Addagada Raghavamma & ANR Vs.
Addagada Chenchamma & ANR [1963] INSC 90 (9 April 1963)
09/04/1963 SUBBARAO, K.
SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 136 1964 SCR (2) 933
CITATOR INFO:
R 1965 SC 825 (6) E 1968 SC1018 (4) R 1970
SC1286 (7) R 1976 SC 588 (5) E&R 1978 SC1062 (13) R 1978 SC1428 (13,14) R
1980 SC1173 (18) R 1983 SC 114 (19,31)
ACT:
Hindu Law-Partition-Adoption-Burden of proof
and onus of proof-Distinction-Separation-Elements necessary to make it
effective-Declaration and knowledge-Doctrine of relation back if affect vested
right-Concurrent findings of fact, if and when can be interfered
with-Certificate granted under Art. 133-Scope and limit-Constitution of India, Art. 133.
HEADNOTE:
The appellants and the respondents trace
their interest and rights through their geneology to one Veeranna who died in
1906. One of his sons Pitchayya, predeceased him in 1905 and it is alleged that
sometime before his death Pitchayya took Venkayya, the son of his brother
Chimpirayya, in adoption. It is further alleged that a partition of the joint
family properties between Veeranna and his four sons took place. Venkayya died
in 1938 having a son Subbarao.
Chimpirayya died in 1945 having executed a
will whereunder he gave his properties in equal shares to Subbarao and
Kamalamma, the daughter of his predeceased daughter. He also directed
Raghavamma, the wife of his brother Pitchayya, to take possession of the entire
property belonging to him, manage it and to hand over the same to his two grand
children when they attained majority. Chimpirayya excluded his daughter-in-law
Chenchamma from management as well as inheritance. But Raghavamma allowed
Chenchamma to take possession of the property. Subbarao died in 1949. In 1930,
Raghavamma filed a suit for possession of the property impleading Chenchamma as
the first defendant, Kamalamma as the second defendant and Punnayya as the
third defendant.
934 Chenchamma, the first defendant and the
present first respondent, contended that Venkayya was not given in adoption and
that there was no partition as alleged by the plaintiff. She averred that
Chimpirayya died undivided from his grandson Subbarao and therefore, Subbarao
became entitled to all the properties of the joint family by right of survivorship.
The trial Judge came to the conclusion that
the plaintiff had not established adoption of Venkayya by her husband Pitchayya
and that she also failed to prove that Chimpirayya and Pitchayya were divided
from each other and in the result dismissed the suit. On appeal, the High.
Court upheld the above two findings of the trial judge. A new pica was raised
by the appellant before the High Court that the will executed by Chimpirayya
contained a clear intention to divide and that this declaration constituted a
severance in status enabling him to execute a will. The High Court rejected
this contention also and in the result dismissed the appeal.
On appeal by certificate, the appellants
contended that the findings of the High Court on adoption as well as on partition
were vitiated by the High Court not drawing the relevant presumptions
permissible in the case of old transactions, not appreciating the great
evidentiary value of public documents, ignoring or at any rate nor giving
weight to admissions made by parties and witnesses, adopting a mechanical
instead of an intellectual approach and perspective and above all ignoring the
consistent conduct of parties spread over a long period. inevitably leading to
the conclusion that the adoption and the partition set up by the appellant were
true. (2) On the assumption that there was no partition by metes and bounds,
the court should have held on the basis of the entire evidence that there was a
division in status between Chimpiravva and Pitchayya, conferring on Chimpirayya
the right to , bequeath his divided share of the family property. (3) The
will-itself contained recitals emphasizing the fact that he had all through
been a divided member of the family and that on the date of execution of the
will he continued to possess that character of a divided member so as to
entitle him to execute the will in respect of his share and, therefore, the
recitals in the will themselves constituted an unambiguous declaration of his
intention to divide and the fact that the said manifestation of the intention
was not communicated before his death to Subbarao or his guardian Chenchamma
could not affect his status as a divided member. (4) Chenchamma, the guardian
of Subbarao, was present at the time of execution of the will and, therefore,
even if communication was 935 necessary for bringing about a divided status, it
was made in the present case.
The respondents raised a preliminary
objection, that the certificate issued by the High Court did not contain any
issue relating to adoption or partition. Hence, this Court should not allow the
appellants to raise these questions.
Secondly, it was contended that since the
question, whether declaration in the will constituted a partition was raised in
the High Court for the first time it should not be allowed to be raised. It
war. further urged that on the issues of partition and adoption, there were
concurrent findings of fact by the trial Court and the High Court and this
Court should not interfere.
Held that a successful party can question the
maintainability of the appeal on the ground that a certificate was wrongly
issued by the High Court in contravention of Art.
133 of the Constitution, but if the
certificate was good, the provisions of that Article did not confine the scope
of the appeal to the certificate.
This Court has the power to review the
concurrent findings of fact arrived at by the lower courts in appropriate
cases.
But this Court ordinarily will not interfere
with concurrent findings of fact except in exceptional cases, where the
findings are such as "shocks the conscience of the Court or by disregard
to the forms of legal process or some violation of some principles of natural
justice or otherwise substantial and grave-, injustice has been done' . It is
not possible nor advisable to define those circumstances. It must necessarily
be left to the discretion of this Court having regard to the facts of a
particular case. The present case is not one of those exceptional cases where a
departure from the salutary practice adopted by this Court is justified.
Case Law referred to.
There is an essential distinction between
burden or proof and onus of proof; burden of proof lies upon the person who has
to prove a fact and it never shifts but the onus of proof shifts. Such a
shifting of onus is a continuous process in the evaluation of evidence. The
criticism levelled against the judgments of the lower courts, therefore, only
pertain to the domain of appreciation of evidence.
It is well settled that a person who seeks to
displace the natural succession to property by alleging an adoption must
discharge the burden that lies upon him by proof of the factum of adoption and
its validity. In the present case, the appellant has failed to discharge that
burden.
936 The burden is upon that person who sets
up partition to prove that fact. The general principle is that a Hindu family
is presumed to be joint unless the contrary is proved. The finding whether
there was partition or not is a finding of fact. An interference in the
concurrent findings of fact on this point by the courts below is not justified.
Bhagavati Prasad Shah v. Dulbi Rameshwari
Juar, [1951] S. C. R. 603, referred to.
It is settled law that a member of a joint
Hindu family can bring about his separation in status by a definite and unequivocal
and unilateral declaration of his intention to separate himself from the family
and enjoy his share in severality. One cannot declare or manifest his mental
state in a vaccum. 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. A declaration to be effective should reach the person or persons
affected by one process or other appropriate to a given situation.
