Valliammai Achi Vs. Nagappa Chettiar
& Ors  INSC 17 (23 January 1967)
23/01/1967 WANCHOO, K.N.
CITATION: 1967 AIR 1153 1967 SCR (2) 448
Hindu Law-Joint family property bequeathed by
will--Effect on character of property.
Indian Succession Act, (39 of 1925) s.
180-Scope of election under.
A Hindu died after making a will in respect
of certain joint family properties and appointed his son as the executor.
The son obtained pro. bate of the will,
provided for the legacies indicated therein and came into possession of the
residue of the property. Thereafter, he adopted the plaintiff. The adoptive
father died after the Hindu Succession Act came into force and the plaintiff
filed the suit claiming two-thirds share of the properties left by his father.
The defendants (viz., the widow and mother Of the plaintiffs-adoptive father)
contended that the conduct of the plaintiff's adoptive father-in obtaining the
probate of the will and carrying out its terms amounted to an election and
therefore the father became absolute owner of the residue of the properties
bequeathed to him by the will, and as the election to take under the will,
would bind the plaintiff also he could not claim half the property on the
ground that it was joint family property of himself and his father. The trial
Court decreed the suit, which in -appeal was upheld by the High Court. The
defendants appealed to this Court.
HELD:The appeal must be dismissed.
The character of the property did not change
because of the will and it would still be joint family property in the hands of
the plaintiff's father as far as his male issue was concerned. Further, as soon
as the plaintiff was adopted he acquired interest in the joint family property
in the hands of his adoptive father and this interest of his was independent of
that of his father. In such circumstances even if his father could be said to
have made an election there could be no question of the plaintiff being bound
by that election, for he was not claiming through his father.
[453 C, E-F] Election under s. 180 of the
Indian Succession Act, would only arise where the legate derives some benefit
from the will to which he would not be entitled except for the will.
In such a case he has to elect whether to
confirm the will or dissent from it. But where there is no question of the
legate deriving any benefit from the will to which he would not be entitled
except for the will the fact at he confirms the will and accepts what the will
provides would not account to election, for he would have in any case got what
the will gave him. Thus election only arises where the legate has to choose
between his own property which might have been testator and which the testator
has given to the legate by the will. [451 H-452 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 806 of 1964.
Appeal by special leave from the judgment and
decree dated July 13, 1962, of the Madras High Court in Appeal No. 347 of 1958.
449 C. B. Agarwala, B. Dutta, T. S. Krishnaswamy
Iyenr, P. L.
Meyyappan and J. B. Dadachanji, for the
A. K. Sen and R. Ganapathji Iyer, for
respondent. No. 1.
K. R. Chaudhuri and K. Rajendra Chaudhury,
for respondent No. 2.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the judgment of the
Madras High Court. The facts are not now in dispute and may be briefly
narrated. A suit was brought by Nagappa Chettiar, respondent No. 1 (hereinafter
referred to as the respondent) against Villiammi Achi appellant and Nachiammai
Achi now dead and represented by her legal representative. The respondent
claimed two-thirds share of the properties left by his father, Pallaniappa and
prayed for a decree for separate possession of that share after partition. The
facts on which this claim was based are not now in dispute and are these. The
respondent is the adopted son of Pallaniappa. having been adopted in 1941. The
appellant is the widow of Pallaniappa and Nachiammai Achi was Pallaniappa's
mother. Pallaniappa's father also named Nagappa had considerable properties.
This Nagappa made a will on June 10, 1934 by which after making certain dis-
positions, in favour of certain persons including his own wife he gave the
residue of his property absolutely to Pallaniappa and appointed him as the
executor of the will.
In one place the will stated that all the
property except a small part was the exclusive and self-acquired property of
the testator while at the end the testator said that he had made the will with
the full consent of his son Pallaniappa..
After Nagappa's death in July 1934
Pallaniappa obtained probate of the will and after providing for the legacies
to others as indicated therein came into possession of the residue of the
property. In 1941 the respondent was adopted by Pallaniappa.
