WWW.LIVELAW.

IN
CIVIL APPEAL NOS.1021-1026 OF 2013, ETC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1021-1026 OF 2013

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

VERSUS

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

WITH
CIVIL APPEAL NOS.1027-1032 OF 2013

CIVIL APPEAL NOS.1033-1038 OF 2013

CIVIL APPEAL NOS.1039-1044 OF 2013

AND

CIVIL APPEAL NOS.1045-1050 OF 2013

J U D G M E N T

K.M. JOSEPH, J.

1. One R. Venkitusamy Naidu had two sons and five

daughters. Lakshmiah Naidu and Rangaswami Naidu were

the sons of R. Venkitusamy Naidu. Rangaswami Naidu was

Signature Not Verified

Digitally signed by

married to one R. Krishnammal. They had no issues.

MEENAKSHI KOHLI
Date: 2020.07.17
13:48:52 IST
Reason:

Lakshmiah Naidu had four sons, viz., Bakthavatsalam,

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Venkatapathy, Jagannathan and Ramaswamy. Two civil

suits have generated these appeals by special leave

before us. O.S. No. 649 of 1985 has been filed by those

who claimed under Lakshmiah Naidu whereas the plaintiff

in O.S. No. 89 of 1983 is one of legatees under a Will

allegedly executed by Rangaswami Naidu. The plaint

schedule properties in both the civil suits are the

same.

2. The first suit, viz., O.S. No. 649 of 1985 (as the

said suit was initially filed as O.S. No. 2063 of 1982

and it is re-numbered as O.S. No. 649 of 1985) was

filed to declare the title of the plaintiffs to the

suit property and for injunction against the defendants

in the suit properties. The relief sought inter alia

in O.S. No. 89 of 1983 are as follows:-

“(a)declaring the title of the plaintiff to an 1/3rd

share of the properties described in Schedule I,
hereunder or 1/4th share in the properties,
described in Schedule II hereunder:

(b) directing the partition of the properties

described in schedule I into three equal shares with
reference to good and bad soil and granting separate
possession to the plaintiff one such share or in

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the alternative directing a partition of the

properties described in Schedule II into four equal
shares with reference to good and bad soil and
granting separate possession to the plaintiff one
such share;
(c)appointing a commissioner to effect the
division;

(d)directing defendants 4 to 11 to pay the plaintiff

Rs.15,000.00 as past mesne profits.

(e)directing an enquiry into future mesne profits

from the date of suit till delivery of possession
and pass a decree for such amount as may be
determined on enquiry;

XXX XXX XXX.”

A CHEQUERED HISTORY; FIRST STAGE

3. This litigation has a chequered history. It all

began way back in the year 1955. Proceedings under

Section 145 of the Code of Criminal Procedure, 1898

(for short “CrPC”) came to be initiated before the

First Class Magistrate, Coimbatore as M.C. No. 1 of

1955 and M.C. No. 8 of 1955. Krishnammal, the widow of

Rangaswami Naidu was ‘A’ Party. This was on the basis

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of the report of the Sub-Inspector of Police dated

04.07.1955 to the effect that there was a dispute

regarding the possession of Survey No. 613/04 and

614/03 of Uppilipalayam Village. ‘A’ party no. 1 was

R. Krishnammal, the widow of Rangaswami Naidu. ‘A’

party no. 2 was the nephew of ‘A’ party no. 1 and the

executor of the Will. ‘B’ party no. 1 was the elder

brother of Rangaswami Naidu, viz., Lakshmiah Naidu. ‘B’

party nos. 2 to 4 were the sons of Lakshmiah Naidu.

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

follows:

There was a partition in the year 1932 between ‘B’

party no. 1 and the late Rangaswami Naidu. Rangaswami

Naidu also purchased lands in his own name. He took

several lands on lease. ‘A’ party, in short, claimed

that they were in posession of the land in question.

It was, further, the case of ‘A’ party that Rangaswami

Naidu who was under treatment of cancer but returned

to Coimbatore after the first course of treatment was

over and was staying in the Bungalow at Race Course had

executed a will on 10.05.1955. He appointed ‘A’ party

no. 2, viz., the nephew of his wife as executor. He had

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declared his divided status by way of a notice in

newspaper called ‘Nava India’ dated 10.5.1955.

Lakshmiah Naidu, the first among the ‘B’ party and the

brother of Rangaswami Naidu on seeing the notice

responded to the same by communication dated 11.05.1955

to the effect that they were undivided and if

Rangaswami wanted to get divided he had to intimate the

other co-parceners. It is the further case of ‘A’ party

that Rangaswami Naidu had replied on 16.05.1955

pointing out that the stand of Lakshmiah Naidu in his

response dated 11.5.1955 was incorrect. It is also

alleged that it was acknowledged on 17.05.1955 by ‘B’

party no. 1. After 10.05.1955 the health of Rangaswami

Naidu took a turn for the worse. He left for Bombay on

20.05.1955. He was still conscious of his duties and

was corresponding with others. Rangaswami Naidu passed

away in the early hours on 01.06.1955. ‘B’ party has,

had on the other hand contended that Rangaswami Naidu

and ‘B’ party were members of the joint Hindu Family.

‘B’ party no. 1, viz., Lakshmiah Naidu was sufficiently

aged and could not attend to all items of work.

Rangaswami Naidu and one of Lakshmiah Naidu’s sons were

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asked to look after the cultivation of fields. The case

of partition in the year 1932 was denied. Rangaswami

Naidu became unwell and unable to take food from

January 1955 and was fed by tube. In short, the

contention of ‘B’ party was that Rangaswami Naidu

continued to be an undivided member.

4. The Magistrate did not undertake any discussion

about the will finding it unnecessary. Finding ‘B’

party in possession and that they were entitled to be

in possession until evicted in due course of law by

order dated 16.4.1956, the Magistrate held in favour

of the ‘B’ party. ‘B’ party, it is noted, were

Lakshmiah Naidu and his sons. Lakshmiah Naidu passed

away on 10.04.1958. The revision petition against the

same was dismissed.

THE SECOND STAGE OF LITIGTION

5. The second stage of the litigation is ushered in

by the filing of O.S.No.71 of 1958. The plaintiff was

R. Krishnammal, the widow of Rangaswami Naidu. The

defendants in the said suit L.Ramaswamy Naidu, L.

Bakhtavatsalam, L.Jagannathan and L. Venkatapathy,

were all sons of Lakshmiah Naidu. The 5th defendant

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was one N.V. Rama Chandra Naidu, son of Venkata Swamy

Naidu (the executor of the will set up by Krishnamaal).

The plaint is dated 10.4.1958 which incidentally is the

date on which Lakshmiah Naidu passed away. In brief,

the case of the plaintiff, Krishnammal, may be noted

as hereunder. Krishnammal reiterated the case set up

before the Magistrate that her husband and Lakshmiah

were living together jointly as members of an undivided

family till 1932. In 1932 there was an oral partition.

The properties described in Schedule ’I’ to the plaint

fell to the share of her late husband Rangaswami Naidu.

He had separate possession and enjoyment of those

properties. Thereafter, he acquired several other

properties in his name. Those properties were

scheduled as Schedule IA. Rangaswami Naidu who was an

elected member of the legislative counsel developed

cancer of the throat. He with an intention of

formalizing of the oral partition in 1932 prepared a

list of properties both self-acquired and ancestral and

a similar list of defendants’ properties and sent it

to his brother for his approval. The list was returned

back with certain corrections in the handwriting of

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Lakshmiah Naidu. Her late husband published a notice

on 10/05/1955 in the local daily that he was a divided

member since 1932 and he was publishing the notice to

make the declaration of his separate share and status.

Lakshmiah however was alleged to have assumed the

attitude that coparcenary was undivided and disputed

the correctness and justness of notice and sent notice

dated 11/05/1955. Krishnammal’s husband sent a reply

on 16/05/1955. The plaintiff Krishnammal also stated

that there was a Will on 10/5/1955 and it was duly

registered and further that in the will he has referred

to the oral partition in the year 1932. Under the Will

it was claimed that the properties in schedule I and

IA were set apart for Krishnammal for life and also

made further disposition of the remainder mainly in

favour of his sisters’ sons. She made reference to the

proceedings under Section 145 of CrPC. She also drew

inspiration from the stand of Lakshmiah Naidu that the

brothers continued to be the members of the Hindu

Undivided Family and that in view of the said stand

alleged that she must be deemed to be in joint

possession along with defendants 1 to 4. Krishnammal

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claimed that possession by the defendants in properties

Schedule I and IA was unlawful. She further stated

that as a legal representative of her husband and as

legatees under a Will she is bound to adopt the position

taken viz., that that her husband was a divided member

and that an oral partition had taken place in 1932 and

that the registered will executed by him was valid. In

the alternative it would appear she set up the

following case:

“11. The plaintiff however further states

that even on the very case set up by R.V.
Lakshmiah Naidu in the 145 proceedings and
the admission made by him, her rights are
even better and as a coparcener she is
entitled under the combined operation of Acts
XVIII of 1937 and XXX of 1956 to an absolute
state in one half of the joint properties and
to demand partition and possession of her
share. Defendants 1 to 4 are entitled to the
other half share. The plaintiff is unable
to specify exactly all the properties in the
possession of defendants 1 to 4 but as far
as she has been able to do so, she has set
them out I schedule II. The plaintiff craves
leave to add to them as and when she gets
better particulars. The plaintiff also prays

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that the defendants 1 to 4 might be called

upon to make a full and true disclosure of
the joint family properties in their
possession.

12. The plaintiff states that so far as she

is concerned, she is perfectly willing to
adopt the defendant’s contentions as put
forward in the 145 proceedings and that it
is not open to the defendants to go back upon
the same. Consequently the plaintiff states
that in the circumstances, her rights are
indisputable and she is entitled to be placed
in immediate possession of the properties
described in schedule I and I-A pending a
final decree in the suit or she is entitled
to have a receiver appointed in respect of
the properties in all the schedules so as to
secure to her, her just rights.”

6. Krishnammal further stated that in case the

alternative case is accepted, she is entitled to have

an account taken as part of the relief of partition of

the income of the movable and immovable properties in

the hands of Lakshmiah Naidu. Cause of action in the

said suit was set out in para 17, as follows:

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“17. The cause of action for the suit arose

on 1.6.1955 when Rangaswami Naidu died and on
or about June 1955 when the defendant No.1 to
4 unlawfully trespassed on the properties, on
16.4.1956 when the Revenue divisional Officer,
Coimbatore, upheld the possession of R.V.
Lakshmiah Naidu and his sons and on 26.9.1957
when the High Court refused to interfere with
the order of the Revenue divisional Officer,
Coimbatore within the jurisdiction of this
Hon’ble Court where the properties are situate.

The relief sought in the said suit was inter alia

as follows:

“1. for a declaration that the properties in

Schedule - I and I-A belong to the plaintiff
and for possession of the same with past mesne
profits of Rs.7000/- realized by receiver
appointed in 145 proceedings and future mesne
profits as may be determined by court.

2. for recovery of Rs.6000/- referred to in

para 14 of the plaint:

In the alternative, I, that an account may be

taken of what the joint property of the family
consists of and the income therefrom from the
date of division in status i.e. 10.5.1955:

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2. that a Commissioner be appointed to divide

the properties by metes and bounds;

3. for a division of the plaint properties

into two equal shares and for possession of one
such share to the plaintiff.
XXX XXX XXX”

The said suit came to be contested by the

defendants 1 to 4 on lines similar to the case set up

before the Magistrate in 145 proceedings. The suit

however came to be compromised on the following terms.

As per the endorsement on the plaint it appeared

to the court that the parties had agreed to compromise

the matter and noticing the deed of compromise, the

following decree was passed and thereafter the terms

of the compromise inter alia are set out as follows:

“1. That the plaintiff be and hereby is

entitled absolutely to the immovable
properties in items 1 to 7 in the schedule
described hereunder and that defendants 1 to 4
do put the plaintiff in possession of the same;

2. that defendants 1 to 4 to pay plaintiff

monies described in items 8,9 and 13, discharge

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the decree debt mentioned in item 10 and help

plaintiff in getting items 11 and 12
transferred to her name within forty five days
from this date and in default, thereof, the
plaintiff be at liberty to execute this decree
for the aforesaid reliefs.

3. that plaintiffs do have no right or claim

in the property belonging to her husband of
R.V. Lakshmiah Naidu or defendants 1 to 4
jointly or individually, except such care as
she is already in possession of;

4. That defendants 1 to 4 do pay arrears of

income tax if any, and the Estate duty, on the
estate of the plaintiff’s husband R.V.
Rangaswami Naidu and his brother R.V. Lakshmiah
Naidu;

5. That defendants 1 to 3 do at their own cost

and expense, attend to any further dispute
regarding the proportion belonging to the
family, that defendants 1 to 4 do bear the
responsibility in protesting the titles to the
properties including the properties allotted
to the plaintiff and that plaintiff is not
bound to contribute anything therefore, that
defendants 1 to 4 do have no further rights in
the properties taken by the plaintiff and that

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plaintiff do have no right in respect of the

properties whether in the name of R.V.
Lakshmiah Naidu or otherwise;

6. that plaintiff do act with defendants 1 to

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

7. That the parties are at liberty to register

this final decree within a week after its being
ready;

8. That each party do bear her or his own

costs;
There are other details we need not be detained

by.

THIRD STAGE OF LITIGATION

7. This brings us to the third stage of the seemingly

unending litigation. Here, the curtain is raised by

the filing of O.S. No. 36 of 1963. The plaintiffs in

the said Suit are R. Alagiriswami Naidu and V.

Kalyanaswami. R. Alagiriswami is the son of one

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Krishnamaal (sister of one Rangaswami Naidu and

Lakshmiah Naidu and different from the widow of

Rangaswami Naidu). V. Kalyanaswami is the nephew of

Rangaswami Naidu and Lakshmiah Naidu through their

sister Thayammal. Both of the plaintiffs are among the

appellants before us. The defendants were as follows:

The first defendant in the said case was none

other than R. Krishnammal, the widow of Rangaswami

Naidu. M.V. Ramachandra Naidu the 2nd defendant was

the executor of the disputed Will. The third defendant

was R. Sounderajan, s/o K.P. Rangappa Naidu yet another

nephew of R.V. Rangasamay Naidu and Lakshmiah Nadu.

The fourth defendant was A. Alagiriswami, yet another

nephew of R.V. Rangaswami Naidu and Lakshmiah Nadu

through yet another sister. The 3rd and 4th defendants

are also appellants before us. Defendants 5 and 6 were

persons against whom the allegation was that the first

defendant R. Krishnammal had purported to convey items

1 to 3 and 7 respectively to them. In brief, the case

set up by the plaintiffs in O.S. No.36 of 1963 was as

follows:

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They referred to will dated 10/05/1955 left behind by

their uncle Rangaswami Naidu. There is reference

made to the life estate in favour of first defendant,

the wife of Rangaswami Naidu and the absolute right

created in favour of plaintiffs and defendants 3 and

4. Still further there is reference to O.S.No.71 of

1958 and that the suit came to be compromised. It

was contended that there was no necessity to enter

into such compromise as it was not beneficial to the

estate also. R. Krishna had only a life estate. She

was not competent and did not represent the interest

of the plaintiffs and defendants 3 and 4. The decree

insofar as it purported to confer absolute right on

R. Krishnammal was not valid or binding on the

plaintiffs and defendants 3 and 4. Plaintiffs and

defendants 3 and 4 had vested interest in the

properties but were not impleaded as parties. It is

further alleged that R. Krishnammal could not enlarge

her right by any compromise. She had only a life

interest. Plaintiffs give a notice dated 10/05/1959

calling upon R. Krishnammal, the first defendant to

acknowledge her interest being only a life estate and

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thus to desist from alienating the property. Para 11

of the plaint may be noticed. It reads as follows:

“11. The will of R.V. Rangaswami Naidu

comprised other properties also other than those
described herein which under the compromise decree
have been given by the 1st defendant to her
husband’s brother’s sons. The plaintiffs reserve
their rights in respect of those properties to a
separate action”

Issues were framed in the said suit. The suit came to

be amended by order dated 17/10/1970. Defendants 7 to

10 came to be impleaded on the basis of order passed

in IA No.925 of 1970. Defendants 7 to 10 were the four

sons of Lakshmiah Naidu viz., Bakthavatsalam,

Venkatapathy, Jagannathan and Ramaswamy. The prayer

in the suit was as follows:

a) Declaring that the 1st defendant has only

life estate in the properties described
hereunder without any powers of alienation
and that plaintiffs and defendants 3 and 4
have a vested remainder in the said
properties under the will of the late R.V.
Rangaswami Naidu.

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b) Directing the 1st defendant to pay the

plaintiff the costs of this suit;

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

The said suit also did not culminate in an adjudication

by the Court. Instead the parties opted for a

compromise. The compromise decree is dated 18.2.1974

and reveals the course which commended itself to the

parties and it reads as follows inter alia:

“The plaintiffs and the defendants 1 and 3 having

made a joint endorsement on the plaint and counsel
appearing for the defendants 5 and 7 to 10 also
having signed in token of their having seen the
endorsement, this Court in terms of the joint
endorsement both order and decree:-

1. That the 1st defendant Smt. Krishnammal has only

a life estate in the items 5 and 6 of the plaint
schedule properties more fully described
hereunder, and that the 1st defendant be and
hereby is entitled to enjoy the said properties
for her life without powers of alienation and

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after her life – time the said items of

properties shall go to the plaintiffs and 1 and
2 and defendants 2 and 4 herein.

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

this suit.

Terms of joint endorsement by plaintiffs and

defendants 1 to 3 made on 18.2.1974.

1. The may be a decree prayed for by the

plaintiff in respect of plaint items 5 and 6
alone, viz. S.No.467 0.98 ac.in this 0.82 ac.
Within the boundaries in the plaint and
S.No.466, 6.02 ac. In this 3.60 ac. Within
the boundaries described in the plaint and
situate in Kalapatti village. The 1st
defendant is entitled to enjoy the said items
for her life without powers of alienation and
after her life time they will go to the
plaintiffs 1 and 2 and defendant 3 and 4.

The defendants 1 and 2 hereby declare that

they have not encumbered or alienated the said
items in any manner.

2. The plaintiffs give up the reliefs claimed in

respect of plaint items 1 to 3, sold to the
5th defendants, plaint items 4, acquired by
the Government and plaint item 7, which has
been sold to the 6th defendant. The plaintiffs

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…. On these items and agree that the aliences

are entitled to an absolute title.

3. Each party will bear his or her costs of the

suit.

4. The plaintiffs and defendants 1 to 3 pray that

there may be a decree on the above terms
against defendants 3 and 4 also. No relief
is claimed against the other defendants in
this suit.”

TWO DEATHS

8. Ramaswamy Naidu son of Lakshmiah Naidu passed away

in the year 1976. A year later in 1977 R. Krishnamaal,

the widow of Rangaswami Naidu also expired.

4TH STAGE

9. After the death of R. Krishnammal in 1977 O.S.

No. 732 of 1981 was filed by R. Alagiriswami Naidu.

Defendants 1 to 3 in the said suit were

V. Kalayanaswamy, Soundararajan and A. Alagiriswami.

It will be noticed that the plaintiff and the

defendants 1 to 3 therein are the legatees under the

Will and are among the appellants before us. The case

set up in the said plaint(A16) was inter alia that

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plaint schedule property in the said case was items 5

and 6 in O.S. No. 36 of 1963 as noticed earlier. The

compromise decree in O.S. No. 36 of 1963 entitled R.

Krishnammal only to a life interest and the vested

remainder was with the plaintiff and defendants 1 to

3. Further, the case of the plaintiff was that in view

of the death of R. Krishnammal on 30.04.1977, the

plaintiffs and defendants 1 to 3 were in joint

possession of the properties. It was complained that

the first defendant had purported to sell 1.2 acres to

defendants 4 to 5. The cause of action was alleged to

arise on the basis of compromise decree in O.S. No. 36

of 1963 dated 18.02.1974 declaring the plaintiffs’

right to a vested remainder subject to the life estate

of R. Krishnammal. The prayer was for a decree of

partition.

10. A17 is the written statement which was filed by

the 3rd defendant A. Alagiriswami who prayed for a

decree of partition and allotting his 1/4th share. It

is also alleged that the property was in the joint

possession of the plaintiff and the defendants.

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11. A18 is the decree passed in O.S. No. 732 of 1981.

It is dated 21.06.1984 passed by the Additional Sub-

Judge, Coimbatore ordering a decree for partition.

5th STAGE / THE PRESENT LITIGATION

12. Apparently, the trigger for the present

litigation was provided by certain transactions by way

of sale entered into by A. Alagiriswami (one of the

four legatees under the alleged Will by Rangaswami

Naidu). The first of the two suits which has generated

the appeals before us was filed by eight plaintiffs.

It is O.S. No. 2087/82 [However it was renumbered as

O.S. No. 649/1985]. The first three plaintiffs are the

sons of Lakshmiah Naidu, the 4th plaintiff is the widow

of Ramaswamy Naidu who was one of the sons of Lakshmiah

Naidu who, as noted, passed away in 1976. Plaintiffs

5 to 8 are the daughters of Ramaswamy Naidu.

13. As far as the defendants are concerned, the first

defendant is A. Alagiriswami whose actions apparently

were the proximate cause of the suit. Defendants 2, 3

and 4 are the other nephews of Rangaswami Naidu who

claim under the will. Thus, defendants 1 to 4 are the

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nephews of Rangaswami Naidu and who are legatees under

the will and among the appellants before us.

Defendants 5 to 26 were arrayed with allegations that

certain items of the suit properties were conveyed by

first defendant A. Alagiriswami to them. Defendants

27 to 33 are LRs of 10th defendant impleaded vide order

dated 29.4.1987. The plaintiffs have reiterated their

case as in the previous litigation which is briefly

noted as hereinunder:

14. Properties belong ancestrally to R. Lakshmiah

Naidu and his brother Rangaswami Naidu. Lakshmiah

Naidu and his brother Rangaswami Naidu constituted the

joint Hindu Family and the plaint schedule property

were the joint properties. Rangaswami Naidu died in

1955 without any issues and without any partition,

therefore, the suit properties, on the death of

Rangaswami Naidu being coparcenary properties on his

death, the surviving coparcener Lakshmiah Naidu took

all the properties. Krishnamaal, the widow of

Rangaswami Naidu was only entitled to limited interest

as per the law on that date. The death of Rangaswami

Naidu before Hindu Succession Act resulted in the

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surviving co-parceners taking all the property by

survivorship. Reference was made to O.S.No.71 of 1958.

It is averred that plaintiffs came to know of the will

only after the death of Rangaswami Naidu. Will is

described as false, frivolous and untenable. It is

averred that the alleged will was executed by

Rangaswami Naidu under the undue influence of

defendants 1 to 4. Taking advantage of the serious

illness of Rangaswami Naidu who was suffering from

cancer, defendants seem to be coerced him to execute

the will which contains false recitals. Will is not a

genuine document. It is also untenable as per Hindu

law as it stood on that date. Any will by coparcener

of his undivided interest in his property is illegal

and invalid. It was for this reason to sustain the

illegal will, certain false recitals were put in the

will about the oral division that there was an oral

division between the brothers. The recital is said to

be false and unfounded. Until the death of Rangaswami

Naidu, the brothers constituted the joint Hindu Family

and there was no division and there was no partition.

Thereafter, there is reference to litigation which we

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have referred to already. Still later allegations were

made as follows in para 13 alone. It reads as follows:

“XIII. Defendants 1 to 4 knowing fully well

that their collusive attempt to get at the
property have failed miserably started
creating trouble and complications. Recently
they have purported to convey certain items
of the suit property in favour of their own
partisans out of ulterior motives. Knowing
fully well that the defendants 1 to 4 cannot
claim any right to the suit properties on the
basis of the will in view of their own prior
conduct and also in view of the fact that the
said will is invalid and in operative have
and fictitious documents in favour of their
own partisan out of ulterior motives. The
plaintiffs understand that certain items of
suit property have been sold by A.
Alagirisami, the 1st defendant to defendants
5 to 26. The plaintiffs submit that the ….
Are void and in operative. These plaintiffs
are not parties to the said also deeds and
they are entitled to ignore the said
transactions.”

It is further stated that in 1960, the plaintiffs have

divided their properties in their own right. They have

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been paying kist for the properties all along. They

have been paying agricultural income tax on the basis

that the properties are their own.

It is also stated that even assuming that Krishnammal

acquired life interest in the undivided share of her

husband on his death which became subsequently absolute

on her death intestate. Her husband’s share had

reverted both by survivorship and succession to

plaintiffs 1 to 3 and their late brother Ramaswamy. It

is further contended that without prejudice to the

contentions in the plaint, even if the will executed

by Rangaswami is sustainable, the life interest in

respect of the properties mentioned in the will

conferred on his widow, Krishnammal became absolute by

virtue of Act 30 of 1956 with the result that

Krishnammal became the absolute owner of the properties

including the suit property.

15. Referring to O.S. No.732 of 1981 filed before

the Sub-Court, Coimbatore in regard to claiming

partition, it was contended that R. Krishnammal having

parted with the suit property in favour of the

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plaintiffs under the compromise decree in O.S.

No.71/1958 in the Sub-Court, Coimbatore, the defendants

1 to 4 cannot make any claim to the same. The same

stood acknowledged by defendants 1 to 4 in proceedings

in O.S.No.36 of 1963 and O.S.No.732 of 1981 in the Sub-

Court Coimbatore.

16. The plaintiffs sought declaration of title and

also prayed for injunction. It is on the basis that

they were in possession and the action of the first

defendant (A. Alagiriswami) in executing sale deed in

favour of the other defendants was without any

authority and they were attempting to disturb the

possession of the plaintiffs.

17. OS No.89 of 1983 is the other suit filed by the

appellants side by R. Alagiriswami who is one of the

legatees (also the plaintiff in OS No.732 of 1981) and

showing defendants 1 to 3 as the other legatees under

the Will, defendants 4 to 11 representing the branch

of Lakshmiah Naidu and defendants 13 to 33 were the

purchasers from the first defendant. In the said suit,

the relief sought was for partition of the plaint

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schedule property. Plaintiff also sought compensation,

mesne profits besides declaration of their right. In

brief, the case set up is as follows:

The plaintiff referred to the Will executed by his

uncle. He further based the suit on the fact that

R. Krishnammal died on 30.04.1977. It was averred

that plaintiff and defendants 1 to 3 upon the death

of R. Krishnammal have equal right. The properties

are in the possession of defendants 4 to 6 who were

the sons of Lakshmiah Naidu. Reference is made

to O.S.No.649 of 1985 and it is pointed out that

the said suit is not maintainable. There is

reference to the oral division of the properties

between Lakshmiah Naidu and Rangaswami Naidu in

1932. There is further reference to the proceeding

under Section 145 of the CrPC. Later reference is

made to O.S. No.71 of 1958. It was averred that

the decree in the said suit was invalid. Under the

Will, R. Krishnammal had only the right to enjoy

the property during her lifetime. The plaintiff

and defendants 1 to 3 were not parties and the

decree will not bind them. Thereafter, R.

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Krishnammal tried to sell the aforesaid property in

her possession. Thereupon, O.S.No.36 of 1963 was

filed objecting to the sale. There is mention about

the compromise. It is their case that defendants 4

to 11 who have joined as parties in that case have

supported the compromise which means that it must

be considered that they accepted the Will. Written

statements were filed wherein as far as the

respondents were concerned; they accepted the same

stand as they had in the plaint in the suit filed

by them.

Both the suits were tried together. A1 to A117

were produced on the side of the plaintiffs in

O.S.No.649 of 1985. On the defendants side, who

were the plaintiffs in OS No.89 of 1983, B1 to B18

were marked. The trial court treated O.S.No.649 of

1985 as the leading case. C1 is marked as Court

Exhibit along with X1 which is the finger print

register in the Registrar’s office. By judgment

dated 12.08.1989 the learned Additional Sub Judge

proceeded to dismiss O.S. No.89 of 1983 with costs

whereas O.S.No.649 of 1985 was decreed with costs.

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18. The Trial Court after framing issues concluded

that the case that Rangaswami Naidu and his brother had

orally partitioned the properties in the year 1932,

could not be accepted. It is further found that the

Will dated 10.5.1955 set up by Rangaswami Naidu, was

invalid for the reason that as on the said date, the

Hindu Succession Act of 1956 containing, inter alia,

Section 30 had not come into force since Rangaswami

Naidu was joint with his brother and the Hindu

undivided family had not been disrupted under the law

prior to the Hindu Succession Act. It is also found

that the Will was afflicted with many suspicious

circumstances. Though the Will was attacked by the

legal heirs of Lakshmiah Naidu on the ground that it

was procured by coercion and undue influence, the said

arguments were not accepted. The Trial Court also found

that even proceeding on the basis of the Will, in favour

of Krishnammal, having regard to Section 14(1) of Hindu

Succession Act, the life estate blossomed into absolute

rights in favour of Krishnammal which meant the case

set up by the appellants that they had the remainder,

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could not be accepted. The suit filed by the appellants

came to be dismissed whereas the suit filed by legal

heirs of Lakshmiah Naidu, came to be decreed. In the

appeals, the First Appellate Court agreed with the

Trial Court that there was no oral partition as claimed

between Rangaswami Naidu and Lakshmiah Naidu. However,

the Court finds that having regard to the publication

made on 10.5.1955, in the newspaper, there was a

disruption in the status of the Hindu undivided family.

It meant that the Will was validly made by the

Rangaswami Naidu. The Appellate Court did not find

merit in the findings of the Trial Court regarding

presence of suspicious circumstances. Revering the

finding of the Trial court, the Appellate Court found

that having regard to the restricted estate created

under the Will, it is Section 14(2) of Hindu Succession

Act and not Section 14(1) which would apply. The First

Appellate Court found that it is Section 69 of the

Evidence Act which would apply in the facts of the case

and not Section 68 of the Evidence Act. In other words,

it was found that the present was a case where both the

attesting witnesses to the Will were dead. B-7 was a

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copy of the deposition of the attesting witnesses. What

is required under Section 69 stood proved. That apart,

the First Appellate Court noted the fact that the Will

was registered and that the executor appointed under

the Will, was the nephew of his wife Krishnammal and

this again pointed out to their being no foul play in

the matter of the creation of the Will. Exhibit (C-1)

was an affidavit filed by the son of the executor in

response to direction to produce original of the Will.

The First Appellate Court found that the original Will

was, in fact, produced before the Magistrate in

proceedings under Section 145 and marking of secondary

evidence of the Will, was in fact found justified by

both the Trial Court and the First Appellate Court. On

the basis of these evidence, the First Appellate Court

allowed the appeals filed by the appellants and decreed

O.S. No. 36 of 1963 and decreed partition as claimed

by dividing the property into four parts. The suit

filed by the respondents came to be dismissed.

19. The High Court, in the second Appeals by the

impugned judgment has found that Will could not be

relied upon, as the requirement under Section 68 of the

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Evidence Act was not fulfilled. (B-7) the deposition

of one of the attesting witnesses to the Will did not

establish due execution of the Will, in that, it did

not establish the attestation of the Will by the other

alleged attesting witness Dr. Iyer. The High Court also

found that Section 14(1) of the Hindu Succession Act,

1956 applied. This is on the basis that R. Krishnammal,

wife of Ranagasamy Naidu had a pre-existing right to

maintenance. Section 14(2) would therefore, not apply.

The Will was appreciated in the context of her

pre-existing right to maintenance to Krishnammal. This

enlarged her limited estate under Section 14(1). On the

said basis of the findings and the restoration of

judgment of the Trial Court under the impugned

judgment, the appeals are filed before us.

A CLOSER LOOK AT THE ISSUES AND FINDINGS OF THE TRIAL

COURT

20. The trial court framed 14 issues in O.S.No.649

of 1985 and an additional issue. In OS 89 of 1983 the

trial Court framed 3 issues and one additional issue.

The trial court answers issue No.1 in O.S.No.89 of 1983

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which was whether there was an oral partition as

claimed by the appellant between Rangaswami Naidu and

Lakshmiah Naidu as follows:

It is found that it is not clearly proved that there

was an oral partition. B1 notice is referred to as

letter dated 12.5.1955. It was further found that

the notice allegedly sent by Lakshmiah Naidu dated

11.5.1955 was not produced by the plaintiffs or

defendants though the trial court referred to B43

produced in Section 145 proceedings. Equally, the

notice dated 16.5.1955 which was alleged to have

been sent by Rangaswami Naidu was also not produced

even though it is noted that B44 was produced in

Section 145 proceedings. The Court also referred

to the case of Bhagwant P. Sulakhe v. Digambr Gopal

Sulakhe1. It also noted the argument that by the

Will there was a division. It goes to find that

though PW1 has stated that Rangaswami Naidu has

filed Estate duty returns separately and was paying

income tax separately and had separate Bank account,

A13 to A15 documents showed that transactions were

1
AIR 1986 SC 79

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entered into which showed that the Hindu Undivided

Family consisting of coparceners continued jointly

even after 1932. This is despite noticing that

there was separate acquisition of property by

Rangaswami Naidu sought to be established by B3 to

B5. These properties are treated as ancestral and

finally the court has answered issue No.2 in favour

of the respondents by holding that there was no oral

partition in the year 1932.

