V. Kalyanaswamy (D) by Lrs. & Anr. vs L. Bakthavatsalam (D) by Lrs. & Ors.

Code of Civil Procedure, 1908 – Or.II, r.2 – Scope of – Discussed.

Code of Civil Procedure, 1908 – Or.II, rr.2, 3 – Held: Be it the omission or intentional relinquishment of a claim arising out of a cause of action under Or. II, r.2(2) or not seeking a relief under Or. II, r.2(3), the fatal consequences they pose, will arise only if the cause of action is the same.

Transfer of Property Act, 1882 – s.19 – Commonality between s.19 and s.119, 1925 Act – Discussed – Indian Succession Act, 1925 – s.119.

Evidence Act, 1872 – s.33 – Applicability of – Held: Applicability of s.33 does not depend upon the nature of the decision which is rendered in the earlier proceeding.

Evidence Act, 1872 – s.33 – Held: Requirements u/s.33 are not to be confused with the ingredients to be fulfilled even in a case u/s.11, CPC – Code of Civil Procedure, 1908 – s.11. Evidence Act, 1872 – First proviso to s.33 – ‘representative in interest’ – Interpretation of – Held: ‘representative in interest’, is to be understood liberally and not confined to cases where there is privity of estate and succession of title.

Evidence Act, 1872 – s.68 vis-à-vis s.69 – Held: s.69 manifests a departure from the requirement embodied in s.68 – In a case covered u/s.69, the requirement pertinent to s.68 that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with.

Evidence Act, 1872 – s.69 – Evidence conforming to the requirements under – Duty of Court – Held: In a case, where there is evidence appearing to conform to the requirement u/s.69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of s.69 are proved – Reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over.

Hindu Law – Will – Capacity to make – Held: Requirement of sound disposing capacity is not to be confused with physical wellbeing – A person who is having a physical ailment may not therefore be robbed of his sound disposing capacity – The fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will. Hindu Law – Will – Burden to prove – Held: Burden to prove the Will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the Will – Burden to prove that the Will is procured by coercion, undue influence or fraud is on the one alleging the same.

Hindu Law – Joint Hindu Family – Partition – Meaning of and its implications – Discussed – Hindu Succession Act, 1956 – ss.6 and 30.

Hindu Law – Property of the joint family – Right of the coparcener – Held:In the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest – As long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share – The share remains shrouded and emerges only with division in title or status in the joint family – Once there is a division the share of a coparcener is laid bare.

Hindu Law – Right of a Hindu to make a Will, before and after 1956 Act – Discussed – Hindu Succession Act, 1956 – s.30. Hindu Women’s Right to Property Act, 1937 – s.3 – Application of – Held: s.3 of the 1937 Act applies when a Hindu dies intestate.

Hindu Women’s Right to Property Act, 1937 – Contrast between ss.3(1) & (2)– Discussed.

Hindu Succession Act, 1956 – Explanation to s.30 – Held: Under Explanation to s.30, it is open to a Hindu to even bequeath his interest in the Hindu Joint Family property.

Hindu Women’s Right to Property Act, 1937 – Effect of demand for partition by a widow, on coparcener’s claim based on doctrine of survivorship – Held: With the passing of the 1937 Act, in areas to which it applied, an intrusion was indeed made upon a coparceners right to set-up a claim to the property of a deceased coparcener based on the Doctrine of Survivorship but the Act did not annihilate the said right – Right to claim by Survivorship came to be suspended but not extinguished – Widow, though not a coparcener, was like a coparcener in most respects – She was also conferred with the right to claim partition – Doctrine of Survivorship. Practice & Procedure – Principle of no evidence, if no pleading – When not applicable – Discussed.

Evidence Act, 1872 – ss.40-42 – When not applicable – Discussed.

Hindu Law – Joint Hindu Family – Separation from – Notice to other coparceners – When complete – Held: Notice in a newspaper serves as a notice by a coparcener to effect division – However, merely causing a notice to be published, without there being evidence to show that the intended recipient became aware of it, may not suffice – There cannot be a presumption that a person has read a particular newspaper, and even more importantly, that he has read the notice.

Hindu Succession Act, 1956 –s.14(1), (2) – Applicability of – Discussed.

Words & Expressions– ‘Interest’, of a coparcener in a joint Hindu family property – Meaning of – Discussed. Dismissing the appeals, the Court

HELD: 1. THE PROPERTY AT STAKE

The property in dispute, in both the Suits (O.S. No. 89 of 1983 and O.S. No. 649 of 1985- fifth stage/the present litigation, which generated the present appeals), is the same. In the Will dated 10.05.1955, there were sixteen items. In O.S. No. 71 of 1958 (second stage of litigation), R. Krishnammal was conferred with absolute rights in respect of seven items. The property involved in O.S. No. 36 of 1963 (third stage of litigation) also related to the seven items, which figured in compromise Decree in O.S. No. 71 of 1958, wherein R. Krishnammal was conferred absolute rights. O.S. No. 632 of 1981 (fourth stage of litigation) relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. The items which are scheduled in the present Suits are the items covered by the Will dated 10.05.1955 other than the seven items, out of which, four were alienated and one was acquired. As far as O.S. No. 71 of 1958, filed by R. Krishnammal, is concerned, since she had an alternate relief claiming partition, it encompassed the entire property belonging to the coparcenary consisting of 93 items. [Para 44][693-B-D]

2.1 THE EFFECT OF ORDER II RULE 2 OF THE CPC

The contention raised by the respondents is, inter alia, that O.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code of Civil Procedure, 1908. This is for the reason that when two out of the four appellants have instituted O.S. No. 36 of 1963, they scheduled only seven items in the said Suit. It was open to the appellants to claim the relief which they have claimed in the present Suit. Having not sued in respect of the items of properties other than the items scheduled in O.S. No. 71 of 1958, they are barred under Order II Rule 2 of the CPC. Order II Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim. Then, he is debarred from suing in respect of the portion so omitted or relinquished. A plaintiff entitled to more than one relief arising from the same cause of action, can do two things. He may sue in respect of all the reliefs arising from the same cause of action in the same suit. He may, if he omits to sue for one or more of the reliefs open to him under the same cause of action, seek leave of the court to sue for all such reliefs, and if the court grants such leave, then, he may institute a suit, though based on the same cause of action in the earlier suit, in a fresh suit. The effect of not seeking the leave of the court, however, in regard to any of the reliefs, which it was open to him to sue for on the same cause of action, is that, he is barred from suing for any other reliefs so omitted. The difference between Order II Rule 2(2) and Order II Rule 2(3) of the CPC may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit. However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order II Rule 2 (1) of the CPC which is that every suit is to include the whole of the claim which arises out of the cause of action and which the plaintiff is entitled to make. It further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order II Rule 2 (2) of the CPC. In this case, it is true that when O.S. No. 36 of 1963 was instituted, the earlier Suit brought by R. Krishnammal, viz., O.S. No. 71 of 1958, had culminated in a compromise Decree. A perusal of the plaint itself would show that the plaintiffs in O.S. No. 36 of 1963 have adverted to the compromise in O.S. No. 71 of 1958. They have averred in paragraph 7 of the plaint that under the compromise, R. Krishnammal was given the property scheduled in the said Suit (Suit No. O.S. No. 36 of 1963) in lieu of the properties comprised in the Will and some cash. The rest of the properties comprised in the Will were given-up by her in favour of the respondents (the sons of Lakshmiah Naidu) it is averred. Thereafter, it is averred that the defendants claim, i.e., R. Krishnammal claimed absolute title to the properties scheduled in the plaint and which was unsustainable both in law and facts. O.S. No. 36 of 1963 was filed seeking a declaration that R. Krishnammal had only a life estate without any powers of alienation and the appellants have a vested remainder in the said properties under the Will. The word ‘said’ obviously refers to the items scheduled in OS No.36 of 1963. The Suit (O.S. No. 89 of 1983) is fundamentally premised on the death of R. Krishnammal in 1977 and the blossoming of the full rights of the appellants under the Will. R. Krishnammal having a life estate under the Will was alive when O.S. No. 36 of 1963 was filed. The absolute right under the Will, in favour of the appellants, dawned only with the death of the life estate holder. [Paras 46-50][693-E-G; 694-C-H; 695-A, H; 696-A-C, H; 697A-B] Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 – relied on.

