POTTI LAKSHMI PERUMALLU versus POTTI KRISHNA VENAMMA

POITI LAKSHMI PERUMALLU

POTfl KRISHNA VENAMMA

August 13, 1964

(K. SUBBA RAo, N. R1UAGOPALA AYYANGAR AND J. R. MuoHOLKAll JJ.)

llindu Womw's Rights to Property Act, 1937 (Act 18 of 1937)-/lusband member of joint family-Will by husband-Whether amo1U1U to separation--JVht:thc•r could be construed as family arrange1nen1-WiJow's itJterest-Dcterminafion-iYhethcr as on the d.11e of seeking partition or as on the date of death of husband.

The respondent, widow of S, 1hc brother of the appellant, filed o suit claiming half ~hare in the entire propeny by virtue of the provisions of the Hindu Women's Right to Properly Acl. After 1he death of S. his only son by his first wife died al 1he age of 11 yeaf3. The respondenl admit1ed thal S had purporled 10 exeeule will before hi• death but contended that it was inofcrativc because he was member of Hindu joint family at 1he lime o his dea1h. The courts below found that 1he suit properties were the joint family properties of S and the appellant. that the will execuled by S was inoperative and not bindi"I' on the respondent and that she was cnti1Ied to half share in the swl properties. On appeal by special leave, 1he appellanl contended tbol ( 1) 1he will execuled by S it<elf rcsulled in severance in the a1a1us of the two brothers consliluling lhe join1 family and 1ha1 in any event ocpa· ration en•ued between them at the death of S; (2) at any rate the will should be construed to be family arrangemenl made by 1he Karla of the family and assented lo by the respondenl aad by the father and the foster-father of the respoadenl on her behalf. and ( 3) assuming thal neither of the two contentions ,~·ere correct, the interest to whioh the respomlenl would he Clllilled would he ilh share in the properly and not half share therein. this interest having to be a.~certaincd as on the date of the dea1h of S.

HELD : chat the High Court rightly aega1hed all these contcnti-. (i) Nowhere in the will had S staled thal be wanlcd to pnt an end 10 1he coparcenary. Indeed, 1he very assertion therein-though it ba3 been concurrently found 10 be untrue-that the properly was not join! family property would preclude an inference that S inlcnded 10 CXl'fllS'! an intention to separate and put an end to coparcenary which, accord-ing to thal asser1ion, in face did not exist. [30G-3 IA]

A. Raghava1111na v. A. Che11cha1nn1a, (1964J 2 S.C.R. 933 referred to.

(ii) family arangement which is for lhe benefil of lhe family generally can be enforced in court of law. Bm before the court would do so, it must be shown that there was an occasion for entering iato_ family arrangemenl and ii was acletl upon. [31A-BJ

(iii) According to the theory underlying the Hindu law the widow of deceased Hindu is his surviving half and therefore as long u lb• is alive he must be deemed to continue to exist in her person. Thi! surviving half had, under the Hindu law lexts, no right to claim parti-tion of 1he property of lhe family to which her husband belonged. Bnt .. the Act- of. 1937 has conferred thal righ1 upon ;,er. When the Act says that she wiU have the same right as her husband had, it cJcarJv mcen'I: that she would be entitled to be allotted the same shnrc ac; hr:-h11~1,and

would have been entitled to had he lived on the date on which she claimed partition. The interest devolving upon the widow need not necessarily be either by survivorship or by inheritance but could also be in third way i.e., by statute ilnd where the interest is taken by her under statute it would be of kind provided by the statute itself. [34B-D; 37BJ

Case law discussed.

Jadaobai v. Puranmal, I.L.R. [1944] Nag. 832, and Natarajan Chettiar v. P'Tumal Ammal, A.I.R. 1943 Mad. 246, disapproved.

Siveshwar Prasad v. Lala Har Narain, I.LR. (1944) 23 Pat 760 and R•/•ndrabati v. Mungalal, I.L.R. (1952) 31 Pat. 477, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 519 of 1961.

Appeal by special leave from the judgment and decree dated December 11, 1958, of the Andhra Pradesh High Court in Appeal Suit No. 1142/1953.

