V. KALYANASWAMY (D) BY LRS. & ANR. v. L. BAKTHAVATSALAM (D) BY LRS. & ORS.

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85Copy pinpoint85. The case of the appellants is based, in fact, on their having been an oral partition between the two brothers in the year 1932. Three Courts have found no merit in this contention. In fact, the appellants also did not pursue this line of argument before us. On the other hand, the contention which is pressed before us is that when such succession opened to the estate of Rangaswami Naidu on 01.06.1955,Rangaswami B Naidu having published B1 notice dated 10.05.1955, a disruption of the joint family was effected and, therefore, Rangaswami Naidu died separate from his brother. Still furthermore, the appellants case is founded upon B10-Will executed and also got registered on 10.05.1955 by Rangaswami Naidu. C INTEREST IN HINDU JOINT FAMILY; PARTITION; ITS IMPLICATIONS

86Copy pinpoint86. In the light of these contentions, it is necessary to examine the concepts relating to Hindu Joint Family, the effect of its continuance, the manner in which, the joint family comes to an end and also the distinct shades of meaning to the expression ‘division of a joint family’. Also, we must consider the right of a Hindu in regard to making a Will and the limitation on the same.

87Copy pinpoint87. In Appovier v. Rama Subba Aiyan and others35, the Privy Council had occasion to consider these concepts. The appellants before the Court, who were unsuccessful in all the three courts in India, contended that despite there been a division in a Hindu Joint Family, it was not still effective insofar as it had not culminated in a partition by metes and bounds. It was dealing with this question that the court held, inter alia, as follows: F “1. This is an appeal brought from a decree of the Sudder Court at Madras, which affirmed the decree of the Zillah Court of Tinnevelly, which itself affirmed the original decree of the Sudder Ameen of that District. It is, therefore, an appeal from three decrees, unanimous in rejecting the claim of the Appellant. The G present appeal is founded upon an allegation that certain property (shares in which are claimed by the Appellant) continues the undivided property of the family of which the Appellant was a member, and which was originally an undivided family. The foundation of the defence to the Appellant’s claim is an instrument, 35 H [1866] 11 M.I.A.75

V. KALYANASWAMY (D) BY LRS. & ANR. v. 719 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

which we will call, for the present purpose, a deed of division, dated the 22nd of March, 1834.

2. Certain principles, or alleged rules of law, have been strongly contended for by the Appellant. One of them is, that if there be a deed of division between the members of an undivided family, which speaks of a division having been agreed upon, to be thereafter made, of the property of that family, that deed is ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds.

3. Their Lordships do not find that any such doctrine has been established; and the argument appears to their Lordships to proceed upon error in confounding the division of title with the division of the subject to which the title is applied.

4. According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent, and claim to take from the Collector or receiver of the rents, a certain definite share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with ; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided. G xxx xxx xxx xxx

12. Then, if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family H

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A with reference to the property that is the subject of that agreement, and that is a 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.” B (Emphasis supplied)

88Copy pinpoint88. It is now apposite to notice the judgment of the Privy Council reported in Girja Bai v. Sadashiv Dhundiraj and others36. In the said case, one of the members of a Joint Mitakshara Hindu Family served a notice expressing his desire to get partitioned his one-third share. C Thereafter, he instituted the suit for partition. During the pendency of the suit, the plaintiff died survived by his widow. She moved for substitution. This was opposed by the defendants on the ground that at the time of his death, the plaintiff was an undivided member of a Joint Hindu Family and that on his death, his share passed to them by survivorship. This is despite the fact that earlier on, in the suit, the D defendants had admitted the plaintiffs claim and contended that they were willing to divide the estate and that the suit was premature. The court referred to the earlier judgement of the Privy Council reported in Pandit Suraj Narain and another v. Pandit Iqbal Narainand others37. It is relevant to notice what the court proceeded to lay down: E “25. It appears to their Lordships that the Appellate Court has, in this case, confused the two considerations to which reference has been made above, viz., the severance of status which is a matter of individual volition, with the allotment of shares which may be effected by different methods : by private F agreement, by arbitrators appointed by the parties, or, in the last resort, by the Court.” After referring to the statements in Appovier(supra), the Court held as follows: “28. Some of the Courts in India have supposed Lord G Westbury’s expressions to imply that the severance of status can take place only by agreement. Their Lordships have no doubt that this is a mistaken view. The Board there was dealing with a case in which division of right had already taken place, as evidenced 36 AIR 1916 PC 104 37 H (1912-13)40 IA 40 ; (1913) 11 All LJ 172

V. KALYANASWAMY (D) BY LRS. & ANR. v. 721 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

by the “ deed of division.” The right which each individual member had in this joint property did not spring from the deed or the agreement of the parties to which it gave expression; the agreement only recognised existing rights in each individual member which he was entitled to assert at any time he liked. 29. The intention to separate may be evinced in different ways, either by explicit declaration or by conduct.”

89Copy pinpoint89. Next, we must notice the judgment rendered by a Bench of three learned Judges of this Court reported in Addagada Raghavamma and another v. Addagada Chenchamma and another38. In the said case, the appellant before the Court was the widow of one Piechayya. The respondent in the case Chenchamma was the wife of one Venkayya C who was, in fact, the son of the brother of Piechayya. In substance, the dispute revolved around the question whether there was a disruption in the Joint Hindu Family brought about prior to the execution of a will by the brother-in-law of the appellant. Subbarao was the son of Venkayya from the marriage with Chenchamma). Though there were two questions, we are only concerned with second question, viz., whether partition was brought about prior to the execution of the will and we may also notice the further question which arose which was whether a disruption was brought about by the terms of the will itself.

90Copy pinpoint90. The Court proceeded to elaborately consider the evidence on record and came to the conclusion that the evidence did not support the contention of the appellant which was that in 1894, much before the will was executed in the year 1946, a partition has taken place. Thereafter, it is necessary to notice the following paragraphs in the opinion rendered by the court: F “25. Now we shall proceed to deal with the will, Ex. A-2 (a), on which strong reliance is placed by the learned Advocate- General 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 G of an undivided coparcenary has the legal capacity to execute a will, but he cannot validly bequeath his undivided interest in the joint family property. If he died an undivided member of the family, his interest survives to the other members of the family, and, 38 AIR 1964 SC 136 H

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A 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.” B xxx xxx xxx

27. 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 mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge C 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 Courts evolved the doctrine by a pragmatic approach to problems that arose from time to time. The evolution of the doctrine can be studied in two parts, viz., (1) the declaration of the intention, and (2) communication of it to others affected thereby. D On the first part the following texts would throw considerable light. They are collated and translated by Viswanatha Sastri, J., who has a deed and abiding knowledge of the sources of Hindu lawin Adiyalath Katheesumma v. Adiyalath Beechu [ILR 1930 Mad 502] ; and we accept his translations as correct and indeed E learned counsel on both sides proceeded on that basis. Yajnavalkya, Chapter II, Section 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:

F “…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 Mitakshara, pp. 646-48).

