Apoorva Shantilal Shah v.

Commissioner Of Income Tax Gujarat I, Ahmedabad, AIR 1983 SC

409

Hon’ble Judges/Coram: Hon'ble Mr. Justice Amarendra Nath Sen, Hon'ble Mr. Justice P.N.
Bhagwati
Court: Supreme Court of India
Summary : Family and Personal - Income Tax and Direct Taxes - Income Tax Act, 1961, s.
171 - Hindu Law - (A) Whether the father in exercise of his right as patria potestas or
otherwise can effect a partial partition between himself and his minor sons of joint family
properties of a Hindu joint family governed by the Mitakshara school of Hindu law - Held,
partial partition among father and minor sons is permissible - (B) Determination of effect of
unequal distribution amongst co-sharers - Held, partition is not invalid - Appeal allowed.

JUDGEMENT
Amarendra Nath Sen, J.
1. The principal question for decision 5 in this appeal by Special Leave is whether the father in
exercise of his right as Patria Potestas or otherwise can effect a partial partition between himself
and his minor sons of joint family properties of a Hindu joint family governed by the Mitakshara
School of Hindu Law. The assessee, a Hindu undivided family (hereinafter referred to as H.U.F.),
which consists of four members, namely, (1) Shri Apoorva Shantilal Shah, (2) his wife Smt. Karuna
and their minor sons (3) Chintan and (4) Tejal, is the appellant before us. The members of the H.U.F.
are governed by the Mitakshara School of Hindu Law.

2. The D assessment year in question is the year 1975-76. During the assessment pertaining to the
assessment year under consideration, Shri Apoorva who is the father of the minor sons and husband
of Smt. Karuna and the Karta of the H.U.F. made an application to the Income Tax officer for
recognising partial partition under S. 171 of the Income Tax Act, 1961 (hereinafter referred to as
the Act), claiming that two partial partitions bad taken place amongst the members of the said
family, one on 24.12.1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on
29.12.1973 in respect of 1777 shares of the same company.

3. On enquiry the Income-Tax officer (hereinafter for the sake of brevity referred to as I.T.O.) found
that the partial partitions had been embodied in memoranda of agreements of partition. The I.T O.
however, refused to record that there had been a partial partition of joint family properties, as he
was of the view that partial partitions in question could not be recognised inasmuch as the remaining
shares, after making certain allocations in favour of the two minor sons were not allotted in their
entirety to the remaining third coparcener, namely, Shri Apoorva separately or to Shri Apoorva and
his wife Karuna jointly, describing them as members of the H.U.F. The I.T.O. further held that the
said partitions did not purport to have been made at the distance of the minor children, as this course
would require the approval of the Court but the same had been purported to have been made at the
instance of Shri Apoorva.

4. The I.T.O. hinted in the order that the distribution of the shares had not been made equally either
amongst the three members including the two minor sons or amongst the four members of the
H.U.F., as Apoorva's wife Karuna also became entitled to an equal share on partition between the
father and the sons. Against the order of the I.T.O. the assessee H.U.F. presented an appeal before
the Appellate Assistant Commissioner (hereinafter referred to as A.A.C. for the sake of brevity).
The A.A.C. allowed the appeal and held that there had been genuine partial partitions between the
coparceners in respect of the said shares. The A.A.C. held that it was not necessary to obtain court's
sanction even in a case where some of the parties to the partition were minors.

5. As regards the print that the distribution of shareholding had not been made on equal basis, the
A.A.C., taking into consideration some earlier partitions, came to the' conclusion that the
distribution had been equally made. The A.A.C. further observed that even if the distribution had
not been made on equal basis that would not affect the validity-of the partitions in question and the
minor sons, if they felt aggrieved in this regard, could on attainment of majority seek to avoid the
said partitions. Aggrieved by the order of the A.A.C., the Revenue went up in appeal to the Income-
Tax Appellate Tribunal (referred to as tribunal hereinafter for the sake of brevity) to challenge the
A.A.C's recognition of the said partitions.

6. The Tribunal held for reasons recorded in the order that partial partitions in the instant case were
outside the framework of the Hindu Law and as such they could not be recognised as valid for the
purposes of S. 171 of the Act. In that view of the matter the Tribunal set aside the A.A.C's order and
restored the order of the I.T.O.

7. Under S. 256 (1) of the Act, the Tribunal referred the following question to the High Court:-
(1) Whether on the facts and in the circumstances of the-case, the Tribunal was right in holding that
Shri Apoorva Shanti1al could not himself have given consent on behalf of his minor sons to the
partitions proposed by him in his individual capacity as father ?
(2) Whether on the facts and in the circumstances of A the case, the Tribunal was right in holding
that the partial partitions were outside the framework of Hindu Law ?
(3) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that
the partial partitions could not be recognized as valid for the purpose of s. 171 of the Income-tax
Act, 1961 ?
(4) Whether on the facts and circumstances of the case, the Tribunal was right in holding that partial
partitions made by a Hindu father in exercise of his patria potestas cannot be recorded as a valid
partitions under s. 171 of the Income-tax Act, 1961 ?
(5) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that
the partial partition did not amount to a family arrangement in which the father acted as a natural
guardian of the two minors sons after he had exercised his patria potestas ?
(6) Whether the Income-tax Department 9 competent to challenge the exercise of patria potestas by
a Hindu father in respect of coparcenery property, making a partial 1 partition ? For reasons recorded
in the judgment the High Court answered all the questions in the affirmative and against the
assessee.

8. The High Court in its judgment has held that the father under the Hindu Law has no power or
authority to effect any partial partition of Joint family properties between himself and his minor
sons. The High Court has observed that apart from the decision of the Madhya Pradesh High Court
in the case of Commissioner of Income-tax v. Seth Gopaldas H.U.F there was no decision of any
court on the point. The High Court also considered other decisions and books and C' treatises on
Hindu Law. The High Court held that on a consideration of the authorities, the following
propositions were established.
9. From the stand point of ancient Hindu Law, what was recognised was only a partition in respect
of all the properties of the H.U.F., upon disruption of the status of H.U.F. regardless of whether
the properties were actually divided by metes and bounds or whether these were there after (after
disruption of joint status) held as tenants-in common.

10. Partial partition in the sense of division in respect of part of the assets while continuing the
status of HUF in respect of rest of the assets was not known to the ancient Hindu Law and was not
recognised by ancient Hindu Law

11. Partial Partition in the sense of division of some of the properties whilst continuing the status
of HUF in respect of other items of property originally belonging to the HUP came to be recognised
only later on by evolution of custom and by judge-made law.

12. Such a partial partition was so recognised only if it was made by consent of all the coparceners.
In other words, partial partitions in respect of only some items of property whilst continuing the
status of HUF in respect of rest of the items of property could be effected only with the consent of
all the coparceners. When there was a disruption of the status of the HUF only one or more of the
coparceners could not insist for division of some items of the property without effecting division
in respect of all the items of properties except by consent of all the coparceners.

13. Tn respect of a joint family consisting of a father and his sons, the traditional Hindu Law
recognised the right of a father in his capacity as patria protestas to exercise his extraordinary
power to disrupt the status of HUF and to divide his sons inter se without their consent subject to
the rider that 'all' assets of the HUF were subjected to partition.

14. The aforesaid extra ordinary power is subject to the qualification that he gives to his sons an
equal share and division is not unfair (vide Gupte's Hindu Law 2nd Edn.,). "The Power of the
father to sever the sons inter se is a survival of the patria potestas and may be exercised by him
without the consent of his sons'.. "Again, in all A cases his power must be exercised by him
bonafide and in accordance with law; the division must not be unfair and the allotment must be
equal. He must give his sons equal share with himself"

15. There is nothing in (I) either ancient Hindu Law or (2) customary or judge-made law which
authorises the father in exercise of his extraordinary power to effect a partial partition of HUF
consisting of himself and his minor sons by dividing some items of properties whilst continuing
the joint status in respect of the rest of the properties.
The High Court observed:-
"The validity of the aforesaid propositions is incapable of being disputed and has not been
disputed. What has been contended on behalf of the assessee is that whilst there is no express
provision in so many words, either in the ancient Hindu texts or Judge-made law, that the power
of a Hindu father to effect partition of a HUF consisting of him self and his sons including minor
sons in exercise of his power as patria protestas extends even to partition in respect of only some
items of property it is required to be inferred by implication. In other words, it is argued that though
there is no express reference to the power to effect that partial partition in the sense of division of
some items of property while continuing the status of HUF in respect of the rest and though such
power is not recognised in terms, it follows as a necessary corollary."
16. The High Court noted that this contention has been negatived by the Madhya Pradesh High
Court in the case of Gopaldas (supra) and the High Court for reasons recorded in "the judgment
rejected this contention. The High Court further held that the transaction in question was in any
event invalid in the facts and in the circumstances of this case.

17. Aggrieved by the judgment of the High Court, the assessee with special leave granted by this
Court has preferred this appeal.

18. In this appeal before us, two main contentions have been urged on behalf of the appellant. The
first contention urged is that the High Court went wrong in holding that the father cannot effect
any valid partial partition between himself and his minor sons of joint family property belonging
to Hindu undivided family consisting of himself, his wife and minor sons who are governed by the
Mitakashra School of Hindu Law. The other contention raised is that the High Court erred in
coming to the conclusion that in the facts and circumstances of this case, the partial partitions were
invalid.

19. Mr. Desai learned counsel appearing on behalf of the appellant has advanced the following
arguments.

20. According to the Mitaksbara School of Hindu Law, the father has a power to divide ancestral
property among his sons and the partition made by him is binding on his sons provided that the
power is exercised bonafide and in accordance with law which regulates and restricts it in the
interests of his sons. This power on the part of the father is recognised in text books on Hindu Law
and has been accepted in a number of decisions beginning with the case of Kondaswami v.
Doraisamy Ayyar.

21. A father in any such case of ancestral property has the power to separate from all or from even
some of his sons remaining joint with the other sons or leaving them to continue as a joint family
with each other. The consent of the sons is not necessary for the exercise of that power whether
they are majors or minors. In this connection reference is made to para 323 of Hindu Law by D.F.
Mulla and para 458 of Mayne's Hindu Law ).

22. Mulla's Hindu Law, 11th Edn. reads as follows:- Hindu Law, 11th Edn. reads as follows:-
"The father of a joint family has the power to divide the family property at any moment during his
life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not
only a separation of the father from the sons, but a separation of the sons inter se. The consent of
the sons is not necessary for the exercise of that power. But a grandfather has no power to bring A
about a separation among the grandsons. The right of a father to sever sons inter se is a part of the
patria potestas still recognised by the Hindu Law."

23. Para 458 of Mayne's Hindu Law and Usage, 11th Edn.reads as follows:-
"Partition may be either total or partial. A partition may be partial either as regards the persons
making it or the property divided.
It is open to the members of a joint family to sever in interest in respect of a part of the joint estate
while retaining their status of a joint family and holding the rest as the properties of an undivided
family.
Any one coparcener may separate from the others. but no coparcener except the father or
grandfathers, can compel the others to become separate amongst themselves. A father may
separate from all or from some of his sons, remaining joint with the other sons or leaving them to
continue a joint family with each other. A separation between coparceners, for instance, between
two brothers, does neither necessarily nor even ordinarily involve a separation between either of
the coparceners and his own sons."

24. So extensive and wide is this patriarchal power of the father that it has been recognised even
in cases where all the sons were minors or an only son was a lunatic. Reference is made to the
decision of the Bombay High Court in the case of Bapu Hambira Patil v. Shankar Bahu Patil, and
to the decision of the Madras High Court in the case of Venkataswara Pattar v. K. Mankayammal
.

25. S. 171 of the Income-tax Act, 1971 and S. 25A of the earlier Act have been all along accepted
as machinery provisions and not charging sections. In the earlier Act though there was no express
reference to partial partitions, the preferable view expressed in decisions under that Act was that
if there was a partial partition of an asset of the family or an asset of the family was divided and a
partnership was constituted and the family continued joint as regards other properties, the
assessment on the basis of undivided Hindu family would be confined to the income of the
properties so remaining undivided and the income of the property partitioned would be excluded
from the computation of the income for assessment. It was only income received from the
properties not partitioned that would be considered to be the income of the joint family. Reliance
has been placed on the decision in the case of Charandas Haridas v. C.I.T. Bombay, (1960) 39
I.T.R. 2021960 Indlaw SC 344.

26. This power of the father has been described as his "superior power" or "peculiar power" or
"patria potestas". There is neither principle nor authority for the proposition that the exercise of
this independent and extensive power of the father even in the context of minor sons could not
take into its purview the lesser power to partition only some of the family properties without
disrupting the status of the members of the joint family as regards other properties even when it is
a genuine exercise of the lesser power. At no time was there recognised any limitation or inhibition
on the power of the father, though of course the partition effected by him had to be fair and
equitable. There is no text of Hindu Law which prohibits partial partition whether as to person or
as to property.

27. The decision of the Privy Council in the case of Appovier v. Ram Subba Aiyan when it speaks
of partial partition of the joint family by agreement of the coparcener cannot possibly be read as
restricting the patriarchal and superior power of the father to effect division of the entire joint
family properties and to exclude operation in case of exercise of the lesser right of division of only
some of the family properties.

28. Mr. Manchanda learned counsel appearing on behalf of the department, has advanced the
following arguments:

29. Under ancient Hindu Law, partial partition was unknown. Severence of status disrupted the
family. The joint family need not necessarily have any property. If it bas property, then its
separation is only an incidence of the severence of status.

30. Partial partition is judge made law and the earliest case where this was mooted was in 1846 in
the case of Rewun Prashad v. Radha Beeby This was followed in Appovier's case (supra) and then
in certain decisions of Indian Courts. Reference is also made to paragraph 458 of Mayne's Book
on Hindu Law and Usage for contending that agreement between the parties is a sine qua non.

31. The powers of patria potestas are confined mainly to the power to sever the status of the joint
family as-a whole. Judge. made law which has recognised partial partition has attempted to extend
the ancient, feudal archaic patriarchal powers of patria potestas to joint families so as to include
the power of partial partition with the consent of the parties. There could be no justification for
now extending it, particularly as the legislature itself, as per the Finance (No. 2) Act, 1980 w.e.f.
1.4.80 has de-recognised partial partition altogether. Sub-s. (9) has been added to S. 171 of the Act
and by this provision partial partition of a HUF effected after 31.12.78 will be de-recognised for
income-tax purposes and this sub-section has been incorporated with the object of curbing the
creation of multiple HUF by making partial partitions. Where a HUF is taxed in the status of HUF
it will continue to be taxed as such unless there has been a total partition of the family properties
by metes and bounds and an order to that effect is recorded by I.T.O.

32. The powers of patria potestas of a father have always been understood to be restricted and
limited to a complete and whole partition. This power can only be exercised with regard to the
entire property, provided the property is divided equally and fairly by the father.

33. We may observe that in course of the hearing, reference was made to a number of decisions of
various courts by the learned counsel for the parties.

34. We shall now proceed to consider the decisions which appear to us to leave a material bearing
on the question involved in the appeal. We shall first refer to the decision of this Court in the case
of Charandas Haridas1960 Indlaw SC 344 (supra). This decision which appears to have clear
bearing on the question and which considers an earlier decision of the Privy Council, does not
appear to have been cited before the High Court. The material facts of this case may be briefly
noted;-
"Charandas Haridas was the Karta of a Hindu undivided family consisting of his wife, Shantaben,
three sons and himself. He was a partner in six managing agency firms in six mills In previous
years the income received by him as partner in these Managing Agencies was being assessed as
the income of the Hindu undivided family. On December 11, 1945, Charandas Haridas acting for
his three minor sons and himself and Shantaben his wife, entered into an oral agreement for partial
partition. By that agreement Charandas Haridas gave one pie share to his daughter Pratibha in the
managing agency commission from two of the six managing agencies held by the family. The
balance together with the other shares in the other managing agencies was divided in five equal
shares between Charandas Haridas, his wife and sons.
This agreement was to come into effect from 1st January, 1946 which was the beginning of afresh
accounting year. On 11th September, 1946 Charandas Haridas acting for himself and his minor
sons and Shantaben executed a memorandum of partial partition in which the above facts were
recited, the document purporting to be a record of what had taken place orally earlier. In the
assessment year 1947-48 and 1948-49, Charandas Haridas claimed that the income should no
longer be treated as income of Hindu undivided family but as separate income of the divided
members. The Income-tax officer declined to treat the income as any but of the Hindu undivided
family, and assessed the income as before. An appeal to the Appellate Assistant Commissioner
was unsuccessful and the matter was taken to the Income-tax Appellate Tribunal. The Tribunal
held that by the document in question, the division, if any, was of the income and not of the assets
from which the income was derived inasmuch as "the agreements of the managing agency with
the managed companies did not undergo any chaoge whatever as a result of the alleged partition."

35. The Tribunal, therefore, held that the arrangement to share the receipts from this source of
income was not binding on the department, if the assets themselves continued to remain joint. A
It further held that the document was "a farce", and did not save the family from assessment as
Hindu undivided family. The following question as directed by the High Court on the application
of Charandas Haridas was referred to the High Court:
"Whether there were materials to justify the finding of the Tribunal that the income in the share of
the com mission agency of the mills was the income of the Hindu undivided family ?"