S. T. Desai and T. V. R. Tatachari, for the !IPpellant.

G. Venkatarama Sastri and R. Gopalakrishnan, for the res-

pondent.

The Judgment of the Court was delivered by

Mudholkar J. This is an aP.peal by special leave from the judgment of the High Court of Andhra Pradesh affirming the decrees for partition and separate possession of certain movable and immovable properties, passed by the second Additional Subordinate Judge, Vijayawada.

The genealogical table showing the relationship between the parties set out below will be of assistance in appreciating the facts of the case :

Plllla Pao

died in 1939

Potti Subba Rao who died in the year 1919 was survived by three sons Sitaramaiah, Lakshmi Perumallu and Krishnanturti. Sitaramaiah was married twice. From the first wife he had son named Pulla Rao. After the death of the first wife he married Krishnavenamma, the plaintiff in the suit. Sitaramaiah died on August 10, 1938 •. No issue was born to Krishnavenamma who was only 14 years of age at the time of Sitaramaiah's death. Pulla

Rao died in the year I 939 at the age of I I years. Krishnamurti died in the year 1930 i.e., before Sitaramai&h, without leaving any issue or widow. The plaintiff continued to stay in the same house as the defendant till the beginning of July, 1950. Then she sud-denly left the house and instituted the suit in question on the 6th of that month. According to her Sitaramaiah and his two brothers, ·the defendant and Krishnamurti, acquired large movable and immovable property at Vijayawada, described in the schedule to the plaint, with the aid of their ancestral business. She claimed half share in the entire property set out in the schedules, by virtue of the provisions of the Hindu Women's Rights to Property Act, I 937. She admitted that her husband had purported to execute will before his death but conten~ed that it was inoperative because he was member of Hindu joint 'family at the time of his death. •

The defendant contested the claim on various ground•. According to him there was no ancestral property and the suit properties were acquired by the brothers by their individual efforts and treated as self-acquisition. Further according to him the will executed by Sitaramaiah is valid and binding on the plaintiff and that the -property allotted to the plaintiff under the will was being enjoyed by the plaintiff and further the properties ·allotted to Pulla Rao devolved upon him after Pulla Rao's death. Lastly, according to him even if rhe property were held to be joint family property of Sitaramaiah and the defendant lhe plaintiff would be entitled only to I/4th share in them and nof half shar~.

The courts below have found that the suit properties were the joint family properties of Sitaramaiah and the defendant, that the will executed by Sitaramaiah was inoperative and not binding on the plaintiff and that the plaintiff is entitled to half share in the suit properties. The trial court gave direction to the effect that commissioner be appointed for ascertaining the property liable to be partitioned and for dividing them into two equal shares by metes and bounds for the purpose of awarding to the plaintiff the separate rosscssion of her half share in the propertie,.

Mr. S. T. Desai who appears for the defendant-appellant has not challenged the concurrent findir.gs of the courts below to the effect that the properties acquired by the family were joint family properties. He. however. urged the following three contentions before us :

(I ) The will executed by Sitnramaiah on August 3, 1938 itself resulted in severance in the status of the twr> brothcf' constituting the Joint fomily and that in any

event separation· ensued betwee.n them at the death of

Sitaramaiah;

(2) that at an} rate the will should ·~e construed to be family arrangement made by the · karta of the family and assented to by the defendant. and by' the father and the foster-father of the plaintiff on her behalf;

( 3) assuming that neither of the two contentions is correct,. the interest to. which the plaintiff would be entitled would be I/ 4th share ·in the property and not half share therein. This interest has to be ascertained as on the date of the death of Sitaramaiah.

', . All these contentions were also urged before the High Court butwere negatived by it and in our opinion, rightly. Mr. Desai has, however, placed reliance upon recent decision of this Court in A. Raghavamma & anr. v. A. Cheni:hamma & anr.(') in support of the contention that the will itself effected severance in status. What was held in that case was that member of joint Hindu family can bring about 11 separation in status by definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty by expressing such an intention even in will. It was further held that. the knowledge of the expression of intention to separate has to be brought home to the persons affected by it and if that is done it relates back to· the date when the intention was formed and expressed. perusal of the will, Ex. B-1, does not however unmistakably show that the intention of Sitaramaiah was to separate himself from the joint family. At the outset he has stated : "I have executed this wilr regarding the arrangements to take effect after my life-time with· regard to the enjoyment of the joint iinmovable and movable properties which are possessed by me and under my management by my brother and others." In the second paragraph he has stated· that ht had no ancestral property at all and that the business carried· on by himself and his brother was established by them. In the third·· paragraph he directed that the plaintiff shall maintain his son Pulla Rao and that his brother would look after the interests of Pulla Rao. The 4th, 5th· and the 8th paragraphs on which reliance is placed' by Mr. Desai run thus : · ·

