Karpagathachi & Ors Vs.
Nagarathinathachi  INSC 62 (10 March 1965)
10/03/1965 BACHAWAT, R.S.
CITATION: 1965 AIR 1752 1965 SCR (3) 335
D 1974 SC 175 (11) R 1977 SC 394 (5,6)
Hindu Law--Partition between
co-widows--Whether right of survivorship can be relinquished--If repugnant to
Transfer of Property Act, 1882 (4 of 1882) s. 6(a)--Onus.
Two co-widows divided their husband's
property and each entered into separate possession of her share. on the death
of one of the widows her daughter the respondent took possession of her
mother's share. The appellant the surviving widow filed a suit against the
respondent claiming possession of that share. The Trial Court decreed the suit,
which on appeal was set aside by the High Court.
In appeal by certificate:
HELD: (i) Under the Hindu Law the widows were
competent to partition the properties and allot separate portions each, and
incidental to such allotment each could agree to relinquish her right of
survivorship in the portion allotted to the other. Such an arrangement was not
repugnant to s.
6(a) of the Transfer of Property Act, 1882.
Case law referred to.
(ii) Mere partition of the estate between the
two widows does not destroy the right of survivorship of each to the properties
allotted to the other. The party who asserts that there was an arrangement by
which the widows agreed to relinquish the right of survivorship must establish
this arrangement b.v clear and cogent evidence. [338 B].
The respondent, in the instant case, had
failed to discharge this onus. [338 B-C].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 998 of 1963.
Appeal from the judgment and decree dated
January 12, 1962 of the Madras High Court in Appeal Suit No. 292 of 1958.
A.V. Viswanatha Sastri, V.S. Ramaswami
lyengar and R.
Thiagarajan, for the appellants.
S.V. Gupte, Solicitor General, and R.
Ganapathy lyer, for the respondent.
The Judgment of the Court was delivered by
Bachawat J. One Sivasubramania Pillai died in the year 1924 leaving him
surviving his mother. two widows, Thialaiachi and Karpagathachi, and a
daughter, Nagarathinathachi (respondent herein) born of Thialaiachi.
The two widows inherited the properties left
by Sivasubramania. in July 1927, they divided the bulk of the properties and
each entered into separate possession and enjoyment of the properties allotted
to her. The partition is evidenced by two partition lists called partition
deeds, Exs A--I and B--45 dated July 14. 1927 and signed by both of them. Under
this partition, two veils of land were set apart for the maintenance 336 of
Sivasubramania's mother, to be enjoyed' by her during her lifetime, and on her
death, to be taken and enjoyed by the two widows in separate portions as
mentioned in the partition lists. On August 26. 1954, Thialaiachi died, and
upon her death, the respondent took possession of the properties allotted to
Thialaiachi under the partition of July, 1927. On December 8, 1954,
Karpagathachi instituted against the respondent the suit, out of which this
appeal arises, claiming possession of the suit properties. The respondent
resisted the suit claiming that under the partition each widow gave up her
right of survivorship in respect of the properties allotted to the other, and
consequently on the death of Thialaiachi, the respondent as her daughter was
entitled to take her share as her heir and to enjoy the same during the life of
Karpagathachi. By his judgment dated August 18, 1958, the District Judge, East
Thanjavur, rejected' the defendant's contention, and held that the division
between the two widows was for convenience of enjoyment only, and decreed the
suit in respect of the properties held by Thialaiachi under the partition of
July, 1927. On appeal, the Madras High Court by its judgment dated January, 12,
1962 held that under the partition each widow gave up her life interest in the
properties allotted to the other and consequently Karpagathachi was not
entitled to recover possession of the properties allotted to Thialaiachi, set
aside the decree of the District Judge, and dismissed the suit. Karpagathachi
and several other persons impleaded as party respondents in the appeal before
the High Court now appeal under a certificate granted by the High Court to this
court under Art. 133 of the Constitution.
Mr. Viswanatha Sastry appearing on behalf of
the appellants contends that: (1) the right of survivorship of each widow in
respect of her husband's estate is the chance of the surviving widow to take
the entire estate of her husband on the death of the cowidow, and in view of
s.6(a) of the Transfer of Property Act, 1882, the widows were not competent to
enter into an arrangement transferring or relinquishing their right of
survivorship; (2) the partition lists, Exs. A--I and B---45 not being
registered, are not admissible in evidence; (3) the partition between the
widows was for convenience of enjoyment only, and the respondent has failed to
establish that each co-widow gave up her right of survivorship in respect of
the properties allotted to the other. The learned' Solicitor-General appearing
on behalf of the respondent disputed these contention.