36. The High Court held that though the finding given by the Appellate Tribunal could not be
construed as a finding that the document was not genuine, the method adopted by the family to
partition the assets was insufficient to bring about the results intended by it. According to the High
Court the Tribunal was right in holding that the document was ineffective and though the income
might have been purported to be divided and might, in fact, have been so divided, the source of
income still remained undivided as belonging to the Hindu undivided family.

37. The High Court accordingly answered the question in the affirmative holding that there were
materials before the Tribunal to enable the Tribunal to reach the conclusion that in so far as these
income-bearing assets were concerned, they still belonged to the Hindu undivided family. The
assessee Charandas Haridas filed an appeal in this Court with special leave granted by this Court.
This Court-allowed the appeal. this Court referred to the following observations of the Privy
Council in Appovier v. Rama Subba Aiyan (supra).
"Nothing can express mere definitely a conversion of the tenancy, and with that conversion a
change of the status of the family quoad this property. The produce is no longer to be brought to
the common chest, as representing the income of an undivided property, but the proceeds are to be
enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become
entitled to those definite shares."
Thereafter this Court proceeded to hold :-
"In our opinion, here there are three different branches of law to notice. There is the law of
partnership, which takes no account of Hindu undivided family. There is also the Hindu Law which
permits a partition of the family and also a partial partition binding upon the family. There is then
the income-tax law, under which a particular income may be treated as the income of the Hindu
undivided family or as the income of the separated members enjoying separate shares by partition.
The fact of a partition in the Hindu Law may have no effect upon the position of partner, in so far
as the law of partnership is concerned, but it has full effect upon the family in so far as the Hindu
Law is concerned. Just as the fact of a karta becoming a partner does not introduce the member of
the undivided family into the partnership, the division of the family does not change the position
of the partner vis-a-vis the other partner or partners. The Income-tax law before the partition takes
note, factually, of the position of the karta, and assessee not him qua partner but as representing
the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the
Partnership Act, but to the provisions of Hindu Law. When once the family has disrupted, the
position under the partnership continues as before, but the position under the Hindu Law changes.
There is then no Hindu undivided family as a unit of assessment in point of fact, and the income
which accrues cannot be said to be of a Hindu undivided family.
There is nothing in the Indian Income-tax law or the law of partnership which prevents the
members of a Hindu joint family from dividing any asset. Such division must, of course, be
effective so as to bind the members; but Hindu law does not further require that property must in
every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured
according to the shares of the members. For an asset of this kind, there was no other mode of
partition open to the parties if they wished to retain the property and yet held it not jointly but in
severalty, and the law does contemplate that a person should do the impossible. Indeed, the result
would have been the same, even if the dividing members had said in so many words that they had
partitioned the assets, because in so far as the firms were concerned, A the step would have been
wholly inconsequential."
This Court further observed :-
"No doubt, there were many modes of partition which might have been adopted; but the question
remains that if the family desired to partition these assets only and no more, could they have acted
in some other manner to achieve the same result ? No answer to the question was attempted; It is,
therefore, manifest that the family took the fullest measure possible for dividing the joint interest
into separate interests. There is no suggestion here that this division was a mere pretence nor has
the Appellate Tribunal given such a finding. The document was fully effective between the
members of the family, and there was actually no Hindu undivided family in respect of these
particular assets."

38. In the case of Kalloomal Tapeswari Prasad (HUF) v. Commissioner of Income-tax, Kanpur,
(1982) 133 I.T.R. 6901982 Indlaw SC 162, this Court observed :-
"Under Hindu Law partition may be either total or partial. A partial partition may be as regards
persons who are members of the family or as regards properties which belong to it. Where there
has been a partition, it is presumed that it was total one both as to the parties and property but when
there is a partition between brothers, there is no presumption that there has been partition between
one of them and his descendents. It is, however, open to a party who alleges that the partition has
been partial either as to persons or as to property, to establish-it. The decision on that question
depends on proof of what the parties intended-whether they intended the partition to be partial
either as to persons or as to properties or as to both.
When there is partial partition as to property, the family ceases to be undivided as regards
properties in respect of which such partition has taken place but continues to be undivided with
regard to the remaining family property. After such partial partition the right of inheritance and
alienation differ according as to property in question belongs to the members in their divided or
undivided capacity. Partition can be brought about, (1) by a father during his life time between
himself and his sons by dividing equally amongst them, (2) by agreement, or (3) by a suit or
arbitration."

39. These two decisions of this Court clearly state that partial Partition under Hindu Law is
permissible.

40. We may mention that in the case of Moti Lal Shyam Sunder v. Commissioner of Income-tax,
U.P a division Bench of the Allahabad High Court also recognised the validity of partial partition.
R.S. Pathak, J. (as his Lordship then was) who spoke for the Bench held for reasons stated in the
judgment that the tribunal was in error in holding that there was no valid partial partition in law
on 1st July, 1961. It may be noted that in the case of Charandas Haridas1960 Indlaw SC 344
(supra) decided by this Court and in the case of Motilal Sham Sunder (supra) decided by the
Allahabad High Court to which we have just referred, all the sons were minor. We have earlier
quoted the relevant passages on the subject from Mulla's Hindu Law and from Mayne's Hindu Law
and Usage.

41. We may now qoute the following observations appearing in 'Mitacshare and Daya-Bhaga-Two
Treatises on the Hindu Law of Inheritance translated by H.T. Colebrooke, Esq.,' in Ch. I, sec. II
(2):-
"When a father wishes to make a partition, he may at his pleasure separate his children from
himself, whether one. two or more sons."

42. In 'History of Dharamshastra' by Shri P.V. Kane (second Edition, 1973) Vol. III it has been
stated:-
"The Manager is called Karta in modern times though the smritis and digests employ words like
Kutumbin (Yaj II. 45), Grhin, Grhapali, Prabhupa Kat. 543) and not Karta. He has special powers
of disposition (by mortgage, sale or gift) of family property in a season of distress (for debts), for
the purposes and benefit of the family (maintenance, education and marriages of members and
other dependents) and particularly for religious purposes (Sradhas and the like). The father has the
same powers as manager and certain other special powers, which no other coparcener has. The
father can separate his sons from himself and also among themselves if he so desires, even if they
do not desire to separate (Yaj. II. 114)".

43. There are observations more or less to the similar effect in the other commentaries on Hindu
Law by other learned authors. We do not, therefore, consider it necessary to refer to the comments
of the other learned authors placed before us in course of the hearing of the appeal.

44. The various commentaries on Hindu Law by the various learned 1 authors go to indicate that
ancient Hindu Law speaks of complete severance of joint family and partition of joint family
properties and does not mention partial partition either with regard to the joint family properties
or with regard to some of the members of the joint family. The right of the father to bring about
the disruption of the joint family properties in exercise of his superior right as father or of his rights
as patria potestas is recongnised in ancient Hindu Law.

45. It is, however, well settled by judicial decisions that partial partition of a joint Hindu family
qua some joint family properties or qua some members of the joint family is permissible and valid
in law. The High Court appears to have accepted this position but the High Court then proceeds to
hold that the proposition laid down by judicial decisions with regard to partial partition will apply
only when partial partition is effected with the consent of the members of the joint family and
cannot be extended to a case where partial partition is sought to be brought about by father in
exercise of his superior rights as father or his right, as patria potestas. On an anxious and careful
consideration of the matter we are unable to agree with the view expressed by the High Court. If
the father in execise of his superior right or of his right. as patria potestas is entitled to bring about
a complete disruption of the joint family and to effect a complete partition of joint family properties
of a Hindu family consisting of himself and his minor sons even against the wishes of the minors
and if partial partition be permissible with the consent of sons when they have all become major,
we see no reason to limit the power or authority of tho father to effect the partition only to a case
where the partition is total.

46. The superior right or the right of patria potestas which a father enjoys is always expected to be
exercised in the best interest of the members of the family and more particularly his minor sons.
The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family
consisting of himself and his minor sons and to effect a complete partition of The joint family
properties even against the will of the minor sons.

47. It is also now recognised that partial partition of joint family properties is permissible. When
father can bring about a complete partition of joint family properties between himself and his
minor sons even against the will of the minor sons and when partial partition under the Hindu Law
is now accepted and recognised as valid by judicial decisions, we fail to appreciate on what logical
grounds it can be said that the father who can bring about a complete partition of the joint family
properties between himself and his minor sons will not be entitled to effect a partial partition of
joint family properties between himself and his minor sons if the father in the interest of the joint
family and its members feels that partial partition of the properties will be in the best interest of
the joint family and its members including the minor sons. Even if the test of consent is to apply,
the father as the natural guardian of the minor sons will normally be in a position to give such
consent and it cannot be said as a matter of universal application that in all such cases of partition,
partial or otherwise, there is bound to be a conflict of interest between the father and his sons.

48. If the father does not act bona fide in the matter when he effects partition of joint family
properties between himself and his minor sons, whether wholly or partially, the sons on attaining
majority may challenge the partition and ask for appropriate reliefs including a proper partition. In
appropriate cases even during minority, the minor sons through d proper guardian may impeach
the validity of the partition brought about by the father either in entirety of the joint family
properties or only in respect of part thereof, if the partition had been effected by the father to the
detriment of the minor sons and to the prejudice of their interests.

49. We may point out that in the case of Charandas Haridas to which we have earlier referred and
in which this Court recognised the validity of partial partition brought about by the father of some
joint family properties, the sons were all minors. Also in the case of Motilal Shamsunder earlier
quoted, where the Allahabad High Court recognised the validity of partial partition brought about
by the father between himself and his sons, all the sons were minors.

50. The decision of this Court in the case of Charandas Haridas and the observations of this Court
in the case of Kalloomal Tapeswari Prasad1982 Indlaw SC 162 (supra) which we have earlier
quoted, in our opinion, clinch the decision of the question.

51. We must, therefore, hold that partial partition of properties brought about by the father between
himself and his minor sons cannot be said to be invalid under the Hindu Law and must be held to
be valid and binding. We wish to make it clear that this right of the father to effect a partial partition
of joint family properties between himself and his minor sons, whether in exercise of his superior
right as father or in exercise of the right as patria potestas has necessarily to be exercised bona fide
by the father and is subject to the right of the sons to challenge the partition if the partition is not
fair and just.
S. 171 of the Income-tax Act, 1971 provides as follows:
(1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to
continue to be a Hindu undivided family, except where and in as far as a finding of partition has
been given under this section in respect of the Hindu undivided family.
(2) Where, at the time of making an assessment under sec. 143 or section 144, it is claimed by or
on behalf of any member of Hindu family assessed as undivided that a partition, whether total or
partial, has taken place among the members of such family, the Income Income-tax officer shall
make an enquiry thereinto after giving notice of the enquiry to all the members of the family.
(3) On the completion of the enquiry, the Income tax officer shall record a finding as to whether
there has been a total or partial partition of the joint family property, and, if there has been such a
partition the date on which it has taken place.
(4) Where a finding of total or partial partition has been recorded by Income tax officer under this
section, and the partition took place during the previous year-
(a) the total income of the joint family in respect of the period up to the date of partition shall be
assessed as if no partition had taken place; and
(b) each member or group of members shall, in addition to any tax for which he or it may be
separately liable and notwithstanding anything contained in cl. (2) of section 10, be jointly and
severally liable for the tax on the income so assessed.
(5) Where a finding of total or partial partition has been recorded by the Income tax officer under
this section, and the partition took place after the expiry of the previous year, the total income of
the previous year of the joint family shall be assessed at as if no partition had taken place; and the
provisions of cl. (b) of sub-s. (4) shall, so far as may be, apply to the case.
(6) Notwithstanding anything contained in this section if the Income-tax officer finds, after
completion of the assessment of a Hindu undivided family that the family has already effected a
partition, whether total or partial the Income-tax officer shall proceed to recover the tax from every
person who was a member of the family before the partition, and every such person shall be jointly
and severally liable for the tax on the income so assessed:
(7) For the purposes of this section, the several liability of any member or group of members
thereunder shall be computed according to the portion of the joint family property allotted to him
or it at the partition, whether total or partial.
(8) The provisions of this section shall, so far as may be apply in relation to the levy and collection
of any penalty, interest, fine or other sum in respect of any period up to the date of the partition,
whether total or partial of a Hindu undivided family as they apply in relation to the levy and
collection of tax in respect of any such period. ....... .......
Explanation: In this section.-
(a) "partition" means-
(i) where the property admits of a physical division, a physical division of the property, but a
physical division of the income without a physical division of the property producing the income
shall not be deemed to be a partition; or
(ii) where the property does not admit of a physical division then such division as the property
admits of, but a mere sevence of status shall not be deemed to be a partition;
(b) "partial partition" means a partition which is partial as regards the persons constituting the
Hindu undivided family, or the properties belonging to the Hindu undivided family, or both.
52. It may be noted that the following further provision was included in the said section as sub-s.
(9) by the Finance (No. 2) Act, 1980 w. e. f. 1st April, 1980 :-
" Notwithstanding anything contained in the foregoing provisions of this section, where a partial
partition has taken place after the 31st day of December, 1978 among the members of a Hindu
undivided family hitherto assessed as undivided:-
(a) no claim that such partial partition has taken place shall be inquired into under sub-s. (2) and
no finding shall be recorded under sub-s. (3) that such partial partition had taken place and any
finding recorded under sub-s. (3) to that effect whether before or after the 18th day of June, 1980
being the date of introduction of the Finance (No 2) Bill 1980, shall be null and void;
(b) such family shall continue to be liable to be assessed under this Act as if no such partial partition
had taken place;
(c) each member or group of members of such family immediately before such partial partition
and the family, shall be jointly and severally liable for any tax, penalty, interest, fine or other sum
payable under this Act by the family in respect of any period whether before or after such partial
partition;
(d) the several liability of any member or group of members aforesaid shall be computed according
to the portion of the joint family property allotted to him or it at such partial partition and the
provisions of this Act shall apply accordingly."

53. This sub-s. (9) was not in existence at the relevant time and has no retrospective operation and
it is of no material consequence in deciding the present case.

54. The aforesaid provisions of the Income-tax Act, as they stood at the material time, clearly
recognise partial partition. The definition of partial partition in explanation (b) makes it clear that
partial partition as regards the persons constituting the Hindu undivided family or as regards
properties belonging to the Hindu undivided family, or both, is recognised.

55. In the present case, the partial partition of the shares belonging to the Hindu undivided family
cannot, therefore, be said to be bad either under the Hindu Law or under the Indian Income tax
Act. We must, therefore, hold that the High Court went wrong in deciding that partial partition of
the joint family properties of the Hindu joint family by the father was invalid and could not be
recognised under the Income-tax Act. The subsequent amendment of s. 171 by the inclusion of
sub-s. (9) does not require any consideration as the said, sub-section was not in existence in the
relevant assessment year and is only operative from 1st April, 1980. The other question which falls
for determination is whether the partition can be said to be bad at the time of the partition there
was no equal division of the shares by the father amongst himself and his minor sons and a part of
the share holding had not been distributed to the father or to the father and mother jointly.

56. We may point out that the A.A.C. has found that at the time of division of the shares, the shares
had been distributed equally taking into consideration the shares which had earlier been distributed
amongst the parties. In our opinion, a partial partition of any joint family property by the father
between himself and his sons does not become invalid on the ground that there has been no equal
distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial
partition of joint family properties will act bonafide in the interest of the joint family and 13 its
members, bearing in mind in particular the interests of the minor sons. If however, any such partial
partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by
any such partial partition, he can always challenge the validity of such partial partition in an
appropriate proceeding and the validity of such partition will necessarily have to be adjudicated
upon in the proceeding on a proper consideration of all the facts and circumstances of the case.
Till such partial partition has been held to be invalid by any competent court, the partial partition
must be held to be valid.

57. It is not open to the Income-tax Authorities to consider a partial partition to be invalid on tho
ground that shares have not been equally divided and to refuse to recognise the same. It is
undoubtedly open to the Income-tax officer before recognising the partition to come to a
conclusion on proper enquiry whether tho partition is genuine or not. If the Income-tax officer on
enquiry comes to a finding that the partition is sham or fictious, he will be perfectly within his
right to refuse to recognise the same. In the instant case, there is no finding that the partial partition
is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon.

58. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on
enquiries made by the Income-tax officer, and as the partial partition is otherwise valid under the
Hindu Law, the partial partition has necessarily to be recognised under the provisions of S. 171 of
the Income-tax Act and the assessment must be necessarily made on the basis that there is Partial
partition of the said shares. In the result, the appeal succeeds. The judgment and order of the High
Court are hereby set aside. The partial partition is held to be valid and the Income-tax Officer is
directed to recognise the same and to proceed to make the assessment on the basis that there has
been a partial partition of the said shares between the parties.
59. In the facts and circumstances of this case, we do not propose to make any order as to costs.
Appeal allowed.
Puttarangamma and 2 Ors. v. M.S. Ranganna and 3 Ors., AIR 1968 SC 1018

Hon'ble Judges/Coram: J.C. Shah and V. Ramaswami, JJ.