Adujallath Kathusumma v. Adujalath Beechu,
I.L.R. 1950 Mad.
502, Suraj Narain v. Iqbal Narain, (1912)
I.L.R. 35 All.80 (P. C.), Ramalinga Annavi v. Narayanan Annavi, (1922) I. L.
R. 45 Mad. 489 (P. C.), Sayed Kasam v.
Jorawar Singh, (1922) I.L.R. 50 Cal. 84 (P. C.), Soundararayanl v. Arunachalam
Chetty, (1915) I. L. R. 39 Mad. 159 (P.C.), Bal Krishna v. Ram Krishna, (1931)
I. L. R. All. 300 (P. C.), Babu Ramasaray Prasad Choudhary v. Radhika Devi,
(1935) 43 L. W. 172 (P.C.), Kamepalli Avilamma v. Manmen Venketaswamy, (1913)
33 M. L.J. 745, Rama Ayyar v. Meenakshi Ammal, (1930) 33 L. W. 384, Narayana
Rao v. Purshothama Rao, I.
L. R. 1938 Mad. 315 and Indira v. Sivaprasad
Rao, I. L. R.
1953 Mad. 245, discussed .
Once the declaration is expressed and brought
to the knowledge of the person affected, it relates back to the date of 937
declaration or the expression of intention to separate. As the doctrine of
relation back involves retroactivity, it cannot affect vested rights. It would
follow that, though the date of severance is that of manifestation of the
intention to separate, the rights accrued to others in the joint family
property between the said manifestation and the knowledge of it by the other
members would be saved.
Applying the above principles to the present
case it must be held that on the death of Chimpirayya his interest devolved on
Subbarao since it has not been established that Subbarao or his guardian had
knowledge of the contents of Chimpirayya's will before Chimpirayya died.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 165 of 61.
Appeal from the judgment and decree dated
December 20, 1955, of the former Andhra Pradesh High Court in Appeal Suit No.
716 of 1952.
D.Narsaraju, Advocate-General for -the State
of Andhra Pradesh, and T. V. R. Tatachari, for the appellants.
K.Bhimsankaram, G. Jagapathi Rao and
Satyanarayana, for the respondent No. 1.
K. R. Choudhry, for the respondent No. 2.
1963. April 9. The judgment of the Court was
delivered by SUBBA RAO J.-This appeal by certificate is preferred against the
judgment and Decree of the High Court of Andhra confirming those of the
Subordinate judge, Bapatla, dismissing the suit filed by the appellants for
possession of the plaint schedule properties. The following genealogy will be
useful 938 in appreciating the facts and the contentions of the parties :
Veeranna (d. 2.2.1906) | : :
: :
Atchamma Seshamma (1st wife) (2nd wife) : :
: :
: : : :
: : : :
Chimpirayya Pitchayya Raghavamma :
(d.5-5-1945) (d. 1-9-1905) (Plff.Applt.). :
: : :
: : :
: ................... :
: : : :
: Daughter : :
: : :
: (d.1-11-1905) Venkayya Chen:
: chamma (DI, R 1) :
: (alleged adopted) :
: : :
: : :
: Subbarao (d.28-7-1949) :
: :
: : : :
: : : :
Venkayya Saraswatamma Raghavayya :
(d.24-5-1938) : (b.28-10-1910 :
(alleged to : d. 1916) :
have been adopted Komalamma :
by Pitchayya) D-2/R-2 :
:
.......................................
: :
: :
Peda Punnayya China Punniayya (died unmarried
(D-3, R-3) :
:
.........................
: :
: :
1st wife 2nd wife (died issueSubbamma less)
L.R. of D3/R3 :
:
..................
: :
: :
Alivelamma Venkayamma 939 It will be seen
from the genealogy that Veeranna had two wives and that Chimpirayya and
Pitchayya were his sons by the first wife and Peda Punnayya and China Punnayya
were his sons by the second wife. Veeranna died in the year 1906 and his second
son Pitchayya had predeceased him on 1-9-1905 leaving his widow Raghavamma. It
is alleged that sometime before his death, Pitchayya took Venkayya, the son of
his brother Chimpirayya in adoption; and it is also alleged that in or about
the year 1895, there was a partition of the joint family properties between
Veeranna and his four sons, Chimpirayya, Pitchayya, Peda Punnayya and China
Punnayya, Veeranna taking only 4 acres of land and the rest of the property
being divided between the four sons by metes and bounds. Venkayya died on May
24, 1938, leaving behind a son Subbarao. Chimpirayya died on May 5, 1945 having
executed a will dated January 14, 1945 whereunder he gave his properties in
equal shares to Subbarao and Kamalamma, the daughter of his pre-deceased
daughter Saraswatamma;
thereunder he also directed Raghavamma, the
widow of his brother Pitchayya, to take possession of the entire property
belonging to him, to manage the same, to spend the income therefrom at her
discretion and to hand over the property to his two grandchildren after they
attained majority and if either or both of them died before attaining majority,
his or her share or the entire property, as the case may be, would go to
Raghavamma. The point to be noticed is that his daughter-in-law, Chenchamma was
excluded from management as well as from inheritance after the death of
Chimpirayya.
But Raghavamma allowed Chenchamma to manage
the entire property and she accordingly came into possession of the entire
property after the death of Chimpirayya. Subbarao died on July 28, 1949.
Raghavamma filed a suit on October 12, 1950 in the Court of the Subordinate
judge, Bapatlal, for possession of the plaint scheduled 940 properties; and to
that suit, Chenchamma was made the first defendant; Kamalamma, the second defendant;
and China Punnayya, the second son of Veeranna by his second wife, the third
defendant. The plaint consisted of A, B, C, D, D-1 and E schedules, which are
alleged to be the properties of Chimpirayya. Raghavamma claimed possession of
A, B and C Scheduled properties from the 1st defendant, for partition and
delivery of half share in the properties covered by plaint-schedule D and D-1
which are alleged to belong to her and the 3rd defendant in common and a fourth
share in the property covered by plaint-schedule E which are alleged to belong
to her and the 1st and 3rd defendants in common. As Kamalamma was a minor on
the date of the suit, Raghavamma claimed possession of the said properties
under the will -half in her own right in respect of Subbarao's share, as he
died before attaining majority, and the other half in the right of Kamalamma,
as by then she had not attained majority, she was entitled to manage her share
till she attained majority.
The first defendant denied that Venkayya was
given in adoption to Pitchayya or that there was a partition in the family of
Veeranna in the manner claimed by the plaintiff.
