingsin O.S.No.36 of 1963 and O.S.No.732 of 1981 in the Sub-CourtCoimbatore.

16. The plaintiffs sought declaration of title and also prayed forEinjunction. It is on the basis that they were in possession and the actionof the first defendant (A. Alagiriswami) in executing sale deed in favourof the other defendants was without any authority and they wereattempting to disturb the possession of the plaintiffs.

17. OS No.89 of 1983 is the other suit filed by the appellants sideFby R. Alagiriswami who is one of the legatees (also the plaintiff in OSNo.732 of 1981) and showing defendants 1 to 3 as the other legateesunder the Will, defendants 4 to 11 representing the branch of LakshmiahNaidu and defendants 13 to 33 were the purchasers from the firstdefendant. In the said suit, the relief sought was for partition of the plaintGschedule property. Plaintiff also sought compensation, mesne profitsbesides declaration of their right. In brief, the case set up is as follows:

The plaintiff referred to the Will executed by his uncle. He furtherbased the suit on the fact that R. Krishnammal died on 30.04.1977.It was averred that plaintiff and defendants 1 to 3 upon the deathof R.Krishnammal have equal right. The properties are in theH

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

possession of defendants 4 to 6 who were the sons of LakshmiahNaidu. Reference is made to O.S.No.649 of 1985 and it is pointedout that the said suit is not maintainable. There is reference to theoral division of the properties between Lakshmiah Naidu andRangaswami Naidu in 1932. There is further reference to theproceeding under Section 145 of the CrPC. Later reference ismade to O.S. No.71 of 1958. It was averred that the decree inthe said suit was invalid. Under the Will,R.Krishnammal had onlythe right to enjoy the property during her lifetime. The plaintiffand defendants 1 to 3 were not parties and the decree will notbind them. Thereafter, R. Krishnammal tried to sell the aforesaidproperty in her possession. Thereupon, O.S.No.36 of 1963 wasfiled objecting to the sale. There is mention about the compromise.It is their case that defendants 4 to 11 who have joined as partiesin that case have supported the compromise which means that itmust be considered that they accepted the Will. Written statementswere filed wherein as far as the respondents were concerned;they accepted the same stand as they had in the plaint in the suitfiled by them.

Both the suits were tried together. A1 to A117 were produced onthe side of the plaintiffs in O.S.No.649 of 1985. On the defendants side,who were the plaintiffs inOS No.89 of 1983, B1 to B18 were marked.The trial court treated O.S.No.649 of 1985 as the leading case. C1 ismarked as Court Exhibit along with X1 which is thefinger print registerin the Registrar’s office. By judgment dated 12.08.1989 the learnedAdditional Sub Judge proceeded to dismiss O.S. No.89 of 1983 withcosts whereas O.S.No.649 of 1985 was decreed with costs.

18. The Trial Court after framing issues concluded that the casethat Rangaswami Naidu and his brother had orally partitioned theproperties in the year 1932, could not be accepted. It is further foundthat the Will dated 10.5.1955 set up by Rangaswami Naidu, was invalidfor the reason that as on the said date, the Hindu Succession Act of1956 containing, interalia, Section 30 had not come into force sinceRangaswami Naidu was joint with his brother and the Hindu undividedfamily had not been disrupted under the law prior to the Hindu SuccessionAct. It is also found that the Will was afflicted with many suspiciouscircumstances. Though the Will was attacked by the legal heirs ofLakshmiah Naidu on the ground that it was procured by coercion and ABC

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Aundue influence,the said arguments were not accepted. The Trial Courtalso found that even proceeding on the basis of the Will, in favour ofKrishnammal, having regard to Section 14(1) of Hindu Succession Act,the life estate blossomed into absolute rights in favour of Krishnammalwhich meant the case set up by the appellants that they had the remainder,could not be accepted. The suit filed by the appellants came to beBdismissed whereas the suit filed by legal heirs of Lakshmiah Naidu, cameto be decreed. In the appeals, the First Appellate Court agreed with theTrial Court that there was no oral partition as claimed betweenRangaswami Naidu and Lakshmiah Naidu. However, the Court findsthat having regard to the publication made on 10.5.1955, in the newspaper,Cthere was a disruption in the status of the Hindu undivided family. Itmeant that the Will was validly made by the Rangaswami Naidu. TheAppellate Court did not find merit in the findings of the Trial Courtregarding presence of suspicious circumstances.Revering the finding ofthe Trial court, the Appellate Court found that having regard to therestricted estate created under the Will, it is Section 14(2) of HinduDSuccession Act and not Section 14(1) which would apply. The FirstAppellate Court found that it is Section 69 of the Evidence Act whichwould apply in the facts of the case and not Section 68 of the EvidenceAct. In other words, it was found that the present was a case whereboth the attesting witnesses to the Will were dead. B-7 was a copy ofEthe deposition of the attesting witnesses. What is required under Section69 stood proved.That apart, the First Appellate Court noted the fact thatthe Will was registered andthat the executor appointed under the Will,was the nephew of his wife Krishnammal and this again pointed out totheir being no foul play in the matter of the creation of the Will. Exhibit(C-1) was an affidavit filed by the son of the executor in response toFdirection to produce original of the Will. The First Appellate Court foundthat the original Will was, in fact, produced before the Magistrate inproceedings under Section 145 and marking of secondary evidence ofthe Will, was in fact found justified by both the Trial Court and the FirstAppellate Court. On the basis of these evidence, the First AppellateGCourt allowed the appeals filed by the appellants and decreed O.S. No.36 of 1963 and decreed partition as claimed by dividing the property intofour parts. The suit filed by the respondents came to be dismissed.

19. The High Court, in the second Appeals by the impugnedjudgment has found that Will could not be relied upon, as the requirementHunder Section 68 of the Evidence Act was not fulfilled. (B-7) the deposition

of one of the attesting witnesses to the Will did not establish due executionof the Will,in that, it did not establish the attestation of the Will by theother alleged attesting witness Dr. Iyer. The High Court also found thatSection 14(1) of the Hindu Succession Act, 1956 applied.This is on thebasis that R. Krishnammal, wife of Ranagasamy Naidu had a pre-existingright to maintenance. Section 14(2) would therefore, not apply. The Willwas appreciated in the context of her pre-existing right to maintenanceto Krishnammal. This enlarged her limited estate under Section 14(1).On the said basis of the findings and the restoration of judgment of theTrial Court under the impugned judgment, the appeals are filed beforeus.

A CLOSER LOOK AT THE ISSUES AND FINDINGS OF THETRIAL COURT

20. The trial court framed 14 issues in O.S.No.649 of 1985 andan additional issue. In OS 89 of 1983 the trial Court framed 3 issues andone additional issue. The trial court answers issue No.1 in O.S.No.89 of1983 which was whether there was an oral partition as claimed by theappellant between Rangaswami Naidu and Lakshmiah Naidu as follows:

It is found that it is not clearly proved that there was an oralpartition. B1 notice is referred to as letter dated 12.5.1955. It wasfurther found that the notice allegedly sent by Lakshmiah Naidudated 11.5.1955 was not produced by the plaintiffs or defendantsthough the trial court referred to B43 produced in Section 145proceedings. Equally, the notice dated 16.5.1955 which was allegedto have been sent by Rangaswami Naidu was also not producedeven though it is noted that B44 was produced in Section 145proceedings. The Court also referred to the case of Bhagwant P.Sulakhe v. Digambr Gopal Sulakhe[1]. It also noted the argumentthat by the Will there was a division. It goes to find that thoughPW1 has stated that Rangaswami Naidu has filed Estate dutyreturns separately and was paying income tax separately and hadseparate Bank account, A13 to A15 documents showed thattransactions were entered into which showed that the HinduUndivided Family consisting of coparceners continued jointly evenafter 1932. This is despite noticing that there was separateacquisition of property by Rangaswami Naidu sought to beestablished by B3 to B5. These properties are treated as ancestral A

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Aand finally the court has answered issue No.2 in favour of therespondents by holding that there was no oral partition in the year1932.

Issue no.1 which was whether the Will dated 12.5.1955 had beenwritten by Ranga Samy Naidu and was valid and genuine and whetherBthe Will was executed after his death, is answered as follows:

The trial court finds that the original Will was produced before theMagistrate in the proceedings under Section 145 as Exhibit B68 rejectingthe contention of the respondents that original Will was not producedeven before the Magistrate. The trial court further refers to C1 notice toCthe son of the executor of the Will to produce the Will. It also considersthe affidavit filed by the son to the effect that he was not in possessionof the Will and finds that the copy of the Will was marked as B10. Thetrial court then went on to consider how far the Will was genuine andwhether B7 could be relied upon. B7 is the deposition given byVenkataswami Naidu who was allegedly one of the attesting witnessesDto the Will dated 10.05.1955. This deposition was given by him in theproceedings under Section 145 of the CrPC. The trial court went on todiscuss his evidence. It found that in the said evidence (B7) the attestingwitness has not spoken about the attestation by the other witness. Hehas deposed that the other witness came and left before the RegistrarEcame. The Will was already typed. It is not stated as to who has preparedthe Will. The witness has not deposed in B7 that the testator wasconscious. It was very doubtful. It was found doubtful as to whether hehas executed the Will out of free will. There was on pages 1 and 4 of theWill portions written in ink. They are not referred to at the end of theWill. The original of the Will was also not produced. This led to strongFdoubts. The court took the view merely because PW1 in his previousstatement in proceedings under Section 145 has deposed that the signatureof Rangaswami Naidu was there in all the pages of the Will, it could notbe understood that the respondent had accepted the Will as genuine.The case of the appellants that the other attesting witness who was theGdoctor and a family friend would not have lend his name if the Will wasconcocted and that B12 was an advertisement issued by the family onthe death of the other attesting witness, that is, the doctor also did notappeal to the court and it entered the finding that Will was not genuine.The court also in paragraph 32 notices that the testator had 5 sisters outof which one sister did not have any issue. The 4 other sisters had maleH

and female children. The fact that only one son born to each sister wasbequeathed the property under the Will, also created doubt. The issuewas accordingly answered. It is also found that as it was not proved thatthere was a partition, the Will would be invalid. The decision of thisCourt in Nanni Bai and Others v. Gita Bai[2 ]and Bhagwant P. Sulakhe vsDigambar Gopal Sulakhe And Ors.(supra) were adverted to. Issue No.1was accordingly answered. The finding was that the Will was not genuineand it was not valid.

21. Issue No.3 was whether Lakshmiah Naidu inherited theproperty by survivorship. It was found that Rangaswami Naidu diedwithout leaving behind a Will but he was survived by his widowR. Krishnammal. R. Krishnammal had right of maintenance in the halfshare of the property of Rangaswami Naidu. She had right under theHindu Women Right to Property Act, 1937. The trial court therefore,answered the issue against the respondents and in favour of the appellants.This means that the finding of the trial court is that the respondents arenot entitled to the plaint scheduled property in their own right on thebasis that indu Women Right to Property Act, 1937. The trial Courttherefore answered the issue against the respondent and in favour oftheLakshmiah Naidu became absolutely entitled under Hindu law beingthe sole survivor upon the death of his brother Rangaswami Naidu.

22. Next issue which is issue No.4 was whether plaintiff in OSNo.89 of 1983 and defendant 1 to 3 were estopped by the proceedingsunder Section 145 CrPC. The issue was answered in favour of theappellantsby holding that they were not made parties and order will notbind them.

23. Issue No.5 was whether the decree in OS No.71 of 1958 wasdeceitful, invalid and whether it binds the plaintiff (plaintiff in OS No.89of 1983). This issue was answered as follows:

It was found that A2 decree in OS No.71 of 1958 resultedin R. Krishnammal the widow being conferred absolute right uponher in regard to Items 1 to 7 in the said suit. It was found thatthere was no evidence of any deceit. It was further found that inOS No.36 of 1963 (A3) in the written statement filed byR. Krishnammal (A4), it was stated that the compromise was asdesired by her. The issue was answered thus against the appellants.

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A24. The trial court thereafter considered Issue No.6 and additionalissue No.1 in OS No.89 of 1983. Answering issue No.6 which waswhether the decree in O.S. No.36 of 1963 would constitute res judicata,itwas found that there is no bar of res judicata involved as the suit hadbeen compromised. Regarding the additional issue which was whetherby virtue of having filed O.S. No.36 of 1963, the bar under Order II RuleB2 of C.P.C. stood attracted and barred the filing of the OS No.89 of1983,the court found that permission was not sought from the court toreserve the right to file a fresh suit in regard to property other than thosewhich were scheduled in OS No.36 of 1963. The plaintiff had actedunilaterally in the matter. The Court found that the bar under Order IICRule2was attracted.

25. Issue No.7 which was whether the case set up by defendantNo.1 (A. Alagiriswami) that there was an oral partition between himand plaintiff and defendants 2 and 3, it was answered against defendantNo. 1 and it was found that such a partition was not proved.D

26. Issue No.8 and 10 related to non-joinder, misjoinder and whetherdefendants 13 to 34 in OS No.83 of 1983 were necessary parties wasanswered by finding that there was no misjoinder or non- joinder andthere was no evidence that there was any unnecessary party. (It mustbe remembered in this regard that the relevance of defendants 13 to 34Eis that they are persons to whom part of plaint scheduled property stoodtransferred by the first defendant on the basis of the alleged oral partition).

27. Allied to this issue was issue No.12 which was whetherdefendants 13 to 34 were entitled to any equitable relief. This issue wasanswered against defendants 13 to 34.F

28. Issue No.11 and 13 related to questions ancillary to the issuewhether the plaintiff had right in the property and right to partition. Boththe issues were answered against the plaintiffs. Then the Court went onto consider issue No.1 in OS No.649 of 1985. The issue was whetherR. Krishnammal had absolute right over the property governed by theWill on the basis of Hindu Succession Act. The Court went on to holdGthat the right of R. Krishnammal became absolute under Section 14(1)of the Act.

29. Finally, the court took up the issue in OS No.649 of 1985which was whether the plaintiffs therein were entitled to relief, as prayedin the plaint and whether they were entitled to injunction. The courtH

found that the plaint schedule property was ancestral property. Theplaintiffs were legal heirs of Lakshmiah Naidu and on the death ofRangaswami Naidu and they became entitled on the basis of thecompromise decree passed in OS No.71 of 1958 as a result ofR. Krishnammal giving up her right. OS No.649 of 1985 was decreedand OS No.89 of 1983 came to be dismissed.

PROCEEDINGS BEFORE THE FIRST APPELLATE COURT

30. Four first appeals were filed against the common judgment -AS No.194 of 1989 was filed by the plaintiff in OS No.89 of 1989, ASNo.195 of 1989 was filed by the same person R. Alagiriswami but asdefendant in OS No.649 of 1985 challenging the decree in the said suit.AS No.320 of 1992 was filed by one V. Kalyanaswami who wasdefendant No.2 in OS No.649 of 1985 challenging the decree therein.V. Kalyanaswami is also the appellant in AS No.225 of 1992 challengingthe judgment in OS No.89 of 1983 wherein he was defendant No.2 (beit noted that there was no appeal filed by any of the other defendantsincluding defendant D13 to D34 in OS No.89 of 1983) who were alsodefendants in O.S. No.689 of 1985.

FINDINGS OF THE FIRST APPELLATE COURT

31. The first appellate court agreed with the trial court that it wasnot proved that the suit property and the other property were separateproperty as they were given to Rangaswami Naidu in 1932. The courthowever finds that this could not lead to the conclusion that RangaswamiNaidu died joint and not separated from Hindu Undivided Family at thetime of death. The appellate court finds that by giving B1 advertisementin a newspaper, a division was effected in status. Rangaswami Naiduunilaterally allotted some of the properties of the HUF share and detailedWill was written as would be explained later. The court went on to thenhold that he was a member of the Tamil Nadu Legislative Council. Heand his brother possessed several properties between 1944 and 1958.PW1 accepted that in addition the family has purchased 1000 acres ofland. Sisters of Rangaswami Naidu were leading ordinary life. He wasvery much attached to his sisters. He was living in the residential bungalowof his sister-Ammani Ammal. He selected one son each of his ownsister. Shares in a Mill was given to his brother. The selection of hiswife’s nephew, as executor was also considered. The court foundacceptance of the registered copy of the Will as secondary evidence as“totally correct”. Relying upon B7 deposition and Section 69 of the AB

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AEvidence Act, it was found that the requirements of Section 69 of theEvidence Act were fulfilled. Registration dispelled all suspicion. Thefact that R1 testator refused to affix the mark impression and insisted onsigning, was also relied upon to show that he had sound disposingcapacity. The suspicious circumstances noted by the trial court did notappeal to the court as such. B10 Will was found to be genuine. TheBburden to prove that the Will was obtained by coercion and undue influencewas not discharged by the respondents. The court went on to find thatB1 had caused a division in status. It finds that B1 was published byRangaswami Naidu on 10.5.1955. Lakshmiah Naidu wrote a letter toRangaswami Naidu on 11.05.1955 rejecting B1 and stated thatCRangaswami Naidu was still continuing as member of HUF.Rangaswami Nadu sent a reply letter on 16.05.1955 confirming B1.They were marked as B43 and B44 is Section 145 proceedings. Rejectingthe argument of the respondents that there was no issue raised as towhether division was effected vide B1 newspaper statement, it foundthat there was pleading in the written statement of defendant No.1 andDin the counter statement of the other defendants. Plaintiffs and therespondents were not surprised as regards the contention that it was notopen to a member of an undivided family to unilaterally allot property tohis share, as was done by Rangaswami Naidu. It was found meritlessand supported as follows:

ERespondents did not raise any objection regarding unilateralallotment in OS 71 OF 1958 and OS 36 of 1963. Secondly, it wasnoticed that there were more than 93 items amounting to 100s ofacres belonging to HUF and what was unilaterally allotted wasonly a small part of the properties. The court finds that “it couldFnot think of that as totally unjustified”. The court noticed thedecision of this Court in BhagwantP. Sulakhe case (supra). This was dealt with by holding that thatwas a case where there was a problem of partnership and it wasso decided. The letter of Rangaswami Naidu dated 16.05.1955was relied upon wherein he confirmed B1 advertisement and itGwas found that it was unable “to consider this as a unilateral actof declaration” and to decide that this act does not change thejoint family character of the properties. It is stated that regardingthe problem, it is decided that B1 created a division in status.Even though Rangaswami Naidu did unilateral allotment,HLakshmiah Naidu and sons accepted the unilateral allotment in

their subsequent conduct and therefore not entitled to challengethe Will.

32. The argument of estoppel raised against the appellants basedon the conduct of the appellants in OS No.36 of 1963 in accepting theabsolute title of R. Krishnammalin items No.1 to 3, 4 and 7 was foundwithout merit. It found that items 1,3 and 4 were items sold byR. Krishnammal to defendants 5 and 6 in the said suit.Item No.7 wasthe land acquired by the government. It was found that there was noevidence to reveal on what basis defendants 1 to 4 have acted qua thecompromise in regard to the properties sold and item acquired by theGovernment. It was found further that the compromise was with regardto the items sold and acquired and even the court cannot decide thissituation as acting against the appellants. Thereafter, the Court findsthat in B10 Will, 19 items of properties are mentioned. Items 1 to 7 towhich R.Krishnammal was given absolute title under the compromisedecree were scheduled as suit properties in OS No. 36 of 1963. Theargument of the respondents that as the appellants had accepted thatR.Krishnammal has abandoned her right in the other property in OS No.71 of 1958 those properties were not scheduled in OS No. 36 of 1963and the bar of Order II Rule 2 would apply, was repelled. The Courtfound that the plaintiff in OS No. 36 of 1963 had reserved the right.Secondly the bar of Order II, Rule 2 will not apply having regard to thedeath of R. Krishnammal much after 1963, which was in 1977. It wasfound that Order II Rule 2 cannot apply, as in 1963 the plaintiff did nothave the right which accrued to them (legatees) only upon the death ofR.Krishnammal as absolute owners under the Will. It was further foundthat the decree in OS No. 36 of 1963 further diluted the compromisedecree in OS No. 71 of 1958 wherein R. Krishnammal was conferredabsolute title in items 1 to 7. Under decree in OS No. 36 of 1963 thesons of Lakshmiah Naidu were joined as parties. They had appointed anadvocate. The advocate has made a joint endorsement for the compromisedecree. Under the decree in OS No. 36 of 1963, the right over items 5and 6 was by way of reserving life interest in favour of R.Krishnammaland this was found to be against respondents. Thus, a right under theWill was conferred by the conduct of the parties. Regarding thecontroversy qua Section 14 of the Hindu Succession Act, it was foundthat R.Krishnammal had prayed for the right under Section 14 (1) onlyas alternative relief in OS No.71 of 1958. The court found it unable todecide that the absolute right given to R.Krishnammal in OS No. 71 of AB

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A1958 was given in accordance with her right under Section 14 (1) andhad it being the case the appellants should have been made parties andthe executor of the Will would not have been exonerated. It was foundthat R. Krishnammal had no intention to obtain absolute right underSection 14 (1). It was further found that the conduct of the respondentswas in a manner that she should not get her share in property. LakshmiahBNaidu and his sons conducted proceedings under Section 145 to withholdproperty in their possession. In OS No. 71 of 1958 they gave items 1 to7 by a pittance for the compromise. R.Krishnammal, it was held, acceptedher estate for life as something was better than nothing. It was foundnoteworthy that in OS No. 71 of 1958, it was not openly stated byCR. Krishnammal that she had a right under Section 14 (1) and she hasabandoned all the properties except items 1 to 7 therein. The compromisedecree in OS No. 36 of 1963 revealed that the parties intended to followthe Will, as could be seen from bestowing life interest in items by themby diluting the compromise decree in OS No. 71 of 1958. Accordingly

Appeal No. 195 of 1989 and Appeal no. 20 of 1989 were allowed. OSDNo. 649 of 1985 was dismissed. Appeal No. AS No. 194 of 1989, ASNo. 225 of 1992 were also allowed setting aside the judgement in OSNo. 89 of 1983, the said suit was decreed. It was ordered that scheduleII properties should be divided into 4 equal shares and one share shouldbe allotted to the plaintiff. A preliminary decree for partition was passedEand further mesne profit was to be decided based on application underOrder 20 Rule 12 CPC.FINDINGS OF HIGH COURT IN THE IMPUGNEDJUDGMENT

33. In one common judgment, the High Court disposed of theFsecond appeals. It found that both the courts had concurrently foundthat there was no proof that there was a partition in 1932. It went on tofind that in such circumstance, the question was whether there was adivision before the death of Rangaswami Naidu. It notes that there is noissue raised that a division was brought about by issuing B1. The firstGappellate court, it was noticed, framed specific issue of division basedon B1. Based on B1, division of status was not proved. It went on toagree with respondents that the plaintiff in OS No.89 of 1983 reliedupon B1 dated 12.05.1955 while the first defendant in OS No.649 of1985 in the written statement has stated that Rangaswami Naidu hadissued the public notice on 10.05.1955 that he was a divided memberH

from his brother since 1932 for which a notice was issued on 11.05.1955and for which a reply was also given by Rangaswami Naidu. It wasfurther found that apart from the newspaper “Navva India” dated12.05.1955, no other document was filed in the proceedings. The courtfound there is absolutely no reason to conclude that there was any divisionbetween the brothers before Rangaswami Naidu died. It is further statedthat it is not in dispute that the publication stated to have been effectedby Rangaswami Naidu, is on the basis of the previous partition betweenhim and his brother in 1932 and inasmuch as the courts have concurrentlyheld that there was no prior partition and in absence of any proof ofseparation by Rangaswami Naidu with his brother before his death, thefinding of the first appellate court, was described as baseless. It wasfound that it was doubtful whether RangaswamiNaidu had any right tomake a Will. The original Will was not produced. The plaintiff (the plaintiffin OS No.89 of 1983) did not take any steps to produce the Will. Nonewas examined though the registration book from the Sub-Registrar wassummoned and marked as X1. The Magistrate in Section 145 proceedingsdid not discuss the Will and the appellant-plaintiff in OS No.89 of 1983placed sole reliance on the order of the Executive Magistrate. It is furthernoticed that the Will was presented for registration as per the endorsementat the residence of Ammani Ammal whereas in B7 deposition of theattesting witness, the registration took place at the home of the deceased.In the absence of the original Will and non-compliance with therequirement of Section 68 and 69 of the Evidence Act, the court foundthat the Will was not proved. Registration of the Will does not dispensewith the proof of the Will. It agreed with the findings of the trial court inthis regard. The Executor is stated to have died in 1990 but no stepswere taken to produce the Will during that time. It was not known whythe plaintiff did not take steps to summon the records of proceedingsunder Section 145. R. Krishnammal acquired right under Section 14(1)of the Hindu Succession Act on the basis of the compromise. The rightsof R. Krishnammal opened on 01.06.1955 when her husband died.R. Krishnammal had right to maintenance which was an existing right.The High Court distinguished the judgment of this Court in Sadhu Singhv. Gurdwara Sahib Narike and Others3. By virtue of that right underSection 14(1) she had entered into the compromise in OS No.71 of 1958and this was entirely recognised by the appellants. The appeals wereallowed and the decree of the trial court was restored.

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682SUPREME COURT REPORTS

ACONTENTIONS OF PARTIESTHE DEBATE IN THE COURT AND THE WRITTENSUBMISSIONS

34. We have heard the learned counsel appearing for the parties.We heard Shri C.A. Sundaram, learned Senior Counsel who led theBarguments on behalf of the appellants. We heard Mrs. Mohana and ShriV. Giri, learned Senior Counsels also, on behalf of the appellants. Wefurther heard Shri Mohan Parasaran, Shri S. Guru Krishnakumar,Mrs. Chitra Sampath, and Shri V. Raghavachari, learned Senior Counsel,on behalf of the respondents. This is besides noting the submission ofCShri S. Nagamuthu, learned senior counsel on behalf of some of thealienees from defendant No. 1 in OS 649/ 1985.

