Krishnabai Deshmukh Vs. Tuljeramarao
Nambiar & Ors [1979] INSC 134 (31 July 1979)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
DESAI, D.A.
CITATION: 1979 AIR 1880 1979 SCC (4) 60
CITATOR INFO :
E 1980 SC1173 (10)
ACT:
Interpretation-Deed of Settlement-Intention-How
could be gathered.
Evidence Act, s. 92-When applicable.
Hindu Law-Family partition-Intimation to live
separately-Whether should be explicit.
HEADNOTE:
The grandfather and great-grand-father of the
respondents and the father of the appellant were brothers.
By a registered deed (Ext. 39) the elder
brother purportedly gave the younger brother (appellant's father) some lands
for separate living and maintenance of himself, and his male lineal descendants
forever. The lands in dispute were a part of the lands covered by the deed.
In their suit, the plaintiffs alleged that
the suit lands were part of Desgat Watan estate which, by virtue of an
immemorial family and territorial custom, was impartible and the junior members
were given lands only for their maintenance, and that till his death, the
appellant's father continued, to be an undivided member of the joint family
consisting of himself and the plaintiffs, and that on the death of the
appellant's father the lands should go to them.
The trial court held: (1) that the
impartibility of the estate and the rule of primogeniture had not been proved;
(2) that there was severance of the joint
family in 1902 since when the brothers were living separately; (3) that on the
abolition of Watans by Bombay Act 60 of 1950, the suit lands which originally
were Watan lands, were re-granted in favour of the appellant's father and that
the plaintiffs tacitly assented to the regrant of the lands exclusively in his
favour.
On appeal, the High Court affirmed the view
of the trial court that the estate was not impartible and that the onus of
proving partition was on the defendant (appellant herein). It was held that
Ext. 39 did not establish that the brothers were divided in 1902 and that the
suit lands were allotted to the appellant's father; that on the erroneous but
honest belief that Desgat lands were impartible, the elder brother granted the
lands to his brother and his descendants in the male line in lieu of their
maintenance and that the younger brother having died without male issue, the
tenure came to an end whereupon the plaintiffs who were the surviving male
members of the family, were entitled to resume the lands. The High Court
remitted the matter to the trial court with certain directions.
In appeal to this Court, the appellant
contended: (i) that her father prior to the execution of Ext. 39, had clearly
intimated to his brother his intention to divide the estate and to live
separately after division, resulted in a severance of the joint family status,
and that such severance was evident from the recitals in Ext. 39 and the
subsequent conduct of the members of the erstwhile family.
162 Since the appellant's father after such
division was holding, the suit lands as his separate property, the same were inherited
by the appellant to the exclusion of the plaintiffs. (ii) Since the regrant of
the suit lands to the appellant's father created new rights exclusively in his
favour, the regrant did not enure for the benefit of the plaintiffs.
Allowing the appeal and dismissing the
plaintiff's suit
HELD: 1. Unity of ownership and commonsality
of enjoyment are the essential attributes of an undivided Hindu family of
Mitakshra concept. So long as the family remains undivided no member can
predicate a definite share to himself. Cesser of this unity and commonsality
means cesser or severance of the joint family status, which in Hindu Law
amounts to partition, irrespective of whether it is accompanied or followed by
a division of the properties by metes and bounds. Disruption of joint status
covers both division of right and division of property. Division of joint
status may be brought about by any adult member of the joint family by
intimating the others his intention to separate and enjoy his share in the
family property in severalty. Such intimation may be an explicit declaration
(written or oral) or manifested by conduct of the members of the family.
[170A-B] (i) In the instant case, Ext. 39 speaks of a division of the joint
family status and separation of interests. The trial judge translated the term
"Vibhaktarahave" in Marathi, as connoting division of status. But the
High Court did not agree with the translation made by the trial judge, and
preferred to rely on the translation by the High Court translator. Except for
the English translation of the word "Vibhaktarahave" there is no
substantial difference between the two translations. [171 A-B] The word
"Vibhaktarahave" is a compound of two words viz.,
"Vibhakta" and "Rahave". "Vibhakta" appears to
have its roots in the Sanskrit word "Vibhaga". "In the
Mitakshra, Vijnanesvara, defines the word 'Vibhaga', which is usually rendered
into English by the word 'partition' as the adjustment of diverse rights
regarding the whole by distributing them in particular portions of the
aggregate".
"Rahave" means "living".