Issue no.1 which was whether the Will dated

12.5.1955 had been written by Ranga Samy Naidu and

was valid and genuine and whether the Will was

executed after his death, is answered as follows:

The trial court finds that the original Will was

produced before the Magistrate in the proceedings under

Section 145 as Exhibit B68 rejecting the contention of

the respondents that original Will was not produced

even before the Magistrate. The trial court further

refers to C1 notice to the son of the executor of the

Will to produce the Will. It also considers the

affidavit filed by the son to the effect that he was

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not in possession of the Will and finds that the copy

of the Will was marked as B10. The trial court then

went on to consider how far the Will was genuine and

whether B7 could be relied upon. B7 is the deposition

given by Venkataswami Naidu who was allegedly one of

the attesting witnesses to the Will dated 10.05.1955.

This deposition was given by him in the proceedings

under Section 145 of the CrPC. The trial court went

on to discuss his evidence. It found that in the said

evidence (B7) the attesting witness has not spoken

about the attestation by the other witness. He has

deposed that the other witness came and left before the

Registrar came. The Will was already typed. It is not

stated as to who has prepared the Will. The witness

has not deposed in B7 that the testator was conscious.

It was very doubtful. It was found doubtful as to

whether he has executed the Will out of free will.

There was on pages 1 and 4 of the Will portions written

in ink. They are not referred to at the end of the

Will. The original of the Will was also not produced.

This led to strong doubts. The court took the view

merely because PW1 in his previous statement in

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proceedings under Section 145 has deposed that the

signature of Rangaswami Naidu was there in all the

pages of the Will, it could not be understood that the

respondent had accepted the Will as genuine. The case

of the appellants that the other attesting witness who

was the doctor and a family friend would not have lend

his name if the Will was concocted and that B12 was an

advertisement issued by the family on the death of the

other attesting witness, that is, the doctor also did

not appeal to the court and it entered the finding that

Will was not genuine. The court also in paragraph 32

notices that the testator had 5 sisters out of which

one sister did not have any issue. The 4 other sisters

had male and female children. The fact that only one

son born to each sister was bequeathed the property

under the Will, also created doubt. The issue was

accordingly answered. It is also found that as it was

not proved that there was a partition, the Will would

be invalid. The decision of this Court in Nanni Bai

and Others v. Gita Bai2 and Bhagwant P. Sulakhe vs

Digambar Gopal Sulakhe And Ors. (supra) were adverted

2
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to. Issue No.1 was accordingly answered. The finding

was that the Will was not genuine and it was not valid.

21. Issue No.3 was whether Lakshmiah Naidu inherited

the property by survivorship. It was found that

Rangaswami Naidu died without leaving behind a Will but

he was survived by his widow R. Krishnammal. R.

Krishnammal had right of maintenance in the half share

of the property of Rangaswami Naidu. She had right

under the Hindu Women Right to Property Act, 1937. The

trial court therefore, answered the issue against the

respondents and in favour of the appellants. This

means that the finding of the trial court is that the

respondents are not entitled to the plaint scheduled

property in their own right on the basis that Lakshmiah

Naidu became absolutely entitled under Hindu law being

the sole survivor upon the death of his brother

Rangaswami Naidu.

22. Next issue which is issue No.4 was whether

plaintiff in OS No.89 of 1983 and defendant 1 to 3 were

estopped by the proceedings under Section 145 CrPC.

The issue was answered in favour of the appellants by

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holding that they were not made parties and order will

not bind them.

23. Issue No.5 was whether the decree in OS No.71 of

1958 was deceitful, invalid and whether it binds the

plaintiff (plaintiff in OS No.89 of 1983). This issue

was answered as follows:

It was found that A2 decree in OS No.71 of 1958

resulted in R. Krishnammal the widow being conferred

absolute right upon her in regard to Items 1 to 7

in the said suit. It was found that there was no

evidence of any deceit. It was further found that

in OS No.36 of 1963 (A3) in the written statement

filed by R. Krishnammal (A4), it was stated that

the compromise was as desired by her. The issue

was answered thus against the appellants.

24. The trial court thereafter considered Issue No.6

and additional issue No.1 in OS No.89 of 1983.

Answering issue No.6 which was whether the decree in

O.S. No.36 of 1963 would constitute res judicata, it

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was found that there is no bar of res judicata involved

as the suit had been compromised. Regarding the

additional issue which was whether by virtue of having

filed O.S. No.36 of 1963, the bar under Order II Rule

2 of C.P.C. stood attracted and barred the filing of

the OS No.89 of 1983,the court found that permission

was not sought from the court to reserve the right to

file a fresh suit in regard to property other than

those which were scheduled in OS No.36 of 1963. The

plaintiff had acted unilaterally in the matter. The

Court found that the bar under Order II Rule2was

attracted.

25. Issue No.7 which was whether the case set up by

defendant No.1 (A. Alagiriswami) that there was an oral

partition between him and plaintiff and defendants 2

and 3, it was answered against defendant No.1 and it

was found that such a partition was not proved.

26. Issue No.8 and 10 related to non-joinder,

misjoinder and whether defendants 13 to 34 in OS No.83

of 1983 were necessary parties was answered by finding

that there was no misjoinder or non- joinder and there

was no evidence that there was any unnecessary party.

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(It must be remembered in this regard that the

relevance of defendants 13 to 34 is that they are

persons to whom part of plaint scheduled property stood

transferred by the first defendant on the basis of the

alleged oral partition).

27. Allied to this issue was issue No.12 which was

whether defendants 13 to 34 were entitled to any

equitable relief. This issue was answered against

defendants 13 to 34.

28. Issue No.11 and 13 related to questions ancillary

to the issue whether the plaintiff had right in the

property and right to partition. Both the issues were

answered against the plaintiffs. Then the Court went

on to consider issue No.1 in OS No.649 of 1985. The

issue was whether R. Krishnammal had absolute right

over the property governed by the Will on the basis of

Hindu Succession Act. The Court went on to hold that

the right of R. Krishnammal became absolute under

Section 14(1) of the Act.

29. Finally, the court took up the issue in OS No.649

of 1985 which was whether the plaintiffs therein were

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entitled to relief, as prayed in the plaint and whether

they were entitled to injunction. The court found that

the plaint schedule property was ancestral property.

The plaintiffs were legal heirs of Lakshmiah Naidu and

on the death of Rangaswami Naidu and they became

entitled on the basis of the compromise decree passed

in OS No.71 of 1958 as a result of R. Krishnammal giving

up her right. OS No.649 of 1985 was decreed and OS

No.89 of 1983 came to be dismissed.

PROCEEDINGS BEFORE THE FIRST APPELLATE COURT

30. Four first appeals were filed against the common

judgment - AS No.194 of 1989 was filed by the plaintiff

in OS No.89 of 1989, AS No.195 of 1989 was filed by

the same person R. Alagiriswami but as defendant in OS

No.649 of 1985 challenging the decree in the said suit.

AS No.320 of 1992 was filed by one V. Kalyanaswami who

was defendant No.2 in OS No.649 of 1985 challenging the

decree therein. V. Kalyanaswami is also the appellant

in AS No.225 of 1992 challenging the judgment in OS

No.89 of 1983 wherein he was defendant No.2 (be it

noted that there was no appeal filed by any of the

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other defendants including defendant D13 to D34 in OS

No.89 of 1983) who were also defendants in O.S. No.689

of 1985.

FINDINGS OF THE FIRST APPELLATE COURT

31. The first appellate court agreed with the trial

court that it was not proved that the suit property and

the other property were separate property as they were

given to Rangaswami Naidu in 1932. The court however

finds that this could not lead to the conclusion that

Rangaswami Naidu died joint and not separated from

Hindu Undivided Family at the time of death. The

appellate court finds that by giving B1 advertisement

in a newspaper, a division was effected in status.

Rangaswami Naidu unilaterally allotted some of the

properties of the HUF share and detailed Will was

written as would be explained later. The court went

on to then hold that he was a member of the Tamil Nadu

Legislative Council. He and his brother possessed

several properties between 1944 and 1958. PW1 accepted

that in addition the family has purchased 1000 acres

of land. Sisters of Rangaswami Naidu were leading

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ordinary life. He was very much attached to his

sisters. He was living in the residential bungalow of

his sister-Ammani Ammal. He selected one son each of

his own sister. Shares in a Mill was given to his

brother. The selection of his wife’s nephew, as

executor was also considered. The court found

acceptance of the registered copy of the Will as

secondary evidence as “totally correct”. Relying upon

B7 deposition and Section 69 of the Evidence Act, it

was found that the requirements of Section 69 of the

Evidence Act were fulfilled. Registration dispelled

all suspicion. The fact that R1 testator refused to

affix the mark impression and insisted on signing, was

also relied upon to show that he had sound disposing

capacity. The suspicious circumstances noted by the

trial court did not appeal to the court as such. B10

Will was found to be genuine. The burden to prove that

the Will was obtained by coercion and undue influence

was not discharged by the respondents. The court went

on to find that B1 had caused a division in status. It

finds that B1 was published by Rangaswami Naidu on

10.5.1955. Lakshmiah Naidu wrote a letter to

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Rangaswami Naidu on 11.05.1955 rejecting B1 and stated

that Rangaswami Naidu was still continuing as member

of HUF. Rangaswami Nadu sent a reply letter on

16.05.1955 confirming B1. They were marked as B43 and

B44 is Section 145 proceedings. Rejecting the

argument of the respondents that there was no issue

raised as to whether division was effected vide B1

newspaper statement, it found that there was pleading

in the written statement of defendant No.1 and in the

counter statement of the other defendants. Plaintiffs

and the respondents were not surprised as regards the

contention that it was not open to a member of an

undivided family to unilaterally allot property to his

share, as was done by Rangaswami Naidu. It was found

meritless and supported as follows:

Respondents did not raise any objection

regarding unilateral allotment in OS 71 OF 1958 and

OS 36 of 1963. Secondly, it was noticed that there

were more than 93 items amounting to 100s of acres

belonging to HUF and what was unilaterally allotted

was only a small part of the properties. The court

finds that “it could not think of that as totally

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unjustified”. The court noticed the decision of

this Court in Bhagwant P. Sulakhe case (supra).

This was dealt with by holding that that was a case

where there was a problem of partnership and it was

so decided. The letter of Rangaswami Naidu dated

16.05.1955 was relied upon wherein he confirmed B1

advertisement and it was found that it was unable

“to consider this as a unilateral act of

declaration” and to decide that this act does not

change the joint family character of the properties.

It is stated that regarding the problem, it is

decided that B1 created a division in status. Even

though Rangaswami Naidu did unilateral allotment,

Lakshmiah Naidu and sons accepted the unilateral

allotment in their subsequent conduct and therefore

not entitled to challenge the Will.

32. The argument of estoppel raised against the

appellants based on the conduct of the appellants in

OS No.36 of 1963 in accepting the absolute title of R.

Krishnammal in items No.1 to 3, 4 and 7 was found

without merit. It found that items 1,3 and 4 were

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items sold by R. Krishnammal to defendants 5 and 6 in

the said suit. Item No.7 was the land acquired by the

government. It was found that there was no evidence

to reveal on what basis defendants 1 to 4 have acted

qua the compromise in regard to the properties sold and

item acquired by the Government. It was found further

that the compromise was with regard to the items sold

and acquired and even the court cannot decide this

situation as acting against the appellants.

Thereafter, the Court finds that in B10 Will, 19 items

of properties are mentioned. Items 1 to 7 to which R.

Krishnammal was given absolute title under the

compromise decree were scheduled as suit properties in

OS No. 36 of 1963. The argument of the respondents

that as the appellants had accepted that R.Krishnammal

has abandoned her right in the other property in OS No.

71 of 1958 those properties were not scheduled in OS

No. 36 of 1963 and the bar of Order II Rule 2 would

apply, was repelled. The Court found that the

plaintiff in OS No. 36 of 1963 had reserved the right.

Secondly the bar of Order II, Rule 2 will not apply

having regard to the death of R. Krishnammal much after

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1963, which was in 1977. It was found that Order II

Rule 2 cannot apply, as in 1963 the plaintiff did not

have the right which accrued to them (legatees) only

upon the death of R. Krishnammal as absolute owners

under the Will. It was further found that the decree

in OS No. 36 of 1963 further diluted the compromise

decree in OS No. 71 of 1958 wherein R. Krishnammal was

conferred absolute title in items 1 to 7. Under decree

in OS No. 36 of 1963 the sons of Lakshmiah Naidu were

joined as parties. They had appointed an advocate.

The advocate has made a joint endorsement for the

compromise decree. Under the decree in OS No. 36 of

1963, the right over items 5 and 6 was by way of

reserving life interest in favour of R. Krishnammal and

this was found to be against respondents. Thus, a

right under the Will was conferred by the conduct of

the parties. Regarding the controversy qua Section 14

of the Hindu Succession Act, it was found that R.

Krishnammal had prayed for the right under Section 14

(1) only as alternative relief in OS No.71 of 1958.

The court found it unable to decide that the absolute

right given to R. Krishnammal in OS No. 71 of 1958 was

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given in accordance with her right under Section 14 (1)

and had it being the case the appellants should have

been made parties and the executor of the Will would

not have been exonerated. It was found that R.

Krishnammal had no intention to obtain absolute right

under Section 14 (1). It was further found that the

conduct of the respondents was in a manner that she

should not get her share in property. Lakshmiah Naidu

and his sons conducted proceedings under Section 145

to withhold property in their possession. In OS No. 71

of 1958 they gave items 1 to 7 by a pittance for the

compromise. R. Krishnammal, it was held, accepted her

estate for life as something was better than nothing.

It was found noteworthy that in OS No. 71 of 1958, it

was not openly stated by R. Krishnammal that she had a

right under Section 14 (1) and she has abandoned all

the properties except items 1 to 7 therein. The

compromise decree in OS No. 36 of 1963 revealed that

the parties intended to follow the Will, as could be

seen from bestowing life interest in items by them by

diluting the compromise decree in OS No. 71 of 1958.

Accordingly Appeal No. 195 of 1989 and Appeal no. 20

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of 1989 were allowed. OS No. 649 of 1985 was dismissed.

Appeal No. AS No. 194 of 1989, AS No. 225 of 1992 were

also allowed setting aside the judgement in OS No. 89

of 1983, the said suit was decreed. It was ordered

that schedule II properties should be divided into 4

equal shares and one share should be allotted to the

plaintiff. A preliminary decree for partition was

passed and further mesne profit was to be decided based

on application under Order 20 Rule 12 CPC.

FINDINGS OF HIGH COURT IN THE IMPUGNED JUDGMENT

33. In one common judgment, the High Court disposed

of the second appeals. It found that both the courts

had concurrently found that there was no proof that

there was a partition in 1932. It went on to find that

in such circumstance, the question was whether there

was a division before the death of Rangaswami Naidu.

It notes that there is no issue raised that a division

was brought about by issuing B1. The first appellate

court, it was noticed, framed specific issue of

division based on B1. Based on B1, division of status

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was not proved. It went on to agree with respondents

that the plaintiff in OS No.89 of 1983 relied upon B1

dated 12.05.1955 while the first defendant in OS No.649

of 1985 in the written statement has stated that

Rangaswami Naidu had issued the public notice on

10.05.1955 that he was a divided member from his

brother since 1932 for which a notice was issued on

11.05.1955 and for which a reply was also given by

Rangaswami Naidu. It was further found that apart from

the newspaper “Navva India” dated 12.05.1955, no other

document was filed in the proceedings. The court found

there is absolutely no reason to conclude that there

was any division between the brothers before Rangaswami

Naidu died. It is further stated that it is not in

dispute that the publication stated to have been

effected by Rangaswami Naidu, is on the basis of the

previous partition between him and his brother in 1932

and inasmuch as the courts have concurrently held that

there was no prior partition and in absence of any

proof of separation by Rangaswami Naidu with his

brother before his death, the finding of the first

appellate court, was described as baseless. It was

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found that it was doubtful whether Rangaswami Naidu had

any right to make a Will. The original Will was not

produced. The plaintiff (the plaintiff in OS No.89 of

1983) did not take any steps to produce the Will. None

was examined though the registration book from the Sub-

Registrar was summoned and marked as X1. The

Magistrate in Section 145 proceedings did not discuss

the Will and the appellant-plaintiff in OS No.89 of

1983 placed sole reliance on the order of the Executive

Magistrate. It is further noticed that the Will was

presented for registration as per the endorsement at

the residence of Ammani Ammal whereas in B7 deposition

of the attesting witness, the registration took place

at the home of the deceased. In the absence of the

original Will and non-compliance with the requirement

of Section 68 and 69 of the Evidence Act, the court

found that the Will was not proved. Registration of

the Will does not dispense with the proof of the Will.

It agreed with the findings of the trial court in this

regard. The Executor is stated to have died in 1990

but no steps were taken to produce the Will during that

time. It was not known why the plaintiff did not take

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steps to summon the records of proceedings under

Section 145. R. Krishnammal acquired right under

Section 14(1) of the Hindu Succession Act on the basis

of the compromise. The rights of R. Krishnammal opened

on 01.06.1955 when her husband died. R. Krishnammal

had right to maintenance which was an existing right.

The High Court distinguished the judgment of this Court

in Sadhu Singh v. Gurdwara Sahib Narike and Others3.

By virtue of that right under Section 14(1) she had

entered into the compromise in OS No.71 of 1958 and

this was entirely recognised by the appellants. The

appeals were allowed and the decree of the trial court

was restored.

CONTENTIONS OF PARTIES

THE DEBATE IN THE COURT AND THE WRITTEN SUBMISSIONS

34. We have heard the learned counsel appearing for

the parties. We heard Shri C.A. Sundaram, learned

Senior Counsel who led the arguments on behalf of the

appellants. We heard Mrs. Mohana and Shri V. Giri,

learned Senior Counsels also, on behalf of the

3
2006 (8) SCC 75

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appellants. We further heard Shri Mohan Parasaran, Shri

S. Guru Krishnakumar, Mrs. Chitra Sampath, and Shri V.

Raghavachari, learned Senior Counsel, on behalf of the

respondents. This is besides noting the submission of

Shri S. Nagamuthu, learned senior counsel on behalf of

some of the alienees from defendant No. 1 in OS 649/

1985.

35. The appellants were led by Shri. C.A. Sundaram,

learned senior counsel. He contended that the High

Court had in the impugned judgment transgressed the

limits under Section 100 of the CPC and re-appreciated

the findings based on facts which was impermissible.

He no doubt also does not invite us to find that there

was an oral partition in the year 1932 but he contended

that before Rangaswami Naidu died on 01.06.1955 by

virtue of issuing B1 paper advertisement, the

requirement in law for bringing about a division in the

status of the Hindu Undivided Family was achieved. He

took us to the terms of B1 and submitted that there is

an unequivocal declaration of Rangaswami Naidu being

separated. Response by his brother by communication

dated 11.05.1955 purported to dispute the contents of

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B1. This fact was harnessed to contend that the

requirement in law that not only a member who wishes a

division in the joint family to be brought about,

should communicate his intention but the communication

should reach the other coparceners, was fulfilled. The

elder brother did respond and till further, lending

credence to the case set up by the appellant

communication dated 16.05.1955 was issued by Rangaswami

Naidu reiterating his stand manifested in Exhibit B1.

It is not the law, learned senior counsel pointed out,

that there must be any reason at all for a member of

the Hindu Undivided Family to severe its connection

with the family and to withdraw as it were from the

undivided status. All that is required is an

unequivocal declaration which is communicated and the

same was achieved issuing in B1. He would further

submit that the Will was indeed genuine and free from

taint or suspicious circumstances, which at any rate

was found by the first appellate court which is the

final court on facts. Rangaswami Naidu was indeed fond

of his sisters. He did not have any issues. It is

only natural and probable that therefore finding that

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death was not too far away he wanted to provide for

both - his wife in the form of life estate and also to

bequeath the absolute right in the 4 legatees

(appellants before us) and he has drawn from each of

the 4 branches of his sisters. The evidence given by

the attesting witness in Section 145 proceedings

fulfilled the requirement of Section 69 of the Evidence

Act, as was correctly found by the first appellate

court. In regard to the discrepancy in the date of

Exhibit B1, viz., that it is shown in the Appendix to

the trial court judgment as being dated 12.05.1955 it

is only a mistake and the date is actually 10.05.1955.

In regard to the requirement to be fulfilled to bring

about a division in joint family he relied on the

following judgments:

1. Krishnabai Bhritar Ganpatrao Deshmukh v.

Appasaheb Tuljaramarao Nimbalkar and Ors.4;

2. Addagada Raghavamma and Ors. v. Addagada

Chenchamma and Ors.5

4
1979 (4) SCC 60
5
AIR 1964 SC 136

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3. Adiyalath Katheesumma and Ors. v. Adiyalath

Beechu and Ors.6;

The appellants also relied upon B2 order passed in

the proceedings under Section 145 CrPC to show that

Rangaswami Naidu declared his divided status vide

communication dated 10.05.1955. Another contention

addressed is that even the execution of the Will

amounted to declaration of status. Reliance is placed

on Addagada Raghavamma case(supra) and Bhagwan Krishan

Gupta v. Praabha Gupta& Ors7. The execution of the

Will shows that Rangaswami Naidu was in control of

specific properties. Evidence of R. Krishnammal and

the executor in the will in 145 proceedings establishes

that testator was capable of dealing with the

properties and executing Will in respect of portion of

his huge estate. Reliance is placed on the judgment

of this Court reported in Jalaja Shedhti& Ors. v.

Lakshmi Shedhti & Ors.8, Hardeo Rai v. Sakuntala Devi

6
AIR 1951 MAD 561
7
2009 (11) SCC 33
8
1973 (2) SCC 773

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& Ors.9 and Kalyani (Dead) by LRs v. Narayanan & Ors.10.

It is the submission of the appellant that Rangaswami

Naidu was capable of identifying and disposing of

properties in the Will. Rangaswami Naidu has purchased

properties in his name with his money which was dealt

with by him as his own portion. Partition by metes and

bounds is not mandatory. The requirement of Section

69 of the Evidence Act stands fulfilled on perusing the

deposition of one of the attesting witness in Section

145 proceedings. The signature of the testator was

identified by PW1 himself. The original Will has been

produced in Section 145 proceedings. R. Krishnammal

has based her case on the will in 145 proceedings and

in the subsequent suits, viz., OS No.71 of 1958 and OS

No.36 of 1963. The respondents however admitted to a

compromise though an issue was framed regarding the

Will. We are reminded that the Will is a registered

document and that registration is a solemn act. It is

the contention of the appellants that the wording in

the Will and the surrounding circumstances clearly show

9
2008 (7) SCC 46
10
1980 (2) SCR 1130

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the intention of Rangaswami Naidu to be that he wanted

some properties of his estate to go to his sisters’

sons with whom he was very affectionate. Our attention

is drawn to the reasoning of this Court in K.S.

Palanisami (Dead) through LRs & Ors. v. Hindu Community

in General and Citizens of Gobichettipalayam& Ors.11.

It is the further submission of the appellant that R.

Krishnammal, the widow has only limited estate during

her lifetime which does not blossom into absolute right

under Section 14(1) of the Hindu Succession Act. It

is contended that the primary relief sought by R.

Krishnammal in OS No.71 of 1958 was itself based on the

right under the Will. She never claimed under Section

14(1) of the Hindu Succession Act. She knew the

intention of the testator and accepted it by her

conduct. The property bequeathed to her was only

limited estate with onerous condition that she has to

maintain sisters etc. and on her death the property was

to devolve upon her sisters’ sons. Considerable

reliance was placed upon the judgment of this Court in

Sadhu Singh’s case (supra). Taking us through the Will

11
2017 (13) SCC 15

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the appellants contend that the testator has provided

other properties for the maintenance of Krishnammal,

and therefore, it could not be argued that the plaint

schedule property which are included in the Will were

given in lieu of her right to maintenance which should

become absolute after passing of the Hindu Succession

Act. Reliance is placed on the following judgments:

(1) Shivdev Kaur (Dead) by LRs & Others v. R. S.

Grewal12

(2) Sharad Subramanyan v. Soumi Mazumdar &

Ors.13and

(3) Gaddam Ramakrishnareddy & Ors. V. Gaddam Rami

Reddy & Ors.14

36. As regards the finding of the High Court that

the suit filed by the legatee is barred under Order II

Rule 2, it is contended that though there is a vested

right under Section 119 (1) of the Indian Succession

Act in favour of the appellants (legatees), the cause

of action to sue in respect of the bequeathed property

12
2013 (4) SCC 636
13
2006 (8) SCC 91
14
2010 (9) SCC 602

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arose only after the death of R. Krishnammal. O.S.

No.36 of 1963 was a protective action to deal with R.

Krishnammal purporting to alienate certain properties.

Plaintiffs-appellants in OS No.36 of 1963 were not

parties to the suit in 1958 and the compromise in OS

No.71 of 1958 will not bind the appellants. R.

Krishnammal, the widow did not have any right to deal

with the properties which were given to her by way of

life estate. She could not have entered into

compromise without including the appellants. The decree

is described as void ab initio and therefore, there is

no need to declare that decree or any transaction

thereon as such. Still further it is contended that

perusal of the plaint in OS No.36 of 1963 would show

that plaintiffs have reserved their rights in respect

of the rest of the properties to initiate separate

action. The respondents have agreed for a declaration

that Krishnammal had only a life estate and they are

therefore estopped from contending that R. Krishnammal

had absolute right. The cause of action arose only

after 1977 on the death of R. Krishnammal. Reliance

is placed on judgments of this Court in Bay Berry

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Apartments Pvt. Ltd. & Ors. Shobha & Ors.15 and Usha

Subarao v. B.E. Vishveswariah16. It is contended that

Krishnammal did not have any right to give away the

properties which was not for any legal necessity or

family necessity. The transaction itself has been

challenged as fraudulent and collusive in OS No.89 of

1983 and an issue was also framed. A contention is

also taken that the compromise decree was not

registered and therefore could not convey any title to

the respondents. It is also submitted that the

challenge made to the will in the year 1982 is barred

by limitation. It is further contended that

respondents are estopped from challenging the validity

of the will in the light of admitting the existence of

the Will and compromising the suits OS No.71 of 1958

and OS No.36 of 1963. The High Court erred in decreeing

OS No.649 of 1985 without declaring earlier compromise

decree between the same parties in OS No.71 of 1958 and

OS No.36 of 1963 as null and void. Any such declaration

would be barred by limitation in the year 1982. Under

15
2006 (13) SCC 737
16
1996 (5) SCC 201

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the decree in OS No.36 of 1963 R. Krishnammal had only

the life estate and Section 14(2) would apply. The

right to the property by survivorship which was set up

by the respondents was negatived by the trial court and

no appeal was carried against the same. It is also the

submission of the appellants that even on the death of

Krishnammal on the basis that she had acquired absolute

right under Section 14(1), the brothers and sisters’

sons were equally entitled to 1/8th share in the entire

50 per cent of the property which fell to the share of

Rangaswami Naidu.

37. We also heard Shri V. Giri, learned senior

counsel for the appellants. Shri Nagamuthu, learned

senior counsel canvassed contentions for the

transferees from the 1st defendant in OS No.89 of 1983

and complained that their contentions has not been

considered and accepted.

38. We notice the following submissions by Mrs. V.

Mohana, learned Senior Counsel on behalf of the

appellants. There are sufficient pleadings in regard

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to the division of status. The newspaper in “Navva

India” dated 10.05.1955 has never been disputed. She

drew our attention to the evidence of the Executor in

the proceedings under Section 145 of the CrPC. The

declaration was communicated. Rangaswami Naidu had the

capacity to bequeath the properties. The brothers were

dealing with the properties separately. In this regard,

reliance is placed upon judgments of this Court in

Hardeo Rai v. Sakuntala Devi and others17. It is not

necessary to prove partition by metes and bounds. The

original Will was produced before the Magistrate in

proceedings under Section 145 of the CrPC. The Will is

a registered document. The Will has been proved under

Section 33 of the Evidence Act. The Magistrate Court

is a Court. Reliance is placed on Krishnayya Surya Rao

Bahadur Garu and others (Defendants) v. Venkata Kumara

Mahitathi Surya Rao Bahadur Garu18. The earlier

proceedings in O.S. No. 71 of 1958 is not binding upon

the appellants. R. Krishnammal did not have the right

to deal with the properties. The Decree in O.S. No. 71

17 (2008) 7 SCC 46
18 AIR 1933 PC 202
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of 1958 was void. Appellants have never abandoned their

rights. Principle of Order II Rule 2 of the CPC will

not apply. Though the appellants had vested rights they

could not have filed the case for getting possession

till the death of R. Krishnammal. As per the compromise

Decree in O.S. No. 71 of 1958, rest of the properties

were in the control of the plaintiffs. Therefore, they

have reserved their right in O.S. No. 36 of 1963. The

issue of Order II Rule 2 of the CPC was never argued

nor any finding was given by the High Court. In the

Suit for Partition, there is a prayer for possession.

Anyways, the partition could be effected only when the

final Decree Proceedings are over. The question of

limitation was never agitated by the respondents, and

at any rate, the period begins to run only in the year

1977. The Will is not in lieu of maintenance. The case

falls under Section 14(2) of the Hindu Succession Act.

Attempt has been made to distinguish decision of this

Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe

and others (supra). Shri Om Prakash, learned Senior

Counsel in his written submission in Civil Appeal Nos.

1027 to 1032 of 2013, would contend, inter alia, that

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division and severance of the joint family stood

proved. He lays store by the judgments of this court

in Addagada Raghavamma and another v. Addagada

Chenchamma and another19, Janki Narayan Bhoir v. Narayan

Namdeo Kadam20 and Hardeo Rai (supra). The Will is

covered under Section 63 of the Evidence Act and

Section 68 of the Indian succession Act. The right in

the joint family properties, devolving by survivorship,

is negatived by the all the courts below and there is

no appeal against such finding and there is no cross

appeal.

CIVIL APPEAL NO. 1039-1044 OF 2013

In the Written Submission, it is sought to be

contended that the challenge to the Will made by the

plaintiffs (in O.S. No.649 of 1985) in the year 1982

is barred by limitation. They are estopped in view of

the compromise in O.S. No. 71 of 1958 and O.S. No. 36

of 1963. Without declaring Compromise Decrees, in the

earlier two cases null and void, O.S. No. 649 of 1985

19 AIR 1964 SC 136

20 (2003) 2 SCC 91
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could not have been decreed. Such a relief is barred

by limitation in the year 1982. Section 14 (1) of the

Hindu Succession Act does not apply in view of the

Compromise Decree in O.S. No. 36 of 1963. The case

based on survivorship was rejected by the Trial Court

and, against the same, no appeal was filed by the

plaintiffs. If the finding under Section 14(1) is

confirmed, then, on the death of R. Krishnammal, by

operation of law, the brother’s and sister’s son are

equally entitled to 1/8th share in the entire 50 per

cent of the property which fell to the share of V.

Rangaswami Naidu. Since, the plaintiffs had knowledge

of the Will in the Section 145 of the CrPC proceedings,

they were not entitled to challenge the Will in 1982.

39. In C.A.No.1045-1050 of 2013, the appellants are

among defendants 13 to 34 in OS No.89 of 1983. They

are also defendants in the other suit (O.S. No. 649 of

1985). It is their contention that they purchased 7

acres and 4 cents from A. Alagiriswami who is defendant

No.1 in OS No.89 of 1983 and also the first defendant

in OS No.649 of 1985. The said purchase was prior to

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the filing of the suit and after the Hindu Succession

Act, 1956 came into force. After referring to Section

14(1), it is contended that the right given to R.

Krishnammal for a lifetime became her exclusive right

after the said Act came into force. After referring

to Section 14(2), it is pointed out that even according

to Lakshmiah Naidu on their contention that the will

is not genuine and there was no partition, there would

not be any restriction under Section 14(2) for having

absolute right by R. Krishnammal under Section 14(1).

Referring to the Compromise Decree in OS No.71 of 1958,

it is stated that when there was no objection by the

sons and grandsons of Lakshmiah Naidu now they cannot

raise dispute about partition in 1932 and the execution

of the will. Upon the death of Rangaswami Naidu in

1955 and R. Krishnammal on 30.4.1977 under oral

partition between the family of the sister of

Rangaswami Naidu, the property purchased by the

appellants came into possession of A. Alagiriswami from

whom they purchased. None of the parties till date

challenged their sale deed and the sons of Lakshmiah

Naidu filed O.S. No.649 of 1985, after 3 years of sale

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without even challenging the sale. Interference by the

High Court with the findings is complained against.