2.2 Section 119 of the Indian Succession Act, 1925 deals with the date of vesting of legacy when, inter alia, possession is postponed. Section 19 of the Transfer of Property Act, 1882 deals with vested interest. Vested interest is different from the contingent interest. The two have vastly different consequences. The death of R. Krishnammal being a certain event, the interest of the remaindermen is a vested interest. The commonality between Section 19 of the TP Act and Section 119 of the Indian Succession Act, and which is apposite to the facts of this case, is as follows:

When under the Will, a life estate was created in favour of R. Krishnammal with an absolute remainder in favour of the appellants, the legacy in favour of the appellants became vested from the time of death of the testator. The possession and the enjoyment of the property, however, under the Will, was the domain of the life estate holder, viz., R. Krishnammal as long as she was alive. She, however, had no right to enlarge the boundaries of her right under the Will. This is, no doubt, subject to the impact of supervening Legislation. By her unilateral act or by even joining together with the third party, it would not be open to life estate holder to defeat the rights of the remainder men. The significance of a case being covered under Section

119 Illustration (III), of the Indian Succession Act, is that with the death of the Testator, the right in the property becomes vested with the remainder men, from the time of death of the Testator. In other words, upon the death of the legatee under the Will, in whom the absolute right is vested after the transient possession and enjoyment of the life estate holder, a heritable right, which, in fact, arose at the time of the death of the testator, would confer legal rights upon the heirs of the absolute owner under the Will when succession to his estate opens, should he not wish to leave a Will behind. Though the right is vested in the property, the enjoyment of the property with the absoluteness of a full owner under the Will could be done by the appellants only after the death of R. Krishnammal. Having thrown light upon the words ‘absolute rights’ in the context of Section

119 of the Indian Succession Act, 1925, it is this right which was sought to be made subject matter of a Decree for declaration and partition. It is clear that in the year 1963 or till the death of R. Krishnammal, the rights as sought to be enforced, did not inhere with the appellants as explained. They could not have sought a partition of the plaint scheduled properties while R. Krishnammal was alive. [Paras 50-52][697-C; 698-A; E-H; 699-A-C]

2.3 Be it the omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), the fatal consequences they pose, will arise only if the cause of action is the same. Though the plaintiffs in O.S. No. 36 of 1963 could have sought a declaration about the compromise Decree in O.S. No.

71 of 1958, qua all the properties covered under the Will, in the facts of this case, the cause of Action in O.S. No. 36 of 1963 and the present Suit (O.S. No. 1989 of 1983) are clearly distinct. It is significant to note that the cause of action in OS No.36 of 1963 was the threat of alienation of the items scheduled therein. O.S. No. 36 of 1963 was more as a protective action by persons who had vested interest in the property under Section 119 of the Indian Succession Act, 1925. Cause of action is not to be confused with the relief which is sought. It has more to do with the basis for the relief which is sought. [Para 54][699-F-H; 700-A-B]

3.1 THE IMPACT OF THE PROCCEDINGS AND THE

DECREE PASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36 OF 1963 AND O.S NO. 732 OF 1981

ESTOPPEL, WAIVER, ACQUIESCENCE

O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal. Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The Fifth Defendant was the Executor of the Will. R. Krishnammal lay store by the Will executed by her late husband V. Rangaswami Naidu. In the alternate, she also claimed a Decree for Partition, virtually giving-up her right under the Will and on the basis that V. Rangaswami Naidu died intestate. The matter did not go to trial. It ended in a compromise. The substance of the compromise is, a few of the items mentioned in the Will, seven items were recognised as absolute properties of R. Krishnammal even though, under the Will, she had only a limited right over those items. R. Krishnammal, for her part, under the compromise Decree gave-up her rights in respect of the rest of the properties. The appellants were not parties to the compromise. Appellants were not tracing their rights under R. Krishnammal. Appellants were given an absolute right under the Will executed by their uncle V. Rangaswami Naidu. The bequest in their favour created a vested interest within the meaning of Section 119 of the Indian Succession Act, 1925. R. Krishnammal could not have also enlarged the rights of the branch of Lakshmiah Naidu, once she accepted the Will, for she had only a life estate over the properties covered under the Will. The appellants were also not bound by her acts in entering into a compromise seeking to confer absolute rights qua those properties, which were subject matter of the Will, in respect of which, they had the right to be enjoyed after the death of R. Krishnammal. O.S. No. 36 of 1963 came to be filed by two of the four appellants, who are Legatees under the Will. They sought a declaration to the effect that R. Krishnammal could not enlarge her right and she could not alienate the properties (the very seven items, which, under the compromise Decree of O.S. NO. 71 of 1958, were recognised as her absolute properties). It is true that the plaintiffs in O.S. No. 36 of 1963 did not choose to include the plaint schedule properties in the present Suit and seek a declaration qua them. There are two aspects to it, which this Court must bear in mind. Firstly, the cause of action for filing O.S. No. 36 of 1963 was alleged to be the apprehension that R. Krishnammal was about to alienate the seven items over which she acquired absolute rights under O.S. No. 71 of 1958 (in fact, it was alleged that one item was alienated). Secondly, paragraph-11 of the Plaint has already been noticed. Therein, the plaintiffs have revealed their mind to be that they intend to pursue their right qua other properties apparently which are the plaint schedule properties in O.S. No. 89 of 1983. As already indicated, the bar of Order II Rule 2 of the CPC will not apply. There is some merit in the contention of the appellants that the Decree passed in O.S. No. 36 of 1963 did involve watering down the terms of the compromise Decree in O.S. No. 71 of 1958. As on the date of the compromise in O.S. No. 36 of 1963, the position was that four, out of the seven items, had been alienated by R. Krishnammal, whereas, one property had been acquired by the Government. As regards Item Nos. 5 and 6 in the plaint schedule in O.S. No. 36 of 1963, the terms of the Will dated 10.05.1955, came to be reiterated. This is for the reason that in departure from the terms of the Decree in O.S. No. 71 of 1958, under which R. Krishnammal was conferred with the absolute rights in respect of Item Nos. 5 and 6, in regard to the very same items, under the compromise Decree in O.S. No. 36 of 1963, R. Krishnammal was only to enjoy the properties during her lifetime and without the power of alienation. In other words, the terms of the Will dated 10.05.1955 are seen reflected and reinforced by the compromise Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, there is no adjudication by the court. As to what is the expediency which led the parties to enter into the compromise Decree, may not be decisive of the legal rights of the parties which this Court is called upon to pronounce. The action of the branch of Lakshmiah Naidu, who had also joined as parties in O.S. No. 36 of 1963, and who were represented by the Counsel, may not obviate the need for proving the Will on the part of the appellants. [Paras 55, 56][700-D-G; 701-A-H; 702-AC]