We are of opinion that the first contention
of Mr. Viswanatha Sastry should be rejected. Under the Hindu law as it stood in
1924. two widows inheriting their husband's properties took together one estate
as joint tenants with rights of survivorship and equal beneficial enjoyment.
They were entitled to enforce a partition of those properties so that each
could separately possess and enjoy the portion allotted to her, see Bhugwan
Deen Doobey v. Myna Baee (1)  11 M .I. A. 487 337 Gauri Nath Kakaji v.
Gaya Kuar(1). Neither of them could without the consent of the other enforce an
absolute partition of the estate so as to destroy the right of survivorship,
see Commissioner of Income-tax v. Smt. Indira Balakrishna(2) But by mutual consent
they could enter into any arrangement regarding their respective rights in the
properties during the continuance of the widow's estate, and could absolutely
divide the properties, so as to preclude the right of survivorship of each to
the portion allotted to the other. See Ramakkal v. Ramasami Naickan(3), Sudalai
Ammal v. Gomathi Ammal(4). Likewise, two daughters succeeding ,to their
father's estate as joint tenants with rights of survivorship could enter into a
similar arrangement. See Kailash Chandra Chuckerbutty v. Kashi Chandra
Chuckerbutty(5) Subbammal v. Lakshmana lyer (6), Ammani Ammal v. Periasami
Udayan(7). Such an arrangement was not repugnant to s.6(a) of the Transfer of
Property Act, 1882. The interest of each widow in the properties inherited by
her was property, and this property together with the incidental right of
survivorship could be lawfully transferred. Section 6(a) of the Transfer of
Property Act prohibits the transfer of the bare chance of the surviving widow
taking the entire estate as the next heir of her husband on the death of the
co-widow, but it does not prohibit the transfer by the widow of her present
interest in the properties inherited by her together with the incidental right
of survivorship. The widows were competent to partition the properties and
allot separate portions to each, and incidental to such an allotment, each
could agree to relinquish her right of survivorship in the portion allotted to
the other. The first contention of Mr.
Viswanatha Sastry must be rejected.
The second contention of Mr. Viswanatha
Sastry must also be rejected. A partition may be effected orally. By an oral
partition, the two widows could adjust their diverse rights in the entire
estate, and as part of this arrangement, each could orally agree to relinquish
her right of survivorship to the portion allotted to the other. In the trial
Court, the suit was tried on the footing that the partition was oral, and that
the two partition lists were merely pieces of evidence of the oral partition,
and no objection was raised with regard to their admissibility in evidence. In
the High Court, the appellants raised the contention for the first time that
the two partition lists were required to be registered. The point could not be
decided without further investigation into questions of fact, and in the
circumstances, the High Court rightly ruled that this new contention could not
be raised for the first time in appeal. We (1)  L.R. 55 I.A. 299. 
3 S. C.R. 513, 517.
(2)  I.L.R. 22 Mad. 522.
(3)  23 M.L.J. 355.
(4)  I.L.R. 24 Cal. 339.
(5)  26 M.L,J. 479.  45 M.L.J. 1.
338 think that the appellants ought not to be
allowed to raise this new contention.
We think that the third contention of Mr.
Viswanatha Sastry is sound' and should be accepted. Mere partition of the
estate between the two widows does not destroy the right of survivorship of
each to the properties allotted to the other. The party who asserts that there
was an arrangement by which the widows agreed to relinquish the right of
survivorship must establish this arrangement by clear and cogent evidence. The
respondent has failed to discharge this onus. It is common case that the
partition is evidenced by Exs. A--1 and B...45. Exhibit B--45 is the list
showing the properties allotted to Thialaiachi. The relevant portion of Ex.
B....45 reads:-- "In accordance with the chit cast, Theiyalai Achi. wife
of Sivasubramania Pillai, residing at Karuppur, shall take the nanja, punja,
house and ground, cattle-shed, cattle, pathway for men, cattle and cart and
shed where dried dung cakes are stored mentioned in the list and shall pay the
Government kist for the aforesaid properties from the current fasli 1337 and
enjoy them." Exhibit A--1 showing the properties allotted to Karpagathachi
contains similar words. Now the two lists show that each widow is to "take
and enjoy" the properties allotted to her. The corresponding Tamil words
are "adainthu anuhavithu." These words do not either expressly or by
necessary intendment exclude the right of survivorship of the other widow. The
Tamil words "Sarva Swantantra Badyamayum" and "Santhathi
pravesamayum" and other words indicating relinquishment of the right of
survivorship are conspicuous by their absence. The words used in the two
partition lists are wholly insufficient to show that the two widows
relinquished their right of survivorship inter se.