Understood in its etymological sense the word "Vibhaktarahave" means
living separately after division.[172H] (ii) None of the four features which,
according to the High Court, militate against the literal interpretation of the
word "Vibhaktarahave", viz., that the deed was one for maintenance,
that it was executed by the elder brother, that the lands were given to the
appellant's father and his descendants in the male line and that the
appellant's father would not have remained contended with only a small portion
instead of claiming entire half-share detracts from the conclusion that in
substance and reality the document evidence a division of joint family status
as a result of an intimation by the appellant's father to his brother of his
intention to live separately after division. [173D]
2. Section 92 of the Evidence Act prohibits
only the varying of terms of a document, not the memorandum or recitals of
facts, bereft of dispositive terms, particularly when the correctness of the
whole or any part of the recital is in question. [174E] 163 In the instant case
the preliminary recital does not fall under the dispositive or operative
portion of the document. The bar under s. 92 against the admissibility of
extrinsic evidence for the purposes of showing that the insertion of the words
'for your maintenance' in the recital is wrong, is not attracted. [174G]
3. (a) When there is a dispute in regard to
the true character of a writing evidence de hors the document can be led to
show that the writing was not the real nature of the transaction but was only
illusory which cloaked something else and that the apparent state of affairs
was not the real state of affairs. [174H] Chandi Prasad Singh v. Piari Bidi, CA
No. 75 of 1964, decided on 16-3-1966, Bhagwan Dayal v. Reoti Devi, [1962] 3 SCR
440; referred to.
(b) The preliminary recital in Ext. 39 raises
an inference that sometime prior to the date of the deed the younger brother
had clearly intimated to his coparcener of his intention to sever the joint
family status and to enjoy the joint family property in severalty. Disruption
of the joint family status ensued. From that date onwards the brothers ceased
to be coparceners. That is, at the time of the execution of the deed, joint
family status did not exist. There is no evidence that after the severance of
the joint family status there was a re-union. [175 E-F] (c) It cannot be said
that the preliminary recital furnished little or no evidence that the younger
brother intimated in clear terms his intention to sever the joint family
status. The document had been let in evidence more than 70 years after its
execution. All those who might have given evidence were dead. In such a
situation it is permissible to draw reasonable inferences to fill the gap of
details obliterated by time. [175H; 176A] Chintamanibhatla Vankat Reddy v. Rani
of Wadhawan; 47 I.A. 6 at p. 10; Sree Sree Iswar Gopal Jien Thakur v.
Pratapmal Begaria, [1951] SCR 332; referred
to.
(d) Once it is found that the division of
joint status preceded the execution of the deed, the elder brother had no power
to impose a condition that the land was being given to his younger brother and
male lineal descendants for their maintenance. [176 E-F] (e) The expression
'Potgi' (maintenance) or 'Nirwahkrit' used in the deed could not be construed
as conferring an estate with restricted rights of ownership to the younger
brother and his descendants. The deed evidences a permanent transfer of land to
be enjoyed from generation to generation. Moreover the younger brother remained
in full ownership of the land till his death. After the abolition of Watans he
alone applied for re-grant of this land in his favour. The plaintiffs were
aware of this position. [177A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 54 of 1969.
From the Judgment and Order dated 23-10-1968
of the Mysore High Court in R.F.A. No. 25/63.
B. D. Dal, S. Bhandare, A. N. Karkhanis and
Miss M. Palival for the Appellant.
V. S. Desai and N. Nettar for the Respondent.
164 The Judgment of the Court was delivered
by SARKARIA, J. This appeal by the defendant, on certificate, is directed
against a judgment, dated October 23, 1968, whereby in First Appeal, the High
Court of Mysore set aside the judgment and decree passed by the joint Civil
Judge, Senior Division, Belgaum.
The pedigree of the family given below will
be helpful in understanding the facts leading to this appeal:
Ravalojirao (died before 1900) |
------------------------------------------- | | Narayanarao Ramachandrarao
(died in 1924) (died on 20-1-1955) | | Tuljeramarao Krishnabai (died in 1944)
(Defendant-appellant) | | ------------------------------------------- | |
Appasaheb Nanasaheb (Pltf.1.) (Pltf.2.) Sou. Vasundhararaje (Pltf. 3.) |
------------------------------------------------------------ | | | | | | Ashok
Kumar Pushpendra Virendra Indrajit Ravalogirao | (Pltf.3) Singh Singh Singh
(Pltf.9) | (pltf.6) (pltf.7) (pltf.9) Narayanarao (Pltf.10) By a registered
document, dated July 25, 1902 (Ex. 39), executed by Narayanarao, six Desgat
lands situated in villages Nanandi, Umarani and Nandikurli totalling about 120
acres, were received by Ramachandrarao, for separate living and maintenance of
himself and his male lineal descendants.
Out of the lands covered by the said deed,
three lands comprised in Survey Nos. 114 (26 acres-30 gunthas), 115 (9 acres-38
gunthas) and 116 (26 acres-34 gunthas), totalling about 63 acres and 22
gunthas, situate in the area of village Umarani, Taluka Chikodi, are the
subject-matter of the suit, out of which this appeal has arisen.
