Bindumati Bai Vs. Narbada Prasad
 INSC 266 (28 October 1976)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1977 AIR 394 1977 SCR (1) 988 1976
SCC (4) 626
Hindu Law--If a co-widow can relinquish right
of survivorship--Whether after relinquishment, a widow can dispose of property
One Lakshmi Dayal died in 1952 leaving behind
two widows, appellant and Shantibai. In 1954, Chandanbai widow of brother of
Laxmi Dayal filed a suit against the appellant and Shantibai in respect of the.
properties left by Lakshmi Dayal. During the. pendency of the said suit, the
appellant, Shantibai and Chandanbai executed a partition deed alloting
different properties to each one of the widows.
The partition deed was registered and
necessary mutation entries were made. The suit filed by Chandanbai was disposed
of in terms of the Partition Deed. In September.
1955, Shantibai made a will in favour of the
respondent and she died on 29-5-1956. After her death, the appellant took
forcible possession of the suit land from the respondent.
The respondent, therefore, filed a suit
against the appellant for possession of the land in dispute. The Trial Court,
the first Appellate, Court and the High Court in Second Appeal came to the conclusion
that the appellant had relinquished her right of survivorship in lands which
fell to the share of Shantibai and, therefore, decreed the respondefts suit.
In an appeal by Special Leave the appellant
1. The appellant did not relinquish her right
2. It is not permissible for a Hindu co-widow.
to give up her right of survivorship even by an agreement.
3. Even if right of survivorship can be given
up during the lifetime of the widows concerned, the property could have been
transferred inter vivos but could not have been disposed of by a will.
Dismissing the appeal,
HELD: 1. It is clear from the Partition Deed
and the evidence of the appellant herself that she had relinquished her right
of survivorship. The findings of all the courts below to the effect that the
appellant relinquished her right of survivorship are correct. [990 B-C]
2. It is permissible under Hindu Law for a
co-widow to relinquish by agreement her right of survivorship' in the property
which falls to the share of the other widow. [990 G] Karpagathachi & Ors.
v. Nagarathipathachi  3 SCR 335 followed.
Bhuowan Deen Doobey v. Myna Baee (1867) 11
Gauri Nath Kakaji v. Gaya Kaur (1928) LR 55
IA 299 referred.
Commissioner of Income-Tax v. Smt. Indira
Balakrishna  3 SCR 513, 517 distinguished.
Ramakkal v. Ramasami Naichan (1899) ILR, 22
Mad. 522, Sudalai Ammal v. Comathi Ammal (1912) 23 PLJ 355; Kailash Chandra
Chuckerbutty v. Kashi Chandra Chuckerbutty  ILR 24 Cal. 339; Subbammal v.
Lakshmana Iyer (1914) 26 MLJ 479; Ammani Ammal v. Perissemi Udayan (1923) 45
MLJ 1 referred to.
3. The power of a co-widoW to execute a will
in respect of the property falling to her share in the partition with the other
co-widows is co-extensive with her power to transfer it inter vivos.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 870 of 1968.
(From.the Judgment and Order dated 22.11.1967
of the Madhya Pradesh High Court in Second Appeal No. 436/64.
G.L. Sanghi and D.N. Misra for the appellant.
P.H. Parekh (amicus curiae) for the
The Judgment of the Court was delivered by
KRANNA, J.--This appeal by special leave is against the judgment of the Madhya
Pradesh High Court affirming on second appeal the decision of the trial court
and the first appellate court whereby suit for possession of the land in
dispute had been decreed in favour of the plaintiff-respondent against the
Laxmi Dayal died in 1952 leaving the lands in
dispute and some other properties. He was succeeded by his two widows,
Shantibai and Bindumati. In 1954 Chandanbai, widow of brother of Laxmi Dayal,
filed civil suit No. 34A of 1954 against Shantibai and Bindumati in respect of
the property left by Laxmi Dayal. During the pendency of that suit, a deed of
partition was executed by Shantibai, Bindumati and Chandanbai, as a result of
which each one of them was stated to have become full owner of the property
which fell to her share. The partition deed was got registered and necessary mutation
entries were made in accordance with that deed.
On September 8, 1955, Shantibai made a will
of the property which fell to her share as a result of partition,. in favour of
the plaintiff-respondent. The suit filed by Chandanbai was disposed of on February
18, 1956 in terms of partition deed dated January 13, 1955. Shantibai died on
May 29, 1956. The respondent filed the present suit against Bindumati
defendant-appellant for possession of the land in dispute on the allegation
that he (the respondent) had taken possession of the land in dispute in
pursuance of the will executed in his favour by Shantibai. The appellant was
stated to have relinquished her right of survivorship in the land which fell to
the share of Shantibai. The appellant, it was further pleaded, had taken
forcible possession of the land in dispute.