40. Mr. Guru Krishnakumar, learned senior counsel

appearing on behalf of the branch representing

Lakshmiah Naidu submitted that the declaration B1 is

shrouded in serious doubt. The discrepancy in the date

viz., that it is dated 12.05.1955 and not 10.05.1955

looms large. Even while accepting the document before

this Court, the date of B1 was conspicuously left out.

The cross examination of PW1 and the reliance placed

on the same is misplaced. Secondly, it is further

contended that B1 is an unsigned document. No witness

has deposed that the testator arranged for its

publication. Further, it is contended that the

declaration seeks to reaffirm the alleged partition of

the year 1932 which partition has not been believed by

three courts. B1 could not be believed independent of

the alleged partition. Once the alleged partition was

disbelieved B1 would have no legs to stand on. It is

contended that the words relied upon by the appellants

is in past continuous, insofar as it says “I also hereby

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make a declaration of my divided and separate status”,

it was not to be from that date that the severance was

to take effect. The findings of the first appellate

court are attacked as being perverse for the reason

that response to B1 and the rejoinder to the same which

were marked as B43 and B44 in the proceedings under

Section 145 were not exhibited in the present

proceedings. B2 order does not reveal any findings on

the same. It is further contended that partition is

used in a narrow and wide sense. B1 even if relied

upon would only result in separation of status but not

actual partition by metes and bounds. Reliance is

placed in Addagada Raghavamma v. Addagada Chenchamma21.

The position at law is pointed out to be that the

members of the undivided family even after a unilateral

communication of severance of status must agree to a

particular portion of the property being earmarked to

a member. Reliance is placed on the judgment of this

Court in Nanni Bai & Ors. V. Gita Bai Rama Gunge22 and

Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe & Ors.

21
AIR 1964 SC 136
22
1959 SCR 479

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(supra) besides Kalyani (Dead) by LRs v. Narayanan and

Others(supra). It is pointed out that in Addagada

Raghavamma case(supra), this Court did not consider the

specific issue as to whether specific items of property

could be unilaterally willed without the consent of the

other coparceners or without partition by metes and

bounds. The non-production of the original will is

made a ground of attack. The finding of the trial

court that the original will was produced in Section

145 proceeding is also pointed out to be the product

of error. No steps were taken to produce the Will.

The reliance placed on B7 deposition which is the

deposition in proceedings under Section 145 of the CrPC

is impugned as being not binding as the proceedings

under Section 145 could not be the forum for

establishing the Will. Adjudication under the said

provision could not be used as conclusive evidence to

prove the Will in view of Section 41 of the Evidence

Act. Reference is also made to Section 42 of the

Evidence Act. It was further contended that the

ingredients of Section 69 of the Evidence Act have not

been met. It is pointed out that without conditions

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of Section 69 being not met for the purposes of Section

145 CrPC, the same evidence could not be used to rely

upon for the purpose of Section 68 of the Evidence Act.

Further it is contended that the evidence which did not

fulfil the requirements of Section 68 could not be used

to prove the Will under Section 69 of the Evidence Act.

Even otherwise, it is contended B7 falls short of the

requirement when there is no evidence to prove the

signature of the testator, the original Will not having

been produced. The exercise should not be undertaken

as DW1 does not even know the signature of the testator.

It is pointed out that suspicious circumstances

surrounding the Will has not been explained. The

argument that Will could be taken as a declaration of

the severance of status is disputed. It is pointed out

that the Will was communicated only with the

proceedings under Section 145 which was after the death

of the Rangaswami Naidu on 01.06.1955 on which date the

partition had opened under the Mitakshra Law. It is

also contended that the Section 33 of the Evidence Act

does not apply. This is for the reason that under the

explanation to Section 33 it would apply where a person

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claims under the party in the other proceedings. It

is contended that the appellant (the plaintiff in OS

No.89 of 1983 apparently) has not claimed under

Krishnammal. It is further contended that Section

14(1) of the Hindu Succession Act would apply.

41. Learned senior counsel appearing on behalf of

the respondent-Shri Raghavachari, contended as

follows:

There was no partition. Paper publication dated

12.05.1955 spoke of an earlier division. The

unilateral declaration is unacceptable.

Suspicious circumstances include testator being

bed ridden being in his last days as he was

suffering from the cancer of the food pipe and was

being fed by a tube and not being conscious are

referred to. The question of letting in secondary

evidence did not arise. The alleged Will contains

inked portion and interlineations. It is further

contended that OS No.71 of 1958 was filed by the

widow R. Krishnammal for partition of the joint

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family properties in which suit she had enlisted

all 93 items of the joint family properties and

claimed half share. The suit was compromised and

she accepted 16 items and confirmed rights to 77

items in favour of the sons of Lakshmiah Naidu.

R. Alagiriswami and V. Kalyanaswami (among the

appellants before us) filed OS No.36 of 1963 and

the children of Lakshmiah Naidu were also made

parties. The right of R. Krishnammal to enter into

a compromise in OS No.71 of 1958 was challenged as

according to them she had only a life interest.

R. Krishnammal, the defendant contended that she

had absolute right under Section 14(1) and hence

the authority to enter into compromise. Entering

into a compromise in OS No.36 of 1963 by taking

two items out of 16 items after the lifetime of R.

Krishnammal meant that the plaintiffs in OS No.36

of 1963 accepted the superior rights of R.

Krishnammal and they gave up their claim and

accepted the sale to third parties effected by

R.Krishnammal of 5 items. Reference is also made

to OS No.732 of 1981 filed by the plaintiff also

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in OS No.36 of 1963. In the said suit plaintiffs

have sought to divide the two items which they

secured in OS No.36 of 1963. Our attention is

drawn to the pleading in OS No.732 of 1981 to the

effect that the properties belong to one R.

Krishnammal which was allotted to her share in OS

No.71 of 1958 and the said properties were in her

possession till her death. In other words, it is

pointed out that right was not set up under the

will. The right was abandoned in 1974 and which

abandonment was affirmed in 1981 thus attracting

the principles of estoppel, acquiescence and

waiver. The contention is also taken that OS No.89

of 1983 is hopelessly barred by limitation even

proceeding on the basis that there is a Will and

that will is true, Section 14(1) of the Hindu

Succession Act would apply.

42. Shri Mohan Parasaran, Senior Advocate would

submit inter alia that there is no pleading for the

case of severance. The Will was not proved in

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accordance with law. The proceedings under Section 145

of the CrPC were summary in nature and not inter-

parties. The subject matter was possession. Therefore,

the evidence adduced in the said proceedings should not

be used. The right available to Krishnammal was under

Section 14(1). The bar under Order II Rule 2 applied.

43. Smt. Chithra Sampath, learned senior counsel

appearing for some of the respondents contended that

plaint schedule property was in the possession of the

respondents (the children of Lakshmiah Naidu) right

from the time of proceeding under Section 145. While

this was the position yet there is no prayer for

recovery of possession in OS 89 of 1983. Any such

relief would be barred by limitation. Relying on the

judgment of this Court in (2007) 12 SCC 695, it is

contended that since there is no pleading regarding

division of status is O.S. No. 89 of 1983 and in the

Written Statement in O.S. No. 649 of 1985, in spite of

the specific plea of the respondents in O.S. 649 of

1985 that there was no division, no amount of evidence

can be looked into. There is no issue framed regarding

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division. The Appellate Court has relied on documents

not filed in these proceedings. The content of the same

was not known to the parties as they were not discussed

and findings rendered. [This is with reference to the

Order passed, Exhibit-B2]. The proceedings under

Section 145 of the CrPC are summary in nature and do

not bind the Civil Court. There is no communication to

bring about a division of status prior to the death.

Reliance is placed on Madhusudan Das v. Narayanibai

(Deceased) by Lrs. and others23. It is not a case where

the Will is lost. Relying on Benga Behera and another

v. Braja Kishore Nanda and others24, it is contended

that only after pleading and proving loss of original

Will beyond reasonable doubt, that secondary evidence

could be adduced. In regard to reliance placed on B7,

our attention is drawn to the Judgment of this Court

in Sashi Jena and others v. Khadal Swain and another25.

It is contended that the issue involved in the

proceedings under Section 145 of the CrPC were related

to possession and the issue of Will by Rangaswami was

23 (1983) 1 SCC 35
24 (2007) 9 SCC 728
25 (2004) 4 SCC 236
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not considered, and therefore, two conditions in

Section 33 of the Evidence Act are not met. The other

condition is obviously the first condition in the

proviso on the basis that that the plaintiff in O.S.

No. 89 of 1983 is not tracing his title through the

parties in Section 145 proceedings. Suspicious

circumstances, including even refusal by the Testator

as reflected in X1, to prefixing his thumb impression

pointing to his mental condition, are pointed out.

Incorrect statements in the Will are enlisted to impugn

the Will. The case falls under Section 14(1) of the

Hindu Succession Act. Conduct of the plaintiff in O.S.

No. 89 of 1983 in filing O.S. No. 732 of 1981, on the

basis it was filed, renders it a fit case for applying

the principle in Krishna Beharilal v. Gulabchand26 and

S. Shanmugam Pillai and others v. K. Shanmugam Pillai

and others27. This is besides pointing out the effect

of filing O.S. No. 1936 of 1963 and endorsement in the

Plaint that no relief was claimed against the other

defendants, thus, making it a case where no right was

26 (1971) 1 SCC 837

27 (1973) 2 SCC 312
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reserved in O.S. No. 36 of 1963 to agitate their rights

in respect of other properties in the Will.

THE PROPERTY AT STAKE

44. The property in dispute, in both the Suits, is

the same. In the Will dated 10.05.1955, there were

sixteen items. In O.S. No. 71 of 1958, R. Krishnammal

was conferred with absolute rights in respect of seven

items. The property involved in O.S. No. 36 of 1963

also related to the seven items, which figured in

compromise Decree in O.S. No. 71 of 1958, wherein R.

Krishnammal was conferred absolute rights. O.S. No. 632

of 1981 relates to items Nos. 5 and 6, in O.S. No. 36

of 1963. The items which are scheduled in the present

Suits are the items covered by the Will dated

10.05.1955 other than the seven items, out of which,

four were alienated and one was acquired. As far as

O.S. No. 71 of 1958, filed by R. Krishnammal, is

concerned, since she had an alternate relief claiming

partition, it encompassed the entire property belonging

to the coparcenary consisting of 93 items. The extent

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45. of property involved in the cases before us is a

little over 36 acres.

THE EFFECT OF ORDER II RULE 2 OF THE CPC

46. The contention raised by the respondents is,

inter alia, that O.S. No. 89 of 1983 is barred by Order

II Rule 2 of The Code of Civil Procedure, 1908

(hereinafter referred to as ‘the CPC’, for short) CPC.

This is for the reason that when two out of the

appellants have instituted O.S. No. 36 of 1963, they

have scheduled only seven items in the said Suit. It

was open to the appellants to claim the relief which

they have claimed in the present Suit. Having not sued

in respect of the items of properties other than the

items scheduled in O.S. No. 71 of 1958, they are barred

under Order II Rule 2 of the CPC. This is countered by

the appellants by pointing out two aspects. Firstly,

it is contended that under the Will, though they had

vested right, O.S. No. 36 of 1963 had to be instituted

when R. Krishnammal-the widow of Rangaswami Naidu had

made preparations for alienating the items scheduled

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in O.S. No. 36 of 1963 and which were covered by the

Decree in O.S. No. 71 of 1958. Secondly, it is pointed

out by the appellants that under the Will, R.

Krishnammal-the Widow had a life estate in respect of

the plaint scheduled properties. Consequently, as long

as she was alive, a Suit of the nature, as is filed,

viz., O.S. No. 89 of 1983, could not be filed, when

under the Will, R. Krishnammal had the right. It is

only upon her death that under the Will, a suit of the

nature filed by them, could have been filed. R.

Krishnammal died only in 1977. In order that provisions

of Order II Rule 2 of the CPC apply, there must be

identity of cause of action. Thus, on the one hand,

while it was open to the appellants to institute a

protective action, as was done by filing O.S. No. 36

of 1963, in respect of the properties scheduled threin.

On the basis of the cause of action projected in the

said Suit, it would certainly not be a bar to the

prosecution of the present Suit.

47. Order II Rule 2 of the CPC has been a subject

matter of a large number of decisions of this Court.

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Order II Rule 2 (2) of the CPC postulates a situation

where a plaintiff omits to sue in respect of any portion

of his claim or intentionally relinquishes any portion

of his claim. Then, he is debarred from suing in

respect of the portion so omitted or relinquished. A

plaintiff entitled to more than one relief arising from

the same cause of action, can do two things. He may sue

in respect of all the reliefs arising from the same

cause of action in the same suit. He may, if he omits

to sue for one or more of the reliefs open to him under

the same cause of action, seek leave of the court to

sue for all such reliefs, and if the court grants such

leave, then, he may institute a suit, though based on

the same cause of action in the earlier suit, in a

fresh suit. The effect of not seeking the leave of the

court, however, in regard to any of the reliefs, which

it was open to him to sue for on the same cause of

action, is that, he is barred from suing for any other

reliefs so omitted. The difference between Order II

Rule 2(2) and Order II Rule 2(3) of the CPC may be

noticed. The law contemplates a distinction between a

case where a claim arising out of the cause of action

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is either intentionally relinquished or omitted to be

sued upon. Such a claim cannot be the subject matter

of a fresh suit. However, when more than one reliefs

are available stemming from the same cause of action,

then, seeking further reliefs than sought in the first

suit, except where leave is obtained, would be barred.

However, present the grant of leave by the court, his

subsequent suit seeking the reliefs which were

originally not sought but for which leave is granted,

is permissible. The principle of this provision is

actually captured in Order II Rule 2 (1) of the CPC

which is that every suit is to include the whole of the

claim which arises out of the cause of action and which

the plaintiff is entitled to make. It further declares

that it is open to a plaintiff to omit any portion of

the claim. However, the consequences of the same are

declared in Order II Rule 2 (2) of the CPC. We notice

that similar views have been expressed in the decision

of this Court in Virgo Industries (Eng.) (P) Ltd. v.

Venturetech Solutions (P) Ltd. 2013 (1) SCC 625. In

paragraph 9, it was held as follows:

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“9. Order 2 Rule 1 requires every suit to

include the whole of the claim to which
the plaintiff is entitled in respect of
any particular cause of action. However,
the plaintiff has an option to relinquish
any part of his claim if he chooses to do
so. Order 2 Rule 2 contemplates a
situation where a plaintiff omits to sue
or intentionally relinquishes any portion
of the claim which he is entitled to make.
If the plaintiff so acts, Order 2 Rule 2
CPC makes it clear that he shall not,
afterwards, sue for the part or portion
of the claim that has been omitted or
relinquished. It must be noticed that
Order 2 Rule 2(2) does not contemplate
omission or relinquishment of any portion
of the plaintiff's claim with the leave
of the court so as to entitle him to come
back later to seek what has been omitted
or relinquished. Such leave of the court
is contemplated by Order 2 Rule 2(3) in
situations where a plaintiff being
entitled to more than one relief on a
particular cause of action, omits to sue
for all such reliefs. In such a situation,
the plaintiff is precluded from bringing
a subsequent suit to claim the relief
earlier omitted except in a situation
where leave of the court had been
obtained. It is, therefore, clear from a
conjoint reading of the provisions of
Order 2 Rules 2(2) and (3) CPC that the
aforesaid two sub-rules of Order 2 Rule 2
contemplate two different situations,
viz., where a plaintiff omits or
relinquishes a part of a claim which he
is entitled to make and, secondly, where
the plaintiff omits or relinquishes one
out of the several reliefs that he could
have claimed in the suit. It is only in
the latter situations where the plaintiff
can file a subsequent suit seeking the
relief omitted in the earlier suit proved
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that at the time of omission to claim the

particular relief he had obtained leave
of the court in the first suit.”

48. In this case, it is true that when O.S. No. 36

of 1963 was instituted, the earlier Suit brought by R.

Krishnammal, viz., O.S. No. 71 of 1958, had culminated

in a compromise Decree. A perusal of the plaint itself

would show that the plaintiffs in O.S. No. 36 of 1963

have adverted to the compromise in O.S. No. 71 of 1958.

They have averred in paragraph 7 of the plaint that

under the compromise, R. Krishnammal was given the

property scheduled in the said Suit (Suit No. O.S. No.

36 of 1963) in lieu of the properties comprised in the

Will and some cash. The rest of the properties

comprised in the Will were given-up by her in favour

of the respondents (the sons of Lakshmiah Naidu) it is

averred. Thereafter, it is averred that the defendants

claim, i.e., R. Krishnammal claimed absolute title to

the properties scheduled in the plaint and which was

unsustainable both in law and facts. It is contended

further that the entire compromise Decree, more

especially, conferring the absolute title to the suit

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properties therein in R. Krishnammal, was not valid and

binding on the two plaintiffs and Defendants 3 and 4,

who are the appellants before us. It is further averred

that the appellants have vested rights in the

properties. They were not impleaded in the suit

(apparently, O.S. No. 71 of 1958). It was averred that

R. Krishnammal did not represent the interest of the

appellants. In paragraph-8 of the Plaint, it is averred

that R. Krishnammal could not enlarge her rights by any

compromise to which the plaint items were, only some

items of the properties comprised in the Will and R.

Krishnammal would, in law, be entitled to and could

claim only the same interest, i.e., a life estate that

she had under the Will. Thereafter, there is reference

to a Notice dated 05.10.1959 to R. Krishnammal that she

had only a life estate and to desist from alienating

them. R. Krishnammal is alleged to have sent a reply

containing untenable allegations. It is averred that

she claimed, inter alia, that the appellants would not

be entitled to claim anything under the Will and she

was entitled to deal with the properties in any manner

she liked. It is further averred that R. Krishnammal

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was then attempting to create nominal documents in

respect of the suit properties to defeat the rights of

the appellants. Paragraph-11 of the Plaint being

significant, may be noticed:

“11. The Will of R.V. Rangaswami Naidu

comprised other properties also other than
those described herein which under the
compromise decree have been given by the
1st defendant to her husband’s brother’s
sons. The plaintiffs reserve their rights
to respect of those properties to a
separate action.”

49. It is accordingly that O.S. No. 36 of 1963 was

filed seeking a declaration that R. Krishnammal had

only a life estate without any powers of alienation and

the appellants have a vested remainder in the said

properties under the Will. The word ‘said’ obviously

refers to the items scheduled in OS No.36 of 1963.

50. The Suit (O.S. No. 89 of 1983) is fundamentally

premised on the death of R. Krishnammal in 1977 and the

blossoming of the full rights of the appellants under

the Will. In other words, R. Krishnammal having a life

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estate under the Will was alive when O.S. No. 36 of

1963 was filed. The absolute right under the Will, in

favour of the appellants, dawned only with the death

of the life estate holder. In this context, no doubt,

we must clarify one aspect. Section 119 of the Indian

Succession Act, 1925 (hereinafter referred to as the

“Indian Succession Act’, for short) deals with the date

of vesting of legacy when, inter alia, possession is

postponed. The provision with the relevant illustration

reads as follows:

“119. Date of vesting of legacy when

payment or possession postponed.—Where by
the terms of a bequest the legatee is not
entitled to immediate possession of the
thing bequeathed, a right to receive it at
the proper time shall, unless a contrary
intention appears by the Will, become
vested in the legatee on the testator’s
death, and shall pass to the legatee’s
representatives if he dies before that time
and without having received the legacy, and
in such cases the legacy is from the
testator’s death said to be vested in
interest.

Explanation.—An intention that a

legacy to any person shall not become
vested in interest in him is not to be
inferred merely from a provision whereby
the payment or possession of the thing
bequeathed is postponed, or whereby a prior

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interest therein is bequeathed to some

other person, or whereby the income arising
from the fund bequeathed is directed to be
accumulated until the time of payment
arrives, or from a provision that, if a
particular event shall happen, the legacy
shall go over to another person.

Illustrations:
(i) xxx xxx

(ii) xxx xxx

(iii) A fund is bequeathed to A for life,

and after his death to B. On the testator’s
death the legacy to B becomes vested in
interest in B.

xxx xxx xxx xxx”

51. It is also apposite that we notice Section 19 of

the Transfer of Property Act, 1882 (hereinafter

referred to as ‘the TP Act’, for short). Section 19

deals with vested interest. It reads as follows:

“19. Vested interest.—Where, on a

transfer of property, an interest therein
is created in favour of a person without
specifying the time when it is to take
effect, or in terms specifying that it is
to take effect forthwith or on the
happening of an event which must happen,
such interest is vested, unless a contrary
intention appears from the terms of the
transfer. A vested interest is not defeated
by the death of the transferee before he
obtains possession.

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Explanation.—An intention that an

interest shall not be vested is not to be
inferred merely from a provision whereby
the enjoyment thereof is postponed, or
whereby a prior interest in the same
property is given or reserved to some other
person, or whereby income arising from the
property is directed to be accumulated
until the time of enjoyment arrives, or
from a provision that if a particular event
shall happen the interest shall pass to
another person.”

52. Vested interest is different from the contingent

interest. The two have vastly different consequences.

The death of R. Krishnammal being a certain event, the

interest of the remaindermen is a vested interest. The

commonality between Section 19 of the TP Act and

Section 119 of the Indian Succession Act, and which is

apposite to the facts of this case, is as follows:

When under the Will, a life estate was created

in favour of R. Krishnammal with an absolute

remainder in favour of the appellants, the legacy

in favour of the appellants became vested from the

time of death of the testator. The possession and

the enjoyment of the property, however, under the

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Will, was the domain of the life estate holder,

viz., R. Krishnammal as long as she was alive. She,

however, had no right to enlarge the boundaries of

her right under the Will. This is, no doubt,

subject to the impact of supervening Legislation

which will be discussed later. By her unilateral

act or by even joining together with the third

party, it would not be open to life estate holder

to defeat the rights of the remainder men. The

significance of a case being covered under Section

119 Illustration (III), of the Indian Succession

Act, is that with the death of the Testator, the

right in the property becomes vested with the

remainder men, from the time of death of the

Testator. In other words, upon the death of the

legatee under the Will, in whom the absolute right

is vested after the transient possession and

enjoyment of the life estate holder, a heritable

right, which, in fact, arose at the time of the

death of the testator, would confer legal rights

upon the heirs of the absolute owner under the Will

when succession to his estate opens, should he not

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wish to leave a Will behind. Though the right is

vested in the property, the enjoyment of the

property with the absoluteness of a full owner

under the Will could be done by the appellants only

after the death of R. Krishnammal. Having thrown

light upon the words ‘absolute rights’ in the

context of Section 119 of the Indian Succession

Act, 1925, it is this right which was sought to be

made subject matter of a Decree for declaration

and partition. It is clear that in the year 1963

or till the death of R. Krishnammal, the rights as

sought to be enforced, did not inhere with the

appellants as explained. They could not have sought

a partition of the plaint scheduled properties

while R. Krishnammal was alive.

53. We listen to the words of this Court again in

Virgo Industries (Eng.) Private Limited v. Venturetech

Solutions Private Limited28 found in paragraph-11 of

the judgment:

28 (2013) 1 SCC 625

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“11. The cardinal requirement for

application of the provisions contained in
Order 2 Rules 2(2) and (3), therefore, is
that the cause of action in the later suit
must be the same as in the first suit. …”

54. Thus, be it the omission or intentional

relinquishment of a claim arising out of a cause of

action under Order II Rule 2(2) or not seeking a relief

under Order II Rule 2 (3), the fatal consequences they

pose, will arise only if the cause of action is the

same. Though we are not oblivious to the fact that the

plaintiffs in O.S. No. 36 of 1963 could have sought a

declaration about the compromise Decree in O.S. No. 71

of 1958, qua all the properties covered under the Will,

we would think that, in the facts of this case, the

cause of Action in O.S. No. 36 of 1963 and the present

Suit (O.S. No. 1989 of 1983) are clearly distinct,

having regard to what we have discussed and having

regard to the factum of the date of the death of R.

Krishnammal. It is significant to note that the cause

of action in OS No.36 of 1963 was the threat of

alienation of the items scheduled therein. We would

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perceive O.S. No. 36 of 1963 more as a protective action

by persons who had vested interest in the property

under Section 119 of the Indian Succession Act, 1925

(hereinafter referred to as ‘the Indian Succession

Act’, for short). We must also not be unmindful of the

principle that cause of action is not to be confused

with the relief which is sought. It has more to do with

the basis for the relief which is sought. We are only

reiterating in this regard, what the Privy Council has

laid down, when it said “it refers to the media upon

which the plaintiff asked the court to arrive at a

conclusion in his favour” (See Mohammad Khalil Khan v.

Mahbub Ali Mian29).

THE IMPACT OF THE PROCCEDINGS AND THE DECREE PASSED IN

O.S. NO. 1971 OF 1958 AND O.S. NO. 36 OF 1963 AND O.S
NO. 732 OF 1981

ESTOPPEL, WAIVER, ACQUIESCENCE

55. O.S. No. 71 of 1958 was a Suit filed by R.

Krishnammal. Defendants Nos. 1 to 4 were sons of

Lakshmiah Naidu. The Fifth Defendant was the Executor

29 AIR 1949 PC 78
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of the Will. R. Krishnammal lay store by the Will

executed by her late husband V. Rangaswami Naidu. In

the alternate, she also claimed a Decree for Partition,

virtually giving-up her right under the Will and on the

basis that V. Rangaswami Naidu died intestate. The

matter did not go to trial. It ended in a compromise.

The substance of the compromise is, a few of the items

mentioned in the Will, seven items were recognised as

absolute properties of R. Krishnammal even though,

under the Will, she had only a limited right over those

items. R. Krishnammal, for her part, under the

compromise Decree gave-up her rights in respect of the

rest of the properties. We notice the argument of V.

Raghavachari, learned Senior Counsel for the

respondents, that there were ninety-three items which

would have been impacted if a Partition Decree, as

sought by R. Krishnammal, had been passed. In other

words, there was a larger body of properties,

apparently which belonged to the joint family of the

V. Rangaswami Naidu and Lakshmiah Naidu. The properties

covered by the Will were only a much smaller part of

the larger body of property, which belonged to the

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joint family. There is evidence to suggest that as

found by the First Appellate Court that R. Krishnammal

may not have been in a position to demand her full

rights as such and she was satisfied with what she

could get. But what is far more relevant is, the

appellants were not parties to the compromise.

Appellants were not tracing their rights under R.

Krishnammal. Appellants were given an absolute right

under the Will executed by their uncle V. Rangaswami

Naidu. The bequest in their favour created a vested

interest within the meaning of Section 119 of the

Indian Succession Act, 1925. Of course, the enjoyment

and possession of the property was to await the death

of R. Krishnammal under the Will. It is quite clear

that R. Krishnammal could not have also enlarged the

rights of the branch of Lakshmiah Naidu, once she

accepted the Will, for she had only a life estate over

the properties covered under the Will. The appellants

were also not bound by her acts in entering into a

compromise seeking to confer absolute rights qua those

properties, which were subject matter of the Will, in

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respect of which, they had the right to be enjoyed

after the death of R. Krishnammal.

56. O.S. No. 36 of 1963 came to be filed by two out

of the appellants, who are Legatees under the Will.

They sought a declaration to the effect that R.

Krishnammal could not enlarge her right and she could

not alienate the properties (the very seven items,

which, under the compromise Decree of O.S. NO. 71 of

1958, were recognised as her absolute properties). It

is true that the plaintiffs in O.S. No. 36 of 1963 did

not choose to include the plaint schedule properties

in the present Suit and seek a declaration qua them.

There are two aspects to it, which we must bear in

mind. Firstly, the cause of action for filing O.S. No.

36 of 1963 was alleged to be the apprehension that R.

Krishnammal was about to alienate the seven items over

which she acquired absolute rights under O.S. No. 71

of 1958 (In fact, it was alleged that one item was

alienated). Secondly, we have already noticed

paragraph-11 of the Plaint. Therein, the plaintiffs

have revealed their mind to be that they intend to

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pursue their right qua other properties apparently

which are the plaint schedule properties in O.S. No.

89 of 1983. We have already indicated that the bar of

Order II Rule 2 of the CPC will not apply. There is

some merit in the contention of the appellants that the

Decree passed in O.S. No. 36 of 1963 did involve

watering down the terms of the compromise Decree in

O.S. No. 71 of 1958. As on the date of the compromise

in O.S. No. 36 of 1963, the position was that four, out

of the seven items, had been alienated by R.

Krishnammal, whereas, one property had been acquired

by the Government. As regards Item Nos. 5 and 6 in the

plaint schedule in O.S. No. 36 of 1963, the terms of

the Will dated 10.05.1955, came to be reiterated. This

is for the reason that in departure from the terms of

the Decree in O.S. No. 71 of 1958, under which R.

Krishnammal was conferred with the absolute rights in

respect of Item Nos. 5 and 6, in regard to the very

same items, under the compromise Decree in O.S. No. 36

of 1963, R. Krishnammal was only to enjoy the

properties during her lifetime and without the power

of alienation. In other words, the terms of the Will

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dated 10.05.1955 are seen reflected and reinforced by

the compromise Decree in O.S. No. 36 of 1963. Both, in

O.S. No. 71 of 1958 and O.S. No. 36 of 1963, there is

no adjudication by the court. As to what is the

expediency which led the parties to enter into the

compromise Decree, may not be decisive of the legal

rights of the parties which we are called upon to

pronounce. The action of the branch of Lakshmiah Naidu,

who had also joined as parties in O.S. No. 36 of 1963,

and who were represented by the Counsel, may not

obviate the need for proving the Will on the part of

the appellants.

57. The further aspect to be noticed is that in the

compromise Decree in O.S. No. 36 of 1963, our attention

is invited to the fact that the plaintiffs have stated

that they are not seeking any relief against the other

defendants which include the Lakshmiah branch. From

this, it is sought to be contended that the interest

of the branch of Lakshmiah Naidu, which stood secured

under the compromise Decree of O.S. No. 71 of 1958,

whereunder R. Krishnammal had given up her rights in

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regard to all properties other than the seven items

over which she was conferred absolute rights, was left

undisturbed and unimpeached. This conduct is emphasised

before us, to point out that it would constitute a bar

by way of principles, including estoppel and

acquiescence for the appellants in instituting O.S. No.

89 of 1983 in regard to the plaint schedule properties

over which R. Krishnammal had give-up all her rights

in O.S. No. 71 of 1958. It is in this regard, we must

bear in mind that even in the Plaint, in O.S. No. 36

of 1963, the properties, other than the seven items,

were admittedly not the subject matter of the Suit.

More importantly, what is stated in the compromise is

that no relief is claimed against the other Defendants

in the said Suit. It is equally true that by the passing

of the Decree in O.S. No. 36 of 1963, the interest of

the Lakshmiah branch was not imperilled. This is for

the reason that in regard to Item Nos. 5 and 6 in O.S.

No. 36 of 1963, over which the rights of R. Krishnammal

were limited to a life estate with a taboo against

alienation bringing it in tune with the terms of the

Will under the Compromise did not matter for the branch

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of Lakshmiah Naidu. This is for the reason that as far

as they were concerned, they were already bound by the

compromise Decree in O.S. No. 71 of 1958 whereunder R.

Krishnammal had been conferred absolute rights in

regard to Item nos. 5 and 6, inter alia, and they had

lost all their rights. Therefore, the arrangement inter

se between the appellants and R. Krishnammal, qua those

properties, was of no concern to them. What they were

interested in was the rest of the properties over which

they were given absolute rights under the compromise

Decree in O.S. No. 71 of 1958. The result is that on

the one hand the terms of the Will came to be reiterated

under the compromise Decree in O.S. No. 36 of 1963 qua

Item Nos. 5 and 6. The Decree in O.S. No. 71 of 1958

was otherwise left untouched. We would, therefore,

conclude that the passing of a Decree in O.S. No. 36

of 1963, is a matter which is entirely between the

appellants and R. Krishnammal. In fact, the Lakshmiah

Naidu branch, though made parties to the compromise,

were not actually parties to the Decree. They have not

signed as parties to the compromise Decree. Therefore,

neither the appellants nor the respondents can derive

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any advantage from either the filing of O.S. No. 36 of

1963 or the passing of the compromise Decree therein.

The plaintiffs in O.S. No. 36 of 1963 have also filed

O.S. No. 732 of 1981. The Lakshmiah branch (among the

respondents in the appeals) were not parties. It was a

Suit for partition of items 5 and 6 scheduled to O.S.

No. 36 of 1963. It is obvious that they cannot rely

upon principles of res judicata or constructive res

judicata based on O.S. No.732 of 1981, being not

parties to the said Suit. What, however, is sought to

be urged, is that the premise, on the basis of which

the Decree in O.S. No. 732 of 1981 was passed, is

completely incongruous with the cause of action in the

present Suit. In other words, it is pointed out that

in O.S. No. 732 of 1981, the case set-up was R.

Krishnammal had rights over the property and this was

inconsistent with the case set-up in the present Suit.

