Potti Lakshmi Perumallu Vs. Potti
Krishnavenamma  INSC 172 (13 August 1964)
13/08/1964 MUDHOLKAR, J.R.
AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 825 1965 SCR (1) 26
RF 1967 SC 272 (4,7) RF 1977 SC2069 (6)
Hindu Women's Rights to Property Act, 1937
(Act 18 of 1937)Husband member of joint family-Will by husband-Whether amounts
to separation-Whether could be construed as family arrangement-Widow's
interest-Determination-Whether as on the date of seeking partition or as on the
date of death of husband.
The respondent, widow of S, the brother of
the appellant, filed a suit claiming half share in the entire property by
virtue of the provisions of the Hindu Women's Right to Property Act. After the
death of S, his only son by his first wife died at the age of 11 years. The
respondent admitted that S had purported to execute a will before his death but
contended that it was inoperative because he was a member of a Hindu joint
family at the time of his death.
The courts below found that the suit
properties were the joint family properties of S and the appellant, that the
will executed by S was inoperative and not binding on the respondent and that
she was entitled to half share in the suit properties. On appeal by special
leave, the appellant contended that (1) the will executed by S itself resulted
in a severance in the status of the two brothers constituting the joint family
and that in any event separation ensued between them at the death of S; (2) at
any rate the will should be construed to be a family arrangement made by the
Karta of the family and assented to by the respondent and by the father and the
foster-father of the respondent on her behalf, and (3) assuming that neither of
the two contentions were correct, the interest to which the respondent would be
entitled would be 1/4th share in the property and not half share therein, this
interest having to be ascertained as on the date of the death of S.
HELD : that the High Court rightly negatived
all these contentions.
(i) Nowhere in the will had S stated that be
wanted to put an end to the coparcenary. Indeed, the very assertion
therein-though it has been concurrently found to be untruethat the property was
not joint family property would preclude an inference that S intended to
express an intention to separate and put an end to a coparcenary which,
according to that assertion, in fact did not exist, [30G31A] A. Raghavamnma v.
A. Chenchamnma,  2 S.C.R. 933 referred to.
(ii)A family arrangement which is for the
benefit of the family generally can be enforced in a court of law. But before
the court would do so, it must be shown that there was an occasion for entering
into a family arrangement and it was acted upon. [31A-B] (iii)According to the
theory underlying the Hindu law the widow of a deceased Hindu is his surviving
half and therefore as long as she is alive he must be deemed to continue to
exist in her person. This surviving half had, under the Hindu law texts, no
right to claim a partition of the property of the family to which her husband
But the Act of 1937 has conferred that right
upon her. When the Act says that she will have the same right as her husband
had, it clearly means that she would be entitled to be allotted the same share
as her husband 27 would have been entitled to had he lived on the date on which
she claimed partition. The interest devolving upon the widow need not
necessarily be either by survivorship or by inheritance but could also be in a third
way i.e., by statute and where the interest is taken by her under a statute it
would be of a kind provided by the statute itself. [34B-D; 37B] Case law
Jadaobai v. Puranmal, I.L.R.  Nag. 832,
and Natarajan Chettiar v. Perumal Ammal, A.I.R. 1943 Mad. 246, disapproved.
Siveshwar Prasad v. Lala Har Narain, I.L.R.
(1944) 23 Pat.
760 and Rajendrabati v. Mungalal, I.L.R.
(1952) 31 Pat. 477, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 519 of 1961.
Appeal by special leave from the judgment and
decree dated December 11, 1958, of the Andhra Pradesh High Court in Appeal Suit
S. T. Desai and T. V. R. Tatachari, for the
G. Venkatarama Sastri and R. Gopalakrishnan,
for the respondent.
The Judgment of the Court was delivered by
Mudholkar J. This is an appeal by special leave from the judgment of the High
Court of Andhra Pradesh affirming the decrees for partition and separate
possession of certain movable and immovable properties, passed by the second
Additional Subordinate Judge, Vijayawada.