35. The appellants were led by Shri. C.A. Sundaram, learnedsenior counsel. He contended that the High Court had in the impugnedjudgment transgressed the limits under Section 100 of the CPC and re-Dappreciated the findings based on facts which was impermissible. He nodoubt also does not invite us to find that there was an oral partition in theyear 1932 but he contended that before Rangaswami Naidu died on01.06.1955 by virtue of issuing B1 paper advertisement, the requirementin law for bringing about a division in the status of the Hindu UndividedFamily was achieved. He took us to the terms of B1 and submitted thatEthere is an unequivocal declaration of Rangaswami Naidu being separated.Response by his brother by communication dated 11.05.1955 purportedto dispute the contents of B1. This fact was harnessed to contend thatthe requirement in law that not only a member who wishes a division inthe joint family to be brought about, should communicate his intentionFbut the communication should reach the other coparceners, was fulfilled.The elder brother did respond and till further, lending credence to thecase set up by the appellant communication dated 16.05.1955 was issuedby Rangaswami Naidu reiterating his stand manifested in Exhibit B1. Itis not the law, learned senior counsel pointed out, that there must be anyreason at all for a member of the Hindu Undivided Family to severe itsGconnection with the family and to withdraw as it were from the undividedstatus. All that is required is an unequivocal declaration which iscommunicated and the same was achieved issuing in B1. He wouldfurther submit that the Will was indeed genuine and free from taint orsuspicious circumstances, which at any rate was found by the firstHappellate court which is the final court on facts. Rangaswami Naidu

was indeed fond of his sisters. He did not have any issues. It is onlynatural and probable that therefore finding that death was not too faraway he wanted to provide for both - his wife in the form of life estateand also to bequeath the absolute right in the 4 legatees (appellants beforeus) and he has drawn from each of the 4 branches of his sisters. Theevidence given by the attesting witness in Section 145 proceedings fulfilledthe requirement of Section 69 of the Evidence Act, as was correctlyfound by the first appellate court. In regard to the discrepancy in thedate of Exhibit B1, viz., that it is shown in the Appendix to the trial courtjudgment as being dated 12.05.1955 it is only a mistake and the date isactually 10.05.1955. In regard to the requirement to be fulfilled to bringabout a division in joint family he relied on the following judgments:

1. Krishnabai Bhritar Ganpatrao Deshmukhv. AppasahebTuljaramarao Nimbalkar and Ors.[4];

2. Addagada Raghavamma and Ors.v.Addagada Chenchammaand Ors.[5]

3. Adiyalath Katheesumma and Ors.v.Adiyalath Beechu andOrs.[6]; The appellants also relied upon B2 order passed in theproceedings under Section 145 CrPC to show thatRangaswami Naidu declared his divided status videcommunication dated 10.05.1955. Another contention addressedis that even the execution of the Will amounted to declarationof status. Reliance is placed on Addagada Raghavammacase(supra) and Bhagwan Krishan Gupta v. Praabha Gupta&Ors7. The execution of the Will shows thatRangaswami Naiduwas in control of specific properties. Evidence of R.Krishnammal and the executor in the will in 145 proceedingsestablishes that testator was capable of dealing with theproperties and executing Will in respect of portion of his hugeestate. Reliance is placed on the judgment of this Court8reported in Jalaja Shedhti& Ors. v. Lakshmi Shedhti & Ors., 41979 (4) SCC 60

5 AIR 1964 SC 136

6 AIR 1951 MAD 561

72009 (11) SCC 33

81973 (2) SCC 773

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Hardeo Rai v. Sakuntala Devi & Ors.[9 ]and Kalyani (Dead) byLRs v. Narayanan & Ors.10. It is the submission of the appellantthat Rangaswami Naidu was capable of identifying anddisposing of properties in the Will. Rangaswami Naidu haspurchased properties in his name with his money which wasdealt with by him as his own portion. Partition by metes andbounds is not mandatory. The requirement of Section 69 of theEvidence Act stands fulfilled on perusing the deposition of oneof the attesting witness in Section 145 proceedings. Thesignature of the testator was identified by PW1 himself. Theoriginal Will has been produced in Section 145 proceedings. R.Krishnammal has based her case on the will in 145 proceedingsand in the subsequent suits, viz., OS No.71 of 1958 and OSNo.36 of 1963. The respondents however admitted to acompromise though an issue was framed regarding the Will.We are reminded that the Will is a registered document andthat registration is a solemn act. It is the contention of theappellants that the wording in the Will and the surroundingcircumstances clearly show the intention of Rangaswami Naiduto be that he wanted some properties of his estate to go to hissisters’ sons with whom he was very affectionate. Our attentionis drawn to the reasoning of this Court in K.S. Palanisami(Dead) through LRs & Ors. v. Hindu Community in Generaland Citizens of Gobichettipalayam& Ors.11. It is the furthersubmission of the appellant that R. Krishnammal, the widowhas only limited estate during her lifetime which does not blossominto absolute right under Section 14(1) of the Hindu SuccessionAct. It is contended that the primary relief sought by R.Krishnammal in OS No.71 of 1958 was itself based on theright under the Will. She never claimed under Section 14(1) ofthe Hindu Succession Act. She knew the intention of the testatorand accepted it by her conduct. The property bequeathed toher was only limited estate with onerous condition that she hasto maintain sisters etc. and on her death the property was todevolve upon her sisters’ sons. Considerable reliance wasplaced upon the judgment of this Court in Sadhu Singh’s case 92008 (7) SCC 46

101980 (2) SCR 1130H112017 (13) SCC 15

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

(supra). Taking us through the Will the appellants contend thatthe testator has provided other properties for the maintenanceof Krishnammal, and therefore, it could not be argued that theplaint schedule property which are included in the Will weregiven in lieu of her right to maintenance which should becomeabsolute after passing of the Hindu Succession Act. Relianceis placed on the following judgments:

(1) Shivdev Kaur (Dead) by LRs & Others v. R. S. Grewal[12]

(2) Sharad Subramanyan v. Soumi Mazumdar & Ors.[13]and

(3) Gaddam Ramakrishnareddy & Ors. V. Gaddam RamiReddy & Ors.[14]

36. As regards the finding of the High Court that the suit filed bythe legatee is barred under Order II Rule 2, it is contended that thoughthere is a vested right under Section 119 (1) of the Indian SuccessionAct in favour of the appellants (legatees), the cause of action to sue inrespect of the bequeathed property arose only after the death ofR. Krishnammal. O.S. No.36 of 1963 was a protective action to dealwith R. Krishnammal purporting to alienate certain properties. Plaintiffs-appellants in OS No.36 of 1963 were not parties to the suit in 1958 andthe compromise in OS No.71 of 1958 will not bind the appellants.R. Krishnammal, the widow did not have any right to deal with theproperties which were given to her by way of life estate. She could nothave entered into compromise without including the appellants. Thedecree is described as void ab initio and therefore, there is no need todeclare that decree or any transaction thereon as such. Still further it iscontended that perusal of the plaint in OS No.36 of 1963 would showthat plaintiffs have reserved their rights in respect of the rest of theproperties to initiate separate action. The respondents have agreed for adeclaration that Krishnammal had only a life estate and they are thereforeestopped from contending that R. Krishnammal had absolute right. Thecause of action arose only after 1977 on the death of R. Krishnammal.Reliance is placed on judgments of this Court in Bay Berry ApartmentsPvt. Ltd. & Ors. Shobha & Ors.[15] and Usha Subarao v. B.E.Vishveswariah[16]. It is contended that Krishnammal did not have any 122013 (4) SCC 636132006 (8) SCC 91142010 (9) SCC 602152006 (13) SCC 737161996 (5) SCC 201

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Aright to give away the properties which was not for any legal necessityor family necessity. The transaction itself has been challenged asfraudulent and collusive in OS No.89 of 1983 and an issue was alsoframed. A contention is also taken that the compromise decree was notregistered and therefore could not convey any title to the respondents.It is also submitted that the challenge made to the will in the year 1982 isBbarred by limitation. It is further contended that respondents are estoppedfrom challenging the validity of the will in the light of admitting theexistence of the Will and compromising the suits OS No.71 of 1958 andOS No.36 of 1963. The High Court erred in decreeing OS No.649 of1985 without declaring earlier compromise decree between the sameCparties in OS No.71 of 1958 and OS No.36 of 1963 as null and void.Any such declaration would be barred by limitation in the year 1982.Under the decree in OS No.36 of 1963 R. Krishnammal had only the lifeestate and Section 14(2) would apply. The right to the property bysurvivorship which was set up by the respondents was negatived by thetrial court and no appeal was carried against the same. It is also theDsubmission of the appellants that even on the death of Krishnammal onthe basis that she had acquired absolute right under Section 14(1), thebrothers and sisters’ sons were equally entitled to 1/8[th] share in the entire50 per cent of the property which fell to the share of Rangaswami Naidu.

37. We also heard Shri V. Giri, learned senior counsel for theEappellants. Shri Nagamuthu, learned senior counsel canvassedcontentions for the transferees from the 1[st] defendant in OS No.89 of1983 and complained that their contentionshas not been considered andaccepted.

38. We notice the following submissions by Mrs. V. Mohana,Flearned Senior Counsel on behalf of the appellants. There are sufficientpleadings in regard to the division of status. The newspaper in “NavvaIndia” dated 10.05.1955 has never been disputed. She drew our attentionto the evidence of the Executor in the proceedings under Section 145 ofthe CrPC. The declaration was communicated. Rangaswami Naidu hadGthe capacity to bequeath the properties. The brothers were dealing withthe properties separately. In this regard, reliance is placed upon judgmentsof this Court in Hardeo Raiv. Sakuntala Devi and others17. It is notnecessary to prove partition by metes and bounds. The original Will wasproduced before the Magistrate in proceedings under Section 145 of the H17 (2008) 7 SCC 46

CrPC. The Will is a registered document. The Will has been provedunder Section 33 of the Evidence Act. The Magistrate Court is a Court.Reliance is placed on Krishnayya Surya Rao Bahadur Garu and others18(Defendants)v. Venkata Kumara Mahitathi Surya Rao Bahadur Garu.The earlier proceedings in O.S. No. 71 of 1958 is not binding upon theappellants. R. Krishnammal did not have the right to deal with theproperties. The Decree in O.S. No. 71 of 1958 was void. Appellantshave never abandoned their rights. Principle of Order II Rule 2 of theCPC will not apply. Though the appellants had vested rights they couldnot have filed the case for getting possession till the death ofR. Krishnammal. As per the compromise Decree in O.S. No. 71 of1958, rest of the properties were in the control of the plaintiffs. Therefore,they have reserved their right in O.S. No. 36 of 1963. The issue ofOrder II Rule 2 of the CPC was never argued nor any finding was givenby the High Court. In the Suit for Partition, there is a prayer for possession.Anyways, the partition could be effected only when the final DecreeProceedings are over. The question of limitation was never agitated bythe respondents, and at any rate, the period begins to run only in the year1977. The Will is not in lieu of maintenance. The case falls under Section14(2) of the Hindu Succession Act. Attempt has been made to distinguishdecision of this Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakheand others (supra). Shri Om Prakash, learned Senior Counsel in his writtensubmission in Civil Appeal Nos. 1027 to 1032 of 2013, would contend,inter alia, that division and severance of the joint family stood proved.He lays store by the judgments of this court in Addagada Raghavammaand another v. Addagada Chenchamma and another[19], Janki NarayanBhoir v. Narayan Namdeo Kadam[20] and Hardeo Rai (supra). The Willis covered under Section 63 of the Evidence Act and Section 68 of theIndian succession Act. The right in the joint family properties, devolvingby survivorship, is negatived by the all the courts below and there is noappeal against such finding and there is no cross appeal.

CIVIL APPEAL NO. 1039-1044 OF 2013

In the Written Submission, it is sought to be contended that thechallenge to the Will made by the plaintiffs (in O.S. No.649 of 1985) inthe year 1982 is barred by limitation. They are estopped in view of the 18AIR 1933 PC 20229AIR 1964 SC 13620(2003) 2 SCC 91

AB

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DEF

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H

Acompromise in O.S. No. 71 of 1958 and O.S. No. 36 of 1963. Withoutdeclaring Compromise Decrees, in the earlier two cases null and void,O.S. No. 649 of 1985 could not have been decreed. Such a relief isbarred by limitation in the year 1982. Section 14 (1) of the HinduSuccession Act does not apply in view of the Compromise Decree inO.S. No. 36 of 1963. The case based on survivorship was rejected byBthe Trial Court and, against the same, no appeal was filed by the plaintiffs.If the finding under Section 14(1) is confirmed, then, on the death of R.Krishnammal, by operation of law, the brother’s and sister’s son areequally entitled to 1/8[th] share in the entire 50 per cent of the propertywhich fell to the share of V. Rangaswami Naidu. Since, the plaintiffsChad knowledge of the Will in the Section 145 of the CrPC proceedings,they were not entitled to challenge the Will in 1982.39. In C.A.No.1045-1050 of 2013, the appellants are amongdefendants 13 to 34 in OS No.89 of 1983. They are also defendants inthe other suit (O.S. No. 649 of 1985). It is their contention that theyDpurchased 7 acres and 4 cents from A. Alagiriswami who is defendantNo.1 in OS No.89 of 1983 and also the first defendant in OS No.649 of1985. The said purchase was prior to the filing of the suit and after theHindu Succession Act, 1956 came into force. After referring to Section14(1), it is contended that the right given to R. Krishnammal for a lifetimebecame her exclusive right after the said Act came into force. AfterEreferring to Section 14(2), it is pointed out that even according toLakshmiah Naidu on their contention that the will is not genuine andthere was no partition, there would not be any restriction under Section14(2) for having absolute right by R. Krishnammal under Section 14(1).Referring to the Compromise Decree in OS No.71 of 1958, it is stated Fthat when there was no objection by the sons and grandsons of LakshmiahNaidu now they cannot raise dispute about partition in 1932 and theexecution of the will. Upon the death of Rangaswami Naidu in 1955 andR. Krishnammal on 30.4.1977 under oral partition between the family ofthe sister of Rangaswami Naidu, the property purchased by the appellants came into possession of A. Alagiriswami from whom they purchased.GNone of the parties till date challenged their sale deed and the sons ofLakshmiah Naidu filed O.S. No.649 of 1985, after 3 years of sale withouteven challenging the sale. Interference by the High Court with thefindings is complained against.

40. Mr. Guru Krishnakumar, learned senior counsel appearing onHbehalf of the branch representing Lakshmiah Naidu submitted that the

declaration B1 is shrouded in serious doubt. The discrepancy in the dateviz., that it is dated 12.05.1955 and not 10.05.1955 looms large. Evenwhile accepting the document before this Court, the date of B1 wasconspicuously left out. The cross examination of PW1 and the relianceplaced on the same is misplaced. Secondly, it is further contended thatB1 is an unsigned document. No witness has deposed that the testatorarranged for its publication. Further, it is contended that the declarationseeks to reaffirm the alleged partition of the year 1932 which partitionhas not been believed by three courts. B1 could not be believedindependent of the alleged partition. Once the alleged partition wasdisbelieved B1 would have no legs to stand on. It is contended that thewords relied upon by the appellants is in past continuous, insofar as itsays “I also hereby make a declaration of my divided and separate status”,it was not to be from that date that the severance was to take effect.The findings of the first appellate court are attacked as being perversefor the reason that response to B1 and the rejoinder to the same whichwere marked as B43 and B44 in the proceedings under Section 145were not exhibited in the present proceedings. B2 order does not revealany findings on the same. It is further contended that partition is used ina narrow and wide sense. B1 even if relied upon would only result inseparation of status but not actual partition by metes and bounds. Reliance21is placed in Addagada Raghavammav. Addagada Chenchamma. Theposition at law is pointed out to be that the members of the undividedfamily even after a unilateral communication of severance of status mustagree to a particular portion of the property being earmarked to a member.Reliance is placed on the judgment of this Court in Nanni Bai & Ors.V. Gita Bai Rama Gunge22 and Bhagwant P. Sulakhe v. Digambar GopalSulakhe & Ors.(supra) besides Kalyani (Dead) by LRs v. Narayananand Others(supra). It is pointed out that in Addagada Raghavammacase(supra), this Court did not consider the specific issue as to whetherspecific items of property could be unilaterally willed without the consentof the other coparceners or without partition by metes and bounds. Thenon-production of the original will is made a ground of attack. The findingof the trial court that the original will was produced in Section 145proceeding is also pointed out to be the product of error. No steps weretaken to produce the Will. The reliance placed on B7 deposition which isthe deposition in proceedings under Section 145 of the CrPC is impugned 21AIR 1964 SC 136

221959 SCR 479

AB

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21AIR 1964 SC 136

221959 SCR 479

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Aas being not binding as the proceedings under Section 145 could not bethe forum for establishing the Will. Adjudication under the said provisioncould not be used as conclusive evidence to prove the Will in view ofSection 41 of the Evidence Act. Reference is also made to Section 42 ofthe Evidence Act. It was further contended that the ingredients of Section69 of the Evidence Act have not been met. It is pointed out that withoutBconditions of Section 69 being not met for the purposes of Section 145CrPC, the same evidence could not be used to rely upon for the purposeof Section 68 of the Evidence Act. Further it is contended that the evidencewhich did not fulfil the requirements of Section 68 could not be used toprove the Will under Section 69 of the Evidence Act. Even otherwise, itCis contended B7 falls short of the requirement when there is no evidenceto prove the signature of the testator, the original Will not having beenproduced. The exercise should not be undertaken as DW1 does noteven know the signature of the testator. It is pointed out that suspiciouscircumstances surrounding the Will has not been explained. The argumentthat Will could be taken as a declaration of the severance of status isDdisputed. It is pointed out that the Will was communicated only with theproceedings under Section 145 which was after the death of theRangaswami Naidu on 01.06.1955 on which date the partition had openedunder the Mitakshra Law. It is also contended that the Section 33 of theEvidence Act does not apply. This is for the reason that under theEexplanation to Section 33 it would apply where a person claims underthe party in the other proceedings. It is contended that the appellant (theplaintiff in OS No.89 of 1983 apparently) has not claimed underKrishnammal. It is further contended that Section 14(1) of the HinduSuccession Act would apply.

F41. Learned senior counsel appearing on behalf of the respondent-Shri Raghavachari, contended as follows:

There was no partition. Paper publication dated 12.05.1955 spokeof an earlier division. The unilateral declaration is unacceptable.Suspicious circumstances include testator being bed ridden beingGin his last days as he was suffering from the cancer of the foodpipe and was being fed by a tube and not being conscious arereferred to. The question of letting in secondary evidence did notarise. The alleged Will contains inked portion and interlineations.It is further contended that OS No.71 of 1958 was filed by thewidow R. Krishnammal for partition of the joint family propertiesH

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

in which suit she had enlisted all 93 items of the joint familyproperties and claimed half share. The suit was compromisedand she accepted 16 items and confirmed rights to 77 items infavour of the sons of Lakshmiah Naidu. R. Alagiriswami and V.Kalyanaswami (among the appellants before us) filed OS No.36of 1963 and the children of Lakshmiah Naidu were also madeparties. The right of R. Krishnammal to enter into a compromisein OS No.71 of 1958 was challenged as according to them shehad only a life interest. R. Krishnammal, the defendant contendedthat she had absolute right under Section 14(1) and hence theauthority to enter into compromise. Entering into a compromise inOS No.36 of 1963 by taking two items out of 16 items after thelifetime of R. Krishnammal meant that the plaintiffs in OS No.36of 1963 accepted the superior rights of R. Krishnammal and theygave up their claim and accepted the sale to third parties effectedby R.Krishnammal of 5 items. Reference is also made to OSNo.732 of 1981 filed by the plaintiff also in OS No.36 of 1963. Inthe said suit plaintiffs have sought to divide the two items whichthey secured in OS No.36 of 1963. Our attention is drawn to thepleading in OS No.732 of 1981 to the effect that the propertiesbelong to one R. Krishnammal which was allotted to her share inOS No.71 of 1958 and the said properties were in her possessiontill her death. In other words, it is pointed out that right was not setup under the will. The right was abandoned in 1974 and whichabandonment was affirmed in 1981 thus attracting the principlesof estoppel, acquiescence and waiver. The contention is also takenthat OS No.89 of 1983 is hopelessly barred by limitation evenproceeding on the basis that there is a Will and that will is true,Section 14(1) of the Hindu Succession Act would apply.

42. Shri Mohan Parasaran, Senior Advocate would submit interalia that there is no pleading for the case of severance. The Will was notproved in accordance with law. The proceedings under Section 145 ofthe CrPC were summary in nature and not inter-parties. The subjectmatter was possession. Therefore, the evidence adduced in the saidproceedings should not be used. The right available to Krishnammalwas under Section 14(1). The bar under Order II Rule 2 applied.

43. Smt.Chithra Sampath, learned senior counsel appearing forsome of the respondents contended that plaint schedule property was in ABC

D

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H

Athe possession of the respondents (the children of Lakshmiah Naidu)right from the time of proceeding under Section 145. While this was theposition yet there is no prayer for recovery of possession in OS 89 of1983. Any such relief would be barred by limitation.Relying on thejudgment of this Court in (2007) 12 SCC 695,it is contended that sincethere is no pleading regarding division of status is O.S. No. 89 of 1983Band in the Written Statement in O.S. No. 649 of 1985, in spite of thespecific plea of the respondents in O.S. 649 of 1985 that there was nodivision, no amount of evidence can be looked into. There is no issueframed regarding division. The Appellate Court has relied on documentsnot filed in these proceedings. The content of the same was not knownCto the parties as they were not discussed and findings rendered. [This iswith reference to the Order passed, Exhibit-B2]. The proceedings underSection 145 of the CrPC are summary in nature and do not bind the CivilCourt. There is no communication to bring about a division of statusprior to the death. Reliance is placed on Madhusudan Das v. Narayanibai(Deceased) by Lrs. and others23. It is not a case where the Will is lost.DRelying on Benga Behera and another v. Braja Kishore Nanda andothers24, it is contended that only after pleading and proving loss oforiginal Will beyond reasonable doubt, that secondary evidence could beadduced. In regard to reliance placed on B7, our attention is drawn tothe Judgment of this Court in Sashi Jena and others v. Khadal Swain andEanother25. It is contended that the issue involved in the proceedings underSection 145 of the CrPC were related to possession and the issue of Willby Rangaswami was not considered, and therefore, two conditions inSection 33 of the Evidence Act are not met. The other condition isobviously the first condition in the proviso on the basis that that the plaintiffin O.S. No. 89 of 1983 is not tracing his title through the parties in SectionF145 proceedings. Suspicious circumstances, including even refusal bythe Testator as reflected in X1, to prefixing his thumb impression pointingto his mental condition, are pointed out. Incorrect statements in the Willare enlisted to impugn the Will. The case falls under Section 14(1) of theHindu Succession Act. Conduct of the plaintiff in O.S. No. 89 of 1983 inGfiling O.S. No. 732 of 1981, on the basis it was filed, renders it a fit casefor applying the principle in Krishna Beharilal v. Gulabchand26 and S.Shanmugam Pillai and others v. K. Shanmugam Pillai and others27. This 23(1983) 1 SCC 3524 (2007) 9 SCC 72825(2004) 4 SCC 236H26(1971) 1 SCC 83727(1973) 2 SCC 312

is besides pointing out the effect of filing O.S. No. 1936 of 1963 andendorsement in the Plaint that no relief was claimed against the otherdefendants, thus, making it a case where no right was reserved in O.S.No. 36 of 1963 to agitate their rights in respect of other properties in theWill.

THE PROPERTY AT STAKE

44. The property in dispute, in both the Suits, is the same. In theWill dated 10.05.1955, there were sixteen items. In O.S. No. 71 of 1958,R. Krishnammal was conferred with absolute rights in respect of sevenitems. The property involved in O.S. No. 36 of 1963 also related to theseven items, which figured in compromise Decree in O.S. No. 71 of1958, wherein R. Krishnammal was conferred absolute rights. O.S. No.632 of 1981 relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. Theitems which are scheduled in the present Suits are the items covered bythe Will dated 10.05.1955 other than the seven items, out of which, fourwere alienated and one was acquired. As far as O.S. No. 71 of 1958,filed by R. Krishnammal, is concerned, since she had an alternate reliefclaiming partition, it encompassed the entire property belonging to thecoparcenary consisting of 93 items. The extent of property involved inthe cases before us is a little over 36 acres.

THE EFFECT OF ORDER II RULE 2 OF THE CPC

45. The contention raised by the respondents is, inter alia, thatO.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code of CivilProcedure, 1908 (hereinafter referred to as ‘the CPC’, for short) CPC.This is for the reason that when two out of the four appellants haveinstituted O.S. No. 36 of 1963, they have scheduled only seven items inthe said Suit. It was open to the appellants to claim the relief which theyhave claimed in the present Suit. Having not sued in respect of the itemsof properties other than the items scheduled in O.S. No. 71 of 1958, theyare barred under Order II Rule 2 of the CPC. This is countered by theappellants by pointing out two aspects. Firstly, it is contended that underthe Will, though they had vested right, O.S. No. 36 of 1963 had to beinstituted when R. Krishnammal-the widow of Rangaswami Naidu hadmade preparations for alienating the items scheduled in O.S. No. 36 of1963 and which were covered by the Decree in O.S. No. 71 of 1958.Secondly, it is pointed out by the appellants that under the Will, R.

A

BC

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EF

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AKrishnammal-the Widow had a life estate in respect of the plaintscheduled properties. Consequently, as long as she was alive, a Suit ofthe nature, as is filed, viz., O.S. No. 89 of 1983, could not be filed, whenunder the Will, R. Krishnammal had the right. It is only upon her deaththat under the Will, a suit of the nature filed by them, could have beenfiled. R. Krishnammal died only in 1977.B

46. In order that provisions of Order II Rule 2 of the CPC apply,there must be identity of cause of action. Thus, on the one hand, while itwas open to the appellants to institute a protective action, as was doneby filing O.S. No. 36 of 1963, in respect of the properties scheduledthrein. On the basis of the cause of action projected in the said Suit, itCwould certainly not be a bar to the prosecution of the present Suit.

47. Order II Rule 2 of the CPC has been a subject matter of alarge number of decisions of this Court. Order II Rule 2 (2) of the CPCpostulates a situation where a plaintiff omits to sue in respect of anyportion of his claim or intentionally relinquishes any portion of his claim.DThen, he is debarred from suing in respect of the portion so omitted orrelinquished. A plaintiff entitled to more than one relief arising from thesame cause of action, can do two things. He may sue in respect of allthe reliefs arising from the same cause of action in the same suit. Hemay, if he omits to sue for one or more of the reliefs open to him underEthe same cause of action, seek leave of the court to sue for all suchreliefs, and if the court grants such leave, then, he may institute a suit,though based on the same cause of action in the earlier suit, in a freshsuit. The effect of not seeking the leave of the court, however, in regardto any of the reliefs, which it was open to him to sue for on the samecause of action, is that, he is barred from suing for any other reliefs soFomitted. The difference between Order II Rule 2(2)and Order II Rule2(3) of the CPC may be noticed. The law contemplates a distinctionbetween a case where a claim arising out of the cause of action is eitherintentionally relinquished or omitted to be sued upon. Such a claim cannotbe the subject matter of a fresh suit. However, when more than oneGreliefs are available stemming from the same cause of action, then,seeking further reliefs than sought in the first suit, except where leave isobtained, would be barred. However, present the grant of leave by thecourt, his subsequent suit seeking the reliefs which were originally notsought but for which leave is granted, is permissible. The principle ofthis provision is actually captured in Order II Rule 2 (1) of the CPCHwhich is that every suit is to include the whole of the claim which arises

out of the cause of action and which the plaintiff is entitled to make. Itfurther declares that it is open to a plaintiff to omit any portion of theclaim. However, the consequences of the same are declared in Order IIRule 2 (2) of the CPC. We notice that similar views have been expressedin the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v.Venturetech Solutions (P) Ltd.2013 (1) SCC 625. In paragraph 9, itwas held as follows:

“9. Order 2 Rule 1 requires every suit to include the whole of theclaim to which the plaintiff is entitled in respect of any particularcause of action. However, the plaintiff has an option to relinquishany part of his claim if he chooses to do so. Order 2 Rule 2contemplates a situation where a plaintiff omits to sue orintentionally relinquishes any portion of the claim which he is entitledto make. If the plaintiff so acts, Order 2 Rule 2 CPC makes itclear that he shall not, afterwards, sue for the part or portion ofthe claim that has been omitted or relinquished. It must be noticedthat Order 2 Rule 2(2) does not contemplate omission orrelinquishment of any portion of the plaintiff’s claim with the leaveof the court so as to entitle him to come back later to seek whathas been omitted or relinquished. Such leave of the court iscontemplated by Order 2 Rule 2(3) in situations where a plaintiffbeing entitled to more than one relief on a particular cause ofaction, omits to sue for all such reliefs. In such a situation, theplaintiff is precluded from bringing a subsequent suit to claim therelief earlier omitted except in a situation where leave of the courthad been obtained. It is, therefore, clear from a conjoint readingof the provisions of Order 2 Rules 2(2) and (3) CPC that theaforesaid two sub-rules of Order 2 Rule 2 contemplate twodifferent situations, viz., where a plaintiff omits or relinquishes apart of a claim which he is entitled to make and, secondly, wherethe plaintiff omits or relinquishes one out of the several reliefsthat he could have claimed in the suit. It is only in the latter situationswhere the plaintiff can file a subsequent suit seeking the reliefomitted in the earlier suit proved that at the time of omission toclaim the particular relief he had obtained leave of the court in thefirst suit.”