3.2 In the compromise Decree in O.S. No. 36 of 1963, the plaintiffs have stated that they are not seeking any relief against the other defendants which include the Lakshmiah branch. From this, it is sought to be contended that the interest of the branch of Lakshmiah Naidu, which stood secured under the compromise Decree of O.S. No. 71 of 1958, whereunder R. Krishnammal had given up her rights in regard to all properties other than the seven items over which she was conferred absolute rights, was left undisturbed and unimpeached. This conduct is emphasised to point out that it would constitute a bar by way of principles, including estoppel and acquiescence for the appellants in instituting O.S. No. 89 of 1983 in regard to the plaint schedule properties over which R. Krishnammal had give-up all her rights in O.S. No. 71 of 1958. Even in the Plaint, in O.S. No. 36 of 1963, the properties, other than the seven items, were admittedly not the subject matter of the Suit. More importantly, what is stated in the compromise is that no relief is claimed against the other Defendants in the said Suit. It is equally true that by the passing of the Decree in O.S. No. 36 of 1963, the interest of the Lakshmiah branch was not imperilled. This is for the reason that in regard to Item Nos. 5 and 6 in O.S. No. 36 of 1963, over which the rights of R. Krishnammal were limited to a life estate with a taboo against alienation bringing it in tune with the terms of the Will under the Compromise did not matter for the branch of Lakshmiah Naidu. This is for the reason that as far as they were concerned, they were already bound by the compromise Decree in O.S. No. 71 of 1958 whereunder R. Krishnammal had been conferred absolute rights in regard to Item nos. 5 and 6, interalia, and they had lost all their rights. Therefore, the arrangement inter se between the appellants and R. Krishnammal, qua those properties, was of no concern to them. What they were interested in was the rest of the properties over which they were given absolute rights under the compromise Decree in O.S. No. 71 of 1958. The result is that on the one hand the terms of the Will came to be reiterated under the compromise Decree in O.S. No. 36 of 1963 qua Item Nos. 5 and 6. The Decree in O.S. No. 71 of 1958 was otherwise left untouched. The passing of a Decree in O.S. No. 36 of 1963, is a matter which is entirely between the appellants and R. Krishnammal. In fact, the Lakshmiah Naidu branch, though made parties to the compromise, were not actually parties to the Decree. They have not signed as parties to the compromise Decree. Therefore, neither the appellants nor the respondents can derive any advantage from either the filing of O.S. No. 36 of 1963 or the passing of the compromise Decree therein. The plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732 of 1981. The Lakshmiah branch (among the respondents in the appeals) were not parties. It was a Suit for partition of items 5 and 6 scheduled to O.S. No. 36 of 1963. It is obvious that they cannot rely upon principles of res judicata or constructive res judicata based on O.S. No.732 of 1981, being not parties to the said Suit. What, however, is sought to be urged, is that the premise, on the basis of which the Decree in O.S. No. 732 of 1981 was passed, is completely incongruous with the cause of action in the present Suit. In other words, it is pointed out that in O.S. No. 732 of 1981, the case set-up was R. Krishnammal had rights over the property and this was inconsistent with the case set-up in the present Suit. It was contended that the appellants were estopped from undertaking such a course of action. The following conduct could also be deduced. The cause of action in O.S. No. 732 of 1981 did involve drawing upon the rights secured (qua Item Nos.

5 and 6 in O.S. No. 36 of 1963) in O.S. No. 71 of 1958 whereunder the Lakshmiah branch acknowledged rights of R. Krishnammal who also gave-up her rights to properties which included the plaint schedule items in the case. Though, this Court is not oblivious to the dimensions projected, it would not think that Right to Property, if otherwise is established in favour of the appellants, it would be lost. It cannot be treated as a case of abandonment of rights qua the plaint schedule properties. The respondents who were not parties to O.S. No. 732 of 1981, cannot set-up a case of estoppel. [Paras 57][702-D-H; 703-A-H; 704-A] Sha Mulchand & Co. Ltd. (In Liquidation), By Official Receiver, High Court, Madras v. Jawahar Mills Limited Salem AIR 1953 SC 98 : [1953] SCR 351; Dr. Karan Singh v. State of J&K and Another (2004) 5 SCC 698 : [2004] 1 Suppl. SCR 43 – relied on.

4.1 WHETHER THE WILL DATED 10.05.1955 HAS

BEEN PROVED

[Sections 33, 68 and 69 of the Evidence Act]

The Will in question is an unprivileged Will. The mode of making an unprivileged Will is provided in Section 63 of the Indian Succession Act. In order that a valid Will be made not only, it is necessary that the Testator must execute the document but also the execution must be attested by at least two witnesses. What is required is not ordinary witnessing of a document but attestation which is as is provided in Section 63 of the Indian Succession Act. Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of a document required by the law to be attested. A perusal of the same makes it clear that in the case of a Will, being a document which is required to be attested by Section 63 of the Indian Succession Act, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence, then, the Will can be proved only if one of the attesting witness is called for proving its execution. Though the expression used in Section 69 of the Indian Evidence Act, 1872 is ‘if no such attesting witness can be found, inter alia, it bears the following interpretation’. The word ‘such’ before ‘attesting witness’ is intended to refer to the attesting witness mentioned in Section

68 of the Evidence Act. As far as the expression ‘found’ is concerned, it would cover a wide variety of circumstances. It would cover a case of an incapacity to tender evidence on account of any physical illness. It would certainly embrace a situation where the attesting witnesses are dead. Should the attesting witness be insane, the word “found” is capable of comprehending such a situation as one where the attesting witness, though physically available, is incapable of performing the task of proving the attestation under Section 68 the Evidence Act, and therefore, it becomes a situation where he is not found. In this case, there is no dispute that both the attesting witnessing were not alive at the relevant time. [Paras 58, 59, 61 and 64][704-B-D, E, G; 705A-B; 706-C]

4.2 The contention of the respondents appears to be only that, in the proceeding under Section 145 of the CrPC, 1898 (first stage of litigation), the tussle was between R. Krishnammal and the Executor of the Will who were styled as A Party Nos. 1 and 2 and the B Party, viz., the respondents. The present appellants were not parties. Therefore, the proceeding was not between the same. The other limb of the first proviso to Section 33, viz., that in order that Section 33 of the Evidence Act applies, the proceeding is between their representatives in interest is not fulfilled. The contention seen raised is that the appellants, who are the remainder men under the Will, cannot be treated as representatives in interest of R. Krishnammal. Further the nature of Section 145 proceedings is highlighted as not one attracting the 3rd proviso. The word ‘representative in interest’, in other words, is to be understood liberally and not confined to cases where there is privity of estate and succession of title. Answering the two tests, which have been evolved in the facts of this case, the respondents cannot contend that the interest of the appellants was inconsistent with the interest of R. Krishnammal and in particular the executor of the Will. It was certainly not antagonistic to their interest. The Will was indeed set-up by R. Krishnammal and the executor. Therefore, it can be safely concluded that the interest of both persons comprised of A Party, which was the protection of the possession, was also in the interest of the appellants. It may be true that the appellants do not derive their title under R. Krishnammal. But the requirements under Section

33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. It cannot be contended that the interest of the appellants lay in answering the question posed in Section 145 of the CrPC proceedings against R. Krishnammal and the Executor in favour of the respondents, who were parties before the Magistrate. The case of the Will was explicitly set up as also the declaration dated 10.5.1955 and further developments. Therefore, the contention based on the third proviso also does not appeal. Also not only was there opportunity to cross examine to the B party, it was availed of. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding. On this basis, as Exhibit-B7 (deposition of the one of the attesting witnesses in the Will, in proceedings under Section 145 of the CrPC) and even B13 (deposition by the Executor) indeed is evidence which was tendered in the previous proceeding before the Magistrate who was certainly authorised by law to take evidence, which is relevant for proving the truth of the facts contained therein under Section 33. [Paras 66-68][707-D-F; 708-G-H; 709-A-E]

4.3 Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness. The requirement in Section 69 of the Evidence Act would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section

69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section

69 of the Evidence Act. In short, in a case covered under Section

69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section

69 of the Evidence Act. [Paras 70, 71][710-C-H; 711-A]

4.4 Section 69 speaks about proving the Will in the manner provided therein. The word ‘proved’ is defined in the Evidence Act in Section 3. The question would be whether having regard to the evidence before it, the Court can believe the fact as projected in the evidence as proved. In a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. In other words, the reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over. As far as this case is concerned, the evidence of one of the attesting witnesses is contained in B7 and which is found relevant under Section 33, establishes that he was an Income Tax Practitioner. He was beckoned by Rangaswami Naidu, informing him that he had written a Will and it was to be attested. He was asked to in fact to attest even upon going there on that day. He speaks about the testator signing on every page and also, he has spoken about him signing. He establishes requirement of Section 69 in regard to the signature of one of the attesting witnesses being proved in his handwriting. There is no reason to doubt the testimony. As far as signature of the testator is concerned, apart from B7 and B13, the executor has spoken of the testator signing. Also, PW1 (the witness on behalf of the respondent) has deposed that the Will was shown to him he admitted that every page is contained with the paternal uncle signature. Thus, the requirement of proof of Will under Section

69 are fulfilled. [Paras 73, 74][712-B-H]

5. WHETHER RECEPTION OF B10 (CERTIFIED COPY

OF THE WILL) AS SECONDARY EVIDENCE LEGAL?