The genealogical table showing the
relationship between the parties set out below will be of assistance in
appreciating the facts of the case Potti Subba Rao (died in 1919)
-----------------------------------------------------------: : : : :
First wife Sitaraimaiah Second wife Lakshmi
Krishnamruti : (died on (Plaintiff) Perumallu (died in 1930) : (defendant) :
10.8.1938) Krishnavena: mma Pulla Pao died in 1939 Potti Subba Rao who died in
the year 1919 was survived by three sons Sitaramaiah, Lakshmi Perumallu and
Sitaramaiah was married twice. From the first
wife he had a son named Pulla Rao. After the death of the first wife he married
Krishnavenamma, the plaintiff in the suit.
Sitaramaiah died on August 10, 1938. No issue
was born to Krishnavenamma who was only 14 years of age at the time of
Sitaramaiah's death. Pulla 28 Rao died in the year 1939 at the age of 11 years.
Krishnamurti died in the year 1930 i.e.,
before Sitaramaiah, without leaving any issue or a widow. The plaintiff
continued to stay in the same house as the defendant till the beginning of
July, 1950. Then she suddenly left the house and instituted the suit in
question on the 6th of that month. According to her Sitaramaiah and his two
brothers, defendant and Krishnamurti, acquired large movable and immovable
property at Vijayawada, described in the schedule to the plaint, with the aid
of their ancestral business.
She claimed half Share in the entire property
set out in the schedules, by virtue of the provisions of the Hindu Women's
Rights to Property Act, 1937. She admitted that her husband had purported to
execute a will before his death but contended that it was inoperative because
he was a member of a Hindu joint family at the time of his death.
The defendant contested the claim on various
According to him there was no ancestral
property and the suit properties were acquired by the brothers by their
individual efforts and treated as self-acquisition. Further according to him
the will executed by Sitaramaiah is valid and binding on the plaintiff and that
the property allotted to the plaintiff under the will was being enjoyed by the
plaintiff and further the properties allotted to Pulla Rao devolved upon him
after Pulla Rao's death. Lastly, according to him even if the property were
held to be joint family property of Sitaramaiah and the defendant the plaintiff
would be entitled only to 1/4th share in them and not half share.
The courts below have found that. the suit properties
were the joint family properties of Sitaramaiah and the defendant, that they
will executed by Sitaramaiah was inoperative and not binding on the plaintiff
and that the plaintiff is entitled to half share in the Suit properties.
'the trial court gave direction to the effect
that a commissioner be appointed for ascertaining the property liable to be
partitioned and for dividing them into two equal shares by metes and bounds for
the purpose of awarding to the plaintiff the separate possession of her half
share in the properties.
Mr. S. T. Desai who appears for the
defendant-appellant has not challenged the concurrent findings of the courts
below to the effect that the properties acquired by the family were joint
family properties. He, however, urged the following three contentions before us
(1) The will executed by Sitaramaiah on
August 3, 1938 itself resulted in severance in the status of the two brothers
constituting the joint family and that in any 29 event separation ensued
between them at the death of Sitaramaiah;
(2) that at any rate the will should be
construed to be a family arrangement made by the karta of the family and
assented to by the defendant and by the father and the fosterfather of the
plaintiff on her behalf;
(3) assuming that neither of the two
contentions is correct, the interest to which the plaintiff would be entitled
would be 1/4th share in the property and not half share therein. This interest
has to be ascertained as on the date of the death of Sitaramaiah.
All these contentions were also urged before
the High Court but were negatived by it and in our opinion, rightly. Mr.
Desai has, however, placed reliance upon a
recent decision of this Court in A. Raghavamma & anr. v. A. Chenchamma
& anr. (1) in support of the contention that the will itself effected a
severance in status. What was held in that case was that a member of a joint
Hindu family can bring about a separation in status by a definite and
unequivocal declaration of his intention to separate himself from the family
and enjoy his share in severalty by expressing such an intention even in a
will. It was further held that the knowledge of the expression of intention to
separate has to be brought home to the persons affected by it and if that is
done it relates back to the date when the intention was formed and expressed. A
perusal of the will, Ex. B-1, does not however unmistakably show that the
intention of Sitaramaiah was to separate himself from the joint family.