G Saraswati Vilase, 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 Hitra Misra (Chapter II, Pl. 23). H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 723 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

“Here too there is no distinction between a partition during A 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). Vyavahara Mayukha of Nilakantabhatta: (Chapter IV, Section iii-I). B “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).” C The Sanskrit expressions “sankalpa” (resolution) in Saraswati Vilas, “akechchaya” (will of 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 direction. The Hindu law texts, therefore, support the proposition that severance in status is brought about by unilateral exercise of discretion.

28. 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 [(1912) ILR 35 All 80 (PC)] ; Giria Bai v. Sadashiv Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] ; Kawal Narain v. Budh Singh [(1917) ILR 39 All 496 (PC)] ; and Bamalinga Annavi v. Naravana Annavi [(1922) ILR 45 Mad 489 (PC)] . In Syed Kasam v. Jorawar Singh [(1922) F ILR 50 Cal 84 (PC)] 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 Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of G the joint holders of his intention to hold his share separately, even though no actual division takes place….” So far, therefore, the law is well settled, viz., 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 H

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A 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: “…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).” 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. Sadasiva Iyer, J., in Soun-dararaian v. Arunachalam Chetty [(1915) ILR 39 Mad 159 (PC)] said that the expression “clearly expressed” used by the Privy Council in Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] meant “clearly expressed to the definite knowledge of the other coparceners”. In Girja Bai v. Sadashive Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] the Judicial Committee observed that the manifested intention must be “clearly intimated” to the other coparceners. Sir George Lownles in Bal Krishna v. Ram Ksishna [(1931) ILR 53 All 300 (PC)] 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 [(1935) 43 LW 172 (PC)] again accepted as settled law the proposition that “a member of a joint H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 725 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

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.J., and Kumaraswami Sastri, J. in Kamepalli Avilamma v. Mannem Venkataswamy [(1913) 33 MLJ (746)] were emphatic when they stated that if a coparcener did not communicate, during his life time, his intention to become divided to the other coparceners, the mere declaration of his intention, though expressed or manifested, did not effect 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 [(1930) 33 LW 384] . 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 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., in Narayana Rao v. Purushotama Rao [ILR 1938 Mad 315, 318] . There, a testator executed a will disposing of his share in the joint family property in favour of a F 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 the 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 G 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 H

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A 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 B 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 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. xxx xxx xxx

F 32. 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 person affected by one process or other appropriate to a given situation. xxx xxx xxx G

34. The third question falls to be decided in this appeal. It 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? H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 727 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

If it is the latter date, is it the date when one of the members first acquired knowledge or the date when the last of them acquired the said 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 recognized by Hindu law developed by courts and applied in that branch of the law pertaining to 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 the expression to the knowledge of the person or persons affected. When once the knowledge is brought home — that depends upon the facts of each case — it relates back 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 H

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A 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. B It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved.

35. 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 guardian had knowledge of the contents of the said will before Chimpirayya died.”

91Copy pinpoint91. The Court also, in paragraph 37, expressed the view that it was not necessary to decide whether the will contained the necessary and unambiguous declaration of intention to divide himself from the family.

92Copy pinpoint92. Next, in the line of decisions of this Court is the judgment reported in Puttrangamma and others v. M.S. Ranganna and others39. The appeal arose from a suit for partition. One of the questions which arose was whether the plaintiff had died as a divided member of a joint family. In this context, the Court laid down as follows: “5. It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by F a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to G the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law.

93Copy pinpoint93. This Court allowed the appeal on the view it took, viz., that the plaintiff indeed had effected disruption in the joint family on the principles of law which have been articulated. 39 H AIR 1968 SC 1018

V. KALYANASWAMY (D) BY LRS. & ANR. v. 729 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

94Copy pinpoint94. Next, we must refer to the judgment of this Court in Krishnabai A Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and others40. The High Court in the said case, which was a suit for possession and mesne profit, took the view that it was not established that there was a partition effected in the year 1902 as was found by the Trial Court. This Court restored the judgment of the Trial Court and held as follows: “16. 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 Ramachandrarao — 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 Mitakshara School of Hindu law. In an undivided Hindu family of Mitakshara concept, no member can say that he is the owner of one-half, one-third or one-fourth share in the family property, there being unity of ownership and commensality of enjoyment while the family remains undivided. Such unity and commensality are the essential attributes of the concept of joint family status. Cesser of this unity and commensality 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 Subba Aiyan [(1886) 11 MIA 75 : 2 SR 218 : 8 WRPC 1] , in effect, “covers both a division of right and division of property”. Reiterating the same position, in Girja Bai v. Sadashiv [AIR 1916 PC 104 : (1916) 43 IA 151] , F 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”. G

17. 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,

40 (1979) 4 SCC 60 H

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A 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/ B coparcener against the other members/coparceners for partition and separate possession may be sufficient to cause disruption of the joint status.” (Emphasis supplied) C In Kalyani(dead) by LRs v. Narayanan and others41, a Bench of three learned Judges, laid down as follows:- “10. The next stage in the unfolding of the case is whether Ex. P- 1 is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier v. Rama Subba Aiyan [(1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1] quoted with approval in Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao G Nimbalkar [(1979) 4 SCC 60, 68] ). A disruption of joint family status by a definite and unequivocal indication to separate 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 (see Girja 41 H AIR 1980 SC 1173

V. KALYANASWAMY (D) BY LRS. & ANR. v. 731 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

Bai v. Sadashiv [AIR 1916 PC 104 : 43 IA 151 : 18 Bom LR A 621]). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.” We may notice paragraph 18 also which reads as follows:-

18. One thing is crystal clear that Ex. P-1 is not a deed of partition in the sense it does not purport to divide the property amongst various coparceners by metes and bounds. However, in Hindu law qua joint family and joint family property the word “partition” is understood in a special sense. If severance of joint status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition (see Raghavamma v. Chenchamma [AIR 1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593] ). To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration.” This Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe F and others (supra) held as under: “14……The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned G amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.” IS THERE CONFLICT BETWEEN KALYANI (DEAD) BY LRS V. NARAYANAN AND OTHERS [AIR 1980 SC 1173] AND H

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A BHAGWANT P. SULAKHE V. DIGAMBAR GOPAL SULAKHE AND OTHERS [AIR 1986 SC 79]

95Copy pinpoint95. In Kalyani (supra), one Karappan who had two wives and children through them was governed in the matter of inheritance and succession essentially by customary law and in the absence of any B specified custom, he was governed by the Hindu Mitakshara Law. He had executed a registered deed P1 which was variously described as a Will or as a deed of partition or evidencing a family arrangement. The Suit from which the case arose was filed by the Widow of one of his sons from his first wife. This Court went on to find that P1 could not be supported as Will insofar as Karappan had no power to devise by Will C ancestral property. The Court further went on to consider whether B1 was effective as a partition. It was in this context that the observations in paragraph-10 of the judgment came to be made. The Court, after making the observations in paragraph-10, found that there was no effective partition by metes and bounds by B1 though the shares of sons D were specified as also the provisions for the female members were made. Thereafter it is that the Court posed the question that if B1 is not effective as a Deed of Partition, its effect on the continued Joint Family status had to be examined. It is thereafter that when the court went on to make the observations in para 18 which we have set out. The Court further proceeded to find that by specifying of the share in Exhibit P1 E there was first a disruption in the joint family by specifying the shares. Once a disruption took place, it was held, in a joint family status, the coparceners ceased to hold the property as joint tenants but they held as tenants in common. It was further the view of the court that the fact that the coparceners continued to stay under the same roof or enjoy the F properties without division by metes and bound, did not matter. They did not hold as joint tenants unless reunion was pleaded and established. We are, in this case, also called upon to reconcile what has been laid down in this case with what has been laid down in a later Judgment in. The later decision Bhagwant P. Sulakhe (supra)was also rendered by a bench of three learned Judges.

