TMI Blog1963 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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. Appeal dismissed. - Civil Appeal No. 165 of 61 - - - Dated:- 9-4-1963 - SUBBARAO, K., DAYAL, RAGHUBAR AND MUDHOLKAR, J.R., JJ. For the Appellant : D. Narsaraju, Advocate-General and T. V. R. Tatachari, For the Respondent: K.Bhimsankaram, G. Jagapathi Rao and Satyanarayana, K. R. Choudhry JUDGEMENT SUBBA RAO J.- This appeal by certificate is preferred against the judgment and Decree of the High Court of Andhra confirming those of the Subordinate judge, Bapatla, dismissing the suit filed by the appellants for possession of the plaint schedule properties. The following genealogy will be useful in appreciating the facts and the contentions of the parties : Veeranna (d. 2.2.1906) Atchamma Seshamma Chimpirayya Pitchayya Raghavamma (1st wife) (2nd wife) It will be seen from the genealogy that Veeranna had two wives and that Chimpirayya and Pitchayya were his sons by the first wife and Peda Punnayya and China Punnay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule E which are alleged to belong to her and the 1st and 3rd defendants in common. As Kamalamma was a minor on the date of the suit, Raghavamma claimed possession of the said properties under the will -half in her own right in respect of Subbarao's share, as he died before attaining majority, and the other half in the right of Kamalamma, as by then she had not attained majority, she was entitled to manage her share till she attained majority. The first defendant denied that Venkayya was given in adoption to Pitchayya or that there was a partition in the family of Veeranna in the manner claimed by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and, therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. She did not admit that Chimpirayya executed the will in a sound and disposing frame of mind. She also did not admit the correctness of the Schedules attached to the plaint. The second, defendant filed a statement supporting the plaintiff. The third defendant filed a statement denying the allegations in the plaint and disputing the correctness of the extent of some of the items in the plaint sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the Court should have held on the basis of the entire evidence that there was a division in status between Chimpirayya and Pitchayya, conferring on Chimpirayya the right to bequeath his divided share of the family property. (3) The will itself contains recitals emphasizing the fact that he had all through been a divided member of the family and that on the date of execution of the will he continued to possess that character of a divided member so as to entitle him to execute the will in respect of his share and, therefore, the recitals in the will themselves constitute an unambiguous declaration of his intention to divide and the fact that the said manifestation of intention was not communicated before his death to Subbarao or his guardian Chenchamma could not affect his status as a divided member. And (4) Chenchamma, the guardian of Subbarao, was present at the time of execution of the will and, therefore, even if communication was necessary for bringing about a divided status, it was made in the present case. Mr. Bhimasankaram, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal order ............ if the High Court certifies-(a) that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament ; (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount of value ; or (c) that the case is a fit one for appeal to the Supreme Court ; and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred in sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law." Mr. Bhimasankaram contends that the conditions laid down for issuing a certificate must also govern the scope of the appeal to the Supreme Court, for, otherwise, the argument proceeds, the said conditions would become otiose. He concedes that the Supreme Court can exercise an unrestricted power of reviewing the judgment of the High Court in the case of a certificate hedged in with conditions by resorting to its powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khi (A.I.R. S.C. 286); Bhikka v. Charan Singh ([1959] Supp 2 S.C.R. 798); M.M.B. Catholicos v. P. Paulo Avira (A.I.R 1959 S.C. 31) and Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinanyak Gosavi ([1960] 1 S.C.R. 773). . The reason for the practice is stated to be that when facts have been fairly tried by two Courts and the same conclusion has been reached by both, it is not in the public interest that the facts should be again examined by the ultimate court of appeal. Whatever may be the reason for the rule, the practice ha% become fairly crystallized and this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it "sbocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done." It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. We have beard learned counsel on merits and we do not think it is one of those exceptional cases where we should depart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The circumstances obtaining at that time were as follows : Chimpirayya was about 40 years old; he had only one son, Venkayya, who was aged about 2 years Pitchayya was about 25 years old and, therefore, ordinarily he had every prospect of having children of his own; it is, therefore highly improbable, unless there are special circumstances, that an only son of an elder brother was taken in adoption by his younger brother; though there is no legal prohibition, it is well known that ordinarily an only son is neither given nor taken in adoption'. P.W.I. admits that Addagada family is a prominent and affluent family in the village. But curiously no document of adoption was executed, no invitations were sent to relatives and village officers, and no expenditure incurred in connection with the adoption was entered in the accounts. Unless there were compelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show. P. Ws. 