At the outset he has stated : "I have
executed this will regarding the arrangements to take effect after my life-time
with regard to the enjoyment of the joint immovable and movable properties
which are possessed by me and under my management by my brother and
others." In the second paragraph he has stated that he had no ancestral
property at all and that the business carried' on by himself and his brother
was established by them. In the third paragraph he directed that the plaintiff
shall maintain his son Pulla Rao and that his brother would took after the
interests of Pulla Rao. The 4th 5th and the 8th paragraphs on which reliance is
placed by Mr. Desai run thus :
"4. If for any reason the said
Krishnaveni does not agree to be like that my younger brother Lakshmi Perumallu
shall deliver possession of the upstair house constructed newly on the house
site purchased from Nadakurthi (1) 2 S.C.R. 933.
p./64 3 30 Kristamma and others and the tiled
room situate in the big street and purchased from Gunda Subbarayudu out of the
immovable property possessed by me in Bezwada town on condition of including
them in the half share of the property that shall pass to my -,on after my
5. The said Krishnaveni shall be at liberty
to take passion of the two properties mentioned in paragraph 4 above, to pay all
kinds of taxes payable thereon and to enjoy freely throughout her life-time
only the income got every year from the said two properties without powers of
gift, mortgage, exchange and sale by following the age-old custom and by
maintaining the family respect and custom and the said two properties shall
pass to,my son Pulla Rao alias Venkatasatyanarayana after tier life-time.
8. My younger brother Lakshmi Perumallu shall
keep the remaining entire property joint till my son Pulla Rao alias
Venkatasatyanarayana attains majority and manage the same, shall bring up the
boy properly, celebrate the marriage and other auspicious functions and divide
the half share of the property after he attains majority and deliver possession
of the same to my son." It seems to us difficult to infer from the
recitals in these paragraphs that Sitaramaiah had expressed his unequivocal
intention to get separated in status. No doubt, in the 4th paragraph he has
that in certain circumstances certain property will be included in the half
share of the property that would pass to his son after his death and he has
also said in paragraph 5 that the plaintiff shall be at liberty to take
possession of the two properties indicated in paragraph 4, enjoy them during
her life time and that on her death they will pass to Pulla Rao. But in
paragraph 6 he has referred to the remaining property -is "joint
property" and has repeated that in paragraph 7. Again, what he has said in
paragraph 8 militates wholly against the inference of separation in status.
There he has enjoined upon the defendant to keep the remaining property joint
till Pulla Rao attained majority, manage the same and divide that property
between himself and Pulla Rao after the latter attained majority. Nowhere in
the will has he stated that he wanted to put an end to the coparcenary. Indeed,
the very assertion which has been concurrently found to be untrue that the
property was not joint family property would preclude an inference that
Sitaramaiah intended to express his intention to separate in status and put an
,end to a coparcenary which, according to that assertion, in fact did 31 not
exist. In the circumstances we cannot accept the first contention of Mr. Desai.
No doubt, a family arrangement which is for
the benefit of the family generally can be enforced in a court of law. But
before the court would do so, it must be shown that there was an occasion for
effecting a family arrangement and that it was acted upon. It is quite clear
that there is complete absence of evidence to show that there was such an
occasion or the arrangement indicated in the will was acted upon.
The letter Ex. B12 upon which reliance was
placed before the High Court on behalf of the defendant has not been found by
it to be genuine. The defendant had also pleaded that the provisions under the
will were given effect to but no satisfactory evidence has been adduced to
prove that the plaintiff was in enjoyment of the properties allotted to her
under the will. We cannot, therefore, accept the second contention of Mr.
Coming to the list question there is a
certain amount of conflict in the decisions of the various High Courts. One
view is that the quantum of interest to which a Hindu widow is entitled under
s. 3(2) of the Hindu Women's Rights to Property Act, 1937, is to be determined
as on the date on which she seeks to enforce partition under sub-s. (3) of s. 3.
The other view is that it has to be determined as on the date on which her
husband died, that is to say, that it is not a fluctuating interest increasing
or decreasing as a result of deaths or births in the family.
The first mentioned view has been stated with
approval in Mulla's Principles of Hindu Law, (12 ed.) and it is stated at pp.