96Copy pinpoint96. We may briefly notice the facts involved in the said case. The appellant, who was the plaintiff in the Suit along with the Second Defendant therein and two of his brothers, were members of a Joint Hindu Family. There was a public limited company and also a firm. The appellant had acted as a Managing Agent. He had also acted as a H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 733 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

Managing Director of the Company. In regard to the same, he had earned remuneration. The question which essentially arose before this Court was whether it was to be treated as the personal income of the appellant or whether it belonged to the joint family. After considering the partnership deed and other materials, the Court, inter alia, observed as follows: “14 …The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.” C

97Copy pinpoint97. The Trial Court, in this case, has laid store by the observations of this Court to the effect that as long as joint family property is in existence and is not in partitioned, the character of the joint family property does not change. It concluded that even if division is brought about by issuance of B1, the properties of the joint family consisting of V. D Rangaswami Naidu and his brother remained joint and it could not be arrogated by V. Rangaswami Naidu as his and they bequeathed, as done. The first appellate court distinguished the decision by stating that it turned on in facts.

98Copy pinpoint98. We would think that there is really no conflict as such. We E have already noticed what has already been laid down by the Privy Council in Appovier (supra). The Court has laid down, inter alia, that when members of the Hindu Undivided Family agree among themselves that a particular property shall be thereafter be subject of ownership in certain defined shares, then, the character of the undivided property and joint enjoyment is taken away from it and each member will thereafter have a definite and certain share, even though the property itself has not been severed and divided.

99Copy pinpoint99. It must be remembered that the said case actually involved an Undivided Hindu Joint Family wherein there was a deed of division and the contention, which had to be considered by the Court, was that, it was ineffectual to convert the undivided property into divided property until it had been completed by an actual partition by metes and bounds. The Court was essentially not considering the effect of a declaration by a coparcener to separate causing a division in a joint family status. The H

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A Court was also not considering the question as to whether, on such division in status, the rights of the coparcener, over specific items of properties, will be transformed into exclusive and absolute rights even without an agreement or partition, by metes and bounds.

100Copy pinpoint100. In Girja Bai v. Sadashiv Dhundiraj42, the Privy Council was dealing with a situation where the appellant’s husband had served a registered notice on the Manager of a Mitakshara Joint Family expressing his desire to get partition and which was followed-up by a Suit for partition. We have noticed paragraph 25 and 28 therein.

101Copy pinpoint101. Therefore, on a conspectus of the discussion we would hold as follows: Partition has two shades of meaning in Hindu Law we are dealing with. In the one sense, partition is the first step which would ordinarily culminate in a metes and bounds partition. In a coparcenary, there is joint tenancy. A Hindu Coparcenary, which cannot be created by agreement between parties but is the creation of law, can be disrupted or a division is caused by a unilateral declaration by a coparcener to put an end to the joint family. What the coparcener has before the division is produced, is an interest, as has been referred to in both Sections 6 and 30 of the Hindu Succession Act. Upon a declaration being made, expressing intent to separate without anything more but no doubt on communication of the same to the other coparcener/coparceners, partition in the above sense viz. causing a division of title takes place. As already noticed, the partition in the aforesaid sense has far-reaching consequences. The joint tenancy, which includes the concept of Right to Inherit by Survivorship, is terminated with the partition being effected in the first sense. If the coparcener dies after causing such a partition, as the right on the basis of Doctrine of Survivorship is annihilated, his death, after such partition, would result in his heirs becoming entitled to succeed. In that sense, joint tenancy would be replaced by tenancy in common but that is not the same as saying that the properties of the family, where there has been a partition in the first sense, will without anything more stand transformed into the separate and exclusive properties of the divided members. This is the view, which is taken by this Court in Bhagwant P. Sulakhe. We are unable to subscribe to the view taken by the First Appellate Court that the principles of law, which are contained in

42 H AIR 1916 PC 104

V. KALYANASWAMY (D) BY LRS. & ANR. v. 735 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

paragraph-14 of the Judgment, as extracted by us, are merely to be A understood in the special facts of the said case. Partition, in a broader sense and as is commonly understood, is the division of the properties in accord with the shares. WHETHER A HINDU COULD MAKE A WILL? WHAT WERE THE LIMITS ON HIS POWER TO EXECUTE B A WILL? ARE THERE ANY CHANGES BROUGHT ABOUT BY ENACTING SECTION 30 OF THE HINDU SUCCESSION ACT, 1956?

102Copy pinpoint102. It would appear that the treatises in Hindu Law do not contain reference to the concept of a will. However, over a period of time, courts have recognised the powers for a Hindu to make a will. We are concerned in this case with Mitakshara Law. Thereunder, a Hindu could bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. A Hindu being a member of the joint family could also possess his separate property which are of various kinds. They include obstructed heritage which is property inherited by a Hindu from another who is a person other than his father, father’s father or great grandfather, Government grant, income of separate property, all acquisitions by means of learning (declared by Hindu Gains of Learning 1930) See in this regard para 228 of Mulla on Hindu Law 23rd edition page 341-342. As far as the law governing the making of the will is concerned there was no particular law which governed the same. It is in the year 1865 that the Succession Act came to be passed. It was not applicable to Hindus. The Hindu Wills Act 1870 which had limited application (it applied inter alia to Wills by Hindus in the town of Madras) no doubt made certain provisions of the Indian Succession Act of 1865 F applicable to Hindus. Under the Probate and Administration Act, 1881 the executor, subject to law relating to survivorship was the legal representative of a Hindu. Section 211 of the Indian Succession Act, 1925 continues the same legal position. However, the Indian Succession Act of 1925 which repealed the earlier Succession Act has through Section 57 made the provisions of Part VI which are set out in schedule III to G the Act applicable to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain made on or after the 1st January 1927 to which those provisions are not applied under the preceding clauses viz. clauses (a) and (b) Section 57. It is thus that after 1st of January, 1927 in the matter of an unprivileged will executed by a Hindu, the requirement of Section H

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A 63 which includes attestation of such a will by a minimum of two witnesses became mandatory. Thus, the execution of a will by a Hindu also came to be regulated from the 1st of January, 1927.