"4. If for any reason the said Krishnaveni does not agree·

to be like that my younger brother Lakshmi Perumallu· shall deliver possession of the upstair house constmcted newly on the house sit~ purchased from Nadakurthi'

Kristamma and others and the tiled room situate in the big street and purchased from Gunda Subbarayudu out .of the immovable property possessed by.me in Bezwada town on condition of including them in the half share of the property that shall pass to my son after my life-time.

5. The said Krishnaveni shall be at liberty to take

possession of the two properties mentioned in paragraph 4 above, to pay all kinds of tax~; payable thereon and to enjoy freely throughout her life-time only the income got every year from the said two properties without powers of gift, mortgage, exchange and sale. by following the age-old custom and by maintaining the family respect and custom and the said two properties shall pass to my son PuUa Rao alias Venkatasatyanarayana after her life-time.

8. My younger brother Lakshmi Perumallu shall keep

the remaining entire property joint till my son Pulla Rao alias Venkatasatyanarayana attains majority and manage the same, shall bring up the boy properly, celebrate the marriage and other auspicious functions and divide the half share of the property after he attcins majority and deliver possession of the same to my son."

It seems to us difficult to infer from the recitals in these paragraphs

that Sitaramaiah had expressed his unequivocal intention to get separated in status. No doubt, in the 4th paragraph he has observed that in certain circumstances certain property will be included in " the half share of the property that wou Id pass to his son after his death and he has also said in paragraph 5 that the plaintiff shall be at liberty to take possession of the two properties indicated in paragraph 4, enjoy them during her life time and that on her death they will pass to Pulla Rao. But in paragraph 6 he has referred to the remaining property as "joint property" and has reptlll!M that in paragraph 7. Again, what he has said in paragraph 8 militates wholly against the inference of separation in status. TIIC!e he has enjoined upon the defendant to keep the remaining property joint till Puna Rao attained majority, manage the same and divide that property between himself and Pulla Rao after the latter attained majority. Nowhere in the will has he stated that he wanted to.put an end to the coparcenary. Indeed, the very assertion which has been concurrently found to be untrue that the property was not joint family property would preclude an inference that Sitaramaiah ff intended to express his intentioo to separate in status· and pot an end to coparcenary which, accord~ng to that assertion, in fact did

not exist. In the circumstances we cannot accept the first conten., ti on of Mr. Desai.

No doubt, family arrangement which is for the benefit of the family -generally can be enforced in court of law. But before the court would do so, it must be shown that there was an occasion for effecting family arrangement and that it was acted upon. It is quite clear that there is complete absence of evidence to show that there was such an occasion or the arrangement indicated in the will was acted upon. The letter Ex. 12 upon which reliance was placed before the High Court on behalf ,of the defendant has not been found by it to be genuine. The defendant had also pleaded that the provisions under the will were given effect to but no satls· factory evidence has 'been adduced to prove that the plaintiff vyas in enjoyment of the properties allotted to her under the will. We cannot,. therefore, accept the second contention of Mr. Desai.

Coming to the last ·question there is certain amount of conflict in the decisions of the various High Courts. One view is that the qqantum of interest tci which Hindu widow is entitled under s. 3(2) of the Hindu Women's Rights to Property Act, 1937, is to be determined as on the date on which she seeks to enforce partition under sub-s. (3) of s. 3. The other view is that it has to be .determined as on the elate on which her husband died, that is to say, that it is not fluctuating interest increasing or decreasing as result of deaths or births in the family.