The respondents herein, who are the
grand-sons and great grandsons of Narayanarao, on July 24, 1960, instituted
Suit No. 26/60 in the Court of Civil Judge, Belgaum against Smt. Krishnabai,
appellant, for possession of the said lands and for recovery of past and future
mesne profits, with these allegations: (i) that the suit lands were Desgat
Watan lands and were part of the Desgat Watan estate of Nanandi, (ii) that by
virtue of an ancient and immemorial family and territorial custom, the Desgat
estate of Nanandi was impartible and descended from generation to generation to
the seniormost member by the rule of primogeniture, while the junior members of
the family were only given some lands for their maintenance by the holder of
the Desgat for the time being; (iii) that till his death, 165 the appellant's
father continued to be an undivided member of the Joint family consisting of
himself and the plaintiffs; and (iv) that on July 31, 1956, a partition by metes
and bounds has taken place between the plaintiffs inter se under a partition
deed.
The suit was resisted by the
defendant-appellant. She denied the alleged ancient, family and territorial
custom of primogeniture. She denied that the property formed part of the Desgat
Watan estate of Nanandi. She further denied that her father, Ramachandrarao,
came into possession of the suit land for his maintenance. She further pleaded
that Ramachandrarao and his brother Narayanarao had separated during their
life-time and the suit lands and some other lands were given to Ramachandrarao
in the partition between the two brothers towards a part of his share, and it
was agreed that the share of Ramchandrarao in other family properties would be
separated and settled at some future convenient time. She further stated that
since 1902, Ramachandrarao was in separate possession and enjoyment of the suit
lands till his death on January 20, 1955, and that at the time of his death he
was not an undivided member of the joint family of himself and the plaintiffs.
She further pleaded that on her father's death she succeeded to the suit lands,
which were his separate property. She further relied on the Bombay Pargana and
Kulkarni Wantans (Abolition) Act, 1950 (Bombay Act No. 60 of 1950), (for short,
called the Act), and the re-grant of the land made in favour of her father,
under that Act.
The learned trial judge by his judgment,
dated September 29, 1962, dismissed the respondents' suit with these findings:
(a) that the alleged custom of impartibility
and devolution of property by the rule of primogeniture had not been proved;
(b) that there was a severance of the joint
family consisting of the two brothers, in 1902, when they had agreed to
separate, that since then for about 53 years till his death in 1955,
Ramachandrarao was living separately and enjoying the suit land as his separate
property;
(c) that the suit lands were originally Watan
lands, but they were not so at the date of the suit because the Bombay Act 60
of 1950, which came into force on May 1, 1951, had abolished Watans and
thereafter the suit lands were, on the application of its holder,
Ramachandrarao, regranted in his favour; that the plaintiffs were aware of
Ramachandrarao's application for the regrant and they had tacitly assented to
the regrant in his favour.
166 Aggrieved, the plaintiffs preferred an
appeal in the High Court of Mysore. The High Court affirmed the finding of the
trial court, that the custom pleaded by the plaintiffs with regard to the
impartibility of the property had not been established. It observed that
"the onus of proving partition is on the defendant, "but the only
evidence in support of her case that Ramachandrarao was divided, is Exhibit No.
39". The High Court construed the deed (Ex. 39) with the aid of its
translations into English, one made by the trial judge and the other by the
High Court Translator.
It then took note of these features in
support of the 'theory of partition':
"(a) Permanency of the arrangement. The
deed provides that Ramachandrarao and his descendants in the male line shall
enjoy the property from generation to generation without interference from the
grantor.
(b) Cesser of commonsality. The deed says
that Ramachandrarao desired to live separately and therefore the lands were
granted to him. The evidence is that Ramachandrarao lived separate from 1902.
There is no evidence to the contrary." It then listed these features to
negative the 'theory of partition':
"(a) The nomenclature of the deed. It is
styled as a deed of maintenance.
(b) It was executed by one of the parties
only. If it was intended to be a partition deed it would have been executed by
both the parties each relinquishing his rights in the properties not allotted
to him.
(c) The deed says that the lands were given
to the grantee and his descendants in the male line for maintenance only and
they should enjoy the lands continuously.
(d) The total extent of the Desgat lands was
over eight thousand acres; if partition was intended, Ramachandrarao who was
entitled to a one-half share would not have been contented with 90 acres valued
at Rs. 3,400/-." After cataloguing these pros and cons the High Court
concluded:
"In our judgment, Exhibit 39 considered
along with the circumstances in which it was executed, does not establish the
defendant's case that Ramachandrarao was divided from Narayanarao in 1902 and
that the suit lands, among others, were allotted to Ramachandrarao's share. We
are of the view that on the erroneous but honest belief that Des- 167 gat was
an impartible estate, Narayanarao granted the lands to Ramachandrarao and his
descendants in the male line in lieu of their maintenance. When Ramachandrarao
died without male issue, the interest granted ceased or the tenure came to an
end. The plaintiffs who are the surviving members of the family are entitled to
resume the lands." Although no such plea was taken by the plaintiffs in
the plaint, the High Court held that in view of Section 90 of the Indian Trust
Act, the regrant made, after the abolition of Watans, under the Act in favour
of Ramachandrarao must ensure for the benefit of the family of the Watandars
including the plaintiffs, because Ramachandrarao at the time of his death was
holding the suit land as an undivided member of the joint family, for his own
benefit and that of the other members of the undivided family.