103Copy pinpoint103. Section 30 of the Hindu Succession Act reads as follows: “30. Testamentary succession. — Any Hindu may dispose of by B will or other testamentary disposition any property, which is capable of being so disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in a Mitakshara C coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section”. D

104Copy pinpoint104. Does it bring about a change in law relating to power of a Hindu to execute a will? As noticed earlier even prior to Hindu Succession Act, a Hindu could execute a will bequeathing his separate and self- acquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise. We may refer to the judgment of this Court in M.N. Aryamurthy v. M.D. Subbaraya Setty43; wherein this Court held as follows: “..But unfortunately, Lachiah, though a father, could not, under the Hindu Law, dispose of, by will, joint family property or any part thereof and as a will it was clearly inoperative on the various dispositions made by him (See Parvatibai v. Bhagwant Pandharinath: 39 Bom 593: AIR 1915 Bom 265 and Subbarami Reddi v. Ramamma; 43 Mad 824: AIR 1920 Mad 637). This latter case has questioned the correctness of a previous decision of that G Court in Appan Patra Chariar v. V.S. Srinivasa Charriar and Others; 40 Mad 1122: AIR 1918 Mad 531. The decisions proceed on the principle which was well-settled in Vital Putten v. Yamenamma; (1874) 8 MHCR 6 and Lakshman Dada Naik v. Ramachandra Dada Nair; 5 Bom 48 (PC): 7 IA 181, that a co- 43 H 1972(4) SCC 7

V. KALYANASWAMY (D) BY LRS. & ANR. v. 737 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

parcener cannot devise joint family property by will, because, on A the date of his death when the will takes effect, there is nothing for the will to operate on, as, at the moment of his death, his interest passes by survivorship to the other coparceners.”

105Copy pinpoint105. In Villiammai Achi v. Nagappa Chettiar and another44, this Court, inter alia, held: B “10. … The property being joint family property Pallaniappa’s father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will, C thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see Hindu Law by Mulla, D 13th Edn., p. 249, para 223(2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappa’s father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are therefore of opinion that merely because Pallaniappa’s father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.”

106Copy pinpoint106. As to whether Section 30 of the Hindu Succession Act brings about the radical departure of the power of a Hindu in the matter of making Will, we may refer to the decision of full Bench of the Mysore High Court in Sundara Adapa v. Girija45. Justice K.S. Hegde as his Lordship then was speaking for the Bench held:- 44 AIR 1967 SC 1153 45 AIR 1962 (Mysore) 72 H

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A “15. It is well known that till the “Act” came into force, the interest of a coparcener in a Hindu joint family, be it a Mitakshara family or an Aliyasantana family, could not be disposed of by means of a testament, as by the time his will took effect his interest in the undivided family would have been taken by survivorship by the other coparceners. The Indian Succession Act did not make any B inroad into that position. The relevant provisions of the Indian Succession Act are found in Part VI (Provisions relating to testamentary succession) read with the rules found in Schedule III. But they are also subject to the restrictions and modifications specified in that schedule. Restriction No. 1 in Schedule III says:— C “Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of this section, he could not deprive them by will.”

17. Neither under the customary law nor under the Aliyasantana D Act nor under the Indian Succession Act the interest of a coparcener in an Aliyasantana Kutumba could have been disposed of by testamentary disposition. In that regard a definite change in the law was made by means of the Explanation to Sec. 30(1) of the “Act”. There is no dispute that at present a member of an E undivided Aliyasantana kutumba could dispose of his interest in the kutumba properties by means of a will. But we are unable to agree with Srli G.K. Govind Bhat when he says that Explanation to Sec. 30(1) enlarged the rights of a divided coparcener. The object of Section 30 is clear. That section neither directly nor by necessary Implication deals with the devolution of divided interest. F As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, a, done by Sri Bhat, that it the Explanation to S. 30(1) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more G valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of kavaru would be larger in extent than one unprovided under Sec. 7(2) of the “Act”. We find that this Court in Jalaja Shedthi & Ors. v. Lakshmi H Shedthi & Ors.; 1973(2) SCC 773 has approved of view taken by the

V. KALYANASWAMY (D) BY LRS. & ANR. v. 739 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

High court in the aforesaid case. In other words, as we have already A noted in the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest. The reason why we are saying this is as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The B share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare. In this regard we may notice the judgment of this Court in Hardeo Rai v. Sakuntala Devi and others46 in paragraphs 22 and 23. It reads as under: “22. For the purpose of assigning one’s interest in the property, it C was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. D The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI [(1969) 2 SCC 33 : AIR 1969 SC 1330] , therefore, is not applicable to the present case.

23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.” It is important to notice that what this Court has laid down that he becomes owner of “that share” and he can alienate ‘the same’. It is different from saying that he is owner of the property in the sense of being the exclusive owner. [See also in this regard the law as laid down in Appovier case (supra) in para 4 thereof].

107Copy pinpoint107. We may also notice that even under the law prior to Hindu G Succession Act there could be four situations. In regard to a member of a joint Hindu family who also has his separate property he could bequeath his separate property. As far as joint family property is concerned, there could be three situations. The first situation is where the family remains 46 2008 (7) SCC 46 H

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A joint in which case the coparcener would have an interest. As far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act. The second situation is in a case where there is a disruption in title or a division in status. What we mean is there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. B It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. When such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. As already noticed, this may or may not be accompanied simultaneously with a metes and bounds partition. In such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. The share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. This power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act. The third scenario would be a situation where following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act. In fact, the property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. As regards the effect of a son born after partition we need not pronounce on the same. After the amendment to the Succession Act F 2005 including the daughters of a coparcener as coparceners in their own right, if a Hindu has a female issue then the property allotted to him on partition will partake of the nature of coparcenary property. See in this regard the following discussion in para 228 clause (6) at page 342 in “Mulla on Hindu Law”: 23rd Edition: Cataloguing different kinds of separate property:- “(6) Share on partition – Property obtained as his share on partition by a coparcener who has no male issue (see S. 221(4)). This position is now materially altered with the inclusion of daughters of a coparcener as coparceners in their own right by the amendment in the Hindu Succession Act 2005. If therefore,

V. KALYANASWAMY (D) BY LRS. & ANR. v. 741 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

even if a coparcener who has obtained a share on partition has no male issue but has a female issue, the property allotted to him on partition will partake the nature of coparcenary property. The above proposition will therefore have to be read as a coparcener having been allotted a share on partition, takes it as his separate property when he has no issue. This is since, by virtue of the amendment, as the distinction between male and female children of a coparcener stands abrogated and abolished, both having been given equality of status as coparceners.” After the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is intact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties. THE IMPACT OF THE HINDU WOMENS RIGHT TO PROPERTY ACT, 1937 (XVIII OF 1937)(HEREINAFTER E REFERRED TO AS ‘THE 1937 ACT’, FOR SHORT).