Court: Supreme Court of India

Case Note:
Family - partition and severance of joint family status - Hindu Law - suit filed by deceased
plaintiff for partition of his share in properties and for granting him separate possession of
same - notice issued by deceased plaintiff to separate from joint family property - Trial
Court found deceased plaintiff was in sound state of mind at time of execution of plaint and
granted decree in appellant's favour - High Court reversing said judgment on grounds of
non execution of plaint by deceased plaintiff and notice issued declared improper - appeal
before Supreme Court - notice given by plaintiff clear and sufficient to show his intention to
be separated from joint family status - both plaint and vakalatnama was countersigned by
responsible advocate who would not have signed if it was executed by person who was
unable to understand content - held, decision of High Court set aside and decision of Trial
Court restored and appellants entitled to decree in terms directed by District Judge.

JUDGEMENT

Ramaswami, J.

1. This appeal is brought by certificate from the judgment of the Mysore High Court dated
December 5, 1960 in R.A. No. 81 of 1956.

2. The appellants and respondent No. 4 are the daughters and legal representatives of Savoy
Ranganna who was the plaintiff in O.S. 34 of 1950-51 instituted in the court of the District Judge,
Mysore. The suit was filed by the deceased plaintiff for partition of his share in the properties
mentioned in the schedule to the plaint and for granting him separate possession of the same.
Respondent No. 1 is the brother's son of the Plaintiff. The relationship of the parties would appear
from the following pedigree :

3. The case of the plaintiff was that he and the defendants lived together as members of a Joint
Hindu family till January 7, 1951, plaintiff being the karta. The plaintiff had no male issue but had
only four daughters, Chikka Rangamma Putta Rangamma, Rangathayamma and Chinnathayamma.
The first 2 daughters were widows. The fourth daughter Chinnathayamma was living with her
husband. Except Chinnathayamma, the other daughters with their families had been living with the
joint family. The plaintiff became ill and entered 'Sharda Nursing Home' for treatment as an in-
patient on January 4, 1951. In order to safeguard the interests of his daughters the plaintiff, Savoy
Ranganna issued a notice on January 8, 1951 to the defendants declaring his unequivocal intention
to separate from them. After the notices were registered at the post office certain well-wishers of
the family intervened and wanted to bring about a settlement. On their advice and request the
plaintiff notified to the post office that he intended to withdraw the registered notices. But as no
agreement could be subsequently reached between the parties the plaintiff instituted the present suit
on January 13, 1951 for partition of his share of the joint family properties. The suit was contested
mainly by respondent no. 1 who alleged that there was no separation of status either because of the
notice of January 8, 1951 or because of the institution of the suit on January 13, 1951. The case of
respondent no. 1 was that Savoy Ranganna was 85 years of age and in a weak state of health and
was not in a position to understand the contents of the plaint or to affix his signature or thumb
impression thereon as well as on the Vakalatnama. As regards the notice of January 8, 1951,
respondent no. 1 asserted that there was no communication of any such notice to him and, in any
case, the notices were withdrawn by Savoy Ranganna unconditionally from the post office. It was
therefore contended that there was no disruption of the joint family at the time of the death of Savoy
Ranganna and the appellants were not entitled to a decree for partition as legal representatives of
Savoy Ranganna. Upon the examination of the evidence adduced in the case the trial court held that
Savoy Ranganna had properly affixed his thumb impression on the plaint and the Vakalatnama and
the presentation of the plaint was valid. The trial court found that Savoy Ranganna was not dead by
the time the plaint was presented. On the question whether Savoy Ranganna was separate in status
the trial court held that the notices dated January 8, 1951 were a clear and unequivocal declaration
of the intention of Savoy Ranganna to become divided in status and there was sufficient
communication of that intention to respondent no. 1 and other members of the family. The trial
court was also of the opinion that at the time of the issue of the notices dated January 8, 1951 and
at the time of execution of the plaint and the Vakalatnama dated January 13, 1951 Savoy Ranganna
was in a sound state of mind and conscious of the consequences of the action he was taking. The
trial court accordingly granted a decree in favour of the appellants. Respondent no. 1 took the matter
in appeal to the Mysore High Court which by its judgment dated December 5, 1960 reversed the
decree of the trial court and allowed the appeal. Hegde, J. one of the members of the Bench held
that the suit could not be said to have been instituted by Savoy Ranganna as it was not proved that
Savoy Ranganna executed the plaint. As regards the validity of the notice Ex. A, and as to whether
it caused any disruption in the joint family status, Hegde, J. did not think it necessary to express
any opinion. The other member of the Bench, Mir. Iqbal Husain, J. held that the joint family of
which the deceased Savoy Ranganna was a member had not been disrupted by the issue of the
notice dated January 8, 1951. The view taken by Mir Iqbal Husain, J. was that there was proof that
the notice was communicated either to respondent no. 1 or other members of the family and, in any
event, the notice had been withdrawn by Savoy Ranganna and so there was no severance of joint
status from the date of the notice.

4. The first question to be considered in this appeal is whether Savoy Ranganna died as a divided
member of the joint family as alleged in the plaint. It is admitted that Savoy Ranganna was very
old, about 85 years of age and was ailing of chronic diarrhoea. He was living in the family house
till January 4, 1951 when he was removed to the Sharda Nursing Home where he died on January
13, 1951 at 3 p.m. According to the case of respondent no. 1 Savoy Ranganna had a paralytic stroke
in 1950 and was completely bed-ridden thereafter and his eyesight was bad for 5 to 6 years prior to
his death. It was alleged in the written statement that Savoy Ranganna was unconscious for some
days prior to his death. The case of respondent no. 1 on this point is disproved by the evidence of
D.W. 6, Dr. Venkata Rao who was in charge of the Sharda Nursing Home of the material dates.
This witness admitted that the complaint of Savoy Ranganna was that he was suffering from chronic
diarrhoea for over five months. He was anemic but he was not suffering from any attack of paralysis.
As regards the condition of Savoy Ranganna on January 8, 1951, the evidence of P.W. 1, Dr.
Subbaramiah is important. This witness is the owner of the Sharda Nursing Home and he has
testified that the notice Ex. A was read over to Savoy Ranganna and after getting it read the latter
affixed his thumb mark thereon. The witness asked Savoy Ranganna whether he was able to
understand the contents of the notice and the latter replied in the affirmative. The witness has
certified on the notice, Ex. A-1 that Savoy Ranganna was conscious when he affixed his left thumb
mark to the notice in his presence. No reason was suggested on behalf of the respondents why the
evidence of this witness should be disbelieved. The trial court was highly impressed by the evidence
of this witness and we see no reason for taking a different view. The case of the appellants is that
respondent no. 1 had knowledge of the notice, Ex. A because he was present in the Nursing Home
on January 8, 1951 and he tried to snatch away the notice from the hands of P.W. 1 but he was
prevented from so doing. P.W. 5, Chinnanna stated in the course of the evidence that after P.W. 1
had signed the certificate in all the three copies, respondent no. 1 and one Halappa came to the ward
and tried to snatch away the notices. The first respondent tried to snatch away the copy Ex. A-1 that
was in the hands of Dr. Subbaramiah and attempted to tear it. Dr. Subbaramiah somehow prevented
respondent no. 1 from taking away Ex. A and handed it over to P.W. 5. The evidence of P.W. 5
with regard to the "snatching incident" is corroborated by Dr. Subbaramiah who stated that after
Savoy Ranganna had executed the notices and he had signed the certificates, one or two persons
came and tried to snatch the document. P.W. 1 is unable to identify the first respondent as one of
the persons who had taken part in the "snatching incident". The circumstance that P.W. 1 was unable
to Identify respondent no. 1 is not very material, because the incident took place about three years
before he gave evidence in the court, but his evidence with regard to the "snatching incident"
strongly corroborates the allegation of P.W. 5 that it was respondent no. 1 who had come into the
Nursing Home and attempted to snatch the notice. There is also another circumstance which
supports the case of the appellants that respondent no. 1 had knowledge of the contents of Ex. A
and of the unequivocal intention of Savoy Ranganna to become divided in status from the joint
family. According to P.W. 5 respondent no. 1 and his wife and mother visited Savoy Ranganna in
the Nursing Home later on and pressed him to withdraw the notices promising that the matter will
be amicably settled. Sowcar T. Thammanna also intervened on their behalf. Thereafter the deceased
plaintiff instructed his grandson P.W. 5 to withdraw the notice. Accordingly P.W. 5 prepared two
applications for the withdrawal and presented them to the postal authorities. The notice, Ex. A
meant for the first respondent and Ex. E meant for the original second defendant were withheld by
the postal authorities. These notices were produced in court by the postal authorities during the
hearing of the case. In our opinion, the evidence of P.W. 5 must be accepted as true, because it is
corroborated by the circumstance that the two notices, Exs. A and E were intercepted in the post
office and did not reach their destination. This circumstance also indicates that though there was no
formal communication of the notice, Ex. A to the first respondent, he had sufficient knowledge of
the contents of that notice and was fully aware of the clear and unequivocal intention of Savoy
Ranganna to become separate from other members of the joint family.

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 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 the separation or not.
The jural basis of this doctrine has been expounded by the early writers of Hindu Law. The relevant
portion of the commentary of Vijnaneswara states as follows :
 [And thus though the mother is having her 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]"

6. Saraswathi Vilasa, placitum 28 states :

[From this it is known that without any speech (or explanation) even by means of a determination
(or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention
without speech.]"

7. Viramitrodaya of Mitra Misra (Ch. II. pl. 23) is to the following effect :

[Here too there is no distinction between a partition during 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)]."

8. Vyavahara Mayukha of Nilakantabhatta also states :

[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).]" (Ch. IV,
s. iii-I).

9. Emphasis is laid on the "budhi visesha" (particular state or condition of the mind) as the decisive
factor in producing a severance in status and the declaration is stated to be merely "abhivyanjika"
or manifestation which might vary according to circumstances. In Suraj Narain v. Iqbal Narain
I.L.R. 35 All. 80. the Judicial Committee made the following categorical statement of the legal
position :

"A definite and unambiguous indication by one member of intention to separate himself and to
enjoy his share in severalty may amount to separation. But to have that effect the intention must be
unequivocal and clearly expressed............ Suraj Narain alleged that he separated a few months later;
there is, however, no writing in support of his allegational nothing to show that at that time he gave
expression to an unambiguous intention on his part to cut himself off from the joint undivided
family."

10. In a later case - Girja Bai v. Sadashiv Dhundiraj I.L.R. 43 Cal. 1031 the Judicial Committee
examined the relevant texts of Hindu Law and referred to the well-marked distinction that exists in
Hindu law between a severance in status so far as the separating member is concerned and a de
facto division into specific shares of the property held until then jointly, and laid down the law as
follows :

"One is a matter of individual decision, the desire on the part of any one member to sever himself
from the joint family and to enjoy his hitherto undefined or unspecified share separately from the
others without being subject to the obligations which arise from the joint status; whilst the other is
the natural resultant from his decision, the division and separation of his share which may be arrived
at either by private agreement among the parties, or on failure of that, by the intervention of the
Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers,
his right to his right to have his shares allocated separately from has a title is unimpeachable; neither
the co-sharers can question it nor can the Court examine his conscience to find out whether his
reasons for separation were wellfounded or sufficient; the Court has simply to give effect to his
right to have his share allocated separately from the others."

11. In Syed Kasam v. Jarawar Singh I.L.R. 50 Cal. 84, Viscount Cave, in delivering the judgment
of the Judicial Committee, observed :

"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 the joint holders
of his intention to hold his share separately, even though no actual division takes place : and the
commencement of a suit for partition has been held to be sufficient to effect a severance in interest
even before decree."

12. These authorities were quoted with approval by this Court in Addagada Raghavamma v.
Addagada Chenchamma, MANU/SC/0250/1963 : [1964]2SCR933 , and it was held that a member
of a joint Hindu family seeking to separate himself from others will have to make known his
intention to other members of his family from whom he seeks to separate. The correct legal position
therefore is that in a case of a joint Hindu family subject to Mitakshara law, severance of status is
effected by an unequivocal declaration on the part of one of the jointholders of his intention to hold
the share separately. It is, however, necessary that the member of the joint Hindu family seeking to
separate himself must make known his intention to other members of the family from whom he
seeks to separate. The process of communication may, however, vary in the circumstances of each
particular case. It is not necessary that there should be a formal despatch to or receipt by other
members of the family of the communication announcing the intention to divide on the part of one
member of the joint family. The proof of such a despatch or receipt of the communication is not
essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the
declaration to be effective should reach the person or persons affected by some process appropriate
to the given situation and circumstances of the particular case. Applying this principle to the facts
found in the present case, we are of opinion that there was a definite and unequivocal declaration
of his intention to separate on the part of Savoy Ranganna and that intention was conveyed to
respondent no. 1 and other members of the joint family and respondent no. 1 had full knowledge of
the intention of Savoy Ranganna. It follows therefore that there was a division of status of Savoy
Ranganna from the joint Hindu family with effect from January 8, 1951 which was the date of the
notice.

13. It was, however, maintained on behalf of the respondents that on January 10, 1951 Savoy
Ranganna had decided to withdraw the two notices, Exs. A & E and he instructed the postal
authorities not to forward the notices to respondent no. 1 and other members of the joint family. It
was contended that there could be no severance of the joint family after Savoy Ranganna had
decided to withdraw the notices. In our opinion, there is no warrant for this argument. As we have
already stated, there was a unilateral declaration of an intention by Savoy Ranganna to divide from
the joint family and there was sufficient communication of this intention to the other coparceners
and therefore in law there was in consequence a disruption or division of the status of the joint
family with effect from January 8, 1951. When once a communication of the intention is made
which has resulted in the severance of the joint family status it was not thereafter open to Savoy
Ranganna to nullify its effect so as to restore the family to its original joint status. If the intention
of Savoy Ranganna had stood alone without giving rise to any legal effect, it could, of course, be
withdrawn by Savoy Ranganna, but having communicated the intention, the divided status of the
Hindu joint family had already come into existence and the legal consequences had taken effect. It
was not, therefore, possible for Savoy Ranganna to get back to the old position by mere revocation
of the intention. It is, of course, possible for the members of the family by a subsequent agreement
to reunite, but the mere withdrawal of the unilateral declaration of the intention to separate which
already had resulted in the division in status cannot amount to an agreement to reunite. It should
also be stated that the question whether there was a subsequent agreement between the members to
reunite is a question of fact to be proved as such. In the present case, there is no allegation in the
written statement nor is there any evidence on the part of the respondents that there was any such
agreement to reunite after January 8, 1951. The view that we have expressed is borne out by the
decision of the Madras High Court in Kurapati Radhakrishna v. Kurapati Satyanarayana
MANU/TN/0241/1948 : (1948)2MLJ331 in which there was a suit for declaration that the sales in
respect of certain family properties did not bind the plaintiff and for partition of his share and
possession thereof and the plaint referred to an earlier suit for partition instituted by the 2nd
defendant in the later suit. It was alleged in that suit that 'the plaintiff being unwilling to remain
with the defendants has decided to become divided and he has filed this suit for separation of his
one-fifth share in the assets remaining after discharging the family debts separated and for recovery
of possession of the same'. All the defendants in that suit were served with the summons and on the
death of the 1st defendant therein after the settlement of issues, the plaintiff in that action made the
following endorsement on the plaint : "As the 1st defendant has died and as the plaintiff had to
manage the family, the plaintiff hereby revokes the intention to divide expressed in the plaint and
agreeing to remain as a joint family member, he withdraws the suit." It was held by the Madras
High Court that a division in status had already been brought about by the plaint in the suit and it
was not open to the plaintiff to revoke or withdraw the unambiguous intention to separate contained
in the plaint so as to restore the joint status and as such the members should be treated as divided
members for the purpose of working out their respective rights.