The original of the Will according to the case of the appellants continued to be with the executor who was in fact the nephew of R. Krishnammal, the widow of Rangaswami Naidu. An attempt was made to get the original Will produced at the relevant time when the executor had passed away, on the basis that his son was in possession of the original Will. He was called upon to produce the Will by C1. He responded by pointing out that he was not having the original Will with him. The finding of the Trial court as affirmed by the First Appellate Court is that circumstances warranted admission of secondary evidence to prove the Will. There is no reason to take a different view and the view taken by the High Court cannot be sustained. It may be true that in the proceedings in O.S. No. 71 of 1958 and O.S. No.

36 of 1963, the Will was projected first by R. Krishnammal and thereafter, the plantiffs in O.S. No. 36 of 1963 who are among the appellants before this Court. However, the matter did not go to trial. The Will must be proved under the Evidence Act and not with reference to plea of estoppel as taken by the appellants based on the decree in O.S. No. 36 of 1963, being based on the Will and the respondents having participated not as parties even to the compromise but it is a far cry from finding that the facts of the case did not warrant admission of secondary evidence regarding the Will. [Paras 76, 77][713-C-G]

6. THE WILL: WHETHER IT IS THE GENUINE WILL

OF RANGASWAMI NAIDU? WHETHER IT IS VITIATED ON ANY GROUND?

Rangaswami Naidu was an educated man. He was a former M.L.C. He was an affluent man. He has no issues. He was affectionate towards his sisters. He has chosen to favour each branch of his sisters by selecting one son out of each branch to be the legatees in whom the property were to vest. In fact, he has also provided that the properties are to remain in the family and should any of the legatees wish to sell, it should be offered to the other legatees. As far as his health is concerned, it is well settled that the requirement of sound disposing capacity is not to be confused with physical well-being. A person who is having a physical ailment may not therefore be robbed of his sound disposing capacity. The fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will. What is important is whether he is conscious of what he is doing and the will reflects what he has chosen to decide. While it may be true that he was suffering from cancer of the throat there is nothing to indicate in the evidence that he was incapable of making up of his own mind in the matter in leaving a will behind. The fact that he was being fed by a tube could hardly have deprived him of his capacity to make a will. The will is a registered will. The Registrar came home. Exhibit X1 would show that Rangaswami Naidu on being asked to put his thumb impression, he insisted on signing. This course of conduct has been correctly appreciated by the first appellate court, the final court on facts. The inference to the contrary sought to be drawn does not appeal. From the evidence, it is also clear that the other attesting witness was Dr. C.S. Ramaswamy Iyer a fairly renowned Physician and family friend. PW1, the witness on behalf of the respondent has himself admitted publishing the obituary on the passing away of the said doctor. PW1 speaks about him as a gentleman and he won’t act illegal manner. In B7 the other attesting witness has also spoken about the doctor remaining there and no doubt leaving before the Registrar came. It has already been held that the requirement of Section 69 of the Evidence Act stands fulfilled otherwise. The fact that no bequest is made in favour of the sons of Lakshmiah Naidu cannot be treated as a suspicious circumstance. It is clear that Lakshmiah Naidu was extremely wealthy. Making the nephew of his wife executor of the will, in fact, does assure of the absence of any foul play on the part of the legatees. In his evidence [B13 which is the evidence given by the Executor in 145 proceedings], he has spoken about the testator expressing his desire on 2-3 occasions about wanting to executing a will. From the evidence adduced by PW1 also, the view taken by the first appellate court regarding the will cannot be characterized as a perverse one warranting interference in the second appeal. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. The evidence of PW1 would show that the respondents have failed to prove that the will is vitiated in this regard. Therefore, the will was indeed executed by R. Naidu and was his last will. The case of the appellants is based, in fact, on their having been an oral partition between the two brothers in the year 1932. Three Courts have found no merit in this contention. In fact, the appellants also did not pursue this line of argument before this Court. On the other hand, the contention which is pressed is that when such succession opened to the estate of Rangaswami Naidu on 01.06.1955, Rangaswami Naidu having published B1 notice dated 10.05.1955, a disruption of the joint family was effected and, therefore, Rangaswami Naidu died separate from his brother. Still furthermore, the appellants case is founded upon B10-Will executed and also got registered on 10.05.1955 by Rangaswami Naidu.[Paras 82, 83 and 85][716-D-H; 717-A-E; 718-A-C]

7. IS THERE CONFLICT BETWEEN KALYANI (DEAD)

BY LRS V. NARAYANAN AND OTHERS [AIR 1980 SC 1173] AND BHAGWANT P. SULAKHE V. DIGAMBAR GOPAL

SULAKHE AND OTHERS [AIR 1986 SC 79]

The Trial Court, in this case, has laid store by the observations of this Court to the effect that as long as joint family property is in existence and is not in partitioned, the character of the joint family property does not change. It concluded that even if division is brought about by issuance of B1, the properties of the joint family consisting of V. Rangaswami Naidu and his brother remained joint and it could not be arrogated by V. Rangaswami Naidu as his. The first appellate court distinguished the decision by stating that it turned on in facts. There is really no conflict as such. Partition has two shades of meaning in Hindu Law. In the one sense, partition is the first step which would ordinarily culminate in a metes and bounds partition. In a coparcenary, there is joint tenancy. A Hindu Coparcenary, which cannot be created by agreement between parties but is the creation of law, can be disrupted or a division is caused by a unilateral declaration by a coparcener to put an end to the joint family. What the coparcener has to produce before the division, is an interest, as has been referred to in both Sections 6 and 30 of the Hindu Succession Act. Upon a declaration being made, expressing intent to separate without anything more but no doubt on communication of the same to the other coparcener/coparceners, partition in the above sense viz. causing a division of title takes place. The partition in the aforesaid sense has far-reaching consequences. The joint tenancy, which includes the concept of Right to Inherit by Survivorship, is terminated with the partition being effected in the first sense. If the coparcener dies after causing such a partition, as the right on the basis of Doctrine of Survivorship is annihilated, his death, after such partition, would result in his heirs becoming entitled to succeed. In that sense, joint tenancy would be replaced by tenancy in common but that is not the same as saying that the properties of the family, where there has been a partition in the first sense, will without anything more stand transformed into the separate and exclusive properties of the divided members. This Court is unable to subscribe to the view taken by the First Appellate Court that the principles of law, which are contained in paragraph-14 of the Judgment (in Bhagwant P. Sulakhe case) are merely to be understood in the special facts of the said case. Partition, in a broader sense and as is commonly understood, is the division of the properties in accord with the shares. [Paras 97, 98 and 101][733-C-E; 734-C-G; 734-A]

Kalyani (Dead) by LRs. v. Narayanan & Ors. [1980] 2 SCR 1130; K.S. Palanisami (Dead) through LRs. & Ors. v. Hindu Community in General and Citizens of Gobichettipalayam & Ors. (2017) 13 SCC 15 : [2017]

4 SCR 511; Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe AIR 1986 SC 79 : [1985] 3 Suppl. SCR 169 – referred to.

8.1 WHETHER A HINDU COULD MAKE A WILL?

WHAT WERE THE LIMITS ON HIS POWER TO

EXECUTE A WILL? ARE THERE ANY CHANGES BROUGHT ABOUT BY ENACTING SECTION 30 OF THE HINDU

SUCCESSION ACT, 1956?

