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TMI Blog1963 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased him on 1-9-1905 leaving his widow Raghavamma. It is alleged that sometime before his death, Pitchayya took Venkayya, the son of his brother Chimpirayya in adoption; and it is also alleged that in or about the year 1895, there was a partition of the joint family properties between Veeranna and his four sons, Chimpirayya, Pitchayya, Peda Punnayya and China Punnayya, Veeranna taking only 4 acres of land and the rest of the property being divided between the four sons by metes and bounds. Venkayya died on May 24, 1938, leaving behind a son Subbarao. Chimpirayya died on May 5, 1945 having executed a will dated January 14, 1945 whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his pre-deceased daughter Saraswatamma; thereunder he also directed Raghavamma, the widow of his brother Pitchayya, to take possession of the entire property belonging to him, to manage the same, to spend the income therefrom at her discretion and to hand over the property to his two grandchildren after they attained majority and if either or both of them died before attaining majority, his or her share or the entire property, as the case may be, would go to Ragha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to the mm. On the pleadings various issues were raised and the main issues, with which we are now concerned, are issues I and 2, and they are : (1) whether the adoption of Venkayya was true and valid ; and (2) whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff. The learned Subordinate judge, after considering the entire oral and documentary evidence in the case, came to the conclusion that the plaintiff had not established the factum of adop- tion of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other ; and in the result he dismissed the suit with costs. On appeal, a division Bench of the Andhra High Court reviewed the entire evidence over again and affirmed the findings of the learned Subordinate judge on both the issues. Before the learned judges another point was raised, namely, that the recitals in the will disclose a clear and unambiguous declaration of the intention of Chimpirayya to divide, that the said declaration constituted a severance in status enabling him to execute a will. The learned judge rejected that plea on two grounds, namely, (1) that the will did not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the High Court was confined only to three questions which did not include the issues relating to adoption or partition and, therefore, the appellant could not question the correctness of those findings in respect of those issues and that the question whether the recitals in the will themselves constituted a partition in status could not be allowed to be raised, as that point was raised only for the first time in the High Court. He further contends that both the Courts below gave concurrent findings of fact on the question of adoption as well as on partition and this Court will not reconsider the evidence as a rule of practice and there are no exceptional circumstances to depart from that salutary practice in this appeal. He further seeks to sustain the findings of the High Court on the evidence adduced in the case. We shall take the preliminary objection first. The material part of the certificate issued by the High Court rears thus: subject matter of the suit in the court of first instance is upwards Rs. 20,000/(Rupees twenty thousand) and the value of the subject matter in dispute on appeal to the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it can do so especially having regard to the fact that the appellant did not seek to invoke that power. Under Art. 133 of the Constitution the certificate issued by the High Court in the manner prescribed therein is a precondition for the maintainability of an appeal to the Supreme Court. But the terms of the certificate do not circumscribe the scope of the appeal, that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a court of appeal, to consider the correctness of the decision appealed against from every standpoint, whether on questions of fact or law. A successful party no doubt can question the maintainability of the- appeal on the ground that the certificate was issued by the High -Court in contravention of the provisions of Art. 13 3 of the Constitution, but once the certificate was good, the provisions of Art. 133 did not confine the scope of the appeal to the certificate. We, therefore, reject this preliminary objection. His next objection is that both the learned Subordinate Judge and, on appeal, the learned judges of the High Court gave concurrent findings of fact on adoption as well as on partition and it is the usual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral contends that the learned Subordinate judge as well as the High Court did not draw the appropriate presumptions arising from the fact that the transactions were old ones, nor did they give sufficient weight to the entries in the revenue records, the admissions made by the parties and to the conduct of the parties and such other important circumstances and, therefore, their findings are, liable to be questioned in this appeal. This argument in effect and substance means that the Courts below have not given due weight to particular pieces of evidence. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgments of the low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month thereafter. The reason for the adoption, according to her, was that he was sick and was afraid that he would die. She graphically describes that Alivelamma, the wife of Chimpirayya, gave her son in adoption to the accompaniment of "mantrams and tantrams", that one Subbayya of Upputur was the prohit who officiated in the ceremony. In the cross-examination she says that Pitchayya did not die suddenly of an attack of fever but was suffering from dropsy for about a month and also even earlier; she admits that for important functions like marriage and adoption in their family they would invite the village officers and other important people of the village, but no such officers or important people were invited when Venakayya was taken in adoption. This witness was 60 years old in 1961 and therefore she would have been about 15 years at the time of the alleged adoption. Assuming for a moment that Pitchayya was suffering from dropsy, there is no reason why no important persons were invited for the function. If her evidence were true, Pitchayya took part in the alleged ceremony and it cannot therefore be suggested that he was so ill that all the formalities had to be dispensed with. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the will was entitled to continue in possession and management, handed over the entire management to the first respondent indicating thereby that the will was not really intended to take effect. In this state of evidence it is not possible to say that there had been a consistent pattern of conduct from which a Court should draw the inference that the adoption must have taken place. Attempt is made to reconcile these contra. dictory descriptions in the documents by developing different theories. Learned Advocate-General suggests that there was no reason why Chimpirayya should have put forward Venkayya falsely as the adopted son of Pitchayya as early as 1911 when he should not have gained any advantage thereby, for without the aid of adoption the entire property of Pitchayya would have come to him by survivorship. Mr. Bhimasankaram surmises that Chimpirayya put forward the adoption without the knowledge of Raghavamma to safeguard his family interests against the possible adoption later on by Raghavamma of a stranger and that subsequently both joined together with a view to put pressure upon the first respondent to marry her son Subbarao to Kamalamma. He also suggests that Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 4 acres of land described as Bangala Chenu subject to the condition that after his death it should be taken by his four sons, that at the time of partition they drew up partition lists and recited that each should enjoy what was allotted to him and that the lists were written by one Manchella Narasinhayya; she also admits that the lists are in existence, but she has not taken any steps to have them produced in Court. She says that each of the brothers got pattas according to the partition, and that the pattas got for Pitchayya's share are in his house; yet she does not produce them. She says that she paid kist for the lands allotted to Pitchayya's share and obtained receipts; but the receipts are not filed. She admits that she has the account books; but they have not been filed in Court. On her own showing there is reliable evidence, such as accounts, pattas, receipts, partition lists and that they are available; but they are not placed before the Court. Her interested evidence cannot obviously be acted upon when all the relevent evidence has been suppressed. Strong reliance is placed upon the alleged admissions made by D.W.8 and D. W. 10. D.W. 8 is the karnam of Paruchur f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, they do not show that the said lands shown against Venkayya fell to the share of Pitchayya at the partition in the year 1895. In Benyala Chenu alleged to have been given to Veeranna with a condition that after his death the four sons should take it in equal shares, Venkayya did not get his share as he should if Pitchayya was divided from Chimpirayya and if he was adopted to Pitchayya. P. W. 2 admits that Chimpirayya had two acres in Bengala Chenu and Punnayya had the other two acres. This admission belies the statement that there was a partition inter se among the four brothers, for if the said partition was true, one acre should have fallen to Pitchayya's branch. P. W. 3 also says that Chimpirayya was in enjoyment of the said two acres. Exs. B-52, B-53, B-54, B-55, B-56 and B-57 established that the original mortgage of 1900 executed in favour of Veeranna was later on renewed only by Chimpirayya and Punnayya, that after the alleged partition separate mortgages were executed for portions of the debt in favour of Chimpirayya and Putinayya, that the property which was the subject matter of the mortgages was sold in favour of Chimpirayya and Punnayya, and thereafter, under Exs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. On the evidence adduced in this case, both the Courts below found that there was no partition between Chimpirayya and Pitchayya as alleged by the appellant. The finding is one of fact. We have broadly considered the evidence only for the purpose of ascertaining whether the said concurrent finding of fact is supported by evidence or whether it is in any way vitiated by errors of law. We find that there is ample evidence for the finding and it is not vitiated by any error of law. Even so, learned Advocate-General contends that we should hold on the evidence that there was a division in status between Chimpirayya and the other member of the joint Hindu family i. e.. Subbarao, before Chimpirayya executed the will, or at any rate on the date when he executed it. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, that is to say, the said member is deemed to have been separated in status not on the date when the other members have knowledge of it but from the date when he declared his intention. The learned Advocate-General develops his argument in the following steps (1) the Will, Ex. A-2 (a), contains an unambiguous intention on the part of Chimpirayya to separate himself from Subbarao, (2) he manifested his declaration of fixed intention to divide by executing the will and that the Will itself was a proof of such an intention; (3) when the Will was executed, the first respondent the guardian of Subba Rao was present and, therefore, she must be deemed to have had knowledge of the said declaration'; (4) even if she had no such knowledge and even if she had knowledge of it only after the death of Chimpirayya, her knowledge dated back to the date when the Will was executed, 'and, therefore, when Chimpirayya died he must be deemed to have died separated