48. In this case, it is true that when O.S. No. 36 of 1963 wasinstituted, the earlier Suit brought by R. Krishnammal, viz., O.S. No. 71

ABC

D

E

F

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H

Aof 1958, had culminated in a compromise Decree. A perusal of the plaintitself would show that the plaintiffs in O.S. No. 36 of 1963 have advertedto the compromise in O.S. No. 71 of 1958. They have averred inparagraph 7 of the plaint that under the compromise, R. Krishnammalwas given the property scheduled in the said Suit (Suit No. O.S. No. 36of 1963) in lieu of the properties comprised in the Will and some cash.BThe rest of the properties comprised in the Will were given-up by her infavour of the respondents (the sons of Lakshmiah Naidu) it is averred.Thereafter, it is averred that the defendants claim, i.e., R. Krishnammalclaimed absolute title to the properties scheduled in the plaint and whichwas unsustainable both in law and facts. It is contended further that theCentire compromise Decree, more especially, conferring the absolute titleto the suit properties therein in R. Krishnammal, was not valid and bindingon the two plaintiffs and Defendants 3 and 4, who are the appellantsbefore us. It is further averred that the appellants have vested rights inthe properties. They were not impleaded in the suit (apparently, O.S.No. 71 of 1958). It was averred that R. Krishnammal did not representDthe interest of the appellants. In paragraph-8 of the Plaint, it is averredthat R. Krishnammal could not enlarge her rights by any compromise towhich the plaint items were, only some items of the properties comprisedin the Will and R. Krishnammal would, in law, be entitled to and couldclaim only the same interest, i.e., a life estate that she had under theEWill. Thereafter, there is reference to a Notice dated 05.10.1959 to R.Krishnammal that she had only a life estate and to desist from alienatingthem. R. Krishnammal is alleged to have sent a reply containing untenableallegations. It is averred that she claimed, inter alia, that the appellantswould not be entitled to claim anything under the Will and she was entitledto deal with the properties in any manner she liked. It is further averredFthat R. Krishnammal was then attempting to create nominal documentsin respect of the suit properties to defeat the rights of the appellants.Paragraph-11 of the Plaint being significant, may be noticed:

“11. The Will of R.V. Rangaswami Naidu comprised otherproperties also other than those described herein which under theGcompromise decree have been given by the 1[st] defendant to herhusband’s brother’s sons. The plaintiffs reserve their rights torespect of those properties to a separate action.”

49. It is accordingly that O.S. No. 36 of 1963 was filed seeking adeclaration that R. Krishnammal had only a life estate without any powersH

of alienation and the appellants have a vested remainder in the saidproperties under the Will. The word ‘said’ obviously refers to the itemsscheduled in OS No.36 of 1963.

50. The Suit (O.S. No. 89 of 1983) is fundamentally premised onthe death of R. Krishnammal in 1977 and the blossoming of the fullrights of the appellants under the Will. In other words, R. Krishnammalhaving a life estate under the Will was alive when O.S. No. 36 of 1963was filed. The absolute right under the Will, in favour of the appellants,dawned only with the death of the life estate holder. In this context, nodoubt, we must clarify one aspect. Section 119 of the Indian SuccessionAct, 1925 (hereinafter referred to as the “Indian Succession Act’, forshort) deals with the date of vesting of legacy when, inter alia, possessionis postponed. The provision with the relevant illustration reads as follows:

“119. Date of vesting of legacy when payment or possessionpostponed.—Where by the terms of a bequest the legatee is notentitled to immediate possession of the thing bequeathed, a rightto receive it at the proper time shall, unless a contrary intentionappears by the Will, become vested in the legatee on the testator’sdeath, and shall pass to the legatee’s representatives if he diesbefore that time and without having received the legacy, and insuch cases the legacy is from the testator’s death said to be vestedin interest.

Explanation.—An intention that a legacy to any person shallnot become vested in interest in him is not to be inferred merelyfrom a provision whereby the payment or possession of the thingbequeathed is postponed, or whereby a prior interest therein isbequeathed to some other person, or whereby the income arisingfrom the fund bequeathed is directed to be accumulated until thetime of payment arrives, or from a provision that, if a particularevent shall happen, the legacy shall go over to another person.

Illustrations:

(i) xxxxxx

(ii) xxxxxx

(iii) A fund is bequeathed to A for life, and after his death to B. Onthe testator’s death the legacy to B becomes vested in interest in B.

xxxxxxxxxxxx”

A

B

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D

E

F

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A51. It is also apposite that we notice Section 19 of the Transfer ofProperty Act, 1882 (hereinafter referred to as ‘the TP Act’, for short).Section 19 deals with vested interest. It reads as follows:

“19. Vested interest.—Where, on a transfer of property, aninterest therein is created in favour of a person without specifyingBthe time when it is to take effect, or in terms specifying that it is totake effect forthwith or on the happening of an event which musthappen, such interest is vested, unless a contrary intention appearsfrom the terms of the transfer. A vested interest is not defeatedby the death of the transferee before he obtains possession.

CExplanation.—An intention that an interest shall not bevested is not to be inferred merely from a provision whereby theenjoyment thereof is postponed, or whereby a prior interest in thesame property is given or reserved to some other person, orwhereby income arising from the property is directed to beaccumulated until the time of enjoyment arrives, or from a provisionDthat if a particular event shall happen the interest shall pass toanother person.”

52. Vested interest is different from the contingent interest. Thetwo have vastly different consequences. The death of R. Krishnammalbeing a certain event, the interest of the remaindermen is a vested interest.EThe commonality between Section 19 of the TP Act and Section 119 ofthe Indian Succession Act, and which is apposite to the facts of thiscase, is as follows:

When under the Will, a life estate was created in favour of R.Krishnammal with an absolute remainder in favour of the appellants, theFlegacy in favour of the appellants became vested from the time of deathof the testator. The possession and the enjoyment of the property,however, under the Will, was the domain of the life estate holder, viz., R.Krishnammal as long as she was alive. She, however, had no right toenlarge the boundaries of her right under the Will. This is, no doubt,Gsubject to the impact of supervening Legislation which will be discussedlater. By her unilateral act or by even joining together with the thirdparty, it would not be open to life estate holder to defeat the rights of theremainder men. The significance of a case being covered under Section119 Illustration (III), of the Indian Succession Act, is that with the deathof the Testator, the right in the property becomes vested with theH

remainder men, from the time of death of the Testator. In other words,upon the death of the legatee under the Will, in whom the absolute rightis vested after the transient possession and enjoyment of the life estateholder, a heritable right, which, in fact, arose at the time of the death ofthe testator, would confer legal rights upon the heirs of the absoluteowner under the Will when succession to his estate opens, should he notwish to leave a Will behind. Though the right is vested in the property,the enjoyment of the property with the absoluteness of a full ownerunder the Will could be done by the appellants only after the death of R.Krishnammal. Having thrown light upon the words ‘absolute rights’ inthe context of Section 119 of the Indian Succession Act, 1925, it is thisright which was sought to be made subject matter of a Decree fordeclaration and partition. It is clear that in the year 1963 or till the deathof R. Krishnammal, the rights as sought to be enforced, did not inherewith the appellants as explained. They could not have sought a partitionof the plaint scheduled properties while R. Krishnammal was alive.

53. We listen to the words of this Court again in Virgo Industries(Eng.) Private Limitedv. Venturetech Solutions Private Limited28 foundin paragraph-11 of the judgment:

“11. The cardinal requirement for application of theprovisions contained in Order 2 Rules 2(2) and (3), therefore, isthat the cause of action in the later suit must be the same as in thefirst suit. …”

54. Thus, be it the omission or intentional relinquishment of a claimarising out of a cause of action under Order II Rule 2(2) or not seekinga relief under Order II Rule 2 (3), the fatal consequences they pose, willarise only if the cause of action is the same. Though we are not obliviousto the fact that the plaintiffs in O.S. No. 36 of 1963 could have sought adeclaration about the compromise Decree in O.S. No. 71 of 1958, quaall the properties covered under the Will, we would think that, in thefacts of this case, the cause of Action in O.S. No. 36 of 1963 and thepresent Suit (O.S. No. 1989 of 1983) are clearly distinct, having regardto what we have discussed and having regard to the factum of the dateof the death of R. Krishnammal. It is significant to note that the cause ofaction in OS No.36 of 1963 was the threat of alienation of the itemsscheduled therein. We would perceive O.S. No. 36 of 1963 more as a AB

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Aprotective action by persons who had vested interest in the propertyunder Section 119 of the Indian Succession Act, 1925 (hereinafterreferred to as ‘the Indian Succession Act’, for short). We must also notbe unmindful of the principle that cause of action is not to be confusedwith the relief which is sought. It has more to do with the basis for therelief which is sought. We are only reiterating in this regard, what theBPrivy Council has laid down, when it said “it refers to the media uponwhich the plaintiff asked the court to arrive at a conclusion in hisfavour” (See Mohammad Khalil Khanv. Mahbub Ali Mian29).

THE IMPACT OF THE PROCCEDINGS AND THE DECREEPASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36 OF 1963 ANDCO.S NO. 732 OF 1981

ESTOPPEL, WAIVER, ACQUIESCENCE

55. O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal.Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The FifthDDefendant was the Executor of the Will. R. Krishnammal lay store bythe Will executed by her late husband V. Rangaswami Naidu. In thealternate, she also claimed a Decree for Partition, virtually giving-up herright under the Will and on the basis that V. Rangaswami Naidu diedintestate. The matter did not go to trial. It ended in a compromise. Thesubstance of the compromise is, a few of the items mentioned in theEWill, seven items were recognised as absolute properties of R.Krishnammal even though, under the Will, she had only a limited rightover those items. R. Krishnammal, for her part, under the compromiseDecree gave-up her rights in respect of the rest of the properties. Wenotice the argument of V. Raghavachari, learned Senior Counsel for theFrespondents, that there were ninety-three items which would have beenimpacted if a Partition Decree, as sought by R. Krishnammal, had beenpassed. In other words, there was a larger body of properties, apparentlywhich belonged to the joint family of the V. Rangaswami Naidu andLakshmiah Naidu. The properties covered by the Will were only a muchsmaller part of the larger body of property, which belonged to the jointGfamily. There is evidence to suggest that as found by the First AppellateCourt that R. Krishnammal may not have been in a position to demandher full rights as such and she was satisfied with what she could get. Butwhat is far more relevant is, the appellants were not parties to the

compromise. Appellants were not tracing their rights under R.Krishnammal. Appellants were given an absolute right under the Willexecuted by their uncle V. Rangaswami Naidu. The bequest in theirfavour created a vested interest within the meaning of Section 119 ofthe Indian Succession Act, 1925. Of course, the enjoyment and possessionof the property was to await the death of R. Krishnammal under theWill. It is quite clear that R. Krishnammal could not have also enlargedthe rights of the branch of Lakshmiah Naidu, once she accepted theWill, for she had only a life estate over the properties covered under theWill. The appellants were also not bound by her acts in entering into acompromise seeking to confer absolute rights qua those properties, whichwere subject matter of the Will, in respect of which, they had the right tobe enjoyed after the death of R. Krishnammal.

56. O.S. No. 36 of 1963 came to be filed by two out of the fourappellants, who are Legatees under the Will. They sought a declarationto the effect that R. Krishnammal could not enlarge her right and shecould not alienate the properties (the very seven items, which, under thecompromise Decree of O.S. NO. 71 of 1958, were recognised as herabsolute properties). It is true that the plaintiffs in O.S. No. 36 of 1963did not choose to include the plaint schedule properties in the presentSuit and seek a declaration qua them. There are two aspects to it, whichwe must bear in mind. Firstly, the cause of action for filing O.S. No. 36of 1963 was alleged to be the apprehension that R. Krishnammal wasabout to alienate the seven items over which she acquired absolute rightsunder O.S. No. 71 of 1958 (In fact, it was alleged that one item wasalienated). Secondly, we have already noticed paragraph-11 of the Plaint.Therein, the plaintiffs have revealed their mind to be that they intend topursue their right qua other properties apparently which are the plaintschedule properties in O.S. No. 89 of 1983. We have already indicatedthat the bar of Order II Rule 2 of the CPC will not apply. There is somemerit 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 compromiseDecree in O.S. No. 71 of 1958. As on the date of the compromise inO.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 beenacquired by the Government. As regards Item Nos. 5 and 6 in the plaintschedule 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 theterms of the Decree in O.S. No. 71 of 1958, under which R. Krishnammal AB

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Awas 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 duringher lifetime and without the power of alienation. In other words, theterms of the Will dated 10.05.1955 are seen reflected and reinforced bythe compromise Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 ofB1958 and O.S. No. 36 of 1963, there is no adjudication by the court. Asto what is the expediency which led the parties to enter into thecompromise Decree, may not be decisive of the legal rights of the partieswhich we are called upon to pronounce. The action of the branch ofLakshmiah Naidu, who had also joined as parties in O.S. No. 36 of 1963,Cand who were represented by the Counsel, may not obviate the need forproving the Will on the part of the appellants.57. The further aspect to be noticed is that in the compromiseDecree in O.S. No. 36 of 1963, our attention is invited to the fact thatthe plaintiffs have stated that they are not seeking any relief against theDother defendants which include the Lakshmiah branch. From this, it issought to be contended that the interest of the branch of LakshmiahNaidu, which stood secured under the compromise Decree of O.S. No.71 of 1958, whereunder R. Krishnammal had given up her rights in regardto all properties other than the seven items over which she was conferredabsolute rights, was left undisturbed and unimpeached. This conduct isEemphasised before us, to point out that it would constitute a bar by wayof principles, including estoppel and acquiescence for the appellants ininstituting O.S. No. 89 of 1983 in regard to the plaint schedule propertiesover which R. Krishnammal had give-up all her rights in O.S. No. 71 of1958. It is in this regard, we must bear in mind that even in the Plaint, in FO.S. No. 36 of 1963, the properties, other than the seven items, wereadmittedly not the subject matter of the Suit. More importantly, what isstated in the compromise is that no relief is claimed against the otherDefendants in the said Suit. It is equally true that by the passing of theDecree 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. 5Gand 6 in O.S. No. 36 of 1963, over which the rights of R. Krishnammalwere limited to a life estate with a taboo against alienation bringing it intune with the terms of the Will under the Compromise did not matter forthe branch of Lakshmiah Naidu. This is for the reason that as far as they were concerned, they were already bound by the compromiseHDecree in O.S. No. 71 of 1958 whereunder R. Krishnammal had been

conferred absolute rights in regard to Item nos. 5 and 6, interalia, andthey had lost all their rights. Therefore, the arrangement inter se betweenthe appellants and R. Krishnammal, qua those properties, was of noconcern to them. What they were interested in was the rest of theproperties over which they were given absolute rights under thecompromise Decree in O.S. No. 71 of 1958. The result is that on theone hand the terms of the Will came to be reiterated under the compromiseDecree in O.S. No. 36 of 1963 qua Item Nos. 5 and 6. The Decree inO.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 amatter which is entirely between the appellants and R. Krishnammal. Infact, the Lakshmiah Naidu branch, though made parties to thecompromise, were not actually parties to the Decree. They have notsigned as parties to the compromise Decree. Therefore, neither theappellants nor the respondents can derive any advantage from either thefiling of O.S. No. 36 of 1963 or the passing of the compromise Decreetherein.

The plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732of 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 toO.S. No. 36 of 1963. It is obvious that they cannot rely upon principlesof res judicata or constructive res judicata based on O.S. No.732 of1981, being not parties to the said Suit. What, however, is sought to beurged, 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 ofaction 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 overthe property and this was inconsistent with the case set-up in the presentSuit. It was contended that the appellants were estopped fromundertaking such a course of action. We could also deduce the followingconduct. The cause of action in O.S. No. 732 of 1981 did involve drawingupon 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 acknowledgedrights of R. Krishnammal who also gave-up her rights to properties whichincluded the plaint schedule items in the case. Though, we are not obliviousto the dimensions projected, we would not think that Right to Property, ifotherwise is established in favour of the appellants, it would be lost. Itcannot be treated as a case of abandonment of rights qua the plaintschedule properties (See in this regard Sha Mulchand & Co. Ltd. (In AB

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ALiquidation), By Official Receiver, High Court, Madrasv. Jawahar MillsLimited, Salem30 and Dr. Karan Singhv. State of J&K and another31.The respondents who were not parties to O.S. No. 732 of 1981,cannotset-up a case of estoppel.

WHETHER THE WILL DATED 10.05.1955 HAS BEENBPROVED

[Sections 33, 68 and 69 of the Evidence Act]

58. The Will in question is an unprivileged Will. The mode of makingan unprivileged Will is provided in Section 63 of the Indian SuccessionAct. In order that a valid Will be made not only, it is necessary that theCTestator must execute the document but also the execution must beattested by at least two witnesses. What is required is not ordinarywitnessing of a document but attestation which is as is provided in Section63 of the Indian Succession Act.

59. Section 68 of the Indian Evidence Act, 1872 (hereinafterDreferred to as ‘the Evidence Act’, for short) deals with proof of executionof a document required by the law to be attested. A perusal of the samemakes it clear that in the case of a Will, being a document which isrequired to be attested by Section 63 of the Indian Succession Act, ifthere is an attesting witness alive and subject to the process of the courtEand capable of giving evidence, then, the Will can be proved only if oneof 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 suchattesting witness can be found, or if the document purports toFhave been executed in the United Kingdom, it must be provedthat the attestation of one attesting witness at least is in hishandwriting, and that the signature of the person executing thedocument is in the handwriting of that person.”

61. Though the expression used is ‘if no such attesting witnessGcan be found, inter alia, it bears the following interpretation’. The word‘such’ before ‘attesting witness’ is intended to refer to the attesting witnessmentioned 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 98H31(2004) 5 SCC 698

would cover a case of an incapacity to tender evidence on account ofany physical illness. It would certainly embrace a situation where theattesting witnesses are dead. Should the attesting witness be insane, theword “found” is capable of comprehending such a situation as one wherethe attesting witness, though physically available, is incapable ofperforming the task of proving the attestation under Section 68 theEvidence Act, and therefore, it becomes a situation where he is notfound.

62. In Babu Singh and othersv. 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 attestingwitness is either dead or out of the jurisdiction of the court or keptout of the way by the adverse party or cannot be traced despitediligent search. Only in that event, the will may be proved in themanner indicated in Section 69 i.e. by examining witnesses whowere 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 provedkeeping in view the provisions of Section 63 of the SuccessionAct and Section 68 of the Act, in the event the ingredients thereof,as noticed hereinbefore, are brought on record, strict proof ofexecution 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 thejudgment of this Court in K. Laxmananv. Thekkayil Padmini and others33:

“32. Since both the attesting witnesses have not beenexamined, in terms of Section 69 of the Act it was incumbentupon the appellant to prove that the attestation of at least oneattesting witness is in his handwriting and that the signature of theperson executing the document is in the handwriting of that person.DW 3, who was an identifying witness also in Ext. B-2, specificallystated that he had not signed as an identifying witness in respectof Ext. B-2 and also that he did not know about the signature in 32(2008) 14 SCC 754

33(2009) 1 SCC 354

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AExt. B-2. Besides, considering the nature of the document whichwas a deed of gift and even assuming that no pleading is filedspecifically denying the execution of the document by theexecutant and, therefore, there was no mandatory requirementand obligation to get an attesting witness examined but still thefact remains that the plaintiff never admitted the execution of theBgift deed and, therefore, the same was required to be proved likeany other document.”

64. In this case, there is no dispute that both the attesting witnesseswere not alive at the relevant time. The questions, therefore, would thenarise as follows:C

a.Is it still the requirement of law when both the attestingwitnesses are dead that:

under Section 69 of the Evidence Act, the attestation asrequired under Section 63 of the Indian Succession Act,Dviz., attestation by the two witnesses has to be proved? Or Is it sufficient to prove that the attestation of at least oneattesting witness is in his handwriting, which is the literalcommand of Section 69 of the Evidence Act apart fromproving the latter limb?

Eb.The further question which would arise is whether exhibitB7, which is the copy of the evidence of the one of theattesting witnesses in the Will, in the proceedings underSection 145 of the CrPC sufficiently fulfils the requirementsunder Section 33 of the Evidence Act?

F65. We will first take-up the issue relating to the impact of Section33 of the Evidence Act. It is not a matter which is gone into by the HighCourt. Section 33 of the Evidence Act reads as follows:

“33. Relevancy of certain evidence for proving, insubsequent proceeding, the truth of facts therein stated.—GEvidence given by a witness in a judicial proceeding, or beforeany person authorized by law to take it, is relevant for the purposeof proving, in a subsequent judicial proceeding, or in a later stageof the same judicial proceeding, the truth of the facts which itstates, when the witness is dead or cannot be found, or is incapableof giving evidence, or is kept out of the way by the adverse party, H

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

or if his presence cannot be obtained without an amount of delayor expense which, under the circumstances of the case, the Courtconsiders unreasonable:

Provided— that the proceeding was between the same parties ortheir representatives in interest; that the adverse party in the first-proceeding had the right and opportunity to crossexamine; thatthe questions in issue were substantially the same in the first as inthe second proceeding.

Explanation.—A criminal trial or inquiry shall be deemed tobe a proceeding between the prosecutor and the accused withinthe meaning of this section.”

(Emphasis supplied)

66. The contention of the respondents appears to be only that, inthe proceeding under Section 145 of the CrPC, the tussle was betweenR. Krishnammal and the Executor of the Will who were styled as AParty Nos. 1 and 2 and the B Party, viz., the respondents. The presentappellants were not parties. Therefore, the proceeding was not betweenthe same. The other limb of the first proviso to Section 33, viz., that inorder that Section 33 of the Evidence Act applies, the proceeding isbetween their representatives in interest is not fulfilled. The contentionseen raised is that the appellants, who are the remainder men under theWill, cannot be treated as representatives in interest of R. Krishnammal.

67. Further the nature of Section 145 proceedings is highlightedas not one attracting the 3[rd] proviso. The interpretation of the word‘representative in interest’ has fallen for consideration before the PrivyCouncil in the decision reported in Krishnayya Surya Rao Bahadur Garuand others (Defendants)v. Venkata Kumara Mahitathi Surya RaoBahadur Garu34 wherein the Court referred to a large body of case lawand after an exhaustive review, held as follows:

“20. Nothing would have been easier, had it been desiredso to do, than to follow the English rule, or to require that the partyto the first proceeding should be privy in estate with or thepredecessor in title of the party to the second proceeding. Insteadof using such well-known terms, a much more elastic phrase isemployed, and one which is neither technical nor a term of art.

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AThe legislative authority was, it must be remembered, dealing witha country in which (amongst other institutions) the Hindu jointfamily involved representation of interest of a kind and degreeand in circumstances unfamiliar to English law. In view of thisfact, their Lordships cannot but surmise that the omission of strictEnglish legal terminology and the employment of the less restrictedBphrase ‘representatives in interest’’ was deliberate and intentional.It will be a question depending for its correct answer upon thecircumstances of each case where the question arises, whetherthere was a party to the first proceeding who was a representativein interest of a party to the second proceeding within the widerCmeaning which their Lord-‘ ships attribute to these words. Turningback to the first proviso, it requires, in their Lordships’ view, thatthe party to the first proceeding should have represented in interestthe party to the second proceeding in relation to the question inissue in the first proceeding to which “the facts which the evidencestates” were relevant. It covers not only cases of privity in estateDand succession of title, but also cases where both the followingconditions exist, viz. (1) the interest of the relevant party to the-second proceeding in the subjectmatter of the first proceeding isconsistent with and not antagonistic to the interest therein of therelevant party to the first proceeding; and (2) the interest of bothEin the answer to be given to the particular question in issue in thefirst proceeding is identical. There may be other cases coveredby the first proviso; but if both the above conditions are fulfilled,the relevant party to the first proceeding in fact represented in thefirst proceeding the relevant party to the second proceeding inregard to his interest in relation to the particular question in issueFin the first proceeding, land may grammatically and truthfully bedescribed as a representative in interest of the party to the secondproceeding.”

[Emphasis supplied]

[Emphasis supplied]

G68. The word ‘representative in interest’, in other words, is to beunderstood liberally and not confined to cases where there is privity ofestate and succession of title. He is be such representative of the partyin the later proceedings. Answering the two tests, which have beenevolved in the facts of this case, the respondents cannot contend thatthe interest of the appellants was inconsistent with the interest ofR.H

Krishnammal and in particular the executor of the Will. It was certainlynot antagonistic to their interest. The Will was indeed set-up by R.Krishnammal and the executor. Therefore, it can be safely concludedthat the interest of both persons comprised of A Party, which was theprotection of the possession, was also in the interest of the appellants. Itmay be true that the appellants do not derive their title under R.Krishnammal. But the requirements under Section 33 of the EvidenceAct are not to be confused with the ingredients to be fulfilled even in acase under Section 11 of the CPC. It cannot be contended that theinterest of the appellants lay in answering the question posed in Section145 of the CrPC proceedings against R. Krishnammal and the Executorin favour of the respondents, who were parties before the Magistrate.The case of the Will was explicitly set up as also the declaration dated10.5.1955 and further developments. Therefore, the contention basedon the third proviso also does not appeal to us. Also not only was thereopportunity to cross examine to the B party, it was availed of. Theapplicability of Section 33 of the Evidence Act also does not dependupon 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 (depositionby the Executor) indeed is evidence which was tendered in the previousproceeding before the Magistrate who was certainly authorised by lawto take evidence, which is relevant for proving the truth of the factscontained therein under Section 33.

69. The further question is, as posed by us, whether despite thefact that both the attesting witnesses were dead, the matter to be provedunder Section 69 of the Evidence Act, is the same as a matter to beproved under Section 68 of the Evidence Act. In other words, underSection 68 of the Evidence Act, in the case of a Will covered underSection 63 of the Indian Succession Act, it is indispensable that at leastone attesting witness must not only be examined to prove attestation byhim 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 isopen to prove the will and the attestation by examining a single attestingwitness, it is incumbent upon him to prove attestation not only by himselfbut also attestation by the other attesting witness. It is the contention ofthe respondents that under Section 69 of the Evidence Act, Exhibit-B7falls short of the requirement of law that attestation of the execution byboth the witnesses be proved. After taking us through Exhibit-B7, it waspointed out that it is clear that even in the said deposition, the witness AB

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Ahas not deposed about the attestation by the other witness, viz., Dr. C.S.Ramaswamy Iyer. On the other hand, the contention of the appellantsand which has found approval with the First Appellate Court, is thatSection 69 of the Evidence Act only requires that the attestation of atleast one attesting witness in his handwriting be proved. This is, of courseapart from proving that the signature of the testator executing theBdocument is in the handwriting of that person.