Since there was no evidence as to the
occupancy price paid by Ramachandrarao to obtain the regrant, the High Court,
after allowing the appeal and setting aside the decree of the Trial Court,
remanded the matter to the court below, with a direction that it should
ascertain the amount of occupancy price paid by Ramachandrarao, and then pass a
decree for possession in favour of the plaintiffs subject to the repayment of
the said amount.
Hence this appeal by the defendant on the
basis of a certificate granted by the High Court under Article 133(1)(e) and
(c) of the Constitution.
Shri B. A. Bal, learned counsel for the
appellant, has, in the course of his arguments, sought to make out two main points:
1. (a) Sometime prior to the execution of the
deed.
(Ex. 39) dated July 25, 1902, there was a
severance of the joint Hindu family as a result of an intimation by
Ramachandrarao of his intention to separate and Narayanarao's acceptance of the
same. Such severance can he clearly inferred from:
(i) the recitals in the deed (Ex. 39), the
permanent allocation of the suit land along with some other land, to
Ramachandrarao and his descendants, and (ii) the subsequent conduct of the
members of the erstwhile joint family.
(b) Since the deed (Ex. 39) (it is argued) is
more than 75 years old and Narayanarao, Ramachandrarao and others who might
have given evidence with regard to the circumstances resulting in this
transaction are all deed and gone, the recitals, in the deed coupled with the
subsequent conduct of the parties, and supplemented by reasonable inferences,
were more than sufficient to discharge the initial 168 onus, if any, on the
defendant to show severance of the joint family since 1902 or thereabout and
the same continued till Ramachandrarao's death in 1955. Reference in this
connection has been made to Bhagwan Dayal v. Mst. Reoti Devi.(1) (c) Since at
the time of his death in 1955, Ramachandrarao was not a member of an undivided
Hindu family and the suit land was his separate property, his daughter the
defendant would, even according to traditional Hindu Law, inherit his estate to
the exclusion of the plaintiff- collaterals.
(2) Section 4 of the Bombay act 60 of 1950
abolished Watons with effect from May 1, 1951. Section 5 of the same Act
abrogated the rule of primogeniture and also every law or custom by virtue of
which females were postponed to males in the matter of succession. After the
abolition of the Watons Ramachandrarao alone, to the knowledge of the
plaintiff-respondents, obtained a regrant of the suit land from the Government
in his favour. Similarly, the plaintiffs applied for regrant of the other
Ex-watan lands measuring about 8000 acres, to the exclusion of Ramachandrarao.
The regrant of the suit land in favour of Ramachandrarao created new rights
exclusively in his favour. Since on May 1, 1951 he was holding the suit land
separately as a divided member of the family, the regrant did not ensure for
benefit of the plaintiffs.
As against this, Shri V. S. Desai submits
that since it was the admitted case of the parties that sometime before the
execution of the deed (Ex. 39) dated July 25, 1902.
Narayanarao and Ramachandrarao constituted a
joint Hindu family governed by Mitakshra, and the presumption of jointness in
case of brothers is stronger, the burden was on the defendant to prove by
cogent and convincing evidence that the joint family had disrupted and
Ramachandrarao had separated in 1902 and the suit land was his separate property
which fell to his share in partition. It is maintained that the recitals in the
deed, Ex. 39, do not furnish any evidence that Ramachandrarao had communicated
an unambiguous and clear intention to separate from his brother in estate and
thenceforth hold it in defined shares. It is urged that the transaction
evidenced by the deed should be construed by the Court, not according to its
own sense of right and wrong, but according to the notions and beliefs
prevailing among orthodox Hindus in 1902, of a strata of society to which
Narayanarao and Ramachandrarao belonged. In 1902, proceeds the argument, to
cause disruption of a joint Hindu family of Watandars 169 was considered to be
a sin. According to Shri Desai, if the document, Ex. 39, is considered from
that view-point it would appear that the arrangement devised thereby was
consistent with the continuance and preservation of the jointness of the family
and its estate, rather than its division and disruption. It is pointed out that
the area of Watan Land held by the joint Hindu family in 1902 was about eight
thousand acres, and if the intention of the brothers was to sever the joint
family status, there was no difficulty in declaring that thenceforth the two
brothers would hold the entire estate in equal, defined shares. It is
emphasised, though Ramchandrarao, died in 1955, he never asked for partition
and possession of his one-half share in the remaining seven or eight thousand
acres held by Narayanarao and his descendants, but remained contented with a
mere 118 or 120 acres given to him for maintenance under Ex. 39 in 1902. It is
further submitted that the Court cannot construe the deed Ex. 39, as a deed of
partition, but only as a deed of maintenance, as it, expressly purports to be,
because in view of Section 92 of the Evidence Act no extrinsic evidence is
admissible to contradict or vary its terms.