She averred that Chimpirayya died undivided
from his grandson Subbarao and, therefore, Subbarao became entitled to all the
properties of the joint family by right of survivorship. She did not admit that
Chimpirayya executed the will in a sound and disposing frame of mind. She also
did not admit the correctness of the Schedules attached to the plaint. The
second, defendant filed a statement supporting the plaintiff. The third
defendant filed a statement denying the allegations in the plaint and disputing
the correctness of the extent of some of the items in the plaint schedules. He
also averred that some of the items belonged to him exclusively and that
Chimpirayy a had no right to the mm.
941 On the pleadings various issues were
raised and the main issues, with which we are now concerned, are issues I and
2, and they are : (1) whether the adoption of Venkayya was true and valid ; and
(2) whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff.
The learned Subordinate judge, after considering the entire oral and
documentary evidence in the case, came to the conclusion that the plaintiff had
not established the factum of adoption of Venkayya by her husband Pitchayya and
that she also failed to prove that Chimpirayya and Pitchayya were divided from
each other; and in the result he dismissed the suit with costs.
On appeal, a division Bench of the Andhra
High Court reviewed the entire evidence over again and affirmed the findings of
the learned Subordinate judge on both the issues. Before the learned judges
another point was raised, namely, that the recitals in the will disclose a
clear and unambiguous declaration of the intention of Chimpirayya to divide,
that the said declaration constituted a severance in status enabling him to
execute a will. The learned judge rejected that plea on two grounds, namely,
(1) that the will did not contain any such declaration ; and (2) that, if it
did, the plaintiff should have claimed a division of the entire family
property, that is, not only the property claimed by Chimpirayya but also the
property alleged to have been given to Pitchayya and that the suit as framed
would not be maintainable. In the result the appeal was dismissed with costs.
The present appeal has been preferred by the plaintiff by certificate against
the said judgment.
Learned Advocate-General of Andhra Pradesh,
appearing for the appellant, raises before us the following points : (1) The
findings of the High Court on adoption as well as on partition were vitiated by
the High Court not drawing the relevant presumptions permissible in the case of
old 942 transactions, not appreciating the great evidentiary value of public
documents, ignoring or at any rate not giving weight to admissions made by
parties and witnesses adopting a mechanical instead of an intellectual approach
and perspective and above all ignoring the consistent conduct of parties spread
over a long period inevitably leading to the conclusion that the adoption and
the partition set up by the appellant were true. (2) On the assumption that
there was no partition by metes and bounds, the Court should have held on the
basis of the entire evidence that there was a division in status between
Chimpirayya and Pitchayya, conferring on Chimpirayya the right to bequeath his
divided share of the family property. (3) The will itself contains recitals
emphasizing the fact that he had all through been a divided member of the family
and that on the date of execution of the will he continued to possess that
character of a divided member so as to entitle him to execute the will in
respect of his share and, therefore, the recitals in the will themselves
constitute an unambiguous declaration of his intention to divide and the fact
that the said manifestation of intention was not communicated before his death
to Subbarao or his guardian Chenchamma could not affect his status as a divided
member. And (4) Chenchamma, the guardian of Subbarao, was present at the time
of execution of the will and, therefore, even if communication was necessary
for bringing about a divided status, it was made in the present case.
Mr. Bhimasankaram, learned counsel for the
contesting first respondent, raises a preliminary objection to the effect that
the certificate given by the High Court was confined only to three questions
which did not include the issues relating to adoption or partition and,
therefore, the appellant could not question the correctness of those findings
in respect of those issues and that the question whether the recitals in the
943 will themselves constituted a partition in status could not be allowed to
be raised, as that point was raised only for the first time in the High Court.
He further contends that both the Courts below gave concurrent findings of fact
on the question of adoption as well as on partition and this Court will not
reconsider the evidence as a rule of practice and there are no exceptional
circumstances to depart from that salutary practice in this appeal. He further
seeks to sustain the findings of the High Court on the evidence adduced in the
case.
We shall take the preliminary objection
first.
The material part of the certificate issued
by the High Court rears thus:
subject matter of the suit in the court of
first instance is upwards Rs. 20,000/(Rupees twenty thousand) and the value of
the subject matter in dispute on appeal to the Supreme Court of India is also
of the value of upwards of Rs. 20,000/(Rupees twenty thousand) and that the
affirming decree appealed from involves the following substantial questions of
law :
1. Whether a will executed by a member of a
joint Hindu family would of itself be operative to effect a severance between
him and the other members of the family by reason of the disposition contained
in the will.
2. Whether a will executed by a member of a
joint family on the assumption not proved to be well founded or correct that as
a result of an anterior partition in the family he, the testator, was solely
entitled to the properties disposed of by the will, would be effective to 944
create a severance between the testator and the other members as on the date of
the will, and
3. Whether the aforesaid pleas could be
raised for the first time on appeal without their having been raised in the
pleadings or at any stage of the trial." The said certificate was granted
within the terms of Article 133 (1) of the Constitution.
The material part of Article 133 (1) reads :
"An appeal shall lie to the Supreme Court
from any judgment, decree or final order ............ if the High Court
certifies-(a) that the amount or value of the subject matter of the dispute in
the court of first instance and still in dispute on appeal was and is not less
than twenty thousand rupees or such other sum as may be specified in that
behalf by Parliament ; (b) that the judgment, decree or final order involves
directly or indirectly some claim or question respecting property of the like
amount of value ; or (c) that the case is a fit one for appeal to the Supreme
Court ;
and where the judgment, decree or final order
appealed from affirms the decision of the court immediately below in any case
other than a case referred in sub-clause (c), if the High Court further
certifies that the appeal involves some substantial question of law." Mr.
Bhimasankaram contends that the conditions laid down for issuing a certificate
must also govern the scope of the appeal to the Supreme Court, for, otherwise,
the argument proceeds, the said conditions would become otiose. He concedes
that the Supreme Court can exercise an unrestricted power of reviewing the
judgment of the High Court 945 in the case of a certificate hedged in with
conditions by resorting to its power under Art. 136 of the Constitution, but
this is not a case where it can do so especially having regard to the fact that
the appellant did not seek to invoke that power.
Under Art. 133 of the Constitution the
certificate issued by the High Court in the manner prescribed therein is a
precondition for the maintainability of an appeal to the Supreme Court. But the
terms of the certificate do not circumscribe the scope of the appeal, that is
to say, once a proper certificate is granted, the Supreme Court has undoubtedly
the power, as a court of appeal, to consider the correctness of the decision
appealed against from every standpoint, whether on questions of fact or law. A
successful party no doubt can question the maintainability of theappeal on the
ground that the certificate was issued by the High -Court in contravention of
the provisions of Art. 13 3 of the Constitution, but once the certificate was
good, the provisions of Art. 133 did not confine the scope of the appeal to the
certificate. We, therefore, reject this preliminary objection.