70. We are of the view that Section 69 of the Evidence Actmanifests a departure from the requirement embodied in Section 68 ofthe Evidence Act. In the case of a Will, which is required to be executedin the mode provided in Section 63 of the Indian Succession Act, whenCthere is an attesting witness available, the Will is to be proved by examininghim. He must not only prove that the attestation was done by him but hemust also prove the attestation by the other attesting witness. This is, nodoubt, subject to the situation which is contemplated in Section 71 of theEvidence Act which allows other evidence to be adduced in proof of theDWill among other documents where the attesting witness denies or doesnot recollect the execution of the Will or the other document. In otherwords, the fate of the transferee or a legatee under a document, whichis required by law to be attested, is not placed at the mercy of the attestingwitness and the law enables proof to be effected of the document despitedenial of the execution of the document by the attesting witness.E

71. Reverting back to Section 69 of the Evidence Act, we are ofthe view that the requirement therein would be if the signature of theperson executing the document is proved to be in his handwriting, thenattestation 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,Fthe requirement pertinent to Section 68 of the Evidence Act that theattestation by both the witnesses is to be proved by examining at leastone attesting witness, is dispensed with. It may be that the proof givenby the attesting witness, within the meaning of Section 69 of the EvidenceAct, may contain evidence relating to the attestation by the other attestingGwitness but that is not the same thing as stating it to be the legalrequirement under the Section to be that attestation by both the witnessesis to be proved in a case covered by Section 69 of the Evidence Act. Inshort, in a case covered under Section 69 of the Evidence Act, what is tobe proved as far as the attesting witness is concerned, is, that theattestation of one of the attesting witness is in his handwriting. TheH

language of the Section is clear and unambiguous. Section 68 of theEvidence Act, as interpreted by this Court, contemplates attestation ofboth attesting witnesses to be proved. But that is not the requirement inSection 69 of the Evidence Act.

72. Now, let us turn to Exhibit-B7. It is apposite that we advert towhole of it:

“I know the deceased Rangaswami Naidu. He wrote a willand asked me to attest it. I went. He asked me to attest it. The-first signature is mine. The will is Ex. P68. Every page has beensigned by the deceased. After he signed the last page, I signed aswitness. Doctor C.S. Ramaswami Iyer is the Doctor atRamanathapuram. He was also present. I as present when it wasregistered. The Sub Registrar came home. I have also signedbefore the Sub Registrar. The deceased was sick. He was able tounderstand things. I am an income tax practitioner.

Cross Exam.: At that time I was living in a place 1½ or 2miles away from the house of the deceased. I went to thedeceased’s house at about 10:30 a.m. I signed at about 11-30 to12 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 camepurposely for attesting this document. Sub Registrar came laterat about 1 P.M. I remained till the arrival of the Sub Registrar. Butthe Doctor went away. The Sub Registrar went away at 1-30 to2 P.M. Doctor did not return later. Doctor was there for a totalperiod of 15 minutes. I remember he gave an injection. But I amnot sure of it. When I went there the will was already typed.Rangasami Naidu was lying on the bed. He was being fed bytube. When I was there he was fed once. But I do not rememberwhether any medicine was given. The ink portions in pages 1 and4 I do not know who had written it in the body of the document. Ithas not been subscribed here as to who wrote it or typed it. Thedeceased had an alisces in the head and he was suffering. Hewas in pain and suffering. I gave him the minimum trouble asinterested in his health. At times in order to recoup from the painand exhaustion he would lie down quietly. Not to disturb him weasked ______ (sic) restraint. I cannot say whether at every minutehe was conscious or half conscious or in a coma.

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ARe-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 admittedto be correct. (Sd) K.S. Narasimhan, EFCm. 1-2-56.”

(Emphasis supplied)

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73. We must also be detained at this stage by another aspectabout Section 69 of the Indian Evidence Act. Section 69 speaks aboutproving the Will in the manner provided therein. The word ‘proved’ isdefined in the Evidence Act in Section 3, as follows: - C“Proved.- A fact is said to be proved when, after considering thematters before it, the Court either believes it to exist, or considersits existence so probable that a prudent man ought, under thecircumstances of the particular case, to act upon the suppositionthat it exists.”

D74. Therefore, the question would be whether having regard tothe evidence before it, the Court can believe the fact as projected in theevidence as proved. We say this to clarify. In a case, where there isevidence which appears to conform to the requirement under Section69, the Court is not relieved of its burden to apply its mind to the evidenceand find whether the requirements of Section 69 are proved. In otherEwords, the reliability of the evidence or the credibility of the witnesses isa 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 andwhich we have found relevant under Section 33, establishes that he wasan Income Tax Practitioner. He was beckoned by Rangaswami Naidu,Finforming him that he had written a Will and it was to be attested. Hewas asked to in fact to attest even upon going there on that day. Hespeaks about the testator signing on every page and also, he has spokenabout him signing. He, no doubt, therefore establishes requirement ofSection 69 in regard to the signature of one of the attesting witnessesbeing proved in his handwriting. We see no reason to doubt the testimony.GAs far as signature of the testator is concerned, apart from B7 and B13,the executor has spoken of the testator signing. Also, PW1 has deposedthat the Will was shown to him he admitted that every page is containedwith the paternal uncle signature. Thus, the requirement of proof of Willunder Section 69 are fulfilled.H

WHETHER RECEPTION OF B10 AS SECONDARYEVIDENCE LEGAL?

WHETHER RECEPTION OF B10 AS SECONDARYEVIDENCE LEGAL?

75. Whether the acceptance of B10 which is the certified copy ofthe Will is vulnerable in law or on facts. The Trial court has found thatB68 is the original Will which was produced before the Magistrate in theproceedings under Section 145 of the CrPC This is after over-ruling thecontention of the respondents that B68 was not the original Will. TheTrial Court has found little merit in the objection against secondaryevidence of the Will, viz., certified copy of the registered Will beingproduced. We have in fact evidence in the form of B7 and X1 to showthat the Will came to be registered.

76. The original of the Will according to the case of the appellantscontinued to be with the executor who was in fact the nephew ofR. Krishnammal, the widow of Rangaswami Naidu. An attempt wasmade to get the original Will produced at the relevant time when theexecutor had passed away, on the basis that his son was in possession ofthe original Will. He was called upon to produce the Will by C1. Heresponded by pointing out that he was not having the original Will withhim. The finding of the Trial court as affirmed by the First AppellateCourt is that circumstances warranted admission of secondary evidenceto prove the Will. We see no reason to take a different view and theview taken by the High Court cannot be sustained.

77. It may be true that in the proceedings in O.S. No. 71 of 1958and O.S. No. 36 of 1963, the Will was projected first by R. Krishnammaland thereafter, the plantiffs in O.S. No. 36 of 1963 who are among theappellants before us. However, the matter did not go to trial. We arealso of the view that the Will must be proved under the Evidence Actand not with reference to plea of estoppel as taken by the appellantsbased on the decree in O.S. No. 36 of 1963, being based on the Will andthe respondents having participated not as parties even to the compromisebut it is a far cry from finding that the facts of the case did not warrantadmission of secondary evidence regarding the Will.

THE WILL: WHETHER IT IS THE GENUINE WILL OFRANGASWAMI NAIDU? WHETHER IT IS VITIATED ON ANYGROUND?

78. We notice the following to be the relevant portions of the Will:

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“Last Will and testament executed this 10[th] day of May1995 by Sri V. Rangaswami Naidu MLC son of EndapillarVenkataswami Naidu of Uppilipalayam Coimbatore Waluk I ownthe immovable properties a set out in Sch.A hereto absolutelyexclusively and in my own right. These properties include propertiespurchased by me and properties that has been allotted to me inthe family partition between me and my brother Shri R.V.Lakashmaiah Naidu in 1932 and which are in my exclusivepossession and enjoyment since that date I have been a dividedmember from 1932 onwards and have continued to be so till thisdate. I have also to avoid any uncertainties in this regard made anopen declaration of my divided status today. Besides the immovableproperties I am entitled to the cash and other amounts as set outin Sch.B hereto I fell that I should make a deposition of my assetsin the manner herein indicated in view of my recent ill health andfailing strength and also in view of my diffidenceth as I may notlive long enough I am not in full possession of my mental powersand I am making this will and Testament after deep deliberationand consideration and with the best of intentions appoint SriRamachandra Baidu son of Kangallar Venkataswami Naidu ofMetupalayam to be the executor under the will. I bequeath all mylanded properties and my house set out in Sch.A to my wife forlife. she has no powers of alienation but she is entitled to enjoy theincome from the lands and also to manage them. It is my earnestwish that out of the income from the landed properties in my wifeshould meet the expenses of presents on ceremonial and specialoccasion in my sisters families after meeting her own familyexpenses maintenance of the house careto. After my wife’slifetime the properties V. Rangaswami, 2. ….. in Sch A shall belongequally and absolutely to the following persons who are my sisterssons 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 earnestwish that these four person should keep the properties for theirrespective families and should not dispose them off, but in case ofneed they should sell them in the first instance to any of the othershares. The cash and other securities set out in Sch B valued atRs.44,000/- (Rupees Forty Four thousand) should be realized as

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

early as possible after my death and shall be paid to the followingperson in the following manner 1. Srimathi Amirthim Wife of SriKalyanaswami afiresaid Rs.10,000.0.0, 2. Ammaniammal mysecond sister Rs.10,000.0.0 3. Nagammal my third sisterRs.8,000.0.0 4. Ranganayakiammal my forth sister Rs.8,000.0.05. Krishnammal my fifth and last sister Rs.8,000,0.0 I have alreadymade some other provisions for my wife apart from the propertiesunder the will. they are not effected in any manner by theseprovisions. She is entitled to the movable propertiies not coveredby the schedules hereto. … V. Rangaswami, 3. … This is my lstwill and Testament All previous dispositions and intendeddispositions are hereby finally revoked. This will shall come intoeffect after my life time. …”

79. It will be seen from the Will that the Testator has recited in theWill that he owns the immovable properties set out in Schedule Aexclusively and in his own right. The said properties are alleged to includeproperties purchased by him and properties allotted to him in his familypartition between him and his brother in 1932. He further states that hehas been a divided member from 1932 onwards and has continued to beso till the date of the Will. Finally, he states that, he, in order to avoid anyuncertainties, made an open declaration of his divided status today. TheWill further refers to amounts which he is entitled to as set out in ScheduleB. Entire properties in Schedule A, including his house, is set out for hiswife without powers of alienation. He further states that he expects hiswife to make use of the income from the landed properties to be used tomeet the expense of presents on ceremonial and special occasions in hissisters families after meeting her own family expense, maintenanceofthe house. There is a remainder, absolute in nature, given to his fourLegatees, i.e., his Nephews through his four sisters. He expressed hisearnest wish that the four Legatees should keep the properties for theirrespective 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 madeother provisions for his wife apart from the properties under the Will.

80. There is one aspect which is pressed before us also, in regardto the same, by the respondents. It is contended that the fact that thereis no oral partition between brothers in 1932, makes it out to be a casewhere the Testator has made a rank incorrect statement in the Willwhich shrouds the Will itself as one which is not genuine.

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A81. In regard to the aspect about incorrect statement in the will, itis to be noticed that making a totally incorrect statement in a will arousessuspicion. This is on the principle that the testator would not make anincorrect statement when he makes a will. If he makes a rank incorrectstatement the inference is that he would not have made that will. Thisprinciple will not be applicable in the facts of this case. Making theBstatement that there was a partition in 1932 and that the properties wereallotted to him, is apparently the understanding of the testator. This issuegenerated debate in the courts. The view expressed by the testator didnot find favour with the courts but that is a far cry from describing it asan outright false statement. As long as it is a part of the will which isCmade by the testator and he believed in it the finding given by the courtin this regard will not advance the case of the respondent.

82. We further notice the following aspects:

82. We further notice the following aspects:

Rangaswami Naidu was an educated man. He was a formerM.L.C.. He was an affluent man. He has no issues. He was affectionateDtowards his sisters. He has chosen to favour each branch of his sistersby selecting one son out of each branch to be the legatees in whom theproperty were to vest. In fact, he has also provided that the propertiesare to remain in the family and should any of the legatees wish to sell, itshould be offered to the other legatees. As far as his health is concerned,Eit is well settled that the requirement of sound disposing capacity is notto be confused with physical well-being. A person who is having a physicalailment may not therefore berobbed of his sound disposing capacity.The fact that a person is afflicted with a physical illness or that he is inexcruciating 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 theFwill reflects what he has chosen to decide. While it may be true that hewas suffering from cancer of the throat there is nothing to indicate in theevidence that he was incapable of making up of his own mind in thematter in leaving a will behind. The fact that he was being fed by a tubecould hardly have deprived him of his capacity to make a will. We furtherGnotice that the will is a registered will. The Registrar came home. ExhibitX1 would show that Rangaswami Naidu on being asked to put his thumbimpression, he insisted on signing. This course of conduct, in our view,has been correctly appreciated by the first appellate court, the final courton facts. The inference to the contrary sought to be drawn does notappeal to us. From the evidence, it is also clear that the other attestingH

witness was Dr. C.S. Ramaswamy Iyer a fairly renowned Physicianand family friend. PW1, the witness on behalf of the respondent hashimself admitted publishing the obituary on the passing away of the saiddoctor. PW1 speaks about him as a gentleman and he won’t act illegalmanner. In B7 the other attesting witness has also spoken about thedoctor remaining there and no doubt leaving before the Registrar came.We have already held that the requirement of Section 69 of the EvidenceAct stands fulfilled otherwise. The fact that no bequest is made in favourof the sons of Lakshmiah Naidu cannot be treated as a suspiciouscircumstance. It is clear that Lakshmiah Naidu was extremely wealthy.Making the nephew of his wife executor of the will, in fact, does assureus of the absence of any foul play on the part of the legatees. In hisevidence [B13 which is the evidence given by the Executor in 145proceedings], he has spoken about the testator expressing his desire on2-3 occasions about wanting to executing a will. From the evidenceadduced by PW1 also, we would think that the view taken by the firstappellate court regarding the will cannot be characterized as a perverseone warranting interference in the second appeal.

83. Lastly, while the burden to prove the will and to satisfy theconscience of the court that there are no suspicious circumstances or ifthere are any to explain them is on the propounder of the will, the burdento prove that the will is procured by coercion, undue influence or fraud ison the respondents who have alleged the same. The evidence of PW1would show that the respondents have failed to prove that the will isvitiated in this regard. Therefore, we would arrive at the conclusion thatthe will was indeed executed by R. Naidu and was his last will.

84. Undoubtedly, Rangaswami Naidu and Lakshmiah Naidu whowere brothers, were co-parceners in a Hindu Coparcenary. The case ofthe appellants is based upon their being a severance of the Hindu JointFamily. The expression ‘the Hindu Joint Family’ is in the context of thiscase, to be understood as the coparcenary. The argument of therespondents representing the Lakshmiah Naidu branch on the other handis that, when Rangaswami Naidu died on 01.06.1955 and when, therefore,succession to his estate opened, Lakshmiah Naidu succeeded to theestate of his brother as Rangaswami Naidu died issueless and, therefore,under the law as it stood on that date, Lakshmiah Naidu succeeded tothe property by survivorship.

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A85. The case of the appellants is based, in fact, on their havingbeen an oral partition between the two brothers in the year 1932. ThreeCourts have found no merit in this contention. In fact, the appellants alsodid not pursue this line of argument before us. On the other hand, thecontention which is pressed before us is that when such successionopened to the estate of Rangaswami Naidu on 01.06.1955,RangaswamiBNaidu having published B1 notice dated 10.05.1955, a disruption of thejoint family was effected and, therefore, Rangaswami Naidu died separatefrom his brother. Still furthermore, the appellants case is founded uponB10-Will executed and also got registered on 10.05.1955 by RangaswamiNaidu.CINTEREST IN HINDU JOINT FAMILY; PARTITION; ITSIMPLICATIONS

86. In the light of these contentions, it is necessary to examine theconcepts relating to Hindu Joint Family, the effect of its continuance, themanner in which, the joint family comes to an end and also the distinctDshades of meaning to the expression ‘division of a joint family’. Also, wemust consider the right of a Hindu in regard to making a Will and thelimitation on the same.

87. In Appovierv. Rama Subba Aiyan and others35, the PrivyCouncil had occasion to consider these concepts. The appellants beforeEthe Court, who were unsuccessful in all the three courts in India,contended that despite there been a division in a Hindu Joint Family, itwas not still effective insofar as it had not culminated in a partition bymetes and bounds. It was dealing with this question that the court held,inter alia, as follows:F“1. This is an appeal brought from a decree of the Sudder Courtat Madras, which affirmed the decree of the Zillah Court ofTinnevelly, which itself affirmed the original decree of the SudderAmeen of that District. It is, therefore, an appeal from threedecrees, unanimous in rejecting the claim of the Appellant. TheGpresent appeal is founded upon an allegation that certain property(shares in which are claimed by the Appellant) continues theundivided property of the family of which the Appellant was amember, and which was originally an undivided family. Thefoundation of the defence to the Appellant’s claim is an instrument,

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 stronglycontended for by the Appellant. One of them is, that if there be adeed of division between the members of an undivided family,which speaks of a division having been agreed upon, to bethereafter made, of the property of that family, that deed isineffectual to convert the undivided property into divided propertyuntil it has been completed by an actual partition by metes andbounds.

3. Their Lordships do not find that any such doctrine has beenestablished; and the argument appears to their Lordships toproceed upon error in confounding the division of title with thedivision of the subject to which the title is applied.

4. According to the true notion of an undivided family in Hindoolaw, no individual member of that family, whilst it remains undivided,can predicate of the joint and undivided property, that he, thatparticular member, has a certain definite share.No individualmember of an undivided family could go to the place of the receiptof rent, and claim to take from the Collector or receiver of therents, a certain definite share. The proceeds of undivided propertymust be brought, according to the theory of an undivided family,to the common chest or purse, and then dealt with according tothe modes of enjoyment by the members of an undivided family.But when the members of an undivided family agree amongthemselves with regard to particular property, that it shallthenceforth be the subject of ownership, in certain defined shares,then the character of undivided property and joint enjoyment is-taken away from the subjectmatter so agreed to be dealt with ;and in the estate each member has thenceforth a definite andcertain share, which he may claim the right to receive and toenjoyin severalty, although the property itself has not been actuallysevered and divided.

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12. Then, if there be a conversion of the joint tenancy of anundivided family into a tenancy in common of the members ofthat undivided family, the undivided family becomes a divided family AB

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Awith reference to the property that is the subject of that agreement,and that is a separation in interest and in right, although notimmediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separateright.”

(Emphasis supplied)

B

88. It is now apposite to notice the judgment of the Privy Councilreported in Girja Baiv. Sadashiv Dhundiraj and others36. In the saidcase, one of the members of a Joint Mitakshara Hindu Family served anotice expressing his desire to get partitioned his one-third share.CThereafter, he instituted the suit for partition. During the pendency ofthe suit, the plaintiff died survived by his widow. She moved forsubstitution. This was opposed by the defendants on the ground that atthe time of his death, the plaintiff was an undivided member of a JointHindu Family and that on his death, his share passed to them bysurvivorship. This is despite the fact that earlier on, in the suit, theDdefendants had admitted the plaintiffs claim and contended that theywere willing to divide the estate and that the suit was premature. Thecourt referred to the earlier judgement of the Privy Council reported inPandit Suraj Narain and another v. Pandit Iqbal Narainand others37. It isrelevant to notice what the court proceeded to lay down:

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“25. It appears to their Lordships that the Appellate Courthas, in this case, confused the two considerations to whichreference has been made above, viz., the severance of statuswhich is a matter of individual volition, with the allotment of shareswhich may be effected by different methods : by privateFagreement, by arbitrators appointed by the parties, or, in the lastresort, by the Court.”

After referring to the statements in Appovier(supra), the Courtheld as follows:

“28. Some of the Courts in India have supposed LordGWestbury’s expressions to imply that the severance of status cantake place only by agreement. Their Lordships have no doubt thatthis is a mistaken view. The Board there was dealing with a casein which division of right had already taken place, as evidenced 36AIR 1916 PC 104H37(1912-13)40 IA 40 ; (1913) 11 All LJ 172

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

by the “ deed of division.” The right which each individual memberhad in this joint property did not spring from the deed or theagreement of the parties to which it gave expression; theagreement only recognised existing rights in each individualmember which he was entitled to assert at any time he liked. 29.The intention to separate may be evinced in different ways, eitherby explicit declaration or by conduct.”

89. Next, we must notice the judgment rendered by a Bench ofthree learned Judges of this Court reported in Addagada Raghavammaand anotherv. Addagada Chenchamma and another38. In the said case,the appellant before the Court was the widow of one Piechayya. Therespondent in the case Chenchamma was the wife of one Venkayyawho was, in fact, the son of the brother of Piechayya. In substance, thedispute revolved around the question whether there was a disruption inthe Joint Hindu Family brought about prior to the execution of a will bythe brother-in-law of the appellant. Subbarao was the son of Venkayyafrom the marriage with Chenchamma). Though there were two questions,we are only concerned with second question, viz., whether partition wasbrought about prior to the execution of the will and we may also noticethe further question which arose which was whether a disruption wasbrought about by the terms of the will itself.

90. The Court proceeded to elaborately consider the evidence onrecord and came to the conclusion that the evidence did not support thecontention of the appellant which was that in 1894, much before the willwas executed in the year 1946, a partition has taken place. Thereafter, itis necessary to notice the following paragraphs in the opinion renderedby 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, thatis, the date when the Will was executed, Chimpirayya must bedeemed to have been divided in status from his grandson Subbarao.A will speaks only from the date of death of the testator. A memberof an undivided coparcenary has the legal capacity to execute awill, but he cannot validly bequeath his undivided interest in thejoint 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

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therefore, the will cannot operate on the interest of the joint familyproperty. But if he was separated from the family before his death,the bequest would take effect. So, the important question thatarises is whether the testator in the present case became separatedfrom the joint family before his death.”

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27. The main question of law that arises is whether a memberof a joint Hindu family becomes separated from the other membersof the family by mere declaration of his unequivocal intention todivide from the family without bringing the same to the knowledgeof the other member of the family. In this context a reference toHindu law texts would be appropriate, for they are the sourcesfrom which Courts evolved the doctrine by a pragmatic approachto problems that arose from time to time. The evolution of thedoctrine can be studied in two parts, viz., (1) the declaration ofthe intention, and (2) communication of it to others affected thereby.On the first part the following texts would throw considerablelight. They are collated and translated by Viswanatha Sastri, J.,who has a deed and abiding knowledge of the sources of Hindulawin Adiyalath Katheesumma v. Adiyalath Beechu [ILR 1930Mad 502] ; and we accept his translations as correct and indeedlearned 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 ofthe father and the son is only equal”. Vijnaneswara commentingon the said sloka says:

“…And thus though the mother is having menstrual courses(has not lost the capacity to bear children) and the father hasattachment and does not desire a partition, yet by the will (ordesire) of the son a partition of the grandfather’s wealth doestake place.” (Setlur’s Mitakshara, pp. 646-48).

Saraswati Vilase, placitum 28. “From this it is known thatwithout any speech (or explanation) even by means of adetermination (or resolution) only, partition is effected, just as anappointed daughter is constituted by mere intention withoutspeech.”

Viramitrodaya of Hitra Misra (Chapter II, Pl. 23).

“Here too there is no distinction between a partition duringthe lifetime of the father or after his death and partition at thedesire of the sons may take place or even by the desire (or at thewill of a single coparcener).

Vyavahara Mayukha of Nilakantabhatta: (Chapter IV, Sectioniii-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 particularstate (or condition) of the mind and the declaration is merely amanifestation 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) inVyavahara Mayukha, bring out the idea that the severance ofjoint status is a matter of individual direction. The Hindu law texts,therefore, support the proposition that severance in status isbrought about by unilateral exercise of discretion.

28. Though in the beginning there appeared to be a conflictof views, the later decisions correctly interpreted the Hindu lawtexts. This aspect has been considered and the law pertainingthereto precisely laid down by the Privy Council in a series ofdecisions: see Suraj Narain v. Iqbal Narain [(1912) ILR 35 All80 (PC)] ; Giria Bai v. Sadashiv Dhundiraj [(1916) ILR 43 Cal1031 (PC)] ; Kawal Narain v. Budh Singh [(1917) ILR 39 All496 (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 itsearlier decision laid the settled law on the subject thus:

“It is settled law that in the case of a joint Hindu familysubject to the law of the Mitakshara, a severance of estate iseffected by an unequivocal declaration on the part of one ofthe 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 inestate is a matter of individual discretion and that to bring aboutthat state there should be an unambiguous declaration to that effect A

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are propositions laid down by the Hindu law texts and sanctionedby authoritative decisions of Courts. But the difficult question iswhether the knowledge of such a manifested intention on the partof the other affected members of the family is a necessarycondition for constituting a division in status. Hindu law texts donot directly help us much in this regard, except that the pregnantexpressions used therein suggest a line of thought which waspursued by Courts to evolve concepts to meet the requirementsof a changing society. The following statement in VyavaharaMayukha is helpful in this context:

“…severance does indeed result by the meredeclaration” ‘I am separate from thee’ because severance isa particular state (or condition) of the mind and the declarationis merely a manifestation of this mental state (or condition).”

One cannot declare or manifest his mental state in a vacuum. Todeclare is to make known, to assert to others. “Others” mustnecessarily be those affected by the said declaration. Thereforea member of a joint Hindu family seeking to separate himselffrom others will have to make known his intention to the othermembers of the family from whom he seeks to separate. Theprocess of manifestation may vary with circumstances. This ideawas 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 “clearlyexpressed” used by the Privy Council in Suraj Narain v. IqbalNarain [(1912) ILR 35 All 80 (PC)] meant “clearly expressed tothe definite knowledge of the other coparceners”. In Girja Bai v.Sadashive Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] the JudicialCommittee observed that the manifested intention must be “clearlyintimated” to the other coparceners. Sir George Lownles in BalKrishna v. Ram Ksishna [(1931) ILR 53 All 300 (PC)] took it assettled law that a separation may be effected by clear andunequivocal declaration on the part of one member of a joint Hindufamily to his coparceners of his desire to separate himself fromthe joint family. Sir John Wallis in Babu Ramasray PrasadChoudhary v. Radhika Devi [(1935) 43 LW 172 (PC)] againaccepted as settled law the proposition that “a member of a joint

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

Hindu family may effect a separation in status by giving a clearand unmistakable intimation by his acts or declaration of a fixedintention to become separate.…” Sir John Wallis, C.J., andKumaraswami Sastri, J. in Kamepalli Avilamma v. MannemVenkataswamy [(1913) 33 MLJ (746)] were emphatic when theystated that if a coparcener did not communicate, during his lifetime, his intention to become divided to the other coparceners, themere declaration of his intention, though expressed or manifested,did not effect a severance in status. These decisions authoritativelylaid down the proposition that the knowledge of the members ofthe family of the manifested intention of one of them to separatefrom them is a necessary condition for bringing about thatmember’s severance from the family. But it is said that twodecisions of the Madras High Court registered a departure fromthe 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 relatedback to the date when the communication was sent. The learnedJudge deduced this proposition from the accepted principle thatthe other coparceners had no choice or option in the matter. Butthe important circumstance in that case was that the testator livedtill after the date of the service of the notice. If that was so, thatdecision on the facts was correct. We shall deal with the doctrineof relating back at a later stage. The second decision is that of aDivision Bench of the Madras High Court, consisting ofVaradachariar and King, JJ., in Narayana Rao v. PurushotamaRao [ILR 1938 Mad 315, 318] . There, a testator executed a willdisposing of his share in the joint family property in favour of astranger and died on August 5, 1926. The notice sent by the testatorto his son on August 3, 1926 was in fact received by the latter onAugust 9, 1926. It was contended that the division in status waseffected only on August 9, 1926, when the son received the noticeand as the testator had died on August 5, 1926 and the estate hadpassed by survivorship to the son on that date the receipt of thenotice on August 9, 1926 could not divest the son of the estate sovested 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 thecommunication of the intention to become divided to other AB

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coparceners is necessary, but none of them lays down that theseverance in status does not take place till after suchcommunication has been received by the other coparceners.”