from the family with the result that the Will would operate on his separate interest. The main question of law that arises is whether a member of a joint Hindu family becomes separated from the other members of the family by a mere declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echchaya (will of a single coparcener) in Viramitrodaya, "budhivisesha" (particular state or condition of the mind) in Vyavahara Mayukha, bring out the idea that the severance of joint status is a matter of individual discretion, The Hindu law texts, therefore support the proposition that severance in status is brought about by unilateral exercise of discretion. Though in the beginning there appeared to be a conflict of views, the later decisions correctly interpreted the Hindu law texts. This aspect has been considered and the law pertaining thereto precisely laid down by the Privy Council in a series of decisions; see Suraj Narain v. Iqbal Narain (1912) I.L.R. 35 All. 80 (P.C.)); Girija Bai v. Sadashiv Dhundiraj (1916) I.L.R. 43 Cal. 1031 (PC.)); Kawal Nain v. Budh Singh ((1917) I.L.R. 39 All. 496 (P.C.); and Ramalinga Annavi v. Narayana Annavi (1922) I.L.R. 45 Mod. 489 (P.C.). In Syed Kasam v. Jorawar Singh ((1922) I.L.R. 50 Cal. 84 (P.C.); the judicial Committee, after reviewing its earlier decision laid the settled law on the subject thus : "It is settled law that in the case of a joint Hindu family subject to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it as settled law that a separation may be effected by clear and unequivocal declaration on the part of one member of a joint Hindu family to his coparceners of his desire to separate himself from the joint family'. Sir John Wallis in Babu Ramasray Prasad Choudhary v. Radhika Devi [(1935) 43 L.W. 172 (P.C.)], again accepted as settled law the proposition that "a member of a joint Hindu family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declaration of a fixed intention to become separate...... Sir John Wallis C. T., and Kumaraswami Sastri J. in Kamepalli Avilam v. Mannem Venkataswamy [(1917) 13 M.L.J. 746)], were emphatic when they stated that if a coparcener did not communicate, during his life time, his intention to become divided to the other coparcener or coparceners, the mere declaration of his intention, though expressed or manifested, did not effect a severance in status. These decisions authoritatively laid down the proposition that the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member's severance from the family. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified by the reason of the rules, we see no reason to interpret the reference to "'communication" in the various cases as implying that the severance does not arise until notice has actually been received by the addressee or addressees." We regret our inability to accept this view. Firstly, be- cause, as we have pointed out earlier, the law has been well settled by the decisions of the judicial Committee that the manifested intention should be made known to the other members of the family affected thereby ; secondly, because there would be anomalies on the acceptation of either of the views. Thirdly it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby. There is yet another decision of the Madras High Court, which is of Rajamannar C. J. and Venkataramma Ayyar, J. in Indira v. Sivaprasada Rao (I. L. R. 1953 Mad. 245, 256). There, the testator despatched a telegram addressed to his undivided brother on August 4, evening. In the ordinary course it must have been delivered on August 5. The testator died on August 6 morning. Learned counsel appearing for the brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or notice announcing the intention to divide on the part of one member of the family is not essential or its absence fatal to a severance in status. The conclusions of the learned judge on the question now raised before us are expressed in two places and they are at pp. 543 and 549: "The only reasonable rule that can be deduced from the texts and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested, or published in such a manner as is appropriate in the circumstance,-, of the case. One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family." At p. 549 it is stated: "There must be some manifestation, indication, intimation or expression of that intention to become divided, , so as to serve as authentic evidence in case of doubt or dispute. What from that manifestation, expression, or inti- mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs or a substantial body of them would suffice, whether notice should go to each one of them, how to give notice to minor members of the family, may arise for consideration. But we need not express our opinion on the said questions, as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death of Chimpirayya. The third question falls to be decided in this appeal, is this : what is the date from which severance in status is deemed to have taken place ? Is it the date of expression of intention or the date when it is brought to the knowledge of the other members? If it is the latter date, is it the date when one of the members first acquired the said knowledge or the date when the last of them acquired knowledge or the different dates on which each of the members of the family got knowledge of the intention so far as he is concerned ? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates. The acceptance of the said principle would inevitably lead to confusion. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayya died. It is contended that the first respondent, as the guardian of Subbarao, had knowledge of the contents of the Will and, therefore, the Will operates on the interest of Chimpirayya. Reliance is placed upon the evidence of P. W. 11, one Komanduri Singaracharyulu. He deposed that be was present at the time the Will was executed by Chimpiryya and that he signed it as an identifying witness. In the cross- examination he said that at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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