108Copy pinpoint108. It is apposite to notice Sections 2, 3 and 5 of the 1937 Act: “2. Application. -Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of section 3 shall apply where a Hindu dies intestate. F

3. Devolution of property. - (1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary G law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving H

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A of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. B (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. C (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner. (4) The provisions of this section shall not apply to an estate D which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies. xxx xxx xxx

E 5. Meaning of expression “die intestate”. -For the purpose of this Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.” As can be seen, Section 3 of the 1937 Act applies when a Hindu F dies intestate. It is important to notice that Section 3(1) of the 1937 Act deals with the case of the Hindu dying intestate leaving behind separate property. In such a situation, should there be one widow, she became entitled in respect of the property to the same share as the son. This was G made subject to sub-Section (3) which declares that, the interest devolving on her, would be a limited interest known as Hindu Woman’s Estate. The more important change that was brought about is located in Section 3(2). Thereunder, when a Hindu governed by any School of Law, other than Dayabagha or Customary Law, dies, leaving behind at the time of his death, an interest in a Hindu Joint Family property, his H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 743 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

widow is conferred the same interest as her husband had. This is again made subject to the provision of sub-Section (3) which makes it a limited interest known as the Hindu Woman’s Estate. It will be, at once, noticed that the Legislature had not used the words “dies intestate” in Section 3(2), whereas, in Section 3(1), the Legislature contemplated a situation, where a Hindu could bequeath his separate property and has taken care to provide only for a contingency where he died intestate. No doubt Section 2 proclaimed that Section 3 was to be applied when a Hindu died intestate. When it comes to Section 3(2), in regard to a case covered by Mitakshara law, the Legislature has, in keeping with the law as then prevailing, recognised that a Hindu could not execute a Will in regard to his interest in a Hindu Joint Family. It is this concept, which has been swept away by enacting the Explanation to Section 30 of the Hindu Succession Act, whereunder, it is open to a Hindu to even bequeath his interest in the Hindu Joint Family property. Coming back to Section 3(2) of the Hindu Women’s Right to Property Act, the Legislature has advisedly chosen the words “interest in the Hindu Joint Family property”, which may be contrasted with the provisions under Section 3(1), which contemplates the Hindu leaving behind separate property. Therefore, Section 3(2) contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply. It is to be noted that, a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties. What is the impact of this enactment on the claim for survivorship made by the Lakshmiah Naidu, the brother of V. Rangaswami Naidu? G Did the Right by Survivorship, survive the passing of the 1937 Act? What is the nature of the Right, which is granted under Section 3(2) of the 1937 Act to a Hindu Widow? These questions have fallen for consideration before the Courts. H

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A We need only refer to one judgment, i.e., Satrughan Isser v. Sabujpari and others47. To quote: “7. By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener: though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property: Lakshmi Perumallu v. Krishnavanamma [AIR (1965) SC 825]. The interest acquired by her under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, is a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. F But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition on her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of G her husband. It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in the property, it will upon termination of her estate devolve

47 H AIR 1967 SC 272

V. KALYANASWAMY (D) BY LRS. & ANR. v. 745 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

upon her husband’s heirs. To assume as has been done in some A decided cases that the right of the coparceners to take her interest on determination of the widow’s interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality.” The position at law may therefore, may be culled out as follows: B With the passing of the 1937 Act, in areas to which it applied, an intrusion was indeed made upon a coparceners right to set-up a claim to the property of a deceased coparcener based on the Doctrine of Survivorship but the Act did not annhilate the said Right. The Right to claim by Survivorship came to be suspended but not extinguished. The widow, though not a coparcener, was like a coparcener in most respects. She was also conferred with the right to claim partition. As long as she did not claim partition and the property remained intact upon her death, the Right to Claim by Survivorship which stood eclipsed, revived and the coparceners would become entitled to the property on the basis that succession opened as if the coparcener died when the widow died. On the other hand, if the widow claimed partition, her interest transformed into a defined interest and the Right to Claim by Survivorship, which stood suspended, was destroyed. The property would then enure to the heirs of the husband. It is also to be noted that, by virtue of Section 3(2), there is no rupture in the coparcenary. There is no division brought about by Section 3 (2) of the 1937 Act, in other words. We must also not be oblivious to two developments which took place after succession opened to the estate of V. Rangaswami F Naidu on 01.06.1955. The Hindu Succession Act, 1956 containing Section 14 came to be passed, the effect of which will be discussed later. Secondly, we may also notice that R. Krishnammal the widow, filed O.S. No. 71 of 1958 wherein as an alternate prayer, she sought partition. We have already noticed the principle which has been laid down about the effect of a demand for partition by a G widow in whom the Right came to be vested under Section 3(2) of the 1937 Act. But, as we have noticed, the supervening Legislation in the form of the Hindu Succession Act, if it did confer absolute rights under Section 14(1), it is a matter of law as to what was the nature of the Right R. Krishnammal possessed, H

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A even when she instituted O.S. No. 71 of 1958. It is clear that when succession opened to the estate on 1.6.1955 if Section 3(2) applied, then Lakshmiah Naidu would have only a suspended right of survivorship. There is the compromise decree in OS 71 of 1958 under which R. Krishnammal has given up all her rights in the plaint schedule properties in favour of the Lakshmiah branch. B

109Copy pinpoint109. We find legislative recognition of this concept of ‘interest’ in joint family in Section 6 of the Hindu Succession Act. Section 6 prior to its substitution by Amending Act 39 of 2005 provided that in the case of male Hindu dying after the Act possessing an interest in Mitakshara coparcenary property, the property was to devolve by survivorship, subject to the proviso. What is of greater relevance is the terms of explanation. The terms of the explanation I as it stood which is retained as the explanation in sub-section (3) of Section 6 after the amendment reads as follows: Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

110Copy pinpoint110. Therefore, the concept that what a coparcener in a Mitakshara family had prior to partition, is an interest, is reiterated. For the purpose of Section 6, however, in order to determine the extent of that interest it is deemed to be the share which he would get if there was a notional partition just prior to his death. Partition in the sense of a F disruption however determines the extent of share which would devolve under Section 8 of the Act. We make it clear that we must not be treated as having pronounced that the notional partition contemplated under the explanation to Section 6 is meant to bring about the demise of the coparcenary as such. The Explanation to Section (30) also speaks of ‘interest’ as being ‘property’ which a Hindu could after the Hindu G Succession Act bequeath. WHAT IS TITLE OF V. RANGASWAMI NAIDU, WHICH HE COULD PASS?

111Copy pinpoint111. O.S. No. 89 of 1983 is a Suit where there is a declaration of the plaintiff’s right sought and also a Decree of Partition. The cause of H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 747 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

action is based on the remainder right traced from the terms of the Will A dated 10.05.1955. It is apposite to bear in mind one aspect. In a proceeding instituted to obtain probate of a Will, if a contention is raised about the title of the Testator, it would be foreign to the scope of the inquiry to enquire into the title of the Testator. The court, considering the grant or refusal of the probate is only to deal with the question as to whether the B Will was the last and genuine Will executed by the Testator. Questions relating to title would have to be pursued before the appropriate Forum (See Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon48). Would that be the position in the case of the title Suit wherein a plaintiff invites the court to pass a Decree for partition and qua the partition suit, Defendants 1 to 3 who are among the appellants before us, would stand in the shoes of a plaintiff. We would think that O.S. No. 89 of 1983 and even O.S. No. 649 of 1985, are Suits based on title. The question relating to the right to the property involved must be gone into and decided.