After pointing out the various anomalies that might arise inaccepting the contention advanced before them, the learned Judgeproceeded to state:

“It may be that if the law is authoritatively settled, it is notopen to us to refuse to give effect to it merely on the ground thatit may lead to anomalous consequences; but when the law hasnot been so stated in any decision of authority and such a view isnot necessitated or justified by the reason of the rules, we see noreason to interpret the reference to ‘communication’ in the variouscases as implying that the severance does not arise until noticehas actually been received by the addressee or addressees.”

We regret our inability to accept this view. Firstly, because, as wehave pointed out earlier, the law has been well settled by thedecisions of the Judicial Committee that the manifested intentionshould be made known to the other members of the family affectedthereby; secondly, because there would be anomalies on theacceptation of either of the views. Thirdly, it is implicit in thedoctrine of declaration of an intention that it should be declared tosomebody and who can that somebody be except the one that isaffected thereby.

32. It is, therefore, clear that Hindu law texts suggestedand Courts evolved, by a process of reasoning as well as by apragmatic approach that, such a declaration to be effective shouldreach the person or person affected by one process or otherappropriate to a given situation.

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 tohave taken place? Is it the date of expression of intention or thedate when it is brought to the knowledge of the other members?

If it is the latter date, is it the date when one of the members firstacquired knowledge or the date when the last of them acquiredthe said knowledge or the different dates on which each of themembers of the family got knowledge of the intention so far as heis concerned? If the last alternative be accepted, the dividingmember will be deemed to have been separated from each of themembers on different dates. The acceptance of the said principlewould inevitably lead to confusion. If the first alternative beaccepted, it would be doing lip service to the doctrine of knowledge,for the member who gets knowledge of the intention first may inno sense of the term be a representative of the family. The secondalternative may put off indefinitely the date of severance, as thewhereabouts of one of the members may not be known at all ormay be known after many years. The Hindu law texts do notprovide any solution to meet these contingencies. The decidedcases also do not suggest a way out. It is, therefore, open to thisCourt to evolve a reasonable and equitable solution without doingviolence to the principles of Hindu law. The doctrine of relationback has already been recognized by Hindu law developed bycourts and applied in that branch of the law pertaining to adoption.There are two ingredients of a declaration of a member’s intentionto separate. One is the expression of the intention and the other isbringing the expression to the knowledge of the person or personsaffected. When once the knowledge is brought home — thatdepends upon the facts of each case — it relates back to the datewhen the intention is formed and expressed. But between thetwo dates, the person expressing the intention may lose his interestin the family property; he may withdraw his intention to divide; hemay die before his intention to divide is conveyed to the othermembers of the family: with the result his interest survives to theother members. A manager of a joint Hindu family may sell awaythe entire family property for debts binding on the family. Theremay be similar other instances. If the doctrine of relation back isinvoked without any limitation thereon, vested rights so createdwill be affected and settled titles may be disturbed. Principles ofequity require and common sense demands that a limitation whichavoids the confusion of titles must be placed on it. What would bemore equitable and reasonable than to suggest that the doctrineshould not affect vested rights? By imposing such a limitation we AB

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Aare not curtailing the scope of any well established Hindu lawdoctrine, but we are invoking only a principle by analogy subjectto a limitation to meet a contingency. Further, the principle ofretroactivity, unless a legislative intention is clearly to the contrary,saves vested rights. As the doctrine of relation back involvesretroactivity by parity of reasoning, it cannot affect vested rights.BIt would follow that, though the date of severance is that ofmanifestation of the intention to separate the right accrued to othersin the joint family property between the said manifestation andthe knowledge of it by the other members would be saved.

35. Applying the said principles to the present case, it will have toCbe held that on the death of Chimpirayya his interest devolved onSubbarao and, therefore, his will, even if it could be relied uponfor ascertaining his intention to separate from the family, couldnot convey his interest in the family property, as it has not beenestablished that Subbarao or his guardian had knowledge of theDcontents of the said will before Chimpirayya died.”91. The Court also, in paragraph 37, expressed the view that itwas not necessary to decide whether the will contained the necessaryand unambiguous declaration of intention to divide himself from the family.

92. Next, in the line of decisions of this Court is the judgmentEreported in Puttrangamma and othersv. M.S. Ranganna and others39.The appeal arose from a suit for partition. One of the questions whicharose was whether the plaintiff had died as a divided member of a jointfamily. In this context, the Court laid down as follows:

“5. It is now a settled doctrine of Hindu Law that a memberof a joint Hindu family can bring about his separation in status byFa definite, unequivocal and unilateral declaration of his intentionto separate himself from the family and enjoy his share in severalty.It is not necessary that there should be an agreement between allthe coparceners for the disruption of the joint status. It is immaterialin such a case whether the other coparceners give their assent toGthe separation or not.The jural basis of this doctrine has beenexpounded by the early writers of Hindu Law.

93. This Court allowed the appeal on the view it took, viz., that theplaintiff indeed had effected disruption in the joint family on the principlesof law which have been articulated.H39AIR 1968 SC 1018

94. Next, we must refer to the judgment of this Court in KrishnabaiBhritar Ganpatrao Deshmukhv. Appasaheb Tuljaramarao Nimbalkarand others40. The High Court in the said case, which was a suit forpossession and mesne profit, took the view that it was not establishedthat there was a partition effected in the year 1902 as was found by theTrial Court. This Court restored the judgment of the Trial Court and heldas follows:

“16. We will take Point No. 1 canvassed by Shri Bal. Theprimary question that falls to be considered is, whether in 1902 orshortly prior to it, there was a partition between the two brothers— Narayanarao and Ramachandrarao — in a manner known tolaw. In this connection, it is necessary, at the outset, to notice thefundamental principles of Hindu Law bearing on the point. Theparties are admittedly governed by Mitakshara School of Hindulaw. In an undivided Hindu family of Mitakshara concept, nomember can say that he is the owner of one-half, one-third orone-fourth share in the family property, there being unity ofownership and commensality of enjoyment while the family remainsundivided. Such unity and commensality are the essential attributesof the concept of joint family status. Cesser of this unity andcommensality means cesser or severance of the joint family status,or, which under Hindu law, is “partition”; irrespective of whetherit is accompanied or followed by a division of the properties bymetes and bounds. Disruption of joint status, itself, as LordWestbury put it in Appovier v. Rama Subba Aiyan [(1886) 11MIA 75 : 2 SR 218 : 8 WRPC 1] , in effect, “covers both a division”of right and division of property.Reiterating the same position, inGirja 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, althoughnot immediately followed by a de facto actual division of thesubject-matter. This may at any time, be claimed by virtue of theseparate right”.

17. The division of the joint status may be brought about byany adult member of the joint family by intimating, indicating orrepresenting to the other members in clear and unambiguous terms, A

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Ahis intention to separate and enjoy his share in the family property,in severality. Such intimation, indication or representation may takediverse forms. Sometimes it is evidenced by an explicit declaration(written or oral); sometimes it is manifested by conduct of themembers of the family in dealing separately with the former familyproperties. Service of notice or institution of a suit by one member/Bcoparcener against the other members/coparceners for partitionand separate possession may be sufficient to cause disruption ofthe joint status.”

(Emphasis supplied)

CIn Kalyani(dead) by LRs v. Narayanan and others41, a Benchof 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 importin Hindu law. Partition in one sense is a severance of joint statusDand coparcener of a coparcenary is entitled to claim it as a matterof his individual volition. In this narrow sense all that is necessaryto constitute partition is a definite and unequivocal indication ofhis intention by a member of a joint family to separate himselffrom the family and enjoy his share in severalty. Such anunequivocal intention to separate brings about a disruption of jointEfamily status, at any rate, in respect of separating member ormembers and thereby puts an end to the coparcenary with rightof survivorship and such separated member holds from the timeof disruption of joint family as tenant-in-common. Such partitionhas an impact on devolution of shares of such members. It goesFto his heirs displacing survivorship. Such partition irrespective ofwhether it is accompanied or followed by division of properties bymetes and bounds covers both a division of right and division ofproperty (see Appovier v. Rama Subba Aiyan [(1886) 11 MIA75 : 2 Sar 218 : 8 WR PC 1] quoted with approval in KrishnabaiBhritar Ganpatrao Deshmukh v. Appasaheb TuljaramaraoGNimbalkar [(1979) 4 SCC 60, 68] ). A disruption of joint familystatus by a definite and unequivocal indication to separate impliesseparation in interest and in right, although not immediately followedby a de facto actual division of the subject-matter. This may atany time, be claimed by virtue of the separate right (see Girja H41AIR 1980 SC 1173

Bai v. Sadashiv [AIR 1916 PC 104 : 43 IA 151 : 18 Bom LR621]). A physical and actual division of property by metes andbounds follows from disruption of status and would be termedpartition 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 partitionin the sense it does not purport to divide the property amongstvarious coparceners by metes and bounds. However, in Hindulaw qua joint family and joint family property the word “partition”is understood in a special sense. If severance of joint status isbrought about by a deed, a writing or an unequivocal declarationof intention to bring about such disruption, qua the joint family, itconstitutes partition (see Raghavamma v. Chenchamma [AIR1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593] ). Toconstitute a partition all that is necessary is a definite andunequivocal indication of intention by a member of a joint familyto separate himself from the family. What form such intimation,indication or representation of such interest should take woulddepend upon the circumstances of each case. A furtherrequirement is that this unequivocal indication of intention toseparate must be to the knowledge of the persons affected bysuch declaration. A review of the decisions shows that this intentionto separate may be manifested in diverse ways. It may be bynotice or by filing a suit. Undoubtedly, indication or intimation mustbe to members of the joint family likely to be affected by such adeclaration.”

This Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakheand others(supra) held as under:

“14……The character of any joint family property does not changewith the severance of the status of the joint family and a jointfamily property continues to retain its joint family character solong as the joint family property is in existence and is not partitionedamongst the co-sharers. By a unilateral act it is not open to anymember of the joint family to convert any joint family propertyinto his personal property.”

IS THERE CONFLICT BETWEEN KALYANI (DEAD) BYLRS V. NARAYANAN AND OTHERS [AIR 1980 SC 1173] AND

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ABHAGWANT P. SULAKHE V. DIGAMBAR GOPAL SULAKHEAND OTHERS [AIR 1986 SC 79]

95. In Kalyani(supra), one Karappan who had two wives andchildren through them was governed in the matter of inheritance andsuccession essentially by customary law and in the absence of anyBspecified custom, he was governed by the Hindu Mitakshara Law. Hehad executed a registered deed P1 which was variously described as aWill or as a deed of partition or evidencing a family arrangement. TheSuit from which the case arose was filed by the Widow of one of hissons from his first wife. This Court went on to find that P1 could not besupported as Will insofar as Karappan had no power to devise by WillCancestral property. The Court further went on to consider whether B1was effective as a partition. It was in this context that the observationsin paragraph-10 of the judgment came to be made. The Court, aftermaking the observations in paragraph-10, found that there was noeffective partition by metes and bounds by B1 though the shares of sonsDwere specified as also the provisions for the female members weremade. Thereafter it is that the Court posed the question that if B1 is noteffective as a Deed of Partition, its effect on the continued Joint Familystatus had to be examined. It is thereafter that when the court went onto make the observations in para 18 which we have set out. The Courtfurther proceeded to find that by specifying of the share in Exhibit P1Ethere 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, thecoparceners ceased to hold the property as joint tenants but they held astenants in common. It was further the view of the court that the fact thatthe coparceners continued to stay under the same roof or enjoy theFproperties without division by metes and bound, did not matter. They didnot hold as joint tenants unless reunion was pleaded and established. Weare, in this case, also called upon to reconcile what has been laid down inthis case with what has been laid down in a later Judgment in. The laterdecision Bhagwant P. Sulakhe(supra)was also rendered by a bench ofthree learned Judges.G96. We may briefly notice the facts involved in the said case. Theappellant, who was the plaintiff in the Suit along with the SecondDefendant therein and two of his brothers, were members of a JointHindu Family. There was a public limited company and also a firm. Theappellant had acted as a Managing Agent. He had also acted as aH

Managing Director of the Company. In regard to the same, he had earnedremuneration. The question which essentially arose before this Courtwas whether it was to be treated as the personal income of the appellantor whether it belonged to the joint family. After considering the partnershipdeed and other materials, the Court, inter alia, observed as follows:

“14 …The character of any joint family property does notchange with the severance of the status of the joint family and ajoint family property continues to retain its joint family characterso long as the joint family property is in existence and is notpartitioned amongst the co-sharers. By a unilateral act it is notopen to any member of the joint family to convert any joint familyproperty into his personal property.”

97. The Trial Court, in this case, has laid store by the observationsof this Court to the effect that as long as joint family property is inexistence and is not in partitioned, the character of the joint family propertydoes not change. It concluded that even if division is brought about byissuance of B1, the properties of the joint family consisting of V.Rangaswami Naidu and his brother remained joint and it could not bearrogated by V. Rangaswami Naidu as his and they bequeathed, as done.The first appellate court distinguished the decision by stating that it turnedon in facts.

98. We would think that there is really no conflict as such. Wehave already noticed what has already been laid down by the PrivyCouncil in Appovier(supra). The Court has laid down, inter alia, thatwhen members of the Hindu Undivided Family agree among themselvesthat a particular property shall be thereafter be subject of ownership incertain defined shares, then, the character of the undivided property andjoint enjoyment is taken away from it and each member will thereafterhave a definite and certain share, even though the property itself has notbeen severed and divided.

99. It must be remembered that the said case actually involved anUndivided Hindu Joint Family wherein there was a deed of division andthe contention, which had to be considered by the Court, was that, it wasineffectual to convert the undivided property into divided property until ithad been completed by an actual partition by metes and bounds. TheCourt was essentially not considering the effect of a declaration by acoparcener to separate causing a division in a joint family status. The A

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ACourt was also not considering the question as to whether, on such divisionin status, the rights of the coparcener, over specific items of properties,will be transformed into exclusive and absolute rights even without anagreement or partition, by metes and bounds.

100. In Girja Baiv. Sadashiv Dhundiraj42, the Privy Council wasBdealing with a situation where the appellant’s husband had served aregistered notice on the Manager of a Mitakshara Joint Family expressinghis 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 holdCas follows:

Partition has two shades of meaning in Hindu Law we are dealingwith. In the one sense, partition is the first step which would ordinarilyculminate in a metes and bounds partition. In a coparcenary, there isjoint tenancy. A Hindu Coparcenary, which cannot be created byDagreement between parties but is the creation of law, can be disruptedor a division is caused by a unilateral declaration by a coparcener to putan end to the joint family. What the coparcener has before the division isproduced, is an interest, as has been referred to in both Sections 6 and30 of the Hindu Succession Act. Upon a declaration being made,expressing intent to separate without anything more but no doubt onEcommunication of the same to the other coparcener/coparceners, partitionin the above sense viz. causing a division of title takes place. As alreadynoticed, the partition in the aforesaid sense has far-reachingconsequences. The joint tenancy, which includes the concept of Right toInherit by Survivorship, is terminated with the partition being effected inFthe first sense. If the coparcener dies after causing such a partition, asthe 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 commonbut that is not the same as saying that the properties of the family, wherethere has been a partition in the first sense, will without anything moreGstand transformed into the separate and exclusive properties of the dividedmembers. 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 FirstAppellate Court that the principles of law, which are contained in

paragraph-14 of the Judgment, as extracted by us, are merely to beunderstood in the special facts of the said case. Partition, in a broadersense and as is commonly understood, is the division of the properties inaccord with the shares.

WHETHER A HINDU COULD MAKE A WILL?

WHAT WERE THE LIMITS ON HIS POWER TO EXECUTEA WILL? ARE THERE ANY CHANGES BROUGHT ABOUT BYENACTING SECTION 30 OF THE HINDU SUCCESSION ACT,1956?

102. It would appear that the treatises in Hindu Law do not containreference 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 areconcerned in this case with Mitakshara Law. Thereunder, a Hindu couldbequeath his separate and self-acquired properties even prior to the HinduSuccession Act being enacted. A Hindu being a member of the jointfamily could also possess his separate property which are of variouskinds. They include obstructed heritage which is property inherited by aHindu from another who is a person other than his father, father’s fatheror great grandfather, Government grant, income of separate property,all acquisitions by means of learning (declared by Hindu Gains of Learning1930) See in this regard para 228 of Mulla on Hindu Law 23[rd] editionpage 341-342. As far as the law governing the making of the will isconcerned there was no particular law which governed the same. It is inthe year 1865 that the Succession Act came to be passed. It was notapplicable to Hindus. The Hindu Wills Act 1870 which had limitedapplication (it applied inter alia to Wills by Hindus in the town of Madras)no doubt made certain provisions of the Indian Succession Act of 1865applicable to Hindus. Under the Probate and Administration Act, 1881the executor, subject to law relating to survivorship was the legalrepresentative of a Hindu. Section 211 of the Indian Succession Act,1925 continues the same legal position. However, the Indian SuccessionAct of 1925 which repealed the earlier Succession Act has through Section57 made the provisions of Part VI which are set out in schedule III tothe Act applicable to all wills and codicils made by any Hindu, Buddhist,Sikh or Jain made on or after the 1[st] January 1927 to which thoseprovisions are not applied under the preceding clauses viz. clauses (a)and (b) Section 57. It is thus that after 1[st] of January, 1927 in the matterof an unprivileged will executed by a Hindu, the requirement of Section A

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A63 which includes attestation of such a will by a minimum of twowitnesses became mandatory. Thus, the execution of a will by a Hindualso came to be regulated from the 1[st] of January, 1927.

103. Section 30 of the Hindu Succession Act reads as follows:

“30. Testamentary succession. — Any Hindu may dispose of byBwill or other testamentary disposition any property, which is capableof being sodisposed of by him or by her], in accordance with theprovisions of the Indian Succession Act, 1925 (39 of 1925), or anyother law for the time being in force and applicable to Hindus.Explanation.— The interest of a male Hindu in a MitaksharaCcoparcenary 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 anythingcontained in this Act or in any other law for the time being inforce, be deemed to be property capable of being disposed of byhim or by her within the meaning of thissection”.D

104. Does it bring about a change in law relating to power of aHindu to execute a will? As noticed earlier even prior to Hindu SuccessionAct, a Hindu could execute a will bequeathing his separate and self-acquired property. As regards his authority to execute a will concerninghis interest in the property of the joint family of which he is a coparcener,Ethe law did not permit such an exercise. We may refer to the judgmentof this Court in M.N. Aryamurthyv. M.D. Subbaraya Setty43; whereinthis Court held as follows:

“..But unfortunately, Lachiah, though a father, could not, underthe Hindu Law, dispose of, by will, joint family property or anyFpart thereof and as a will it was clearly inoperative on the variousdispositions made by him (See Parvatibai v. BhagwantPandharinath: 39 Bom 593: AIR 1915 Bom 265 and SubbaramiReddi v. Ramamma; 43 Mad 824: AIR 1920 Mad 637). This lattercase has questioned the correctness of a previous decision of thatGCourt in Appan Patra Chariar v. V.S. Srinivasa Charriar andOthers; 40 Mad 1122: AIR 1918 Mad 531. The decisions proceedon 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-

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

parcener cannot devise joint family property by will, because, onthe date of his death when the will takes effect, there is nothingfor the will to operate on, as, at the moment of his death, hisinterest 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’sfather was not entitled to will it away and his making a will wouldmake no difference to the nature of the property when it cameinto the hands of Pallaniappa. A father cannot turn joint familyproperty into absolute property of his son by merely making a will,thus depriving sons of the son who might be born thereafter oftheir right in the joint family property. It is well settled that theshare which a co-sharer obtains on partition of ancestral propertyis ancestral property as regards his male issues. They take aninterest in it by birth whether they are in existence at the time ofpartition or are born subsequently: [see Hindu Law by Mulla,13th Edn., p. 249, para 223(2)(4)]. If that is so and the characterof the ancestral property does not change so far as sons areconcerned even after partition, we fail to see how that charactercan change merely because the father makes a will by which hegives the residue of the joint family property (after making certainbequests) to the son. A father in a Mitakshara family has a verylimited right to make a will and Pallaniappa’s father could notmake the will disposing of the entire joint family property, thoughhe gave the residue to his son. We are therefore of opinion thatmerely because Pallaniappa’s father made the will and Pallaniappaprobably as a dutiful son took out probate and carried out thewishes of his father, the nature of the property could not changeand it will be joint family property in the hands of Pallaniappa sofar as his male issues are concerned.”

106. As to whether Section 30 of the Hindu Succession Act bringsabout the radical departure of the power of a Hindu in the matter ofmaking Will, we may refer to the decision of full Bench of the MysoreHigh Court in Sundara Adapa v. Girija45. Justice K.S. Hegde as hisLordship then was speaking for the Bench held:- 44 AIR 1967 SC 1153

45AIR 1962 (Mysore) 72

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A“15. It is well known that till the “Act” came into force, the interestof a coparcener in a Hindu joint family, be it a Mitakshara familyor an Aliyasantana family, could not be disposed of by means of atestament, as by the time his will took effect his interest in theundivided family would have been taken by survivorship by theother coparceners. The Indian Succession Act did not make anyBinroad into that position. The relevant provisions of the IndianSuccession Act are found in Part VI (Provisions relating totestamentary succession) read with the rules found in ScheduleIII. But they are also subject to the restrictions and modificationsspecified in that schedule. Restriction No. 1 in Schedule III says:—C“Nothing therein contained shall authorise a testator to bequeathproperty which he could not have alienated inter vivos, or to depriveany persons of any right of maintenance of which, but for theapplication of this section, he could not deprive them by will.”

17. Neither under the customary law nor under the AliyasantanaDAct nor under the Indian Succession Act the interest of acoparcener in an Aliyasantana Kutumba could have been disposedof by testamentary disposition. In that regard a definite change inthe law was made by means of the Explanation to Sec. 30(1) ofthe “Act”.There is no dispute that at present a member of anEundivided Aliyasantana kutumba could dispose of his interest inthe kutumba properties by means of a will. But we are unable toagree with Srli G.K. Govind Bhat when he says that Explanationto Sec. 30(1) enlarged the rights of a divided coparcener. Theobject of Section 30 is clear. That section neither directly nor bynecessary Implication deals with the devolution of divided interest.FAs mentioned earlier, its purpose is limited. The language employedis plain and therefore no question of interpretation arises. It is notcorrect to contend, a, done by Sri Bhat, that it the Explanation toS. 30(1) is understood in the manner the respondents want us tounderstand, a coparcener who dies undivided would leave a moreGvaluable estate to his heirs than one who dies divided.In mostcases, the share taken by a nissanthathi kavaru though limited tothe duration of the life of kavaru would be larger in extent thanone unprovided under Sec. 7(2) of the “Act”.

We find that this Court in Jalaja Shedthi & Ors. v. LakshmiHShedthi & Ors.;1973(2) SCC 773 has approved of view taken by the

High court in the aforesaid case. In other words, as we have alreadynoted in the case of property of the joint family as long as the property isjoint, the right of the coparcener can be described as an interest. Thereason why we are saying this is as long as the family remains joint, acoparcener or even a person who is entitled to share when there is apartition cannot predicate or describe his right in terms of his share. Theshare remains shrouded and emerges only with division in title or statusin the joint family. Once there is a division the share of a coparcener islaid bare. In this regard we may notice the judgment of this Court inHardeo 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, itwas not necessary that partition by metes and bounds amongstthe coparceners must take place. When an intention is expressedto partition the coparcenary property, the share of each of thecoparceners becomes clear and ascertainable. Once the share ofa 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 thisCourt 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 isowner of that share and as such he can alienate the same by saleor 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 hebecomes owner of “that share” and he can alienate ‘the same’. It isdifferent from saying that he is owner of the property in the sense ofbeing 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 HinduSuccession Act there could be four situations. In regard to a member ofa joint Hindu family who also has his separate property he could bequeathhis separate property. As far as joint family property is concerned, therecould be three situations. The first situation is where the family remains462008 (7) SCC 46

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Ajoint in which case the coparcener would have an interest. As far as thisinterest is concerned, it could not be the subject matter of the will priorto the Hindu Succession Act. The second situation is in a case wherethere is a disruption in title or a division in status. What we mean is thereis a partition in the sense of a division in the joint family status caused byany unequivocal declaration by a coparcener which is communicated.BIt can be by words. It can be by conduct. It can also embrace the veryfiling of a suit for partition. When such disruption takes place then theshare of the coparcener in the joint family property becomes a realityand takes concrete shape in accordance with law and the rights of themembers of the family. As already noticed, this may or may not beCaccompanied simultaneously with a metes and bounds partition. In sucha scenario under the law prior to the Hindu Succession Act, havingachieved disruption in the joint family, the right based on the principle ofsurvivorship perishes. The share of the coparcener becomes undeniable.Should he die intestate the share would go not to the other coparcenersby survivorship but to his heirs. It also opens the door to the coparcenerDto exercise his right to bequeath his share in accordance with his wishes.This power was certainly available to a Hindu even prior to Section 30of the Hindu Succession Act. The third scenario would be a situationwhere following a division in title or status in the family there is also ametes and bounds partition of the properties of the family in accordanceEwith the share. It cannot be open to doubt that in fact, capacity of aHindu to bequeath such property existed even prior to the HinduSuccession Act. In fact, the property obtained as a share on a partitionby a coparcener who has no male issues is treated as his separateproperty. As regards the effect of a son born after partition we need notpronounce on the same. After the amendment to the Succession ActF2005 including the daughters of a coparcener as coparceners in theirown right, if a Hindu has a female issue then the property allotted to himon partition will partake of the nature of coparcenary property. See inthis regard the following discussion in para 228 clause (6) at page 342 in“Mulla on Hindu Law”: 23[rd] Edition: Cataloguing different kinds ofGseparate property:- “(6) Share on partition – Property obtained as his shareon partition by a coparcener who has no male issue (see S. 221(4)).This position is now materially altered with the inclusion ofdaughters of a coparcener as coparceners in their own right byHthe amendment in the Hindu Succession Act 2005. If therefore,

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

even if a coparcener who has obtained a share on partition has nomale issue but has a female issue, the property allotted to him onpartition will partake the nature of coparcenary property. The aboveproposition will therefore have to be read as a coparcener havingbeen allotted a share on partition, takes it as his separate propertywhen he has no issue. This is since, by virtue of the amendment,as the distinction between male and female children of acoparcener stands abrogated and abolished, both having beengiven equality of status as coparceners.”

After the passage of the Hindu Succession Act even without therebeing a partition in the sense of a declaration communicated by onecoparcener to another to bring about the division it is open to a Hindu tobequeath his interest in the joint family. In other words, the words “interestin coparcenary property” can be predicated only when there is a jointfamily which is intact in status and not when there is a partition in thesense of there being a disruption in status in the family. Thus, the right ofa Hindu in the coparcenary joint family is an interest. Upon disruption ordivision, it assumes the form of a definite share. When there is a metesand bounds partition then the share translates into absolute rights quaspecific properties.

THE IMPACT OF THE HINDU WOMENS RIGHT TOPROPERTY ACT, 1937 (XVIII OF 1937)(HEREINAFTERREFERRED 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 customto the contrary, the provisions of section 3 shall apply where aHindu dies intestate.