14. We proceed to consider the next question arising in this appeal whether the plaint filed on
January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb
impression thereon after understanding its contents. The case of the appellants is that Sri M. S.
Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about 9-30 or 10
a.m. on January 13, 1951. Sri Ranganathan wrote out the plaint which was in English and translated
it to Savoy Ranganna who approved the same. P.W. 2, the clerk of Sri Ranganathan has deposed to
this effect. He took the ink-pad and affixed the left thumb impression of Savoy Ranganna on the
plaint and also on the Vakalatnama. There is the attestation of Sri M. S. Ranganathan on the plaint
and on the Vakalatnama. The papers were handed over to P.W. 2 who after purchasing the necessary
court-fee stamps filed the plaint and the Vakalatnama in the court at about 11.30 a.m. or 12 noon
on the same day. The evidence of P.W. 2 is corroborated by P.W. 5 Chinnanna. Counsel on behalf
of the respondents, however, criticised the evidence of P.W. 2 on the ground that the doctor, D.W.
6 had said that the mental condition of the patient was bad and he was not able to understand things
when he examined him on the morning of January 13, 1951. D.W. 6 deposed that he examined
Savoy Ranganna during his usual rounds on January 13, 1951 between 8 and 9 a.m. and found "his
pulse imperceptible and the sounds of the heart feeble". On the question as to whether Savoy
Ranganna was sufficiently conscious to execute the plaint and the Vakalatnama, the trial court has
accepted the evidence of P.W. 2, Keshavaiah in preference to that of D.W. 6. We see no reason for
differing from the estimate of the trial court with regard to the evidence of P.W. 2. The trial court
has pointed out that it is difficult to accept the evidence of D.W. 6 that Savoy Ranganna was not
conscious on the morning of January 13, 1951. In cross-examination D.W. 6 admitted that on the
night of January 12, 1951 Savoy Ranganna was conscious. He further admitted that on January 13,
1951 he prescribed the same medicines to Savoy Ranganna as he had prescribed on January 12,
1951. There is no note of the necessary data in the case sheet, Ex. I to suggest that Savoy Ranganna
was not conscious on January 13, 1951. It is therefore not unreasonable assume that the condition
of Savoy Ranganna was the same on January 13, 1951 as on January 12, 1951 and there was no
perceptible change noticeable in his condition between the two dates. In these circumstances it is
not possible to accept the evidence of D.W. 6 that Savoy Ranganna was unconscious on the morning
of January 13, 1951. It was pointed out on behalf of the respondents that D.W. 7, Miss Arnold has
also given evidence that the condition of Savoy Ranganna became worse day by day and on the last
day his condition was very bad and he could not understand much, nor could he respond to her
calls. The trial court was not impressed with the evidence of this witness. In our opinion, her
evidence suffers from the same infirmity as of D.W. 6, because the case sheet, Ex. I does not
corroborate her evidence. It is also difficult to believe that D.W. 7 could remember the details of
Savoy Ranganna's case after a lapse of three years without the help of any written case sheet. There
is also an important discrepancy in the evidence of D.W. 7. She said that on January 13, 1951 she
called D.W. 6 at 12 noon since the condition of the patient was very bad, but D.W. 6 has said that
he did not visit Savoy Ranganna after 8 or 9 a.m. on that date. Comment was made by Counsel on
behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had
prepared the plaint and Savoy Ranganna had affixed his thumb impression in his presence. In our
opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have
been proper conduct on his part if he had returned the brief of the appellants and given evidence in
the case as to the execution of the plaint and the Vakalatnama. But in spite of this circumstance we
consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is
necessary to notice that the plaint and the Vakalatnama are both counter-signed by Sri Ranganathan
- a responsible Advocate - and it is not likely that he would subscribe his signatures to these
documents if they had been executed by a person who was unable to understand the contents
thereof. As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been
examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in
the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and
that he was conscious and was in full possession of his mental faculties at the time of the execution
of these two documents. It follows therefore that the appellants and respondent no. 4 who are the
daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted
by the District Judge of Mysore.

15. For the reasons expressed, we hold that this appeal should be allowed, the judgment of the
Mysore High Court dated December 5, 1960 in R.A. no. 81 of 1956 should be set aside and that of
the District Judge, Mysore dated October 31, 1955 in O.S. no. 34 of 1950-51 should be restored.
The appeal is accordingly allowed with costs.

16. Appeal allowed.

Kalyani (Dead) by Lrs. v. Narayanan and Ors., AIR 1980 SC 1173

Hon'ble Judges/Coram: A.N. Sen, D.A. Desai and V.D. Tulzapurkar, JJ.

Court: Supreme Court of India

Authorities Referred:
Mayne's Hindu Law and Usage, 11th Edn; Mulla's Hindu Law, 14th Edn.

Prior History:
From the Judgment and Decree dated December 21, 1965 of the Kerala High Court in A.S.
No. 403 of 1961--

Case Note:

Family - partition - Transfer of Property Act, 1882 - whether wife-wise partition can be
effected in absence of customary law under Mitakshara - under Hindu Law there could not
be wife-wise partition of family - wife constituting branch with her children of family is
concept of foreign origin.

JUDGEMENT

D.A. Desai, J.

1. On a certificate granted by the Full Bench of the High Court of Kerala, original plaintiff, a Hindu
widow who was seeking partition of a share to which her deceased husband was entitled, having
lost in both the Courts, has filed this appeal. The High Court granted the certificate under Article
133(1)(c) of the Constitution as in its opinion the following substantial questions of law arise from
the judgment rendered by it:

1. Whether under the Mitakshara Law the parties are governed by customary law, and, in the
absence of any rule of customary law on the point in question, by Mitakshara Law property can be
divided, albeit by a family settlement, between two artificial units of a joint family, one comprising
the sons of a father by his first wife, the first wife and his step mother, and the other comprising his
son by his second wife and the second wife so as to constitute each unit into a coparcenary with
rights of survivorship between its members; and

2. Whether the use of the word 'tavazhi' (in any case a misnomer) in describing the two units in the
will, Ext. P-l left by the father and held to be the basis of the family settlement, is sufficient in the
circumstances, to establish an intention that the members of each unit were to take the property as
coparceners and not as tenants-in-common, the grouping into units being only for convenient
enjoyment?

2. The factual background from which, according to the High Court the aforementioned two
questions emerge for consideration of this Court may be stated.

3. One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni. Defendant 1
Krishnan, defendant 2 Shankaran, one Raman, husband of plaintiff Kallyani, and deceased
Madhavan, husband of defendant 3 and father of defendants 4, 5 and 6, were his sons by first wife
Nani, and one Kesavan was his son by the second wife Ponni. He had six daughters, four by the
first wife and two by the second wife. One Valli was the second wife of his father and she had three
daughters. Karappan and his family are Ezhavas and in the matter of inheritance, succession and on
the question of personal law they were governed essentially by customary law and in the absence
of any specific custom they are governed by the Hindu Mitakshara Law. Karappan executed a
registered deed variously described as a will or a deed of partition or evidencing family
arrangement, Ext. P-l dated January 25, 1910, the salient features of which may be reproduced.
After narrating his near relations including his two wives, male and female children born to each
and his father's second wife and her children, the following recitals are worthy of note:

There are as belonging to me now properties to the value of Rs. 8000/- mentioned in the sub-joined
schedules A and B as my tarwad properties and also my self-acquired properties and properties to
the value of Rs. 200/- of the C schedule which is set apart as common properties.

Since I am seriously ill and in order that there may not arise any dispute in future in respect of
properties belonging to me, I have resolved today the following with regard to the course of
enjoyment of the said properties after my death.

I myself shall have the full powers of disposition over all the properties described in A, B and C
schedules during my life time and after my death, out of the properties to the value of Rs. 8000/-,
Rs. 1300/- worth of properties shall vest in each of my male issues, Rs. 300/- in my first wife, Rs.
1000/- in my second wife since she is sick and Rs. 200/-in my father's second wife.

On the above basis I have set apart to be vested in them after my death Rs. 5200/- worth of properties
to the first tavazhi male issues, Rs. 300/- to my first wife and Rs. 200/- to my father's wife, altogether
properties worth Rs. 5700/- scheduled to A schedule; Rs. 1300/- worth of properties comprising
items 1 to 4 and 6 to 12 of B schedule to the second tavazhi, inclusive of an owelty of Rs. 227 as,
8 ps. 5 decided to be paid by the first tavazhi to the second tavazhi, and item 5 of B schedule worth
Rs. 1000/-to my second wife.

... ... ...

And that 1/5th share of assessment of C schedule property shall be paid annually by Kesavan in the
Amsom and receipt obtained.

It is also resolved that each tavazhi shall meet the travelling expenses of female issues and maintain
properly the women who return on the death of their husbands, that both tavazhis shall equally
maintain the children of my aunt and my sister and that since C schedule properties are partitioned
now, all my male issues shall have equal rights over the property after my death.

4. This is a registered deed. Soon thereafter, in February 1910, Karappan died. Raman, the husband
of the plaintiff, the third son of the first wife, died on February 20, 1936. Plaintiff widow of Raman
sued for partition and separate possession of her undivided 1 /4 share in properties set out in A, B
and C schedules to the plaint. It is necessary to clarify here that there) were A, B and C schedules
annexed to Ext. P-l which, for clarity of understanding, would be referred to as the Will of the
deceased though it would be presently pointed out that it is ineffective as a Will. Schedules A and
B to Ext. P-l specify certain properties. Properties set out in schedule B to Ext. P-l except item No.
5 were awarded to Kesavan, the son by the second wife, and item No. 5 to the second wife.
Properties in schedule A to Ext. P-l subject to adjustment pointed out in Ext. P-l were given to the
first wife and her sons. Properties set out in schedule C to Ext. P-l were kept undivided and were
the subject-matter of another suit filed, by the present plaintiff which has ended in a decree in her
favour and which decree has become final. On the other hand, properties set out in schedule A to
the plaint are the very properties which are shown in schedule A to Ext. P-l. In respect of properties
set out in the schedule B to the plaint it is alleged that they were acquired by the joint labour of
defendants 1 and 2, deceased Raman and Madhavan, and it is equally true of properties set out in
schedule C to the plaint but they were separately set out because they stood in the name oil the wife
of defendant 1. Plaintiff, however, claimed 1/4 of her share in all the properties set out in schedules
A, B and C to the plaint.

5. The suit was principally resisted by defendant 1 as per his written statement dated July 12, 1958.
It was in terms contended that the properties dealt with by Ext. P-l were the joint family properties
of Karappan and his sons and that Karappan was not entitled to and had no authority in law to
execute a Will in respect of the properties. There is an averment which may be extracted. It reads:

Even though Karappan has no right to execute the Will accordingly, what Karappan actually did
was that he partitioned the properties between the two tavazhies in order to avoid future quarrel
between the two wives and their children. As a father he has got the right to partition his properties
according to the custom of the community and according to the Mitakshara law, that Will would be
valid as a deed of partition and accordingly accepting the same later, properties had been taken
possession by the two tavazhies separately. Even though the execution of such a deed was against
procedure, it was in order to honour the wishes of deceased Karappan that the same was acted upon.

In respect of plaint B schedule properties, the contention was that it was acquired by the private
income of the first defendant and that schedule 'C' properties belonged to the wife of defendant 1
and that plaintiff has no share in it. It was also contended that as the four sons by the first wife of
Karappan constituted a tavazhi, it has all the incidents of a coparcenary and, therefore, succession
was governed by survivorship and hence the plaintiff has no share in schedule A properties.

6. The trial Court framed as many as 12 issues. The important findings of the Trial Court are that
Ext. P-l is neither effective as a Will nor as a deed of partition. Without specifically so saying that
Ext. P-l would be effective as a family arrangement, it was held that Ext. P-l had the effect of
constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint
family property and they did not hold as tenants-in-common but as joint tenants and were governed
by survivorship in the matter of succession. The contention that even in such a situation the widow
would be entitled to her share because of a customary right was negatived. In respect of B and C
schedule properties it was held that they belonged exclusively to defendant 1 and his wife and
plaintiff cannot claim a share in them. Consistent with these findings, the plaintiff's suit was
dismissed. A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff.
The High Court substantially agreed with the findings of the trial Court and specifically held that
Ext. P-l furnished important evidence of a family arrangement accepted and acted upon by all the
parties affected thereby. It was held that as family arrangement it is binding and it indicated that the
division was per branches, therefore, the four sons by the first wife of Karappan divided as one
branch and one son alone by the second wife separated as a different branch and as four sons by the
first wife constituted a joint family, succession would be governed by survivorship and the plaintiff
is not entitled to claim any share in schedule A properties. On the question of acquisition of schedule
B and C properties, the finding of the trial Court was confirmed.

7. It may be mentioned that plaintiff had filed another suit for partition of properties set out in C
Schedule to Ext. P-l and that suit was decreed in plaintiff's favour and that decree has become final.
8. Two questions of general importance framed by the High Court are rather involved and confusing
and do not pinpoint the attention on questions of law emerging from the judgment of the High
Court.

9. The first question that needs to be answered is whether Ext. P-l styled, as a Will by the deceased
Karappan would be effective as a Will. If by Ext. P-l deceased Karappan attempted to make a Will
of the ancestral property in his hand in which his sons had acquired interest by birth, obviously he
had no power to make a Will in respect of such property. Ext. P-l does not purport to devise by Will
the individual share of testator Karappan in the joint family property but he attempts to make a will
of all the properties, ancestral and self-acquired and even to dispose of property in which his sons
had interest by birth, by will. He has not claimed any share in the property but claimed a right to
deal with ancestral property as he desired. In Ext. P-l itself he describes properties set out in
schedules A and B annexed to Ext. P-l as his tarvad properties. Expression 'tarvad' in
Marumakkattayam Law is the name given to the joint family consisting of males and females, all
descended in the female line from a common ancestress. A tarvad may consist of two or more
branches known as thavazhies; each tavazhi or branch consisting of one of the female members of
the tarvad and her decendents in the female line (see Mayne's Hindu Law and Usage, 11th Edn, pp.
792-93.) Thus when property is described as tarvad property in a broad sense it is admitted to be
joint family property. This also becomes clear from the recital in Ext. P-l that properties in A and
B schedules were tarvad properties and property in C schedule were claimed by him as his self-
acquired properties and they were to be kept joint and were not sought to be dealt with by Ext. P-l.
Therefore, to the extent Ext. P-l purports to dispose of ancestral properties by will it would be
ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral
properties in his hand. And as he has not attempted to dispose of his undivided share in the ancestral
properties by Ext. P-l it is not necessary here to examine the question whether Mitakshara law as
administered in Tamil Nadu and Kerala enables an undivided coparcener to dispose of his share in
joint family property by will. Therefore, Ext. P-l is not effective as a will and the respondents did
not invite us to affirm their rights under Ext. P-l as if it is a binding will.

10. The next stage in the unfolding of the case is whether Ext. P-l 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 severally. 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 Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted
with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao
Nimbalkar and Ors. MANU/SC/0575/1979 : [1980]1SCR161 . 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 Bai v. Sadashiv 41 I A 151. 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.
11. There was some controversy whether a Hindu father governed by Mitakshara law has a right to
partition ancestral properties without the consent of his sons. After referring to Mitakshara, I, ii, 2,
Mayne in 'Hindu Law & Usage', 11th Edn. p. 547, states that a Hindu father under the Mitakshara
Law can effect a partition between himself and his sons as also between his sons inter se without
their consent and that not only can he partition the property acquired by himself but also the
ancestral property. The relevant text may be extracted:

The father has power to effect a division not only between himself and his sons but also between
the sons inter se. The power extends not only to effecting a division by metes and bounds but also
to a division of status.

Similarly, in Mulla's Hindu Law, 14th Edn., p. 410 (para 323), it is stated that the father of a joint
family has the power to divide the family property at any moment during his life time provided he
gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation
of the father from the sons, but a separation of the sons inter se. The consent of the sons is not
necessary for the exercise of that power. It, therefore, undoubtedly appears that Hindu father joint
with his sons governed by Mitakshara law has the power to partition the joint family property at
any moment during his life time.

12. Mr. Krishnamoorty lyer urged that even though undoubtedly a Hindu father joint with his sons
and governed by Mitakshara law has the power to partition the joint family property, this power
enables him to partition the property by metes and bounds but he has no power merely to disrupt
the joint family status unaccompanied by division of property by metes and bounds. The limited
question that needs answer in this case is whether a Hindu father joint with his sons governed by
Mitakshara law has the power to disrupt the joint family status being a first step in the stage of
dividing the property by metes and bounds. The wider question whether a coparcener of a
coparcenary governed by Mitakshara law brings about a disruption of joint family status by definite
and unequivocal indication of his intention to separate himself from the family would constitute
disruption of status qua the non-separating members need not be examined. A Hindu father joint
with his sons and governed by Mitakshara law in contradistinction to other manager of a Hindu
undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his
sons with himself as well as amongst his sons inter se without their consent and this larger power
to divide the property by metes and bounds and to allocate the shares to each of his sons and to
himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family
status which must either precede or be simultaneously taken with partition of property by metes and
bounds. This view taken in Kandaswami v. Doraiswami Ayyar I.L.R. [1880] Mad. 317 does not
appear to have been departed from. Further, the text from Mayne's book extracted in the preceding
paragraph shows that the weight of authority is against the proposition canvassed for by Mr. Iyer.
It does, therefore, appear that a Hindu father governed by Mitakshara law has power to partition the
joint family property belonging to the joint family consisting of himself and his sons and that this
power comprehends the power to disrupt joint family status.

13. The question is, has Karappan as father exercised his power to partition the joint family property
by Ext. P-l ? Even though the father has a right to make a partition of the joint family property in
his hand, he has no right to make a partition by will of joint family property amongst various
members of the family except, of course, if it could be made with their consent (see Brijraj Singh
v. Sheodan Singh 40 I A 161. Whether it is effective as family arrangement will be presently
examined. Therefore, if by Ext. P-l Karappan attempted to make a partition of the property by his
will, Ext. P-l would be ineffective as a partition. By Ext. P-l Karappan does not divide his property
by metes and bounds vesting the share of each in presenti in each of his sons.
14. One thing that is not in dispute is that Karappan did not intend Ext. P-l to be effective from the
date on which it was executed. In his own words he states that he was seriously ill and as he would
like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his
property shall be enjoyed after his death in the manner stated in Ext. P-l. He reserved to himself the
full powers of disposition over all the properties more particularly described in the various
schedules annexed to Ext. P-l during his life time and whatever directions were given in Ext. P-l
were to be effective only after his death. At two places in terms he stated that the dispositions made
by Ext. P-l were to be effective after his death. It is, therefore, inescapable that Ext. P-l was not to
be effective as a partition in broader sense, namely, dividing property by metes and bounds from
the date on which it was executed. It was to be effective from a future date and that future uncertain
event was the death of Karappan and that during the time he would remain alive he would deal with
the properties at his sweet will. Further, there was no effective partition by metes and bounds by
Ext. P-l though the shares of sons were specified as also the provision for female members was
made. If intention of the testator is to be gathered from the language of Ext. P-l Karappan intended
it to be a will to be effective after his death. He never intended it to be a partition in presenti.
Therefore, Ext.P-1 cannot be effective as a deed of partition in the broader sense, i.e. partition by
metes and bounds.