The fact that two separate partition lists
were drawn up and each was signed by the two widows does not carry the matter
any further. The two partition lists show that the two velis of land kept
separately for the maintenance of the mother-in-taw were to be divided by metes
and bounds on her death between the two widows. The division of the two velis
on the death of the mother-in-law was agreed upon to avoid future disputes. The
fact that Thialaiachi had a daughter and was older than Karpagathachi by 20
years does not show that Karpagathachi mush have agreed that Thialaiachi's
daughter should enjoy the properties allotted to Thialaiachi after her death.
After the partition, the pattas in respect of all the lands continued to be in
the joint names of both the widows. If there was an absolute partition between
the two widows. it is not explained why there was no separate mutation in the
name of each widow in respect of the lands allotted to her.
The deeds executed by Thialaiachi. Exs. B--3,
B-4. B- 6. B---7 and B--8 to B---43 recite the partition, but they do not use
words indicating that there was an absolute partition. The sale 339 deeds, Exs.
A--3, A--4, and A--6 executed by both the widows are in respect of undivided
properties and throw no light on the question at issue. The evidence on the
record does not show clearly whether the sale deed', Ex. B--44, executed by
both the widows relates to undivided properties, or whether it relates to
properties as separately allotted to Thialaiachi. From time to time,
Thialaiachi executed three wills, Exs. B--I, B--2 and A--5 giving to the
legatees and particularly the respondent certain properties absolutely with
full powers of alienation. The first two wills, Exs. B--I and B--2, refer
separately to Thialaiachi's separate properties and to the properties obtained
by her on partition. The recitals in the two wills do not indicate that
Thialaiachi obtained her husband's properties on partition with absolute
rights. The third will, Ex. A--5, does not purport to dispose of specifically
the properties obtained by her on partition. Karpagathachi knew that
Thialaiachi had executed the wills, but it is not shown that she knew of the
contents of the wills. By Ex. A--2, both Thialaiachi and Karpagathachi made a
free gift of some of the properties allotted to Thialaiachi. D.W. 1 is unable
to explain why Thialaiachi joined in this deed. By sale deed, Ex. B--5,
Thialaiachi sold absolutely some of the properties allotted to her and a
notice, Ex. A--22, regarding the proposed transfer of the patta in the name of
the vendee was served upon Karpagathachi. It is not clear if the patta was
actualy transferred in the name of the vendee.
The explanation of Karpagathachi that she
protested against the transfer and ultimately received' one half of the sale
price has not been believed. But assuming that Karpagathachi did not object to
the transfer, this single circumstance does not establish that at the time of the
partition, he had agreed to give up her right of survivorship in respect of he
properties allotted to Thialaiachi.
Karpagathachi (P.W. 1) denied that there was
an absolute partition. She was not shaken in cross-examination.
Nataraja Pillai P.W. 2) said that there was
no talk that each should take the properties absolutely and it was agreed that
each would enjoy separately. We find nothing in the evidence of P.W. 2 to show
that the widows agreed to partition the properties absolutely so as to destroy
the right of survivorship.Manickam Pillai (D.W. 1) said that at the time of the
partition, Thialaiachi said that she had a daughter and if what was allotted
for her share was given to her absolutely she would agree to the partition and
Karpagathachi also wanted to have absolute rights. The District Judge rightly
rejected evidence of D.W. 1. The partition lists were drawn up after consulting
1 is unable to explain why words indicating
absolute partition were not used in the partition lists. D.W. 1 had been in
management of the properties of the respondent, yet he falsely denied this
fact. He had intimate dealings with Thialaiachi and the respondent. On a
meticulous examination of the oral and documentary evidence, the learned
District Judge rejected the respondent's case that the widows had orally agreed
to relinquish their 3 SCI---9 340 right of survivorship. We think that this
finding is correct, and the High Court was in error in reversing this finding.
In the result, the appeal is allowed, the
decree and judgment passed by the High Court are set aside and those of the
trial Judge restored'. In all the circumstances, we direct that the parties
will pay and bear their own costs throughout, in this Court and also in the