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

(b) Section 57. It is thus that after 1 st of January, 1927 in the matter of an unprivileged will executed by a Hindu, the requirement of Section 63 which includes attestation of such a will by a minimum of two witnesses became mandatory. Thus, the execution of a will by a Hindu also came to be regulated from the 1st of January, 1927. Even prior to Hindu Succession Act, a Hindu could execute a will bequeathing his separate and self-acquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise. In the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest. The reason for saying this is as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare. [Paras 102, 104 and 106][735-C-H; 736-A, D-E; 739-A-B]

M.N. Aryamurthy v. M.D. Subbaraya Setty (1972) 4 SCC 1; Jalaja Shedhti & Ors. v. Lakshmi Shedhti & Ors. (1973) 2 SCC 773 : [1974] 1 SCR 707; Hardeo Rai v. Sakuntala Devi & Ors. (2008) 7 SCC 46 : [2008] 7 SCR 1 – referred to.

“Mulla on Hindu Law” 23rd Edition Page 341-342 (Para 228) – referred to.

8.2 Even under the law prior to Hindu Succession Act there could be four situations. In regard to a member of a joint Hindu family who also has his separate property he could bequeath his separate property. As far as joint family property is concerned, there could be three situations. The first situation is where the family remains joint in which case the coparcener would have an interest. As far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act. The second situation is in a case where there is a disruption in title or a division in status. That is there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. When such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. This may or may not be accompanied simultaneously with a metes and bounds partition. In such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. The share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. This power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act. The third scenario would be a situation where following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act. In fact, the property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. As regards the effect of a son born after partition this Court need not pronounce on the same. After the amendment to the Succession Act 2005 including the daughters of a coparcener as coparceners in their own right, if a Hindu has a female issue then the property allotted to him on partition will partake of the nature of coparcenary property. After the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. [Para 107, 108][739-G-H; 740-A-G; 741-C-D]

“Mulla on Hindu Law”: 23rd Edition [Para 228 clause

(6) at Page 342] – referred to.

9.1 THE IMPACT OF THE HINDU WOMENS RIGHT

TO PROPERTY ACT, 1937 (XVIII OF 1937)

Section 3 of the 1937 Act applies when a Hindu dies intestate. Section 3(1) of the 1937 Act deals with the case of the Hindu dying intestate leaving behind separate property. In such a situation, should there be one widow, she became entitled in respect of the property to the same share as the son. This was made subject to sub-Section (3) which declares that, the interest devolving on her, would be a limited interest known as Hindu Woman’s Estate. The more important change that was brought about is located in Section 3(2). Thereunder, when a Hindu governed by any School of Law, other than Dayabagha or Customary Law, dies, leaving behind at the time of his death, an interest in a Hindu Joint Family property, his widow is conferred the same interest as her husband had. This is again made subject to the provision of sub-Section (3) which makes it a limited interest known as the Hindu Woman’s Estate. The Legislature had not used the words “dies intestate” in Section 3(2), whereas, in Section 3(1), the Legislature contemplated a situation, where a Hindu could bequeath his separate property and has taken care to provide only for a contingency where he died intestate. No doubt Section 2 proclaimed that Section 3 was to be applied when a Hindu died intestate. When it comes to Section 3(2), in regard to a case covered by Mitakshara law, the Legislature has, in keeping with the law as then prevailing, recognised that a Hindu could not execute a Will in regard to his interest in a Hindu Joint Family. It is this concept, which has been swept away by enacting the Explanation to Section 30 of the Hindu Succession Act, whereunder, it is open to a Hindu to even bequeath his interest in the Hindu Joint Family property. Coming back to Section 3(2) of the Hindu Women’s Right to Property Act, the Legislature has advisedly chosen the words “interest in the Hindu Joint Family property”, which may be contrasted with the provisions under Section 3(1), which contemplates the Hindu leaving behind separate property. Therefore, Section 3(2) contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply. A Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.The position at law may therefore, may be culled out as follows:

With the passing of the 1937 Act, in areas to which it applied, an intrusion was indeed made upon a coparceners right to set-up a claim to the property of a deceased coparcener based on the Doctrine of Survivorship but the Act did not annhilate the said Right. The Right to claim by Survivorship came to be suspended but not extinguished. The widow, though not a coparcener, was like a coparcener in most respects. She was also conferred with the right to claim partition. As long as she did not claim partition and the property remained intact upon her death, the Right to Claim by Survivorship which stood eclipsed, revived and the coparceners would become entitled to the property on the basis that succession opened as if the coparcener died when the widow died. On the other hand, if the widow claimed partition, her interest transformed into a defined interest and the Right to Claim by Survivorship, which stood suspended, was destroyed. The property would then enure to the heirs of the husband. It is also to be noted that, by virtue of Section 3(2), there is no rupture in the coparcenary. There is no division brought about by Section 3 (2) of the 1937 Act, in other words.

The Court must also not be oblivious to two developments which took place after succession opened to the estate of V. Rangaswami Naidu on 01.06.1955. The Hindu Succession Act, 1956 containing Section 14 came to be passed. Secondly, R. Krishnammal the widow, filed O.S. No. 71 of 1958 wherein as an alternate prayer, she sought partition. The principle which has been laid down about the effect of a demand for partition by a widow in whom the Right came to be vested under Section 3(2) of the 1937 Act has already been noticed. But, the supervening Legislation in the form of the Hindu Succession Act, if it did confer absolute rights under Section 14(1), it is a matter of law as to what was the nature of the Right R. Krishnammal possessed, even when she instituted O.S. No. 71 of 1958. It is clear that when succession opened to the estate on 1.6.1955 if Section 3(2) applied, then Lakshmiah Naidu would have only a suspended right of survivorship. There is the compromise decree in OS 71 of 1958 under which R. Krishnammal has given up all her rights in the plaint schedule properties in favour of the Lakshmiah branch. [Para 108][742-F-H; 743-A-F; 745-B-H; A-B]

Satrughan Isser v. Sabujpari and Others AIR 1967 SC

272 : [1967] 1 SCR 7 – relied on.

8.2 The legislative recognition of this concept of ‘interest’ in joint family is found in Section 6 of the Hindu Succession Act. Section 6 prior to its substitution by Amending Act 39 of 2005 provided that in the case of male Hindu dying after the Act possessing an interest in Mitakshara coparcenary property, the property was to devolve by survivorship, subject to the proviso. What is of greater relevance is the terms of explanation. The terms of the explanation I as it stood which is retained as the explanation in sub-section (3) of Section 6 after the amendment. Therefore, the concept that what a coparcener in a Mitakshara family had prior to partition, is an interest, is reiterated. For the purpose of Section 6, however, in order to determine the extent of that interest it is deemed to be the share which he would get if there was a notional partition just prior to his death. Partition in the sense of a disruption however determines the extent of share which would devolve under Section 8 of the Act. It is made clear that this Court must not be treated as having pronounced that the notional partition contemplated under the explanation to Section 6 is meant to bring about the demise of the coparcenary as such. The Explanation to Section (30) also speaks of ‘interest’ as being ‘property’ which a Hindu could after the Hindu Succession Act bequeath. [Paras 109, 110][746-B-G]

10.1 WHAT IS TITLE OF V. RANGASWAMI NAIDU,

WHICH HE COULD PASS?