"The share which devolves on a widow of
a deceased coparcener is not a fixed and determinate share but what she takes
is the 'same interest as he himself had'. Therefore, until there is partition.
she cannot predicate the particular fraction of her share for it is likely to
increase or decrease by birth or death of other coparceners. Her share would
include a share in accretions to the joint family property till partition is
Prior to the Act, a widow was entitled to a
share in partition among her sons in her capacity as a mother (except in Madras).
It has been held in a number of cases that after the Act the widow cannot claim
a double share on partition between the sons, one in her capacity as a widow
and another as a mother.
Under the prior law, stridhan acquired by a
female from her husband or father-in-law was taken 32 into account when a share
was allotted to her on partition amongst the sons. The share she gets under
section 3 (2) is not affected by any rule of Hindu law to the contrary and it
has been held in a Nagpur case that such stridhan received by her would not be
deducted from her share on partition." In support of this statement in law
reliance has been placed upon the following decisions :
Nagappa v. Mukambe(1); Mahadu v.
Gajarabai(2); Shivappa v. Yellewa(3); Gangadhar v. Subhashsini (4 ) ; Tukaram
v. Gangi(5); Ramchandra v. Ramgopal(6); Hanuman v. Tulsabai(7).
In addition to these decisions our attention
was also invited to Gurudayal v. Sarju(8); Kamal Kishore v. Harihar(9);
Sabujpari v. Satrughan Isser(1O); Movva Subba Rao v. Movva Krishna
Prasaadam(11); Parapa v. Nagamma(12);
Manicka v. Arunachala ( 13 ) ; Harekrishna v.
Jujesthi(14); Keluni v. Jagabandhu(15); The Indian Leaf Tobacco Development Co.
Ltd., v. K. Kotayya(16); Laxman v. Gangabai(17) Bhondu v. Ramdayal(18); Ratan
Kumari v. Sunder Lal(19).
The High Court itself refer-red to the
decision in Chinniah Chettiar v. Sivagami Achi (20) which is a decision of the
Full Bench constituted for resolving an apparent conflict between the decisions
in Chinniali Chettiar's case(2O) and Subba Naicker v. Nallammal(21). In the
opinion of the Full Bench there was really no conflict between the two
decisions and that the right conferred by the Hindu Women's Rights to Property
Act was a new right in modification of the preexisting one. The Full Bench
further held that s. 3 (2) of the Act does not bring about a severance of
interest of the deceased coparcener, that his widow is not raised to the status
of a coparcener though she continues to be a member of the joint Hindu family
as she was before the Act, that the joint family would continue to exist as
before subject only to her the rights of the other members of the out on, the
basis that the husband die 1) I.L.R.  Bom. 442.
(3) I.L.R.  Bom. 958.
(5) A.I.R. 1957 Nag. 28.
(7) A.I.R. 1956 Nag. 63.
(9) I.L.R.  Pat. 357.
(11) I.L.R.  Mad. 257.
(13) I.L.R.  Mad. 1016.
(15) I.L.R.  Cutt. 630.
(17) I.L.R.  M.B. 282.
(19) A.I.R. 19591 Cal. 787.
(21) (1949) 2 M.L.J. 536.
(2) I.L.R.  Bom. 885.
(4) A.I.R. 1955 Orissa 135.
(6) I.L.R.  Nag. 362.
(8) A.I.R. 1952 Nag. 43.
(10) A.I.R. 1958 Pat. 405.
(12) I.L.R.  Mad. 183(F.B) (14) I.L.R.
(1955] Cutt. 70 (16) A.I.R. 1955 Andh. 135.
(18) A.I.R. 1960 M.P. 51.
(20) I.L.R.  Mad. 402.
33 on the date when the widow passed away,
the right to survivorship being suspended till then. Further according to the
Full Bench a widow can under the Act claim a share not only in the property
owned and possessed by the family at the time of his death but also in the
accretions arising therefrom, irrespective of the character of the accretions.