The suit was resisted by the appellant on the
ground that she had not relinquished her right of survivorship in the land
which fell to the share of Shantibai. Shantibai, it was further averred, had no
right to dispose of the said land by will. The trial court accepted the
contention of the respondent and decreed his suit. The decision of the trial
court was affirmed on appeal by the first appellate court and by the High Court
in second appeal.
The first question which arises for
consideration in this appeal is whether the appellant relinquished her right of
survivorship in the property which fell to the share of Shantibai as a result
of the deed of partition dated January 13, 1955. In this respect we find that
each 990 of the three executants stated in that deed that none of them would
have any right or claim over the property that fell to the share of other
shareholders in partition. it was further stated in the deed:
"Every shareholder may get the property
fallen to her share, mutated and may take possession thereof and thus may
become absolute owner thereof. 'Every shareholder may get her name separately
mutated in Patwari's papers. She may sell it. If other shareholder claim it, it
will be contrary to law .......... By taking our respective share from the
entire property in the partition we become separate from the entire
property." When she came into the witness box, the appellant admitted that
their object in making the partition was that they would be able to dispose of
their separate lands in any way they liked. The appellant also stated that as a
result of partition, each one of the executants of the deed of partition became
exclusive owner of the property that fell to her share. In the face of the
recitals in the deed of partition and the admissions made by the appellant in
the witness box, we find no reason whatsoever to disturb the finding of the
courts below that the appellant had relinquished her right of survivorship in
the property which fell to the share of Shantibai.
Mr.Sanghi on behalf of the appellant,
however, contends that it is not permissible in Hindu law for a widow to give
up her right of survivorship in the property which fails to the share of the
co-widow even as a result of an agreement. This contention, in our opinion, is
devoid of force and runs counter to the decision of this Court in the: case of
Karpagathachi & Ors. v. Nagarathipathachi.(1) As observed in that case,
"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 Dhuowan Deen Dobey v. Myna Baee(2), Gauri Nath
Kakaji v. Gaya Kuar(3). 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(4). 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 of the portion allotted to the other see Ramakkal v.
Ramasami Naichan (5),, Sudalai Ammal v. Gomathi Ammal(6). Likewise, two
daughters succeeding to their father's estate as joint (1)  3 S.C.R. 335.
(2) (1867) 11 MIA 487.
(3) (1928)L.R. 55 I.A. 299.
(4)  3 S.C.R. 513,517.
(5) (1899) I.L.R 22 Mad, 522, (6) (1912) 23
M.L.J., 355, 991 tenants with rights of survivorship could enter into a similar
arrangement, see Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty
(1), Subbammal v. Lakshmanu Iyer(2), Ammani Ammal v. Periasami Udavan.(a) Such
an arrangement was not repugnant to section 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
relinquish her right of survivorship in the portion allotted to the
other." There is nothing in the decision of Smt. Indira Balakrishna
(supra) which stands in the way of any mutual arrangement between the co-widows,
the effect of which would be to preclude the right of survivorship of each to
the portion allotted to the other. The question which actually arose for
decision in that case was whether the three widows of a deceased person could
have the status of an association of persons within the meaning of section 3 of
the Indian Income-tax Act, 1922. This question was answered in the negative.
While discussing this question, this Court observed that though the widows take
as joint tenants, none of them has a right to enforce an absolute partition of
the estate against the other so as to destory the right of survivorship. The
question as to whether the right of survivorship could be relinquished as a
result of mutual agreement did not arise for consideration in that case.
This question was dealt with in the case of
Karpagathachi (supra) and it was held after noticing the decision in Smt.
Indira Balakrishna's case (supra) that such
relinquishment of the right of survivorship was permissible as a result of
Lastly, it has been argued by Mr. Sanghi that
even though Shantibai became entitled to dispose of during her life time the
property which fell to her share as a result of the deed of partition, she
could not bequeath the same by means of a will. This submission too is devoid
of force, and we agree with Mr. Parekh who argued the case amicus curiae that
the power of Shantibai to make a will in respect of the property in dispute was
co-extensive with her power to transfer it inter vivos. The question as to what
effect the will would have on the right of the male reversioner, if any, of
Laxmi Dayal need not be gone into in this case. So far as Bindumati appellant
is concerned, we have no doubt that in the light of the arrangement contained
in the deed of partition dated January 13, 1955 she cannot resist the (1)
(1897) ILR. 24. cal. 339. (2) (1914) 26 M.L.J. 479, (3) (1923) 45 M.L.I. 1.
992 claim of the plaintiff-respondent who is
a legatee under the will of Shantibai. To hold otherwise would be tantamount to
permitting the appellant to assert her right of survivorship in the property
which fell as a result of partition to the share of Shantibai even though the
appellant has relinquished such right of survivorship.
The appeal consequently fails and is
dismissed. As no one appeared on behalf of the respondent, we make no order as
to the costs of the appeal.