His next objection is that both the learned
Subordinate Judge and, on appeal, the learned judges of the High Court gave
concurrent findings of fact on adoption as well as on partition and it is the
usual practice of this Court not to interfere with such findings, except in
exceptional circumstances and there are no such circumstances in the present
case, Article 133 of the Constitution does not in any way limit the scope of an
appeal, provided a proper and valid certificate is issued by the High Court
thereunder. This Court has undoubtedly the power to review the concurrent
findings of fact arrived at by the lower Courts in appropriate cases. But it
has 946 been a long standing practice of the Privy Council not to interfere
with such findings based upon relevant evidence, except under extraordinary and
exceptional circumstances :
Vide Rani v. Khagendrar (1); Fatima Bibi v.
Ahmed Bakshi(2), Harendra v. Haridasi (3); and Bibhabati v. Ramendra (4); The
same practice has been adopted and followed by this Court since its inception :
see Nanalal v. Bombay Life , Assurance Co. (5): Firm Srinivas Ram v. Mahabir
Prasad (6) Trojan & Co. v. Naganna (7); Rajinder Chand v. Mst. Sukhi (8);
Bhikka v. Charan Singh (9); M.M.B.
Catholicos v. P. Paulo Avira (10) and Narayan
Bhagwantrao Gosavi Balajiwale v. Gopal Vinanyak Gosavi (11). .
The reason for the practice is stated to be
that when facts have been fairly tried by two Courts and the same conclusion
has been reached by both, it is not in the public interest that the facts
should be again examined by the ultimate court of appeal. Whatever may be the
reason for the rule, the practice ha% become fairly crystallized and this Court
ordinarily will not interfere with concurrent findings of fact except in
exceptional cases, where the findings are such that it "sbocks the
conscience of the Court or by disregard to the forms of legal process or some
violation of some principles of natural justice or otherwise substantial and
grave injustice has been done." It is not possible nor advisable to define
those circumstances. It must necessarily be left to the discretion of this
Court having regard to the facts of a particular case. We have beard learned
counsel on merits and we do not think it is one of those exceptional cases
where we should depart from the salutary practice adopted by this Court.
Learned Advocate-General contends that the
learned Subordinate judge as well as the High Court did not draw the
appropriate presumptions arising from the fact that the transactions were old
ones, (1) (1904) I.L R. 31 Cal. 871. (2) (1903) S.L.R. 35 Cal.
271.
(3) (1914) A.I.R. 41 Cal. 972, 988.(4) (1946)
51 C.W.N 98.
147 (5) A.I.R. 1950 S.C. 172.(6) A I R. 1951
S. C. 177.
(7) A.I.R. 1953 S.C. 235.(8) A.I.R. S.C. 286.
(9) [1959] Supp 2 S.C.R. 798(10) A.I.R 1959
S.C. 31, (11) [1960] 1 S.C.R. 773 947 nor did they give sufficient weight to
the entries in the revenue records, the admissions made by the parties and to
the conduct of the parties and such other important circumstances and,
therefore, their findings are, liable to be questioned in this appeal. This
argument in effect and substance means that the Courts below have not given due
weight to particular pieces of evidence. There is an essential distinction
between burden of proof and onus of proof, burden of proof lies upon the person
who has to prove a fact and it never shifts, but the onus of proof shifts.
The burden of proof in the present case
undoubtedly lies upon the plaintiff to establish the factum of adoption and
that of partition. The said circumstances do not alter the incidence of the
burden of proof. Such considerations, having regard to the circumstances of a
particular case, may shift the onus of proof. Such a shifting of onus is a
continuous process in the evaluation of evidence. The criticism levelled
against the judgments of the lower Courts, therefore, only pertain to the
domain of appreciation of evidence. We shall, therefore. broadly consider the
evidence not for the purpose of revaluation, but to see whether the treatment of
the case by the Courts below is such that it falls in the category of
exceptional cases where this Court, in the interest of justice, should depart
from its usual practice.
We shall first take the question of adoption.
It is well settled that a person who seeks to
displace the natural succession to property by alleging an adoption must
discharge the burden that lies upon him by proof of the factum of adoption and
its validity. Here, the appellant alleges in the plaint that Venkayya: the son
of Chimpirayya, was taken in adoption by her husband, Pitchayya. The first
defendant, the widow of Venkayya, denies in her writtenstatement that her
husband was adopted 948 by Pitchayya. On the said pleadings the following issue
was framed : "Whether the adoption of Venkayya is true and valid." On
the pleading the burden of proof has rightly been placed on the plaintiff. The
adoption is alleged to have taken place in the year 1905. The circumstances
obtaining at that time were as follows : Chimpirayya was about 40 years old; he
had only one son, Venkayya, who was aged about 2 years Pitchayya was about 25
years old and, therefore, ordinarily he had every prospect of having children
of his own; it is, therefore highly improbable, unless there are special
circumstances, that an only son of an elder brother was taken in adoption by
his younger brother; though there is no legal prohibition, it is well known
that ordinarily an only son is neither given nor taken in adoption'. P.W.I.
admits that Addagada family is a prominent
and affluent family in the village. But curiously no document of adoption was
executed, no invitations were sent to relatives and village officers, and no
expenditure incurred in connection with the adoption was entered in the
accounts.
Unless there were compelling and
extraordinary circumstances which necessitated dispensing with all formalities,
it is unthinkable that in a village there could have been an adoption made in
such an affluent family without pomp and show. P. Ws. 1 and 2 speak to the adoption.
P. W. I is the cousin of the appellant and P.W. 2 is appellant herself. P. W. I
says that Pitchayya adopted his brother's son Venkayya and he lived for one
month thereafter. The reason for the adoption, according to her, was that he
was sick and was afraid that he would die. She graphically describes that
Alivelamma, the wife of Chimpirayya, gave her son in adoption to the
accompaniment of "mantrams and tantrams", that one Subbayya of
Upputur was the prohit who officiated in the ceremony. In the cross-examination
she says that Pitchayya did not die suddenly of an attack of fever but was
suffering from dropsy 949 for about a month and also even earlier; she admits
that for important functions like marriage and adoption in their family they
would invite the village officers and other important people of the village,
but no such officers or important people were invited when Venakayya was taken
in adoption. This witness was 60 years old in 1961 and therefore she would have
been about 15 years at the time of the alleged adoption. Assuming for a moment
that Pitchayya was suffering from dropsy, there is no reason why no important
persons were invited for the function. If her evidence were true, Pitchayya
took part in the alleged ceremony and it cannot therefore be suggested that he
was so ill that all the formalities had to be dispensed with.