The claim that V. Rangawami Naidu acquired title to the properties by way of oral partition, cannot be accepted. The claim that he had acquired properties by way of self-acquisition, also may not stand. If there has been a disruption in the family status, partition in the narrow sense of a division in title takes place. The mere fact that there is a division effected in the joint family, would not mean that, in law, V. Rangaswami Naidu could claim exclusive and absolute ownership qua the items covered under the Will. The plaint schedule properties are, admittedly, part of the properties scheduled to the Will. The result would be that, in terms of the legal principles applicable, V. Rangaswami Naidu did not have exclusive right as such qua the properties scheduled under the Will. In this case, having regard to the alternate case set-up based on the rights available to R. Krishnammal, and noticing that some items out of the Will were recognised as her own, and the other items which included items which were included in the Will and also part of the larger joint family property, she has given-up her rights, it cannot be characterised as not using of the opportunity by the Lakshmiah branch to challenge the unilateral allocation by V. Rangaswami Naidu. [Paras 112, 117][747-C-F; 749-G-H; 750-A]

10.2 What would be the position after bringing about a division in title but before there is a partition of the property by metes and bounds? During the interregnum, the properties of the family would continue to remain joint. Unless there is a partition, qua, the properties, though the shares are ascertained by the partition in the sense of a division in the joint family, no coparcener could point to any specific item and claim it to be his. In the case of an alienation by a Hindu, even if it is of a specific property belonging to the joint property, it would be dealt with on an equitable basis, should the alienee bring an action to enforce the same in a properly constituted Suit. The sale of such a right even over specific immovable property by a coparcener in a Mitakshara Hindu Joint Family does take effect in law where it is permitted and it would not be a case of a void transaction. The purpose of undertaking this discussion is to appreciate the law relating to the power of the coparcener to transfer specific items even if there has been no partition in the sense of a division of title so that this Court is in a better position to appreciate the question as to whether in a case where a Hindu executes a Will prior to the Hindu Succession Act could, he, by a Will, after a division is brought about in the family bequeath specific immovable property. The real principle on the basis of which the interest of a coparcener in a Joint Hindu Family could not be the subject matter of a valid bequest was that the bequest would come into collision with the right to claim property by survivorship vested in the other coparceners upon their birth. Thus, it is a case of a prior right taking precedence over the bequest which can come into force only not from the date of the making of the Will but upon the death of the Testator. This distinction, has apparently allowed courts to recognise an inter-vivos alienation which is possible only when the coparcener is alive of his interest in the Joint Hindu Family as it does not involve a conflict between the right by survivorship and rights sought to be created by the coparcener. However once there is a division, then right by survivorship ceases and there can be objection to said principle applying to a bequest of a specified immovable property. In fact, the case of a will made after division of specific immovable property stands on a different footing and the objection that the sale is by a coparcener when the joint family exists does not hold good. The Legatee under the Will, left behind by a Hindu after there is division in the family status in regard to specific properties belonging to the family, would indeed have rights qua the property but limited to the share of the Testator. It cannot be a principle of law in the region of controversy that a man cannot ordinarily transfer a right greater than what he himself has. Even under the Indian Succession Act, under Section 59, there could be no prohibition in V. Ranagaswami Naidu bequeathing his share, if there was division. In a bequest, the equitable consideration available to a transferee by an intra-vivos transaction, wherein he has paid valuable consideration, may not apply. But this cannot mean that, if everything else is proved, the legatee should be left remediless. This Court did toy with the idea of considering holding in favour of the appellants even treating it to be an exercise of powers under Article 142 of the Constitution of India in the special facts of this case as brought out by the testimony of PW1 as regards the inequity involved. No doubt, the frame of the Suit is found hardly helpful to the appellants. But having regard to the fact that the appellants must fail otherwise, this Court need not explore this matter further. [Paras 120, 123, 124 and 128][751B; 754-D-G; 755-A-C; 756-D-G] Sidheshwar Mukherjee v. Bhubaneshwar Prasad Narain Singh and Others AIR 1953 SC 487 : [1954] SCR 177; M.V.S. Manikayala Rao v. Narasimhaswami and Others AIR 1966 SC 470 : [1966] 1 SCR 628 – referred to.

Aiyyagari Venkataramayya and Another v. Aiyyagari Ramayya (1902) ILR 25 Madras 690; Venkatachela Pillay v. Chinnaiya Mudaliar (1870) 5 M.H.C.R. 166 – referred to.

11. DOES THE WILL EFFECT A DIVISION?

The Will starts off with the statement by the Testator that he owned the properties which included properties allotted in a partition and also which he acquired by independent purchases. Thereafter, he states that he had been a divided member since 1932 onwards. None of these statements would constitute a declaration. The case of partition in 1932 and independent purchases have been found against the appellants by three courts. Thereafter, there is only the statement that he has, in order to avoid any uncertainties, made an open declaration of his divided status ‘today’. It may be difficult for this Court to accept this statement as a declaration sufficient in law to cause a division. However even for a moment that it would work out as a declaration, the law laid down by this Court in Addagada Raghavamma, may pose obstacles insuperable in nature, for the appellants. While it may be true that under the Doctrine of Relation Back and proceeding on the basis that the contents, as noted in the Will, amounted to a clear declaration to separate and that it would have effect from 10.05.1955, this Court cannot be oblivious to the creation of the vested rights. If the matter is to be governed under Section 3(2) of the 1937 Act, as already noted, it must be a case where V. Rangaswami Naidu died intestate. Therefore, if this Court proceeds on the basis that there is a Will as indeed it must to accept the case of the appellants, Section 3(2) will not apply. If Section 3(2) does not apply, the claim to the property by survivorship, would arise, which would be fatal to the appellants case. In the facts of this case, in view of the division being communicated through the Will only after the succession had opened, and even allowing for the division to have effect from 10.5.1955 when the will was made, the vested right of Lakshmiah Naidu to claim by survivorship would spring into existence on 01.06.1955 when his brother died and the subsequent communication based on the Will cannot take away vested right which became available proceeding on the basis of the Will relating to the plaint schedule properties [Para 130][758D-H; 759-A-C]

Addagada Raghavamma and Ors. v. Addagada

Chenchamma and Ors. AIR 1964 SC 136 : [1964] 2 SCR 933 – relied on.

12. WHETHER THERE IS LACK OF PLEADING ABOUT

B1 CAUSING A DIVISION IN THE JOINT FAMILY?

In the facts of this case, the principle that no amount of evidence can be looked into, if there is no pleading, is in apposite. As to how the joint family status was disrupted or as to whether there was no division in status, is essentially a matter of evidence. The mere fact that it is not specifically averred, as to the mode by which the division was brought about is not fatal to the appellants case, if it is otherwise established. [Para 137][761-EF]

13. WHETHER THE CONTENTS OF B1 AMOUNT TO

A DECLARATION TO EFFECT DIVISION

That there was no oral partition is found unassailable. Therefore, the statement in B1, about the same, needs to be ignored being incorrect but the last sentence is capable of standing as a stand alone statement. The use of the word ‘also’ appears to be deliberate. It would also probablise that there was legal advice which preceded both making the Will and the drafting of the Notice. B10-Will contains the statement about having made a notice. As long as the coparcener wishes to separate, he is not required to give any reason to separate.[Paras 138, 139][761-GH; 762-D]

14. WHETHER THERE WAS COMMUNICATION TO

THE OTHER COPARCENER

108. B1 has been marked in the Trial Court as dated 12.05.1955. The entire case of the appellants is that the notice was issued on 10.05.1955 and it was published in a newspaper “Navva India” as, admittedly, there is no case for the appellants that the intention to separate, was given by way of a notice directly to V. Lakshmiah Naidu. It was the case of the appellants that noticing the notice in the newspaper, Lakshmiah Naidu responded by issuing a communication dated 11.05.1955, disputing the partition.Still further, the appellant’s case is sought to be built around the communication, by V. Rangaswami Naidu on 16.05.1955 to Lakshmiah Naidu reiterating contents of B1. The contents of B1, having regard to the last part, would be sufficient to cause a division in the status of the joint family. The question is whether it was communicated, as is required in law. On the one hand, the communication set up by the appellants dated 11.05.1955 and 16.05.1955 are not produced. This shortcoming is sought to be overcome by the appellants by relying upon the case set up by ‘A’ Party (‘A’ party no. 1 was R. Krishnammal, the widow of Rangaswami Naidu and ‘A’ party no. 2 was R. Krishnammal’s nephew and the executor of the Will) as revealed in B2, the order passed by the Magistrate under Section 145 of the CrPC. Regarding B2-Order, passed under Section 145 of Cr.PC a contention is raised that it is not relevant under Section