The first mentioned view has been stated with approval in Mulla's Principles of Hindu f.,aw, (12 ed.) and it is stated at pp. 109-110 :

"The share which ·aevolves on widow of deceased coparcener is not fixed and determinate share but what she takes is the 'same interest as he himself had'. There-fore, un~il there is partitiqn, she cannot predicate the particular fraction of her share for it is likely to increase or decrease by birth or death of other coparceners. Her . share would include share in accre._tions to the joint fa,inily property till partition is effected. Prior to the Act, widow was entitled to share in partition among her sons in her capacity as mother (except in Madras). It 'has been held in number of cases that after the Act the widow cannot claim double share on partition bet-ween the sons, one in her capacity as widow and another as mother. Under the prior law, stridhan acquired by female from her husband or father-in-law was taken

into account when share wa' allotted to her on partition arnorigst the sons. The share she gets under section 3 ( 2) is not affected by any rule of Hindu law to the contrary and it has been held in Nagpur case that such srridhan received by her would not be deducted from her share on partition."

In support of this statement in law reliance has been placed upon the following decisions :

Nagappa v. Mukambe('); Mahadu v. Gajarabai(2); Shivappa v. Yellewa('); Gangadhar v. Subhashsini('); Tukaram v. Gangi("); Ramchandra v. Ramgopa/("); Hanuman v. Tu/sa-bai(').

In addition to these decisions our attention was also invited to Gurudayal v. Sarju([8]); Kamal Kishore v. Harihar('); SabujpQ.ri v. Satrughan lsser('[0]); Muvva Subba Rao v. Movva Krishna Prasadam ( [11]); Parappa v. Nagamma([12]); Manicka v. Aruna-chala( "); Harekrishna v. Jujesthi( "); Kel.uni V. Jagabandhu([1]•); n The Indian Leaf Tobacco Deve/opme11t Co. Ltd., v. K. -Kotayya([10]); Laxman v. Gangabai("); Bhondu v. Ramdayal("); Rat an K umari v. Sunder Lal ( [19]).

The High Court itself referred to the decision in Chinniah

Che/liar v. Sivagami Achi('[0 ]) which is decision of the Full Bench constiluted for resolving an apparent conflict between the decisions in Chinniah Che/liar's case('") and Subba Naicker v. Na/lam-ma/(21). In the opinion of the Full Bench there was really no conflict between the two decisions and that the right conferred by the Hindu Women's Rights t6 Property Act was new right in modification of the pre-existing one. The Full Bench further held th~t s. 3(2) of the Act does not bring about severance of interest of the deceased coparcener, that his widow is not raised to the status of coparcener though she continues to be member of the joint Hindu family as she was before the Act, that the joint family would continue to exist as before subject only to her statutory rights and that the rights of the other members of the family would be worked out on the basis that the husband died

(ll 1.L.R. 11951! Bom. 442.

(2) l.L.R. 11954) Born. 885.

(3) I.LR. [19S3! Born. 958.

(4) A.l.R. 19SS Orissa 135.

(5) A.LR. 1957

(6) l.L.R. [19561 Nas. 362.

Nag. 28.

(7) A.1.R. 19S6 Nag. 63

(8) A.l.R. 1952 Nas. 43.

(9) l.L.R. [1951] Pat. 357.

(10) A.l.R. 195B Pat. 405.

(11) l.L.R. !1954) Mad. 2S7.

(12) I.LR. [1954] Mad. 183 (F.8.).

(14) 1.L.R. l19SS] Cutt. 709.

(13) 1.L.R. 1961] Mad. 1016.

(IS) l.L.R. [19571 Cutt. 6:lll.

(16) A.LR. 1955 Andh. 135.

(17} 1.L.R. [1955] M.B. 282.

(18) A.l.R. 1960 M.P. 51.

(19) A.J.R. 1959 Cal. 787.

(20) I.LR. [!~SJ Mad. 402.