Indeed, if he was ill and if the adoption was
made without inviting the important people, that should have been the very
reason why the village officers would have been invited and a document to
evidence it executed. P. W. 2 is the appellant Raghavamma. She says that there
was a ceremony of adoption officiated by the prohit Subbayya and that her
brother-in-law and his wife gave the boy to her and her husband in adoption. She
also deposes that her father and his brothers were present at the adoption. In
the crossexamination she says that her husband lived for about 3 months after
the adoption. She admits that no document was executed and that though there
were accounts, no entries relating to the expenses of the adoption were entered
therein. While P.W. I says that Pitchayya lived for one month after the
adoption, P. W. 2 says that he lived for about 3 months thereafter. Neither in
the pleadings nor in the evidence the date of adoption is given. The evidence
of P. W. I is vague and appears to be improvised and the evidence of P. W. 2
discloses the improbabilities inherent in such an adoption. They also
contradict each other on material circumstances. The Courts below have disbelieved
their evidence.
950 The appellant and the first respondent
relied upon the conduct of the parties subsequent to the alleged adoption and
filed a number of documents to support their respective cases. Documentary
evidence considered [omitted].
So far as the documentary evidence goes, the
position is as follows: Till 1911 there was no document recording the fact that
Venkayya was the adopted son of Pitchayya, and that after 1911 there had been
contradictory recitals in the documents. Broadly speaking whenever Venkayya
executed a document he described himself as the son of Chimpirayya, and
whenever third parties executed documents, he was described as the adopted son
of Pitchayya. He filed suits, sometimes as the son of Chimpirayya and sometimes
as the adopted son of Pitchayya. His name was entered in the accounts relating
to Paruchur, but not in the accounts relating to Upputur; he gave evidence
declaring himself as the son of Chimpirayya and also insured-his life as such
he operated on the accounts of third parties as the son of Chimpirayya; while
in the will executed by Chimpirayya, he was described as the adopted son of
Pitchayya on the death of Venkayya the appellant herself, who under the will
was entitled to continue in possession and management, handed over the entire
management to the first respondent indicating thereby that the will was not
really intended to take effect. In this state of evidence it is not possible to
say that there had been a consistent pattern of conduct from which a Court should
draw the inference that the adoption must have taken place.
Attempt is made to reconcile these contra.
dictory descriptions in the documents by developing different theories. Learned
Advocate-General suggests that there was no reason why Chimpirayya should have
put forward Venkayya falsely as the 951 adopted son of Pitchayya as early as
1911 when he should not have gained any advantage thereby, for without the aid
of adoption the entire property of Pitchayya would have come to him by
survivorship. Mr. Bhimasankaram surmises that Chimpirayya put forward the
adoption without the knowledge of Raghavamma to safeguard his family interests
against the possible adoption later on by Raghavamma of a stranger and that
subsequently both joined together with a view to put pressure upon the first
respondent to marry her son Subbarao to Kamalamma. He also suggests that
Chimpirayya began to put forward his son Venkayya as the adopted son of
Pitchayya only after the birth of his second son in 1910 and that after the death
of that son in 1916, his only interest was to see that his grandson by his son
Venkayya was married to his grand-daughter by his daughter and that the will
was executed only to put pressure upon the first respondent.
That the will was executed only for this
limited purpose, learned counsel argues, is clearly demonstrated by the fact
that Raghavamma, though she was entitled to be put in possession of the entire
property, handed over the management of the same to the first respondent after
the death of Chimpirayya. The said suggestions made by learned counsel on both
sides are only based on surmises. and they cannot be made the basis for a
court's conclusion. In this state of evidence when both the Courts found, on a
careful consideration of oral and documentary evidence and the probabilities
arising there from that the appellant on whom the burden of proof lay to
establish that Venkayya was adopted to Pitchayya has failed to discharge it,.
we cannot say that the -finding was vitiated by such errors that we should
review the entire evidence over again and come to a conclusion of our own. We
therefore, accept the concurrent finding of fact that there was no adoption.
The next question is whether the concurrent finding of fact arrived at by the
Courts below on the 952 question of partition calls for our interference. In
the plaint neither the details of the partition nor the date of partition are
given. In the written statement the first respondent states that Chimpirayya
died undivided from his son's son Subbarao and so Subbarao got the entire
property by survivorship. The second issue framed was whether Chimpirayya and
Pitchayya were divided as alleged by the plaintiff. The partition is alleged to
have taken place in or about the year 1895; but no partition deed was executed
to evidence the same. The burden is certainly on the appellant who sets up
partition to prove the said fact.
P.W. 1, though she says that Veeranna was
alive when his sons effected the partition, admits that she was not present at
the time of Partition, but only heard about it. P.W. 2, the appellant, deposes
that her husband and his brothers effected partition after she went to live
with him; she adds that in that partition her father-in-law took about 4 acres
of land described as Bangala Chenu subject to the condition that after his
death it should be taken by his four sons, that at the time of partition they
drew up partition lists and recited that each should enjoy what was allotted to
him and that the lists were written by one Manchella Narasinhayya; she also
admits that the lists are in existence, but she has not taken any steps to have
them produced in Court. She says that each of the brothers got pattas according
to the partition, and that the pattas got for Pitchayya's share are in his
house; yet she does not produce them. She says that she paid kist for the lands
allotted to Pitchayya's share and obtained receipts; but the receipts are not
filed. She admits that she has the account books; but they have not been filed
in Court. On her own showing there is reliable evidence, such as accounts,
pattas, receipts, partition lists and that they are available; but they are not
placed before the Court. Her interested evidence cannot obviously be acted upon
when all the relevent evidence has been suppressed.
953 Strong reliance is placed upon the
alleged admissions made by D.W.8 and D. W. 10. D.W. 8 is the karnam of Paruchur
for over 30 years. He says in his evidence that Veeranna took 3 acres and 63
cents. of land with a condition that it should go to his sons in equal shares
and the rest of the lands were divided into two shares, one taken by Chimpiryya
and Pitchayya and the other by Peda Punnayya and China Punnayya.
He explains that some lands, where the soil
is partly good and partly bad, were divided into four parts and one good and
one bad went to each sharer. This evidence does not contain any admission that
there was a partition inter se between the four brothers; indeed it only
supports the case that there was a partition between the children of Veeranna
by his two wives. The division in four plots in respect of certain lands was
only for an equitable distribution of the said lands between the sons of two
wives. D.M. 10 in his evidence says that he does not know in what year the
partition took place; that it went on for two months; that some of the lands
were divided into four plots. His evidence is also consistent with the evidence
of D.W. 8.
There is no admission by defendants'
witnesses that the division was between the four brothers. The oral evidence
therefore, does not support the case of the appellant that there was a division
inter se between Chimpirayya and Pitchayya.