40 to 43 of the Evidence Act. This question is not seen raised in the courts below. It may be true that Section 40 deals with previous judgments which would constitute a bar to the fresh proceedings and B2 is, therefore, not relevant under Section 40 of the Evidence Act. Section 41 also deals with judgments rendered in probate, matrimonial, admiralty or insolvency jurisdiction, which has the effect mentioned in Section 41 of the Evidence Act. It is clearly inapplicable to the facts of the case. Section 42 deals with decisions being relevant if they relate to matters of public nature relevant to the inquiry. It is also not relevant. During the hearing, it was pressed before this Court by the respondents that B1 is dated 12.05.1955 and if it is 12.05.1955, the very edifice of the appellant’s case would fall to the ground as then it would be impossible to support the position that in response to the notice which is published on 12.05.1955, the reply could be given on the previous date, i.e., on 11.05.1955 by Lakshmiah Naidu. It is here that the non-production of the letters dated 11.05.1955 and 16.05.1955, are sought to be emphasized. This Court did call for the records to verify whether marking of the documents B1 dated 12.05.1955 was a mistake or it did reflect the ground reality. It is found from B1 that Notice is published in the newspaper which is dated 12.05.1955. Therefore, the marking of the document B1, as dated 12.05.1955, is not a mistake. There is a reference in the Will to the publication of the Notice on the said date. The Will is dated 10.05.1955. It appears quite clear that the Will would not have been written on 10.05.1955. It is, no doubt, executed on 10.05.1955. Having regards to the details in the Will and the other circumstances, this Court is inclined to believe that it would have been drafted earlier. Equally, publication of a matter in a newspaper would have been arranged earlier. But what is important is, not merely the intention of the Testator as a coparcener to declare his mind to the other coparcener to separate, and even have it set-out in the Will, and further even going a step further, getting it published, but it must be proved further that, before the Testator passed away, the matter contained in B1 was known to the other coparcener, viz., Lakshmiah Naidu. This requirement is indispensable.There is no case that the Notice was published on two days, viz., on 10.05.1955 and 12.05.1955. What is evidence produced before the Court is B1, which is dated 12.05.1955. If that is so, despite the inferences one could possibly draw from the deposition of PW1, it would bring it into collision with the evidence before this Court. If this Court proceeds on the basis of B1, which is dated 12.05.1955, then, the reply being sent on 11.05.1955, becomes impossible. If there is no reply sent on 11.05.1955, then, it will not be possible to attribute communication of the Notice to separate to Lakshmiah Naidu. In such circumstances, this Court would agree with the High Court that the case relating to B1, though there is a publication made, knowledge of the same cannot be attributed to Lakshmiah Naidu, before the death of his brother. It is not being held for a moment that a Notice in a newspaper cannot serve as a Notice by a coparcener to effect division. However, merely causing a Notice to be published, without there being evidence to show that the intended recipient became aware of it, may not suffice. Though a Notice in a newspaper is purported to serve as Notice to the general public, what is required is Notice to the concerned coparcener. There cannot be a presumption that a person has read a particular newspaper, and even more importantly, that he has read the Notice. Even the case of the appellants appears to be that, on seeing the Notice dated 10.05.1955, the communication dated 11.05.1955 was sent by Lakshmiah Naidu, which this Court found unacceptable, having regard to B1 being dated 12.05.1955. The importance of the reply dated 11.05.1955 was that it would establish knowledge of the Notice by Lakshmiah Naidu. There is no evidence that the Notice published in the newspaper dated 12.05.1955 was known to Lakshmiah Naidu before his death. Since there was no division brought about by V. Rangaswami Naidu before his death in view of the above discussion, the Will would be invalid and therefore it would be the end of the road for the appellants. It is to be remembered that Rangaswami Naidu died on 1.6.1955, which was before the enactment of Hindu Succession Act, 1956. Thus, when he died, he left behind an interest in the Hindu joint family. When succession opened to his estate, it is therefore, the provisions of Section 3(2) of the Hindu Women’s Right to Property Act, 1937 which apply. A limited estate in other words sprung into being in favour of R. Krishnammal, his widow. This estate would bloom under Section 14 (1) of the H.S.A. into an absolute estate. When she compromised in OS 71 of 1958 giving up her rights over the property which included the plaint scheduled property in these cases, it conferred absolute rights in favour of the Lakshmiah Naidu branch. The effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into force is again reiterated to be that it would deprive persons of rights available in respect of a Hindu who dies intestate after the Act came into force. [Paras 140, 142, 147, 148 and 153][762-E-H; 763-A, C-E; 765-C-H; 767-F-H; 766-A; 768-A-G]

15. SECTION 14 (1) VERSUS 14 (2) OF HINDU

SUCCESSION ACT 1956

It is recited in the Will that the properties mentioned in ‘A Schedule’ are bequeathed to his wife, no doubt, for her life. This is a case where the Will itself specifically recites that she is to take income from the properties for her expenses, inter alia. She is to make use of the income also for giving presents to his sisters on ceremonial occasions. Therefore, this is a case where the very document, which the appellants lays store by, makes it unnecessary to search for any evidence to find out what is the purpose of giving the property. The Testator has made his motive clear. The argument of the appellants that the very same document refers to the fact that she has been given other properties towards her maintenance, does not detract from the central question as to what impelled the Testator to create the life estate. The Will was executed on 10.05.1955 which is prior to the Hindu Succession Act unlike in the case of Sadhu Singh. Obviously, such a Will could not have been executed anticipating the provisions of Section 14(2) of the Hindu Succession Act. R. Krishnammal was certainly entitled to maintenance and the bequest in question expressly refer to the purposes. The properties involved were not bequeathed to R. Krishnammal without her having any right at all. The Will did not purport to bequeath property by way of creating new rights in the facts of this case. Even the case of the appellants is that she was provided for maintenance by giving her other properties as indicated in the Will. If the argument of the appellants is to be accepted, the Court would have to consider the quantum of maintenance which the Testator would consider appropriate. The extent of the other property is not shown. Such an exercise is unnecessary when the terms of the Will indicate that the Testator intended that his widow should be able to maintain herself appropriately from the income of the properties he was bequeathing to her also, and for that purpose, created, no doubt what can be described as, a limited estate. In such circumstances, the view taken by the High Court that Section 14(1) of the Hindu Succession Act applies, cannot be characterised as erroneous. [Paras 167, 169][780-B-G; 781E] Sadhu Singh v. Gurdwara Sahib Narike and Others (2006) 8 SCC 75 : [2006] 5 Suppl. SCR 799 –

distinguished.

C.Masilamani Mudaliar and Others v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and Others AIR 1996 SC 1697 : [1996] 1 SCR 1068 – relied on.

16.‘POSSESSED’ OF IN SECTION 14(1) OF HINDU

SUCCESSION ACT, THE PLEADING AS TO POSSESSION OF THE PLAINT SCHEDULE PROPERTY IN O.S. NO. 89/83 AND O.S. NO. 71/58 AND ITS IMPACT.