It was contended that the appellants were estopped from

undertaking such a course of action. We could also

deduce the following conduct. The cause of action in

O.S. No. 732 of 1981 did involve drawing upon the rights

secured (qua Item Nos. 5 and 6 in O.S. No. 36 of 1963)

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in O.S. No. 71 of 1958 whereunder the Lakshmiah branch

acknowledged rights of R. Krishnammal who also gave-up

her rights to properties which included the plaint

schedule items in the case. Though, we are not

oblivious to the dimensions projected, we would not

think that Right to Property, if otherwise is

established in favour of the appellants, it would be

lost. It cannot be treated as a case of abandonment of

rights qua the plaint schedule properties (See in this

regard Sha Mulchand & Co. Ltd. (In Liquidation), By

Official Receiver, High Court, Madras v. Jawahar Mills

Limited, Salem30 and Dr. Karan Singh v. State of J&K

and another31. The respondents who were not parties to

O.S. No. 732 of 1981,cannot set-up a case of estoppel.

WHETHER THE WILL DATED 10.05.1955 HAS BEEN PROVED

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

58. The Will in question is an unprivileged Will.

The mode of making an unprivileged Will is provided in

Section 63 of the Indian Succession Act. In order that

30 AIR 1953 SC 98
31(2004) 5 SCC 698
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a valid Will be made not only, it is necessary that the

Testator must execute the document but also the

execution must be attested by at least two witnesses.

What is required is not ordinary witnessing of a

document but attestation which is as is provided in

Section 63 of the Indian Succession Act.

59. Section 68 of the Indian Evidence Act, 1872

(hereinafter referred to as ‘the Evidence Act’, for

short) deals with proof of execution of a document

required by the law to be attested. A perusal of the

same makes it clear that in the case of a Will, being

a document which is required to be attested by Section

63 of the Indian Succession Act, if there is an

attesting witness alive and subject to the process of

the court and capable of giving evidence, then, the

Will can be proved only if one of the attesting witness

is called for proving its execution.

60. Section 69 of the Evidence Act, 1872, reads as

follows:

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“69. Proof where no attesting witness

found.—If no such attesting witness can be
found, or if the document purports to have
been executed in the United Kingdom, it
must be proved that the attestation of one
attesting witness at least is in his
handwriting, and that the signature of the
person executing the document is in the
handwriting of that person.”

61. Though the expression used is ‘if no such

attesting witness can be found, inter alia, it bears

the following interpretation’. The word ‘such’ before

‘attesting witness’ is intended to refer to the

attesting witness mentioned in Section 68 of the

Evidence Act. As far as the expression ‘found’ is

concerned, it would cover a wide variety of

circumstances. It would cover a case of an incapacity

to tender evidence on account of any physical illness.

It would certainly embrace a situation where the

attesting witnesses are dead. Should the attesting

witness be insane, the word “found” is capable of

comprehending such a situation as one where the

attesting witness, though physically available, is

incapable of performing the task of proving the

attestation under Section 68 the Evidence Act, and

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therefore, it becomes a situation where he is not

found.

62. In Babu Singh and others v. Ram Sahai alias Ram

Singh32, the Court laid down as follows in regard to

Section 69:

“17. It would apply, inter alia, in a

case where the attesting witness is either
dead or out of the jurisdiction of the court
or kept out of the way by the adverse party
or cannot be traced despite diligent
search. Only in that event, the will may be
proved in the manner indicated in Section
69 i.e. by examining witnesses who were
able to prove the handwriting of the
testator or executant. The burden of proof
then may be shifted to others.

18. Whereas, however, a will ordinarily

must be proved keeping in view the
provisions of Section 63 of the Succession
Act and Section 68 of the Act, in the event
the ingredients thereof, as noticed
hereinbefore, are brought on record, strict
proof of execution and attestation stands
relaxed. However, signature and
handwriting, as contemplated in Section 69,
must be proved.”

(Emphasis supplied)

32(2008) 14 SCC 754

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63. Dealing with Section 69 of the Evidence Act, we

notice the judgment of this Court in K. Laxmanan v.

Thekkayil Padmini and others33:

“32. Since both the attesting witnesses

have not been examined, in terms of Section
69 of the Act it was incumbent upon the
appellant to prove that the attestation of
at least one attesting witness is in his
handwriting and that the signature of the
person executing the document is in the
handwriting of that person. DW 3, who was
an identifying witness also in Ext. B-2,
specifically stated that he had not signed
as an identifying witness in respect of
Ext. B-2 and also that he did not know about
the signature in Ext. B-2. Besides,
considering the nature of the document
which was a deed of gift and even assuming
that no pleading is filed specifically
denying the execution of the document by
the executant and, therefore, there was no
mandatory requirement and obligation to get
an attesting witness examined but still the
fact remains that the plaintiff never
admitted the execution of the gift deed
and, therefore, the same was required to be
proved like any other document.”

64. In this case, there is no dispute that both the

attesting witnessing were not alive at the relevant

33(2009) 1 SCC 354

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time. The questions, therefore, would then arise as

follows:

a. Is it still the requirement of law when both the

attesting witnesses are dead that:

under Section 69 of the Evidence Act, the

attestation as required under Section 63 of the

Indian Succession Act, viz., attestation by the

two witnesses has to be proved? Or

Is it sufficient to prove that the attestation of

at least one attesting witness is in his

handwriting, which is the literal command of

Section 69 of the Evidence Act apart from proving

the latter limb?

b. The further question which would arise is whether

exhibit B7, which is the copy of the evidence of

the one of the attesting witnesses in the Will, in

the proceedings under Section 145 of the CrPC

sufficiently fulfils the requirements under

Section 33 of the Evidence Act?

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65. We will first take-up the issue relating to the

impact of Section 33 of the Evidence Act. It is not a

matter which is gone into by the High Court. Section

33 of the Evidence Act reads as follows:

“33. Relevancy of certain evidence for

proving, in subsequent proceeding, the
truth of facts therein stated.—Evidence
given by a witness in a judicial
proceeding, or before any person authorized
by law to take it, is relevant for the
purpose of proving, in a subsequent
judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of
the facts which it states, when the witness
is dead or cannot be found, or is incapable
of giving evidence, or is kept out of the
way by the adverse party, or if his presence
cannot be obtained without an amount of
delay or expense which, under the
circumstances of the case, the Court
considers unreasonable:
Provided— that the proceeding was between
the same parties or their representatives
in interest; that the adverse party in the
first proceeding had the right and
opportunity to cross-examine; that the
questions in issue were substantially the
same in the first as in the second
proceeding.

Explanation.—A criminal trial or

inquiry shall be deemed to be a proceeding
between the prosecutor and the accused
within the meaning of this section.”
(Emphasis supplied)

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66. The contention of the respondents appears to be

only that, in the proceeding under Section 145 of the

CrPC, the tussle was between R. Krishnammal and the

Executor of the Will who were styled as A Party Nos. 1

and 2 and the B Party, viz., the respondents. The

present appellants were not parties. Therefore, the

proceeding was not between the same. The other limb of

the first proviso to Section 33, viz., that in order

that Section 33 of the Evidence Act applies, the

proceeding is between their representatives in interest

is not fulfilled. The contention seen raised is that

the appellants, who are the remainder men under the

Will, cannot be treated as representatives in interest

of R. Krishnammal.

67. Further the nature of Section 145 proceedings is

highlighted as not one attracting the 3rd proviso. The

interpretation of the word ‘representative in interest’

has fallen for consideration before the Privy Council

in the decision reported in Krishnayya Surya Rao

Bahadur Garu and others (Defendants) v. Venkata Kumara

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Mahitathi Surya Rao Bahadur Garu34 wherein the Court

referred to a large body of case law and after an

exhaustive review, held as follows:

“20. Nothing would have been easier,

had it been desired so to do, than to follow
the English rule, or to require that the
party to the first proceeding should be
privy in estate with or the predecessor in
title of the party to the second
proceeding. Instead of using such well-
known terms, a much more elastic phrase is
employed, and one which is neither
technical nor a term of art. The
legislative authority was, it must be
remembered, dealing with a country in which
(amongst other institutions) the Hindu
joint family involved representation of
interest of a kind and degree and in
circumstances unfamiliar to English law. In
view of this fact, their Lordships cannot
but surmise that the omission of strict
English legal terminology and the
employment of the less restricted phrase
'representatives in interest'' was
deliberate and intentional. It will be a
question depending for its correct answer
upon the circumstances of each case where
the question arises, whether there was a
party to the first proceeding who was a
representative in interest of a party to
the second proceeding within the wider
meaning which their Lord- ' ships attribute
to these words. Turning back to the first
proviso, it requires, in their Lordships'

34 AIR 1933 PC 202

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view, that the party to the first

proceeding should have represented in
interest the party to the second proceeding
in relation to the question in issue in the
first proceeding to which "the facts which
the evidence states" were relevant. It
covers not only cases of privity in estate
and succession of title, but also cases
where both the following conditions exist,
viz. (1) the interest of the relevant party
to the second proceeding in the subject-
matter of the first proceeding is
consistent with and not antagonistic to the
interest therein of the relevant party to
the first proceeding; and (2) the interest
of both in the answer to be given to the
particular question in issue in the first
proceeding is identical. There may be other
cases covered by the first proviso; but if
both the above conditions are fulfilled,
the relevant party to the first proceeding
in fact represented in the first proceeding
the relevant party to the second proceeding
in regard to his interest in relation to
the particular question in issue in the
first proceeding, land may grammatically
and truthfully be described as a
representative in interest of the party to
the second proceeding.”
[Emphasis supplied]

68. The word ‘representative in interest’, in other

words, is to be understood liberally and not confined

to cases where there is privity of estate and

succession of title. He is be such representative of

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the party in the later proceedings. Answering the two

tests, which have been evolved in the facts of this

case, the respondents cannot contend that the interest

of the appellants was inconsistent with the interest

of R. Krishnammal and in particular the executor of the

Will. It was certainly not antagonistic to their

interest. The Will was indeed set-up by R. Krishnammal

and the executor. Therefore, it can be safely concluded

that the interest of both persons comprised of A Party,

which was the protection of the possession, was also

in the interest of the appellants. It may be true that

the appellants do not derive their title under R.

Krishnammal. But the requirements under Section 33 of

the Evidence Act are not to be confused with the

ingredients to be fulfilled even in a case under

Section 11 of the CPC. It cannot be contended that the

interest of the appellants lay in answering the

question posed in Section 145 of the CrPC proceedings

against R. Krishnammal and the Executor in favour of

the respondents, who were parties before the

Magistrate. The case of the Will was explicitly set up

as also the declaration dated 10.5.1955 and further

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developments. Therefore, the contention based on the

third proviso also does not appeal to us. Also not

only was there opportunity to cross examine to the B

party, it was availed of. The applicability of Section

33 of the Evidence Act also does not depend upon the

nature of the decision which is rendered in the earlier

proceeding. We would think that on this basis, as

Exhibit-B7 and even B13 (deposition by the Executor)

indeed is evidence which was tendered in the previous

proceeding before the Magistrate who was certainly

authorised by law to take evidence, which is relevant

for proving the truth of the facts contained therein

under Section 33.

69. The further question is, as posed by us, whether

despite the fact that both the attesting witnesses were

dead, the matter to be proved under Section 69 of the

Evidence Act, is the same as a matter to be proved

under Section 68 of the Evidence Act. In other words,

under Section 68 of the Evidence Act, in the case of a

Will covered under Section 63 of the Indian Succession

Act, it is indispensable that at least one attesting

witness must not only be examined to prove attestation

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by him but he must also prove the attestation by the

other attesting witness [See 1995(6)SCC 213]. This

Court has taken the view that while it is open to prove

the will and the attestation by examining a single

attesting witness, it is incumbent upon him to prove

attestation not only by himself but also attestation

by the other attesting witness. It is the contention

of the respondents that under Section 69 of the

Evidence Act, Exhibit-B7 falls short of the requirement

of law that attestation of the execution by both the

witnesses be proved. After taking us through Exhibit-

B7, it was pointed out that it is clear that even in

the said deposition, the witness has not deposed about

the attestation by the other witness, viz., Dr. C.S.

Ramaswamy Iyer. On the other hand, the contention of

the appellants and which has found approval with the

First Appellate Court, is that Section 69 of the

Evidence Act only requires that the attestation of at

least one attesting witness in his handwriting be

proved. This is, of course apart from proving that the

signature of the testator executing the document is in

the handwriting of that person.

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70. We are of the view that Section 69 of the

Evidence Act manifests a departure from the requirement

embodied in Section 68 of the Evidence Act. In the case

of a Will, which is required to be executed in the mode

provided in Section 63 of the Indian Succession Act,

when there is an attesting witness available, the Will

is to be proved by examining him. He must not only

prove that the attestation was done by him but he must

also prove the attestation by the other attesting

witness. This is, no doubt, subject to the situation

which is contemplated in Section 71 of the Evidence Act

which allows other evidence to be adduced in proof of

the Will among other documents where the attesting

witness denies or does not recollect the execution of

the Will or the other document. In other words, the

fate of the transferee or a legatee under a document,

which is required by law to be attested, is not placed

at the mercy of the attesting witness and the law

enables proof to be effected of the document despite

denial of the execution of the document by the

attesting witness.

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71. Reverting back to Section 69 of the Evidence Act,

we are of the view that the requirement therein would

be if the signature of the person executing the

document is proved to be in his handwriting, then

attestation of one attesting witness is to be proved

to be in his handwriting. In other words, in a case

covered under Section 69 of the Evidence Act, the

requirement pertinent to Section 68 of the Evidence Act

that the attestation by both the witnesses is to be

proved by examining at least one attesting witness, is

dispensed with. It may be that the proof given by the

attesting witness, within the meaning of Section 69 of

the Evidence Act, may contain evidence relating to the

attestation by the other attesting witness but that is

not the same thing as stating it to be the legal

requirement under the Section to be that attestation

by both the witnesses is to be proved in a case covered

by Section 69 of the Evidence Act. In short, in a case

covered under Section 69 of the Evidence Act, what is

to be proved as far as the attesting witness is

concerned, is, that the attestation of one of the

attesting witness is in his handwriting. The language

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of the Section is clear and unambiguous. Section 68 of

the Evidence Act, as interpreted by this Court,

contemplates attestation of both attesting witnesses

to be proved. But that is not the requirement in Section

69 of the Evidence Act.

72. Now, let us turn to Exhibit-B7. It is apposite

that we advert to whole of it:

“I know the deceased Rangaswami Naidu.

He wrote a will and asked me to attest it.
I went. He asked me to attest it. The first
signature is mine. The will is Ex. P-68.
Every page has been signed by the deceased.
After he signed the last page, I signed as
witness. Doctor C.S. Ramaswami Iyer is the
Doctor at Ramanathapuram. He was also
present. I as present when it was
registered. The Sub Registrar came home. I
have also signed before the Sub Registrar.
The deceased was sick. He was able to
understand things. I am an income tax
practitioner.
Cross Exam.: At that time I was living
in a place 1½ or 2 miles away from the house
of the deceased. I went to the deceased’s
house at about 10:30 a.m. I signed at about
11-30 to 12 noon. Doctor came after I went
there. He came at 11.30 A.M. I do not know
whether the Doctor came to attend on him or
came purposely for attesting this document.
Sub Registrar came later at about 1 P.M. I
remained till the arrival of the Sub
Registrar. But the Doctor went away. The
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Sub Registrar went away at 1-30 to 2 P.M.

Doctor did not return later. Doctor was
there for a total period of 15 minutes. I
remember he gave an injection. But I am not
sure of it. When I went there the will was
already typed. Rangasami Naidu was lying on
the bed. He was being fed by tube. When I
was there he was fed once. But I do not
remember whether any medicine was given.
The ink portions in pages 1 and 4 I do not
know who had written it in the body of the
document. It has not been subscribed here
as to who wrote it or typed it. The deceased
had an alisces in the head and he was
suffering. He was in pain and suffering. I
gave him the minimum trouble as interested
in his health. At times in order to recoup
from the pain and exhaustion he would lie
down quietly. Not to disturb him we asked
______ (sic) restraint. I cannot say
whether at every minute he was conscious or
half conscious or in a coma.
Re-Exam. When he talked to me he was
conscious.
(Sd) B. Venkataswamy Naidu, 1-2-56.
Taken down by me in open court, read
over and admitted to be correct. (Sd) K.S.
Narasimhan, EFCm. 1-2-56.”
(Emphasis supplied)

73. We must also be detained at this stage by another

aspect about Section 69 of the Indian Evidence Act.

Section 69 speaks about proving the Will in the manner

provided therein. The word ‘proved’ is defined in the

Evidence Act in Section 3, as follows: -

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“Proved.- A fact is said to be proved when,

after considering the matters before it,
the Court either believes it to exist, or
considers its existence so probable that a
prudent man ought, under the circumstances
of the particular case, to act upon the
supposition that it exists.”

74. Therefore, the question would be whether having

regard to the evidence before it, the Court can believe

the fact as projected in the evidence as proved. We say

this to clarify. In a case, where there is evidence

which appears to conform to the requirement under

Section 69, the Court is not relieved of its burden to

apply its mind to the evidence and find whether the

requirements of Section 69 are proved. In other words,

the reliability of the evidence or the credibility of

the witnesses is a matter for the Court to still ponder

over. As far as this case is concerned, the evidence

of one of the attesting witnesses is contained in B7

and which we have found relevant under Section 33,

establishes that he was an Income Tax Practitioner. He

was beckoned by Rangaswami Naidu, informing him that

he had written a Will and it was to be attested. He was

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asked to in fact to attest even upon going there on

that day. He speaks about the testator signing on every

page and also, he has spoken about him signing. He, no

doubt, therefore the establishes requirement of Section

69 in regard to the signature of one of the attesting

witnesses being proved in his handwriting. We see no

reason to doubt the testimony. As far as signature of

the testator is concerned, apart from B7 in B13, the

executor has spoken of the testator signing. Also, PW1

has deposed that the Will was shown to him he admitted

that every page is contained with the paternal uncle

signature. Thus, the requirement of proof of Will under

Section 69 are fulfilled.

WHETHER RECEPTION OF B10 AS SECONDARY EVIDENCE LEGAL?

75. Whether the acceptance of B10 which is the

certified copy of the Will is vulnerable in law or on

facts. The Trial court has found that B68 is the

original Will which was produced before the Magistrate

in the proceedings under Section 145 of the CrPC This

is after over-ruling the contention of the respondents

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that B68 was not the original Will. The Trial Court has

found little merit in the objection against secondary

evidence of the Will, viz., certified copy of the

registered Will being produced. We have in fact

evidence in the form of B7 and X1 to show that the Will

came to be registered.

76. The original of the Will according to the case

of the appellants continued to be with the executor who

was in fact the nephew of R. Krishnammal, the widow of

Rangaswami Naidu. An attempt was made to get the

original Will produced at the relevant time when the

executor had passed away, on the basis that his son was

in possession of the original Will. He was called upon

to produce the Will by C1. He responded by pointing out

that he was not having the original Will with him. The

finding of the Trial court as affirmed by the First

Appellate Court is that circumstances warranted

admission of secondary evidence to prove the Will. We

see no reason to take a different view and the view

taken by the High Court cannot be sustained.

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77. It may be true that in the proceedings in O.S.

No. 71 of 1958 and O.S. No. 36 of 1963, the Will was

projected first by R. Krishnammal and thereafter, the

plantiffs in O.S. No. 36 of 1963 who are among the

appellants before us. However, the matter did not go

to trial. We are also of the view that the Will must

be proved under the Evidence Act and not with reference

to plea of estoppel as taken by the appellants based

on the decree in O.S. No. 36 of 1963, being based on

the Will and the respondents having participated not

as parties even to the compromise but it is a far cry

from finding that the facts of the case did not warrant

admission of secondary evidence regarding the Will.

THE WILL: WHETHER IT IS THE GENUINE WILL OF RANGASWAMI

NAIDU? WHETHER IT IS VITIATED ON ANY GROUND?

78. We notice the following to be the relevant

portions of the Will:

“Last Will and testament executed this

th
10 day of May 1995 by Sri V. Rangaswami
Naidu MLC son of Endapillar Venkataswami
Naidu of Uppilipalayam Coimbatore Waluk I
own the immovable properties a set out in
Sch.A hereto absolutely exclusively and in

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my own right. These properties include

properties purchased by me and properties
that has been allotted to me in the family
partition between me and my brother Shri
R.V. Lakashmaiah Naidu in 1932 and which
are in my exclusive possession and
enjoyment since that date I have been a
divided member from 1932 onwards and have
continued to be so till this date. I have
also to avoid any uncertainties in this
regard made an open declaration of my
divided status today. Besides the immovable
properties I am entitled to the cash and
other amounts as set out in Sch.B hereto I
fell that I should make a deposition of my
assets in the manner herein indicated in
view of my recent ill health and failing
strength and also in view of my
diffidenceth as I may not live long enough
I am not in full possession of my mental
powers and I am making this will and
Testament after deep deliberation and
consideration and with the best of
intentions appoint Sri Ramachandra Baidu
son of Kangallar Venkataswami Naidu of
Metupalayam to be the executor under the
will. I bequeath all my landed properties
and my house set out in Sch.A to my wife
for life. she has no powers of alienation
but she is entitled to enjoy the income
from the lands and also to manage them. It
is my earnest wish that out of the income
from the landed properties in my wife
should meet the expenses of presents on
ceremonial and special occasion in my
sisters families after meeting her own
family expenses maintenance of the house
careto. After my wife’s lifetime the
properties V. Rangaswami, 2. ….. in Sch A
shall belong equally and absolutely to the
following persons who are my sisters sons
1. V. Kalyanasami Naidu, Son of my sister
Thayammal 2. R. Soundararaj as son of my
Third Sister Nagammal 3. A. Alagriswami Son
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of RangaNayakiammal my forth sister 4. R.

Alagiriswami Son of Krishnammal my last
sister. It is my earnest wish that these
four person should keep the properties for
their respective families and should not
dispose them off, but in case of need they
should sell them in the first instance to
any of the other shares. The cash and other
securities set out in Sch B valued at
Rs.44,000/- (Rupees Forty Four thousand)
should be realized as early as possible
after my death and shall be paid to the
following person in the following manner 1.
Srimathi Amirthim Wife of Sri Kalyanaswami
afiresaid Rs.10,000.0.0, 2. Ammaniammal my
second sister Rs.10,000.0.0 3. Nagammal my
third sister Rs.8,000.0.0 4.
Ranganayakiammal my forth sister
Rs.8,000.0.0 5. Krishnammal my fifth and
last sister Rs.8,000,0.0 I have already
made some other provisions for my wife
apart from the properties under the will.
they are not effected in any manner by these
provisions. She is entitled to the movable
propertiies not covered by the schedules
hereto. … V. Rangaswami, 3. … This is my
lst will and Testament All previous
dispositions and intended dispositions are
hereby finally revoked. This will shall
come into effect after my life time. …”

79. It will be seen from the Will that the Testator

has recited in the Will that he owns the immovable

properties set out in Schedule A exclusively and in his

own right. The said properties are alleged to include

properties purchased by him and properties allotted to

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him in his family partition between him and his brother

in 1932. He further states that he has been a divided

member from 1932 onwards and has continued to be so

till the date of the Will. Finally, he states that, he,

in order to avoid any uncertainties, made an open

declaration of his divided status today. The Will

further refers to amounts which he is entitled to as

set out in Schedule B. Entire properties in Schedule

A, including his house, is set out for his wife without

powers of alienation. He further states that he expects

his wife to make use of the income from the landed

properties to be used to meet the expense of presents

on ceremonial and special occasions in his sisters

families after meeting her own family expense,

maintenance of the house. There is a remainder,

absolute in nature, given to his four Legatees, i.e.,

his Nephews through his four sisters. He expressed his

earnest wish that the four Legatees should keep the

properties for their respective families and should not

dispose them off, but in case of need, they should sell

them in the first instance to any of the other sharers.

The last portion to be noted is the statement that he

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has already made other provisions for his wife apart

from the properties under the Will.

80. There is one aspect which is pressed before us

also, in regard to the same, by the respondents. It is

contended that the fact that there is no oral partition

between brothers in 1932, makes it out to be a case

where the Testator has made a rank incorrect statement

in the Will which shrouds the Will itself as one which

is not genuine.

81. In regard to the aspect about incorrect statement

in the will, it is to be noticed that making a totally

incorrect statement in a will arouses suspicion. This

is on the principle that the testator would not make

an incorrect statement when he makes a will. If he

makes a rank incorrect statement the inference is that

he would not have made that will. This principle will

not be applicable in the facts of this case. Making

the statement that there was a partition in 1932 and

that the properties were allotted to him, is apparently

the understanding of the testator. This issue

generated debate in the courts. The view expressed by

the testator did not find favour with the courts but

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that is a far cry from describing it as an outright

false statement. As long as it is a part of the will

which is made by the testator and he believed in it the

finding given by the court in this regard will not

advance the case of the respondent.

82. We further notice the following aspects:

Rangaswami Naidu was an educated man. He was a

former M.L.C.. He was an affluent man. He has no

issues. He was affectionate towards his sisters. He

has chosen to favour each branch of his sisters by

selecting one son out of each branch to be the

legatees in whom the property were to vest. In fact,

he has also provided that the properties are to remain

in the family and should any of the legatees wish to

sell, it should be offered to the other legatees. As

far as his health is concerned, it is well settled

that the requirement of sound disposing capacity is

not to be confused with physical well-being. A person

who is having a physical ailment may not therefore

berobbed of his sound disposing capacity. The fact

that a person is afflicted with a physical illness or

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that he is in excruciating pain will not deprive him

of his capacity to make a will. What is important is

whether he is conscious of what he is doing and the

will reflects what he has chosen to decide. While it

may be true that he was suffering from cancer of the

throat there is nothing to indicate in the evidence

that he was incapable of making up of his own mind in

the matter in leaving a will behind. The fact that

he was being fed by a tube could hardly have deprived

him of his capacity to make a will. We further notice

that the will is a registered will. The Registrar

came home. Exhibit X1 would show that Rangaswami

Naidu on being asked to put his thumb impression, he

insisted on signing. This course of conduct, in our

view, has been correctly appreciated by the first

appellate court, the final court on facts. The

inference to the contrary sought to be drawn does not

appeal to us. From the evidence, it is also clear

that the other attesting witness was Dr. C.S.

Ramaswamy Iyer a fairly renowned Physician and family

friend. PW1, the witness on behalf of the respondent

has himself admitted publishing the obituary on the

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passing away of the said doctor. PW1 speaks about

him as a gentleman and he won’t act illegal manner.

In B7 the other attesting witness has also spoken

about the doctor remaining there and no doubt leaving

before the Registrar came. We have already held that

the requirement of Section 69 of the Evidence Act

stands fulfilled otherwise. The fact that no bequest

is made in favour of the sons of Lakshmiah Naidu

cannot be treated as a suspicious circumstance. It

is clear that Lakshmiah Naidu was extremely wealthy.

Making the nephew of his wife executor of the will,

in fact, does assure us of the absence of any foul

play on the part of the legatees. In his evidence

[B13 which is the evidence given by the Executor in

145 proceedings], he has spoken about the testator

expressing his desire on 2-3 occasions about wanting

to executing a will. From the evidence adduced by

PW1 also, we would think that the view taken by the

first appellate court regarding the will cannot be

characterized as a perverse one warranting

interference in the second appeal.

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83. Lastly, while the burden to prove the will and

to satisfy the conscience of the court that there are

no suspicious circumstances or if there are any to

explain them is on the propounder of the will, the

burden to prove that the will is procured by coercion,

undue influence or fraud is on the respondents who have

alleged the same. The evidence of PW1 would show that

the respondents have failed to prove that the will is

vitiated in this regard . Therefore, we would arrive

at the conclusion that the will was indeed executed by

R. Naidu and was his last will.

84. Undoubtedly, Rangaswami Naidu and Lakshmiah

Naidu who were brothers, were co-parceners in a Hindu

Coparcenary. The case of the appellants is based upon

their being a severance of the Hindu Joint Family. The

expression ‘the Hindu Joint Family’ is in the context

of this case, to be understood as the coparcenary. The

argument of the respondents representing the Lakshmiah

Naidu branch on the other hand is that, when Rangaswami

Naidu died on 01.06.1955 and when, therefore,

succession to his estate opened, Lakshmiah Naidu

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succeeded to the estate of his brother as Rangaswami

Naidu died issueless and, therefore, under the law as

it stood on that date, Lakshmiah Naidu succeeded to the

property by survivorship.

85. The case of the appellants is based, in fact, on

their having been an oral partition between the two

brothers in the year 1932. Three Courts have found no

merit in this contention. In fact, the appellants also

did not pursue this line of argument before us. On the

other hand, the contention which is pressed before us

is that when such succession opened to the estate of

Rangaswami Naidu on 01.06.1955, Rangaswami Naidu having

published B1 notice dated 10.05.1955, a disruption of

the joint family was effected and, therefore,

Rangaswami Naidu died separate from his brother. Still

furthermore, the appellants case is founded upon B10-

Will executed and also got registered on 10.05.1955 by

Rangaswami Naidu.

INTEREST IN HINDU JOINT FAMILY; PARTITION; ITS

IMPLICATIONS

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86. In the light of these contentions, it is

necessary to examine the concepts relating to Hindu

Joint Family, the effect of its continuance, the manner

in which, the joint family comes to an end and also the

distinct shades of meaning to the expression ‘division

of a joint family’. Also, we must consider the right

of a Hindu in regard to making a Will and the limitation

on the same.

87. In Appovier v. Rama Subba Aiyan and others35, the

Privy Council had occasion to consider these concepts.

The appellants before the Court, who were unsuccessful

in all the three courts in India, contended that

despite there been a division in a Hindu Joint Family,

it was not still effective insofar as it had not

culminated in a partition by metes and bounds. It was

dealing with this question that the court held, inter

alia, as follows:

“1. This is an appeal brought from a

decree of the Sudder Court at Madras,
which affirmed the decree of the Zillah
Court of Tinnevelly, which itself
affirmed the original decree of the

35
[1866] 11 M.I.A.75
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Sudder Ameen of that District. It is,

therefore, an appeal from three decrees,
unanimous in rejecting the claim of the
Appellant. The present appeal is founded
upon an allegation that certain property
(shares in which are claimed by the
Appellant) continues the undivided
property of the family of which the
Appellant was a member, and which was
originally an undivided family. The
foundation of the defence to the
Appellant's claim is an instrument, which
we will call, for the present purpose, a
deed of division, dated the 22nd of
March, 1834.

2. Certain principles, or alleged rules

of law, have been strongly contended for
by the Appellant. One of them is, that if
there be a deed of division between the
members of an undivided family, which
speaks of a division having been agreed
upon, to be thereafter made, of the
property of that family, that deed is
ineffectual to convert the undivided
property into divided property until it
has been completed by an actual partition
by metes and bounds.

3. Their Lordships do not find that any

such doctrine has been established; and
the argument appears to their Lordships
to proceed upon error in confounding the
division of title with the division of
the subject to which the title is
applied.

4. According to the true notion of an

undivided family in Hindoo law, no
individual member of that family, whilst

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it remains undivided, can predicate of

the joint and undivided property, that
he, that particular member, has a certain
definite share. No individual member of
an undivided family could go to the place
of the receipt of rent, and claim to take
from the Collector or receiver of the
rents, a certain definite share. The
proceeds of undivided property must be
brought, according to the theory of an
undivided family, to the common chest or
purse, and then dealt with according to
the modes of enjoyment by the members of
an undivided family. But when the members
of an undivided family agree among
themselves with regard to particular
property, that it shall thenceforth be
the subject of ownership, in certain
defined shares, then the character of
undivided property and joint enjoyment is
taken away from the subject-matter so
agreed to be dealt with ; and in the
estate each member has thenceforth a
definite and certain share, which he may
claim the right to receive and to enjoy
in severalty, although the property
itself has not been actually severed and
divided.

xxx xxx xxx xxx

12. Then, if there be a conversion of the
joint tenancy of an undivided family into
a tenancy in common of the members of
that undivided family, the undivided
family becomes a divided family with
reference to the property that is the
subject of that agreement, and that is a
separation in interest and in right,
although not immediately followed by a de
facto actual division of the subject-
matter. This may at any time be claimed
by virtue of the separate right.”

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(Emphasis supplied)

88. It is now apposite to notice the judgment of the

Privy Council reported in Girja Bai v. Sadashiv

Dhundiraj and others36. In the said case, one of the

members of a Joint Mitakshara Hindu Family served a

notice expressing his desire to get partitioned his

one-third share. Thereafter, he instituted the suit for

partition. During the pendency of the suit, the

plaintiff died survived by his widow. She moved for

substitution. This was opposed by the defendants on the

ground that at the time of his death, the plaintiff was

an undivided member of a Joint Hindu Family and that

on his death, his share passed to them by survivorship.