In the trial court there was a dispute
between the parties whether Pallaniappa and his father were members of a joint
Hindu family and whether properties left by Pallaniappa's father were the joint
family properties of both. But it has been found that all the properties left
by Pallaniappa's father were joint family properties of Pallaniappa and his
father which Pallaniappa could acquire by survivorship on his father's death.
This finding was upheld by the High Court and is not now in dispute. We have to
proceed on the basis that even though Pallaniappa's father said in the will
that the properties, except a small part, were his self- acquired properties,.
in fact all the properties mentioned in the will of Pallaniappa's, father were
joint family properties of Pallaniappa and his father.
The case of the appellant was that even
though the properties left by Pallaniappa's father were joint family properties
which MISup.CI/67-15 450 Pallaniappa could acquire by survivorship, the conduct
of Pallaniappa in obtaining probate of the will and carrying out its terms
amounted to election and thereafter Pallaniappa became absolute owner of the
residue of the properties bequeathed to him by the will. The consequence of
this was that when Pallaniappa adopted the respondent in 1941 long after he had
become -the absolute owner of the properties, the respondent acquired no
interest in the properties left by his grand-father by virtue of the adoption.
Pallaniappa died. on September 16, 1956 after the Hindu Succession Act, (No. 30
of 1956) came into force. As there was no joint family property of Pallaniappa
and the respondent at the time of Pallaniappa's ,death, the respondent could
not claim half the property on the ground that it was joint family property of
himself and Pallaniappa, as Pallaniappa's election to take under the will of
his father would bind the respondent also. Reliance in this connection was
placed ,on S. 180 of the Indian Succession Act, (No. 39 of 1925) also.
The reply on behalf of the respondent to this
contention was two-fold. In the first place, it was urged that there was no
question of election even by Pallaniappa in this case and s. 180 of the Indian
Succession Act would not apply. It was further urged that even assuming that
there could be election by Pallaniappa the respondent would not be bound by
that election as the property left by his grandfather was joint family property
and the respondent would acquire interest therein as soon ;is he was adopted by
Pallaniappa, even though Pallaniappa might have been the sole co-parcener for
sometime i. e. between 1934 and 1941. This interest of the respondent in the
joint family property was independent of his father Pallaniappa and even though
Pallaniappa might be bound by any election that he might have made the
respondent would not be so bound and would be entitled to treat the property as
joint family property in the hands of, Pallaniappa in which he would acquire
interest on being adopted. In the second place the respondent's case was that
in any case after his adoption Pallaniappa threw the ,entire property into the
family hotch-pot and therefore it became joint family property by blending.
Two questions therefore arose for
consideration in this case namely--(i) whether there was election by
Pallaniappa and if so whether the respondent would be bound by it, and (ii)
whether Pallaniappa threw the entire property into the family hotch-pot after
adoption of the respondent and therefore it became joint family property in any
case. The trial court accepted the case put forward on behalf of the respondent
and decreed the suit passing a preliminary decree giving two-thirds share to
the respondent and one-sixth each to the appellant,, and the mother of
The appellant then appealed to the High
Court. The High Court dismissed the appeal. On the question of election, the
451 High Court held that as Pallaniappa and his father were members of a joint
Hindu family and as the entire property left by Pallanippa's father was joint
family property, Pallaniappa had interest in the residue as a survivor and in
consequence there was no question of election by Pallaniappa for all the
property he got by will would have come to him by survivorship. In such a case
there could be no question of election, for Pallaniappa had title to the
property irrespective of the will. The High Court also held that in any case
the claim of the respondent as a member of the joint family was not under his
father but independent of him and therefore the respondent would not be bound-,
even if Pallaniappa were held to have made an election. The High Court also
found in favour of the respondent on the question whether the property was
thrown into family hotch-pot after the adoption of the respondent and in the result
dismissed the appeal.
The High Court having refused to grant a
certificate to appeal to this Court, the appellant applied for and obtained
special leave from this Court; and that is how the matter has come before us.