In support of his arguments Shri Desai has
referred to Paragraph 448 of Mayne's Hindu Law (1953 Edn.).
Learned counsel further submits that in view
of the paucity of evidence produced by the defendant-appellant to show division
of the joint-family, the High Court was right in holding that Ramchandrarao
died as an undivided member of the joint Hindu family consisting of himself and
the plaintiffs. It is submitted, in that view of the matter, the second point
urged by Shri Bal does not survive for decision. Nevertheless, Shri Desai took
us through the relevant provisions of the Bombay Act LX of 1950 and the Watan
Act of 1874, to show that there is nothing in those provisions which militates
against the finding of the High Court to the effect, that if Ramchandrarao died
as an undivided member of the joint family, the regrant would enure for the
benefit of all the members of the family.
We will take Point No. 1 canvassed by Shri
Bal. The primary question that falls to be considered is, whether in 1902 or
shortly prior to it, there was a partition between the two brothers-Narayanarao
and Ramchandrarao-in a manner known to law. In this connection, it is
necessary, at the outset, to notice the fundamental principles of Hindu Law
bearing on the point. The parties are admittedly governed by Mitakshra School
of Hindu Law. In an undivided Hindu family of Mitakshra concept, no member can
say that he is 170 the owner of one-half, one-third or one-fourth share in the
family property, there being unity of ownership and commonsality of enjoyment
while the family remains undivided. Such unity and commonsality or the
essential attributes of the concept of joint family status. Cesser of this
unity and commonsality means cesser or severance of the joint family status,
or, which under Hindu Law is 'partition' irrespective of whether it is
accompanied or followed by a division of the properties by metes and bounds.
Disruption of joint status, itself, as Lord Westbury put it in Appovier v. Rama
Subha Aivan.,(1) in effect, "covers both a division of right and division
of property." Reiterating the same position, in Giria Bai v. Sadashiv,(2)
the Judicial Committee explained that division of the joint status, or
partition implies " separation in interest and in right, although not
immediately followed by a de facto actual division of the subject matter. This
may, at any time, be claimed by virtue of the separate right." The
division of the joint status may be brought about by any adult member of the
joint family by intimating, indicating or representing to the other members in
clear and unambiguous terms, his intention to separate and enjoy his share in
the family property, in severality. Such intimation, indication or
representation may take diverse forms. Sometimes it is evidenced by an explicit
declaration (written or oral); sometimes, it is manifested by conduct of the
members of the family in dealing separately with the former family properties.
Service of notice or institution of a suit by one member/coparcener against the
other members/coparceners for partition and separate possession may be
sufficient to cause disruption of the joint status.
We will now deal with the first proposition
propounded by Shri Bal, in the light of these principles. The primary question
that arises for consideration is, whether Ramchandrarao had brought about a
division of the joint family status or partition by intimating to his brother
in clear terms, sometime in 1902 or shortly prior thereto, his intention to
separate and enjoy his share in severality.
Answer to this question depends on inferences
which may, reasonably be drawn from the contents of the deed (Ex. 39) and the
subsequent conduct of the parties.
The original deed, Ex.39 is in Marathi. It
was rendered into English by the trial judge himself, who concededly had
adequate knowledge of Marathi. According to him, the deed (Ex.39) speaks of a
division of 171 the joint family status and separation of interests. For this
construction, the trial judge drew much on the word "Vibhaktarahave"
which, according to him, connotes division of status. The learned Judges of the
High Court however, did not accept this interpretation. They preferred to rely
on the English translator of this deed made by the High Court Translator. Since
there is some variation between the two translations, it will be worthwhile to
extract the same here for facility of comparison and reference.
The translation effected by the trial judge,
reads as under:
"You (Ramchandra Rao) are my younger
brother. We were living jointly till today. Recently you have desired to take
some property for maintenance (Nirwah Kurat) and live separate after division
(Vibhaktarahave).
Since I have deemed it proper to give you
some property for your maintenance as befits our Sansthan, I have given you the
following properties for your maintenance. (Then follows the description of the
properties). All these lands have been given to you along with the
appurtenances for meeting the livelihood of you and your family members. Hence,
you and your successors i.e., your natural born male descendants should enjoy
the properties from generation to generation and live happily. The Sansthan
will not interfere with the lands any longer. Only you and your natural male
descendants should enjoy the property. You shall also pay the Joodi to the
Government hereafter." (The disputed words have now been underlined).