Now coming to the documentary evidence, as we
have already indicated, all the relevant documents admitted to have been in
existence have not been placed before the Court and an adverse inference has,
therefore, to be drawn against the appellant. Even the documentary evidence
filed in the case does not help the appellant. The family property is situate
in three villages, Paruchur, Upputur and Podapadu. If there was a partition
inter se between the 4 -brothers, in the ryotwari settlement 954 effected in
1906 the names of the brothers should have been entered separately in the
revenue accounts but the relevant register pertaining to that settlement has
not been filed.
Even in the later accounts of the year 1918
the name of Venkayya was entered only in respect of some lands in village
Paruchur, but no such entries are found in respect of the other villages. Those
entries were made on a representation made by Chimpirayya and no one was
interested to object to the entries. Even these accounts show that in the
earlier register Pitchayya's name was not entered.
Though they have some probative value of
possession, they do not show that the said lands shown against Venkayya fell to
the share of Pitchayya at the partition in the year 1895.
In Benyala Chenu alleged to have been given
to Veeranna with a condition that after his death the four sons should take it
in equal shares, Venkayya did not get his share as he should if Pitchayya was
divided from Chimpirayya and if he was adopted to Pitchayya. P. W. 2 admits
that Chimpirayya had two acres in Bengala Chenu and Punnayya had the other two
acres. This admission belies the statement that there was a partition inter se
among the four brothers, for if the said partition was true, one acre should
have fallen to Pitchayya's branch. P. W. 3 also says that Chimpirayya was in
enjoyment of the said two acres.
Exs. B-52, B-53, B-54, B-55, B-56 and B-57
established that the original mortgage of 1900 executed in favour of Veeranna
was later on renewed only by Chimpirayya and Punnayya, that after the alleged
partition separate mortgages were executed for portions of the debt in favour
of Chimpirayya and Putinayya, that the property which was the subject matter of
the mortgages was sold in favour of Chimpirayya and Punnayya, and thereafter,
under Exs. B-61, B-62 and B-63, Chimpirayya and Punnayya sold the said land to
955 third parties. These series of documents support the case that there was no
partition inter se between Chimpirayya and Pitchayya. So too, another land
obtained by Veeranna under an oral sale in 1886 was formally sold by a
registered sale in favour of Chimpirayya and Punnayya under Ex. B-60 in 1911.
If Pitchayya had a share, Venkayya should have been one of the vendses. Exs.
B-67 and B-68 are the assessment orders of the year 1933 and Chimpirayya was
assessed as representing a Hindu -undivided family. At the time of assessment if
Venkayya was not a member of the Hindu joint family, there was no other mate
member in the family. The assessment could only be explained on the basis that
Venkayya and Chimpirayya were members of a Joint Hindu family. Both the Courts,
on the basis of the said evidence and other evidence, came to the conclusion
that it has not been established that in the partition of 1895 there was a
division inter se between Chimpirayya and Pitchayya.
Some argument is made on the question of
burden of proof in the context of separation in a family. The legal position is
now very well settled. This Court in Bhagwati Prasad Sah v. Dulhin Rameshwari
Juer (1), stated the law thus :
"The general principle undoubtedly is
that a .Hindu family is presumed to be joint unless the contrary is proved, but
where it is admitted that one of the coparceners did separate himself from the
other members of the joint family and had his share in the joint property
partitioned off for him, there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side too that
because one member of the family separated himself, there has been separation
with regard to all.
It would be a question of fact to be
determined in each case upon the (1) [1951] S. C. R. 603, 607.
956 evidence relating to the intention of the
parties whether there was a separation amongst the other coparceners or that
they remained united. The burden would undoubtedly lie on the party who asserts
the existence of a particular state of things on the basis of which he claims
relief." Whether there is a partition in a Hindu joint family is,
therefore, a question of fact; notwithstanding the fact that one or more of the
members of the joint family were separated from the rest, the plaintiff who
seeks to get a specified extent of land on the ground that it fell to the share
of the testator has to prove that the said extent of land fell to his share;
but when evidence has been adduced on both sides, the burden of proof ceases to
have any practical importance. On the evidence adduced in this case, both the
Courts below found that there was no partition between Chimpirayya and
Pitchayya as alleged by the appellant. The finding is one of fact. We have
broadly considered the evidence only for the purpose of ascertaining whether
the said concurrent finding of fact is supported by evidence or whether it is
in any way vitiated by errors of law. We find that there is ample evidence for
the finding and it is not vitiated by any error of law.
Even so, learned Advocate-General contends
that we should hold on the evidence that there was a division in status between
Chimpirayya and the other member of the joint Hindu family i. e.. Subbarao,
before Chimpirayya executed the will, or at any rate on the date when he
executed it.
It is settled law that a member of a joint
Hindu family can bring about his separation in status by a definite and
unequivocal declaration of his intention to separate himself from the family
and enjoy his share in severality. Omitting the will, the 957 earlier documents
filed in the case do not disclose any such clear intention. We have already
held that there was no partition between Chimpirayya and Pitchayya. The
register of changes on which reliance is placed does not indicate any such
intention. The statement of Chimpirayya that his younger brother's son is a
sharer in some lands and, therefore, his name should be included in the
register, does not ex facie or by necessary implication indicate his
unambiguous declaration to get divided in status from him.
The conflicting descriptions in various
documents introduce ambiguity rather than clarity in the matter of any such
declaration of intention. Be it as it may, we cannot therefore hold that there
is any such clear and unambiguous declaration of intention made by Chimpirayya
to divide himself from Venkayya.
Now we shall proceed to deal with the will,
Ex. A-2 (a), on which strong reliance is placed by the learned AdvocateGeneral
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 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
became separated from the joint family before his death.
The learned Advocate-General raises before us
the following contentions in the alternatives : (1) Under 958 the Hindu law a
manifested fixed intention as contradistinguished from an undeclared intention
unilaterally expressed by a member to separate himself from the joint family is
enough to constitute a division in status and the publication of such a settled
intention is only a proof thereof. (2) Even if such an intention is to be
manifested to the knowledge of the persons affected, their knowledge dates back
to the date of the declaration, that is to say, the said member is deemed to
have been separated in status not on the date when the other members have
knowledge of it but from the date when he declared his intention. The learned
Advocate-General develops his argument in the following steps (1) the Will, Ex.