This is despite the fact that earlier on, in the suit,

the defendants had admitted the plaintiffs claim and

contended that they were willing to divide the estate

and that the suit was premature. The court referred to

the earlier judgement of the Privy Council reported in

Pandit Suraj Narain and another v. Pandit Iqbal Narain

36AIR 1916 PC 104

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and others37. It is relevant to notice what the court

proceeded to lay down:

“25. It appears to their Lordships that

the Appellate Court has, in this case,
confused the two considerations to which
reference has been made above, viz., the
severance of status which is a matter of
individual volition, with the allotment of
shares which may be effected by different
methods : by private agreement, by
arbitrators appointed by the parties, or,
in the last resort, by the Court.”

After referring to the statements in Appovier (supra),

the Court held as follows:

“28. Some of the Courts in India have

supposed Lord Westbury's expressions to
imply that the severance of status can take
place only by agreement. Their Lordships
have no doubt that this is a mistaken view.
The Board there was dealing with a case in
which division of right had already taken
place, as evidenced by the " deed of
division." The right which each individual
member had in this joint property did not
spring from the deed or the agreement of
the parties to which it gave expression;
the agreement only recognised existing
rights in each individual member which he
was entitled to assert at any time he liked.
29. The intention to separate may be
evinced in different ways, either by
explicit declaration or by conduct.”

37(1912-13)40 IA 40 ; (1913) 11 All LJ 172

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89. Next, we must notice the judgment rendered by a

Bench of three learned Judges of this Court reported

in Addagada Raghavamma and another v. Addagada

Chenchamma and another38. In the said case, the

appellant before the Court was the widow of one

Piechayya. The respondent in the case Chenchamma was

the wife of one Venkayya who was, in fact, the son of

the brother of Piechayya. In substance, the dispute

revolved around the question whether there was a

disruption in the Joint Hindu Family brought about

prior to the execution of a will by the brother-in-law

of the appellant. Subbarao was the son of Venkayya from

the marriage with Chenchamma). Though there were two

questions, we are only concerned with second question,

viz., whether partition was brought about prior to the

execution of the will and we may also notice the further

question which arose which was whether a disruption was

brought about by the terms of the will itself.

38AIR 1964 SC 136

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90. The Court proceeded to elaborately consider the

evidence on record and came to the conclusion that the

evidence did not support the contention of the

appellant which was that in 1894, much before the will

was executed in the year 1946, a partition has taken

place. Thereafter, it is necessary to notice the

following paragraphs in the opinion rendered by the

court:

“25. Now we shall proceed to deal with

the will, Ex. A-2 (a), on which strong
reliance is placed by the learned
Advocate-General in support of his
contention that on January 14, 1945, that
is, the date when the Will was executed,
Chimpirayya must be deemed to have been
divided in status from his grandson
Subbarao. A will speaks only from the
date of death of the testator. A member
of an undivided coparcenary has the legal
capacity to execute a will, but he cannot
validly bequeath his undivided interest
in the joint family property. If he died
an undivided member of the family, his
interest survives to the other members of
the family, and, therefore, the will
cannot operate on the interest of the
joint family property. But if he was
separated from the family before his
death, the bequest would take effect. So,
the important question that arises is
whether the testator in the present case

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became separated from the joint family

before his death.”
xxx xxx xxx
27. The main question of law that
arises is whether a member of a joint
Hindu family becomes separated from the
other members of the family by mere
declaration of his unequivocal intention
to divide from the family without
bringing the same to the knowledge of the
other member of the family. In this
context a reference to Hindu law texts
would be appropriate, for they are the
sources from which Courts evolved the
doctrine by a pragmatic approach to
problems that arose from time to time.
The evolution of the doctrine can be
studied in two parts, viz., (1) the
declaration of the intention, and (2)
communication of it to others affected
thereby. On the first part the following
texts would throw considerable light.
They are collated and translated by
Viswanatha Sastri, J., who has a deed and
abiding knowledge of the sources of Hindu
lawin Adiyalath Katheesumma v. Adiyalath
Beechu [ILR 1930 Mad 502] ; and we accept
his translations as correct and indeed
learned counsel on both sides proceeded
on that basis. Yajnavalkya, Chapter II,
Section 121. “In land, corrody (annuity,
etc.), or wealth received from the
grandfather, the ownership of the father
and the son is only equal”. Vijnaneswara
commenting on the said sloka says:
“…And thus though the mother is having
menstrual courses (has not lost the
capacity to bear children) and the father

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has attachment and does not desire a

partition, yet by the will (or desire) of
the son a partition of the grandfather's
wealth does take place.” (Setlur's
Mitakshara, pp. 646-48).

Saraswati Vilase, placitum 28. “From

this it is known that without any speech
(or explanation) even by means of a
determination (or resolution) only,
partition is effected, just as an
appointed daughter is constituted by mere
intention without speech.”

Viramitrodaya of Hitra Misra (Chapter II,

Pl. 23).
“Here too there is no distinction
between a partition during the lifetime
of the father or after his death and
partition at the desire of the sons may
take place or even by the desire (or at
the will of a single coparcener).

Vyavahara Mayukha of Nilakantabhatta:

(Chapter IV, Section iii-I).
“Even in the absence of
any common (joint family)
property, severance does
indeed result by the mere
declaration “I am separate
from thee” because
severance is a particular
state (or condition) of the
mind and the declaration is
merely a manifestation of
this mental state (or
condition).”

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The Sanskrit expressions “sankalpa”

(resolution) in Saraswati Vilas,
“akechchaya” (will of single coparcener)
in Viramitrodaya “budhivisesha”
(particular state or condition of the
mind) in Vyavahara Mayukha, bring out the
idea that the severance of joint status
is a matter of individual direction. The
Hindu law texts, therefore, support the
proposition that severance in status is
brought about by unilateral exercise of
discretion.

28. Though in the beginning there

appeared to be a conflict of views, the
later decisions correctly interpreted the
Hindu law texts. This aspect has been
considered and the law pertaining thereto
precisely laid down by the Privy Council
in a series of decisions: see Suraj
Narain v. Iqbal Narain [(1912) ILR 35 All
80 (PC)] ; Giria Bai v. Sadashiv
Dhundiraj [(1916) ILR 43 Cal 1031 (PC)]
; Kawal Narain v. Budh Singh [(1917) ILR
39 All 496 (PC)] ; and Bamalinga
Annavi v. Naravana Annavi [(1922) ILR 45
Mad 489 (PC)] . In Syed Kasam v. Jorawar
Singh [(1922) ILR 50 Cal 84 (PC)] the
Judicial Committee, after reviewing its
earlier decision laid the settled law on
the subject thus:

“It is settled law that in

the case of a joint Hindu
family subject to the law of
the Mitakshara, a severance
of estate is effected by an

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unequivocal declaration on
the part of one of the joint
holders of his intention to
hold his share separately,
even though no actual
division takes place….”

So far, therefore, the law is well

settled, viz., that a severance in estate
is a matter of individual discretion and
that to bring about that state there
should be an unambiguous declaration to
that effect are propositions laid down by
the Hindu law texts and sanctioned by
authoritative decisions of Courts. But
the difficult question is whether the
knowledge of such a manifested intention
on the part of the other affected members
of the family is a necessary condition
for constituting a division in status.
Hindu law texts do not directly help us
much in this regard, except that the
pregnant expressions used therein suggest
a line of thought which was pursued by
Courts to evolve concepts to meet the
requirements of a changing society. The
following statement in Vyavahara Mayukha
is helpful in this context:

“…severance does indeed result

by the mere declaration” ‘I am
separate from thee’ because
severance is a particular state
(or condition) of the mind and
the declaration is merely a
manifestation of this mental
state (or condition).”

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One cannot declare or manifest his mental

state in a vacuum. To declare is to make
known, to assert to others. “Others” must
necessarily be those affected by the said
declaration. Therefore a member of a
joint Hindu family seeking to separate
himself from others will have to make
known his intention to the other members
of the family from whom he seeks to
separate. The process of manifestation
may vary with circumstances. This idea
was expressed by learned Judges by
adopting different terminology, but they
presumably found it as implicit in the
concept of declaration. Sadasiva Iyer,
J., in Soun-dararaian v. Arunachalam
Chetty [(1915) ILR 39 Mad 159 (PC)] said
that the expression “clearly expressed”
used by the Privy Council in Suraj
Narain v. Iqbal Narain [(1912) ILR 35 All
80 (PC)] meant “clearly expressed to the
definite knowledge of the other
coparceners”. In Girja Bai v. Sadashive
Dhundiraj [(1916) ILR 43 Cal 1031 (PC)]
the Judicial Committee observed that the
manifested intention must be “clearly
intimated” to the other coparceners. Sir
George Lownles in Bal Krishna v. Ram
Ksishna [(1931) ILR 53 All 300 (PC)] took
it as settled law that a separation may
be effected by clear and unequivocal
declaration on the part of one member of
a joint Hindu family to his coparceners
of his desire to separate himself from
the joint family. Sir John Wallis in Babu
Ramasray Prasad Choudhary v. Radhika
Devi [(1935) 43 LW 172 (PC)] again
accepted as settled law the proposition

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that “a member of a joint Hindu family

may effect a separation in status by
giving a clear and unmistakable
intimation by his acts or declaration of
a fixed intention to become separate.…”
Sir John Wallis, C.J., and Kumaraswami
Sastri, J. in Kamepalli
Avilamma v. Mannem Venkataswamy [(1913)
33 MLJ (746)] were emphatic when they
stated that if a coparcener did not
communicate, during his life time, his
intention to become divided to the other
coparceners, the mere declaration of his
intention, though expressed or
manifested, did not effect a severance in
status. These decisions authoritatively
laid down the proposition that the
knowledge of the members of the family of
the manifested intention of one of them
to separate from them is a necessary
condition for bringing about that
member's severance from the family. But
it is said that two decisions of the
Madras High Court registered a departure
from the said rule. The first of them is
the decision of Madhavan Nair, J. in Rama
Ayyar v. Meenakshi Ammal [(1930) 33 LW
384] . There, the learned Judge held that
severance of status related back to the
date when the communication was sent. The
learned Judge deduced this proposition
from the accepted principle that the
other coparceners had no choice or option
in the matter. But the important
circumstance in that case was that the
testator lived till after the date of the
service of the notice. If that was so,
that decision on the facts was correct.

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We shall deal with the doctrine of

relating back at a later stage. The
second decision is that of a Division
Bench of the Madras High Court,
consisting of Varadachariar and King,
JJ., in Narayana Rao v. Purushotama
Rao [ILR 1938 Mad 315, 318] . There, a
testator executed a will disposing of his
share in the joint family property in
favour of a stranger and died on August
5, 1926. The notice sent by the testator
to his son on August 3, 1926 was in fact
received by the latter on August 9, 1926.
It was contended that the division in
status was effected only on August 9,
1926, when the son received the notice
and as the testator had died on August 5,
1926 and the estate had passed by
survivorship to the son on that date the
receipt of the notice on August 9, 1926
could not divest the son of the estate so
vested in him and the will was,
therefore, not valid. Varadachariar, J.,
delivering the judgment of the Bench
observed thus:

“It is true that the authorities lay

down generally that the communication of
the intention to become divided to other
coparceners is necessary, but none of
them lays down that the severance in
status does not take place till after
such communication has been received by
the other coparceners.”
After pointing out the various anomalies
that might arise in accepting the
contention advanced before them, the
learned Judge proceeded to state:

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“It may be that if the law is

authoritatively settled, it is not open
to us to refuse to give effect to it
merely on the ground that it may lead to
anomalous consequences; but when the law
has not been so stated in any decision of
authority and such a view is not
necessitated or justified by the reason
of the rules, we see no reason to
interpret the reference to
‘communication’ in the various cases as
implying that the severance does not
arise until notice has actually been
received by the addressee or addressees.”

We regret our inability to accept this

view. Firstly, because, as we have
pointed out earlier, the law has been
well settled by the decisions of the
Judicial Committee that the manifested
intention should be made known to the
other members of the family affected
thereby; secondly, because there would be
anomalies on the acceptation of either of
the views. Thirdly, it is implicit in the
doctrine of declaration of an intention
that it should be declared to somebody
and who can that somebody be except the
one that is affected thereby.

xxx xxx xxx

32. It is, therefore, clear that Hindu

law texts suggested and Courts evolved,
by a process of reasoning as well as by
a pragmatic approach that, such a
declaration to be effective should reach

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the person or person affected by one

process or other appropriate to a given
situation.

xxx xxx xxx

34. The third question falls to be

decided in this appeal. It is this: what
is the date from which severance in
status is deemed to have taken place? Is
it the date of expression of intention or
the date when it is brought to the
knowledge of the other members? If it is
the latter date, is it the date when one
of the members first acquired knowledge
or the date when the last of them acquired
the said knowledge or the different dates
on which each of the members of the family
got knowledge of the intention so far as
he is concerned? If the last alternative
be accepted, the dividing member will be
deemed to have been separated from each
of the members on different dates. The
acceptance of the said principle would
inevitably lead to confusion. If the
first alternative be accepted, it would
be doing lip service to the doctrine of
knowledge, for the member who gets
knowledge of the intention first may in
no sense of the term be a representative
of the family. The second alternative may
put off indefinitely the date of
severance, as the whereabouts of one of
the members may not be known at all or
may be known after many years. The Hindu
law texts do not provide any solution to
meet these contingencies. The decided
cases also do not suggest a way out. It

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is, therefore, open to this Court to

evolve a reasonable and equitable
solution without doing violence to the
principles of Hindu law. The doctrine of
relation back has already been recognized
by Hindu law developed by courts and
applied in that branch of the law
pertaining to adoption. There are two
ingredients of a declaration of a
member's intention to separate. One is
the expression of the intention and the
other is bringing the expression to the
knowledge of the person or persons
affected. When once the knowledge is
brought home — that depends upon the
facts of each case — it relates back to
the date when the intention is formed and
expressed. But between the two dates, the
person expressing the intention may lose
his interest in the family property; he
may withdraw his intention to divide; he
may die before his intention to divide is
conveyed to the other members of the
family: with the result his interest
survives to the other members. A manager
of a joint Hindu family may sell away the
entire family property for debts binding
on the family. There may be similar other
instances. If the doctrine of relation
back is invoked without any limitation
thereon, vested rights so created will be
affected and settled titles may be
disturbed. Principles of equity require
and common sense demands that a
limitation which avoids the confusion of
titles must be placed on it. What would
be more equitable and reasonable than to
suggest that the doctrine should not

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affect vested rights? By imposing such a

limitation we are not curtailing the
scope of any well established Hindu law
doctrine, but we are invoking only a
principle by analogy subject to a
limitation to meet a contingency.
Further, the principle of retroactivity,
unless a legislative intention is clearly
to the contrary, saves vested rights. As
the doctrine of relation back involves
retroactivity by parity of reasoning, it
cannot affect vested rights. It would
follow that, though the date of severance
is that of manifestation of the intention
to separate the right accrued to others
in the joint family property between the
said manifestation and the knowledge of
it by the other members would be saved.

35. Applying the said principles to the

present case, it will have to be held
that on the death of Chimpirayya his
interest devolved on Subbarao and,
therefore, his will, even if it could be
relied upon for ascertaining his
intention to separate from the family,
could not convey his interest in the
family property, as it has not been
established that Subbarao or his guardian
had knowledge of the contents of the said
will before Chimpirayya died.”

91. The Court also, in paragraph 37, expressed the

view that it was not necessary to decide whether the

will contained the necessary and unambiguous

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declaration of intention to divide himself from the

family.

92. Next, in the line of decisions of this Court is

the judgment reported in Puttrangamma and others v.

M.S. Ranganna and others39. The appeal arose from a suit

for partition. One of the questions which arose was

whether the plaintiff had died as a divided member of

a joint family. In this context, the Court laid down

as follows:

“5. It is now a settled doctrine of

Hindu Law that a member of a joint Hindu
family can bring about his separation in
status by a definite, unequivocal and
unilateral declaration of his intention
to separate himself from the family and
enjoy his share in severalty. It is not
necessary that there should be an
agreement between all the coparceners for
the disruption of the joint status. It is
immaterial in such a case whether the
other coparceners give their assent to
the separation or not. The jural basis of
this doctrine has been expounded by the
early writers of Hindu Law.

39AIR 1968 SC 1018

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93. This Court allowed the appeal on the view it

took, viz., that the plaintiff indeed had effected

disruption in the joint family on the principles of law

which have been articulated.

94. Next, we must refer to the judgment of this Court

in Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb

Tuljaramarao Nimbalkar and others40. The High Court in

the said case, which was a suit for possession and

mesne profit, took the view that it was not established

that there was a partition effected in the year 1902

as was found by the Trial Court. This Court restored

the judgment of the Trial Court and held as follows:

“16. We will take Point No. 1

canvassed by Shri Bal. The primary
question that falls to be considered is,
whether in 1902 or shortly prior to it,
there was a partition between the two
brothers — Narayanarao and Ramachandrarao
— in a manner known to law. In this
connection, it is necessary, at the
outset, to notice the fundamental
principles of Hindu Law bearing on the
point. The parties are admittedly
governed by Mitakshara School of Hindu
law. In an undivided Hindu family of

40(1979) 4 SCC 60
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Mitakshara concept, no member can say

that he is the owner of one-half, one-
third or one-fourth share in the family
property, there being unity of ownership
and commensality of enjoyment while the
family remains undivided. Such unity and
commensality are the essential attributes
of the concept of joint family status.
Cesser of this unity and commensality
means cesser or severance of the joint
family status, or, which under Hindu law,
is “partition”; irrespective of whether
it is accompanied or followed by a
division of the properties by metes and
bounds. Disruption of joint status,
itself, as Lord Westbury put it
in Appovier v. Rama Subba Aiyan [(1886)
11 MIA 75 : 2 SR 218 : 8 WRPC 1] , in
effect, “covers both a division of right
and division of property”. Reiterating
the same position, in Girja
Bai v. Sadashiv [AIR 1916 PC 104 : (1916)
43 IA 151] , the Judicial Committee
explained that division of the joint
status, or partition implies “separation
in interest and in right, although not
immediately followed by a de facto actual
division of the subject-matter. This may
at any time, be claimed by virtue of the
separate right”.

17. The division of the joint status

may be brought about by any adult
member of the joint family by
intimating, indicating or representing
to the other members in clear and
unambiguous terms, his intention to
separate and enjoy his share in the

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family property, in severality. Such

intimation, indication or
representation may take diverse forms.
Sometimes it is evidenced by an
explicit declaration (written or
oral); sometimes it is manifested by
conduct of the members of the family in
dealing separately with the former
family properties. Service of notice or
institution of a suit by one
member/coparcener against the other
members/coparceners for partition and
separate possession may be sufficient
to cause disruption of the joint
status.”
(Emphasis supplied)

In Kalyani(dead) by LRs v. Narayanan and others41,

a Bench of three learned Judges, laid down as follows:-

“10. The next stage in the unfolding of

the case is whether Ex. P-1 is effective
as a partition. Partition is a word of
technical import in Hindu law. Partition
in one sense is a severance of joint
status and coparcener of a coparcenary is
entitled to claim it as a matter of his
individual volition. In this narrow sense
all that is necessary to constitute
partition is a definite and unequivocal
indication of his intention by a member
of a joint family to separate himself from
the family and enjoy his share in
severalty. Such an unequivocal intention
to separate brings about a disruption of
joint family status, at any rate, in
respect of separating member or members

41
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and thereby puts an end to the coparcenary

with right of survivorship and such
separated member holds from the time of
disruption of joint family as tenant-in-
common. Such partition has an impact on
devolution of shares of such members. It
goes to his heirs displacing
survivorship. Such partition irrespective
of whether it is accompanied or followed
by division of properties by metes and
bounds covers both a division of right
and division of property
(see Appovier v. Rama Subba
Aiyan [(1886) 11 MIA 75 : 2 Sar 218 : 8
WR PC 1] quoted with approval
in Krishnabai Bhritar Ganpatrao
Deshmukh v. Appasaheb Tuljaramarao
Nimbalkar [(1979) 4 SCC 60, 68] ). A
disruption of joint family status by a
definite and unequivocal indication to
separate implies separation in interest
and in right, although not immediately
followed by a de facto actual division of
the subject-matter. This may at any time,
be claimed by virtue of the separate right
(see Girja Bai v. Sadashiv [AIR 1916 PC
104 : 43 IA 151 : 18 Bom LR 621] ). A
physical and actual division of property
by metes and bounds follows from
disruption of status and would be termed
partition in a broader sense.”

We may notice paragraph 18 also which reads as

follows:-

18. One thing is crystal clear that Ex.

P-1 is not a deed of partition in the
sense it does not purport to divide the
property amongst various coparceners by
metes and bounds. However, in Hindu law
qua joint family and joint family

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property the word “partition” is

understood in a special sense. If
severance of joint status is brought
about by a deed, a writing or an
unequivocal declaration of intention to
bring about such disruption, qua the
joint family, it constitutes partition
(see Raghavamma v. Chenchamma [AIR 1964
SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA
593] ). To constitute a partition all that
is necessary is a definite and
unequivocal indication of intention by a
member of a joint family to separate
himself from the family. What form such
intimation, indication or representation
of such interest should take would depend
upon the circumstances of each case. A
further requirement is that this
unequivocal indication of intention to
separate must be to the knowledge of the
persons affected by such declaration. A
review of the decisions shows that this
intention to separate may be manifested
in diverse ways. It may be by notice or
by filing a suit. Undoubtedly, indication
or intimation must be to members of the
joint family likely to be affected by such
a declaration.”

This Court in Bhagwant P. Sulakhe v. Digambar Gopal

Sulakhe and others (supra) held as under:

“14 ……The character of any joint family

property does not change with the severance
of the status of the joint family and a
joint family property continues to retain
its joint family character so long as the
joint family property is in existence and
is not partitioned amongst the co-sharers.
By a unilateral act it is not open to any

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member of the joint family to convert any

joint family property into his personal
property.”

IS THERE CONFLICT BETWEEN KALYANI (DEAD) BY LRS V.

NARAYANAN AND OTHERS [AIR 1980 SC 1173] AND BHAGWANT
P. SULAKHE V. DIGAMBAR GOPAL SULAKHE AND OTHERS [AIR
1986 SC 79]

95. In Kalyani (supra), one Karappan who had two

wives and children through them was governed in the

matter of inheritance and succession essentially by

customary law and in the absence of any specified

custom, he was governed by the Hindu Mitakshara Law.

He had executed a registered deed P1 which was

variously described as a Will or as a deed of partition

or evidencing a family arrangement. The Suit from which

the case arose was filed by the Widow of one of his

sons from his first wife. This Court went on to find

that P1 could not be supported as Will insofar as

Karappan had no power to devise by Will ancestral

property. The Court further went on to consider whether

B1 was effective as a partition. It was in this context

that the observations in paragraph-10 of the judgment

came to be made. The Court, after making the

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observations in paragraph-10, found that there was no

effective partition by metes and bounds by B1 though

the shares of sons were specified as also the

provisions for the female members were made. Thereafter

it is that the Court posed the question that if B1 is

not effective as a Deed of Partition, its effect on the

continued Joint Family status had to be examined. It

is thereafter that when the court went on to make the

observations in para 18 which we have set out. The

Court further proceeded to find that by specifying of

the share in Exhibit P1 there was first a disruption

in the joint family by specifying the shares. Once a

disruption took place, it was held, in a joint family

status, the coparceners ceased to hold the property as

joint tenants but they held as tenants in common. It

was further the view of the court that the fact that

the coparceners continued to stay under the same roof

or enjoy the properties without division by metes and

bound, did not matter. They did not hold as joint

tenants unless reunion was pleaded and established. We

are, in this case, also called upon to reconcile what

has been laid down in this case with what has been laid

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down in a later Judgment in. The later decision

Bhagwant P. Sulakhe (supra) was also rendered by a

bench of three learned Judges.

96. We may briefly notice the facts involved in the

said case. The appellant, who was the plaintiff in the

Suit along with the Second Defendant therein and two

of his brothers, were members of a Joint Hindu Family.

There was a public limited company and also a firm. The

appellant had acted as a Managing Agent. He had also

acted as a Managing Director of the Company. In regard

to the same, he had earned remuneration. The question

which essentially arose before this Court was whether

it was to be treated as the personal income of the

appellant or whether it belonged to the joint family.

After considering the partnership deed and other

materials, the Court, inter alia, observed as follows:

“14 …The character of any joint family

property does not change with the severance
of the status of the joint family and a
joint family property continues to retain
its joint family character so long as the
joint family property is in existence and
is not partitioned amongst the co-sharers.

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By a unilateral act it is not open to any

member of the joint family to convert any
joint family property into his personal
property.”

97. The Trial Court, in this case, has laid store by

the observations of this Court to the effect that as

long as joint family property is in existence and is

not in partitioned, the character of the joint family

property does not change. It concluded that even if

division is brought about by issuance of B1, the

properties of the joint family consisting of V.

Rangaswami Naidu and his brother remained joint and it

could not be arrogated by V. Rangaswami Naidu as his

and they bequeathed, as done. The first appellate

court distinguished the decision by stating that it

turned on in facts.

98. We would think that there is really no conflict

as such. We have already noticed what has already been

laid down by the Privy Council in Appovier (supra). The

Court has laid down, inter alia, that when members of

the Hindu Undivided Family agree among themselves that

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a particular property shall be thereafter be subject

of ownership in certain defined shares, then, the

character of the undivided property and joint enjoyment

is taken away from it and each member will thereafter

have a definite and certain share, even though the

property itself has not been severed and divided.

99. It must be remembered that the said case actually

involved an Undivided Hindu Joint Family wherein there

was a deed of division and the contention, which had

to be considered by the Court, was that, it was

ineffectual to convert the undivided property into

divided property until it had been completed by an

actual partition by metes and bounds. The Court was

essentially not considering the effect of a declaration

by a coparcener to separate causing a division in a

joint family status. The Court was also not considering

the question as to whether, on such division in status,

the rights of the coparcener, over specific items of

properties, will be transformed into exclusive and

absolute rights even without an agreement or partition,

by metes and bounds.

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100. In Girja Bai v. Sadashiv Dhundiraj42, the

Privy Council was dealing with a situation where the

appellant’s husband had served a registered notice on

the Manager of a Mitakshara Joint Family expressing his

desire to get partition and which was followed-up by a

Suit for partition. We have noticed paragraph 25 and

28 therein.

101. Therefore, on a conspectus of the discussion

we would hold as follows:

Partition has two shades of meaning in Hindu Law

we are dealing with. In the one sense, partition is

the first step which would ordinarily culminate in a

metes and bounds partition. In a coparcenary, there

is joint tenancy. A Hindu Coparcenary, which cannot

be created by agreement between parties but is the

creation of law, can be disrupted or a division is

caused by a unilateral declaration by a coparcener to

put an end to the joint family. What the coparcener

has before the division is produced, is an interest,

42 AIR 1916 PC 104

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as has been referred to in both Sections 6 and 30 of

the Hindu Succession Act. Upon a declaration being

made, expressing intent to separate without anything

more but no doubt on communication of the same to the

other coparcener/coparceners, partition in the above

sense viz. causing a division of title takes place.

As already noticed, the partition in the aforesaid

sense has far-reaching consequences. The joint

tenancy, which includes the concept of Right to

Inherit by Survivorship, is terminated with the

partition being effected in the first sense. If the

coparcener dies after causing such a partition, as

the right on the basis of Doctrine of Survivorship is

annihilated, his death, after such partition, would

result in his heirs becoming entitled to succeed. In

that sense, joint tenancy would be replaced by tenancy

in common but that is not the same as saying that the

properties of the family, where there has been a

partition in the first sense, will without anything

more stand transformed into the separate and

exclusive properties of the divided members. This is

the view, which is taken by this Court in Bhagwant P.

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Sulakhe. We are unable to subscribe to the view taken

by the First Appellate Court that the principles of

law, which are contained in paragraph-14 of the

Judgment, as extracted by us, are merely to be

understood in the special facts of the said case.

Partition, in a broader sense and as is commonly

understood, is the division of the properties in

accord with the shares.

WHETHER A HINDU COULD MAKE A WILL?

WHAT WERE THE LIMITS ON HIS POWER TO EXECUTE A WILL?

ARE THERE ANY CHANGES BROUGHT ABOUT BY ENACTING SECTION
30 OF THE HINDU SUCCESSION ACT, 1956?

102. It would appear that the treatises in Hindu

Law do not contain reference to the concept of a will.

However, over a period of time, courts have recognised

the powers for a Hindu to make a will. We are concerned

in this case with Mitakshara Law. Thereunder, a Hindu

could bequeath his separate and self-acquired

properties even prior to the Hindu Succession Act being

enacted. A Hindu being a member of the joint family

could also possess his separate property which are of

various kinds. They include obstructed heritage which

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is property inherited by a Hindu from another who is a

person other than his father, father’s father or great

grandfather, Government grant, income of separate

property, all acquisitions by means of learning

(declared by Hindu Gains of Learning 1930) See in this

regard para 228 of Mulla on Hindu Law 23rd edition page

341-342. As far as the law governing the making of the

will is concerned there was no particular law which

governed the same. It is in the year 1865 that the

Succession Act came to be passed. It was not applicable

to Hindus. The Hindu Wills Act 1870 which had limited

application (it applied inter alia to Wills by Hindus

in the town of Madras) no doubt made certain provisions

of the Indian Succession Act of 1865 applicable to

Hindus. Under the Probate and Administration Act, 1881

the executor, subject to law relating to survivorship

was the legal representative of a Hindu. Section 211

of the Indian Succession Act, 1925 continues the same

legal position. However, the Indian Succession Act of

1925 which repealed the earlier Succession Act has

through Section 57 made the provisions of Part VI which

are set out in schedule III to the Act applicable to

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all wills and codicils made by any Hindu, Buddhist,

Sikh or Jain made on or after the 1st January 1927 to

which those provisions are not applied under the

preceding clauses viz. clauses (a) and (b) Section 57.

It is thus that after 1st of January, 1927 in the matter

of an unprivileged will executed by a Hindu, the

requirement of Section 63 which includes attestation

of such a will by a minimum of two witnesses became

mandatory. Thus, the execution of a will by a Hindu

also came to be regulated from the 1st of January, 1927.

103. Section 30 of the Hindu Succession Act reads

as follows:

“30. Testamentary succession. — Any Hindu

may dispose of by will or other testamentary
disposition any property, which is capable
of being so disposed of by him or by her],
in accordance with the provisions of the
Indian Succession Act, 1925 (39 of 1925), or
any other law for the time being in force
and applicable to Hindus. Explanation.— The
interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba
or kavaru in the property of the tarwad,
tavazhi, illom, kutumba or kavaru shall
notwithstanding anything contained in this
Act or in any other law for the time being
in force, be deemed to be property capable

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of being disposed of by him or by her within

the meaning of this section”.

104. Does it bring about a change in law relating

to power of a Hindu to execute a will? As noticed

earlier even prior to Hindu Succession Act, a Hindu

could execute a will bequeathing his separate and self-

acquired property. As regards his authority to execute

a will concerning his interest in the property of the

joint family of which he is a coparcener, the law did

not permit such an exercise. We may refer to the

judgment of this Court in M.N. Aryamurthy v. M.D.

Subbaraya Setty43; wherein this Court held as follows:

“..But unfortunately, Lachiah, though a

father, could not, under the Hindu Law,
dispose of, by will, joint family property
or any part thereof and as a will it was
clearly inoperative on the various
dispositions made by him (See Parvatibai v.
Bhagwant Pandharinath: 39 Bom 593: AIR 1915
Bom 265 and Subbarami Reddi v. Ramamma; 43
Mad 824: AIR 1920 Mad 637). This latter
case has questioned the correctness of a
previous decision of that Court in Appan
Patra Chariar v. V.S. Srinivasa Charriar
and Others; 40 Mad 1122: AIR 1918 Mad 531.
The decisions proceed on the principle
which was well-settled in Vital Putten v.
Yamenamma; (1874) 8 MHCR 6 and Lakshman
Dada Naik v. Ramachandra Dada Nair; 5 Bom

43 1972(4) SCC 7
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48 (PC): 7 IA 181, that a co-parcener cannot

devise joint family property by will,
because, on the date of his death when the
will takes effect, there is nothing for the
will to operate on, as, at the moment of
his death, his interest passes by
survivorship to the other coparceners.”

105. In Villiammai Achi v. Nagappa Chettiar and

another44, this Court, inter alia, held:

“10. … The property being joint family

property Pallaniappa's father was not
entitled to will it away and his making a
will would make no difference to the
nature of the property when it came into
the hands of Pallaniappa. A father cannot
turn joint family property into absolute
property of his son by merely making a
will, thus depriving sons of the son who
might be born thereafter of their right
in the joint family property. It is well
settled that the share which a co-sharer
obtains on partition of ancestral
property is ancestral property as regards
his male issues. They take an interest in
it by birth whether they are in existence
at the time of partition or are born
subsequently: [see Hindu Law by Mulla,
13th Edn., p. 249, para 223(2)(4)]. If
that is so and the character of the
ancestral property does not change so far
as sons are concerned even after
partition, we fail to see how that
character can change merely because the
father makes a will by which he gives the
residue of the joint family property
(after making certain bequests) to the
son. A father in a Mitakshara family has

44 AIR 1967 SC 1153

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a very limited right to make a will and

Pallaniappa's father could not make the
will disposing of the entire joint family
property, though he gave the residue to
his son. We are therefore of opinion that
merely because Pallaniappa's father made
the will and Pallaniappa probably as a
dutiful son took out probate and carried
out the wishes of his father, the nature
of the property could not change and it
will be joint family property in the hands
of Pallaniappa so far as his male issues
are concerned.”