3. Devolution of property. -

(1) When a Hindu governed by the Dayabhaga School of HinduLaw dies intestate leaving any property, and when a Hindugoverned by any other school of Hindu law or by customarylaw dies intestate leaving separate property, his widow, or ifthere is more than one widow, all his widows together, shall,subject to the provisions of sub-section (3), be entitled in respectof property in respect of which he dies intestate to the sameshare as a son: Provided that the widow of a predeceased sonshall inherit in like manner as a son if there is no son surviving A

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of such predeceased son, and shall inherit in like manner as ason’s son if there is surviving a son or son’s son of suchpredeceased son: Provided further that the same provision shallapply mutatis mutandis to the widow of a predeceased son ofa predeceased son.

(2) When a Hindu governed by any school of Hindu law otherthan the Dayabhaga school or by customary law dies havingat the time of his death an interest in a Hindu joint familyproperty, his widow shall, subject to the provisions of sub-section(3), have in the property the same interest as he himself had.

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(3) Any interest devolving on a Hindu widow under the provisionsof this section shall be the limited interest known as a Hinduwoman’s estate, provided however that she shall have thesame right of claiming partition as a male owner.

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(4) The provisions of this section shall not apply to an estatewhich by a customary or other rule of succession or by theterms of the grant applicable thereto descends to a single heiror to any property to which the Indian Succession Act, 1925,applies.

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5. Meaning of expression “die intestate”. -For the purpose ofthis Act a person shall be deemed to die intestate in respect ofall property of which he has not made a testamentary dispositionwhich is capable of taking effect.”

As can be seen, Section 3 of the 1937 Act applies when a HinduFdies intestate.

It is important to notice that Section 3(1) of the 1937 Act dealswith the case of the Hindu dying intestate leaving behind separateproperty. In such a situation, should there be one widow, she becameentitled in respect of the property to the same share as the son. This wasmade subject to sub-Section (3) which declares that, the interestdevolving on her, would be a limited interest known as Hindu Woman’sEstate. The more important change that was brought about is located inSection 3(2). Thereunder, when a Hindu governed by any School ofLaw, other than Dayabagha or Customary Law, dies, leaving behind atthe time of his death, an interest in a Hindu Joint Family property, his G

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widow is conferred the same interest as her husband had. This is againmade subject to the provision of sub-Section (3) which makes it a limitedinterest known as the Hindu Woman’s Estate. It will be, at once, noticedthat the Legislature had not used the words “dies intestate” in Section3(2), whereas, in Section 3(1), the Legislature contemplated a situation,where a Hindu could bequeath his separate property and has taken careto provide only for a contingency where he died intestate. No doubtSection 2 proclaimed that Section 3 was to be applied when a Hindudied intestate. When it comes to Section 3(2), in regard to a case coveredby Mitakshara law, the Legislature has, in keeping with the law as thenprevailing, recognised that a Hindu could not execute a Will in regard tohis interest in a Hindu Joint Family. It is this concept, which has beenswept away by enacting the Explanation to Section 30 of the HinduSuccession Act, whereunder, it is open to a Hindu to even bequeath hisinterest in the Hindu Joint Family property. Coming back to Section 3(2)of the Hindu Women’s Right to Property Act, the Legislature has advisedlychosen the words “interest in the Hindu Joint Family property”, whichmay be contrasted with the provisions under Section 3(1), whichcontemplates the Hindu leaving behind separate property. Therefore,Section 3(2) contemplates the situation, where, at the time when theHindu dies after the enactment of the Act in 1937 (it came into force on14[th] April, 1937 and it was repealed by Section 31 of the Hindu SuccessionAct 1956), in order that the widow acquires the same interest as herhusband had under Section 3(2), the Hindu must die when he is notseparated from the joint property. If a Hindu, when he dies, is separatedand, at least, qua him, there is no Hindu Joint Family, it would not be acase where Section 3(2) would apply. It is to be noted that, a Hinduwhen he dies intestate he may have an interest in a Hindu joint familyand at the same time also have separate properties. Then qua his separateproperties, Section 3(1) would apply whereas in regard to his interest inthe joint family, Section 3(2) would govern. Section 3(1) cannot apply asthe properties in dispute were not his separate properties.

What is the impact of this enactment on the claim for survivorshipmade 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) ofthe 1937 Act to a Hindu Widow? These questions have fallen forconsideration before the Courts.

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AWe 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 tobe reconciled. A widow of a coparcener is invested by the Actwith the same interest which her husband had at the time of hisBdeath in the property of the coparcenary. She is thereby introducedinto the coparcenary, and between the surviving coparceners ofher husband and the widow so introduced, there arises communityof interest and unity of possession. But the widow does not onthat account become a coparcener: though invested with the sameinterest which her husband had in the property she does not acquireCthe right which her husband could have exercised over the interestof the other coparceners. Because of statutory substitution of herinterest in the coparcenary property in place of her husband, theright which the other coparceners had under the Hindu law of theMitakshara school of taking that interest by the rule ofDsurvivorship remains suspended so long as that estate enures.But on the death of a coparcener there is no dissolution of thecoparcenary so as to carve out a defined interest in favour of thewidow in the coparcenary property:Lakshmi Perumallu v.Krishnavanamma [AIR (1965) SC 825]. The interest acquiredby her under Section 3(2) is subject to the restrictions on alienationEwhich are inherent in her estate. She has still power to make herinterest definite by making a demand for partition, is a male ownermay. If the widow after being introduced into family to which herhusband belonged does not seek partition, on the termination ofher estate her interest will merge into the coparcenary property.FBut if she claims partition, she is severed from the other membersand her interest becomes a defined interest in the coparcenaryproperty, and the right of the other coparceners to take that interestby survivorship will stand extinguished. If she dies after partitionon her estate is otherwise determined, the interest in coparcenaryproperty which has vested in her will devolve upon the heirs ofGher husband.It is true that a widow obtaining an interest incoparcenary property by Section 3(2) does not inherit that interestbut once her interest has ceased to have the character of undividedinterest in the property, it will upon termination of her estate devolve D

upon her husband’s heirs. To assume as has been done in somedecided cases that the right of the coparceners to take her intereston determination of the widow’s interest survives even after theinterest has become definite, because of a claim for partition, is todenude 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-upa claim to the property of a deceased coparcener based on theDoctrine of Survivorship but the Act did not annhilate the saidRight. The Right to claim by Survivorship came to be suspendedbut not extinguished. The widow, though not a coparcener, waslike a coparcener in most respects. She was also conferred withthe right to claim partition. As long as she did not claim partitionand the property remained intact upon her death, the Right toClaim by Survivorship which stood eclipsed, revived and thecoparceners would become entitled to the property on the basisthat succession opened as if the coparcener died when the widowdied. On the other hand, if the widow claimed partition, her interesttransformed into a defined interest and the Right to Claim bySurvivorship, which stood suspended, was destroyed. The propertywould then enure to the heirs of the husband. It is also to be notedthat, 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 1937Act, in other words.

We must also not be oblivious to two developments which tookplace after succession opened to the estate of V. RangaswamiNaidu on 01.06.1955. The Hindu Succession Act, 1956 containingSection 14 came to be passed, the effect of which will be discussedlater. Secondly, we may also notice that R. Krishnammal the widow,filed O.S. No. 71 of 1958 wherein as an alternate prayer, shesought partition. We have already noticed the principle which hasbeen laid down about the effect of a demand for partition by awidow in whom the Right came to be vested under Section 3(2)of the 1937 Act. But, as we have noticed, the superveningLegislation in the form of the Hindu Succession Act, if it did conferabsolute rights under Section 14(1), it is a matter of law as towhat was the nature of the Right R. Krishnammal possessed, A

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Aeven when she instituted O.S. No. 71 of 1958. It is clear thatwhen succession opened to the estate on 1.6.1955 if Section 3(2)applied, then Lakshmiah Naidu would have only a suspended rightof survivorship. There is the compromise decree in OS 71 of1958 under which R. Krishnammal has given up all her rights inthe plaint schedule properties in favour of the Lakshmiah branch.B

109. We find legislative recognition of this concept of ‘interest’ injoint family in Section 6 of the Hindu Succession Act. Section 6 prior toits substitution by Amending Act 39 of 2005 provided that in the case ofmale Hindu dying after the Act possessing an interest in Mitaksharacoparcenary property, the property was to devolve by survivorship, subjectCto 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 theexplanation in sub-section (3) of Section 6 after the amendment readsas follows:

Explanation. —For the purposes of this sub-section, the interestDof a Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if apartition of the property had taken place immediately beforehis death, irrespective of whether he was entitled to claimpartition or not.E110. Therefore, the concept that what a coparcener in aMitakshara family had prior to partition, is an interest, is reiterated. Forthe purpose of Section 6, however, in order to determine the extent ofthat interest it is deemed to be the share which he would get if there wasa notional partition just prior to his death. Partition in the sense of aFdisruption however determines the extent of share which would devolveunder Section 8 of the Act. We make it clear that we must not be treatedas having pronounced that the notional partition contemplated under theexplanation to Section 6 is meant to bring about the demise of thecoparcenary as such. The Explanation to Section (30) also speaks of‘interest’ as being ‘property’ which a Hindu could after the HinduGSuccession Act bequeath.

WHAT IS TITLE OF V. RANGASWAMI NAIDU, WHICHHE COULD PASS?

111. O.S. No. 89 of 1983 is a Suit where there is a declaration ofthe plaintiff’s right sought and also a Decree of Partition. The cause ofH

action is based on the remainder right traced from the terms of the Willdated 10.05.1955. It is apposite to bear in mind one aspect. In a proceedinginstituted to obtain probate of a Will, if a contention is raised about thetitle of the Testator, it would be foreign to the scope of the inquiry toenquire into the title of the Testator. The court, considering the grant orrefusal of the probate is only to deal with the question as to whether theWill was the last and genuine Will executed by the Testator. Questionsrelating to title would have to be pursued before the appropriate Forum(See Kanwarjit Singh Dhillonv. Hardyal Singh Dhillon48). Would that bethe position in the case of the title Suit wherein a plaintiff invites thecourt to pass a Decree for partition and qua the partition suit, Defendants1 to 3 who are among the appellants before us, would stand in the shoesof 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 theright to the property involved must be gone into and decided.

112. We have already found that in the claim that V. RangawamiNaidu acquired title to the properties by way of oral partition, cannot beaccepted. The claim that he had acquired properties by way of self-acquisition, also may not stand. If there has been a disruption in thefamily status, partition in the narrow sense of a division in title takesplace. We have also found that the mere fact that there is a divisioneffected in the joint family, would not mean that, in law, V. RangaswamiNaidu could claim exclusive and absolute ownership qua the itemscovered under the Will. The plaint schedule properties are, admittedly,part of the properties scheduled to the Will. The result would be that, interms of the legal principles applicable, we would find that V. RangaswamiNaidu did not have exclusive right as such qua the properties scheduledunder the Will.

113. However, the reasoning of the First Appellate Court may benoticed in this regard. After finding that a co-owner cannot unilaterallyallot specific properties to his share, the Appellate Court took the followingaspects into consideration:

The respondents (plaintiffs in O.S. No. 649 of 1985) wereaware in the earlier litigation (O.S. No. 71 of 1958 and O.S. No.36 of 1963) that V. Rangaswami Naidu had made unilateralallotment, and even though they had got opportunity in the above A

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Atwo instances, they did not raise any objection over the unilateralallotment. Next, the Appellate Court took note of the fact thatthere were more than ninety-three items of properties of morethan hundreds acres of land of Hindu Joint Family consisting ofthe brothers, and therefore, the allotment of a small portion cannotbe held as unjust one. R. Krishnammal had tried to establish herBright in the proceedings under Section 145 of the CrPC. The earlierSuits, i.e., O.S. No. 71 of 1958 and O.S. No. 36 of 1963, werefiled on the basis of the Will. The respondents had enoughopportunities to challenge the unilateral allotment and they failedto utilise the same, and therefore, their consequential acts gainedCmuch importance. The Court also distinguished the judgment inBhagwant P. Sulakhe(supra). It is further found that since V.Rangaswami Naidu had given written rejoinder confirming thenewspaper publication dated 10.05.1955, the declaration cannotbe held as unilateral and his actions had (‘were’ sic) changed thecharacter of the Hindu Joint Family properties. Therefore, it isDfound that having failed to raise any objection and acted acceptingthe allotment, the respondents have no right to deny the life interestof R. Krishnammal and the vested interest of the appellants.

114. The entire reasoning of the Appellate Court is that while onecoparcener, even after there is a division, cannot unilaterally appropriateEany specific property as his exclusive property, in view of the conduct ofthe respondents in not challenging the said allotment in O.S. No. 71 of1958 and O.S. No. 36 of 1963, they cannot be permitted to challenge thenature of the right to the properties. The Appellate Court also relied onthe fact that the plaint schedule properties (less than 37 acres) is a small Fpart compared to the large extent of properties which belonged to thecoparcenary consisting of the two brothers.

115. As far as O.S. No. 71 of 1958 is concerned, the respondentshave produced A1-Plaint. As already noted, there was no occasion foradjudication of the matter as the case was compromised. The appellants,Gin 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 scheduleproperties herein have been recognised as the absolute properties of therespondents. If any reliance is to be placed on the said Decree, then, thefact that under the compromise Decree, the entire rights have beengiven-up by the life estate holder R. Krishnammal, stares one in hisH

face. A2 is the compromise Decree. It is dated 21.07.1958. The Suitwas filed on 10.04.1958. It apparently may have suited the respondentsto not allow the matter to go to trial. The testimony of PW1 shows, interalia, as follows:

R. Krishnammal has informed as how much you can giveme. R. Krishnammal has asked for one house to live and land forfood, 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, shedisputed the case about the compromise and she defended thecompromise 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 and6, did involve reiteration of the Will. The question would, however, arisewhether, by such conduct alone, viz., by being parties in the said Suit,and later on when the compromise took place, by signing the same notas parties but in token of their having seen the endorsement made byplaintiff therein and R. Krishnammal and Defendant No.3 (anotherLegatee), they have acknowledged the title to Item Nos. 5 and 6, that itvested with V. Rangaswami Naidu and, furthermore, whether it shouldbe treated as acknowledging the exclusive title in regard to the plaintschedule properties involved in this case and which were not scheduledin 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 thecase of oral partition and exclusive ownership of her late husband, shealso was willing to adopt the stand of the Lakshmiah branch that her latehusband and his brother were not separated. On the said basis, she hadalso 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 isthis Suit which was compromised. It is certainly not possible to predicateon what basis Lakshmiah branch became amenable for the compromise.It might have been different if the cause of action of R. Krishnammalwas based solely on the basis of the Will. In this case, having regard tothe 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 AB

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AWill and also part of the larger joint family property, she has given-up herrights, it cannot be characterised as not using of the opportunity by theLakshmiah branch to challenge the unilateral allocation by V. RangaswamiNaidu.

118. In O.S. No. 36 of 1963 also, as we have already discussed,Bat the time of the compromise in 1974, the Lakshmiah branch was alreadyparty 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 infavour of R. Krishnammal. It mattered little to them that under thecompromise Decree in O.S. No. 36 of 1963, it was to be enjoyed as alife estate by R. Krishnammal and to be not alienated by her. We haveCnoticed that it was stated that no relief was claimed against the otherDefendants in the said Suit. The inference drawn by the First AppellateCourt based on not making use of the opportunity to challenge theunilateral allocation, in such circumstance, does not appeal to us.

119. Coming to the second aspect, the First Appellate Court hasDnoticed the fact that the property belonging to the family, was muchbigger, as a result of which the unilateral allotment could not be treatedas unjust. It does not address the legal issues. On the basis that there isa division in the joint family status, undoubtedly, V. Rangaswami Naiduwould be freed from the stranglehold of the principle that a Hindu couldEnot bequeath his interest in the undivided family. As we have noticed,the moment there is a division, what emerges is the share of the erstwhilecoparcener. In this case, there are only two coparceners, viz., V.Rangaswami Naidu and Lakshmiah Naidu. They would have one-halfshare between themselves. Undoubtedly, if V. Rangaswami Naidu hadbequeathed his one-half share, it could not have generated legalFcontroversy. We emphasise that this is subject to there having been adisruption. We have also noticed that if there is a disruption in the JointFamily status and partition in the narrow sense, it produces theconsequence that as regards the share of the separated coparcener, hisshare becomes immune from any claim based on the Doctrine ofGSurvivorship. We have also noticed that a bequest by a member of hisinterest in an undivided family, was juridically anathema, as under theDoctrine of Survivorship, persons claiming under the birth right over theproperty, would be preferred to those claiming under a Will. Once, thisobstruction over the right of the legal heir is removed in the case ofintestate succession, it would be the heirs, who would succeed. If thatH

be so, can not a Hindu, be it before the Hindu Succession Act, bequeathspecific properties over which he would have undoubtedly joint rights?

120. What would be the position after bringing about a division intitle but before there is a partition of the property by metes and bounds?We have noticed that during the interregnum, the properties of the familywould continue to remain joint[See 1986(1) SCC 366]. In other words,unless there is a partition, qua, the properties, though the shares areascertained 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 aHindu in the erstwhile State of Madras to transfer a specific item ofproperty even when the family is intact. A Full Bench of the MadrasHigh Court has dealt with this question in the decision reported inAiyyagari Venkataramayya and anotherv. Aiyyagari Ramayya49. Thepointed question which actually arose before the Court on a referenceto the Full Bench was, the effect of the death of the vendor after heeffects sale of his interest in the Hindu Undivided Family. The contentionapparently raised was, having regard to the Doctrine of Survivorship, ifthe vendee did not institute a Suit to enforce his rights, while the vendorwas alive, the vendee would have no right at all to enforce. JusticeBashyam Ayyangar has authored a separate Judgement wherein he hassurveyed exhaustively the entire case law. The learned Judge holds interalia as follows:

“The question of a member of an undivided Hindu family alienatingfamily property for his own purposes is not a topic dealt with, asfar as I am aware, by any texts of Hindu law or by thecommentators. No express authority on the subject can thereforebe found in the Hindu law books, and it is questionable whetheran alienation by a co-parcener of his undivided share and interestwas recognised by Hindu jurists. As observed by the JudicialCommittee “there can be little doubt that all such alienations,whether voluntary or compulsory, are inconsistent with the stricttheory of a joint and undivided Hindu family and the law asestablished in Madras and Bombay has been one of gradual growth,founded upon the equity which a purchaser for value has to beallowed to stand in his vendor’s shoes and work out his rights by AB

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752SUPREME COURT REPORTS

[2020] 9 S.C.R.

Ameans of a partition” Suraj Bunsi Koer v. Sheo Persad I.L.R. 5Calc. 148.”

The learned Judge further goes on to state the law in the followingterms:

“A co-parcener may profess to alienate either his undivided shareBin the whole of the family property or his undivided share in somespecified portion of the family property-as in the present case-orthe whole of a specified portion of the family property-asin thecase in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R.166. The same thing may take place in the case of involuntaryCsales also. In all these cases, the sale operates upon the interestand share of the transferor as the same existed at the date of thetransfer and the transferee must work out the transfer by bringinga suit for ascertaining what the share and interest of the transferorwas at the date of the transfer. Such a suit is not technically a suitfor partition and the decree which he may obtain enforcing theDtransfer, either in whole or in part, by a partition of the familyproperty will not by itself break up the joint ownership of themembers of the family in the remaining property, nor the corporate”character of the family.

We, however, notice also the following:E

“The claim of a transferee from a co-parcener to work out thetransfer is no doubt an equitable claim in the sense that he mustbe a transferee for value and in cases where the transfer relatesto a specific portion of the family property, he has no legal right,any more than his transferor himself, to insist on that specificFportion being allotted to the share of the vendor. Being a purchaserfor value he will have an equity to have such portion or so muchthereof as is practicable so allotted, if that can be done withoutprejudice to the interests of the other sharers. In any suit whichmay be brought by him to enforce the sale, all the members of the-Gfamily should be joined as parties as in a partition suit, the subjectmatter of the suit being the family property as it existed at thedate of the transfer.”

In fact the Court in Venkatachela Pillay v. ChinnaiyaMudaliar50 (1870) held as under:H50(1870) 5 M.H.C.R. 166

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

“…..And the contention on behalf of the appellant is that one co-parcener cannot object to a sale of a family property made byanother co-parcener when the portion of property sold isunquestionably 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. Thedecision of this Court as to the right of a co-parcener to alienatehis vested interest in the property held in co-parcenery do not gobeyond establishing the validity of an alienation to the extent ofthe coparcener’s share in the particular property which is thesubject of the alienation. And they are founded upon the principlethat each co-parcener has a vested present undivided estate inhis share, which he may at any time convert into an estate inseveralty by a compulsory or voluntary partition, and that suchestate is transferrible like any other interest in property. Furtherthan this the title of the 1[st] defendant under the alienation in thepresent case cannot, we think, be carried…

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By the sale in the present case therefore the vendor, Subbaraya,could not in our judgment transfer to the 1[st] defendant’s father avalid title to any specific portion of the joint-family property butonly to his beneficial estate as an undivided co-parcener with theincidental right of partition, and it follows that the 1[st] defendant isnot entitled to more than the moiety of the village lands whichwere alone the subject of the contract of sale.”

It appears there is no uniformity in regard to the power of acoparcener to sell his undivided interest. In Sidheshwar Mukherjee v.Bhubaneshwar Prasad Narain Singh and others51 we notice thefollowing :

“9. It is true that under the Mitakshara law, as it is administered inthe State of Bihar, no coparcener can alienate, even for valuableconsideration, his undivided interest in the joint property withoutthe consent of his coparceners; but although a coparcener isincompetent to alienate voluntarily his undivided coparcenaryinterest, it is open to the creditor, who has obtained a decree againhim personally, to attach and put up to sale this undivided interest, 51AIR 1953 SC 487

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Aand after purchase to have the interest separated by a suit forpartition.”

In M.V.S. Manikayala Rao v. Narasimhaswami and others52,a case which arose against the impugned order of the High Courtof Andhra Pradesh, it involved an auction sale therein the CourtBheld as follows:

“….Now it is well settled that the purchaser of a coparcener’sundivided interest in the joint family property is not entitled topossession of what he has purchased. His only right is to sue forpartition of the property and ask for allotment to him of thatCwhich on partition might be found to fall to the shre of thecoparcener who share he had purchased….”

122. The view of Justice Bashyam Ayyangar has also beenapproved by a Full Bench of five learned Judges of the High Court in K.Peramanayakam Pillaiv. S.T. Sivaraman and others53.D

123. Thus, in the case of an alienation by a Hindu, even if it is ofa specific property belonging to the joint property, it would be dealt withon an equitable basis, should the alienee bring an action to enforce thesame in a properly constituted Suit. The conclusion we would arrive at isthat the sale of such a right even over specific immovable property by aEcoparcener in a Mitakshara Hindu Joint Family does take effect in lawwhere 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 relatingto the power of the coparcener to transfer specific items even if therehas been no partition in the sense of a division of title so that we are in abetter position to appreciate the question as to whether in a case whereFa Hindu executes a Will prior to the Hindu Succession Act could, he, bya Will, after a division is brought about in the family bequeath specificimmovable property.

124. In order to understand this problem in its proper perspective,we must advert to certain vital dimensions. The real principle on theGbasis of which the interest of a coparcener in a Joint Hindu Family couldnot be the subject matter of a valid bequest was that the bequest wouldcome into collision with the right to claim property by survivorship vestedin the other coparceners upon their birth. Thus, it is a case of a prior 52AIR 1966 SC 470H53AIR 1952 Madras 419

right taking precedence over the bequest which can come into forceonly not from the date of the making of the Will but upon the death of theTestator. This distinction, has apparently allowed courts to recognise aninter-vivos alienation which is possible only when the coparcener is aliveof his interest in the Joint Hindu Family as it does not involve a conflictbetween the right by survivorship and rights sought to be created by thecoparcener. However once there is a division, then right by survivorshipceases and there can be objection to said principle applying to a bequestof a specified immovable property. In fact, the case of a will made afterdivision of specific immovable property stands on a different footing andthe objection that the sale is by a coparcener when the joint family existsdoes not hold good.

125. The second point of distinction which we may notice is thatas noted by Justice Bashyam Ayyangar in Aiyyagari Venkataramayyaand another(supra) is that, the right was recognised as an equitableright in favour of an alienee who has purported to purchase the propertyfor valuable consideration. A bequest may be subject to an onerouscondition and the rights of the Legatee may become subject to theDoctrine of Election. A bequest, on the other hand, may involve no liabilityfor the Legatee, in which case, he may not bear resemblance to analienee under the inter-vivos transfer who purchases property for valuableconsideration.

126. At least, as an equitable claim, can not appellants enforcetheir right and claim to be allotted the items on the basis that they couldbe allotted to the share of the Testator as in the case of a transfereefrom a Hindu of specific immovable property, even when the joint familycontinues to exist? We have noticed that the law does not render suchtransferee helpless. No doubt, one of the conditions which has beenevolved in by Justice Bashyam Ayyangar in the decision in AiyyagariVenkataramayya(supra) is that all the sharers must be on the partyarray. In this case, the said requirement is fulfilled as they are representedas Defendants 4 to 11 is O.S. No. 89 of 1983. No doubt, we notice thatanother requirement, in such a case, would be that all the properties ofthe joint family are scheduled. This requirement is not seen fulfilled andthe frame of the Suit is based on exclusive title of the plaintiff andDefendants 1 to 3 which is based on bequest.

127. About the extent of property belonging to the family, it isrelevant to notice that PW1 has deposed, inter alia, as follow:

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AMy brother Baktachalam gave an extent of 750 acres ofland in Kollegal Village, Satyamangalam to his father in the nameof Government assignment in the year 1944. Those 750 acres ofland are under our family possession. My father had purchasedan extent of 150 acres of land in Coimbatore from 1932 to 1958 inmy name and Ramathal. More than 1,000 acres of land wereBpurchased from 1944 to 1958 in their family. V. Rangaswami Naiduis having right upon 1,000 acres of land purchased in Kollagal,Kollangodu, Coimbatore and Tanjore. I know that R. Krishnammalhas right over 1,000 acres of land. R. Krishnammal did not claimshare in 1000 acres of land in A1. When we settled the matterCand gave the share to R. Krishnammal, we did not take into accountof an extent of 1,400 acres of land. R. Krishnammal did not claimshare as she is having right over more than 700 acres of land.

Above is the picture regarding the availability of the familyproperties. They are of course not scheduled in the Plaint. WeDare not exactly aware of the value of these lands.

128. We would certainly think that the Legatee under the Will, leftbehind by a Hindu after there is division in the family status in regard tospecific properties belonging to the family, would indeed have rights quathe property but limited to the share of the Testator. It cannot be aEprinciple of law in the region of controversy that a man cannot ordinarilytransfer a right greater than what he himself has. Even under the IndianSuccession Act, under Section 59, there could be no prohibition in V.Ranagaswami Naidu bequeathing his share, if there was division. Wehave already noticed that in a bequest, the equitable consideration availableto a transferee by an intra-vivos transaction, wherein he has paid valuableFconsideration, may not apply. But this cannot mean that, if everythingelse is proved, the legatee should be left remediless. We did toy with theidea of considering holding in favour of the appellants even treating it tobe an exercise of powers under Article 142 of the Constitution of Indiain the special facts of this case as brought out by the testimony of PW1Gas regards the inequity involved. No doubt, we find the frame of the Suithardly helpful to the appellants. But having regard to the fact that theappellants 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 divisionHwas caused by B1 still the terms of the Will achieve the same result. In

other words in so far as Rangaswami Naidu had in the Will indicatednot only about there being a partition in 1932 but he has also stated thathe continues to be a divided member till the date of the Will and he hasalready made an open declaration of his divided status division also flowsas an inevitable result of his Will. The Will causes the disruption andtherefore the respondents who are the legal representatives of LakshmiahNaidu have no claim in law under the doctrine of survivorship. We donot think there is any merit in this argument. It may be true that thoughno issue as such was raised, the trial court was indeed called upon bythe parties to answer this question. What is involved essentially is thereading the contents of the will so as to ascertain whether it has theimpact of being the declaration of an unequivocal intent of the coparcenerto separate.