A-2 (a), contains an unambiguous intention on the part of Chimpirayya to
separate himself from Subbarao, (2) he manifested his declaration of fixed
intention to divide by executing the will and that the Will itself was a proof
of such an intention; (3) when the Will was executed, the first respondent the
guardian of Subba Rao was present and, therefore, she must be deemed to have
had knowledge of the said declaration'; (4) even if she had no such knowledge
and even if she had knowledge of it only after the death of Chimpirayya, her
knowledge dated back to the date when the Will was executed, 'and, therefore,
when Chimpirayya died he must be deemed to have died separated from the family
with the result that the Will would operate on his separate interest.
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 a 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 959 the Courts evolved the
doctrine by a pragmatic approach to the problems that arose from time to time.
The evolution of the doctrine can be studied in two parts, namely, (1) the
declaration of the intention, and (2) the 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 deep and abiding knowledge of the sources of Hindu Law in Adivalath
Katheesumme v. Adiyalath Beechu (1) ; and we accept his translations as correct
and indeed learned counsel on both sides proceeded on that basis. Yajnavalkya
Ch. 11, 6. 121. "In land, corrody (annuity, etc.), or wealth received from
the grandfather, the ownership of the father and the son is only equal."
Vijnaneswara commenting on the said sloka says :
"............... And thus though the
mother is having menstrual courses (has not lost the capacity to bear children)
and the father has attachment and does not desire a partition, yet by the will
(or desire) of the son a partition of the grandfather's wealth does take
place." (Setlur's Mitaksbara, pp. 646648.) Saraswati Vilasa, 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 Mitra Misra : (Ch. 11. 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).
(1) I.L.R. 1950, Mad. 502.
960 Vyavahara Mayukha of Nilakantabhatta:
(Ch. IV, S. iii) "Even in the absence of any common (joint family)
property, severance does indeed result by the mere declaration "I am
separate from thee" because severance is a particular state(or condition)
of the mind and the declaration is merely a manifestation of this mental state
or condition)." The Sanskrit expressions "sankalpa" (resolution)
in Saraswati Vilas, "ekechchaya (will of a 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 discretion, The Hindu law texts, therefore
support the proposition that severance in status is brought about by unilateral
exercise of discretion.
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 (1); Girija Bai v. Sadashiv Dhundiraj (2); Kawal Nain v. Budh
Singh (3); and Ramalinga Annavi v. Narayana Annavi (4).
In Syed Kasam v. Jorawar Singh (5); 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 Mitaksbara, a severance of estate
is effected by an unequivocal declaration on the part of one of the joint
holders of his intention to bold his share separately, even though no actual
division takes place ... ........." (1) (1912) I.L.R. 35 All. 80 (P.C.)
(2) (1916) I.L.R. 43 Cal. 1031 (PC.).
(3) (1917) I.L.R. 39 All. 496 (P.C.) (4)
(1922) I.L.R. 45 Mod. 489 (P.C.) (5) (1922) I.L.R. 50 Cal. 84 (P.C.) 961 So
far, therefore, the law is well settled, namely, 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 :
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 marital state (or condition).
" One cannot declare or manifest his mental state in a vacuum.
To declare is to make known, to assert to
others. "Others" must necessarily be those affected by the said
declaration.
Therefore a member of a joint Hindu family
seeking to separate himself from others will have to make known his intention
to the other members of the family from whom he seeks to separate. The process
of manifestation may vary with circumstances. This idea was expressed by
learned judges by adopting different terminology, but they presumably found it
as implicit in the concept of declaration. Sadasivalyerj.,in Soundarajan v. Arunachalam
Chetty (1), said that the expression "clearly expressed" used by the
Privy Council in Suraj Narain v. Iqbal Narain (2), meant "clearly
expressed to the definite knowledge of the other coparceners." (1) (1915)
I.L.R. 39 Mad. 159 (P.C.) (2) (1912) I.L.R. 35 All. 80 (P.C.) 962 In Girja Bai
v. Sadashiv Dhundiraj (1), the Judicial Committee observed that the manifested
intention must be "clearly intimated" to the other coparceners. Sir
George Lowndes in Balkrishna v. Ram krishna (2), 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 (3), again accepted as settled law the proposition
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. T., and Kumaraswami Sastri
J. in Kamepalli Avilam v. Mannem Venkataswamy (4), were emphatic when they
stated that if a coparcener did not communicate, during his life time, his
intention to become divided to the other coparcener or coparceners, the mere
declaration of his intention, though expressed or manifested, did not affect 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 (5).
There, the learned judge held that severance of status related back to the date
when the communication was sent. The learned judge deduced this proposition
from the accepted principle that the other coparceners had no choice or option
in the matter. But the important circumstance in that case was that the
testator lived till after the date of the service of the notice. If that was so
that decision on the facts was correct. We shall deal with the doctrine (1)
(1916) I.L.R. 43 Cal. 1031 (P.C.) (2) (1931) I.L.R. 33 All. 300 (P.C) (3)
(1935) 43 L.W. 172 (P.C.) (4) (1917) 13 M.L.J. 746, (5) (1930) 33 L W.
963 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., it) Narayana Rao v. Purushotama Rao
(1). 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 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 :
"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 (1) I.L.R. 1968
Mad. 315, 318, 964 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.
There is yet another decision of the Madras
High Court, which is of Rajamannar C. J. and Venkataramma Ayyar, J. in Indira
v. Sivaprasada Rao (1). There, the testator despatched a telegram addressed to
his undivided brother on August 4, evening. In the ordinary course it must have
been delivered on August 5. The testator died on August 6 morning. Learned
counsel appearing for the brother contended that it had not been established
that the telegram reached his client before the testator died and, therefore,
the will did not operate on the testator's interest in the joint family
property. The learned judges rejected that contention on the basis of the
judgment of Varadachariar and King JJ. in Narayana Rao v. Purushothama Rao (2).
As a division Bench they were bound by the decision of another Division Bench;
but the real basis of the decision is found at p. 256:
"In the case before us, the telegram was
despatched on the 4th evening and in the ordinary course it must have been
delivered on the 5th and the testator died only on the 6th morning." (1)
I. L. R. 1953 Mad. 245, 2 56.
(2) I.L.R. 1938 Mad. 315, 318.
965 It appears that in the circumstances of
the case the learned judges presumed that the telegram must have reached the
testator's brother before the testator died. The conclusion arrived at by the
learned judges would certainly be right on the said facts. But we cannot agree
with the view in so far as they agreed with that expressed by Varadachariar and
King, JJ.