15. What then is the effective of Ext. P-l on the joint family of which Karappan was father-cum-
manager ? The respondents contend that it is a family arrangement providing for carving out
branchwise (shakha per wife) separation of interest in the joint family properties and as it was
unreservedly accepted by all affected thereby after the death of Karappan, it is binding on all.
Appellant contends that Ext.P-1 had the effect of disrupting the joint family status and from that
date members of the joint family entitled to their shares in the joint family property, held as tenants-
in-common and not as joint tenant with the result that inheritance by survivorship, a special feature
of a Hindu coparcenary, would be displaced by Hindu law of succession, the property going to the
heirs recognised by law.

16. Defendant 1 who contested the suit in terms stated that Ext.P-1 was not effective as a will. He
than stated that Ext.P-1 purports to partition the property between the two tavazhies represented by
Karappan's two wives and their respective male offspring. It may, however, be stated that nowhere
in the written statement he has put forth the contention that Ext.P-1 evidences a family arrangement
assented to by all affected thereby. That case appears to have been made out by the High Court for
the first time and since the plaintiff has been non-suited on the finding that Ext.P-1 was a family
arrangement which provided for a coparcenary of four sons of the first wife of Karappan, retaining
inheritance by survivorship amongst the four members it is necessary to examine the contention
whether Ext.P-1 provides for a family arrangement assented to by all concerned. An ineffective will
sometimes though not always, if otherwise consented by all adult members, may be effective as a
family arrangement but as the father of a joint Hindu family has no power to impose a family
arrangement under the guise of exercising the power of partition, the power which undoubtedly he
has but which he has failed to effectively exercise, cannot in the absence of consent of all male
members bind them as a family arrangement. What constitutes family arrangement has been fully
examined by this Court in M.N. Aryamurthy and Anr. v. M.D. Subbaraya Setty (dead) through l.r.
and Ors. MANU/SC/0479/1971 : AIR1972SC1279 . Broadly stated, it is that there must be an
agreement amongst the various members of the family intended to be generally and reasonably for
the benefit of the family and secondly the agreement should be with the object either of
compromising doubtful or disputed rights or for preserving the family property or the place and
(security of the family. Both these ingredients appear to be absent in this case. In Brijraj Singh's
case (supra) a father purported to make a will in which he recorded a partition of the joint family
property amongst his three sons. He did not take a share for himself and simultaneously gave double
share to his eldest son. There were usual recitals of partition and allotment of shares and it was
further stated that in anticipation of execution of the deed various sharers were put in possession of
property allotted to each of them. This was done two months prior to the execution of the so-called
will. The document was held ineffective as a will but on evidence it was found that all concerned
had acquiesced in the arrangement evidenced by the deed and the deed was intended to operate
from the date of its execution and, therefore, it evidenced a family arrangement contemporaneously
made and acted upon by all the parties and hence binding. Similarly in Lakshmi Chand v. Anandi
53 I.A. 123 two brothers having no male issue and constituting a joint Hindu family governed by
Mitakshara, signed a document, described therein as an agreement by way of will. The document
provided in effect that if either party died without male issue, his widow should take a life interest
in a moiety of the whole estate and that if both the parties died without male issue, the daughters of
each, or their male issue, should divide the father's share. The document was registered. A few days
after its execution one brother died, and his widow was entered as owner of a moiety of the estate.
Subsequently the other brother sued for a declaration that the document was null and void. Privy
Council held that the document could not operate as will but that as a co-sharer in a Mitakshara
joint family with the consent of all his co-sharers he could deal with the share to which he would
be entitled on a partition and was binding as family arrangement. To be effective as a family
arrangement the deed must be one intended to operate from the date of its execution, a feature
wanting in Ext.P-1, and it must be assented to and acquiesced in and acted upon by all affected
thereby. At the time of execution of Ext.P-1 there is no evidence as to who were the adult members
of the family other than Karappan who consented to the alleged family arrangement. One thing,
however, may be pointed out that defendant 1 gave his age as 87 years on December 29, 1959,
when his evidence commenced. Presumably he must have been born in 1872. But there is no
evidence about the age of other children of Karappan. The only evidence as to the consent of the
male members is that after the death of Karappan all male members acted according to the wishes
of Karappan as disclosed and ordained in Ext.P-1. Assuming it to be so, Ext.P-1 was to operate
after the death of Karappan and not from the date of execution. The High Court after referring to
Brijraj Singh's case (supra) overlooked the fact that in accepting the deed before it, the Judicial
Committee was impressed by the fact that it was intended to speak from the date on which it was
written and not future date, viz., death of the writer. Ext.P-1 in terms reserves to Karappan his right
to deal with the property at his sweet will and was to be operative after his death. The High Court
completely overlooked this material difference. Assuming that Ext.P-1 was to be treated as family
arrangement after the death of Karappan, the absence of any evidence of agreement amongst family
members entitled to a share, to the terms of Ext.P-1 when it was executed, the absence of any dispute
at or about the time Ext.P-1 was executed amongst the members of the family sought to be settled
by Ext.P-1; and the absence of evidence that arrangement was necessary for the security of the
family or property would wholly negative the contention that Ext. P-l would furnish evidence of
family arrangement. We have grave doubt whether a Hindu father can impose family arrangement
sans direct evidence of consent of each of his sons, to be effective after his death. Therefore, Ext.P-
1 does not furnish evidence of family arrangement.

17. Now, if Ext.P-1 cannot be effective as a deed of partition inasmuch as it did not result in division
of property by metes and bounds, its effect on continued joint family status may be examined. If it
disrupted joint family status by its very execution, there was thereafter no question of directing any
family arrangement to be effective from a future date as per its terms and even though it may spell
out a family arrangement what effect the disruption of joint family status would have on the mode
of succession has to be ascertained.

18. One thing is crystal clear that Ext. P-l 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) MANU/SC/0250/1963 : [1964]2SCR933 . 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.

19. Has not Ext.P-1 the effect of bringing about a disruption of joint family headed by Karappan
and consisting of himself and his sons? The fact situation is that in Ext. P-l Karappan specified the
share of each of his sons, the property allotted on share being valued at Rs. 1300/- each of the four
by the first wife and one by the second wife, and vesting the share so specified in each of his sons.
He also specified value of the property allotted to his first wife, to his second wife and to the second
wife of his father. In the process he found that something more was given to the sons of his first
wife and in order to restore the equilibrium of treating his sons equally, he directed that owelty to
the tune of Rs. 227/- and odd be paid by the sons of the first wife to the sons of his second wife.
This was with a view to correcting the inequality in division of shares. He also states that there will
be two branches. He refers to them as tavazhies and himself and his family as tarvad. Tarvad is akin
to joint family and tavazhi is a branch of the family. The High Court, however, treated the use of
the words 'tarvad' and 'tavazhi' and 'Karnavaran' to be inappropriate and hence inconsequential.
Similarly, the High Court found specification of share of each of the male child as not indicative of
a partition in the sense of disruption of joint family status.

20. Partition can be partial qua person and property but a partition which follows disruption of a
joint family status will be amongst those who are entitled to a share on partition. On death of
Karappan, Kesavan, the son of the second wife obtained a physical partition of the property, took
his own share and left the family. There was first a disruption of the joint family by specifying the
shares in Ext.P-1. Till disruption of joint family status takes place no coparcener can claim what is
his exact share in coparcenary property. It is liable to increase and decrease depending upon the
addition to the number or departure of a male member and inheritance by survivorship. But once a
disruption of joint family status takes place, coparceners cease to hold the property as joint tenants
but they hold as tenants-in-common. Looking to the terms of Ext.P-1 there was a disruption of joint
family status, the shares were specified and vested, liabilities and obligations towards the family
members were defined and imbalance out of unequal division was corrected. This certainly has
effect of bringing about disruption of joint family status and even if there was no partition by metes
and bounds and the coparceners continued to remain under the same roof or enjoyed the property
without division by metes and bounds, they did not hold as joint tenants unless re-union is pleaded
and proved.

21. It was, however, contended and the contention has found favour with the High Court that when
Kesavan, the second wife's son of Karappan took the properties allotted to his share and left the
family, as per terms of Ext. P-l four sons of Nani were constituted joint tenants or members of a
coparcenary. In reaching this conclusion reliance was placed by the High Court on Palani Ammal
v. Muthuvenkatachala Moniagar 52 IA 83. In that case, after referring to Appovier's case, (supra)
it was observed as under:
But the mere fact that the shares of the coparceners have been ascertained does not by itself
necessarily lead to an inference that the family had separated. There may be reasons other than a
contemplated immediate separation for ascertaining what the shares of the coparceners on a
separation would be. It is also now beyond doubt that a member of such a joint family can separate
himself from other members of the joint family and is on separation entitled to have his share in the
property ascertained and partitioned off for him and that the remaining coparceners without any
special agreement amongst themselves may continue to be coparceners and to enjoy as members,
of a joint family, what remained after such a partition of the family property. That the remaining
members continued to be joint may, if disputed, be inferred from the way in which their family
business was carried on after their previous coparcener had separated from them.

22. In Bhagwan Dayal v. Smt. Reoti Devi MANU/SC/0374/1961 : [1962]3SCR440 , this Court
examined the effect of a separation of one member of a joint family on the joint family status and
on the remaining members in the light of the Privy Council decision in Palani Animal's case, (supra)
The relevant observation is as under:

The general principle is that every Hindu family is presumed to be joint unless the contrary is
proved: but this presumption can be rebutted by direct evidence or by course of conduct. It is also
settled that there is no presumption that when one member separates from others that the latter
remained united; whether the latter remain united or hot must be decided on the facts of each case.

23. In fact, Judicial Committee in Balabux v. Rukhmabai ILR 30 IA 130 unequivocally held that
there is no presumption when one coparcener separates from others that the latter remained united.
An agreement amongst them must be proved either to remain united or to re-unite. In Sengoda v.
Muthu I.L.R. 47 Mad 567 the High Court interpreted Palani Ammal's case to lay down that if a
partition takes place with respect to one coparcener, the decree or the deed bringing about partition
would provide a pointer as to the effect of the decree or the deed on the remaining coparceners. In
Bhagwati Prasad Shah and Ors. Dulhin Rameshwari Juer and Anr. MANU/SC/0060/1951 :
[1951]2SCR603 this Court pointed out that the general principle undoubtedly is that a Hindu family
is presumed to be joint unless the contrary is proved but where it is admitted that one of the
coparceners did separate himself from the other members of the joint family and had his share in
the joint property partitioned off for him, there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side too that because one member of the
family separated himself there has been separation with regard to all. It would be a question of fact
to be determined in each case upon the evidence relating to the intention of the parties whether there
was a separation amongst the other coparceners or they remained united. Except that four sons by
Nani remained under one roof and were joint in food and laboured together there is no evidence
that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be
created by agreement. And if Karappan specified even the share of each of his sons by Nani in Ext.
P-l, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four
sons constituted a coparcenary. Ext. P.I could not support such a conclusion and High Court was in
error in spelling out such conclusion from Ext. P-l overlooking its specific direction of a specified
share of each of his sons and liability to pay owelty.

24. A further submission that there was partition branchwise is un-known to Mitakshara law and is
wholly untenable. In Mayne's Hindu Law, 11th Edn., p. 347, law as thus stated:

"So long as a family remains an undivided family, two or more members of it, whether they be
members of different branches or of one and the same branch of the family, can have no legal
existence as a separate independent unit; but all the members of a branch, or of a sub-branch, can
form a distinct and separate corporate unit within the larger corporate family and hold property as
such. Such property will be joint family property of the members of the branch inter se, but will be
separate property of that branch in relation to the larger family.

The principle of joint tenancy is unknown to Hindu Jaw except in the case of the joint property of
an undivided Hindu family governed by the Mitakshara law.

25. In Bhagwan Dayal's case (supra) legal position after referring to earlier decisions has been
culled out as under:

Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the
case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the
family as a subordinate cooperate body. The said family unit, whether the larger one or the
subordinate one, can acquire, hold and dispose of family property subject to the limitations laid
down by law.... Hindu law does not recognise some of the members of a joint family belonging to
different branches, or even to a single branch, as a corporate unit.

26. Now, if five sons of Karappan each constituted a branch, obviously after one son as a branch
separated unless a reunion is pleaded, other four cannot constitute a corporate body like a
coparcenary by agreement or even by subsequent conduct of remaining together enjoying the
property together. In Balkishen Das and Ors. v. Ram Narain Sahu and Ors. 30 I. A.139 an ikrarnama
was produced which showed that defined shares in the whole estate had been allotted to the several
coparceners. There was a passage which gave liberty to any of the parties either to live together as
a member of the joint family or to separate his own business. Mahabir was given four annas share
and others defined shares in the remainder. Contention raised was that Mahabir alone separated and
others remained joint. Subsequent conduct was relied upon to substantiate the contention that they
remained together. Negativing this contention it was held that the ikrarnama effected a separation
of estate even if the parties elected either to have a partition of their shares by metes and bounds,
or to continue to live together and enjoy their property in common as before. Whether they did one
or the other would affect the mode of enjoyment, but not the tenure of the property or their interest
in it. The ikrarnama effected a separation in estate, its legal construction and effect could not be
controlled or altered by the subsequent conduct. Once the shares were determined and allotted, it
was held consistently with Appovier's case (supra) that this converted them from joint holders into
tenants-in-common.

27. In Boddu Venkatakrishna Rao and Ors. v. Boddu Satyavathi and Ors. MANU/SC/0199/1967 :
[1968]2SCR395 , the following passage in Mulla's Transfer of Property Act (Fifth Edn.), was
approved:

The principle of joint tenancy appears to be unknown to Hindu law, except in the case of
coparcenary between the members of an undivided family.

28. Once disruption of joint family status takes place as Lord Westbury puts it in Appovier's case,
(supra) it covers both a division of right and division of property. If a document clearly shows the
division of rights and status its legal construction and effect cannot be altered by evidence of
subsequent conduct of parties.

29. Now, in this case Ext. P-l itself specifies the share of each member separately. There is no
concept known to Hindu law that there could be a branch of a family wife-wise. To illustrate, if a
Hindu father has two wives and he has three male children by the first wife and two by the second,
each wife constituting a branch with her children of the family is a concept foreign to Hindu law.
Therefore, tavazhi wife-wise stated in Ext. P-l has to be ignored and the contention that there was
a partition amongst wife-wise branches as represented by each wife is equally untenable. Ext. P-l
did bring about a specification of shares and once such shares were defined by the father who had
the power to define and vesting the same there was a disruption of joint family. There was thus a
division of rights and division of property by allotment of shares. The mode of enjoyment
immediately changed and members of such family ceased to be coparceners holding as joint tenants
but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the
absence of any evidence of re-union as understood in law is of no consequence. In any event when
Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted
to him and left the family there being no evidence whether others agreed to remain united except
the socalled evidence of subsequent conduct, which is irrelevant or of no consequence, disruption
of status was complete. Therefore, the four sons of the first wife held the property as tenants in
common.

30. There is evidence in the form of some documents showing that defendant 1 was described as
Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property
was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is
not conclusive of any agreement to reunite, it is not necessary to examine the evidence.

31. In view of our conclusion that since the execution of Ext. P-l on January 25, 1910, or after the
death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of
the property left the family there was a disruption of the joint family and the sons of Karappan by
his first wife held the property, which remained for them after Kesavan obtained his share, not as
joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her
deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the
plaintiff would be entitled and therefore, there would be a preliminary decree in her favour to that
effect. Plaintiff's claim to a share in properties set out in schedules B and C annexed to the plaint
has been concurrently negatived by both the courts on the finding that they are the properties of
defendant 1 and his wife and are not accretions to the property which devolved from Karappan.
This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need
not be disturbed. Therefore, plaintiff's suit with regard to a share in B and C schedule properties has
been rightly dismissed.

32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kallyani
is dead and there is some dispute between her two daughters Yashoda and Janaki about succession
to the estate of Kallyani. Both had applied to the exclusion of each other for being substituted as
legal representatives of the deceased. For purposes of this appeal both were substituted for the
deceased appellant. It is not necessary to decide this question in this appeal because whoever of the
two establishes her right to inherit the property of Kallyani would be entitled to the same but the
dispute would be between Yashoda and Janaki and the other defendants have no right to be heard
in that matter.

33. Accordingly this appeal succeeds and it is partly allowed. The judgment and decree of the trial
Court and the High Court dismissing the plaintiff's suit in regard to A schedule property are set
aside. Plaintiff's suit is decreed and it is declared that she has 1/4 share in properties set out in
schedule A annexed to the plaint. A preliminary decree to that effect shall be drawn. Defendant 1
shall pay the costs of the plaintiff throughout.
 A. Venkappa Bhatta and Ors. v. Gangamma and Ors., AIR 1988 Ker 133

Hon'ble Judges/Coram: U.L. Bhat and Chettur Sankaran Nair, JJ.