106. As to whether Section 30 of the Hindu

Succession Act brings about the radical departure of

the power of a Hindu in the matter of making Will, we

may refer to the decision of full Bench of the Mysore

High Court in Sundara Adapa v. Girija45. Justice K.S.

Hegde as his Lordship then was speaking for the Bench

held:-

“15. It is well known that till the “Act”

came into force, the interest of a
coparcener in a Hindu joint family, be it
a Mitakshara family or an Aliyasantana
family, could not be disposed of by means
of a testament, as by the time his will
took effect his interest in the undivided
family would have been taken by
survivorship by the other coparceners.
The Indian Succession Act did not make

45
AIR 1962 (Mysore) 72

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any inroad into that position. The

relevant provisions of the Indian
Succession Act are found in Part VI
(Provisions relating to testamentary
succession) read with the rules found in
Schedule III. But they are also subject
to the restrictions and modifications
specified in that schedule. Restriction
No. 1 in Schedule III says:—
“Nothing therein contained shall
authorise a testator to bequeath property
which he could not have alienated inter
vivos, or to deprive any persons of any
right of maintenance of which, but for
the application of this section, he could
not deprive them by will.”

17. Neither under the customary law nor

under the Aliyasantana Act nor under the
Indian Succession Act the interest of a
coparcener in an Aliyasantana Kutumba
could have been disposed of by
testamentary disposition. In that regard
a definite change in the law was made by
means of the Explanation to Sec. 30(1) of
the “Act”. There is no dispute that at
present a member of an undivided
Aliyasantana kutumba could dispose of his
interest in the kutumba properties by
means of a will. But we are unable to
agree with Srli G.K. Govind Bhat when he
says that Explanation to Sec. 30(1)
enlarged the rights of a divided
coparcener. The object of Section 30 is
clear. That section neither directly nor
by necessary Implication deals with the
devolution of divided interest. As
mentioned earlier, its purpose is

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limited. The language employed is plain

and therefore no question of
interpretation arises. It is not correct
to contend, a, done by Sri Bhat, that it
the Explanation to S. 30(1) is understood
in the manner the respondents want us to
understand, a coparcener who dies
undivided would leave a more valuable
estate to his heirs than one who dies
divided. In most cases, the share taken
by a nissanthathi kavaru though limited
to the duration of the life of kavaru
would be larger in extent than one
unprovided under Sec. 7(2) of the “Act”.

We find that this Court in Jalaja Shedthi & Ors.

v. Lakshmi Shedthi & Ors.; 1973(2) SCC 773 has approved

of view taken by the High court in the aforesaid case.

In other words, as we have already noted in the case

of property of the joint family as long as the property

is joint, the right of the coparcener can be described

as an interest. The reason why we are saying this is

as long as the family remains joint, a coparcener or

even a person who is entitled to share when there is a

partition cannot predicate or describe his right in

terms of his share. The share remains shrouded and

emerges only with division in title or status in the

joint family. Once there is a division the share of a

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coparcener is laid bare. In this regard we may notice

the judgment of this Court in Hardeo Rai v. Sakuntala

Devi and others46 in paragraphs 22 and 23. It reads as

under:

“22. For the purpose of assigning one's

interest in the property, it was not
necessary that partition by metes and
bounds amongst the coparceners must take
place. When an intention is expressed to
partition the coparcenary property, the
share of each of the coparceners becomes
clear and ascertainable. Once the share of
a coparcener is determined, it ceases to be
a coparcenary property. The parties in such
an event would not possess the property as
“joint tenants” but as “tenants-in-common”.
The decision of this Court in SBI [(1969)
2 SCC 33 : AIR 1969 SC 1330] , therefore,
is not applicable to the present case.

23. Where a coparcener takes definite share

in the property, he is owner of that share
and as such he can alienate the same by
sale or mortgage in the same manner as he
can dispose of his separate property.”

It is important to notice that what this Court has

laid down that he becomes owner of “that share” and he

can alienate ‘the same’. It is different from saying

46
2008 (7) SCC 46

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that he is owner of the property in the sense of being

the exclusive owner.

[See also in this regard the law as laid down in

Appovier case (supra) in para 4 thereof].

107. We may also notice that even under the law

prior to Hindu Succession Act there could be four

situations. In regard to a member of a joint Hindu

family who also has his separate property he could

bequeath his separate property. As far as joint family

property is concerned, there could be three situations.

The first situation is where the family remains joint

in which case the coparcener would have an interest.

As far as this interest is concerned, it could not be

the subject matter of the will prior to the Hindu

Succession Act. The second situation is in a case

where there is a disruption in title or a division in

status. What we mean is there is a partition in the

sense of a division in the joint family status caused

by any unequivocal declaration by a coparcener which

is communicated. It can be by words. It can be by

conduct. It can also embrace the very filing of a suit

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for partition. When such disruption takes place then

the share of the coparcener in the joint family

property becomes a reality and takes concrete shape in

accordance with law and the rights of the members of

the family. As already noticed, this may or may not

be accompanied simultaneously with a metes and bounds

partition. In such a scenario under the law prior to

the Hindu Succession Act, having achieved disruption

in the joint family, the right based on the principle

of survivorship perishes. The share of the coparcener

becomes undeniable. Should he die intestate the share

would go not to the other coparceners by survivorship

but to his heirs. It also opens the door to the

coparcener to exercise his right to bequeath his share

in accordance with his wishes. This power was

certainly available to a Hindu even prior to Section

30 of the Hindu Succession Act. The third scenario

would be a situation where following a division in

title or status in the family there is also a metes and

bounds partition of the properties of the family in

accordance with the share. It cannot be open to doubt

that in fact, capacity of a Hindu to bequeath such

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property existed even prior to the Hindu Succession

Act. In fact, the property obtained as a share on a

partition by a coparcener who has no male issues is

treated as his separate property. As regards the

effect of a son born after partition we need not

pronounce on the same. After the amendment to the

Succession Act 2005 including the daughters of a

coparcener as coparceners in their own right, if a

Hindu has a female issue then the property allotted to

him on partition will partake of the nature of

coparcenary property. See in this regard the following

discussion in para 228 clause (6) at page 342 in “Mulla

on Hindu Law”: 23rd Edition: Cataloguing different kinds

of separate property:-

“(6)Share on partition – Property

obtained as his share on partition by a
coparcener who has no male issue (see S.
221(4)). This position is now materially
altered with the inclusion of daughters of
a coparcener as coparceners in their own
right by the amendment in the Hindu
Succession Act 2005. If therefore, even if
a coparcener who has obtained a share on
partition has no male issue but has a female
issue, the property allotted to him on
partition will partake the nature of
coparcenary property. The above
proposition will therefore have to be read
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as a coparcener having been allotted a

share on partition, takes it as his
separate property when he has no issue.
This is since, by virtue of the amendment,
as the distinction between male and female
children of a coparcener stands abrogated
and abolished, both having been given
equality of status as coparceners.”

108. After the passage of the Hindu Succession Act

even without there being a partition in the sense of a

declaration communicated by one coparcener to another

to bring about the division it is open to a Hindu to

bequeath his interest in the joint family. In other

words, the words “interest in coparcenary property” can

be predicated only when there is a joint family which

is in tact in status and not when there is a partition

in the sense of there being a disruption in status in

the family. Thus, the right of a Hindu in the

coparcenary joint family is an interest. Upon

disruption or division, it assumes the form of a

definite share. When there is a metes and bounds

partition then the share translates into absolute

rights qua specific properties.

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THE IMPACT OF THE HINDU WOMENS RIGHT TO PROPERTY ACT,

1937 (XVIII OF 1937)(HEREINAFTER REFERRED TO AS ‘THE
1937 ACT’, FOR SHORT).

108. It is apposite to notice Sections 2, 3 and 5 of

the 1937 Act:

“2. Application. -Notwithstanding any rule

of Hindu law or custom to the contrary, the
provisions of section 3 shall apply where
a Hindu dies intestate.

3. Devolution of property. -
(1) When a Hindu governed by the
Dayabhaga School of Hindu Law dies
intestate leaving any property, and
when a Hindu governed by any other
school of Hindu law or by customary law
dies intestate leaving separate
property, his widow, or if there is
more than one widow, all his widows
together, shall, subject to the
provisions of sub-section (3), be
entitled in respect of property in
respect of which he dies intestate to
the same share as a son: Provided that
the widow of a predeceased son shall
inherit in like manner as a son if
there is no son surviving of such
predeceased son, and shall inherit in
like manner as a son's son if there is
surviving a son or son's son of such
predeceased son: Provided further that
the same provision shall apply mutatis
mutandis to the widow of a predeceased
son of a predeceased son.
(2) When a Hindu governed by any school
of Hindu law other than the Dayabhaga

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school or by customary law dies having

at the time of his death an interest
in a Hindu joint family property, his
widow shall, subject to the provisions
of sub-section (3), have in the
property the same interest as he
himself had.
(3) Any interest devolving on a Hindu
widow under the provisions of this
section shall be the limited interest
known as a Hindu woman's estate,
provided however that she shall have
the same right of claiming partition
as a male owner.
(4) The provisions of this section
shall not apply to an estate which by
a customary or other rule of succession
or by the terms of the grant applicable
thereto descends to a single heir or
to any property to which the Indian
Succession Act, 1925, applies.

xxx xxx xxx

5. Meaning of expression "die intestate".

-For the purpose of this Act a person shall
be deemed to die intestate in respect of
all property of which he has not made a
testamentary disposition which is capable
of taking effect.”

As can be seen, Section 3 of the 1937 Act applies

when a Hindu dies intestate.

It is important to notice that Section 3(1) of the

1937 Act deals with the case of the Hindu dying

intestate leaving behind separate property. In such a

situation, should there be one widow, she became

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entitled in respect of the property to the same share

as the son. This was made subject to sub-Section (3)

which declares that, the interest devolving on her,

would be a limited interest known as Hindu Woman’s

Estate. The more important change that was brought

about is located in Section 3(2). Thereunder, when a

Hindu governed by any School of Law, other than

Dayabagha or Customary Law, dies, leaving behind at the

time of his death, an interest in a Hindu Joint Family

property, his widow is conferred the same interest as

her husband had. This is again made subject to the

provision of sub-Section (3) which makes it a limited

interest known as the Hindu Woman’s Estate. It will

be, at once, noticed that the Legislature had not used

the words “dies intestate” in Section 3(2), whereas,

in Section 3(1), the Legislature contemplated a

situation, where a Hindu could bequeath his separate

property and has taken care to provide only for a

contingency where he died intestate. No doubt Section

2 proclaimed that Section 3 was to be applied when a

Hindu died intestate. When it comes to Section 3(2),

in regard to a case covered by Mitakshara law, the

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Legislature has, in keeping with the law as then

prevailing, recognised that a Hindu could not execute

a Will in regard to his interest in a Hindu Joint

Family. It is this concept, which has been swept away

by enacting the Explanation to Section 30 of the Hindu

Succession Act, whereunder, it is open to a Hindu to

even bequeath his interest in the Hindu Joint Family

property. Coming back to Section 3(2) of the Hindu

Women’s Right to Property Act, the Legislature has

advisedly chosen the words “interest in the Hindu Joint

Family property”, which may be contrasted with the

provisions under Section 3(1), which contemplates the

Hindu leaving behind separate property. Therefore,

Section 3(2) contemplates the situation, where, at the

time when the Hindu dies after the enactment of the Act

in 1937 (it came into force on 14th April, 1937 and it

was repealed by Section 31 of the Hindu Succession Act

1956), in order that the widow acquires the same

interest as her husband had under Section 3(2), the

Hindu must die when he is not separated from the joint

property. If a Hindu, when he dies, is separated and,

at least, qua him, there is no Hindu Joint Family, it

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would not be a case where Section 3(2) would apply.

It is to be noted that, a Hindu when he dies intestate

he may have an interest in a Hindu joint family and at

the same time also have separate properties. Then qua

his separate properties, Section 3(1) would apply

whereas in regard to his interest in the joint family,

Section 3(2) would govern. Section 3(1) cannot apply

as the properties in dispute were not his separate

properties.

What is the impact of this enactment on the claim

for survivorship made by the Lakshmiah Naidu, the

brother of V. Rangaswami Naidu? Did the Right by

Survivorship, survive the passing of the 1937 Act? What

is the nature of the Right, which is granted under

Section 3(2) of the 1937 Act to a Hindu Widow? These

questions have fallen for consideration before the

Courts.

We need only refer to one judgment, i.e., Satrughan

Isser v. Sabujpari and others47. To quote:

“7. By the Act certain antithetical

concepts are sought to be reconciled. A
widow of a coparcener is invested by the
47 AIR 1967 SC 272
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Act with the same interest which her

husband had at the time of his death in the
property of the coparcenary. She is thereby
introduced into the coparcenary, and
between the surviving coparceners of her
husband and the widow so introduced, there
arises community of interest and unity of
possession. But the widow does not on that
account become a coparcener: though
invested with the same interest which her
husband had in the property she does not
acquire the right which her husband could
have exercised over the interest of the
other coparceners. Because of statutory
substitution of her interest in the
coparcenary property in place of her
husband, the right which the other
coparceners had under the Hindu law of
the Mitakshara school of taking that
interest by the rule of survivorship
remains suspended so long as that estate
enures. But on the death of a coparcener
there is no dissolution of the coparcenary
so as to carve out a defined interest in
favour of the widow in the
coparcenary property: Lakshmi
Perumallu v. Krishnavanamma [AIR (1965)
SC 825] . The interest acquired by her under
Section 3(2) is subject to the restrictions
on alienation which are inherent in her
estate. She has still power to make her
interest definite by making a demand for
partition, is a male owner may. If the widow
after being introduced into family to which
her husband belonged does not seek
partition, on the termination of her estate
her interest will merge into the
coparcenary property. But if she claims
partition, she is severed from the other
members and her interest becomes a defined
interest in the coparcenary property, and
the right of the other coparceners to take
that interest by survivorship will stand
extinguished. If she dies after partition
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on her estate is otherwise determined, the

interest in coparcenary property which has
vested in her will devolve upon the heirs
of her husband. It is true that a widow
obtaining an interest in coparcenary
property by Section 3(2) does not inherit
that interest but once her interest has
ceased to have the character of undivided
interest in the property, it will upon
termination of her estate devolve upon her
husband's heirs. To assume as has been done
in some decided cases that the right of the
coparceners to take her interest on
determination of the widow's interest
survives even after the interest has become
definite, because of a claim for partition,
is to denude the right to claim partition
of all reality.”

The position at law may therefore, may be culled out

as follows:

With the passing of the 1937 Act, in areas to

which it applied, an intrusion was indeed made upon

a coparceners right to set-up a claim to the

property of a deceased coparcener based on the

Doctrine of Survivorship but the Act did not

annhilate the said Right. The Right to claim by

Survivorship came to be suspended but not

extinguished. The widow, though not a coparcener,

was like a coparcener in most respects. She was also

conferred with the right to claim partition. As

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long as she did not claim partition and the property

remained intact upon her death, the Right to Claim

by Survivorship which stood eclipsed, revived and

the coparceners would become entitled to the

property on the basis that succession opened as if

the coparcener died when the widow died. On the

other hand, if the widow claimed partition, her

interest transformed into a defined interest and

the Right to Claim by Survivorship, which stood

suspended, was destroyed. The property would then

enure to the heirs of the husband. It is also to be

noted that, by virtue of Section 3(2), there is no

rupture in the coparcenary. There is no division

brought about by Section 3 (2) of the 1937 Act, in

other words.

We must also not be oblivious to two developments which

took place after succession opened to the estate of V.

Rangaswami Naidu on 01.06.1955. The Hindu Succession

Act, 1956 containing Section 14 came to be passed, the

effect of which will be discussed later. Secondly, we

may also notice that R. Krishnammal the widow, filed

O.S. No. 71 of 1958 wherein as an alternate prayer, she

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sought partition. We have already noticed the principle

which has been laid down about the effect of a demand

for partition by a widow in whom the Right came to be

vested under Section 3(2) of the 1937 Act. But, as we

have noticed, the supervening Legislation in the form

of the Hindu Succession Act, if it did confer absolute

rights under Section 14(1), it is a matter of law as

to what was the nature of the Right R. Krishnammal

possessed, even when she instituted O.S. No. 71 of

1958. It is clear than when succession opened to the

estate on 1.6.1955 if Section 3(2) applied, then

Lakshmiah Naidu would have only a suspended right of

survivorship. There is the compromise decree in OS 71

of 1958 under which R. Krishnammal has given up all her

rights in the plaint schedule properties in favour of

the Lakshmiah branch.

109. We find legislative recognition of this

concept of ‘interest’ in joint family in Section 6 of

the Hindu Succession Act. Section 6 prior to its

substitution by Amending Act 39 of 2005 provided that

in the case of male Hindu dying after the Act possessing

an interest in Mitakshara coparcenary property, the

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property was to devolve by survivorship, subject to the

proviso. What is of greater relevance is the terms of

explanation. The terms of the explanation I as it

stood which is retained as the explanation in sub-

section (3) of Section 6 after the amendment reads as

follows:

Explanation. —For the purposes of this sub-

section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share
in the property that would have been
allotted to him if a partition of the
property had taken place immediately before
his death, irrespective of whether he was
entitled to claim partition or not.

110. Therefore, the concept that what a coparcener in

a Mitakshara family had prior to partition, is an

interest, is reiterated. For the purpose of Section 6,

however, in order to determine the extent of that

interest it is deemed to be the share which he would

get if there was a notional partition just prior to his

death. Partition in the sense of a disruption however

determines the extent of share which would devolve

under Section 8 of the Act. We make it clear that we

must not treated as having pronounced that the notional

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partition contemplated under the explanation to Section

6 is meant to bring about the demise of the coparcenary

as such. The Explanation to Section (30) also speaks

of ‘interest’ as being ‘property’ which a Hindu could

after the Hindu Succession Act bequeath.

WHAT IS TITLE OF V. RANGASWAMI NAIDU, WHICH HE COULD

PASS?

111. O.S. No. 89 of 1983 is a Suit where there is a

declaration of the plaintiff’s right sought and also a

Decree of Partition. The cause of action is based on

the remainder right traced from the terms of the Will

dated 10.05.1955. It is apposite to bear in mind one

aspect. In a proceeding instituted to obtain probate

of a Will, if a contention is raised about the title

of the Testator, it would be foreign to the scope of

the inquiry to enquire into the title of the Testator.

The court, considering the grant or refusal of the

probate is only to deal with the question as to whether

the Will was the last and genuine Will executed by the

Testator. Questions relating to title would have to be

pursued before the appropriate Forum (See Kanwarjit

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Singh Dhillon v. Hardyal Singh Dhillon48). Would that

be the position in the case of the title Suit wherein

a plaintiff invites the court to pass a Decree for

partition and qua the partition suit, Defendants 1 to

3 who are among the appellants before us, would stand

in the shoes of a plaintiff. We would think that O.S.

No. 89 of 1983 and even O.S. No. 649 of 1985, are Suits

based on title. The question relating to the right to

the property involved must be gone into and decided.

112. We have already found that in the claim that V.

Rangawami Naidu acquired title to the properties by way

of oral partition, cannot be accepted. The claim that

he had acquired properties by way of self-acquisition,

also may not stand. If there has been a disruption in

the family status, partition in the narrow sense of a

division in title takes place. We have also found that

the mere fact that there is a division effected in the

joint family, would not mean that, in law, V.

Rangaswami Naidu could claim exclusive and absolute

ownership qua the items covered under the Will. The

48 (2007) 1 SCC 357

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plaint schedule properties are, admittedly, part of the

properties scheduled to the Will. The result would be

that, in terms of the legal principles applicable, we

would find that V. Rangaswami Naidu did not have

exclusive right as such qua the properties scheduled

under the Will.

113. However, the reasoning of the First Appellate

Court may be noticed in this regard. After finding that

a co-owner cannot unilaterally allot specific

properties to his share, the Appellate Court took the

following aspects into consideration:

The respondents (plaintiffs in O.S. No. 649 of

1985) were aware in the earlier litigation (O.S.

No. 71 of 1958 and O.S. No. 36 of 1963) that V.

Rangaswami Naidu had made unilateral allotment,

and even though they had got opportunity in the

above two instances, they did not raise any

objection over the unilateral allotment. Next, the

Appellate Court took note of the fact that there

were more than ninety-three items of properties of

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more than hundreds acres of land of Hindu Joint

Family consisting of the brothers, and therefore,

the allotment of a small portion cannot be held as

unjust one. R. Krishnammal had tried to establish

her right in the proceedings under Section 145 of

the CrPC. The earlier Suits, i.e., O.S. No. 71 of

1958 and O.S. No. 36 of 1963, were filed on the

basis of the Will. The respondents had enough

opportunities to challenge the unilateral

allotment and they failed to utilise the same, and

therefore, their consequential acts gained much

importance. The Court also distinguished the

judgment in Bhagwant P. Sulakhe (supra). It is

further found that since V. Rangaswami Naidu had

given written rejoinder confirming the newspaper

publication dated 10.05.1955, the declaration

cannot be held as unilateral and his actions had

(‘were’ sic) changed the character of the Hindu

Joint Family properties. Therefore, it is found

that having failed to raise any objection and acted

accepting the allotment, the respondents have no

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right to deny the life interest of R. Krishnammal

and the vested interest of the appellants.

114. The entire reasoning of the Appellate Court is

that while one coparcener, even after there is a

division, cannot unilaterally appropriate any specific

property as his exclusive property, in view of the

conduct of the respondents in not challenging the said

allotment in O.S. No. 71 of 1958 and O.S. No. 36 of

1963, they cannot be permitted to challenge the nature

of the right to the properties. The Appellate Court

also relied on the fact that the plaint schedule

properties (less than 37 acres) is a small part

compared to the large extent of properties which

belonged to the coparcenary consisting of the two

brothers.

115. As far as O.S. No. 71 of 1958 is concerned, the

respondents have produced A1-Plaint. As already noted,

there was no occasion for adjudication of the matter

as the case was compromised. The appellants, in fact,

would claim that they are not even bound by the said

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Decree. This is for the reason that under the said

Decree, the plaint schedule properties herein have been

recognised as the absolute properties of the

respondents. If any reliance is to be placed on the

said Decree, then, the fact that under the compromise

Decree, the entire rights have been given-up by the

life estate holder R. Krishnammal, stares one in his

face. A2 is the compromise Decree. It is dated

21.07.1958. The Suit was filed on 10.04.1958. It

apparently may have suited the respondents to not allow

the matter to go to trial. The testimony of PW1 shows,

inter alia, as follows:

R. Krishnammal has informed as how much

you can give me. R. Krishnammal has asked for

one house to live and land for food, otherwise,

she did not ask for equal share in the

property.

116. As far as O.S. No. 36 of 1963 is concerned, A3

is the Plaint. In A4-Written Statement filed by R.

Krishnammal-First Defendant, she disputed the case

about the compromise and she defended the compromise

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in O.S. No. 71 of 1958. The respondents were, in fact,

initially not parties. We have already noticed that the

compromise Decree, which ensued even in the said case,

modifying the absolute estate of R. Krishnammal and

limiting it to a life estate in regard to Item Nos. 5

and 6, did involve reiteration of the Will. The

question would, however, arise whether, by such conduct

alone, viz., by being parties in the said Suit, and

later on when the compromise took place, by signing the

same not as parties but in token of their having seen

the endorsement made by plaintiff therein and R.

Krishnammal and Defendant No.3 (another Legatee), they

have acknowledged the title to Item Nos. 5 and 6, that

it vested with V. Rangaswami Naidu and, furthermore,

whether it should be treated as acknowledging the

exclusive title in regard to the plaint schedule

properties involved in this case and which were not

scheduled in O.S. No. 36 of 1963.

117. It is to be remembered that while on the one

hand, R. Krishnammal, in O.S. No. 71 of 1958, set-up

the Will, as also the case of oral partition and

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exclusive ownership of her late husband, she also was

willing to adopt the stand of the Lakshmiah branch that

her late husband and his brother were not separated.

On the said basis, she had also laid a claim based on

the Hindu Women’s Right to Property Act, 1937, and what

is more, also relied upon the Hindu Succession Act. It

is this Suit which was compromised. It is certainly not

possible to predicate on what basis Lakshmiah branch

became amenable for the compromise. It might have been

different if the cause of action of R. Krishnammal was

based solely on the basis of the Will. In this case,

having regard to the alternate case set-up based on the

rights available to her, as aforesaid, and noticing

that some items out the Will were recognised as her

own, and the other items which included items which

were included in the Will and also part of the larger

joint family property, she has given-up her rights, it

cannot be characterised as not using of the opportunity

by the Lakshmiah branch to challenge the unilateral

allocation by V. Rangaswami Naidu.

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118. In O.S. No. 36 of 1963 also, as we have already

discussed, at the time of the compromise in 1974, the

Lakshmiah branch was already party to the compromise

in O.S. No. 71 of 1958, under which they had, in fact,

recognised the absolute rights in regard to Item Nos.

5 and 6 in favour of R. Krishnammal. It mattered little

to them that under the compromise Decree in O.S. No.

36 of 1963, it was to be enjoyed as a life estate by

R. Krishnammal and to be not alienated by her. We have

noticed that it was stated that no relief was claimed

against the other Defendants in the said Suit. The

inference drawn by the First Appellate Court based on

not making use of the opportunity to challenge the

unilateral allocation, in such circumstance, does not

appeal to us.

119. Coming to the second aspect, the First Appellate

Court has noticed the fact that the property belonging

to the family, was much bigger, as a result of which

the unilateral allotment could not be treated as

unjust. It does not address the legal issues. On the

basis that there is a division in the joint family

status, undoubtedly, V. Rangaswami Naidu would be freed

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from the stranglehold of the principle that a Hindu

could not bequeath his interest in the undivided

family. As we have noticed, the moment there is a

division, what emerges is the share of the erstwhile

coparcener. In this case, there are only two

coparceners, viz., V. Rangaswami Naidu and Lakshmiah

Naidu. They would have one-half share between

themselves. Undoubtedly, if V. Rangaswami Naidu had

bequeathed his one-half share, it could not have

generated legal controversy. We emphasise that this is

subject to there having been a disruption. We have also

noticed that if there is a disruption in the Joint

Family status and partition in the narrow sense, it

produces the consequence that as regards the share of

the separated coparcener, his share becomes immune from

any claim based on the Doctrine of Survivorship. We

have also noticed that a bequest by a member of his

interest in an undivided family, was juridically

anathema, as under the Doctrine of Survivorship,

persons claiming under the birth right over the

property, would be preferred to those claiming under a

Will. Once, this obstruction over the right of the

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legal heir is removed in the case of intestate

succession, it would be the heirs, who would succeed.

If that be so, can not a Hindu, be it before the Hindu

Succession Act, bequeath specific properties over which

he would have undoubtedly joint rights?

120. What would be the position after bringing about

a division in title but before there is a partition of

the property by metes and bounds? We have noticed that

during the interregnum, the properties of the family

would continue to remain joint[See 1986(1) SCC 366].

In other words, unless there is a partition, qua, the

properties, though the shares are ascertained by the

partition in the sense of a division in the joint

family, no coparcener could point to any specific item

and claim it to be his.

121. Now, what would be the position in regard to the

power of a Hindu in the erstwhile State of Madras to

transfer a specific item of property even when the

family is intact. A Full Bench of the Madras High Court

has dealt with this question in the decision reported

in Aiyyagari Venkataramayya and another v. Aiyyagari

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Ramayya49. The pointed question which actually arose

before the Court on a reference to the Full Bench was,

the effect of the death of the vendor after he effects

sale of his interest in the Hindu Undivided Family. The

contention apparently raised was, having regard to the

Doctrine of Survivorship, if the vendee did not

institute a Suit to enforce his rights, while the

vendor was alive, the vendee would have no right at all

to enforce. Justice Bashyam Ayyangar has authored a

separate Judgement wherein he has surveyed exhaustively

the entire case law. The learned Judge holds inter alia

as follows:

“The question of a member of an undivided

Hindu family alienating family property
for his own purposes is not a topic dealt
with, as far as I am aware, by any texts
of Hindu law or by the commentators. No
express authority on the subject can
therefore be found in the Hindu law books,
and it is questionable whether an
alienation by a co-parcener of his
undivided share and interest was
recognised by Hindu jurists. As observed
by the Judicial Committee "there can be
little doubt that all such alienations,
whether voluntary or compulsory, are
inconsistent with the strict theory of a
joint and undivided Hindu family and the

49 (1902) ILR 25 Madras 690

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law as established in Madras and Bombay

has been one of gradual growth, founded
upon the equity which a purchaser for
value has to be allowed to stand in his
vendor's shoes and work out his rights by
means of a partition" Suraj Bunsi Koer v.
Sheo Persad I.L.R. 5 Calc. 148.”

The learned Judge further goes on to state the law in

the following terms:

“A co-parcener may profess to alienate

either his undivided share in the whole
of the family property or his undivided
share in some specified portion of the
family property-as in the present case-or
the whole of a specified portion of the
family property-as in the case in
Venkatachella Pillai v. Chinnaiya
Mudaliar 5 M.H.C.R. 166. The same thing
may take place in the case of involuntary
sales also. In all these cases, the sale
operates upon the interest and share of
the transferor as the same existed at the
date of the transfer and the transferee
must work out the transfer by bringing a
suit for ascertaining what the share and
interest of the transferor was at the date
of the transfer. Such a suit is not
technically a suit for partition and the
decree which he may obtain enforcing the
transfer, either in whole or in part, by
a partition of the family property will
not by itself break up the joint ownership
of the members of the family in the
remaining property, nor the corporate
character of the family.”

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We, however, notice also the following:

“The claim of a transferee from a co-

parcener to work out the transfer is no
doubt an equitable claim in the sense that
he must be a transferee for value and in
cases where the transfer relates to a
specific portion of the family property,
he has no legal right, any more than his
transferor himself, to insist on that
specific portion being allotted to the
share of the vendor. Being a purchaser
for value he will have an equity to have
such portion or so much thereof as is
practicable so allotted, if that can be
done without prejudice to the interests
of the other sharers. In any suit which
may be brought by him to enforce the sale,
all the members of the family should be
joined as parties as in a partition suit,
the subject-matter of the suit being the
family property as it existed at the date
of the transfer.”

In fact the Court in Venkatachela Pillay v.

Chinnaiya Mudaliar50 (1870) held as under:

“…..And the contention on behalf of the

appellant is that one co-parcener cannot
object to a sale of a family property made
by another co-parcener when the portion
of property sold is unquestionably less
in quantity and value than the share of
the co-parcener making the sale in the
entire property.
We are of the opinion that this is an
untenable objection. The decision of
this Court as to the right of a co-

50
(1870) 5 M.H.C.R. 166

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parcener to alienate his vested interest

in the property held in co-parcenery do
not go beyond establishing the validity
of an alienation to the extent of the
coparcener’s share in the particular
property which is the subject of the
alienation. And they are founded upon
the principle that each co-parcener has a
vested present undivided estate in his
share, which he may at any time convert
into an estate in severalty by a
compulsory or voluntary partition, and
that such estate is transferrible like
any other interest in property. Further
than this the title of the 1st defendant
under the alienation in the present case
cannot, we think, be carried…
xxx xxx xxx

By the sale in the present case therefore

the vendor, Subbaraya, could not in our
judgment transfer to the 1st defendant’s
father a valid title to any specific
portion of the joint-family property but
only to his beneficial estate as an
undivided co-parcener with the incidental
right of partition, and it follows that
the 1st defendant is not entitled to more
than the moiety of the village lands which
were alone the subject of the contract of
sale.”

It appears there is no uniformity in regard to the

power of a coparcener to sell his undivided interest.

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In Sidheshwar Mukherjee v. Bhubaneshwar Prasad Narain

Singh and others51 we notice the following :

“9. It is true that under the Mitakshara

law, as it is administered in the State
of Bihar, no coparcener can alienate,
even for valuable consideration, his
undivided interest in the joint property
without the consent of his coparceners;
but although a coparcener is incompetent
to alienate voluntarily his undivided
coparcenary interest, it is open to the
creditor, who has obtained a decree again
him personally, to attach and put up to
sale this undivided interest, and after
purchase to have the interest separated
by a suit for partition.”

In M.V.S. Manikayala Rao v. Narasimhaswami and

others52, a case which arose against the impugned order

of the High Court of Andhra Pradesh, it involved an

auction sale therein the Court held as follows:

“….Now it is well settled that the

purchaser of a coparcener’s undivided
interest in the joint family property
is not entitled to possession of what
he has purchased. His only right is
to sue for partition of the property
and ask for allotment to him of that
which on partition might be found to
fall to the shre of the coparcener who
share he had purchased….”