112Copy pinpoint112. We have already found that in the claim that V. Rangawami Naidu acquired title to the properties by way of oral partition, cannot be accepted. The claim that he had acquired properties by way of self- acquisition, also may not stand. If there has been a disruption in the family status, partition in the narrow sense of a division in title takes place. We have also found that the mere fact that there is a division effected in the joint family, would not mean that, in law, V. Rangaswami Naidu could claim exclusive and absolute ownership qua the items covered under the Will. The plaint schedule properties are, admittedly, part of the properties scheduled to the Will. The result would be that, in terms of the legal principles applicable, we would find that V. Rangaswami Naidu did not have exclusive right as such qua the properties scheduled under the Will. F

113Copy pinpoint113. However, the reasoning of the First Appellate Court may be noticed in this regard. After finding that a co-owner cannot unilaterally allot specific properties to his share, the Appellate Court took the following aspects into consideration: The respondents (plaintiffs in O.S. No. 649 of 1985) were G aware in the earlier litigation (O.S. No. 71 of 1958 and O.S. No. 36 of 1963) that V. Rangaswami Naidu had made unilateral allotment, and even though they had got opportunity in the above

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A two instances, they did not raise any objection over the unilateral allotment. Next, the Appellate Court took note of the fact that there were more than ninety-three items of properties of more than hundreds acres of land of Hindu Joint Family consisting of the brothers, and therefore, the allotment of a small portion cannot be held as unjust one. R. Krishnammal had tried to establish her right in the proceedings under Section 145 of the CrPC. The earlier Suits, i.e., O.S. No. 71 of 1958 and O.S. No. 36 of 1963, were filed on the basis of the Will. The respondents had enough opportunities to challenge the unilateral allotment and they failed to utilise the same, and therefore, their consequential acts gained much importance. The Court also distinguished the judgment in Bhagwant P. Sulakhe (supra). It is further found that since V. Rangaswami Naidu had given written rejoinder confirming the newspaper publication dated 10.05.1955, the declaration cannot be held as unilateral and his actions had (‘were’ sic) changed the character of the Hindu Joint Family properties. Therefore, it is found that having failed to raise any objection and acted accepting the allotment, the respondents have no right to deny the life interest of R. Krishnammal and the vested interest of the appellants.

114Copy pinpoint114. The entire reasoning of the Appellate Court is that while one coparcener, even after there is a division, cannot unilaterally appropriate any specific property as his exclusive property, in view of the conduct of the respondents in not challenging the said allotment in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, they cannot be permitted to challenge the nature of the right to the properties. The Appellate Court also relied on the fact that the plaint schedule properties (less than 37 acres) is a small part compared to the large extent of properties which belonged to the coparcenary consisting of the two brothers.

115Copy pinpoint115. As far as O.S. No. 71 of 1958 is concerned, the respondents have produced A1-Plaint. As already noted, there was no occasion for adjudication of the matter as the case was compromised. The appellants, in fact, would claim that they are not even bound by the said Decree. This is for the reason that under the said Decree, the plaint schedule properties herein have been recognised as the absolute properties of the respondents. If any reliance is to be placed on the said Decree, then, the fact that under the compromise Decree, the entire rights have been given-up by the life estate holder R. Krishnammal, stares one in his H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 749 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

face. A2 is the compromise Decree. It is dated 21.07.1958. The Suit A was filed on 10.04.1958. It apparently may have suited the respondents to not allow the matter to go to trial. The testimony of PW1 shows, inter alia, as follows: R. Krishnammal has informed as how much you can give me. R. Krishnammal has asked for one house to live and land for food, otherwise, she did not ask for equal share in the property.

116Copy pinpoint116. As far as O.S. No. 36 of 1963 is concerned, A3 is the Plaint. In A4-Written Statement filed by R. Krishnammal-First Defendant, she disputed the case about the compromise and she defended the compromise in O.S. No. 71 of 1958. The respondents were, in fact, initially not parties. We have already noticed that the compromise Decree, which ensued even in the said case, modifying the absolute estate of R. Krishnammal and limiting it to a life estate in regard to Item Nos. 5 and 6, did involve reiteration of the Will. The question would, however, arise whether, by such conduct alone, viz., by being parties in the said Suit, and later on when the compromise took place, by signing the same not as parties but in token of their having seen the endorsement made by plaintiff therein and R. Krishnammal and Defendant No.3 (another Legatee), they have acknowledged the title to Item Nos. 5 and 6, that it vested with V. Rangaswami Naidu and, furthermore, whether it should be treated as acknowledging the exclusive title in regard to the plaint schedule properties involved in this case and which were not scheduled in O.S. No. 36 of 1963.

117Copy pinpoint117. It is to be remembered that while on the one hand, R. Krishnammal, in O.S. No. 71 of 1958, set-up the Will, as also the case of oral partition and exclusive ownership of her late husband, she also was willing to adopt the stand of the Lakshmiah branch that her late husband and his brother were not separated. On the said basis, she had also laid a claim based on the Hindu Women’s Right to Property Act, 1937, and what is more, also relied upon the Hindu Succession Act. It is this Suit which was compromised. It is certainly not possible to predicate on what basis Lakshmiah branch became amenable for the compromise. G It might have been different if the cause of action of R. Krishnammal was based solely on the basis of the Will. In this case, having regard to the alternate case set-up based on the rights available to her, as aforesaid, and noticing that some items out the Will were recognised as her own, and the other items which included items which were included in the H

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A Will and also part of the larger joint family property, she has given-up her rights, it cannot be characterised as not using of the opportunity by the Lakshmiah branch to challenge the unilateral allocation by V. Rangaswami Naidu.

118Copy pinpoint118. In O.S. No. 36 of 1963 also, as we have already discussed, at the time of the compromise in 1974, the Lakshmiah branch was already party to the compromise in O.S. No. 71 of 1958, under which they had, in fact, recognised the absolute rights in regard to Item Nos. 5 and 6 in favour of R. Krishnammal. It mattered little to them that under the compromise Decree in O.S. No. 36 of 1963, it was to be enjoyed as a life estate by R. Krishnammal and to be not alienated by her. We have noticed that it was stated that no relief was claimed against the other Defendants in the said Suit. The inference drawn by the First Appellate Court based on not making use of the opportunity to challenge the unilateral allocation, in such circumstance, does not appeal to us.