Court: High Court of Kerala

Cases Referred:
Bappu Ayyar v. Renganayaki, (1955) 2 Mad LJ 302, AIR 1955 Mad 394; Tate v.
Williamsom, (1866) 2 Ch. App. 55; Allcard v. Skinner, (1887) 36 Ch. D. 145; Ladli Parshad
v. Karnal Distillery Co., AIR 1963 SC 1279; Krishna Beharilal v. Gulabchand, AIR 1971 SC
1041; Omanhenie Kwamin Bansyin v. Bendentu, AIR 1937 PC 274; Palanivelu v.
Neelavathi, AIR 1937 PC 50

Disposition:
Appeal dismissed

Case Note:

Property - registration - Section 115 of Indian Evidence Act, 1872 - appeal against Order
holding that registration of deed took place under fraud and misrepresentation - onus on
appellant to prove that respondent executed deed after understanding contents of deed -
bona fide and good faith on part of party seeking to enforce documents must be proved - no
evidence adduced by appellants to show his bona fide - appeal dismissed.

JUDGEMENT

Chettur Sankaran Nair, J.

1. This appeal by defendants 1, and 6 to 15 is directed against the judgment of the court below in a
suit for partition. The parties are Havik Bramhins governed by the Hindu Mithakshara Law of
inheritance. Their common ancestor Venkateshwara Bhatta had four sons, Shankaranarayana
Bhatta alias Sankanna, husband of the plaintiff, D1, D2 and the husband of D15. The joint family
divided itself into branches on 16-9-49 under Ext. B20. By this the plaintiffs husband and
defendants separated from other branches and plaint A scheduled properties were allotted to this
branch. B scheduled properties are said to be later acquisitions. Sankaranarayana Bhatta died on 1-
7-1947. He had no sons, but only two daughters through the plaintiff. By reason of the Hindu
Women's Right to Property Act, as adopted by Madras Act 26/1947, the plaintiff claimed a widow's
estate, which later ripened into an absolute estate, under Section 14 of the Hindu Succession Act.
The first defendant is the kartha of the joint family. Defendants 3 to 5 are the sons of 2nd defendant.
D15 is the widow of another brother and D6 to D14 are his children. The plaintiff claimed partition
of 1/4th share of the estate, and share of profits. Defendants 1 to 6 created a sham partition deed
Ext. B1 dt. 26-12-1970, she says. Her signature was obtained on it, persuading her to think that it
was document intended to avoid tax. Ext. B1 was registered at Puthur in Karnataka State and
amounts to a fraud on registration and therefore cannot be treated as evidence of partition. The
allotment of shares under Ext. B1 is also unequal and unjust. She also avers that B schedule property
does not belong to the family.

2. The first defendant repudiated the claims of the plaintiff. According to him, Shankaranarayana
Bhatta died long before Madras Act 26 of 1947 came into force, and therefore the plaintiff had no
heritable right. He does not say when. Ext. B1 is a genuine document, the plaintiff was willing party
to it, and B schedule also are family properties, according to him. He disputed all the averments of
the plaintiff.

3. Defendants 2 to 5 would also contend that Shankaranarayana Bhatta died long before Madras
Act 26/1947 came into force. They too, like the first defendant, would not say when. According to
them, two suits are pending against the family, and they dispute joint possession of plaintiff after
Shankaranarayana Bhatta's demise. The suit, they say, was inspired by the plaintiffs son-in-law.
Defendants 6 to 15 would aver that there was only a maintenance arrangement in favour of the
plaintiff, and after her death the properties set apart for her maintenance, were to devolve on her
daughters. For the rest, they endorsed the contentions of other defendants.

4. The court below on the evidence of P. Ws. 1 and 3 found that the plaintiffs husband died on 1-7-
1947, accepting Ext. A1 extract from the Register of Death as conclusive proof. The court found
that she was entitled to l/4th share of the family properties, and the profits claimed. Ext. B1 was
found to be invalid and not intended to be acted upon; and B schedule property was found to be that
of the 6th defendant (this is allotted to the share of the 6th defendant).

5. Relying on the evidence of P. Ws. 1 and 3, the court found that the plaintiff, an old and illiterate
lady, entirely dependent on the first defendant was persuaded to subscribe her signature to Ext. B1,
in the belief that it was to avoid tax. Ext. B1 was thus vitiated by undue influence and untrue
representations. The evidence of the 6th defendant (as D.W. 1) that even after Ext. B1, the properties
were managed as joint family properties, that 'viniyogas' were conducted by him, that properties
allotted to the plaintiff were less than her entitlement of l/4th share (para 16), that no separate
provision was made for 'viniyoga', that it is to be performed by one sharer, in the house of another
sharer, and other circumstances were noticed in support of the view that Ext. B1 was sham and
intended as a cloak to disguise other intentions. The suit was decreed as prayed for, in consequence.

6. This is challenged in appeal by defendants 1, and 6 to 15.

7. The first question for determination is, when Shan karanaray and Bhatta died. Plaintiffs right of
inheritance, would turn on the answer to this. When examined in 1977, she would say that her
husband died 30 years ago, on 'Navami' in 'Vrishabha' year. That is 1947 A.D. She is a simple and
unsophisticated lady and her evidence has not been shaken by searching cross-examination. She
has impressed us as a witness of truth and we have no hesitation to accept her evidence. The
evidence of P.W. 1 regarding the date of death is not rebutted. The evidence of D.W.1 (the sixth
defendant) who was only 10 years old in 1947, to the contra is not acceptable. The 1st defendant
was not examined either. The evidence of P.W. 1 is corroborated by Ext A1. The date therein is 1-
7-1947, We are inclined to accept. Ext. A1 also, not only because it is a public document but also
because, the details therein and other circumstances fall in place, with plaintiff's case.

8. The appellants hotly contest her version -- contest for the sake of contest for they have no specific
case in rebuttal, except elusive statements. If the date of death is long prior to 1947, the plaintiff
would have no heritable right as the Hindu Women's Right to Property Act, as adopted by Madras
Act 26/1947 would not be available. This seems to be the only reason, for the appellants to dispute
the date. We reject the appellants' contention that plaintiffs husband died prior to the Madras Act
26/1947.

9. By operation of the Hindu Women's Right to Property Act, as adopted by the Madras Act,
extending the Act to agricultural properties, plaintiff had a right in the properties of her late husband.
It is argued by the defendants that even if the date of death is 1-7-47, the plaintiff would have no
rights because the Act came into force only on 18-12-47. This argument must fail. The Act had
retrospective effect from 26-11-46 as is clear from Section 3 thereof. In Bappu Ayyar v.
Rehganayaki, (1955) 2 Mad LJ 302 : (MANU/TN/0166/1955 : AIR 1955 Mad 394), we notice that
the Madras High Court has taken a similar view. This right was perfected into an absolute estate.
by operation of Section 14 of the Hindu Succession Act.

10. Appellants would then contend that in the face of Ext. B1 partition deed dated 26-12-1970.
plaintiff is estopped from asking for partition over again, and in variance of Ext. B1. Incidentally,
the appellants also urged that Ext. B1 is a maintenance arrangement, and no more. This argument
is rested on the premise that the plaintiff has no heritable right and only a right of maintenance. In
view of our answer to the question of her right, this contention must fail.

11. We next consider whether Ext. B1 operates to estop the plaintiff from claiming partition. We
think not. According to plaintiff, Ext. B1 was the outcome of undue influence and mis-
representation. Her evidence is that she subscribed her signature to Ext. B1 on the persuasion of
first defendant, and on the assurance that it was a document intended to gain tax reliefs. Plaintiff,
an old lady in late sixties and illiterate, not well versed in the ways of the world was leading the
sheltered life of a widow in an orthodox family. She was very much under the influence of the first
defendant, kartha of the family and brother of her late husband. She had no sons or support to look
to. In this background, her version that she believed others and executed Ext. B1 is not only
plausible, but appealing. We shall also notice the other relevant circumstances. D.W. 1 has spoken
to her case in detail. No doubt, she was unable to say who instructed the counsel to prepare the
plaint. But, she knew what she was signing. D.W. 1 in an attempt to make out that Ext. B1 was a
genuine document would say that the plaintiff read the draft of Ext. B1. It is a lengthy document
containing complicated provisions. P.W. 1 is an illiterate person and we cannot accept the evidence
of D.W. 1 that she read the draft of Ext. B1 or understood what it was. D.W. 2 supports the evidence
of D.W. 1. Admittedly, he was not even on visiting terms with P.W. 1, though claims to be a
mediator in the partition. We do not consider his evidence reliable. D. W. 3 who is a son-in-law of
the plaintiff and the husband of the 12th respondent also supports the evidence of D.W. 1. He was
not present when Ext. B1 was written and his evidence that all the executants read Ext. B1 before
signing (including P.W. 1 who is illiterate) cannot be believed. The terms of Ext. B1 also is
suggestive of the fact that it is only a sham document. It does not say which of the parties are entitled
to which of the properties. The buildings have not been valued. The other recitals also are equally
suspicious. It is recited that the plaintiff is incapable of cultivating the property and that she would
get maintenance in lieu of her share. When she had two sons-in-law, grand children and daughters,
we cannot accept these recitals for their face value. The clause that the 6th defendant would be in
possession and that he would meet the expenses of the plaintiff as desired by her, is equally
intriguing, more so when the plaintiff had informed him by registered notice of her intention to
reside separately and had asked him to pay the amounts due to her, by the 31st of Mar. every year.
Equally suspicious are the recitals that after a year of her death, the property must be given to the
6th defendant and the 12th and 13th respondents. The income of A schedule property is 8,55,150
arecanuts (about 25 candies), 280 murahs of paddy and 5490 coconuts. The plaintiffs share would
be a fourth of this. It is difficult to think that a provision to pay her two candies of dried arecanuts
is a fair settlement. It is nothing but unjust and inequitable. In these circumstances, it cannot be
believed that she would have agreed to Ext. B1. Ext. B1 does not have the look of a partition deed,
that makes fair and equitable allotment. The division is uneven. Plaintiff gets only 56 cents, and
that too is in the possession of tenants. There are other suspicious circumstances, to which we have
already made reference. Ext. B1 has thus a stage managed appearance. First defendant and the 6th
defendant and their allies played a leading role to engineer Ext. B1 into existence. The venue for
execution of Ext. B1 was chosen by them, at Puthur away from the place of their residence, and the
residence of plaintiff. A convincing and palatable version for the execution of a document was
given, namely to avoid tax. Chances are that she was carried away by what the first defendant told
her, and little did she realise what was happening. Having regard to these circumstances, we are of
opinion that Ext. B1 was not executed by plaintiff of her free will and that by untrue representations,
which she was made to believe to be true, she was persuaded to join Ext. B1. This, to our mind
appears to be a clear instance of undue influence. Lord Chelmsford stated the principle of undue
influence thus in Tate v. Williamsom(1866) 2 Ch. App. 55 at 61).

"Wherever two persons stand in such a relation that while it continues, confidence is necessarily
reposed by one, and the influence which necessarily grows out of that confidence is possessed by
the other and this confidence is abused, or the influence is exerted to obtain an advantage at the
expense of the confiding party, the person so availing himself of his position, will not be permitted
to retain the advantage, although the transaction could not have been impeached if no such
confidential relation had existed"

Again in Allcard v. Skinner (1887) 36 Ch. D. 145 Lindley, LJ. stated the Law as follows :

"The undue influence which courts of equity endeavour to defeat is the undue influence of one
person over another; not the influence of enthusiasm on the enthusiast who is carried away by it,
unless indeed such enthusiasm is itself the result of external undue influence."

In Ladli Parshad v. Kamal Distillery Co. MANU/SC/0061/1962 : AIR 1963 SC 1279, the Supreme
Court, noticed the principles of Common Law with approval :

"The Indian Enactment is founded substantially on the rules of English common Law.....a
transaction may be vitiated on account of undue influence where the relations between the parties
are such that one of them is in a position to dominate the will of the other and he uses his position
to obtain an unfair advantage over the other."

12. Relying on Krishna Beharilal v. Gulabchand MANU/SC/0478/1971 : AIR 1971 SC 1041

counsel for appellants urged that if a reversioner enters into a compromise with regard to his claims
and the claims of his opponent, he cannot be allowed to go back on it. The court observed :

"It is well settled that a Hindu widow cannot enlarge her estate by entering into a compromise with
third parties to the prejudice of the ultimate reversioners."

We do not think that plaintiff has entered into any such compromise.

13. The decision reported Omanhenie Kwamin Bansyin v. Bendentu MANU/PR/0078/1937 : AIR
1937 PC 274 is apposite in the circumstances of the case, Lord Russell of Killowen stated the law
in these terms:

".....the onus lay upon Upper Was saw to establish that the document had in fact been properly
explained and interpreted so as to make the Omanhene of Acwin understand its real import."

Plaintiff as we have already stated is an illiterate person and she had no advice or means to know
the contents of Ext. B1. There is no force in the contention that she was party to Ext. B1, and
therefore that she is estopped from contending against it.
14. It is for the appellants to show that the plaintiff was made to understand the contents of Ext B1
and that she executed the deed, knowingly. The law is that it is up to the party relying on a document,
executed by an illiterate person to prove, that it was executed in the full knowledge of what it was,
before such party can seek to enforce that. The bona fides and good faith on the part of the party
seeking to enforce the document, must be proved. In Palanivelu v. Neelavathi,
MANU/PR/0026/1937 : AIR 1937 PC 50, the Board observed :

"The burden of proving the good faith of the transaction is on the party who was in a position of
active confidence."

As in the reported case, proof of good faith was not forthcoming from the defendants, particularly
the 1st defendant, who was in a position to dominate the will of the plaintiff. We do not think that
Ext. B1 would operate to estop plaintiff. The whole exercise, we think was an endeavour to deprive
the plaintiff of her legitimate share.

15. The next question for consideration is whether there was fraud on Registration Laws. Whether
B schedule property is divisible, will be material in considering this aspect. 2.88 acres of dry land
belonging to one Narayana Naik was sold to the 6th defendant for Rs. 2,500/- on 4-11-70. On the
same day he sold 3 acres for Rs. 20,000/- to P.W. 2. This is included in the share of 6th defendant
in Ext. B1. On 3-12-71 this is sold by 6th defendant to P.W. 2 6th defendant admits that he
purchased the properties after partition talks commenced and that he borrowed Rs. 2500/- in his
personal capacity from one H.M. Bhat. P.W. 2 would say that he is in possession of the property,
under the sale deed of 3-12-71 and that Narayana Naik was in possession prior to that. He would
also say that the property for Rs. 20,000/- was purchased in his name and the other property for Rs.
2500/- in the name of 6th defendant. The purchase was thus really for P.W. 2 and not for 6th
defendant or family. It is also clear that neither the 6th defendant nor the family was in possession.
D. W. 1 says, he has no tax receipts with him. Thus, the acquisition in the name of 6th defendant
was only a ruse. We are of opinion that Ext. B1 evidences, fraud on registration. A heavy stamp
duty would be attracted in the case of property valued over Rs. 4 lakhs in Kerala. By bringing in B
schedule properties situated in Karnataka into Ext. B1, registration was effected in Puthur in
Karnataka, paying a stamp duty of only Rs. 90/-. This property was acquired by 6th defendant (it
was allotted to 6th defendant). The acquisition was while the so called partition was round the
corner even according to the defendants. It is very unlikely that the family would acquire an item
of property at such a time. All these features show that it was not a genuine or bona fide transaction.
In the light of Section 17(1)(b) and Section 47 of the Registration Act, the registration is not valid.
The position would be as if the document is not registered It is unenforceable (see
MANU/PR/0031/1934 : AIR 1934 PC 157, MANU/PR/0001/1936and MANU/TN/0258/1936). No
evidentiary value can therefore be attached to Ext. B1.

16. We are satisfied that Ext. B1 was brought about by undue influence and misrepresentation, that
it evidences fraud on registration and that it was not intended to be acted upon. The appellants have
not succeeded, in showing that the findings of the court below call interference.

17. In the result, we confirm the judgment and decree of the court below and dismiss the appeal.
Parties will bear their costs.
Ratnam Chettiar and Ors. v. S.M. Kuppuswami Chettiar and Ors., AIR 1976 SC 1

Hon'ble Judges/Coram: S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ.

Court: Supreme Court of India

Prior History:
From the Judgment and order dated the 22nd November, 1963 of the madras High Court in
Appeal Nos. 329 and 468 of 1959

Case Note:

Family - reopening of partition - Hindu Law - appeal filed by minor members of family for
cancellation of partition - trial court opined that partition of movable properties was ex
facie unjust and unfair and appointed Commissioner to go into valuation - High Court set
aside Order of appointing Commissioner and passed decree to extent of 2/5 share in favour
of appellant - Supreme Court on finding of facts opined that shares of minors were easily
ascertainable in terms of money and can be quantified - appointment of Commissioner for
reopening of entire partition cannot be justified - Supreme Court granted an amount of Rs.
15000 with interest on ground of ex facie disparity in partition.