51
AIR 1953 SC 487
52
AIR 1966 SC 470

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122. The view of Justice Bashyam Ayyangar has also

been approved by a Full Bench of five learned Judges

of the High Court in K. Peramanayakam Pillai v. S.T.

Sivaraman and others53.

123. Thus, in the case of an alienation by a Hindu,

even if it is of a specific property belonging to the

joint property, it would be dealt with on an equitable

basis, should the alienee bring an action to enforce

the same in a properly constituted Suit. The conclusion

we would arrive at is that the sale of such a right

even over specific immovable property by a coparcener

in a Mitakshara Hindu Joint Family does take effect in

law where it is permitted and it would not be a case

of a void transaction. The purpose of undertaking this

discussion is to appreciate the law relating to the

power of the coparcener to transfer specific items even

if there has been no partition in the sense of a

division of title so that we are in a better position

to appreciate the question as to whether in a case

53 AIR 1952 Madras 419

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where a Hindu executes a Will prior to the Hindu

Succession Act could, he, by a Will, after a division

is brought about in the family bequeath specific

immovable property.

124. In order to understand this problem in its proper

perspective, we must advert to certain vital

dimensions. The real principle on the basis of which

the interest of a coparcener in a Joint Hindu Family

could not be the subject matter of a valid bequest was

that the bequest would come into collision with the

right to claim property by survivorship vested in the

other coparceners upon their birth. Thus, it is a case

of a prior right taking precedence over the bequest

which can come into force only not from the date of the

making of the Will but upon the death of the Testator.

This distinction, has apparently allowed courts to

recognise an inter-vivos alienation which is possible

only when the coparcener is alive of his interest in

the Joint Hindu Family as it does not involve a conflict

between the right by survivorship and rights sought to

be created by the coparcener. However once there is a

division, then right by survivorship ceases and there

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can be objection to said principle applying to a

bequest of a specified immovable property. In fact,

the case of a will made after division of specific

immovable property stands on a different footing and

the objection that the sale is by a coparcener when the

joint family exists does not hold good.

125. The second point of distinction which we may

notice is that as noted by Justice Bashyam Ayyangar in

Aiyyagari Venkataramayya and another (supra) is that,

the right was recognised as an equitable right in

favour of an alienee who has purported to purchase the

property for valuable consideration. A bequest may be

subject to an onerous condition and the rights of the

Legatee may become subject to the Doctrine of Election.

A bequest, on the other hand, may involve no liability

for the Legatee, in which case, he may not bear

resemblance to an alienee under the inter-vivos

transfer who purchases property for valuable

consideration.

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126. At least, as an equitable claim, can not

appellants enforce their right and claim to be allotted

the items on the basis that they could be allotted to

the share of the Testator as in the case of a transferee

from a Hindu of specific immovable property, even when

the joint family continues to exist? We have noticed

that the law does not render such transferee helpless.

No doubt, one of the conditions which has been evolved

in by Justice Bashyam Ayyangar in the decision in

Aiyyagari Venkataramayya (supra) is that all the

sharers must be on the party array. In this case, the

said requirement is fulfilled as they are represented

as Defendants 4 to 11 is O.S. No. 89 of 1983. No doubt,

we notice that another requirement, in such a case,

would be that all the properties of the joint family

are scheduled. This requirement is not seen fulfilled

and the frame of the Suit is based on exclusive title

of the plaintiff and Defendants 1 to 3 which is based

on bequest.

127. About the extent of property belonging to the

family, it is relevant to notice that PW1 has deposed,

inter alia, as follow:

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My brother Baktachalam gave an extent of

750 acres of land in Kollegal Village,

Satyamangalam to his father in the name of

Government assignment in the year 1944. Those

750 acres of land are under our family

possession. My father had purchased an extent

of 150 acres of land in Coimbatore from 1932

to 1958 in my name and Ramathal. More than

1,000 acres of land were purchased from 1944

to 1958 in their family. V. Rangaswami Naidu

is having right upon 1,000 acres of land

purchased in Kollagal, Kollangodu, Coimbatore

and Tanjore. I know that R. Krishnammal has

right over 1,000 acres of land.

R. Krishnammal did not claim share in 1000

acres of land in A1. When we settled the matter

and gave the share to R. Krishnammal, we did

not take into account of an extent of 1,400

acres of land. R. Krishnammal did not claim

share as she is having right over more than

700 acres of land.

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Above is the picture regarding the

availability of the family properties. They

are of course not scheduled in the Plaint. We

are not exactly aware of the value of these

lands.

128. We would certainly think that the Legatee under

the Will, left behind by a Hindu after there is division

in the family status in regard to specific properties

belonging to the family, would indeed have rights qua

the property but limited to the share of the Testator.

It cannot be a principle of law in the region of

controversy that a man cannot ordinarily transfer a

right greater than what he himself has. Even under the

Indian Succession Act, under Section 59, there could

be no prohibition in V. Ranagaswami Naidu bequeathing

his share, if there was division. We have already

noticed that in a bequest, the equitable consideration

available to a transferee by an intra-vivos

transaction, wherein he has paid valuable

consideration, may not apply. But this cannot mean

that, if everything else is proved, the legatee should

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be left remediless. We did toy with the idea of

considering holding in favour of the appellants even

treating it to be an exercise of powers under Article

142 of the Constitution of India in the special facts

of this case as brought out by the testimony of PW1 as

regards the inequity involved. No doubt, we find the

frame of the Suit hardly helpful to the appellants. But

having regard to the fact that the appellants must fail

otherwise, we need not explore this matter further.

DOES THE WILL EFFECT A DIVISION?

129. There is an argument raised by the appellants

that if no division was caused by B1 still the terms

of the Will achieve the same result. In other words

in so far as Rangaswami Naidu had in the Will indicated

not only about there being a partition in 1932 but he

has also stated that he continues to be a divided

member till the date of the Will and he has already

made an open declaration of his divided status division

also flows as an inevitable result of his Will. The

Will causes the disruption and therefore the

respondents who are the legal representatives of

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Lakshmiah Naidu have no claim in law under the doctrine

of survivorship. We do not think there is any merit

in this argument. It may be true that though no issue

as such was raised, the trial court was indeed called

upon by the parties to answer this question. What is

involved essentially is the reading the contents of the

will so as to ascertain whether it has the impact of

being the declaration of an unequivocal intent of the

coparcener to separate.

130. Shri Guru Krishnakumar, learned counsel would

however point out that even proceeding on the basis

that there is a Will and its terms amount to a

declaration since Rangaswami Naidu died on 1.6.1955

and the Will saw the light of the day as far as other

coparcener is concerned only in the course of

proceeding under Section 145 of the CrPC which took

place much after the death, when succession opened to

the estate of Rangaswami, the will not having been

communicated to Lakshmiah Naidu the requirement in law

was not fulfilled.

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In order that Section 3(2) of the 1937

Act applies, V. Rangaswami Naidu must have died

intestate, leaving behind an interest in the Hindu

Undivided Family. What the appellants are calling upon

us to do is to take a part of the Will which allegedly

contains the declaration which in law, effects

division. But if the Will is to be acted upon, then the

conundrum which exists is, it could not be said that

V. Rangaswami Naidu died intestate qua the properties

which are the plaint scheduled properties. In fact,

Section 5 of the 1937 Act has defined the words “die

intestate” to mean that “a person shall be deemed to

die intestate in respect of all property of which he

has not made a testamantary deposition which is capable

of take effect”. On the one hand, the appellants would

require this Court to hold that B10-Will should govern

the rights of the parties and that it is capable of

taking effect. If it is not found capable of taking

effect, the cause of action would fail. If, therefore,

we proceed on the basis that there is a will Section

3(2) did not apply, and R. Krishnammal, the widow,

would get no right under Section 3(2). If she did not

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get any right under the Act with regard to the

properties governed by the Will, then, the law relating

to survivorship, under which Lakshmiah Naidu would

succeed to the estate of his brother, would spring into

being immediately on the death of V. Rangaswami Naidu

on 01.06.1955. Could it be, however, that it is

possible for the appellants to contend on the Doctrine

of Relating Back propounded in Addagada Raghavamma

(supra) that by virtue of the contents of the Will, a

division is achieved upon Lakshmiah Naidu becoming

aware of the Will even after the death of his brother

during the proceedings under Section 145, which is an

admitted position, and its effect being felt from

10.05.1955 when the Will was made and, therefore, by

this reasoning, on 10.05.1955, which is before the

death of V. Rangaswami Naidu, a division is effected

and, therefore, the Will becomes valid? In other words,

look to the Will, to find whether its contents amount

to a declaration causing a division in law from

10.5.1955 and since the Will speaks from the date of

the death of the Testator on 1.6.1955, the Will becomes

a valid Will?

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We may also, in this regard, turn to the contents

of the Will, which we have already extracted in

paragraph-77 hereinbefore. It will be noted that the

Will starts off with the statement by the Testator that

he owned the properties which included properties

allotted in a partition and also which he acquired by

independent purchases. Thereafter, he states that he

had been a divided member since 1932 onwards. None of

these statements would constitute a declaration. We

have found that the case of partition in 1932 and

independent purchases have been found against the

appellants by three courts. Thereafter, there is only

the statement that he has, in order to avoid any

uncertainties, made an open declaration of his divided

status ‘today’. It may be difficult for us to accept

this statement as a declaration sufficient in law to

cause a division. However even for a moment that it

would work out as a declaration, we would think that

the law laid down by this Court in Addagada Raghavamma

(supra), may pose obstacles insuperable in nature, for

the appellants.

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While it may be true that under the Doctrine of

Relation Back and proceeding on the basis that the

contents, as noted in the Will, amounted to a clear

declaration to separate and that it would have effect

from 10.05.1955, we cannot be oblivious to the creation

of the vested rights. If the matter is to be governed

under Section 3(2) of the 1937 Act, as already noted,

it must be a case where V. Rangaswami Naidu died

intestate. Therefore, if we proceed on the basis that

there is a Will as indeed we must to accept the case

of the appellants, Section 3(2) will not apply. If

Section 3(2) does not apply, the claim to the property

by survivorship, would arise, which would be fatal to

the appellants case, for the reason put forth by Shri

Guru Krishnakumar, learned Senior Counsel, as noted

above. That is to say, in the facts of this case, in

view of the division being communicated through the

Will only after the succession had opened, and even

allowing for the division to have effect from 10.5.1955

when the will was made, the vested right of Lakshmiah

Naidu to claim by survivorship would spring into

existence on 01.06.1955 when his brother died and the

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subsequent communication based on the Will cannot take

away vested right which became available proceeding on

the basis of the Will relating to the plaint schedule

properties (see in this regard para 34 of Addagada

Raghavamma (supra).

DATE AND CONTENTS OF B1: EFFECT OF NON PRODUCTION OF

LETTER DATED 11.5.1955 AND 16.5.1955

131. Coming to the actual question therefore whether

B1 was in fact issued, whether its contents amount to

a declaration as required to create a division, and

finally whether it was communicated to Lakshmiah Naidu

we find as follows:

132. The case of the appellants is that B1 is issued

on 10.5.1955. B1 is a declaration published in a

newspaper. B1 as noted by the first appellate Court,

is as follows:

“I have been a divided member from my

brother Sri R.V. Lakshmiah Naidu ever since
1932…. I also hereby do make a declaration
of my divided and separate status”.

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133. The further case of the appellants is that the

requirement of communication to the other coparceners

is complied with as is proved by the fact that having

received B1 on the very next day Lakshmiah Naidu issued

communication dated 11.5.1955 wherein he purported to

dispute the allegation in B1 that there was a partition

in the year 1932. The case of the appellants is further

premised on the act of Rangaswami Naidu in sending a

rebuttal, as it were, to the communication sent by

Lakshmiah Naidu dated 11.5.1955 which he sent on

16.5.1955. Both the trial court and the High Court

have however found it to be fatal to the appellants

case that the appellants have not produced the said

communication dated 11.5.1955 and 16.5.1955. The

respondents also would contend that the High Court was

right in its conclusion in that regard. On the other

hand, the appellants would point out that the court

must not lose sight of the fact that the communication

issued by Lakshmiah Naidu dated 11.5.1955 is produced

as Exhibit (43) and the communication dated 16.5.1955

was produced as Exhibit 44 in proceeding under Section

145 of the CRPC There is reference to these documents

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in the order passed by the Magistrate which is marked

as B2 in this case. Moreover, respondents complain

about absence of pleading to the effect that B1 was

issued causing a division even by way of refuting the

case set up in OS 649 of 1985 that Rangaswami Naidu

died joint.

WHETHER THERE IS LACK OF PLEADING ABOUT B1 CAUSING A

DIVISION IN THE JOINT FAMILY?

134. In O.S. No. 649 of 1985, filed by the

respondents, it is averred that the plaint scheduled

properties were joint family properties of the two

brothers and it is further averred that there was no

partition between them and they were living as joint

family till the death of V. Rangaswami Naidu in 1955.

In paragraph-5 of the Plaint, it is specifically

averred that, till the death of V. Rangaswami Naidu,

he and his brother constituted a joint family and there

was no division in status between them, and on the

death of V. Rangaswami Naidu, the surviving coparcener

took all the properties by survivorship. In the Written

Statement, which is filed on the appellants side (viz.,

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the Second Defendant), we notice the following pleading

in paragraph-3 of the Plaint:

“3. R.V. Lakshmiah Naidu and V.

Rangaswami Naidu were brothers. They were
divided and living separately. They were
cultivating their lands separately. The
claim of the plaintiffs that R.V. Lakshmiah
Naidu and V. Rangaswami Naidu were living
as joint family and that there was no
division in status till the death of V.
Rangaswami Naidu is false. The joint family
status between the brothers was duly
disrupted and put an end to. There was also
division of properties, and each was
enjoying his respective properties
separately. V. Rangaswami Naidu also
purchased lands independently.”

(Emphasis supplied)

135. No doubt, in O.S. No. 89 of 1983, what is averred

is that the properties belonged to one V. Rangaswami

Naidu. It was further averred in paragraph-9 of the

Plaint that the brothers had divided the properties as

early as in 1932. Out of the nine items scheduled in

the Plaint (viz., O.S. No. 89 of 1983), Item Nos. 1 to

3 and Item Nos. 6 to 9 were 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

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after the partition and belonged to him absolutely. We

must also not lose sight of the fact that the averments

in the later Suit (viz. O.S. No. 89 of 1983), makes

reference to the allegations in O.S. No. 649 of 1985

(the number of the Suit after renumbering). Still

further, we notice that when the issues were framed,

the first issue was whether the Will executed by V.

Rangaswami Naidu is true and valid and whether it came

into force. A separate issue (Issue no. 2) was framed

as to whether there was an oral partition. It is also

noticed that in the discussion, the matter was debated

before the Trial Court on the basis that by the

publication of notice on 12.05.1955 in “Navva India”

newspaper, there was division of the property.

136. We have already noticed the pleadings of the

Second Defendant in the Written Statement in O.S. No.

649 of 1985. Both the Suits were tried together. It has

been averred that the brothers were divided and living

separately. The claim of the respondents that there was

no division in status till the death of V. Rangaswami

Naidu, has been specifically pleaded to be false. The

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joint family status, it has been stated, was duly

disrupted and put an end to.

137. We would think that, in the facts of this case,

the principle that no amount of evidence can be looked

into, if there is no pleading, is in apposite. As to

how the joint family status was disrupted or as to

whether there was no division in status, is essentially

a matter of evidence. The mere fact that it is not

specifically averred, as to the mode by which the

division was brought about, in our view, is not fatal

to the appellants case, if it is otherwise established.

WHETHER THE CONTENTS OF B1 AMOUNT TO A DECLARATION TO

EFFECT DIVISION

138. That there was no oral partition is found

unassailable. Therefore, the statement in B1, about the

same, needs to be ignored being incorrect but the last

sentence in our view is capable of standing as a stand

alone statement. The use of the word ‘also’ appears to

be deliberate. It would also probablise that there was

legal advice which preceded both the making the Will

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and the drafting of the Notice. In B13, the executor

has spoken about V. Rangaswami Naidu, expressing his

desire to execute the Will on two or three occasions

and about their being legal consultation. V. Rangaswami

Naidu was an educated man. An Ex. MLC. He was affluent.

Setting up of the case of oral partition, was also on

the wings of alleged separate purchases. There was a

case that the brothers exchanged list of properties.

He may have entertained the idea that what had

happened, did constitute a case for oral partition. If

we give credit to V. Rangaswami Naidu, to have the

knowledge that a division through notice declaring

intent to separate, was indispensable to the validity

of the Will, as also the use of the word ‘also’, it is

capable of being understood as the declaration

sufficient in law to cause disruption in the joint

family status.

139. The arguments of Mr. Gurukrishna Kumar, learned

Senior Counsel, that the sentence having regard to its

grammatical implications must persuade us to link it

with the earlier partition, alleged in the year 1932,

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does not appeal to us. We should also not be unmindful

of the fact that B10-Will contains the statement about

having made a notice. As long as the coparcener wishes

to separate, he is not required to give any reason to

separate.

WHETHER THERE WAS COMMUNICATION TO THE OTHER COPARCENER

140. Now, we come to the aspect as to whether B1 was

communicated. B1 has been marked in the Trial Court as

dated 12.05.1955. The entire case of the appellants is

that the notice was issued on 10.05.1955 and it was

published in a newspaper “Navva India” as, admittedly,

there is no case for the appellants that the intention

to separate, was given by way of a notice directly to

V. Lakshmiah Naidu. It was the case of the appellants

that noticing the notice in the newspaper, Lakshmiah

Naidu responded by issuing a communication dated

11.05.1955, disputing the partition. In fact, it was

also the case of the appellants that Lakshmiah Naidu

revealed his mind to be that for bringing about

disruption, that V. Rangaswami Naidu had to communicate

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to the other coparceners. Still further, the

appellant’s case is sought to be built around the

communication, by V. Rangaswami Naidu on 16.05.1955 to

Lakshmiah Naidu reiterating contents of B1.

141. We have noticed that the contents of B1, having

regard to the last part, would be sufficient to cause

a division in the status of the joint family. The

question is whether it was communicated, as is required

in law. On the one hand, the communication set up by

the appellants dated 11.05.1955 and 16.05.1955 are not

produced. This shortcoming is sought to be overcome by

the appellants by relying upon the case set up by ‘A’

Party, as revealed in B2. It is the order passed by the

Magistrate under Section 145 of the CrPC. We do notice,

as far as the Notice issued by V. Rangaswami Naidu, it

is a notice in a newspaper. It may not be as difficult

in procuring a copy of the newspaper as it might be to

procure the private communications, as contained in the

letters dated 11.05.1955 and 16.05.1955. We do notice

that the letters dated 10.5.1955, 11.05.1955 and

16.05.1955 have been purportedly marked as B42, B43 and

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B44, respectively, in proceedings which culminated in

B2. The pleadings in support of these documents are

indeed adverted to in B2, order passed by the

Magistrate.

142. Regarding B2-Order, passed under Section 145 of

Cr.PC a contention is raised that it is not relevant

under Section 40 to 43 of the Evidence Act. This

question is not seen raised in the courts below. It may

be true that Section 40 deals with previous judgments

which would constitute a bar to the fresh proceedings

and B2 is, therefore, not relevant under Section 40 of

the Evidence Act. Section 41 also deals with judgments

rendered in probate, matrimonial, admiralty or

insolvency jurisdiction, which has the effect mentioned

in Section 41 of the Evidence Act. It is clearly in

applicable to the facts of the case. Section 42 deals

with decisions being relevant if they relate to matters

of public nature relevant to the inquiry. It is also

not relevant. Section 43 reads as follows:

“43. Judgments, etc., other than those

mentioned in sections 40 to 42, when
relevant.—Judgments, orders or decrees,
other than those mentioned in sections 40,

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41 and 42, are irrelevant, unless the

existence of such judgment, order or
decree, is a fact in issue, or is relevant
under some other provisions of this Act.”

143. In this regard, we have scanned B2-Order. The

relevant part where the pleading is set out is as

follows:

“The deceased declared his divided status

by a notice in the ‘Nava India’ dated
10.5.1955 (Exhibit P42). This attracted
the attention of B Party No. 1 who wrote
to him on 11.5.55 (Exhibit P43) that all
of them were undivided and that if the
deceased wanted to get divided he had to
intimate it to the other copartners. The
deceased replied on 15.5.55 by Exhibit
P44 that the stand taken by B Party No. 1
was not correct. This was acknowledged by
a B Party No. 1 on 17.5.55 (Exhibit P45).

144. What is conspicuous by its absence in B2-Order

is the response of the B Party in regard to these

documents. It is not a case where there is reference

to the pleading of the B Party, viz., the Lakshmiah

branch that they admit the issuance of B42, B43 and

B44. But there is no denial either. B2 would show

that there was a case for the A Party on the lines we

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have indicated. Except for the discrepancy in the date

of ‘B1’ being 12.5.1955 whereas B42 is dated 10.5.1955,

there is consistency in the case set up by the

appellants.

145. The question relating to relevancy of judgments

has been considered by a Bench of this Court in State

of Bihar v. Radha Krishna Singh and Others54. The Court

took the view that reliance cannot be placed on

judgment based on Section 13 of the Evidence Act if it

is not falling under Sections 40 to 42. Thereafter the

Court held as follows:

“129. In Gadadhar Chowdhury v. Sarat

Chandra Chakravarty [AIR 1941 Cal 193 :
(1940) 44 Cal WN 935 : 195 IC 412 : 72
Cal LJ 320] it was held that findings in
judgments not inter partes are not
admissible in evidence. In this
connection a Division Bench of the
Calcutta High Court observed as follows :
“Though the recitals and findings in a
judgment not inter partes are not
admissible in evidence, such a judgment
and decree are, in our opinion,
admissible to prove the fact that a decree
was made in a suit between certain parties
and for finding out for what lands the
suit had been decreed.

54 1983 (3) SCC 118

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130. This, in our opinion, is the

correct legal position regarding the
admissibility of judgments not inter
partes.”

We do notice that the second of ‘A’ party in fact

was the executor of the Will under which the appellants

claim.

146. Interestingly, the respondents have produced as

A109 which has been marked as the copy of the type set

in the revision before the High Court (the revision is

filed against order B2 passed in Section 145

proceedings). It is shown wrongly marked as the order

in the proceeding. Therein we notice that the contents

include apart from the impugned order (B2) the

respondents documents. Among the contents the Exhibits

filed on behalf of the B party are produced. It also

contains the evidence of L. Venkatapathy who is none

other than PW1 in this case. Therein, there is no

mention about B42, B43 and B44 in his examination. In

his cross examination after stating that he found his

signature (Testator) in every page of [Exhibit B68],

the Will he deposed, he did not know if his father had

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replied to the publication in ‘Navva India’. We do not

know what prevented the plaintiff in O.S. No. 83 of

1989 from producing the documents B42, B43 and B44

which would have also been available as the documents

filed by the B party has been produced by B party as

part of A109. There is no finding in B2 about B42

publication, B43 or B44.

147. During the hearing, it was pressed before us by

the respondents that B1 is dated 12.05.1955 and if it

is 12.05.1955, the very edifice of the appellant’s case

would fall to the ground as then it would be impossible

to support the position that in response to the notice

which is published on 12.05.1955, the reply could be

given on the previous date, i.e., on 11.05.1955 by

Lakshmiah Naidu. It is here that the

non-production of the letters dated 11.05.1955 and

16.05.1955, are sought to be emphasized. As noted, we

did call for the records to verify whether marking of

the documents B1 dated 12.05.1955 was a mistake, as

pointed out by Mr. C.A. Sundaram, learned Senior

Counsel or it did reflect the ground reality. We find

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from B1 that Notice is published in the newspaper which

is dated 12.05.1955. Therefore, the marking of the

document B1, as dated 12.05.1955, is not a mistake.

What are the consequences that flow from the said

finding? One way to look at would be that since the

notice containing the declaration, is published in a

newspaper only on 12.05.1955, the case of the

appellants that Lakshmiah Naidu gave a reply on

11.05.1955, on noticing the notice, cannot be accepted.

If the same is not accepted, then, the question of V.

Rangaswami Naidu, sending a rejoinder, as it were also,

would not arise.

148. We have considered the contents of the Will.

There is a reference to the publication of the Notice

on the said date. The Will is dated 10.05.1955. It

appears to us quite clear that the Will would not have

been written on 10.05.1955. It is, no doubt, executed

on 10.05.1955, which we have already found. Having

regards to the details in the Will and the other

circumstances, we are inclined to believe that it would

have been drafted earlier. Equally, publication of a

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matter in a newspaper would have been arranged earlier.

But what is important is, not merely the intention of

the Testator as a coparcener to declare his mind to the

other coparcener to separate, and even have it set-out

in the Will, and further even going a step further,

getting it published, but it must be proved further

that, before the Testator passed away, the matter

contained in B1 was known to the other coparcener,

viz., Lakshmiah Naidu. This requirement is

indispensable as held in Addagada Raghavamma and others

(supra). In this regard, we notice that DW1, the

witness on behalf of the appellants, has this to say:

“On 11.05.1955, Lakshmiah Naidu gave a

reply in response to B1. The same is marked
as B44 in CrPC 145 Proceedings. He clearly
admitted about the division in status made
between Rangaswami Naidu and Lakshmiah
Naidu.”

149. This statement goes against the appellants case.

It appears to be the case of R. Krishnammal and the

Executor in Section 145 of the CrPC proceedings as what

is stated is that on seeing B42 (which is marked as the

‘Notice’ published on 10.05.1955), Lakshmiah Naidu sent

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B43 stating that there was no partition between them,

for which, the deceased sent B44 reply. Thereafter, DW1

says that on 10.05.1955, on publication of

advertisement in “Navva India”, he came to know that

one objection advertisement was published on the very

next date.

150. Let us see what PW1 said, who was 26 years of

age in 1955 and who has also given evidence in Section

145 CrPC proceedings. If there is a clear admission by

him, establishing that the declaration was known to

Lakshmiah Naidu before the death of V. Rangaswami

Naidu, the appellants may succeed on this point subject

to the contradiction being resolved about the date of

B1. After stating that, on 10.05.1955, V. Rangaswami

Naidu issued Notice in India newspaper, as the

partition was done, and stating that, V. Rangaswami

Naidu fictionally made such paper advertisement, he,

thereafter, says that he came to know about the

newspaper advertisement and Will, only in Section 145

of the CrPC proceedings. Thereafter, he says, on

12.05.1955, V. Rangaswami Naidu gave one paper

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publication in “Navva India”. But again, he says he

came to know regarding the same during Section 145

proceedings. He further says that his father did not

ask V. Rangaswami Naidu as to why he gave B1

publication. The witness says, he is not aware why B1

publication was given. Thereafter, he says, he does not

know now whether the newspaper advertisement was filed

by his paternal small Uncle in Section 145 proceedings.

It has been mentioned in A1 that his father made

advertisement in respondent to B1. He further says that

his father may be given that advertisement (Being

translation from Tamil, it does not obviously do

justice. We read it as “his father may have give that

advertisement”). He says that the advertisement given

by his paternal small Uncle and his father reply

advertisement was filed in A1-Suit and he says that it

is not correct to say that his father had admitted that

a division in shares and his father gave newspaper

advertisement as the properties were not partitioned

by metes and bound. He says that it has been mentioned

in A1 (Plaint in O.S. No. 71 of 1958), as Rangaswami

Naidu gave a reply on 16.05.1955 to his father. He then

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admits that it is correct to say that those are marked

as B42, B43 and B44, respectively, in (‘as’ sic)

Section 145 of the CrPC proceedings and he gave the

deposition in those proceedings. We would think that

this is a vital piece of evidence which may show that

B43 is the communication dated 11.05.1955 which must

be taken to be sent by his father to which V. Rangaswami

Naidu respondend on 16.05.1955. This should mean that

the publication on 10.05.1955 became known to Lakshmiah

Naidu, as set-out in B2. The exact contents of B43 are

not available.

151. When PW1 was examined in Section 145 of the CrPC

proceedings, in the chief examination, he does not say

a word about B42, B43 or B44. Then, in cross-

examination, he says that he does not know if his father

had replied to the publication in “Navva India”.

152. We must notice that the High Court has proceeded

on the basis of the inconsistency in the matter. There

is no pleading in regard to B42, B43 or B44 in O.S. NO.

89 of 1983. In answer to the plaintiffs case, based on

B1, which is dated 12.05.1955, the High Court finds

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that the First Defendant set-up a case that the Notice

was published on 10.05.1955. The High Court also

noticed the non-production of the communications dated

11.05.1955 and 16.05.1955.

153. However, there is no case that the Notice was

published on two days, viz., on 10.05.1955 and

12.05.1955. What is evidence produced before the Court

is B1, which is dated 12.05.1955. If that is so, despite

the inferences one could possibly draw from the

deposition of PW1, it would bring it into collision

with the evidence before us. If we proceed on the basis

of B1, which is dated 12.05.1955, then, the reply being

sent on 11.05.1955, becomes impossible. If there is no

reply sent on 11.05.1955, then, it will not be possible

to attribute communication of the Notice to separate

to Lakshmiah Naidu. In such circumstances, we would

agree with the High Court that the case relating to B1,

though there is a publication made, we cannot attribute

knowledge of the same to Lakshmiah Naidu, before the

death of his brother. We are not, for a moment, holding

that a Notice in a newspaper cannot serve as a Notice

by a coparcener to effect division. However, merely

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causing a Notice to be published, without there being

evidence to show that the intended recipient became

aware of it, may not suffice. Though a Notice in a

newspaper is purported to serve as Notice to the

general public, what is required is Notice to the

concerned coparcener [See paragraphs-28 and 32 of

Addagada Raghavamma (supra), extracted by us in

paragraph-89 hereinbefore]. There cannot be a

presumption that a person has read a particular

newspaper, and even more importantly, that he has read

the Notice. Even the case of the appellants appears to

be that, on seeing the Notice dated 10.05.1955, the

communication dated 11.05.1955 was sent by Lakshmiah

Naidu, which we have found unacceptable, having regard

to B1 being dated 12.05.1955. The importance of the

reply dated 11.05.1955 was that it would establish

knowledge of the Notice by Lakshmiah Naidu. There is

no evidence that the Notice published in the newspaper

dated 12.05.1955 was known to Lakshmiah Naidu before

his death.

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Since there was no division brought about by V.

Rangaswami Naidu before his death in view of the above

discussion, the Will would be invalid and therefore it

would be the end of the road for the appellants. It

is to be remembered that Rangaswami Naidu died on

1.6.1955, which was before the enactment of Hindu

Succession Act, 1956. Thus, when he died, he left

behind an interest in the Hindu joint family. When

succession opened to his estate, it is therefore, the

provisions of Section 3(2) of the Hindu Women’s Right

to Property Act, 1937 which apply. A limited estate

in other words sprung into being in favour of R.

Krishnammal, his widow. This estate would bloom under

Section 14 (1) of the H.S.A. into an absolute estate.

When she compromised in OS 71 of 1958 giving up her

rights over the property which included the plaint

scheduled property in these cases, it conferred

absolute rights in favour of the Lakshmiah Naidu

branch. We again reiterate the effect of the death of

Rangaswami Naidu being before the Hindu Succession Act

came into force to be that it would deprive persons of

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rights available in respect of a Hindu who dies

intestate after the Act came into force.

Now assuming that there was a valid Will, that is,

there was a division effected in the family, we will

consider whether the life estate under the Will attract

Section 14(1) or Section 14(2) of the Hindu Succession

Act.

SECTION 14 (1) VERSUS 14 (2) OF HINDU SUCCESSION ACT

1956

154. Section 14 of the Hindu Succession Act 1956 reads

as follows:

“4. Property of a female Hindu to be her

absolute property.—
(1) Any property possessed by a female
Hindu, whether acquired before or after
the commencement of this Act, shall be
held by her as full owner thereof and not
as a limited owner. Explanation.—In this
sub-section, “property” includes both
movable and immovable property acquired
by a female Hindu by inheritance or
devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or
by gift from any person, whether a
relative or not, before, at or after her
marriage, or by her own skill or exertion,
or by purchase or by prescription, or in

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any other manner whatsoever, and also any

such property held by her as stridhana
immediately before the commencement of
this Act.
(2) Nothing contained in sub-section (1)
shall apply to any property acquired by
way of gift or under a will or any other
instrument or under a decree or order of
a civil court or under an award where the
terms of the gift, will or other
instrument or the decree, order or award
prescribe a restricted estate in such
property.”

155. Not only is the interpretation to be placed on

Section 14 not res integra, it has engaged the

attention of courts, including this Court, on a large

number of occasions. A large number of decisions has

been cited before us. The appellants would contend that

in the facts of this case the provisions of Section

14(2) would apply whereas the branch of Lakshmiah Naidu

would invite us to uphold the view of the High Court

that Section 14(1) applies.