Viswanatha Sastri, J., in Adiyalath
Katheesumma v. Adiyalath Beechu (1), elaborately and exhaustively considered
the question that is now posed before us. There, a member of a tarwad served a
notice of his unambiguous intention to separate from the other members of the
family on the Karnavan of the tarwad. The question was whether the
communication of his intention to the Karnavan was sufficient. The appeal first
came up before Satyanarayana Rao and Panchapagesa Sastri JJ. Satyanarayana Rao
J. held that the notice was not sufficient to constitute a severance, as it was
not served on all the other members of the tarwad; and Panchapagesa Sastri,J.,
held that the service on the Karnavan or the manager of the joint family was
sufficient as he was representative of the family. As there was difference of
view between the two learned judges, the matter was placed before Viswanatha
Sastri.J. and the learned judge agreed with Panchapagesa Sastri.J. But in the
course of the judgment, the learned judge went further and held that a unilateral
declaration of an intention to become divided on the part of a member of a
joint Hindu Family effects severance, in status and therefore the dispatch to,
or receipt by, the other members of the family of the communication or notice
announcing the intention to divide on the part of one member of the family is
not essential or its absence fatal to a severance in status. The conclusions of
the learned judge on the question now raised before us are expressed in two
places and they are at pp. 543 and 549:
(1) I. L. R. 1953 Mad. 245,256.
966 "The only reasonable rule that can
be deduced from the texts and the several decisions of the Judicial Committee
is that the declaration of an intention to divide on the part of a member of
the family should be clear and unequivocal and should be indicated, manifested,
or published in such a manner as is appropriate in the circumstance,-, of the
case. One method, but not the only method, of such manifestation or publication
is by delivering a notice containing a declaration of intention to become
divided to the other members of the family." At p. 549 it is stated:
"There must be some manifestation,
indication, intimation or expression of that intention to become divided, , so
as to serve as authentic evidence in case of doubt or dispute. What from that
manifestation, expression, or intimation of intention should take would depend
upon the circumstances of each case, there being no fixed rule or right
formula. The dispatch to or receipt by the other members of the family of a
communication or notice announcing the intention to divide on the part of one
member of the family is not essential nor its absence fatal to a severance in
status." We agree with the learned judge in so far as he held that there
should be an intimation, indication or expression of the intention to become
divided and that what from that manifestation should take would depend upon the
circumstances of each case. But if the learned judge meant that the said
declaration without it being brought to the knowledge of the other members of
the family in one way or other constitutes a severance in status, we find it
difficult to accept it. In our view, it is implicit in the expression
"declaration'.' that it should be to the 967 knowledge of the person
affected thereby. An un-communicated declaration is no better than a mere
formation or harbouring of an intention to separate. It becomes effective as a
declaration only after its communication to the person or persons who would be
affected thereby.
It is, therefore, clear that Hindu Law texts
suggested and Courts evolved, by a process of reasoning as well as by a
pragmatic approach, that such a declaration to be effective should reach the
person or persons affected by one process or other appropriate to a given situation.
This view does not finally solve the problem.
There is yet another difficulty. Granting that a declaration will be effective
only when it is brought to the knowledge of the other members affected, three
questions arise, namely, (i) how should the intention be conveyed to the other
member or members; (ii) when it should be deemed to have been brought to the
notice of the other member or members; and (iii) when it was brought to their
notice, would it be the date of the expression of the intention or that of
knowledge that would be crucial to fix the date of severance. The questions
posed raise difficult problems in a fast changing society.
What was adequate in a village polity when
the doctrine was conceived and evolved can no longer meet the demands of a
modern society. Difficult questions, such as the mode of service and its
sufficiency, whether service on a manager would be enough, whether service on
the major members or a substantial body of them would suffice, whether notice
should go to each one of them, how to give notice to minor members of the
family, may arise for consideration. But we need not express our opinion on the
said questions, as nothing turns upon them, for in this appeal there are only
two members in the joint family and it is not suggested that Subba Rao 968 did
not have the knowledge of the terms of the will after the death of Chimpirayya.
The third question falls to be decided in
this appeal, 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 the said
knowledge or the date when the last of them acquired knowledge or the different
dates on which each of the members of the family got knowledge of the intention
so far as he is concerned ? If the last alternative be accepted, the dividing
member will be deemed to have been separated from each of the members on
different dates. The acceptance of the said principle would inevitably lead to
confusion.
If the first alternative be accepted, it
would be doing lip service to the doctrine of knowledge, for the member who
gets knowledge of the intention first may in no sense of the term be a
representative of the family. The second alternative may put off indefinitely
the date of severance, as the whereabouts of one of the members may not be
known at all or may be known after many years. The Hindu law texts do not provide
any solution to meet these contingencies.
The decided cases also do not suggest a way
out. It is, therefore, open to this Court to evolve a reasonable and equitable
solution without doing violence to the principles of Hindu law. The doctrine of
relation back has already been recognised by Hindu Law as developed by Courts
and applied in that branch of the law pertaining for 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 that expression to the knowledge of the person or persons
affected. When once that knowledge is brought home-that depends upon the facts
of each case it relates back 969 to the date when the intention is formed and
expressed. But between the two dates, the person expressing the intention may
lose his interest in the family property; he may withdraw his intention to
divide; he may die before his intention to divide is conveyed to the other
members of the family: with the result, his interest survives to the other
members. A manager of a joint Hindu family may sell away the entire family
property for debts binding on the family.
There may be similar other instances. If the
doctrine of relation back is invoked without any limitation thereon, vested
rights so created will be affected and settled titles may be disturbed.
Principles of equity require and common sense demands that a limitation which
avoids the confusion of titles must be placed on it. What would be more
equitable and reasonable than to suggest that the doctrine should not affect
vested rights ? By imposing such a limitation we 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
rights accrued to others in the joint family property between the said
manifestation and the knowledge of it by the other members would be saved.
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 970 guardian had knowledge of the contents of the said will
before Chimpirayya died.
It is contended that the first respondent, as
the guardian of Subbarao, had knowledge of the contents of the Will and,
therefore, the Will operates on the interest of Chimpirayya.
Reliance is placed upon the evidence of P. W.
11, one Komanduri Singaracharyulu. He deposed that be was present at the time
the Will was executed by Chimpiryya and that he signed it as an identifying
witness. In the crossexamination he said that at the time of the execution of
the Will the first defendant-respondent was inside the house.
This evidence is worthless. The fact that she
was inside the house cannot in itself impute to her the knowledge of contents
of the Will or even the fact that the Will was registered that day. D. W. 4 is
the first respondent herself. She says in her evidence that she did not know
whether the Sub-Registrar came to register the Will of Chimpirayya, and that
she came to know of the Will only after the suit was filed. In that state of
evidence it is not possible to hold that the first respondent, as guardian of
Subbarao, had knowledge of the contents, of the Will.
In this view, it is not necessary to consider
the further question whether the Will contained a clear and unambiguous
declaration of intention on the part of the testator to divide himself from the
members of the joint family.
In the result, the appeal fails and is
dismissed with costs.
Appeal dismissed.
Back