JUDGEMENT

S. Murtaza Fazl Ali, J.

1. This is the plaintiffs' appeal against the judgment of the High Court of Madras dated November
22. 1963 by certificate. The appeal arises out of a partition suit filed by plaintiffs Nos. 1 to 4 for
cancellation of partition made between the father of the plaintiffs who is defendant No. 5, and
defendant No. 1 the elder brother of defendant No. 5. It appears that as far back as May 10, 1940
the two brothers, namely S. M. Kuppuswami Chettiar defendant No. 1 and S. M. Ranganatham
Chettiar defendant No. 5. who were originally members of Undivided Hindu Family partitioned
their shares by virtue of a registered partition deed dated May 10, 1940. At the time when the
partition was made plaintiffs Nos. 2 to 4 were minors and defendant No. 3 was also a minor. Under
the partition deed both immovable and moveable properties were divided between the two brothers
voluntarily through the aid and assistance of D.W. 3 K. Narayan swami who was the family auditor
of defendant No. 1 and was his friend and adviser. The partition deed with respect to the immovable
properties is Ext. B-1 which appears at pp. 243-248 of the Paper Book. Under the partition deed
two Lists were prepared itemising the properties which were to go to the two brothers. The list of
properties is contained in Ext. B-l 15 of the Paper Book. As regards the moveable properties it
appears that the partition had taken place a month earlier i.e. on April 12, 1940 and the partition
deed is Ext. B-3. which consists of two Schedules-Schedule A and Schedule B - moveables
mentioned in Schedule A were allotted to defendant No. 1 and those contained in Schedule B were
allotted to the share of defendant No. 5.

2. The plaintiffs' case was that the two brothers who were members of the Undivided Hindu Family
along with the plaintiffs and other minor coparceners betrayed the interests of the minors and the
division made between them was both unjust and unfair and had the effect of depriving the minors
of their legal shares in the properties the lion's share having fallen to the lot of elder brother
defendant No. 1 S. M. Kuppuswami Chettiar hereinafter referred to as 'S. M. K.'. The plain tiffs'
father who is defendant No. 5 being a person of weak intellect did not care to protect the interests
of the minors and he accordingly accepted any share that was allotted to him without any objection.
Defendant No. 5 S. M. Ranganathan Chettiar would be hereinafter referred to as 'S. M. R.'. Plaintiffs
also alleged that the partition was secured by practising fraud and undue influence and by
suppressing large assets be longing to the family which were taken by defendant No. 1 by taking
advantage of the weakness of the plaintiffs' father.

3. We might mention at the outset that Mr. F. S. Nariman the learned Counsel for the appellants did
not at all press the plea of fraud and undue influence taken by the plain tiffs before the Trial Court
and con fined his arguments only to the al legation that the partition effected between the two
brothers S. M. K. and S. M. R. was at the very face of it unjust and unfair and detrimental to the
interests of the minOrs. The plaintiffs also laid claim to a sum of Rs. 10,000/- from the cash deposit
which is said to have been given to the mother of defendants 1 and 5 but this claim was not pressed
before us in the course of the arguments. Other minor claims which were also made before the Trial
Court were not pressed before us.

4. The suit was resisted by defendant No. 1 S. M. K. and his major sons defendants 1 & 4 and a
minor son defendant 3 who however attained majority during the pendency of the suit before the
Trial Court. We might also mention here that plaintiffs Nos. 2 to 4 sons of S. M. R. were also minors
at the time when the suit was filed but plaintiff No. 2 attained majority on October 3, 1958 just
about a month and a half before the judgment in the suit was delivered by the Subordinate Judge,
Coimbatore. The defendants stoutly denied the allegations made by the plaintiffs and averred that
there was absolutely no disparity in the division of the properties, that no fraud or undue influence
had been practised that the properties were divided between defendants 1 and 5 with the explicit
consent of defendant No. 5 and that the division of the properties would show that the partition was
neither unjust nor unfair, both parties having taken equal shares in the immovable and moveable
properties. A number of other pleas was also raised by the defendants, but it is not necessary for us
to deal with them in view of the points pressed before us by the learned Counsel for the appellants.

5. The Trial Court framed as many as 18 issues and after considering the oral and documentary
evidence produced before it it held that so far as the partition of the immovable properties was
concerned which was done by a separate document and was clearly severable from the partition of
the moveable properties the partition was neither unjust nor unfair so as to entitle the minors to
reopen the partition after a long period. The learned Trial Judge, however, was of the opinion that
so far as the partition of moveable properties was concerned it was ex facie unjust and unfair and
the plea of the plaintiffs for re-opening the same must succeed. The Trial Court accordingly passed
a preliminary decree for repartition of the moveable properties and directed the appointment of a
Commissioner to go into the valuation of the assets sought to be re partitioned.

6. Both the plaintiffs and the defendants filed separate appeals before the High Court of Madras.
The plaintiffs filed an appeal before the High Court against that part of the decree which dismissed
their suit for re-opening the partition of the immovable properties, while the defendants filed an
appeal against the decree of the Trial Court directing re opening of the partition of moveable
properties and thus decreeing the plaintiffs' suit to that extent. The High Court decided both the
appeals by one common judgment dated November 22, 1963 and by upholding the findings of the
learned Subordinate Judge, Coimbatore, the High Court made a slight variation in the decree by
setting aside the directions of the Subordinate Judge for the appointment of a Commissioner and by
quantifying the value of the disparity in the share of the plaintiffs, the High Court passed a decree
to the extent of 2/5th share of Rs. 17,700/-. The plaintiffs alone have filed the present appeal against
the judgment and decree of the High Court after obtaining; a certificate from that Court.
7. Before going into the merits of the case, it may be necessary to mention a few unique aspects of
the present case. It Would appear from the findings arrived at by the two courts that defendant No.
1 was undoubtedly an honest man and defendant No. 5 the younger brother appears to be an idealist-
a person to whom the value and prestige of the family was a consideration much above mundane
monetary matters. Secondly, the partition between the two brothers was voluntarily made about 35
years ago and the father of the plaintiffs had most willingly and with good grace accepted the
partition and the shares that were allotted to him. Thirdly, since a very long time had elapsed since
the partition took place, it would be well-nigh impossible for any court to determine the value of
the assets, some of which might have disappeared, others may be shrouded in mystery, and for
determining the rest the necessary data may not be available. It appears to us to be too late in the
day in 1975 to appoint a Commissioner in order to go into a situation which existed in 1940 and
then to pass a decree which may result in a fresh spate of litigation for another decade. It was
possibly this consideration which weighed with the High Court in quantifying the amount of the
share of the plaintiffs which they had suffered under the division of the assets. Finally, the plaintiff's
father defendant No. 5 was a shrewd businessman and after his elder brother had suffered from
some illness, he was carrying on the business of the family a few years before the partition. Both
the parties were assisted by an Auditor Mr. K. Narayan swami in effecting the partition by metes
and bounds. In these circumstances, therefore, there could be no question of practising any fraud or
undue influence as alleged by the plaintiffs and if the partition was unjust or unfair to the minors it
was merely because defendant No. 5 made an error of judgment with respect to some properties.
Lastly, we have not been able to find any material to justify the conclusion of the High Court that
the difference in the allotment of the shares to the plaintiffs would be 2/5th of Rs. 17.700/-. We
shall deal with this point a little later and show that the difference is much more.

8. Mr. Nariman, learned Counsel for the appellants submitted two points before us. In the first place,
he assailed the partition of the immovable properties on the ground that no valuation of the
properties was fixed according to the market value and that the plaintiffs were not given any share
in the agricultural properties. As regards the move-able properties it was argued that the division
was wholly unjust and unfair because the lion's share was taken by defendant. No. 1 and the choice
made by defendant No. 5, the father of the plaintiffs was neither wise nor prudent and was extremely
detrimental to the interests of the plaintiffs. As an instance of the unfairness of the partition Mr.
Nariman pointed out that a comparison of Scheduler, A and B of Ext. B-3 would show that
defendant No. 1 was allotted moveable properties worth Rupees 1 10,274-2-0 whereas defendant
No. 5 was' given properties worth Rupees 90 142-4-0 there being a difference of about Rs. 20,000/-
odd. He also pointed out that shares of Lakshmi Textile Mills were allotted to defendant No. 1
which were extremely valuable and gave very rich dividends whereas defendant No. 5 was allotted
the shares of Lakshmi Sugar Mills which was one of the sick Mills running at a loss whose dividends
were insignificant. We shall consider this contention raised by counsel for the appellants a little
later.

9. The learned Counsel appearing for the respondents Mr. Natesan, however, submitted that the
present suit is frivolous and has been filed only with a view to harass the defendants and to re-open
a partition which was both just and equitable and which was entered by both the brothers with their
eyes open and with the aid of their financial ex pert. Learned Counsel for the respondents, further
submitted that there is no reliable evidence to show that there was any cash deposit of Rupees
65,000/- as mentioned in Schedule B, and if there was one it would have been divided on the spot
instead of being postponed to a future date. Similarly it was submitted that so far as the shares are
concerned they were chosen by defendant No. 5 himself and their valuation was equal.
10. As regards the immovable properties we find ourselves in complete agreement with the
arguments of the learned Counsel for the respondents that the partition of these properties was fair
and just and there is no material on the record to show that the partition worked in any in justice or
was detrimental in any way to the interests of the minOrs. In this connection we might try to
illustrate our point from the findings of the Trial Court regarding the valuation of the immovable
properties divided between the two brothers. The partition of immovable properties Ext. B-l which
appears at pp. 243 to 248 of the Paper Book consists of two schedules A & B. The Trial Court has,
after careful consideration of the evidence, very scientifically itemised the properties allotted to
each of the brothers and the value of those properties. For instance, item 1 of Schedule A allotted
to defendant No. 1 is a tank-fed nanja land in Kurichi village measuring 3.80 acres and has been
valued at Rs. 4,000/-. Item 2 is a similar land in village Kurichi which is self-cultivated and has
been valued at Rs. 7,000/- Thus the total value of items 1 and 2 of Schedule A comes to Rs. 11,000/-
. As against this defendant No. 5 was allotted item 2 of Schedule B which on the basis of capitalised
value at the rate of Rs. 60/- per month has been fixed at Rs. 14,000/-. Items 1 and 2 of Schedule A
are the only agricultural properties possessed by the family and the Trial Court has rightly pointed
out that whereas defendant No. 1 took the agricultural properties, defendant No. 5 got urban
properties not only of the same value but of a higher value. Similarly item No. 3 of Schedule A
allotted to defendant No. 1 is a house in the Big Bazar Street and has been valued at Rs. 16,500/.
As against this the family house in the Oppanakkara Street has been allotted to defendant No. 5
whose value is much more than item No. 3 of Schedule A. The capitalised value of the family house
in the Oppanakkara Street on the basis of rental of Rs. 700/- per month would come to near about
Rs. 96,000/-. Item 4 of Schedule A is a house and site in Ramanathapuram and has been valued at
Rs. 7,000/-because it was purchased in 1938 for a sum of Rs. 5,650/- vide Ext. B-139 dated March
6, 1938. The learned Subordinate Judge has roughly put the valuation of the said house and site at
Rs. 7,000/- in 1940. As against this item 3 allotted to defendant No. 5 is a shop building in the Big
Bazzar Street carrying a rental of Rs. 30/-per month at the time of the partition whose capitalised
value would be Rs. 7,000/-. Item No. 5 of Schedule A which was allotted to defendant No. 1 has
been valued at Rs. 2,300/- representing the purchase price of the property mentioned in Exts. B-140
to B-142. As against this item 4 of Schedule B which has been allotted to defendant No. 5 was
purchased for a sum of Rs. 2,100/-. It would thus appear that the division of immovable properties
is just, fair and equal. It is true that the properties were not actually valued according to the market
rate and that a notional valuation had been given in the partition deed. But in view of the detailed
examination by the two Courts of the fact regarding capitalised value of the properties allotted to
the two brothers it cannot be said that the partition of immovable properties was either unfair or
unjust or in any way detrimental to the interests of the minOrs. After considering the evidence, the
Trial Court found as follows:

It is thus found from the available evidence that there was no unfairness or inequality in the partition
of the Immovable properties effected under Exhibit B-l and that no ground exists for reopening that
partition.

The High Court upheld the findings of the Trial Court in these words:

Thus in regard to the division of the immovable properties it is not possible for us to say that there
was unfairness or fraud or irregularity in the allotment of the properties between the brothers. The
scheme of the division of the immovable properties seems to us to be fair and we cannot say that
the plaintiff's father (5th defendant) acted against the interests of his sons or that the 1st defendant
took any advantage of his position as the eldest member of the family and allotted to himself the
best among the properties available for division. We therefore confirm the finding of the learned
Subordinate Judge that the partition of the immovable properties effected under Exhibit B-l is
binding on the plaintiffs and that the plaintiffs are not entitled to reopen the partition.

11. It is a well-settled practice of this Court not to interfere with a concurrent finding of fact given
by the two Courts below in the absence of any extraordinary or special reasons. In the instant case
we hold that the finding of the High Court as well as of the Trial Court is based on a full and
complete consideration of the evidence both oral and documentary and an elaborate and meticulous
discussion of all the surrounding circumstances. We, therefore do not feel inclined to interfere with
this concurrent finding of fact which is hereby affirmed.

12. We might state that the objection regarding the properties not having been properly valued fails
to the ground when we find that instead of notional value mentioned in the partition deed which is
Rs. 12,547-13-0 for defendant No. 1 and Rs. 12,000/- for defendant No. 5, the capitalised value of
the items allotted to the two brothers either on the basis of their purchase price or on the basis of
the rent fetched by them is almost equal. The first contention regarding the partition of immovable
properties raised by the learned Counsel for the appellants being unfair and unjust must therefore
be overruled.

13. We now come to the question of the division of moveable properties. In this connection our
attention was drawn by Mr. Nariman to Ext. B-3 which is to be read along with the pencil note of
K. Narayana swami D.W. 3, who was the auditor of defendant No. 1 himself. Exhibit B-3 is the
partition deed of moveable properties consisting of shares, deposits, pronotes, mortgage deeds and
cash particulars of which are given in Schedule and B. Moveable properties mentioned in Schedule
A were allotted to defendant No. 1 and those mentioned in Schedule B were allotted to defendant
No. 5 father of the plaintiffs. It will appear from a plain examination of the two schedules that
whereas defendant No. 1 admittedly got properties worth Rs. 1,10,274-2-6 defendant No. 5 got
properties only worth Rs. 90,142-4-0 there being a clear disparity of Rs. 10,000/- because the share
of each of the two defendants would be Rs. 1,00,208/-. On the defendants No. 1's own documents,
therefore, it is clear that a loss of Rs. 10,000/- was caused to defendant No. 5 in the year 1940 and
the share of the plaintiffs in this loss would be 2/5th i.e. about Rs. 4,000/- which would swell into
a large amount if we add interest for all these 35 years. That apart, the learned Counsel for the
appellants has submitted that the document Ext. B-3 deliberately omits to mention a sum of Rs.
65,000/- which was a cash deposit alleged to have been kept in the safe and out of which Rs.
10,000/-were agreed to be given to the mother of the two brothers and the rest, viz. Rs. 55,000/-
were to be divided between the two brothers, each defendant getting Rs. 27,500/-. This is
undoubtedly proved by Ext. A-2 where these figures are clearly mentioned. Entry No. 1 of Ext. A-
2 runs thus:

Total Settlement S.M.K. S.M.R. (1) (2) (3) (4) (5) (6) Thanichontham Belonging ... 65,000/-
55,000/- 27,500/- 27,500/- exclusively* *Scored out in pencil

This cash amount of Rs. 65.000/- is denied by defendant No. 1 and it is said that this amount might
have been hidden money which never came to the share of the parties. D.W. 3 K. Narayanaswami
has positively admitted in his evidence that he had made this entry in his own hand-writing but he
scored out this entry as the amount was not available. Both the Subordinate Judge, Coimbatore and
the High Court have accepted the explanation given by D W. 3 Narayanaswami although the
explanation appears to us to be prima facie false and unconvincing. Even assuming that this entry
was made due to some mistake and had to be scored out, we cannot believe that a person of the
expert knowledge and status of D.W. 3 Narayanaswami Iyer the Auditor would forget to make a
corresponding correction in the total amount which is given below the statement of account signed
by him. If the amount of Rs. 65,000/- was scored out, then the total would be Rs. 2,00,116/- in Ext.
A-2, but the total shown in pencil in Ext. A-2 is Rs. 2,65,116/- which completely demolishes the
case of defendant No. 1 and the explanation given by D.W. 3 that the entry was made due to some
mistake. The Courts below have, however, relied on a number of circumstances which are purely
of a speculative nature, in. order to hold that the plaintiffs have not been able to prove the existence
of the cash amount of Rs. 65,000/-. One of the circumstances was that according to the evidence of
defendant No. 5 the amount of Rs. 65,000/- was taken but from the safe and counted in the presence
of defendants 1 and 5 and yet defendant No. 5 did not care to divide it at that time into two equal
parts, nor did he insist on the same. Defendant No. 5 has, however, given an explanation that as his
elder brother wanted that this money should be divided later he did not want to join issue on the
subject and trusted his elder brother. A perusal of the evidence of defendant No. 5 clearly shows
that he is an extremely emotional sort of a person who believes in the respect of the family above
all considerations. It is, therefore, not unlikely that defendant No. 5 quietly accepted the advice of
his elder brother to divide the amount later on. It was however argued by the learned Counsel for
the respondents that defendant No. 5 was a shrewd businessman having managed the family affairs
for quite some time and if such a huge amount was concealed from him by his elder brother he
would have undoubtedly raised objection at any time before the suit. This conduct of defendant No.
5 cannot, however, put the plaintiffs out of court. He had decided to abide by the advice of his elder
brother and if he thought that his elder brother did not want to divide the amount of Rs. 65,000/- he
kept quiet which is quite in consonance with the character of this man as revealed in his evidence
and the circumstances of the case. Assuming however that defendant No. 5 did not take any
objection, as the amount was very huge the silence of defendant No. 5 or even his acquiescence in
allowing his elder brother to swallow this amount was not a prudent act and has caused serious
detriment to the interests of the minors which he had to protect, because the minors at that time
were members of the Hindu Undivided Family. In view of these circumstances, . therefore, we are
satisfied that the plaintiffs' case regarding the deliberate suppression of the cash amount of Rs.
65,000/- has been proved and if this amount would have been available to defendant No. 5, then the
plaintiffs would have got 2/5 share of Rs. 65,000/-, viz. Rupees 27,500/-, as far back as 1940. The
argument of Mr. Nariman on this point is, therefore, well-founded and must prevail.