119Copy pinpoint119. Coming to the second aspect, the First Appellate Court has noticed the fact that the property belonging to the family, was much bigger, as a result of which the unilateral allotment could not be treated as unjust. It does not address the legal issues. On the basis that there is a division in the joint family status, undoubtedly, V. Rangaswami Naidu would be freed from the stranglehold of the principle that a Hindu could not bequeath his interest in the undivided family. As we have noticed, the moment there is a division, what emerges is the share of the erstwhile coparcener. In this case, there are only two coparceners, viz., V. Rangaswami Naidu and Lakshmiah Naidu. They would have one-half share between themselves. Undoubtedly, if V. Rangaswami Naidu had bequeathed his one-half share, it could not have generated legal controversy. We emphasise that this is subject to there having been a disruption. We have also noticed that if there is a disruption in the Joint Family status and partition in the narrow sense, it produces the consequence that as regards the share of the separated coparcener, his share becomes immune from any claim based on the Doctrine of G Survivorship. We have also noticed that a bequest by a member of his interest in an undivided family, was juridically anathema, as under the Doctrine of Survivorship, persons claiming under the birth right over the property, would be preferred to those claiming under a Will. Once, this obstruction over the right of the legal heir is removed in the case of intestate succession, it would be the heirs, who would succeed. If that H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 751 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

be so, can not a Hindu, be it before the Hindu Succession Act, bequeath specific properties over which he would have undoubtedly joint rights?

120Copy pinpoint120. What would be the position after bringing about a division in title but before there is a partition of the property by metes and bounds? We have noticed that during the interregnum, the properties of the family would continue to remain joint[See 1986(1) SCC 366]. In other words, unless there is a partition, qua, the properties, though the shares are ascertained by the partition in the sense of a division in the joint family, no coparcener could point to any specific item and claim it to be his.

121Copy pinpoint121. Now, what would be the position in regard to the power of a Hindu in the erstwhile State of Madras to transfer a specific item of property even when the family is intact. A Full Bench of the Madras High Court has dealt with this question in the decision reported in Aiyyagari Venkataramayya and another v. Aiyyagari Ramayya49. The pointed question which actually arose before the Court on a reference to the Full Bench was, the effect of the death of the vendor after he effects sale of his interest in the Hindu Undivided Family. The contention apparently raised was, having regard to the Doctrine of Survivorship, if the vendee did not institute a Suit to enforce his rights, while the vendor was alive, the vendee would have no right at all to enforce. Justice Bashyam Ayyangar has authored a separate Judgement wherein he has surveyed exhaustively the entire case law. The learned Judge holds inter alia as follows: “The question of a member of an undivided Hindu family alienating family property for his own purposes is not a topic dealt with, as far as I am aware, by any texts of Hindu law or by the commentators. No express authority on the subject can therefore be found in the Hindu law books, and it is questionable whether an alienation by a co-parcener of his undivided share and interest was recognised by Hindu jurists. As observed by the Judicial Committee “there can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to be allowed to stand in his vendor’s shoes and work out his rights by

49 (1902) ILR 25 Madras 690 H

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A means of a partition” Suraj Bunsi Koer v. Sheo Persad I.L.R. 5 Calc. 148.” The learned Judge further goes on to state the law in the following terms: “A co-parcener may profess to alienate either his undivided share in the whole of the family property or his undivided share in some specified portion of the family property-as in the present case-or the whole of a specified portion of the family property-as in the case in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R.

166. The same thing may take place in the case of involuntary sales also. In all these cases, the sale operates upon the interest and share of the transferor as the same existed at the date of the transfer and the transferee must work out the transfer by bringing a suit for ascertaining what the share and interest of the transferor was at the date of the transfer. Such a suit is not technically a suit for partition and the decree which he may obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property, nor the corporate character of the family.” We, however, notice also the following: E “The claim of a transferee from a co-parcener to work out the transfer is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor. Being a purchaser for value he will have an equity to have such portion or so much thereof as is practicable so allotted, if that can be done without prejudice to the interests of the other sharers. In any suit which may be brought by him to enforce the sale, all the members of the family should be joined as parties as in a partition suit, the subject- matter of the suit being the family property as it existed at the date of the transfer.” In fact the Court in Venkatachela Pillay v. Chinnaiya Mudaliar50 (1870) held as under: 50 H (1870) 5 M.H.C.R. 166

V. KALYANASWAMY (D) BY LRS. & ANR. v. 753 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

“…..And the contention on behalf of the appellant is that one co- A parcener cannot object to a sale of a family property made by another co-parcener when the portion of property sold is unquestionably less in quantity and value than the share of the co- parcener making the sale in the entire property. We are of the opinion that this is an untenable objection. The B decision of this Court as to the right of a co-parcener to alienate his vested interest in the property held in co-parcenery do not go beyond establishing the validity of an alienation to the extent of the coparcener’s share in the particular property which is the subject of the alienation. And they are founded upon the principle that each co-parcener has a vested present undivided estate in C his share, which he may at any time convert into an estate in severalty by a compulsory or voluntary partition, and that such estate is transferrible like any other interest in property. Further than this the title of the 1st defendant under the alienation in the present case cannot, we think, be carried… D xxx xxx xxx By the sale in the present case therefore the vendor, Subbaraya, could not in our judgment transfer to the 1st defendant’s father a valid title to any specific portion of the joint-family property but only to his beneficial estate as an undivided co-parcener with the E incidental right of partition, and it follows that the 1 st defendant is not entitled to more than the moiety of the village lands which were alone the subject of the contract of sale.” It appears there is no uniformity in regard to the power of a coparcener to sell his undivided interest. In Sidheshwar Mukherjee v. F Bhubaneshwar Prasad Narain Singh and others 51 we notice the following : “9. It is true that under the Mitakshara law, as it is administered in the State of Bihar, no coparcener can alienate, even for valuable consideration, his undivided interest in the joint property without G the consent of his coparceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree again him personally, to attach and put up to sale this undivided interest, 51 AIR 1953 SC 487 H

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A and after purchase to have the interest separated by a suit for partition.” In M.V.S. Manikayala Rao v. Narasimhaswami and others52, a case which arose against the impugned order of the High Court of Andhra Pradesh, it involved an auction sale therein the Court B held as follows: “….Now it is well settled that the purchaser of a coparcener’s undivided interest in the joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that C which on partition might be found to fall to the shre of the coparcener who share he had purchased….”

122Copy pinpoint122. The view of Justice Bashyam Ayyangar has also been approved by a Full Bench of five learned Judges of the High Court in K. Peramanayakam Pillai v. S.T. Sivaraman and others53.

123Copy pinpoint123. Thus, in the case of an alienation by a Hindu, even if it is of a specific property belonging to the joint property, it would be dealt with on an equitable basis, should the alienee bring an action to enforce the same in a properly constituted Suit. The conclusion we would arrive at is that the sale of such a right even over specific immovable property by a E coparcener in a Mitakshara Hindu Joint Family does take effect in law where it is permitted and it would not be a case of a void transaction. The purpose of undertaking this discussion is to appreciate the law relating to the power of the coparcener to transfer specific items even if there has been no partition in the sense of a division of title so that we are in a better position to appreciate the question as to whether in a case where F a Hindu executes a Will prior to the Hindu Succession Act could, he, by a Will, after a division is brought about in the family bequeath specific immovable property.