The translation made by the High Court
Translator reads as below:
"You are my younger brother and you have
been residing with me only in jointness up till now. As you have been recently
thinking of residing separately yourself by receiving some properties for your
maintenance, I found it proper to give you some property for your maintenace as
befits our Sansthan and have given you for your maintenance the 'Desgat' lands
of our Khata situate in the below mentioned villages in Taluka Chikodi
Sub-District, Belgaum District.
Particulars thereof are as under: Lands
situate at Village Nanadi. (1) Bagayat Land of No. bearing Survey No. 189
measuring 14 acres 23 guntas assessed at Rs. 20-0-0. The land together with a
well valued at Rs. 1000/-. (2) The land 172 measuring 9 acres 30 guntas
assessed at Rs. 41-8-0 out of Survey No. 187 is bounded on the east by a land
in our possession out of the same No. on the west by the village limits, on the
south by the land No. 196 and on the north by the land bearing Survey No. 198.
In the land enclosed within the aforesaid boundary there is a well. This well
has two "Veravantas" i.e. one on the Eastern side and another on the
Southern side. It has 10 'motes'. Out of the 'motes' of that well we are to get
water with 3 'motes' and you are to get water with 2 'motes'. Repairs to the
said well also are to be carried in that portion only and the expenses required
to remove the mud etc., are also to be borne in the same proportion itself.
Value Rs. 1000/- Lands situate at the Village
Umarani.
Rs. No. Acres Assessment 3 99 26-30 14-0-0
The said 3 4 100 9-38 9-0-0 lands are 5 101 26-34 17-0-0 entire No.
and are valueed at Rs. 1000/- together with
the appurte- nant thereof.
Land situate at Majere Kenpatte in the
Village Nandikurli.
6 120 24-18 9-0-0 This land of entire No.
together with the appurtenances thereof is valued at Rs.400/-.
The lands as mentioned above are given to you
for your maintenance and the maintenance of your dependants. Hence, you and
your descendants, i.e., natural male descendants should enjoy the said lands
continuously and live happily. In respect of the said lands given to you, you
will not be put to any trouble from the state (Sansthan) in any manner but, the
said lands are to be continued with you and your natural male descendants. You
should go on paying the joodi payable by you to the Government in respect of
the said lands in our possession are given to your possession today. To the
above effect the deed of maintenance is duly executed." A comparative
study of the above extracts would show that except for the English rendering of
the word "Vibhaktarahave" by the learned trial judge, there is no
substantial difference between the two translations. The Marathi word
"Vibhaktarahave", according to my learned Brother on this Bench, who
has working knowledge of Marathi, is a compound of two words, namely,
"Vibhakta" and "Rahave".
"Vibhakta" appears to have its root
in the Sanskrit word "Vibhaga". "In the Mitakshra, Vijnanesvara
defines the word 173 "Vibhaga" which is usually rendered into English
by the word "partition" as the adjustment of diverse rights regarding
the whole, by distributing them in particular portions of the aggregate."
(See Para 448 of Mayne's Hindu Law, 11th Edition.) 'Rahave' means
"living". In view of this etymological analysis, it cannot be said
that the learned trial judge's interpretation of the word
"Vibhaktarahave" as equivalent to "live separately after
division" was literally wrong. Even the learned Judges of the High Court
(who did not claim to know Marathi), have not held in categoric terms that this
translation of "Vibhaktarahave" made by the trial judge is
grammatically wrong. What the learned Judges appear to say is that the context
in which the word "Vibhaktarahave" has been used, gives it a meaning
different from its grammatical sense, so that it cannot be understood as
signifying an intention to divide, but connotes only a desire to live
separately. The learned Judges have sorted out four features from the context
of the deed, Ex. 39, which, according to them, militate against the literal
interpretation of the word "Vibhaktarahave" and negative the theory
of division of status. Those features-it will bear repetition are: (i) The deed
is styled as one for maintenance, (ii) It was executed by Narayanarao only,
(iii) The lands under the deed were given to Ramchandrarao and his descendants
in the male line for maintenance only, (iv) The total extent of 'Desgat' lands
was over 8000 acres.
Ramchandrarao should have claimed half of the
entire 'Desgat' area and not remained contented with about 90 acres given to
him under the deed Ex. 39).