(21) (1949) 2 M.L.J. 536.

on the date when the widow passed away, the right to survivorship being suspended till then. Further according to the Full Bench widow can under the Aci claim share not only in the property owned and possessed by the family at the time· of his death but also in the accretions arising therefrom, irrespective of the charac-ter of the accretions. The various decisions to which we have adverted rest on the view that the interest which the Jaw has con-ferred upon the widow is new kind of interest ,though in character it is what is commonly known as the Hindu widow's estate. This interest is in substitution of her right under the pre-existing Hindu law to claim maintenance. The decisions also recognise , that though the widow does not, by virtue of the interest given to her by the new law become coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to these decisions her interest is fluctuating one and is liable to increase or decrease according as there are deaths jn or additions to the members of the family or according as there are accretions to or diminutions of the property. In our opinion these decisions lay down the law correctly. To hold, as contended for by Mr. Desai and as would appear from the two decisions upon which reliance was placed by him before us-ladaobai v. Puranmal(') and Siveshwar Prasad v. . Lala Har Narain([2])-would mean that whenever coparcener in Hindu joint family dies leaving widow disruption takes place in the family. For, unless disruption js deemed to take pl:!ICe, it would not be possible for the widow's share to be· cry-stallised. The argument of Mr. Desai, however, is that the words in the Act "his widow shall, subject to the provisions of sub-s. ( 3) have in the property the same interest as he· himself had" can only mean the interest which the deceased coparcener had at the moment of his death and the words "shall be the limited in-terest known as Hindu woman's estate" show that the nature of her interest was to be the same as already recognised by the· Hindu law. The legislature did not, he says, intend to create new kind of interest nor to make her coparcener. Undoubtedly she does not become coparccner, though her interest in the family property is to be the same as that of her deceased husband . except that in extent it is to be that of Hindu widow. (Now, of course, it has been enlarged by s. 14 'of the Hindu Succession Act, 1956). But coparcener has no defined interest in the joint family property and the right which he has is to claim for partition. The quantum of his interest would be determinable

(I) J.L.R, [1944] Nag. 832.

(2) J.L.R. (1944) 23 Pat. 7(1J.

with reference to the date on which such member unequivocally declares his intention to separate and thus put an end to the coparcenary. ft cannot even be suggested that the event of the death of coparceaer is not tantamount to an unequivocal de-claration by him to separate from the family. According to the theory underlying the Hindu law the widow of deceased Hindu is his surviving half and, therefore, as long as she is alive he must be deemed to continue to exist in her person. This surviv-ing half had under the Hindu law texts no right to claim parti-tion of the property of the family to which her husband belonged. But the Act of I 937 has conferred that right upon her. When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the . same share as her husband would have been entitled to had he lived on the date on which she claimed partition.

Jadaobai's case(') in which different view has been taken and on which reliance has been placed by Mr. Desai may now be considered. In that case it was contended that the widow does not take any property by succession and, therefore, she is not liable to produce succession certificate for the execution of decree obt:1ined by her hushand. In support of this contention reliance was placed on b.ohalf of the widow upon the decision in Natara;an Chettiar v. Perumal Amma/(2). In that case Horwill J. observed as follows :

'The widow does not obtain the right given under this section (section 3 of the Hindu Women's Rights to Pro-perty Act, I 937) by survivorship. She was not co-parcencr before her husband's death and she was not one afterwards. I do not however think that it follows that because the widow does not obtain her right by survi-vorship that she must obtain it by inheritance. The effect of s. 3 els. (2) and (3) mav be regarded as survival of the husband's persona in the wife giving her the same rights as her husband -had except that she can alienate property only under certain circumstances. As the widow did not inherit her right, no succession certi· ficate is necessary."

The learneti Jmlj!cs of the Nag;rnr High Court observed that perwn ~~n tak~ the prore~ty of another either by survivorship or bv succe"ion and that if. as held in the Madras case, the widow of " deceased coparcener does nm take it by survivorship the only ··-(I) J.L.R. (!944] Na•'. 83". --. -t2) A.t.R. t943 Mad. 246.

way in which she co~ld take it would be by succession, In the course of the jud.gment the learned Judges observed·:

"Horwill J., in the Madras case quoted above, is of the opinion that the mere fact that the widow d0es not obtain her right by survivorship does not lead to the conclusion that she obtains it by inheritance. she does not claim it by inheritance we fail to understand how she is claiming it in the face of the clear wording of the Act. The observa-tions that the effect of section 3, clauses (2) and (3), may be regarded as survival of the husband's persona in the wife, giving her the same rights as her husband ·had except that she can alienate property only under certain ch-cum-stances, do not indicate very clearly what was really intended to be laid down. Survivorship having been ruled out the only other mode by which she will be clothed with the rights of her husband in the property, though to limited extent, would be ,by succession or inheritance if she claims under the Hindu Women's Rights to Property Act."