In Eramma, this Court has made it clear that Section 14(1) of the Hindu Succession Act does not confer title on a mere trespasser. It does not confer any right on a person possessing property without any vestige of title. These remarks are made in the context of the following set of circumstances: Following the death of her husband on 01.06.1955, there are two streams providing right to make a claim over the property in favour of R. Krishnammal, when the Hindu Succession Act came into force. Under the Will, she was conferred with a life estate. If the Will is treated as non-existent or invalid, then, again there can be two situations. Her case would fall to be covered either under Section 3(1) or 3(2) of the Hindu Women’s Right to Property Act, 1937 depending on whether the property was separate property of V. Rangaswami Naidu or an interest in the Joint Hindu Family Property. She was also having a right to be maintained. Therefore, in the facts of this case in view of the finding that the properties bequeathed under the Will and which are the plaint scheduled properties are not the separate properties of Rangaswamy Naidu, she would have the right to the properties under Section 3(2) of the 1937 Act. This is observed for the reason that when the Hindu Succession Act came into force, R. Krishnammal had lost her tussle under the proceedings under Section 145 of the CrPC. The nature of the pleading which she made in O.S. No. 71 of 1958 has also been seen. She specifically states it that she is entitled to recover possession of the property. No doubt, she does aver that she is entitled to treat herself as in joint possession. The decision in Kotturuswami case, in fact, came to be considered by another three Judge Bench of this Court in Mangal Singh and Others v. Smt. Rattno (Dead) by her legal representatives and another AIR 1967 SC 1786. Noticing Section 14 (1) of the Act and that it covered property possessed by a female Hindu whether acquired before or after the commencement of the Act the Court proceeded to explain the circumstances in which the decision in Kotturuswami case was rendered. In fact, this decision was not referred to by the two Judge Bench which rendered the decision in Sadhu Singh. However, it has been adverted to in AIR 1996 SC 172 (para 14) and a very recent judgment of this Court in Shyam Narayan Sigh and Ors. vs. Rama Kant Singh and Ors. reported in 2018(1) RCR (Civil) 981 rendered again by a Bench of two learned Judges. In view of the dicta in Mangal Singh, this Court feels reassured of its view that Section 14(1) applies. [Para 173][783-E-H; 784-AB, E; 785-C-E] Eramma v. Veerupana AIR 1966 SC 1879 : [1966] 2 SCR 626; Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Others AIR 1959 SC 577 : [1959]

1 Suppl. SCR 968; Shyam Narayan Sigh and Ors. v. Rama Kant Singh and Ors. 2018 (1) RCR (Civil) 981; Mangal Singh and Others v. Smt. Rattno (Dead) by her legal representatives and Another AIR 1967 SC 1786 : [1967] 3 SCR 454 – relied on.

CIVIL APPEAL NOS. 1045-1050 of 2013

The appellants claim on the basis of sale deeds executed by A. Alagiriswami, who is the First Defendant in both the Suits. The case, which is sought to be set-up is that, there was a partition among the Legatees of the plaint schedule properties and the properties purchased by them, was among the properties allotted to the First Defendant. Their entire case is based on A. Alagiriswami having rights in the property. A. Alagiriswami has no rights, for the reasons given. The arguments based on the compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah branch from questioning the partition or the Will, cannot be upheld. Insofar as it has been held that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree in O.S. No. 71 of 1958 by which she had given-up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. The plaintiffs in O.S. No. 649 of 1985, having sought a declaration of their right, and which they were entitled to. The contention that there was no challenge to the sale deeds, may not advance the case of the appellants. DW1, A. Alagiriswami, one of the Legatees has deposed regarding possession. The appellants did not challenge the Decree of the Trial Court and they were apparently sailing along with the appellants who were the Legatees under the Will. There is no merit in any of the appeals. [Paras 175, 176][785-GH; 786-A-D] Gaddam Ramakrishnareddy & Ors. v. Gaddam Rami Reddy & Ors. (2010) 9 SCC 602 : [2010] 11 SCR 656; Navneet Lal alias Rangi v. Gokul and Others (1976) 1 SCC 630 : [1976] 2 SCR 924 – distinguished.

Babu Singh and Others v. Ram Sahai alias Ram Singh (2008) 14 SCC 754 : [2008] 7 SCR 250; K. Laxmanan v. Thekkayil Padmini and Others (2009) 1 SCC 354 : [2008] 16 SCR 1117; Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon (2007) 1 SCC 357– relied on. Nanni Bai and Others v. Gita Bai AIR 1958 SC 706 : [1959] SCR 479; Krishnabai Bhritar Ganpatrao

Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors. (1979) 4 SCC 60 : [1980] 1 SCR 161; Bhagwan Krishan Gupta v. Praabha Gupta & Ors. (2009) 11 SCC

33 : [2009] 3 SCR 393; Shivdev Kaur (Dead) by LRs & Others v. R. S. Grewal (2013) 4 SCC 636 : [2013] 5 SCR 267; Sharad Subramanyan v. Soumi Mazumdar & Ors. (2006) 8 SCC 91; Bay Berry Apartments Pvt. Ltd. & Ors. v. Shobha & Ors. (2006) 13 SCC 737 : [2006] 7 Suppl. SCR 738; Usha Subarao v. B.E. Vishveswariah (1996) 5 SCC 201; Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 : [2002]

5 Suppl. SCR 175; Madhusudan Das v. Narayanibai (Deceased) by LRs. and Others (1983) 1 SCC 35 : [1983] 1 SCR 851; Benga Behera and Another v. Braja Kishore Nanda and Others (2007) 9 SCC 728 : [2007]

6 SCR 853; Sashi Jena and Others v. Khadal Swain and Another (2004) 4 SCC 236 : [2004] 2 SCR 260; Krishna Beharilal v. Gulabchand (1971) 1 SCC 837 : [1971] Suppl. SCR 27; S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 : [1973] 1 SCR 570; Puttrangamma and Others v. M.S. Ranganna and Others AIR 1968 SC 1018 : [1968] SCR 119; Villiammai Achi v. Nagappa Chettiar and Another AIR 1967 SC 1153 : [1967] SCR 448; State of Bihar v. Radha Krishna Singh and Others (1983) 3 SCC 118 : [1983] 2 SCR 808; Mst. Karmi v. Amru and Others (1972) 4 SCC 86; V. Tulasamma v. Sesha Reddy (1977)

3 SCC 99 : [1977] 3 SCR 261; Shakuntla Devi v. Kamla (2005) 5 SCC 390; Bhura and Others v. Kashi Ram (1994) 2 SCC 111 : [1994] 1 SCR 16; Jagan Singh (Dead) Through LRs. v. Dhanwanti and Another (2012)

2 SCC 628 : [2012] 2 SCR 303; Jupudy Pardha Sarathy v. Pentapati Rama Krishna (2016) 2 SCC 56; R.B.S.S. Munnalal and Others v. S.S. Rajkumar and Others AIR 1962 SC 1493 : [1962] 3 Suppl. SCR 418; Gumpha (Smt.) and Others v. Jai Bai (1994) 2 SCC 511 : [1994]

1 SCR 901; Gulwant Kaur and another v. Mohinder Singh and Others AIR 1987 SC 2251 : [1987] 3 SCR 576; Bai Vajia (Dead) by LRs. v. Thakorbhai Chelabhai and Others AIR 1979 SC 993 : [1979] 3 SCR 291 – referred to.

Adiyalath Katheesumma and Ors. v. Adiyalath Beechu and Ors. AIR 1951 MAD 561; Sundara Adapa v. Girija AIR 1962 (Mysore) 72; K. Peramanayakam Pillai v. S.T. Sivaraman and Others AIR 1952 Madras 419 – referred to.

Krishnayya Surya Rao Bahadur Garu and Others

(Defendants) v. Venkata Kumara Mahitathi Surya Rao Bahadur Garu AIR 1933 PC 202; Mohammad Khalil Khan v. Mahbub Ali Mian AIR 1949 PC 78; Appovier v. Rama Subba Aiyan and Others [1866] 11 M.I.A.75; Girja Bai v. Sadashiv Dhundiraj and Others AIR 1916 PC 104; Pandit Suraj Narain and Another v. Pandit Iqbal Narain and Others (1912-13) 40 IA 40 : (1913)

11 All LJ 172 – referred to.