In our opinion, none of these features, if
appreciated in the right perspective, detracts from the conclusion that there
was a division of joint family status as a result of an intimation to
Narayanarao by Ramchandrarao, of his intention to separate, followed by
allotment to Ramchandrarao in furtherance of that division, the lands mentioned
in Ex. 39. The four features listed above rested on erroneous assumptions. Even
according to the High Court, both the brothers were, at the time of execution
of the document Ex. 39, labouring under an erroneous belief that the 'Desgat'
lands were impartible and held by the eldest member of the family in the male
line, while the junior members were entitled only to maintenance. The High Court
has expressly upheld the finding of the trial Court that no custom was
established according to which, the 'Desgat' lands of the family were
impartible and vested only in the eldest male member of the family to the
exclusion of the junior members. The High Court has further not disagreed with
the trial courts finding that no custom of primogeniture in this family has
been established.
174 Once it is held that this two-fold
assumption or belief about the impartibility of the estate and its devolution
in the male line by rule of primogeniture was fallacious, the said four
features stemming therefrom, lose their significance. These features which
purport to give the transaction (Ex. 39) the colour of a mere maintenance
arrangement as distinguished from an absolute transfer or allotment, have to be
credited with no more substance than phantoms conjured out of phantasy,
probably by the sole executant of the deed with a self-serving motive. In any
case, they are words of vain show or form lacking reality.
We have therefore, to peal aside this jejune
and illusory cover, to reach at the kernel and concentrate on the crucial
features of the document Ex. 39.
We are unable to accept Shri Desai's argument
that the process adopted by us would involve contravention of Section 92 of the
Evidence Act.
Firstly, in this process, which is
essentially one of construction of the deed, Ex. 39, no question of
contradicting, varying, adding to or subtracting any term of the disposition is
involved. The deed, Ex. 39, falls into two distinct parts: The first of them
comprises the preamble or the preliminary recital of a past fact. This part
does not contain any term of disposition of property. Such terms are confined
only to the second part. Section 92 prohibits only the varying of terms of the
documents, not the memoranda or recitals of facts, bereft of dispositive terms,
particularly when the correctness of the whole or any part of the recital is in
question. We are primarily concerned with this preliminary recital which does not
fall under the dispositive or operative portion of the document. The question
is, whether or not this recital of a past oral intimation by Ramchandrarao to
Narayanarao had caused severance of joint family status. It is settled law that
a clear intimation by a coparcener to the other coparcener of his intention to
sever the joint status need not be in writing. For these two-fold reasons, the
bar in section 92 against the admissibility of extrinsic evidence for the
purpose of showing that the insertion of the words "for your
maintenance" in the recital is wrong, unreal, unmeaning and the coinage of
the executant's own brain, is not attracted.
Secondly, there is ample authority for the
proposition that when there is a dispute in regard to the true character of a
writing evidence de hors the document can be led to show that the writing was
not the real nature of the transaction, but was only an illusory, fictitious
and colourable device which cloaked something else, and that the apparent state
of affairs was not the real state of affairs.
[See Chandi Prasad Singh v. Piari Bedi C.A.
No. 75 of 1964, decided on 16-3-1966, and Bhagwan Dayal v. Mst. Reoti Devi
(supra) ].
This preliminary recital in the deed, Ex. 39
(as translated by the learned trial judge), with due emphasis on the words
'recently' and 'Vibhaktarahave', coupled with the surrounding circumstances and
natural probabilities of the case, definitely raises the inference that
sometime in the recent past, prior to the date of the deed, Ex. 39, Ramchandrarao
had clearly and persistently intimated to his coparcener, Narayanarao, his
intention to sever the joint family status and to hold and enjoy his share of
the joint family property in severalty. The immediate and inexorable
consequence of this intimation was disruption or division of the joint status,
which, in the eye of Hindu Law, amounted to 'partition'. From that date
onwards, which preceded the date of the deed, Ex. 39 Narayanarao and
Ramchandrarao ceased to be coparceners and held the former coparcenary property
as tenants-in-common. Thus, at the time of execution of the deed Ex. 39, the
joint family status did not exist; it had already been put an end to by
Ramchandrarao's intimation to Narayanarao, of his intention to divide and
separate.
If that be the true position, it was not open
even to Ramchandrarao, much less to Narayanarao, to nullify the effect of the
communication of the former's intention which had resulted in severance of the
joint status, by revoking or withdrawing that communication. Ramchandrarao
could not get back to the old position by mere revocation of the intention. A
coparcenary is purely a creature of Hindu Law;
it cannot be created, or recreated after
disruption, by the act of par- ties, save in so far that by adoption a stranger
may be introduced as a member thereof or in the case of reunion. [See
paragraphs 214 and 325 of Mulla's Hindu Law and this Court's decision in
Puttorangama v. Ranganna;
Bhagwan Dayal v. Mst. Reoti Devi (supra).]
There is hot evidence that after the severance of the joint family status,
there was a reunion.
As before the High Court, here also, an
argument was raised that the preliminary recital in the deed, Ex. 39, being
qualified, furnishes little or no evidence for a finding that Ramchandrarao had
declared and intimated in clear and unambiguous terms his intention to sever
the joint family status.