Tile various decisions to which we have
adverted rest on the view that the interest which the law has conferred upon
the widow is a new kind of interest though in character it is what is commonly
known as the Hindu widow's estate. This interest is in substitution of her
right under the preexisting Hindu law to claim maintenance. The decisions also
recognise that though the widow does not, by virtue of the interest given to
her by the new law become a coparcener she being entitled to claim partition of
the joint family property is in the same position in which her deceased husband
would have been in the matter of exercise of that right. That is to say,
according to these decisions her interest is a fluctuating one and is liable to
increase or decrease according as there were deaths in or additions to the
members of the family or according as there are accretions to or diminutions of
the property. In our opinion these decisions lay down the law correctly. To
hold, as contended for by Mr. Desai and as would appear from the two decisions
upon which reliance was placed by him before us Jadaobai v. Puranmal(1) and
Siveshwar Prasad v.
Lala Har Narain (2)-would mean that whenever
a coparcener in a Hindu oint family dies leaving a widow a disruption takes
place in the family. For, unless a disruption is deemed to take place, it would
not be possible for the widow's share to be crystallised. The argument of Mr. Desai,
however, is that the words in the Act "his widow shall, subject to the
provisions of sub-s. (3) have in the property the same interest as he himself
had" can only mean the interest which the deceased coparcener had at the
moment of his death and the words "shall be the limited interest known as
a Hindu woman's estate" show that the nature of her interest was to be the
same as already recognised by the Hindu law. The legislature did not, he says,
intend to create a new kind of interest nor to make her a coparcener.
Undoubtedly she does not become a coparcener, though her interest in the family
property is to be the same as that of her deceased husband except that in
extent it is to be that of a Hindu widow.
(Now, of course , it has been enlarged by s.
14 of the Hindu Succession Act, 1956). But a coparcener has no defined interest
in the joint family property and the right which he has is to claim for
partition. The quantum of his interest would be determinable (1) I.L.R, 
(2) I.L.R. (1944) 23 Pat. 760).
34 with reference to the date on which such
member unequivocally declares his intention to separate and thus put an end to
the coparcenary. It cannot even be suggested that the event of the death of a
coparcener is not tantamount to an unequivocal declaration by him to separate
from the family. According to the theory underlying the Hindu law the widow of
a deceased Hindu is his surviving half and, therefore, as long as she is alive
he must be deemed to continue to exist in her person. This surviving half had
under the Hindu law texts no right to claim a partition of the property of the
family to which her husband belonged. But the Act of 1937 has conferred that
right upon her. When the Act says that she will have the same right as her
husband had it clearly means that she would be entitled to be allotted the same
share as her husband would have been entitled to had he lived on the date on
which she claimed partition.
Jadaobai's case(1) in which a different view
has been taken and on which reliance has been placed by Mr. Desai may now be
considered. In that case it was contended that the widow does not take any
property by succession and, therefore, she is not liable to produce a
succession certificate for the execution of a decree obtained by her husband.
In support of this contention reliance was placed on behalf of the widow upon
the decision in Natarajan Chettiar v. Perumal Ammal (2). In that case Horwill
J. observed as follows :
" The widow does not obtain the right
given under this section (section 3 of the Hindu Women's Rights to Property
Act, 1937) by survivorship. She was not a coparcener before her husband's death
and she was not one afterwards. I do not however think that it follows that
because the widow does not obtain her right by survivorship that she must
obtain it by inheritance, The effect of s. 3 cls. (2) and (3) may be regarded
as a survival of the husband's persona in the wife giving her the same rights
as her husband had except that she can alienate property only under certain
circumstances. As the widow did' not inherit her right, no succession
certificate is necessary." The learned Judges of the Nagpur High Court
observed that a person can take the property of another either by survivorship
or by succession and that if, as held in the Madras case, the widow of a
deceased coparcener does not take it by survivorship the only (1) I.L.R. 
(2) A.I.R. 1943 Mad. 246.