130. Shri Guru Krishnakumar, learned counsel would howeverpoint out that even proceeding on the basis that there is a Will and itsterms amount to a declaration since Rangaswami Naidu died on 1.6.1955and the Will saw the light of the day as far as other coparcener isconcerned only in the course of proceeding under Section 145 of theCrPC which took place much after the death, when succession openedto the estate of Rangaswami, the will not having been communicated toLakshmiah Naidu the requirement in law was not fulfilled.

In order that Section 3(2) of the 1937 Act applies, V. RangaswamiNaidu must have died intestate, leaving behind an interest in the HinduUndivided Family. What the appellants are calling upon us to do is totake a part of the Will which allegedly contains the declaration which inlaw, effects division. But if the Will is to be acted upon, then the conundrumwhich exists is, it could not be said that V. Rangaswami Naidu diedintestate 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 allproperty of which he has not made a testamantary deposition which iscapable of take effect”. On the one hand, the appellants would requirethis Court to hold that B10-Will should govern the rights of the partiesand that it is capable of taking effect. If it is not found capable of takingeffect, the cause of action would fail. If, therefore, we proceed on thebasis 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 anyright under the Act with regard to the properties governed by the Will, AB

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Athen, the law relating to survivorship, under which Lakshmiah Naiduwould succeed to the estate of his brother, would spring into beingimmediately on the death of V. Rangaswami Naidu on 01.06.1955. Couldit be, however, that it is possible for the appellants to contend on theDoctrine of Relating Back propounded in Addagada Raghavamma(supra) that by virtue of the contents of the Will, a division is achievedBupon Lakshmiah Naidu becoming aware of the Will even after the deathof his brother during the proceedings under Section 145, which is anadmitted position, and its effect being felt from 10.05.1955 when theWill was made and, therefore, by this reasoning, on 10.05.1955, which isbefore the death of V. Rangaswami Naidu, a division is effected and,Ctherefore, the Will becomes valid? In other words, look to the Will, tofind whether its contents amount to a declaration causing a division inlaw from 10.5.1955 and since the Will speaks from the date of the deathof 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, whichDwe have already extracted in paragraph-77 hereinbefore. It will be notedthat the Will starts off with the statement by the Testator that he ownedthe properties which included properties allotted in a partition and alsowhich he acquired by independent purchases. Thereafter, he states thathe had been a divided member since 1932 onwards. None of thesestatements would constitute a declaration. We have found that the caseEof partition in 1932 and independent purchases have been found againstthe appellants by three courts. Thereafter, there is only the statementthat he has, in order to avoid any uncertainties, made an open declarationof his divided status ‘today’. It may be difficult for us to accept thisstatement as a declaration sufficient in law to cause a division. However Feven for a moment that it would work out as a declaration, we wouldthink 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 Backand proceeding on the basis that the contents, as noted in the Will,Gamounted to a clear declaration to separate and that it would have effectfrom 10.05.1955, we cannot be oblivious to the creation of the vestedrights. If the matter is to be governed under Section 3(2) of the 1937Act, as already noted, it must be a case where V. Rangaswami Naidudied intestate. Therefore, if we proceed on the basis that there is a Willas indeed we must to accept the case of the appellants, Section 3(2) willH

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

not apply. If Section 3(2) does not apply, the claim to the property bysurvivorship, would arise, which would be fatal to the appellants case,for the reason put forth by Shri Guru Krishnakumar, learned SeniorCounsel, as noted above. That is to say, in the facts of this case, in viewof the division being communicated through the Will only after thesuccession had opened, and even allowing for the division to have effectfrom 10.5.1955 when the will was made, the vested right of LakshmiahNaidu to claim by survivorship would spring into existence on 01.06.1955when his brother died and the subsequent communication based on theWill cannot take away vested right which became available proceedingon the basis of the Will relating to the plaint schedule properties (see inthis regard para 34 of Addagada Raghavamma(supra).

DATE AND CONTENTS OF B1: EFFECT OF NONPRODUCTION OF LETTER DATED 11.5.1955 AND 16.5.1955

131. Coming to the actual question therefore whether B1 was infact issued, whether its contents amount to a declaration as required tocreate a division, and finally whether it was communicated to LakshmiahNaidu 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 firstappellate 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 adeclaration of my divided and separate status”.

133. The further case of the appellants is that the requirement ofcommunication to the other coparceners is complied with as is provedby the fact that having received B1 on the very next day LakshmiahNaidu issued communication dated 11.5.1955 wherein he purported todispute 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 RangaswamiNaidu in sending a rebuttal, as it were, to the communication sent byLakshmiah Naidu dated 11.5.1955 which he sent on 16.5.1955. Both thetrial court and the High Court have however found it to be fatal to theappellants case that the appellants have not produced the saidcommunication dated 11.5.1955 and 16.5.1955. The respondents alsowould contend that the High Court was right in its conclusion in thatregard. On the other hand, the appellants would point out that the court AB

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Amust not lose sight of the fact that the communication issued by LakshmiahNaidu dated 11.5.1955 is produced as Exhibit (43) and the communicationdated 16.5.1955 was produced as Exhibit 44 in proceeding under Section145 of the CRPC. There is reference to these documents in the orderpassed by the Magistrate which is marked as B2 in this case. Moreover,respondents complain about absence of pleading to the effect that B1Bwas issuedcausing a division even by way of refuting the case set upinOS 649 of 1985 that Rangaswami Naidu died joint.

WHETHER THERE IS LACK OF PLEADING ABOUT B1CAUSING A DIVISION IN THE JOINT FAMILY?

C134. In O.S. No. 649 of 1985, filed by the respondents, it is averredthat the plaint scheduled properties were joint family properties of thetwo brothers and it is further averred that there was no partition betweenthem and they were living as joint family till the death of V. RangaswamiNaidu in 1955. In paragraph-5 of the Plaint, it is specifically averredthat, till the death of V. Rangaswami Naidu, he and his brother constitutedDa joint family and there was no division in status between them, and onthe death of V. Rangaswami Naidu, the surviving coparcener took allthe properties by survivorship. In the Written Statement, which is filedon the appellants side (viz., the Second Defendant), we notice thefollowing pleading in paragraph-3 of the Plaint:

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“3. R.V. Lakshmiah Naidu and V. Rangaswami Naidu werebrothers. They were divided and living separately. They werecultivating their lands separately. The claim of the plaintiffs thatR.V. Lakshmiah Naidu and V. Rangaswami Naidu were living asjoint family and that there was no division in status till the death ofFV. Rangaswami Naidu is false. The joint family status betweenthe brothers was duly disrupted and put an end to. There was alsodivision of properties, and each was enjoying his respectiveproperties separately. V. Rangaswami Naidu also purchased landsindependently.”

(Emphasis supplied)

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135. No doubt, in O.S. No. 89 of 1983, what is averred is that theproperties belonged to one V. Rangaswami Naidu. It was further averredin paragraph-9 of the Plaint that the brothers had divided the propertiesas 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 wereH

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 afterthe partition and belonged to him absolutely. We must also not lose sightof 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 numberof the Suit after renumbering). Still further, we notice that when theissues were framed, the first issue was whether the Will executed by V.Rangaswami Naidu is true and valid and whether it came into force.Aseparate issue (Issue no. 2) was framed as to whether there was an oralpartition. It is also noticed that in the discussion, the matter was debatedbefore the Trial Court on the basis that by the publication of notice on12.05.1955 in “Navva India” newspaper, there was division of theproperty.

136. We have already noticed the pleadings of the SecondDefendant in the Written Statement in O.S. No. 649 of 1985. Both theSuits were tried together. It has been averred that the brothers weredivided and living separately. The claim of the respondents that therewas no division in status till the death of V. Rangaswami Naidu, hasbeen specifically pleaded to be false. The joint family status, it has beenstated, was duly disrupted and put an end to.

137. We would think that, in the facts of this case, the principlethat no amount of evidence can be looked into, if there is no pleading, isin apposite. As to how the joint family status was disrupted or as towhether 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 whichthe division was brought about, in our view, is not fatal to the appellantscase, if it is otherwise established.

WHETHER THE CONTENTS OF B1 AMOUNT TO ADECLARATION TO EFFECT DIVISION

138. That there was no oral partition is found unassailable.Therefore, the statement in B1, about the same, needs to be ignoredbeing incorrect but the last sentence in our view is capable of standingas a standalone statement. The use of the word ‘also’ appears to bedeliberate. It would also probablise that there was legal advice whichpreceded both the making the Will and the drafting of the Notice. InB13, the executor has spoken about V. Rangaswami Naidu, expressinghis desire to execute the Will on two or three occasions and about their ABC

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Abeing 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 casethat the brothers exchanged list of properties. He may have entertainedthe idea that what had happened, did constitute a case for oral partition.If we give credit to V. Rangaswami Naidu, to have the knowledge thatBa division through notice declaring intent to separate, was indispensableto the validity of the Will, as also the use of the word ‘also’, it is capableof being understood as the declaration sufficient in law to cause disruptionin the joint family status.

139. The arguments of Mr. Gurukrishna Kumar, learned SeniorCCounsel, that the sentence having regard to its grammatical implicationsmust persuade us to link it with the earlier partition, alleged in the year1932, does not appeal to us. We should also not be unmindful of the factthat B10-Will contains the statement about having made a notice. Aslong as the coparcener wishes to separate, he is not required to give anyDreason to separate.WHETHER THERE WAS COMMUNICATION TO THEOTHER COPARCENER

140. Now, we come to the aspect as to whether B1 wascommunicated. B1 has been marked in the Trial Court as datedE12.05.1955. The entire case of the appellants is that the notice wasissued 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 toseparate, 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,FLakshmiah Naidu responded by issuing a communication dated11.05.1955, disputing the partition. In fact, it was also the case of theappellants that Lakshmiah Naidu revealed his mind to be that for bringingabout disruption, that V. Rangaswami Naidu had to communicate to theother coparceners. Still further, the appellant’s case is sought to be builtaround the communication, by V. Rangaswami Naidu on 16.05.1955 toGLakshmiah Naidu reiterating contents of B1.

141. We have noticed that the contents of B1, having regard tothe last part, would be sufficient to cause a division in the status of thejoint family. The question is whether it was communicated, as is requiredin law. On the one hand, the communication set up by the appellantsHdated 11.05.1955 and 16.05.1955 are not produced. This shortcoming is

sought to be overcome by the appellants by relying upon the case set upby ‘A’ Party, as revealed in B2. It is the order passed by the Magistrateunder Section 145 of the CrPC. We do notice, as far as the Noticeissued by V. Rangaswami Naidu, it is a notice in a newspaper. It maynot be as difficult in procuring a copy of the newspaper as it might be toprocure the private communications, as contained in the letters dated11.05.1955 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, B43and B44, respectively, in proceedings which culminated in B2. Thepleadings 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 acontention is raised that it is not relevant under Section 40 to 43 of theEvidence Act. This question is not seen raised in the courts below. Itmay be true that Section 40 deals with previous judgments which wouldconstitute a bar to the fresh proceedings and B2 is, therefore, not relevantunder Section 40 of the Evidence Act. Section 41 also deals with judgmentsrendered in probate, matrimonial, admiralty or insolvency jurisdiction,which has the effect mentioned in Section 41 of the Evidence Act. It isclearly inapplicable to the facts of the case. Section 42 deals with decisionsbeing relevant if they relate to matters of public nature relevant to theinquiry. It is also not relevant. Section 43 reads as follows:

“43. Judgments, etc., other than those mentioned in sections40 to 42, when relevant.—Judgments, orders or decrees, otherthan those mentioned in sections 40, 41 and 42, are irrelevant,unless the existence of such judgment, order or decree, is a factin issue, or is relevant under some other provisions of this Act.”

143. In this regard, we have scanned B2-Order. The relevantpart where the pleading is set out is as follows:

“The deceased declared his divided status by a notice in the ‘NavaIndia’ dated 10.5.1955 (Exhibit P42). This attracted the attentionof B Party No. 1 who wrote to him on 11.5.55 (Exhibit P43) thatall of them were undivided and that if the deceased wanted to getdivided he had to intimate it to the other copartners. The deceasedreplied on 15.5.55 by Exhibit P44 that the stand taken by B PartyNo. 1 was not correct. This was acknowledged by a B Party No.1 on 17.5.55 (Exhibit P45).

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A144. What is conspicuous by its absence in B2-Order is theresponse of the B Party in regard to these documents. It is not a casewhere there is reference to the pleading of the B Party, viz., theLakshmiah 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 forthe A Party on the lines we have indicated. Except for the discrepancyBin 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 beenconsidered by a Bench of this Court inState of Bihar v. Radha KrishnaSingh and Others54. The Court took the view that reliance cannot beCplaced on judgment based on Section 13 of the Evidence Act if it is notfalling under Sections 40 to 42. Thereafter the Court held as follows:

“129. In Gadadhar Chowdhury v. Sarat ChandraChakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195IC 412 : 72 Cal LJ 320] it was held that findings in judgments notDinter partes are not admissible in evidence. In this connection aDivision Bench of the Calcutta High Court observed as follows :

“Though the recitals and findings in a judgment not interpartes are not admissible in evidence, such a judgment and decreeare, in our opinion, admissible to prove the fact that a decree wasEmade in a suit between certain parties and for finding out forwhat lands the suit had been decreed.

130. This, in our opinion, is the correct legal positionregarding the admissibility of judgments not inter partes.”

FWe do notice that the second of ‘A’ party in fact was the executorof the Will under which the appellants claim.

146. Interestingly, the respondents have produced as A109 whichhas been marked as the copy of the type set in the revision before theHigh Court (the revision is filed against order B2 passed in Section 145proceedings). It is shown wrongly marked as the order in the proceeding.GTherein we notice that the contents include apart from the impugnedorder (B2) the respondents documents. Among the contents the Exhibitsfiled on behalf of the B party are produced. It also contains the evidenceof L. Venkatapathy who is none other than PW1 in this case. Therein, H541983 (3) SCC 118

there is no mention about B42, B43 and B44 in his examination. In hiscross examination after stating that he found his signature(Testator) inevery page of [Exhibit B68], the Will he deposed,he did not know if hisfather had replied to the publication in ‘Navva India’. We do not knowwhat prevented the plaintiff in O.S. No. 83 of 1989 from producing thedocuments B42, B43 and B44 which would have also been available asthe documents filed by the B party has been produced by B party as partof A109. There is no finding in B2 about B42 publication, B43 or B44.

147. During the hearing, it was pressed before us by therespondents that B1 is dated 12.05.1955 and if it is 12.05.1955, the veryedifice of the appellant’s case would fall to the ground as then it wouldbe impossible to support the position that in response to the notice whichis 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-productionof the letters dated 11.05.1955 and 16.05.1955, are sought to beemphasized. As noted, we did call for the records to verify whethermarking of the documents B1 dated 12.05.1955 was a mistake, as pointedout byMr. C.A. Sundaram, learned Senior Counsel or it did reflect theground reality. We find from B1 that Notice is published in the newspaperwhich 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 thatflow from the said finding? One way to look at would be that since thenotice containing the declaration, is published in a newspaper only on12.05.1955, the case of the appellants that Lakshmiah Naidu gave areply on 11.05.1955, on noticing the notice, cannot be accepted. If thesame is not accepted, then, the question of V. Rangaswami Naidu, sendinga rejoinder, as it were also, would not arise.

148. We have considered the contents of the Will. There is areference to the publication of the Notice on the said date. The Will isdated 10.05.1955. It appears to us quite clear that the Will would nothave 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 Willand the other circumstances, we are inclined to believe that it wouldhave been drafted earlier. Equally, publication of a matter in a newspaperwould have been arranged earlier. But what is important is, not merelythe intention of the Testator as a coparcener to declare his mind to theother coparcener to separate, and even have it set-out in the Will, andfurther even going a step further, getting it published, but it must be A

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Aproved further that, before the Testator passed away, the matter containedin B1 was known to the other coparcener, viz., Lakshmiah Naidu. Thisrequirement is indispensable as held in Addagada Raghavamma andothers(supra). In this regard, we notice that DW1, the witness on behalfof the appellants, has this to say:

B“On 11.05.1955, Lakshmiah Naidu gave a reply in responseto B1. The same is marked as B44 in CrPC 145 Proceedings. Heclearly admitted about the division in status made betweenRangaswami Naidu and Lakshmiah Naidu.”

149. This statement goes against the appellants case. It appearsCto be the case of R. Krishnammal and the Executor in Section 145 of theCrPC proceedings as what is stated is that on seeing B42 (which ismarked as the ‘Notice’ published on 10.05.1955), Lakshmiah Naidu sentB43 stating that there was no partition between them, for which, thedeceased sent B44 reply. Thereafter, DW1 says that on 10.05.1955, onpublication of advertisement in “Navva India”, he came to know thatDone objection advertisement was published on the very next date.

150. Let us see what PW1 said, who was 26 years of age in 1955and who has also given evidence in Section 145 CrPC proceedings. Ifthere is a clear admission by him, establishing that the declaration wasknown to Lakshmiah Naidu before the death of V. Rangaswami Naidu,Ethe appellants may succeed on this point subject to the contradictionbeing resolved about the date of B1. After stating that, on 10.05.1955, V.Rangaswami Naidu issued Notice in India newspaper, as the partitionwas done, and stating that, V. Rangaswami Naidu fictionally made suchpaper advertisement, he, thereafter, says that he came to know aboutFthe newspaper advertisement and Will, only in Section 145 of the CrPCproceedings. Thereafter, he says, on 12.05.1955, V. Rangaswami Naidugave one paper publication in “Navva India”. But again, he says hecame to know regarding the same during Section 145 proceedings. Hefurther says that his father did not ask V. Rangaswami Naidu as to whyhe gave B1 publication. The witness says, he is not aware why B1Gpublication was given. Thereafter, he says, he does not know nowwhether the newspaper advertisement was filed by his paternal smallUncle in Section 145 proceedings. It has been mentioned in A1 that hisfather made advertisement in respondent to B1. He further says that hisfather may be given that advertisement (Being translation from Tamil, itHdoes not obviously do justice. We read it as “his father may have give

that advertisement”). He says that the advertisement given by his paternalsmall Uncle and his father reply advertisement was filed in A1-Suit andhe says that it is not correct to say that his father had admitted that adivision in shares and his father gave newspaper advertisement as theproperties were not partitioned by metes and bound. He says that it hasbeen mentioned in A1 (Plaint in O.S. No. 71 of 1958), as RangaswamiNaidu gave a reply on 16.05.1955 to his father. He then admits that it iscorrect to say that those are marked as B42, B43 and B44, respectively,in (‘as’ sic) Section 145 of the CrPC proceedings and he gave thedeposition in those proceedings. We would think that this is a vital pieceof evidence which may show that B43 is the communication dated11.05.1955 which must be taken to be sent by his father to which V.Rangaswami Naidu respondend on 16.05.1955. This should mean thatthe publication on 10.05.1955 became known to Lakshmiah Naidu, asset-out in B2. The exact contents of B43 are not available.

151. When PW1 was examined in Section 145 of the CrPCproceedings, in the chief examination, he does not say a word aboutB42, B43 or B44. Then, in cross-examination, he says that he does notknow if his father had replied to the publication in “Navva India”.

152. We must notice that the High Court has proceeded on thebasis of the inconsistency in the matter. There is no pleading in regard toB42, B43 or B44 in O.S. NO. 89 of 1983. In answer to the plaintiffscase, based on B1, which is dated 12.05.1955, the High Court finds thatthe First Defendant set-up a case that the Notice was published on10.05.1955. The High Court also noticed the non-production of thecommunications dated 11.05.1955 and 16.05.1955.

153. However, there is no case that the Notice was published ontwo days, viz., on 10.05.1955 and 12.05.1955. What is evidence producedbefore the Court is B1, which is dated 12.05.1955. If that is so, despitethe inferences one could possibly draw from the deposition of PW1, itwould bring it into collision with the evidence before us. If we proceedon the basis of B1, which is dated 12.05.1955, then, the reply being senton 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 toseparate to Lakshmiah Naidu. In such circumstances, we would agreewith the High Court that the case relating to B1, though there is apublication made, we cannot attribute knowledge of the same toLakshmiah Naidu, before the death of his brother. We are not, for a A

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Amoment, holding that a Notice in a newspaper cannot serve as a Noticeby a coparcener to effect division. However, merely causing a Notice tobe published, without there being evidence to show that the intendedrecipient became aware of it, may not suffice. Though a Notice in anewspaper is purported to serve as Notice to the general public, what isrequired is Notice to the concerned coparcener [See paragraphs-28 andB32 of Addagada Raghavamma(supra), extracted by us in paragraph-89hereinbefore]. There cannot be a presumption that a person has read aparticular newspaper, and even more importantly, that he has read theNotice. Even the case of the appellants appears to be that, on seeing theNotice dated 10.05.1955, the communication dated 11.05.1955 was sentCby Lakshmiah Naidu, which we have found unacceptable, having regardto B1 being dated 12.05.1955. The importance of the reply dated11.05.1955 was that it would establish knowledge of the Notice byLakshmiah Naidu. There is no evidence that the Notice published in thenewspaper dated 12.05.1955 was known to Lakshmiah Naidu beforehis death.D

Since there was no division brought about by V. RangaswamiNaidu before his death in view of the above discussion, the Will wouldbe 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, whichwas before the enactment of Hindu Succession Act, 1956. Thus, whenEhe died, he left behind an interest in the Hindu joint family. Whensuccession opened to his estate, it is therefore, the provisions of Section3(2) of the Hindu Women’s Right to Property Act, 1937 which apply. Alimited estate in other words sprung into being in favour ofR. Krishnammal, his widow. This estate would bloom under Section 14

F(1) of the H.S.A. into an absolute estate. When she compromised in OS71 of 1958 giving up her rights over the property which included theplaint scheduled property in these cases,it conferred absolute rightsinfavour of the Lakshmiah Naidu branch. We again reiterate the effect ofthe death of Rangaswami Naidu being before the Hindu Succession Act came into forceto be that it would deprive persons of rights available inGrespect of a Hindu who dies intestate after the Act came into force.

Now assuming that there was a valid Will, that is, there was adivision effected in the family, we will consider whether the life estateunder the Will attractSection 14(1) or Section 14(2) of the HinduSuccession Act.H

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

SECTION 14 (1) VERSUS 14 (2) OF HINDU SUCCESSIONACT 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 acquiredbefore or after the commencement of this Act, shall be held byher as full ownerthereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable andimmovable property acquired by a female Hindu by inheritanceor devise, or at a partition, or in lieu of maintenance or arrears ofmaintenance, or by gift from any person, whether a relative ornot, before, at or after her marriage, or by her own skill or exertion,or by purchase or by prescription, or in any other mannerwhatsoever, and also any such property held by her as stridhanaimmediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any propertyacquired by way of gift or under a will or any other instrument orunder a decree or order of a civil court or under an award wherethe terms of the gift, will or other instrument or the decree, orderor award prescribe a restricted estate in such property.”

155. Not only is the interpretation to be placed on Section 14 notres integra, it has engaged the attention of courts, including this Court,on a large number of occasions. A large number of decisions has beencited before us. The appellants would contend that in the facts of thiscase the provisions of Section 14(2) would apply whereas the branch ofLakshmiah Naidu would invite us to uphold the view of the High Courtthat Section 14(1) applies.

156. If Section 14(1) applies, it has the following impact:

The estate which R. Krishnammal had in the propertiesincluding the plaint schedule properties would become absolute.Then, the very edifice of the claim made by the appellants whowere legatees under the Will conferred with absolute rights onthe death of R. Krishnammal would collapse and they would haveno right. If on the other hand, Section 14(2) applies, then, again onthe basis that there is a will left behind by Rangaswami Naiduwhich is otherwise valid and genuine, the appellants could claimtitle as remaindermen.

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157. Before we consider the case law, it is necessary to deal withthe contention of the appellants that R. Krishnammal did not set up acase under Section 14(1) and that she claimed only under the will in OSNo.71 of 1958 we need only refer to para 11 of OS No.71 of 1958. Thesame reads as under:

B“11. The plaintiff however further states that even on the verycase set up by R.V. Lakshmiah Naidu in the 145 proceedings andthe admission made by him, her rights are even better and as acoparcener she is entitled under the combined operation of ActsXVIII of 1937 and XXX of 1956 to an absolute state in one halfof the joint properties and to demand partition and possession ofCher share.Defendants 1 to 4 are entitled to the other half share.The plaintiff is unable to specify exactly all the properties in thepossession of the defendants 1 to 4 but as far as she has beenable to do so, she has set them out in Schedule II. The plaintiffcraves leave to add to them as and when she gets better particulrs.DThe plaintiff also prays that the defendants 1 to 4 might be calledupon to make a full and true disclosure of the joint family propertiesin their possession.”

It is clear that she expressly referred to the Hindu SuccessionAct also.

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It is clear that she expressly referred to the Hindu SuccessionAct also.

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158. Mst. Karmiv. Amru and Others55 is a judgment which isrendered by three learned judges. It was a case where a Will wasexecuted revoking the earlier will by which a Hindu bequeathed his entireestate on his widow during her life, and thereafter, the same was todevolve on his collaterals. The Will was dated November 13, 1937. ThisFCourt held that the widow having succeeded on the strength of the Willcould not claim any right over and above what was given to her underthe Will. It was held that the life estate could not become absoluteestate under the Hindu Succession Act 1956.

159. V. Tulasammav. Sesha Reddy56 is a Judgment rendered byGa Bench of three learned Judges. It was a case where the husband ofthe appellant therein died in a state of jointness with his brother in theyear 1939. She obtained a Decree for maintenance. This was followedby execution proceedings wherein an out of court of settlement took 55 (1972) 4 SCC 86H56(1977) 3 SCC 99

place under which the appellant was allotted scheduled properties whichwas certified on 30[th] July, 1949. However, it was a limited interest withno power of alienation. The suit out of which an appeal arose was filedby the respondent impugning an alienation made by the appellant. Onthese facts, we notice the following principles have been laid down:

“62. (1) The Hindu female’s right to maintenance is not anempty formality or an illusory claim being conceded as a matterof grace and generosity, but is a tangible right against propertywhich flows from the spiritual relationship between the husbandand the wife and is recognised and enjoined by pure Shastric Hindulaw and has been strongly stressed even by the earlier Hindujurists starting from Yajnavalkya to Manu. Such a right may notbe a right to property but it is a right against property and thehusband has a personal obligation to maintain his wife and if he orthe family has property, the female has the legal right to bemaintained therefrom. If a charge is created for the maintenanceof a female, the said right becomes a legally enforceable one. Atany rate, even without a charge the claim for maintenance isdoubtless a pre-existing right so that any transfer declaring orrecognising such a right does not confer any new title but merelyendorses or confirms the pre-existing rights.

(2) Section 14(1) and the Explanation thereto have beencouched in the widest possible terms and must be liberally construedin favour of the females so as to advance the object of the 1956Act and promote the socio-economic ends sought to be achievedby this long-needed legislation.

(3) Sub-section (2) of Section 14 is in the nature of a provisoand has a field of its own without interfering with the operation ofSection 14(1) materially. The proviso should not be construed in amanner so as to destroy the effect of the main provision or theprotection granted by Section 14(1) or in a way so as to becometotally inconsistent with the main provision.