176 We are unable to accept this argument. It
has to be borne in mind that this document has been let in evidence more than
70 years after its execution. Narayanarao and Ramchandrarao and all others who
might have given evidence with regard to the circumstances of this recital in
particular, and the deed in general, are long deed and gone.
There is no dearth of authority for the
proposition that in such a situation, it is permissible to draw reasonable
inferences to fill the gaps or details obliterated by time.
[See Chintamanibhatia Vankat Reddy v. Rani of
Wadhavan; Sree Sree Iswar Gopal Jien Thakur v. Pratapmal Bagaria.
The preliminary recital in the deed,
therefore, assumes importance. Read in the light of the surrounding
circumstances and in the perspective that the 'Desgat' land was partible
coparcenary property of the two brothers, each of whom had an equal interest
therein and an equal right to get his share divided and thereafter enjoy it in
severalty, this recital establishes with a preponderance of probability, that
sometime before the execution of the deed, Ex. 39, Ramachandrarao had
communicated to his brother, in clear, unmistakable terms his intention not
only to separate in residence and user and put an end to commonsality, but also
to sever the unity of ownership and enjoy his share in severalty. The result
was division of the joint status.
Once it is found that the division of the
joint status preceded the execution of the deed, Ex. 39, then the disposition
made thereunder could only be a step towards the implementation of that
division and in recognition of Ramchandrarao's right to have his share, wholly
or partly demarcated and specified for separate enjoyment as an absolute and
exclusive owner thereof. While giving the land measuring 118 or 120 acres to
Ramchandrarao in recognition of the latter's equal right in the Desgat,
Narayanarao had no power to impose the futile condition that the land was being
given to Ramchandrarao and his male lineal descendants for maintenance. As
already discussed, this insertion by the executant from an ulterior
self-serving motive was devoid of substance; it could not be attached any
greater importance and realty than the phantasmic assumption, from which it was
conjured up: a fortiori, when in the deed, Ex. 39, there is no stipulation that
in the event of Ramchandrarao's male line becoming extinct, the land would
revert to the 'Desgat', and Narayanarao or his descendants would have a right
of re-entry.
177 We are in agreement with the trial court
that the expressions "Potgi" (maintenance) or "Nirwahkrit"
in the deed cannot be construed as conferring an estate with restricted rights
of 'ownership', limited to the lifetime of Ramchandrarao and his linear male
descendants. The deed evidence a permanent transfer or allotment of about 118
or 120 acres of land to Ramchandrarao to be enjoyed from generation to
generation to the entire exclusion of Narayanarao and his descendants. In
terms, Narayanarao did not reserve any right of reversion in favour of himself
and his branch in any circumstances. Irrigation rights also with regard to the
land transferred or allotted under this deed, were divided. It was further provided
that from the date of the deed, payment of Joodi to the Government in respect
of this land, shall also be the exclusive liability of Ramchandrarao and his
descendants.
The inference that this land, measuring about
118 acres was given to Ramchandrarao in partial implementation of division of
joint family status or partition, receives further confirmation from the
following circumstances: (a) From the date of the deed, Ex. 39, till
Ramchandrarao's death in 1955, for a period of about 53 years, the lands
disposed of by the deed, throughout remained in the full, exclusive and
uninterrupted enjoyment of Ramchandrarao. The relevant entries in the revenue
records during this period, also, stand exclusively in his name as
owner-in-possession thereof. (b) After the abolition of Watans in 1951,
Ramchandrarao alone applied for regrant of this land in his favour, under the
Watan Abolition Act. The plaintiffs were at all material times, admittedly
aware that Ramchandrarao had applied for the regrant of this land exclusively
in his favour, but they never objected, and tacitly assented to the same. On
the other hand, the plaintiffs applied and obtained regrant of the 'Desgat'
lands (other than those which were the subject of the deed, Ex. 39), in their
favour to the exclusion of Ramchandrarao.
In the light of the above discussion, we are
of opinion (i) that there was partition or division of the joint family status
sometime prior to the execution of deed, Ex. 39, and (ii) that the disposition
of about 118 or 120 acres made under that deed was, in substance an absolute
allotment of that land to Ramchandrarao, towards implementation of that
division or partition in recognition of the latter's right to have his share
demarcated by metes and bounds to be enjoyed exclusively in severalty.
Point No. 1 is thus found in favour of the
appellant.
In view of the above finding that the suit
property was the separate, divided 178 property of Ramchandrarao at the date of
his death, and under the traditional Hindu Law, would go by succession to his
daughter, the appellant herein, to the exclusion of the plaintiff-collaterals,
it is not necessary to decide Point No. 2 canvassed by the appellant.
In the result, for all the reasons aforesaid,
we allow this appeal and dismiss the plaintiffs suit with costs throughout.
P.B.R. Appeal allowed.
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