35 way in which she could take it would be by
succession. In the course of the judgment the learned Judges observed :
"Horwill J., in the Madras case quoted
above, is of the opinion that the mere fact that the widow does not obtain her
right by survivorship does not lead to the conclusion that she obtains it by
inheritance. If she does not claim it by inheritance we fail to understand how
she is claiming it in the face of the clear wording of the Act. The observations
that the effect of section 3, clauses (2) and (3), may be regarded as a
survival of the husband's persona in the wife, giving her the same rights as
her husband had except that she can alienate property only under certain
circumstances, do not indicate very clearly what was really intended to be laid
Survivorship having been ruled out the only
other mode by which she will be clothed with the rights of her husband in the
property, though to a limited extent, would be by succession or inheritance if
she claims under the Hindu Women's Rights to Property Act." It seems to us
that the learned Judges were not quite correct in saying that the property of
one person can, on his death, devolve on another only by survivorship or by
inheritance and in no other way. For, it is competent for the legislature to
confer a right on a person to get the property of another on the latter's death
in certain circumstances. This is precisely what has been done by the
legislature in enacting s. 3, sub-s. (2) of the Hindu Women's Rights to
Property Act. Adverting to the aforesaid decision it was observed by another
division bench of the same High Court in Gurdayal v. Sarju(1):
"Reliance-was, however, placed for the
defendants on Jadaobai v. Puranmal (2 ) where a Division Bench of this Court
held that the interest of the husband devolves on the widow by inheritance and
not by survivorship. We have no quarrel with that. It does not matter for the
purposes of this case how the interest which the Hindu Women's Rights to Property
Act gives Sarjubai devolved on her. The question is of what does that interest
consist. Even if it devolves on her by inheritance the interest is, according
to the Act, 'the same interest as the husband had', and 'the same right of
claiming a partition as a male owner.' Whether this right devolved on Sarjubai
by way of inheritance, or by succession, or whether because of the Act, as (1)
A.T.R.  Nag. 43.
(2) I.L.R.  Nag. 832.
36 a statutory right, would make Do
The right is the same as that of a male owner
and the interest is the same as her husband had. For these limited purposes she
merely steps into his shoe,-, and can be regarded as a continuation of
himself." In the next case relied upon, Siveshwar Prasad v. Lala Har Narain(1)
a Division Bench has held that the interest which is acquired by a widow under
the Hindu Women's Rights to Property Act, 1937 is not as a survivor but as an
heir of her husband. The interest, therefore, is an asset of her husband in her
hands and can be proceeded against by a creditor even though it may be an
undivided interest in a joint family property. It is difficult to appreciate
how this decision is of assistance to the appellant. No doubt, the husband's
interest does not devolve on the widow by survivorship but it does not follow
from that the husband's interest gets crystallised at the moment of his death
and that it is to this interest that the widow succeeds. On the other hand the
view of the learned Judges that the husband's interest is liable to be attached
at the instance of the husband's creditors despite its devolution on the widow
seems to accord with the view that the widow takes the husband's interest as
the surviving half of the husband. A passing reference was also made by learned
counsel to Rajendrabati v. Mungalal(2). The question for consideration in that
case was the same as in Jadaobai's case(3) and the High Court relying upon its
earlier decision held that the provisions of S. 214 of the Indian Succession
Act, 1925 were attracted, the suit being one for the recovery of her share of
the money due to the joint family of which her deceased husband was a member.
In the course of the argument reliance was placed on a decision of the Madras
High Court in which it was held that under s. 3 of the Hindu Women's Rights to
Property Act a widow of a deceased coparcener in a joint Hindu family becomes
entitled to a right not as an heir but by statute and that she stands in the
shoes of her deceased husband and continues to be a member of the joint family.
This argument was rejected by the learned Judges who observed:
"With the greatest respect I cannot
accept this proposition specially in view of the principles which have been so
definitely laid down in two Bench decisions of this Court referred to above.
The lady may be regarded as a member of the joint family but as has been
pointed out by this Court the interest which devolves upon her after the death
of the last male holder, must be regarded as an (1)I.L.R. (1944) 23 Pat. 760.
(2) I.L.R. (1952) 31 Pat. 477.
(3) I.L.R.  Nag. 832.
37 interest descending to her as an heir, and
as soon as it is held that she acquires her interest as an heir section 214 of
the Succession Act would come into play and no decree can be passed in her
favour unless she produces a succession certificate." As we have already
pointed out the interest devolving upon the widow need not necessarily be
either by survivorship or by inheritance but could also be in a third way i.e.,
by statute and where the interest is taken by her under a statute no further
We are, therefore, clearly of the view that
the High Court was right in allotting to the respondent half share in the family
property at its partition. Accordingly we affirm its decree and dismiss the
appeal with costs.