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

impact:

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The estate which R. Krishnammal had in the

properties including the plaint schedule

properties would become absolute. Then, the very

edifice of the claim made by the appellants who

were legatees under the Will conferred with

absolute rights on the death of R. Krishnammal

would collapse and they would have no right. If

on the other hand, Section 14(2) applies, then,

again on the basis that there is a will left behind

by Rangaswami Naidu which is otherwise valid and

genuine, the appellants could claim title as

remaindermen.

157. Before we consider the case law, it is necessary

to deal with the contention of the appellants that R.

Krishnammal did not set up a case under Section 14(1)

and that she claimed only under the will in OS No.71

of 1958 we need only refer to para 11 of OS No.71 of

1958. The same reads as under:

“11. The plaintiff however further states

that even on the very case set up by R.V.
Lakshmiah Naidu in the 145 proceedings
and the admission made by him, her rights
are even better and as a coparcener she
is entitled under the combined operation

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of Acts XVIII of 1937 and XXX of 1956 to

an absolute state in one half of the joint
properties and to demand partition and
possession of her share. Defendants 1 to
4 are entitled to the other half share.
The plaintiff is unable to specify
exactly all the properties in the
possession of the defendants 1 to 4 but
as far as she has been able to do so, she
has set them out in Schedule II. The
plaintiff craves leave to add to them as
and when she gets better particulrs. The
plaintiff also prays that the defendants
1 to 4 might be called upon to make a full
and true disclosure of the joint family
properties in their possession.”

It is clear that she expressly referred to the

Hindu Succession Act also.

158. Mst. Karmi v. Amru and Others55 is a judgment

which is rendered by three learned judges. It was a

case where a Will was executed revoking the earlier

will by which a Hindu bequeathed his entire estate on

his widow during her life, and thereafter, the same was

to devolve on his collaterals. The Will was dated

November 13, 1937. This Court held that the widow

having succeeded on the strength of the Will could not

claim any right over and above what was given to her

under the Will. It was held that the life estate could

55 (1972) 4 SCC 86
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not become absolute estate under the Hindu Succession

Act 1956.

159. V. Tulasamma v. Sesha Reddy56 is a Judgment

rendered by a Bench of three learned Judges. It was a

case where the husband of the appellant therein died

in a state of jointness with his brother in the year

1939. She obtained a Decree for maintenance. This was

followed by execution proceedings wherein an out of

court of settlement took place under which the

appellant was allotted scheduled properties which was

certified on 30th July, 1949. However, it was a limited

interest with no power of alienation. The suit out of

which an appeal arose was filed by the respondent

impugning an alienation made by the appellant. On these

facts, we notice the following principles have been

laid down:

“62. (1) The Hindu female's right to

maintenance is not an empty formality or
an illusory claim being conceded as a
matter of grace and generosity, but is a
tangible right against property which
flows from the spiritual relationship
between the husband and the wife and is
recognised and enjoined by pure Shastric

56 (1977) 3 SCC 99
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Hindu law and has been strongly stressed

even by the earlier Hindu jurists
starting from Yajnavalkya to Manu. Such a
right may not be a right to property but
it is a right against property and the
husband has a personal obligation to
maintain his wife and if he or the family
has property, the female has the legal
right to be maintained therefrom. If a
charge is created for the maintenance of
a female, the said right becomes a legally
enforceable one. At any rate, even
without a charge the claim for
maintenance is doubtless a pre-existing
right so that any transfer declaring or
recognising such a right does not confer
any new title but merely endorses or
confirms the pre-existing rights.

(2) Section 14(1) and the Explanation

thereto have been couched in the widest
possible terms and must be liberally
construed in favour of the females so as
to advance the object of the 1956 Act and
promote the socio-economic ends sought to
be achieved by this long-needed
legislation.

(3) Sub-section (2) of Section 14 is in

the nature of a proviso and has a field
of its own without interfering with the
operation of Section 14(1) materially.
The proviso should not be construed in a
manner so as to destroy the effect of the
main provision or the protection granted
by Section 14(1) or in a way so as to
become totally inconsistent with the main
provision.

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(4) Sub-section (2) of Section 14

applies to instruments, decrees, awards,
gifts, etc. which create independent and
new titles in favour of the females for
the first time and has no application
where the instrument concerned merely
seeks to confirm, endorse, declare or
recognise pre-existing rights. In such
cases a restricted estate in favour of a
female is legally permissible and Section
14(1) will not operate in this sphere.
Where, however, an instrument merely
declares or recognises a pre-existing
right, such as a claim to maintenance or
partition or share to which the female is
entitled, the sub-section has absolutely
no application and the female's limited
interest would automatically be enlarged
into an absolute one by force of Section
14(1) and the restrictions placed, if
any, under the document would have to be
ignored. Thus where a property is
allotted or transferred to a female in
lieu of maintenance or a share at
partition, the instrument is taken out of
the ambit of sub-section (2) and would be
governed by Section 14(1) despite any
restrictions placed on the powers of the
transferee.

(5) The use of express terms like

‘property acquired by a female Hindu at a
partition’, ‘or in lieu of maintenance’,
‘or arrears of maintenance’, etc. in the
Explanation to Section 14(1) clearly
makes sub-section (2) inapplicable to

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these categories which have been

expressly excepted from the operation of
sub-section (2).

(6) The words ‘possessed by’ used by

the legislature in Section 14(1) are of
the widest possible amplitude and include
the state of owning a property even though
the owner is not in actual or physical
possession of the same. Thus, where a
widow gets a share in the property under
a preliminary decree before or at the time
when the 1956 Act had been passed but had
not been given actual possession under a
final decree, the property would be
deemed to be possessed by her and by force
of Section 14(1) she would get absolute
interest in the property. It is equally
well settled that the possession of the
widow, however, must be under some
vestige of a claim, right or title,
because the section does not contemplate
the possession of any rank trespasser
without any right or title.

(7) That the words ‘restricted estate’

used in Section 14(2) are wider than
limited interest as indicated in Section
14(1) and they include not only limited
interest, but also any other kind of
limitation that may be placed on the
transferee.”

160. In Shakuntla Devi v. Kamla57, again, a Bench of

three learned Judges was dealing with a case where

57 (2005) 5 SCC 390

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Hindu wife was given a life interest for maintenance

by a Will. The Court followed the Judgment in

V. Tulsamma (supra) and took the view that it is Section

14(1) which would apply. The terms of the Will inter

alia provided that the property was not to be alienated

and it was meant for their maintenance. This is a case

where testator had three wives of which one had pre

deceased him. Under the Will after the death of the

second wife the life estate came to be vested with the

third wife. The Will provided that the wife was

provided with the property for her maintenance without

any power of alienation.

161. In Sadhu Singh v. Gurdwara Sahib Narike58, a

Bench of two learned Judges had the following facts

before it. The property in question was self-acquired

property. It became the subject matter of the Will by

a Hindu in favour of his wife on 07.10.1968. His widow

gifted the property to a Gurudwara. This became

subject matter of the litigation and the question arose

whether the matter fell under Section 14 (1) or 14(2).

This Court speaking though P.K. Balasubramaniam, J.

58 AIR 2006 SC 3282

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noted the provisions of the Hindu Adoption and

Maintenance Act and held that, in the absence of the

any instrument or Decree providing for it, no charge

for maintenance is created in the separate property of

the husband. The Court proceeded to notice the facts

in V. Tulsamma (supra) and found that it was a case

where the female Hindu possessed the property on the

date of the Act (Hindu Succession Act, 1956) in which

she had a pre-existing right which got transformed into

an absolute right. Thereafter, the Court proceeded to

hold as follows:

“7. Now, it is clear from the section

and implicit from the decisions of this
Court, that for Section 14(1) of the Act
to get attracted, the property must be
possessed by a female Hindu on the coming
into force of the Hindu Succession Act.
In Mayne on Hindu Law, 15th Edn., p.
1171, it is stated:
“On a reading of sub-section (1) with
Explanation, it is clear that wherever
the property was possessed by a female
Hindu as a limited estate, it would
become on and from the date of
commencement of the Act her absolute
property. However, if she acquires
property after the Act with a
restricted estate, sub-section (2)
applies. Such acquisition may be under
the terms of a gift, will or other
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instrument or a decree or order or

award.”

8. In Gummalapura Taggina Matada

Kotturuswami v. Setra Veeravva [1959
Supp (1) SCR 968 : AIR 1959 SC 577] this
Court quoted with approval (at SCR pp.
977-78) the following words of Justice
P.N. Mookherjee, in Gostha Behari
Bera v. Haridas Samanta [AIR 1957 Cal 557
: 6 CWN 325] (AIR at p. 559, para 12):

“The opening words ‘any property

possessed by a female Hindu’ obviously
mean that, to come within the purview of
the section, the property must be in
possession of the female concerned at the
date of commencement of the Act. They
clearly contemplate the female's
possession when the Act came into force.
That possession might have been either
actual or constructive or in any form,
recognised by law, but, unless the female
Hindu, whose limited estate in the
disputed property is claimed to have been
transformed into absolute estate under
this particular section, was at least in
such possession, taking the word
‘possession’ in its widest connotation,
when the Act came into force, the section
would not apply.”
and added: (SCR p. 978)
“In our opinion, the view expressed
above is the correct view as to how the
words ‘any property possessed by a
female Hindu’ should be interpreted.”

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9. In Eramma v. Verrupanna [(1966) 2 SCR

626 : AIR 1966 SC 1879] this Court emphasised
that the property possessed by a female
Hindu as contemplated in the section is
clearly the property to which she has
acquired some kind of title whether before
or after the commencement of the Act and
negatived a claim under Section 14(1) of the
Act in view of the fact that the female Hindu
possessed the property on the date of the
Act by way of a trespass after she had
validly gifted away the property. The need
for possession with a semblance of right as
on the date of the coming into force of the
Hindu Succession Act was thus emphasised.”

162. Still further, the Court proceeds to hold that

V. Tulsamma (supra) is applicable when a female Hindu

possesses the property on the date of the Act under

semblance of a right whether it is limited or pre-

existing act. It further held that it cannot be applied

ignoring the requirement of the female Hindu having to

be in possession of property directly or constructively

as on the date of the Act though she may acquire a

right to it even after the Act. It relied on judgment

of this Court in Bhura and others v. Kashi Ram59, which

was a case where the father had bequeathed the property

59(1994) 2 SCC 111

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under the Will and it is held that it is 14 (2) which

will apply. Lastly, the Court also relied on Sharad

Subramanyan v. Soumi Mazumdar and others60. It is

finally also necessary to notice paragraphs-11, 12,

13 and 14 of the judgment in Sadhu Singh v. Gurdwara

Sahib Narike and others61:

“11. … What emerges according to us is

that any acquisition of possession of
property (not right) by a female Hindu
after the coming into force of the Act,
cannot normally attract Section 14(1) of
the Act. It would depend on the nature of
the right acquired by her. If she takes it
as an heir under the Act, she takes it
absolutely. If while getting possession of
the property after the Act, under a devise,
gift or other transaction, any restriction
is placed on her right, the restriction
will have play in view of Section 14(2) of
the Act.

12. When a male Hindu dies possessed of

property after the coming into force of the
Hindu Succession Act, his heirs as per the
Schedule, take it in terms of Section 8 of
the Act. The heir or heirs take it
absolutely. There is no question of any
limited estate descending to the heir or
heirs. Therefore, when a male Hindu dies
after 17-6-1956 leaving his widow as his
sole heir, she gets the property as Class

60(2006) 8 SCC 91
61(2006) 8 SCC 75
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I heir and there is no limit to her estate

or limitation on her title. In such
circumstances, Section 14(1) of the Act
would not apply on succession after the
Act, or it has no scope for operation. Or,
in other words, even without calling in aid
Section 14(1) of the Act, she gets an
absolute estate.

13. An owner of property has normally the

right to deal with that property including
the right to devise or bequeath the
property. He could thus dispose it of by a
testament. Section 30 of the Act, not only
does not curtail or affect this right, it
actually reaffirms that right. Thus, a
Hindu male could testamentarily dispose of
his property. When he does that, a
succession under the Act stands excluded
and the property passes to the testamentary
heirs. Hence, when a male Hindu executes a
will bequeathing the properties, the
legatees take it subject to the terms of
the will unless of course, any stipulation
therein is found invalid. Therefore, there
is nothing in the Act which affects the
right of a male Hindu to dispose of his
property by providing only a life estate or
limited estate for his widow. The Act does
not stand in the way of his separate
properties being dealt with by him as he
deems fit. His will hence could not be
challenged as being hit by the Act.

14. When he thus validly disposes of his

property by providing for a limited estate
to his heir, the wife, the wife or widow
has to take it as the estate falls. This

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restriction on her right so provided, is

really respected by the Act. It provides in
Section 14(2) of the Act, that in such a
case, the widow is bound by the limitation
on her right and she cannot claim any higher
right by invoking Section 14(1) of the Act.
In other words, conferment of a limited
estate which is otherwise valid in law is
reinforced by this Act by the introduction
of Section 14(2) of the Act and excluding
the operation of Section 14(1) of the Act,
even if that provision is held to be
attracted in the case of a succession under
the Act. Invocation of Section 14(1) of the
Act in the case of a testamentary
disposition taking effect after the Act,
would make Sections 30 and 14(2) redundant
or otiose. It will also make redundant, the
expression “property possessed by a female
Hindu” occurring in Section 14(1) of the
Act. An interpretation that leads to such
a result cannot certainly be accepted.
Surely, there is nothing in the Act
compelling such an interpretation. Sections
14 and 30 both have play. Section 14(1)
applies in a case where the female had
received the property prior to the Act
being entitled to it as a matter of right,
even if the right be to a limited estate
under the Mitakshara law or the right to
maintenance.”

163. This Judgment came to be followed in Jagan Singh

(Dead) Through Lrs. v. Dhanwanti and another62 by a

62 (2012) 2 SCC 628

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Bench of two learned Judges. It was a case where the

testator executed a registered Will in respect of Plot

X with the restriction that the Legatee would not have

the right to transfer the property. The matter arose

out of a suit for injunction restraining alienation of

Property X. This Court purported to follow the judgment

rendered by a Bench of three learned Judges in Navneet

Lal alias Rangi v. Gokul and others63. We have perused

the Judgment in Navneet Lal alias Rangi (supra). We

notice that the question which arose for consideration

was whether the Will bestowed an absolute estate or

limited estate on a widow. The Court, on a construction

of the Will, found that it only created a limited

interest on the widow. It is noteworthy that the Court

was not dealing with the question whether the limited

estate would blossom into Section 14(1). In Sharad

Subramanyan v. Soumi Mazumdar and others64, the Court

found that there was no material to indicate that the

property was given to a Hindu female in lieu of her

right to maintenance. It is a case where it is found

63 (1976) 1 SCC 630

64 (2006) 8 SCC 91
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that the wife was living with her husband, and till the

Will was probated, she was enjoying the property as her

own. Jupudy Pardha Sarathy v. Pentapati Rama Krishna65

is a Judgment rendered by two learned judges. It was

a case where a Hindu executed a Will in favour of his

wife which she was to enjoy but after her death one of

her sons was to have the property with absolute right.

The question arose again whether the case attracted

Section 14(1) or 14(2). The Court noticed

Mst. Karmi (supra), V. Tulasamma (supra), Sadhu Singh

(supra) and Sharad Subramnayan (supra) apart from

Shivdev Kaur (Dead) by Lrs. (supra). Thereafter, the

Court referred to R.B.S.S. Munnalal and others v. S.S.

Rajkumar and others66 among other decisions and

distinguished Sadhu Singh noting that therein the court

proceeded on the basis that women had no pre-existing

right in the property and therefore the life estate

could not be enlarged to absolute under Section 14(1).

We further notice that it was found that it was not

disputed that the widow was enjoying the property by

65 (2016) 2 SCC 56
66 AIR 1962 SC 1493
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way of maintenance. The Court, therefore,

distinguished Judgment of G. Rama Rao.

164. In Gumpha (Smt.) and others v. Jai Bai67, a Bench

of two learned Judges was dealing with a case where a

Will was executed in the year 1941 by a Hindu giving

one-half share to each of his wives for their life and

the only daughter was to be the ultimate beneficiary.

There was a further Will executed by one of the wives

in favour of a complete stranger to the family, viz.,

her domestic servant. The alienation was challenged and

the question arose whether the right fell under Section

14(1) or 14(2) of the Hindu Succession Act. The Court

undertook an elaborate discussion and came to the

conclusion that it was a case which fell under Section

14(2) of Hindu Succession Act. The Court, in fact, took

the view that the Legislature did not intend to confer

a higher right on a Hindu woman as against a man. This

Judgment came to be considered in a later Judgment by

a Bench consisting of three learned Judges, i.e., in

C. Masilamani Mudaliar and others v. Idol of Sri

67 (1994) 2 SCC 511

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Swaminathaswami Swaminathaswami Thirukoil and others68.

This case also involved a Will in favour of the widow

of one Somasundaram Pillai. The statements in the Will

indicated Testator entertained in his mind his duty to

provide maintenance to his wife. The Court undertook a

review of the earlier case law. It proceeded to find

that the view taken in Gumpha (Smt.) (supra) was a

restrictive interpretation which did not appear to be

sound in law.

165. In Gulwant Kaur and another v. Mohinder Singh

and others69, a Bench of two learned Judges referred to

the elaborate correspondence between the husband and

his wife and found that the case attracted Section

14(1) of the Hindu Succession Act. It was found from

perusal of the letter from the husband to his wife that

the land was given in lieu of her maintenance. The

Court, in fact, expressed its inability to understand

the distinction between the day-to-day expenses and

maintenance. The Court distinguished Eramma v.

Veerupana70. Further, the Court dealt with the argument

68 AIR 1996 SC 1697/(1996) 8 SCC 525

69 AIR 1987 SC 2251
70 AIR 1966 SC 1879
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that the decision of this Court in Bai Vajia (Dead) by

Lrs. v. Thakorbhai Chelabhai and others71 must be

understood as laying down that what was enlarged under

Section 14(1) of the Hindu Succession Act was a womans

estate under Hindu law. We notice pararagraph-8A of

Gulwant Kaur (supra), which reads as follows:

“8A. Shri Tarkunde particularly

relied on the following passage in Bai
Vajia v. Thakorbhai case [(1979) 3 SCC 300:
AIR 1979 SC 993 :

“A plain reading of sub-section (1)

makes it clear that the concerned Hindu
female must have limited ownership in
property, which limited ownership
would get enlarged by the operation of
that sub-section. If it was intended
to enlarge any sort of a right which
could in no sense be described as
ownership, the expression ‘and not as
a limited owner’ would not have been
used at all and becomes redundant,
which is against the well recognised
principle of interpretation of
statutes that the legislature does not
employ meaningless language.”

We do not understand the court as

laying down that what was enlarged by sub-
section (1) of Section 14 into a full estate
was the Hindu woman's estate known to Hindu
law. When the court uses the word “limited
estate”, the words are used to connote a
right in the property to which the
possession of the female Hindu may be

71 AIR 1979 SC 993

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legitimately traced, but which is not a

full right of ownership. If a female Hindu
is put in possession of property pursuant
to or in recognition of a right to
maintenance, it cannot be denied that she
has acquired a limited right or interest in
the property and once that position is
accepted, it follows that the right gets
enlarged to full ownership under Section
14(1) of the Act. That seems to us to follow
clearly from the language of Section 14(1)
of the Act. “
(Emphasis supplied)

166. Appellants cannot derive support from the

judgment reported in Gaddam Ramakrishnareddy and Others

v. Gaddam Ramireddy and Another72. Therein, a gift deed

was executed on 21.12.1952 creating a life estate and

which no doubt was prior to the Hindu Succession Act.

It was held that the right did not blossom into an

absolute estate under Section 14(1). It is necessary

to notice that the decision turned essentially on the

consideration of the terms of gift deed and what is

more important is the following finding:

“28. The aforesaid provision has been

considered by both the courts below which
have concurrently held that the life
estate created by Pullareddy in favour of

72 2010(9) SCC 602

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Sheshamma was not in lieu of her

maintenance as she was already managing
the properties in question and in no
uncertain terms it was the donee's desire
that the said properties should
ultimately go to his son Ramireddy,
Respondent 1 herein. Once that is
established, apart from other surrounding
circumstances, the immediate fallout is
that Sheshamma's rights in the properties
came to be governed by sub-section (2) of
Section 14 of the Hindu Succession Act,
1956, and her right does not blossom into
an absolute estate as contemplated under
sub-section (1).”

167. We have already adverted to the terms of the

Will. It is recited in the Will that the properties

mentioned in ‘A Schedule’ are bequeathed to his wife,

no doubt, for her life. This is a case where the Will

itself specifically recites that she is to take income

from the properties for her expenses, inter alia. She

is to make use of the income also for giving presents

to his sisters on ceremonial occasions. Therefore, this

is a case where the very document, which the appellants

lays store by, makes it unnecessary for us to search

for any evidence to find out what is the purpose of

giving the property. The Testator has made his motive

clear. The argument of the appellants that the very

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same document refers to the fact that she has been

given other properties towards her maintenance, does

not, in our view, detract from the central question as

to what impelled the Testator to create the life

estate. The Will was executed on 10.05.1955 which is

prior to the Hindu Succession Act unlike in the case

of Sadhu Singh (supra). Obviously, such a Will could

not have been executed anticipating the provisions of

Section 14(2) of the Hindu Succession Act. R.

Krishnammal was certainly entitled to maintenance and

the bequest in question expressly refer to the

purposes. The properties involved were not bequeathed

to R. Krishnammal without her having any right at all.

The Will did not purport to bequeath property by way

of creating new rights in the facts of this case. Even

the case of the appellants is that she was provided for

maintenance by giving her other properties as indicated

in the Will. If the argument of the appellants is to

be accepted, we would have to consider whether what

would be the quantum of maintenance which the Testator

would consider appropriate. The extent of the other

property is not shown. We would think that such an

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exercise is unnecessary when the terms of the Will

indicate that the Testator intended that his widow

should be able to maintain herself appropriately from

the income of the properties he was bequeathing to her

also, and for that purpose, created, no doubt what can

be described as, a limited estate.

168. In this regard, we may also notice that the

following observations in C.Masilamani Mudaliar v. Idol

of Sri Swaminathaswami73:

“30. Shri Rangam then contended that when

the testator has thought of providing
only maintenance to the two widows, the
properties being more than 10 acres, the
maintenance must be only proportionate to
the needs of the widow and to that extent
the widow acquires an absolute right but
not the entire property. We find no force
in that contention. It is to be seen that
under the pre-existing law, she is
entitled to remain in possession of the
whole estate known as widow's estate and
after the Act has come into force that
widow's estate was blossomed into an
absolute estate by operation of Section
14(1). Even in the Will Ex. A-1, no such
restrictive covenant was engrafted giving
reasonable proportion of income
consistent with her needs for
maintenance. On the other hand, the
73
AIR 1996 SC 1697

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express covenant is that, he recognised

her right to maintenance and in lieu of
the maintenance property was given to her
for her maintenance during her lifetime.
That is the pre-existing right as per then
existing law. After the Act has come into
force, the limited estate has blossomed
into an absolute estate. Therefore, the
doctrine of proportionality of
maintenance is not applicable and cannot
be extended.”

169. In such circumstances, we would think that the

view taken by the High Court that Section 14(1) of the

Hindu Succession Act applies, cannot be characterised

as erroneous.

‘POSSESSED’ OF IN SECTION 14(1) OF HINDU SUCCESSION

ACT, THE PLEADING AS TO POSSESSION OF THE PLAINT
SCHEDULE PROPERTY IN O.S. NO. 89/83 AND O.S. NO. 71/58
AND ITS IMPACT.

170. In O.S. No. 89 of 1983, there is reference to

the death of Krishnammal on 30.04.1977 and that

thereupon the plaintiff and defendants 1 to 3 have

become entitled to possession. We further notice

paragraph 5 wherein it is stated that the plaintiff and

Defendants 1 to 3 (branch of Lakshmiah Naidu) were in

possession of the properties and enjoyment thereof

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jointly. However, we further notice that in paragraph

21, it is alleged that the defendants 4 to 11 (branch

of Lakshmiah Naidu) are in possession without any title

whatsoever, and that their possession is wrongful.

171. If we revert backwards in point of time, we

notice the following pleadings in O.S. No. 1971 of

1958, the suit filed by R. Krishnammal, the widow. She

would say that the properties described in Schedule-I,

fell to the share of her husband in the partition and

he has separate possession. The properties which were

self-acquired by him were in Schedule-IA. Thereafter,

she referred to the proceedings under Section 145. In

paragraph-10, R.Krishnammal averred that the

possession of the defendants in Schedule-I and IA is

unlawful and that she is entitled to 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 proceedings under Section 145. In

paragraph 17, it is averred inter alia that the cause

of action arose on or about June, 1955, when defendants

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1 to 4 unlawfully trespassed on the properties and on

16.04.1956, when Revenue Divisional Officer,

Coimbatore upheld the possession of R.V. Lakshmiah

Naidu and his sons. In the application under Order

XXIII Rule 3 filed in O.S. No. 71 of 1958, it is inter

alia stated as follows:-

“Whereas on the death of Rangaswami Naidu

on 01.06.1955, the executor could not
take possession of the properties……..”

172. In Gummalapura Taggina Matada Kotturuswami v.

Setra Veeravva and others74, a Bench of three learned

Judges, interpreting the word ‘possessed’, laid down

as follows:

“11. … Of course, possession referred to

in Section 14 need not be actual physical
possession or personal occupation of the
property by the Hindu female but may be
possession in law. The possession of a
licensee, lessee or a mortgagee from the
female owner or the possession of a
guardian or a trustee or an agent of the
female owner would be her possession for
the purpose of Section 14. The word
“possessed” is used in Section 14 in a broad
sense and in the context possession means
the state of owning or having in one's hands
or power. It includes possession by receipt
of rents and profits”. The learned Judges

74 AIR 1959 SC 577

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expressed the view that even if a

trespasser were in possession of the land
belonging to a female owner, it might
conceivably be regarded as being in
possession of the female owner, provided
the trespasser had not perfected his title.
We do not think that it is necessary in the
present case to go to the extent to which
the learned Judges went. It is sufficient
to say that “possessed” in Section 14 is
used in a broad sense and in the context
means the state of owning or having in one's
hand or power. In the case of Gostha
Behari v. Haridas Samanta [AIR 1957 Cal
557, 559] P.N. Mookherjee, J. expressed his
opinion as to the meaning of the words “any
property possessed by a female Hindu” in
the following words:

“The opening words in “property

possessed by a female Hindu” obviously
mean that to come within the purview
of the section the property must be in
possession of the female concerned at
the date of the commencement of the
Act. They clearly contemplate the
female's possession when the Act came
into force. That possession might have
been either actual or constructive or
in any form recognized by law, but
unless the female Hindu, whose limited
estate in the disputed property is
claimed to have been transformed into
absolute estate under this particular
section, was at least in such
possession, taking the word —
possession” in its widest connotation,

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when the Act came into force, the

section would not apply.”

In our opinion, the view expressed above

is the correct view as to how the words
“any property possessed by a female Hindu”
should be interpreted. …”
(Emphasis supplied)

173. In Eramma (supra), this Court has made it clear

that Section 14(1) of the Hindu Succession Act does not

confer title on a mere trespasser. It does not confer

any right on a person possessing property without any

vestige of title. We have made these remarks in the

context of the following set of circumstances:

Following the death of her husband on 01.06.1955,

there are two streams providing right to make a claim

over the property in favour of R. Krishnammal, when

the Hindu Succession Act came into force. Under the

Will, she was conferred with a life estate. If the

Will is treated as non-existent or invalid, then,

again there can be two situations. Her case would

fall to be covered either under Section 3(1) or 3(2)

of the Hindu Women’s Right to Property Act, 1937

depending on whether the property was separate

property of V. Rangaswami Naidu or an interest in the

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Joint Hindu Family Property. She was also having a

right to be maintained. Therefore, in the facts of

this case in view of the finding that the properties

bequeathed under the Will and which are the plaint

scheduled properties are not the separate properties

of Rangaswamy Naidu, She would have the right to the

properties under Section 3(2) of the 1937 Act. This

we observe for the reason that when the Hindu

Succession Act came into force, R. Krishnammal had

lost her tussle under the proceedings under Section

145 of the CrPC. We have also seen 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 the property. No doubt, she does aver

that she is entitled to treat herself as in joint

possession. We may however notice the decision in

Kotturuswami case (supra), in fact, came to be

considered by another three Judge Bench of this Court

in Mangal Singh and Others v. Smt. Rattno (Dead) by

her legal representatives and another reported in

AIR 1967 SC 1786. Therein, this Court held as

follows:-

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“It was urged on behalf of the appellants

that, in order to attract the provisions of
S.14(1) of the Act, it must be shown that the
female Hindu was either in actual physical
possession, or constructive possession of the
disputed property. On the other side, it was
urged that even if a female Hindu be, in fact,
out of actual possession, the property must
be held to be possessed by her, if her
ownership rights in that property still exist
and, in exercise of those ownership rights,
she is capable of obtaining actual possession
of it. It appears to us that, on the language
used in S.14(1) of the Act, the latter
interpretation must be accepted.”

Noticing Section 14 (1) of the Act and that it

covered property possessed by a female Hindu whether

acquired before or after the commencement of the Act

the Court proceeded to explain the circumstances in

which the decision in Kotturuswami case (supra) was

rendered. And thereafter the Court laid down as

follows:

“…The Court was not laying down any general

principle that S.14(1) will not be
attracted at all to cases where the female
Hindu was not possessed of the property at
the date of the commencement of the Act.
In fact, there are no words used in S.14(1)
which would lead to the interpretation that
the property must be possessed by the
female Hindu at the date of the
commencement of the Act. It appears to us
that the relevant date on which the female
Hindu should be possessed of the property

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in dispute, must be the date on which the

question of applying the provisions of
S.14(1) arises. If, on that date, when the
provisions of this Section are sought to be
applied, the property is possessed by a
female Hindu, it would be held that she is
full owner of it and not merely a limited
owner. Such a question may arise in her
own lifetime, or may arise subsequently
when succession to her property opens on
her death. The case before us falls in the
second category, because Smt. Harnam Kaur
was a limited owner of the property before
the commencement of the Act, and the
question that has arisen is whether Smt.
Rattno was entitled to succeed to her
rights in this disputed property on her
death which took place in the year 1958
after the commencement of the Act….”

In fact, we notice that this decision was not referred

to by the two Judge Bench which rendered the decision

in Sadhu Singh (supra). However, we find that it has

been adverted to in AIR 1996 SC 172 (see para 14) and

a very recent judgment of this Court in Shyam Narayan

Sigh and Ors. vs. Rama Kant Singh and Ors. reported in

2018(1) RCR (Civil)981 rendered again by a Bench of two

learned Judges. Therein, this Court held inter alia

as follows:

“In other words, all that has to be shown

by her is that she had acquired the property
and that she was ‘possessed’ of the

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property at the point of time when her title

was called into question”.

In view of the dicta in Mangal Singh (supra), we

feel reassured of our view that Section 14(1) applies.

174. Incidentally, we may notice what DW1, the

witness on behalf of the appellants-legatees himself

says:

“..When Cr.PC 145 proceedings was

conducted the properties were handed over
to Latchumaiah and his sons by the
receiver. From that onwards the
properties are under their possession
till today. 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 by A. Alagiriswami, who is the First Defendant

in both the Suits. The case, which is sought to be set-

up is that, there was a partition among the Legatees

of the plaint schedule properties and the properties

purchased by them, was among the properties allotted

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to the First Defendant. Their entire case is based on

A. Alagiriswami having rights in the property. We have

already come to the conclusion that A. Alagiriswami has

no rights, for the reasons which we have given. The

arguments based on the compromise Decree in O.S. No.

71 of 1958, barring the Lakshmiah branch from

questioning the partition or the Will, cannot be

upheld. Insofar as we have held that R. Krishnammal had

become the absolute owner under Section 14(1) of the

Hindu Succession Act, and having regard to the

compromise Decree in O.S. No. 71 of 1958 by which she

had given-up all her rights in favour of the

respondents, no right vested with A. Alagiriswami which

he could have passed to the appellants. The plaintiffs

in O.S. No. 649 of 1985, having sought a declaration

of their right, and which they were entitled to. The

contention that there was no challenge to the sale

deeds, may not advance the case of the appellants. We

have noticed what DW1, A. Alagiriswami, one of the

Legatees has deposed regarding possession. In fact, as

already noted, the appellants did not challenge the

Decree of the Trial Court and they were apparently

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sailing along with the appellants who were the Legatees

under the Will. We see, therefore, no merit in their

case.

176. In regard to the other Appeals, we do not find

any merit in view of our findings and the issues which

fell for consideration. There is no merit in any of

the appeals. Consequently, all the appeals will stand

dismissed. There will be no order as to costs.

…………………………………………………J.
[SANJAY KISHAN KAUL]

…………………………………………………J.
[K.M. JOSEPH]
NEW DELHI
DATED; JULY 17, 2020.

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