The same two questions, as indicated above,
arise for consi- deration in this appeal. We shall first consider the question
of election in the background of the fact that the entire property left by
Pallaniappa's father was joint family property of himself and Pallaniappa and
that Pallaniappa had interest in that property as a member of a joint Hindu
family. Section 180 of the Indian Succession Act which enunciates the doctrine
of election as known to English law for this country is in these terms :
"Where a person, by his will professes
to dispose of something which he has no right to dispose of, the person to whom
the thing belongs shall elect either to confirm such disposition or to dissent
from it, and, in the latter case, he shall give up any benefits which may have
been provided for him by the will." It is urged on behalf of the appellant
that s. 180 would apply to the facts of the present case for the property
willed by Pallaniappa's father was not his which he could will away as it was
joint family property in which Pallaniappa who was the residuary legatee had
also equal interest. Therefore Pallaniappa had either to confirm the
disposition or dissent from it, and his conduct showed that he had confirmed it
for he took out probate. Therefore it must be held that after probate was taken
out the residue became the absolute property of Pallaniappa and lost its
character as joint Hindu family property.
Now it is clear from s. 180 that after the
legatee elects to dissent from the will he must give up any benefits provided
for him by the will. This shows that election under s. 180 would only arise 452
where the legatee derives some benefit from the will to which he would not be
entitled except for the will. In such a case he has to elect whether to confirm
the will or dissent from it. But where there is no question of the legatee
deriving any benefit from the will to which he would not be entitled except for
the will, the fact that he confirms the will and accepts what the will provides
would not amount to election, for he would have in any case got what the will
gave him. Thus election only arises where the legatee has to choose between his
own property which might have been willed away to somebody else and the
property which belongs to the testator and which the testator has given to the
legatee by the will. The matter is brought out in Halsbury's Laws of England,
Third Edition, Vol. 14, at p.
588, para 1091 in the following words
"Where a testator by his will purports to give property to A which in fact
belongs to B and at the same time out of his own property confers, benefits on
B .... in such cir- cumstances B is not allowed to take the full benefit given
him by the will unless he is prepared to carry into effect the whole of the
testator's dispositions. He is accordingly put to his election to take either
under the instrument or against it. If he elects to take under the will he is
bound and may be ordered to convoy his own property to A; if he elects to take
against the will and to keep his own property, and so disappoints A, then, he cannot
take any benefits under the will without compensating A out of such benefits to
the extent of the value of the property of which A is disappointed."
Following this principle the High Court held that as the property which the
will gave to Pallaniappa would in any case have come to him as a member of the
joint family, there was no question of election even by Pallaniappa in this
case. This view appears to us to be correct.
But even assuming that there was some kind of
election by Pallaniappa we cannot see how the nature of the property left by
Pallaniappa's father would change merely because Pallaniappa's father made a
will giving the residue absolutely to Pallaniappa and Pallaniappa took out
probate of the will. 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
453 they are in existence at the time of partition or are born subsequently :
[see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2) (4)]. If that
is so and the character of the ancestral property does not change so far as
-sons are concerned even after partition, we fail to see how that character can
change merely because the father makes a will by which he gives the residue of
the joint family property (after making certain bequests) to the son. A father
in a Mitakshara family has a very limited right to make a will and
Pallaniappa's father could not make the will disposing of the entire joint
family property, though he gave the residue to his son. We are therefore of
opinion,that merely because Pallanappa'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.
Further it is equally well settled that under
the Mitakshara law each son upon his birth takes an interest equal to that of
his father in ancestral property, whether it be movable or immovable. It is
very important to note that the right which the son takes at his birth in the
ancestral property is wholly independent of his father. He does not claim
through the father...." (see Mulla's Hindu Law, Thirteenth Edition, p.
251, para 224). It follows therefore that the character of the property did not
change in this case because of the will of Pallaniappa's father and it would
still be joint family property in the hands of Pallaniappa so far as his male
issue was concerned. Further as soon as the respondent was adopted he acquired
interest in the joint family property in the hands of Pallaniappa and this
interest of his was independent of his father Pallaniappa.
In such circumstances even if Pallaniappa
could be said to have made an election there can be no question of the
respondent being bound by that election, for he is not claiming through his
In this view of the matter, it is unnecessary
to consider the question whether Pallaniappa, after the, respondent's adoption,
threw the property into. the family hotch-pot.
The appeal therefore fails and is hereby
dismissed with costs.
Y.P. Appeals dismissed.