14. The only other point that was stressed before us by the learned Counsel for the appellants was
that the Trial Court was right in ordering the appointment of a Commissioner for going into the
assets of the moveable properties, particularly the question of the shares of the Lakshmi Mills. We
are, however, unable to agree with this argument. Mr. Natesan learned Counsel for the
respondents has drawn our attention to some important documents to show that the shares were
equally divided between defendants Nos. 1 and 5 and were actually chosen by defendant No. 5
with his eyes open. Exhibit B-153 which is a share market report dated April 5, 1940 shows that
the paid up value of each share of Lakshmi Sugar Mills was Rs. 50 but the current price of the
share at that time was Rs. 41/8/- i.e. it was Rs. 8/8- below the paid-up value and the dividend paid
on the share was only Rs. 9/- yearly. It was, therefore, suggested by counsel for the respondents
that defendant No. 5 was given the choice to take the shares of the Lakshmi Mills or the Lakshmi
Sugar Mills and in view of the low market rate of the Lakhsmi Mills he chose to take the shares of
the Lakshmi Sugar Mills to the extent of Rs. 10,000/-. In lieu of the shares of other Mills
defendant No. 5 took a cash amount of Rs. 13,000/- as would appear from Ext. B-3. It is true that
the shares of Lakshmi Textile Mills went up enormously a few years later in view of the
international war situation in the continent but defendant No. 5 could not have foreseen such a
contingency and if he had made the choice which he thought would be beneficial to the interests
of the minors his conduct would have been at best an error of judgment which would not be
sufficient to reopen the choice made by him.
15. Mr. Nariman. however, strenuously relied on the evidence of D.W. 3 Narayanaswami Auditor
which was to the effect that he expressed great surprise when defendant No. 5 chose the shares of
Lakshmi Sugar Mills and in his opinion that was his foolish act. This is, however, a matter of
opinion but the fact remains that the market report of the Lakshmi Mills was not encouraging and
therefore there was some justification for defendant No. 5 for not opting for the shares of the
Lakshmi Mills. In these circumstances we hold that so far as the shares of the various Mills were
concerned there was no unjust or unequal distribution between the parties. This item of moveable
properties, therefore was correctly divided between the parties.

16. Learned Counsel for the respondents submitted that taking a broad view of the whole case the
Court should hold that it was not a case of unfair or unjust partition, because both defendant Nos.
1 and 5 were persons who had shrewd business experience and had voluntarily accepted the
partition of the properties which was by and large equal. The learned Counsel relied on the decision
of this Court in Devarajan v. Janki Ammal C. A. No. 2298 of 1966 decided on 20-3-1967 (SC)
where this Court observed as follows:

Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere
inequality of shares though it can be reopened in case of fraud or mistake or subsequent recovery
of family property: see Moro Vishvanath v. Ganesh Vithal (1873) 10 Bom HCR 444. Further an
allotment bona fide made in the course of a partition by common consent of the coparceners is not
open to attack when the shares are not absolutely equal or are not strictly in accordance with those
settled by law. It is true that minors are permitted in law to reopen a partition on proof that the
partition has been unfair and unjust to them. Even so, so long as there is no fraud, unfair dealing or
over-reaching by one member as against another, Hind a law requires that a bona fide partition
made on the basis of the common consent of coparceners must be respected and is irrevocable:

It was submitted that the evidence and circumstances of the case clearly show that there was no
inequality of shares and the plea of fraud or mistake has not been accepted by the courts and that
on the whole the partition was bona fide. It is true that if this was the position the ratio of the
decision in Devarajan's. case would undoubtedly apply to this case. But this Court had taken care
to point out in these very observations which are underlined by us that this rule did not apply to the
minors who are undoubtedly permitted in law to reopen the partition once it is proved that the
partition was unfair or unjust to them. In view of the concurrent finding of fact of the two Courts
below that the partition of moveable properties, excepting those with respect to the shares, was
unfair and unjust, even according to the decision mentioned above the partition with respect to the
moveable properties has to be reopened.

17. Moreover in an earlier decision of this Court in Bishundeo v. Seogeni

Rai MANU/SC/0059/1951 : [1951]2SCR548 it was observed:

It is well established that a minor can sue for partition and obtain a decree if his next friend can
show that that is for the minor's benefit. It is also beyond dispute that an adult coparcener can
enforce a partition by suit even when there are minOrs. Even without a suit, there can be a partition
between members of a joint family when one of the members is a minor. In the case of such lastly
mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on
attaining majority is able to show that the division was unfair and unjust, the Court will certainly
set it aside.

In our opinion the present case falls within the ratio laid down by the decision cited above.
18. Apart from that there are numerous authorities which have consistently held that where a
partition is unjust and unfair and detrimental to the interests of the minors the partition should be
reopened irrespective of the question, of bona fide. In Lal Bahadur Singh v. Sispal Singh (1892)
ILP 14 All 498 it was observed that even though the ground of fraud and mistake failed, the partition
which affected the interests of the minors could be reopened. Similarly in Chanvirapa v. Danava
(1895) ILR 19 Bom 593 a Division Bench of the Bom. High Court held that a partition will be
binding on the minors only if it was just and legal, but if it was made and finalised there being no
means of testing the validity of the assets, the partition was not final. The same view was taken in
Maruti v. llama ILR(1897) 21 Bom 333.

19. Thus on a consideration of the authorities discussed above and the law on the Subject the
following propositions emerge:

(1) A partition effected between the members of the Hindu Undivided Family by their own volition
and with their consent cannot be reopen ed, unless it is shown that the same is obtained by fraud,
coercion, misrepresentation or undue influence. In such a case the Court should require a strict
proof of facts because an act inter vivos cannot be lightly set aside.

(2)When the partition is effected between the members of the Hindu Undivided Family which
consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona
fide manner keeping into account the interests of the minOrs.

(3 )Where, however, a partition effected between the members of the Hindu Undivided Family
which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the
minors the partition can certainly be reopened whatever the length of time when the partition took
place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors
and the onus of proof that the partition was just and fair is on the party supporting the partition.

(4)Where there is a partition of immovable and moveable properties but the two transactions are
distinct and separable or have taken place at different times if it is found that only one of these
transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and
fair and to reopen the partition that is unjust and unfair.

The facts of the present case in our opinion, fall squarely within propositions Nos. (3) and (4)
indicated above.

20. In the instant case we find from a perusal of the two schedules 'A' and 'B' of Ext. B-3 that there
has been ex facie a disparity of about Rs. 10.000/- to which must be added Rs. 27,500/- which we
have discussed above. Thus the total disparity comes to Rs. 37,500/- and the share of the minor
plaintiffs would be 2/5th which comes to Rs. 15,000/-. This amount of Rs. 15,000/- should have
been available to the minor plaintiffs as far back as 1940 when the partition was made and they
have been deprived of that amount ever since. We find that in the peculiar facts and circumstances
of the case as already stated it will not be in the interests of the minors nor conducive in the interests
of justice to order the appointment of a Commissioner for reopening the entire partition when the
shares of the minor plaintiffs are easily ascertainable in terms of money and can be quantified. In
these circumstances we think the best course is to determine the money value of the share of the
plaintiffs and to pass a decree for the same which will protect the minors from protracted litigation
which might follow the passing of a preliminary decree. This was the approach made by the High
Court but we do not agree with the amount quantified by it. If we add interest at the rate of 6 per
cent per annum as prayed for in the plaint on the amount of Rs. 15,000/-, the interest calculated at
this rate for 35 years from 1940 to 1975 would come to Rs. 31,500/-. Thus the total amount payable
to the plaintiffs comes to Rs. 46,500/-.

21. We, therefore, allow the appeal in part and modify the decree of the High Court to the extent
that there will be a decree for a sum of Rs. 46,500/- in favour of the plaintiffs appellants which
represents their share of the moveable properties of which they were deprived of. The plaintiffs
would be entitled to future interest at the rate of 6 per cent, per annum till payment. In the
circumstances of the case, there will be no order as to costs. This course, in our opinion, safeguards
the interests of the minors to give them their just due and to protect them from a protracted and
fruitless litigation.
 Ram Narain Chaudhury (since Deceased) v. Pan Kuer and Ors., 39 CWN 265

Hon'bleJudges/Coram: Blanesburgh, Thankerton and Shadi Lal, JJ.

CaseNote:
Family - Partition - Whether original Appellant was entitled to succeed to whole estate of R,
who died or otherwise to one half thereof - Held, in this case, it was clear that benefit of
devolution under that provision was confined to "us three men," that was, to three parties to
agreement - It was a condition that party taking benefit of provision should have a living heir,
but no right to take was conferred on such heir - In that view R could claim no right under
agreement, and Appellants' alternative claim also failed - Appeals dismissed with costs and
that decrees of High Court of January 30, 1929, should be affirmed.

JUDGMENT

Thankerton, J.

1. These are consolidated appeals from four decrees of the High Court of Judicature at Patna, dated
January 30, 1929, which reversed two decrees of the Subordinate Judge of Patna, dated February
26, 1927.

2. The original appellant, Ram Narain Chaudry, was plaintiff in the two suits in which these decrees
were made and which were instituted by him in 1924, but he has recently died and the present
appellants are his personal representatives. The main question, which is common to both suits, is
whether the original appellant was entitled to succeed to the whole estate of Ram Kishore Chaudry,
who died on August 27, 1917, or otherwise to one half thereof.

3. The following pedigree shows the relationship of the parties concerned:

4. Gayanandan Chaudry, who was the common ancestor of Ram Narain, the original appellant, and
Ram Kishore, had six sons, of whom the four appearing in the pedigree in 1887 formed a joint
Hindu family. Of the remaining two, who do not so appear, one had separated from the family
before that date and the other had died without issue. In 1887 a partition took place between Dubhri
and Bidhi on the one hand and Lila and Fateh on the other hand.
5. Bidhi died in March, 1895, predeceased by his brother Dubhri. Family disputes resulted in a
partition, the family property being partitioned under an award dated July 14, 1896, in half shares
as between Shankar on the one hand and Lal Narain and Lachmann on the other hand. The joint
family at that time consisted of Shankar and his two sons, Kunj Bihari and the original appellant,
and Lal Narain and Lachmann, along with the latter's son, Kishore, if then in existence. In the view
that their Lordships take, it is unnecessary to decide whether Kishore was then in existence. The
appellants found on an ekrarnama or agreement between Shankar, Lal Narain and Lachmann made
in July, 1896, the genuineness and effect of which is in dispute and which will be referred to later.

6. In 1908 there was a partition between Lal Narain and Lachmann, and Lal Narain died in
September, 1909, leaving his widow, Musammat Pan Kuer, respondent No. 1 in these appeals, and
three daughters, but no son. Lachmann obtained possession of Lal Narain's estate to the exclusion
of the widow and daughters, although he subsequently made some provision for the widow.
Lachmann died in April, 1912, and his estate devolved on his only son, Ram Kishore. As already
stated, the last-named died in August, 1917, and the present dispute arose as to the succession to
his estate. -It is sufficient to state that the three main contestants were Ram Narain, the original
appellant, who claimed the entirety by survivorship under an alleged reunion between him and
Kishore in June, 1917, or, alternatively, a moiety under the agreement of 1896; respondent No. 1,
who claims under the will of Ram Kishore; and the heirs on intestacy of Ram Kishore, Murat Narain
and Govind Prasad, the sons of Lila Chand and Fateh Chand, respectively. The genuineness of Ram
Kishore's will is no longer challenged, and the only question now is whether, its operation is
excluded by an alleged reunion between Ram Narain and Ram Kishore, or, otherwise, by the
provisions of the agreement of 1896.

7. As presented to their Lordships, the appellants' claim was based on two alternative grounds: (i.)
that, in virtue of a reunion between Ram Narain and Ram Kishore, which took place a short time
before his death, their estates had become joint, and that, on Ram Kishore's death without male
issue, Ram Narain became entitled to the whole joint estate by survivance, or, alternatively, (2.)
that he was entitled, under the provisions of the agreement of 1896, to one half of the estate, his
brother being entitled to the other half.

8. On the first point their Lordships agree with the decision of the High Court that, even assuming
the reunion of 1917 to have been established in fact, it was inoperative in law, as Ram Narain and
Ram Kishore were not within the class of relationship to which reunion is limited under the
Mitakshara Law, which rules the present case.

9. The passage in the Mitakshara, ch. 2, Section 9, paras. 2 and 3, is thus translated by Colebrooke:
"2. Effects which have been divided and which are again mixed together are termed reunited. He
to whom such appertain is a reunited parcener. 3. That cannot take place with any person
indifferently, but only with a father, a brother or a paternal uncle, as Brihaspati declares, 'He who
being once separated dwells again through affection with his father, brother or paternal uncle is
termed reunited.' "

10. In Basanta Kumar Singha v. Jogendra Nath Singha (1905) I.L.R. 33 C. 371, 374 the learned
judges note two slight inaccuracies in the translation of para. 3--namely, that there is no word in
the original Sanskrit corresponding to the word "only," and that the concluding words "is termed
reunited" should be literally rendered as "is termed reunited with him." The question in that case,
as in the present case, was whether the express mention of the father, brother and paternal uncle
was restrictive or merely illustrative. It was held that it was restrictive. In the present case the
learned judges of the High Court followed that decision, and their Lordships agree with their
decision and the reasoning on which it is based. In their Lordships' opinion the text of the
Mitakshara is clear and unambiguous and excludes recourse to other authorities, and they would
only add that, in their opinion, para. 2 makes clear that the parties to the reunion must have been
parties to the original partition, and that, when para. 3 states "that cannot take place with any person
indifferently," it is intended to place a further restriction within a still narrower limit than that
prescribed by para. 2. In this view it is difficult to see how the persons expressly named can be
merely illustrative, or, indeed, what class they can illustrate.

11. It follows that the alleged reunion of 1917 could not be valid in law, in respect that Ram Narain
and Ram Kishore were not within the relationship named in para. 3, and it is unnecessary to
consider whether Ram Kishore was alive and a party to the partition of 1896, which would have
been relevant to the limitation imposed by para. 2.

12. The appellants' alternative case raises, primarily, a question of construction of the agreement of
1896; if this question be decided adversely to the appellants, it will be unnecessary to consider any
other questions, such as the genuineness of the agreement.

13. The material passage in the agreement is as follows: "It has been finally settled by all of us
three men that if any of us, God forbid, may become childless, then his properties movable and
immovable or nami and benami shall devolve upon him whose heir will remain alive and any other
third person shall have no right or claim to the said properties. If the person devoid of heir may
have a daughter and if with a view to deprive others of their right he may give the properties to his
daughter by executing any deed in her favour or if he may destroy the properties in any other way
then it shall be regarded as illegal in the court in the face of this ekrarnama. Should our heirs and
representatives in any way act in contravention of the terms of this ekrarnama, it shall be regarded
as wrong and false in the court. It shall be incumbent on our heirs and representatives to stick to
the terms of this ekrarnama." It is common ground that the word "childless" means "sonless," and
the appellants maintain that on the death of Ram Kishore, who was sonless, his estate devolved, in
terms of the above provision, on Ram Narain and his brother Kunj Bihari, both of whom had sons
then living.

14. In their Lordships' opinion, however, it is clear that the benefit of the devolution under that
provision is confined to "us three men," that is, to the three parties to the agreement, who were
Shankar, Lal Narain and Lachmann. It is a condition that the party taking the benefit of the
provision should have a living heir, but no right to take is conferred on such heir. In that view Ram
Narain could claim no right under the agreement, and the appellants' alternative claim also fails.

15. Their Lordships will accordingly humbly advise His Majesty that the appeals should be
dismissed with costs and that the decrees of the High Court of January 30, 1929, should be affirmed.