It seems to us that the learned Judges were not quite correct in saying that the property of one person can, on his death, c'evolve on another only by survivorship or by inheritance and in no other way. For, it is competent for the legislature to confer right on person to get the property of another on the latter's death in certain circumstances. This. is precisely what has been done. by t:1e legislature in enacting s. 3, sub-s. (2) of the Hindu Women's Rights to Property Act. Adverting to the aforesaid decision it was observed by another division bench of the same High Court in Gurdayal v. Sar ju (1) :

"Reliance was, however, placed for the defendants on Jadaobai v. Puranmal([2 ]) where Division Bench of this Court heid that the interest of the husband devolves on the widow by inheritance and not by survivorship. We have no quarrel with that. It does not matter for the purposes of this case how the interest which the Hindu Women's Rights to Property Act gives Sarjubai devolved on her. The question is of what does that interest consist. Even if it devolves on her by inheritance the interest is, accord-ing to the Act_, 'the same interest as the husband had', and ·'the same right of claiming partition as male owner.' Whether this right devolved on Sarjubai by way of inherit-ance, or by succession, or whether because of the Act, a~

(l) A.I.R. [1952] Nag. 43.

statutory right, would make no difference.

The right

is the same as that of male·owner and the interest is the ~.ame as her husband had. For these li1Ilited purposes she merely steps into his shoes and can be regarded as c0n-tinuation of himself."

In the next case relied upon, Siveshwar Prasad v. Lala Har

Narain ( ') Division Bench has held that the interest which is acquired by widow under the Hinqu Women's Rights to Property Act, 1937 is not as survivor but as an heir of her husband. The interest, therefore, is an asset of her husband in her hands and can be proceeded against by creditor even though it may be an unruvided interest in joint family property. It is rufficult to appreciate how this decision is of assistance to the appellant. No <lou bt, the husbaud's interest does not devolve on the widow by survivorship but it docs not follow from that that the husband's interest gets crystallised at the moment of his death and that it is to thb interest that the widow succeeds. On the other hand the view of the learned Judges that the husband's interest is liable to he u•t~ched at the instance of the husband's creditors despite it~ dcvolu1ion on the widow seems to accord with the view that the widow takes the husband's interest as the surviving half of the husband. passing reference was also made by learned counsel to Rojendrabati v. Munga/al('). The question for consideration in that case was the same as in Jadaobai's case([1 ]) and the High Court relying upon its earlier decision held that the provisions of s. 214 of the Indian Succession Act, 1925 were attracted, the suit b~ing one for the recovery of her share of the money due to the joint family of which her deceased husband was member. In the course of the argument reliance was placed on decision of the Madras High Cou:t in which it was held that under s. 3 of the Hindu Women's Rights to Property Act widow of deceased COJJace~ner in joint Hindu family becomes entitled to right not us an heir but by statute and that she stands in the shoes of her decea<c<l husband and continues to he member of the join! family. Thi> "-'"l;ument was rejected by the leamccl Judges who observed :

an It is rufficult to

"With the greatest respect I cannot accept this pro-· position specially in view of the principles which have been so definitclv laid down in two Bench decisions of this Court referred io above. The lady may be regarded as member of the joint family but as has been pointed out by this Court the interest which devolves upon her after the death of the last male holder, must be regarded as an ( ·) I.! .R. (1944) 23 Pat. 76ll. (2) I.l.R. (19S2) lt Pat. 477. (3) I.LR. 1!944] Nag. 832. ·

held that she acquires her interest as an heir section 214interest descending to her as an heir, and as soon as it is · 1 of the Succession Act would come into play and no decree can be passed in her favour unless she produces succes-sion certificate."

As we have already pointed out the interest devolving upon the widow need not necessarily be either by survivorship or by inherit-ance but could also be in third .way i.e., by statute and where the interest is taken by her under statute no further diffil)ulty arises.

We are, therefore, clearly of the view that the High Court was right in allotting to the respondent half share in the family property at its partition. Accordingly .we affirm its decree and dismiss the appeal with costs.

Appeal dismissed.