(4) Sub-section (2) of Section 14 applies to instruments,decrees, awards, gifts, etc. which create independent and newtitles in favour of the females for the first time and has no applicationwhere the instrument concerned merely seeks to confirm, endorse,declare or recognise pre-existing rights. In such cases a restrictedestate in favour of a female is legally permissible and Section A

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14(1) will not operate in this sphere. Where, however, an instrumentmerely declares or recognises a pre-existing right, such as a claimto maintenance or partition or share to which the female is entitled,the sub-section has absolutely no application and the female’slimited interest would automatically be enlarged into an absoluteone by force of Section 14(1) and the restrictions placed, if any,under the document would have to be ignored. Thus where aproperty is allotted or transferred to a female in lieu of maintenanceor a share at partition, the instrument is taken out of the ambit ofsub-section (2) and would be governed by Section 14(1) despiteany restrictions placed on the powers of the transferee.

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(5) The use of express terms like ‘property acquired by afemale Hindu at a partition’, ‘or in lieu of maintenance’, ‘or arrearsof maintenance’, etc. in the Explanation to Section 14(1) clearlymakes sub-section (2) inapplicable to these categories which havebeen expressly excepted from the operation of sub-section (2).

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(6) The words ‘possessed by’ used by the legislature inSection 14(1) are of the widest possible amplitude and include thestate of owning a property even though the owner is not in actualor physical possession of the same. Thus, where a widow gets ashare in the property under a preliminary decree before or at theEtime when the 1956 Act had been passed but had not been givenactual possession under a final decree, the property would bedeemed to be possessed by her and by force of Section 14(1) shewould get absolute interest in the property. It is equally well settledthat the possession of the widow, however, must be under somevestige of a claim, right or title, because the section does notFcontemplate the possession of any rank trespasser without anyright or title.

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(7) That the words ‘restricted estate’ used in Section 14(2)are wider than limited interest as indicated in Section 14(1) andthey include not only limited interest, but also any other kind oflimitation that may be placed on the transferee.”

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160. In Shakuntla Deviv. Kamla57, again, a Bench of three learnedJudges was dealing with a case where Hindu wife was given a lifeinterest for maintenance by a Will. The Court followed the Judgment in H57 (2005) 5 SCC 390

V. Tulsamma(supra) and took the view that it is Section 14(1) whichwould apply. The terms of the Will inter alia provided that the propertywas not to be alienated and it was meant for their maintenance. This isa case where testator had three wives of which one had pre deceasedhim. Under the Will after the death of the second wife the life estatecame to be vested with the third wife. The Will provided that the wifewas provided with the property for her maintenance without any powerof alienation.

161. In Sadhu Singhv. Gurdwara Sahib Narike58, a Bench of twolearned Judges had the following facts before it. The property in questionwas self-acquired property. It became the subject matter of the Will bya Hindu in favour of his wife on 07.10.1968. His widow gifted the propertyto a Gurudwara. This became subject matter of the litigation and thequestion arose whether the matter fell under Section 14 (1) or 14(2).This Court speaking though P.K. Balasubramaniam, J. noted theprovisions of the Hindu Adoption and Maintenance Act and held that, inthe absence of the any instrument or Decree providing for it, no chargefor maintenance is created in the separate property of the husband. TheCourt proceeded to notice the facts in V. Tulsamma(supra) and foundthat it was a case where the female Hindu possessed the property onthe date of the Act (Hindu Succession Act, 1956) in which she had apre-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 thedecisions of this Court, that for Section 14(1) of the Act to getattracted, the property must be possessed by a female Hindu onthe coming into force of the Hindu Succession Act. In Mayne onHindu Law, 15th Edn., p. 1171, it is stated:

“On a reading of sub-section (1) with Explanation, it is clearthat wherever the property was possessed by a female Hindu asa limited estate, it would become on and from the date ofcommencement of the Act her absolute property. However, ifshe acquires property after the Act with a restricted estate, sub-section (2) applies. Such acquisition may be under the terms of agift, will or other instrument or a decree or order or award.”

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8. In Gummalapura Taggina Matada Kotturuswami v. SetraVeeravva [1959 Supp (1) SCR 968 : AIR 1959 SC 577] this Courtquoted with approval (at SCR pp. 977-78) the following words ofJustice P.N. Mookherjee, in Gostha Behari Bera v. HaridasSamanta [AIR 1957 Cal 557 : 6 CWN 325] (AIR at p. 559, para12):

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“The opening words ‘any property possessed by a femaleHindu’ obviously mean that, to come within the purview of thesection, the property must be in possession of the female concernedat the date of commencement of the Act. They clearly contemplatethe female’s possession when the Act came into force. Thatpossession might have been either actual or constructive or in anyform, recognised by law, but, unless the female Hindu, whoselimited estate in the disputed property is claimed to have beentransformed into absolute estate under this particular section, wasat least in such possession, taking the word ‘possession’ in itswidest connotation, when the Act came into force, the sectionwould not apply.” and added: (SCR p. 978)

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“In our opinion, the view expressed above is the correctview as to how the words ‘any property possessed by a femaleHindu’ should be interpreted.”

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9. In Eramma v. Verrupanna [(1966) 2 SCR 626 : AIR1966 SC 1879] this Court emphasised that the property possessedby a female Hindu as contemplated in the section is clearly theproperty to which she has acquired some kind of title whetherbefore or after the commencement of the Act and negatived aclaim under Section 14(1) of the Act in view of the fact that thefemale Hindu possessed the property on the date of the Act byway of a trespass after she had validly gifted away the property.The need for possession with a semblance of right as on the dateof the coming into force of the Hindu Succession Act was thusemphasised.”

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162. Still further, the Court proceeds to hold that V. Tulsamma(supra) is applicable when a female Hindu possesses the property onthe date of the Act under semblance of a right whether it is limited orpre-existing act. It further held that it cannot be applied ignoring therequirement of the female Hindu having to be in possession of propertyHdirectly or constructively as on the date of the Act though she may acquire a right to it even after the Act. It relied on judgment of this Courtin Bhura and othersv. Kashi Ram59, which was a case where the fatherhad 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 Subramanyanv. Soumi Mazumdar and others60. It is finally also necessary to noticeparagraphs-11, 12, 13 and 14 of the judgment in Sadhu Singhv. GurdwaraSahib Narike and others61:

“11. … What emerges according to us is that any acquisitionof possession of property (not right) by a female Hindu after thecoming into force of the Act, cannot normally attract Section 14(1)of the Act. It would depend on the nature of the right acquired byher. 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 adevise, gift or other transaction, any restriction is placed on herright, the restriction will have play in view of Section 14(2) of theAct.

12. When a male Hindu dies possessed of property afterthe coming into force of the Hindu Succession Act, his heirs asper the Schedule, take it in terms of Section 8 of the Act. The heiror heirs take it absolutely. There is no question of any limitedestate descending to the heir or heirs. Therefore, when a maleHindu dies after 17-6-1956 leaving his widow as his sole heir, shegets the property as Class I heir and there is no limit to her estateor limitation on her title. In such circumstances, Section 14(1) ofthe Act would not apply on succession after the Act, or it has noscope for operation. Or, in other words, even without calling in aidSection 14(1) of the Act, she gets an absolute estate.

13. An owner of property has normally the right to dealwith that property including the right to devise or bequeath theproperty. He could thus dispose it of by a testament. Section 30 ofthe Act, not only does not curtail or affect this right, it actuallyreaffirms that right. Thus, a Hindu male could testamentarilydispose of his property. When he does that, a succession underthe Act stands excluded and the property passes to thetestamentary heirs. Hence, when a male Hindu executes a will 59(1994) 2 SCC 111

60(2006) 8 SCC 91

61(2006) 8 SCC 75

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Abequeathing the properties, the legatees take it subject to the termsof the will unless of course, any stipulation therein is found invalid.Therefore, there is nothing in the Act which affects the right of amale Hindu to dispose of his property by providing only a lifeestate or limited estate for his widow. The Act does not stand inthe way of his separate properties being dealt with by him as heBdeems fit. His will hence could not be challenged as being hit bythe Act.

14. When he thus validly disposes of his property by providingfor a limited estate to his heir, the wife, the wife or widow has totake it as the estate falls. This restriction on her right so provided,Cis really respected by the Act. It provides in Section 14(2) of theAct, that in such a case, the widow is bound by the limitation onher right and she cannot claim any higher right by invoking Section14(1) of the Act. In other words, conferment of a limited estatewhich is otherwise valid in law is reinforced by this Act by theDintroduction of Section 14(2) of the Act and excluding the operationof Section 14(1) of the Act, even if that provision is held to beattracted in the case of a succession under the Act. Invocation ofSection 14(1) of the Act in the case of a testamentary dispositiontaking effect after the Act, would make Sections 30 and 14(2)redundant or otiose. It will also make redundant, the expressionE“property possessed by a female Hindu” occurring in Section 14(1)of the Act. An interpretation that leads to such a result cannotcertainly be accepted. Surely, there is nothing in the Act compellingsuch an interpretation. Sections 14 and 30 both have play. Section14(1) applies in a case where the female had received the propertyFprior to the Act being entitled to it as a matter of right, even if theright be to a limited estate under the Mitakshara law or the rightto maintenance.”

163. This Judgment came to be followed in Jagan Singh (Dead)Through Lrs.v. Dhanwanti and another62 by a Bench of two learnedGJudges. It was a case where the testator executed a registered Will inrespect of Plot X with the restriction that the Legatee would not havethe right to transfer the property. The matter arose out of a suit forinjunction restraining alienation of Property X. This Court purported tofollow the judgment rendered by a Bench of three learned Judges in H62 (2012) 2 SCC 628

Navneet Lal alias Rangiv. Gokul and others63. We have perused theJudgment in Navneet Lal alias Rangi(supra). We notice that the questionwhich arose for consideration was whether the Will bestowed an absoluteestate or limited estate on a widow. The Court, on a construction of theWill, found that it only created a limited interest on the widow. It isnoteworthy that the Court was not dealing with the question whether thelimited estate would blossom into Section 14(1). In Sharad Subramanyanv. Soumi Mazumdar and others64, the Court found that there was nomaterial to indicate that the property was given to a Hindu female in lieuof her right to maintenance. It is a case where it is found that the wifewas living with her husband, and till the Will was probated, she wasenjoying the property as her own. Jupudy Pardha Sarathyv. PentapatiRama Krishna65 is a Judgment rendered by two learned judges. It was acase where a Hindu executed a Will in favour of his wife which she wasto enjoy but after her death one of her sons was to have the propertywith absolute right. The question arose again whether the case attractedSection 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, theCourt referred to R.B.S.S. Munnalal and othersv. S.S. Rajkumar andothers66 among other decisions and distinguished Sadhu Singh notingthat therein the court proceeded on the basis that women had no pre-existing right in the property and therefore the life estate could not beenlarged to absolute under Section 14(1). We further notice that it wasfound that it was not disputed that the widow was enjoying the propertyby way of maintenance. The Court, therefore, distinguished Judgmentof G. Rama Rao.

164. In Gumpha (Smt.) and othersv. Jai Bai67, a Bench of twolearned Judges was dealing with a case where a Will was executed inthe year 1941 by a Hindu giving one-half share to each of his wives fortheir life and the only daughter was to be the ultimate beneficiary. Therewas a further Will executed by one of the wives in favour of a completestranger to the family, viz., her domestic servant. The alienation waschallenged and the question arose whether the right fell under Section 63 (1976) 1 SCC 63064(2006) 8 SCC 9165 (2016) 2 SCC 5666 AIR 1962 SC 149367(1994) 2 SCC 511

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A14(1) or 14(2) of the Hindu Succession Act. The Court undertook anelaborate discussion and came to the conclusion that it was a case whichfell 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 righton a Hindu woman as against a man. This Judgment came to beconsidered in a later Judgment by a Bench consisting of three learnedBJudges, i.e., in C. Masilamani Mudaliar and othersv. Idol of SriSwaminathaswami Swaminathaswami Thirukoil and others68. This casealso involved a Will in favour of the widow of one Somasundaram Pillai.The statements in the Will indicated Testator entertained in his mind hisduty to provide maintenance to his wife. The Court undertook a reviewCof the earlier case law. It proceeded to find that the view taken in Gumpha(Smt.)(supra) was a restrictive interpretation which did not appear tobe sound in law.

165. In Gulwant Kaur and anotherv. Mohinder Singh and others69,a Bench of two learned Judges referred to the elaborate correspondenceDbetween the husband and his wife and found that the case attractedSection 14(1) of the Hindu Succession Act. It was found from perusalof the letter from the husband to his wife that the land was given in lieuof her maintenance. The Court, in fact, expressed its inability to understandthe distinction between the day-to-day expenses and maintenance. TheCourt distinguished Erammav. Veerupana70. Further, the Court dealtEwith the argument that the decision of this Court in Bai Vajia (Dead) byLrs.v. Thakorbhai Chelabhai and others71 must be understood as layingdown that what was enlarged under Section 14(1) of the HinduSuccession Act was a womans estate under Hindu law. We noticepararagraph-8A of Gulwant Kaur(supra), which reads as follows:F“8A. Shri Tarkunde particularly relied on the followingpassage 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 theconcerned Hindu female must have limited ownership in property,Gwhich limited ownership would get enlarged by the operation ofthat sub-section. If it was intended to enlarge any sort of a right 68AIR 1996 SC 1697/(1996) 8 SCC 52569AIR 1987 SC 225170AIR 1966 SC 1879H71AIR 1979 SC 993

which could in no sense be described as ownership, the expression‘and not as a limited owner’ would not have been used at all andbecomes redundant, which is against the well recognised principleof interpretation of statutes that the legislature does not employmeaningless language.”

We do not understand the court as laying down that what-was enlarged by subsection (1) of Section 14 into a full estatewas the Hindu woman’s estate known to Hindu law.When thecourt uses the word “limited estate”, the words are used to connotea right in the property to which the possession of the female Hindumay be legitimately traced, but which is not a full right ofownership. If a female Hindu is put in possession of propertypursuant to or in recognition of a right to maintenance, it cannotbe denied that she has acquired a limited right or interest in theproperty and once that position is accepted, it follows that theright gets enlarged to full ownership under Section 14(1) of theAct.That seems to us to follow clearly from the language ofSection 14(1) of the Act.”

(Emphasis supplied)

166. Appellants cannot derive support from the judgment reportedin Gaddam Ramakrishnareddy and Others v. Gaddam Ramireddyand Another72. Therein, a gift deed was executed on 21.12.1952 creatinga 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 underSection 14(1). It is necessary to notice that the decision turned essentiallyon the consideration of the terms of gift deed and what is more importantis the following finding:

“28. The aforesaid provision has been considered by both the courtsbelow which have concurrently held that the life estate createdby Pullareddy in favour of Sheshamma was not in lieu of hermaintenance as she was alreadymanaging the properties inquestion and in no uncertain terms it was the donee’s desire thatthe said properties should ultimately go to his son Ramireddy,Respondent 1 herein. Once that is established, apart from othersurrounding circumstances, the immediate fallout is thatSheshamma’s rights in the properties came to be governed by A

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[2020] 9 S.C.R.

Asub-section (2) of Section 14 of the Hindu Succession Act, 1956,and her right does not blossom into an absolute estate ascontemplated under sub-section (1).”

167. We have already adverted to the terms of the Will. It isrecited in the Will that the properties mentioned in ‘A Schedule’ areBbequeathed to his wife, no doubt, for her life. This is a case where theWill itself specifically recites that she is to take income from the propertiesfor her expenses, inter alia. She is to make use of the income also forgiving presents to his sisters on ceremonial occasions. Therefore, this isa case where the very document, which the appellants lays store by,makes it unnecessary for us to search for any evidence to find out whatCis the purpose of giving the property. The Testator has made his motiveclear. The argument of the appellants that the very same document refersto the fact that she has been given other properties towards hermaintenance, does not, in our view, detract from the central question asto what impelled the Testator to create the life estate. The Will wasDexecuted on 10.05.1955 which is prior to the Hindu Succession Act unlikein the case of Sadhu Singh(supra). Obviously, such a Will could nothave been executed anticipating the provisions of Section 14(2) of theHindu Succession Act. R. Krishnammal was certainly entitled tomaintenance and the bequest in question expressly refer to the purposes.The properties involved were not bequeathed to R. Krishnammal withoutEher having any right at all. The Will did not purport to bequeath propertyby way of creating new rights in the facts of this case. Even the case ofthe appellants is that she was provided for maintenance by giving herother properties as indicated in the Will. If the argument of the appellantsis to be accepted, we would have to consider whether what would beFthe quantum of maintenance which the Testator would considerappropriate. The extent of the other property is not shown. We wouldthink that such an exercise is unnecessary when the terms of the Willindicate that the Testator intended that his widow should be able tomaintain herself appropriately from the income of the properties he was bequeathing to her also, and for that purpose, created, no doubt whatGcan be described as, a limited estate.

168. In this regard, we may also notice that the followingobservations in C.Masilamani Mudaliar v. Idol of SriSwaminathaswami73:

H73AIR 1996 SC 1697

“30. Shri Rangam then contended that when the testator hasthought of providing only maintenance to the two widows, theproperties being more than 10 acres, the maintenance must beonly proportionate to the needs of the widow and to that extentthe widow acquires an absolute right but not the entire property.We find no force in that contention. It is to be seen that under thepre-existing law, she is entitled to remain in possession of thewhole estate known as widow’s estate and after the Act has comeinto force that widow’s estate was blossomed into an absoluteestate by operation of Section 14(1). Even in the Will Ex. A-1, nosuch restrictive covenant was engrafted giving reasonableproportion of income consistent with her needs for maintenance.On the other hand, the express covenant is that, he recognisedher right to maintenance and in lieu of the maintenance propertywas given to her for her maintenance during her lifetime. That isthe pre-existing right as per then existing law. After the Act hascome into force, the limited estate has blossomed into an absoluteestate. Therefore, the doctrine of proportionality of maintenanceis not applicable and cannot be extended.”

169. In such circumstances, we would think that the view takenby 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 HINDUSUCCESSION ACT, THE PLEADING AS TO POSSESSIONOF 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 ofKrishnammal on 30.04.1977 and that thereupon the plaintiff anddefendants 1 to 3 have become entitled to possession. We further noticeparagraph 5 wherein it is stated that the plaintiff and Defendants 1 to 3(branch of Lakshmiah Naidu) were in possession of the properties andenjoyment thereof jointly. However, we further notice that in paragraph21, it is alleged that the defendants 4 to 11 (branch of Lakshmiah Naidu)are in possession without any title whatsoever, and that their possessionis wrongful.

171. If we revert backwards in point of time, we notice thefollowing pleadings in O.S. No. 71 of 1958, the suit filed by AB

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AR. Krishnammal, the widow. She would say that the properties describedin Schedule-I, fell to the share of her husband in the partition and he hasseparate possession. The properties which were self-acquired by himwere in Schedule-IA. Thereafter, she referred to the proceedings underSection 145. In paragraph-10, R.Krishnammal averred that the possessionof the defendantsin Schedule-I and IA is unlawful and that she is entitledBto succeed on either footing and recover possession of either Schedule-I and IA properties or moiety of the properties in Schedule-I, IA and II.There is a reference to a receiver appointed during the proceedingsunder Section 145. In paragraph 17, it is averred inter alia that thecause of action arose on or about June, 1955, when defendants 1 to 4Cunlawfully trespassed on the properties and on 16.04.1956, when RevenueDivisional Officer, Coimbatore upheld the possession of R.V. LakshmiahNaidu and his sons. In the application under Order XXIII Rule 3 filed inO.S. No. 71 of 1958, it is inter alia stated as follows:- “Whereas on the death of Rangaswami Naidu on 01.06.1955, theDexecutor could not take possession of the properties……..”172. In Gummalapura Taggina Matada Kotturuswami v. SetraVeeravva and others74, a Bench of three learned Judges, interpretingthe word ‘possessed’, laid down as follows:

“11. … Of course, possession referred to in Section 14 needEnot be actual physical possession or personal occupation of theproperty by the Hindu female but may be possession in law. Thepossession of a licensee, lessee or a mortgagee from the femaleowner or the possession of a guardian or a trustee or an agent ofthe female owner would be her possession for the purpose ofFSection 14. The word “possessed” is used in Section 14 in a broadsense and in the context possession means the state of owning orhaving in one’s hands or power. It includes possession by receiptof rents and profits”. The learned Judges expressed the view thateven if a trespasser were in possession of the land belonging to afemale owner, it might conceivably be regarded as being inGpossession of the female owner, provided the trespasser had notperfected his title. We do not think that it is necessary in the presentcase to go to the extent to which the learned Judges went. It issufficient to say that “possessed” in Section 14 is used in a broad sense and in the context means the state of owning or having inone’s hand or power. In the case of Gostha Behari v. HaridasSamanta [AIR 1957 Cal 557, 559] P.N. Mookherjee, J. expressedhis opinion as to the meaning of the words “any property possessedby a female Hindu” in the following words:

“The opening words in “property possessed by a femaleHindu” obviously mean that to come within the purview of thesection the property must be in possession of the female concernedat the date of the commencement of the Act. They clearlycontemplate the female’s possession when the Act came into force.That possession might have been either actual or constructive orin any form recognized by law, but unless the female Hindu, whoselimited estate in the disputed property is claimed to have beentransformed into absolute estate under this particular section, wasat least in such possession, taking the word —possession” in itswidest connotation, when the Act came into force, the sectionwould not apply.”

In our opinion, the view expressed above is the correct viewas to how the words “any property possessed by a female Hindu”should be interpreted. …” (Emphasis supplied)

173. In Eramma(supra), this Court has made it clear that Section14(1) of the Hindu Succession Act does not confer title on a meretrespasser. It does not confer any right on a person possessing propertywithout any vestige of title. We have made these remarks in the contextof the following set of circumstances:

Following the death of her husband on 01.06.1955, there are twostreams providing right to make a claim over the property in favour of R.Krishnammal, when the Hindu Succession Act came into force. Underthe Will, she was conferred with a life estate. If the Will is treated asnon-existent or invalid, then, again there can be two situations. Her casewould fall to be covered either under Section 3(1) or 3(2) of the HinduWomen’s Right to Property Act, 1937 depending on whether the propertywas separate property of V. Rangaswami Naidu or an interest in theJoint Hindu Family Property. She was also having a right to bemaintained.Therefore, in the facts of this case in view of the finding thatthe properties bequeathed under the Will and which are the plaintscheduled properties are not the separate properties of RangaswamyNaidu, She would have the right to the properties under Section 3(2) of A

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Athe 1937 Act. This we observe for the reason that when the HinduSuccession Act came into force, R. Krishnammal had lost her tussleunder the proceedings under Section 145 of the CrPC. We have alsoseen the nature of the pleading which she made in O.S. No. 71 of 1958.She specifically states it that she is entitled to recover possession of theproperty. No doubt, she does aver that she is entitled to treat herself asBin joint possession. We may however notice the decision inKotturuswamicase(supra), in fact, came to be considered by another three JudgeBench of this Court inMangal Singh and Others v. Smt. Rattno (Dead)by her legal representatives and anotherreported in AIR 1967 SC1786. Therein, this Court held as follows:-C“It was urged on behalf of the appellants that, in order to attractthe provisions of S.14(1) of the Act, it must be shown that thefemale Hindu was either in actual physical possession, orconstructive possession of the disputed property. On the otherside, it was urged that even if a female Hindu be, in fact, out ofDactual possession, the property must be held to be possessed byher, if her ownership rights in that property still exist and, in exerciseof those ownership rights, she is capable of obtaining actualpossession of it. It appears to us that, on the language used inS.14(1) of the Act, the latter interpretation must be accepted.”

ENoticing Section 14 (1) of the Act and that it covered propertypossessed by a female Hindu whether acquired before or after thecommencement of the Act the Court proceeded to explain thecircumstances in which the decision inKotturuswami case(supra) wasrendered. And thereafter the Court laid down as follows:

F“…The Court was not laying down any general principle thatS.14(1) will not be attracted at all to cases where the femaleHindu was not possessed of the property at the date of thecommencement of the Act. In fact, there are no words used inS.14(1) which would lead to the interpretation that the propertymust be possessed by the female Hindu at the date of theGcommencement of the Act. It appears to us that the relevant dateon which the female Hindu should be possessed of the property indispute, must be the date on which the question of applying theprovisions of S.14(1) arises. If, on that date, when the provisionsof this Section are sought to be applied, the property is possessedHby a female Hindu, it would be held that she is full owner of it and

V. KALYANASWAMY (D) BY LRS. & ANR. v.

L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

not merely a limited owner. Such a question may arise in her ownlifetime, or may arise subsequently when succession to herproperty opens on her death. The case before us falls in the secondcategory, because Smt. Harnam Kaur was a limited owner of theproperty before the commencement of the Act, and the questionthat has arisen is whether Smt. Rattno was entitled to succeed toher rights in this disputed property on her death which took placein the year 1958 after the commencement of the Act….”

In fact, we notice that this decision was not referred to by the twoJudge Bench which rendered the decision in Sadhu Singh (supra).However, we find that it has been adverted to in AIR 1996 SC 172 (seepara 14) and a very recent judgment of this Court in Shyam NarayanSigh and Ors. vs. Rama Kant Singh and Ors.reported in 2018(1)RCR (Civil)981 rendered again by a Bench of two learned Judges.Therein, this Court held inter alia as follows:

“In other words, all that has to be shown by her is that she hadacquired the property and that she was ‘possessed’ of the propertyat the point of time when her title was called into question”.

In view of the dicta in Mangal Singh(supra), we feel reassuredof our view that Section 14(1) applies.

174. Incidentally, we may notice what DW1, the witness on behalfof the appellants-legatees himself says:

“..When Cr.PC 145 proceedings was conducted the propertieswere handed over to Latchumaiah and his sons by the receiver.From that onwards the properties are under their possession tilltoday. We never being in the possession of the properties.”

CIVIL APPEAL NOS. 1045-1050 of 2013

175. The appellants claim on the basis of sale deeds executed byA. Alagiriswami, who is the First Defendant in both the Suits. The case,which is sought to be set-up is that, there was a partition among theLegatees of the plaint schedule properties and the properties purchasedby them, was among the properties allotted to the First Defendant. Theirentire case is based on A. Alagiriswami having rights in the property.We have already come to the conclusion that A. Alagiriswami has norights, for the reasons which we have given. The arguments based onthe compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah A

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Abranch from questioning the partition or the Will, cannot be upheld. Insofaras we have held that R. Krishnammal had become the absolute ownerunder Section 14(1) of the Hindu Succession Act, and having regard tothe compromise Decree in O.S. No. 71 of 1958 by which she had given-up all her rights in favour of the respondents, no right vested with A.Alagiriswami which he could have passed to the appellants. The plaintiffsBin O.S. No. 649 of 1985, having sought a declaration of their right, andwhich they were entitled to. The contention that there was no challengeto the saledeeds, may not advance the case of the appellants. We havenoticed what DW1,A. Alagiriswami, one of the Legatees has deposedregarding possession. In fact, as already noted, the appellants did notCchallenge the Decree of the Trial Court and they were apparently sailingalong with the appellants who were the Legatees under the Will. Wesee, therefore, no merit in their case.

176. In regard to the other Appeals, we do not find any merit inview of our findings and the issues which fell for consideration.There isDno merit in any of the appeals. Consequently, all the appeals will standdismissed. There will be no order as to costs.

Divya Pandey

Appeals dismissed.

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