124Copy pinpoint124. In order to understand this problem in its proper perspective, we must advert to certain vital dimensions. The real principle on the G basis of which the interest of a coparcener in a Joint Hindu Family could not be the subject matter of a valid bequest was that the bequest would come into collision with the right to claim property by survivorship vested in the other coparceners upon their birth. Thus, it is a case of a prior 52 AIR 1966 SC 470 H 53 AIR 1952 Madras 419

V. KALYANASWAMY (D) BY LRS. & ANR. v. 755 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

right taking precedence over the bequest which can come into force only not from the date of the making of the Will but upon the death of the Testator. This distinction, has apparently allowed courts to recognise an inter-vivos alienation which is possible only when the coparcener is alive of his interest in the Joint Hindu Family as it does not involve a conflict between the right by survivorship and rights sought to be created by the coparcener. However once there is a division, then right by survivorship ceases and there can be objection to said principle applying to a bequest of a specified immovable property. In fact, the case of a will made after division of specific immovable property stands on a different footing and the objection that the sale is by a coparcener when the joint family exists does not hold good. C

125Copy pinpoint125. The second point of distinction which we may notice is that as noted by Justice Bashyam Ayyangar in Aiyyagari Venkataramayya and another (supra) is that, the right was recognised as an equitable right in favour of an alienee who has purported to purchase the property for valuable consideration. A bequest may be subject to an onerous D condition and the rights of the Legatee may become subject to the Doctrine of Election. A bequest, on the other hand, may involve no liability for the Legatee, in which case, he may not bear resemblance to an alienee under the inter-vivos transfer who purchases property for valuable consideration. E

126Copy pinpoint126. At least, as an equitable claim, can not appellants enforce their right and claim to be allotted the items on the basis that they could be allotted to the share of the Testator as in the case of a transferee from a Hindu of specific immovable property, even when the joint family continues to exist? We have noticed that the law does not render such transferee helpless. No doubt, one of the conditions which has been evolved in by Justice Bashyam Ayyangar in the decision in Aiyyagari Venkataramayya (supra) is that all the sharers must be on the party array. In this case, the said requirement is fulfilled as they are represented as Defendants 4 to 11 is O.S. No. 89 of 1983. No doubt, we notice that another requirement, in such a case, would be that all the properties of the joint family are scheduled. This requirement is not seen fulfilled and the frame of the Suit is based on exclusive title of the plaintiff and Defendants 1 to 3 which is based on bequest.

127Copy pinpoint127. About the extent of property belonging to the family, it is relevant to notice that PW1 has deposed, inter alia, as follow: H

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A My brother Baktachalam gave an extent of 750 acres of land in Kollegal Village, Satyamangalam to his father in the name of Government assignment in the year 1944. Those 750 acres of land are under our family possession. My father had purchased an extent of 150 acres of land in Coimbatore from 1932 to 1958 in my name and Ramathal. More than 1,000 acres of land were purchased from 1944 to 1958 in their family. V. Rangaswami Naidu is having right upon 1,000 acres of land purchased in Kollagal, Kollangodu, Coimbatore and Tanjore. I know that R. Krishnammal has right over 1,000 acres of land. R. Krishnammal did not claim share in 1000 acres of land in A1. When we settled the matter and gave the share to R. Krishnammal, we did not take into account of an extent of 1,400 acres of land. R. Krishnammal did not claim share as she is having right over more than 700 acres of land. Above is the picture regarding the availability of the family properties. They are of course not scheduled in the Plaint. We D are not exactly aware of the value of these lands.

128Copy pinpoint128. We would certainly think that the Legatee under the Will, left behind by a Hindu after there is division in the family status in regard to specific properties belonging to the family, would indeed have rights qua the property but limited to the share of the Testator. It cannot be a E principle of law in the region of controversy that a man cannot ordinarily transfer a right greater than what he himself has. Even under the Indian Succession Act, under Section 59, there could be no prohibition in V. Ranagaswami Naidu bequeathing his share, if there was division. We have already noticed that in a bequest, the equitable consideration available to a transferee by an intra-vivos transaction, wherein he has paid valuable F consideration, may not apply. But this cannot mean that, if everything else is proved, the legatee should be left remediless. We did toy with the idea of considering holding in favour of the appellants even treating it to be an exercise of powers under Article 142 of the Constitution of India in the special facts of this case as brought out by the testimony of PW1 G as regards the inequity involved. No doubt, we find the frame of the Suit hardly helpful to the appellants. But having regard to the fact that the appellants must fail otherwise, we need not explore this matter further. DOES THE WILL EFFECT A DIVISION?

129Copy pinpoint129. There is an argument raised by the appellants that if no division was caused by B1 still the terms of the Will achieve the same result. In

V. KALYANASWAMY (D) BY LRS. & ANR. v. 757 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

other words in so far as Rangaswami Naidu had in the Will indicated not only about there being a partition in 1932 but he has also stated that he continues to be a divided member till the date of the Will and he has already made an open declaration of his divided status division also flows as an inevitable result of his Will. The Will causes the disruption and therefore the respondents who are the legal representatives of Lakshmiah B Naidu have no claim in law under the doctrine of survivorship. We do not think there is any merit in this argument. It may be true that though no issue as such was raised, the trial court was indeed called upon by the parties to answer this question. What is involved essentially is the reading the contents of the will so as to ascertain whether it has the impact of being the declaration of an unequivocal intent of the coparcener to separate.

130Copy pinpoint130. Shri Guru Krishnakumar, learned counsel would however point out that even proceeding on the basis that there is a Will and its terms amount to a declaration since Rangaswami Naidu died on 1.6.1955 and the Will saw the light of the day as far as other coparcener is concerned only in the course of proceeding under Section 145 of the CrPC which took place much after the death, when succession opened to the estate of Rangaswami, the will not having been communicated to Lakshmiah Naidu the requirement in law was not fulfilled. In order that Section 3(2) of the 1937 Act applies, V. Rangaswami E Naidu must have died intestate, leaving behind an interest in the Hindu Undivided Family. What the appellants are calling upon us to do is to take a part of the Will which allegedly contains the declaration which in law, effects division. But if the Will is to be acted upon, then the conundrum which exists is, it could not be said that V. Rangaswami Naidu died intestate qua the properties which are the plaint scheduled properties. F In fact, Section 5 of the 1937 Act has defined the words “die intestate” to mean that “a person shall be deemed to die intestate in respect of all property of which he has not made a testamantary deposition which is capable of take effect”. On the one hand, the appellants would require this Court to hold that B10-Will should govern the rights of the parties G and that it is capable of taking effect. If it is not found capable of taking effect, the cause of action would fail. If, therefore, we proceed on the basis that there is a will Section 3(2) did not apply, and R. Krishnammal, the widow, would get no right under Section 3(2). If she did not get any right under the Act with regard to the properties governed by the Will, H

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