1 and 2 speak to the adoption. P. W. I is the cousin of the appellant and P.W. 2 is appellant herself. P. W. I says th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each other on material circumstances. The Courts below have disbelieved their evidence. The appellant and the first respondent relied upon the conduct of the parties subsequent to the alleged adoption and filed a number of documents to support their respective cases. Documentary evidence considered [omitted]. So far as the documentary evidence goes, the position is as follows: Till 1911 there was no document recording the fact that Venkayya was the adopted son of Pitchayya, and that after 1911 there had been contradictory recitals in the documents. Broadly speaking whenever Venkayya executed a document he described himself as the son of Chimpirayya, and whenever third parties executed documents, he was described as the adopted son of Pitchayya. He filed suits, sometimes as the son of Chimpirayya and sometimes as the adopted son of Pitchayya. His name was entered in the accounts relating to Paruchur, but not in the accounts relating to Upputur; he gave evidence declaring himself as the son of Chimpirayya and also insured-his life as such he operated on the accounts of third parties as the son of Chimpirayya; while in the will executed by Chimpirayya, he was described as the adopte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding was vitiated by such errors that we should review the entire evidence over again and come to a conclusion of our own. We therefore, accept the concurrent finding of fact that there was no adoption. The next question is whether the concurrent finding of fact arrived at by the Courts below on the question of partition calls for our interference. In the plaint neither the details of the partition nor the date of partition are given. In the written statement the first respondent states that Chimpirayya died undivided from his son's son Subbarao and so Subbarao got the entire property by survivorship. The second issue framed was whether Chimpirayya and Pitchayya were divided as alleged by the plaintiff. The partition is alleged to have taken place in or about the year 1895; but no partition deed was executed to evidence the same. The burden is certainly on the appellant who sets up partition to prove the said fact. P.W. 1, though she says that Veeranna was alive when his sons effected the partition, admits that she was not present at the time of Partition, but only heard about it. P.W. 2, the appellant, deposes that her husband and his brothers effected partition after she went t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four brothers. The oral evidence therefore, does not support the case of the appellant that there was a division inter se between Chimpirayya and Pitchayya. Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant. Even the documentary evidence filed in the case does not help the appellant. The family property is situate in three villages, Paruchur, Upputur and Podapadu. If there was a partition inter se between the 4 -brothers, in the ryotwari settlement effected in 1906 the names of the brothers should have been entered separately in the revenue accounts but the relevant register pertaining to that settlement has not been filed. Even in the later accounts of the year 1918 the name of Venkayya was entered only in respect of some lands in village Paruchur, but no such entries are found in respect of the other villages. Those entries were made on a representation made by Chimpirayya and no one was interested to object to the entries. Even these accounts show that in the earlier register Pitchayya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in a family. The legal position is now very well settled. This Court in Bhagwati Prasad Sah v. Dulhin Rameshwari Juer ([1951] S. C. R. 603, 607), stated the law thus : "The general principle undoubtedly is that a .Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the par- ties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief." Whether there is a partition in a Hindu joint family is, therefore, a question of fact; notwithstanding the fact that one or more of the member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted, Chimpirayya must be deemed to have been divided in status from his grandson Subbarao. A Will speaks only from the date of death of the testator. A member of an undivided coparcenary has the legal capacity to execute a will; but he cannot validly bequeath his undivided interest the joint family property. If he died an undivided member of the family, his interest survives to the other members of the family and, therefore. the will cannot operate on the interest of the joint family property. But if he was separated from the family before his death, the bequest would take effect. So, the important question that arises is whether the testator in the present case became separated from the joint family before his death. The learned Advocate-General raises before us the following contentions in the alternatives : (1) Under the Hindu law a manifested fixed intention as con- tradistinguished from an undeclared intention unilaterally expressed by a member to separate himself from the joint family is enough to constitute a division in status and the publication of such a settled intention is only a proof thereof. (2) Even if such an intention is to be manifested to the knowledge of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the mother is having menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather's wealth does take place." (Setlur's Mitaksbara, pp. 646-648.) Saraswati Vilasa, placitum 28 : "From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just as an appointed daughter is constituted by mere intention without speech." Viramitrodaya of Mitra Misra : (Ch. 11. pl. 23) "Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener).Vyavahara Mayukha of Nilakantabhatta: (Ch. IV, S. iii) "Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration "I am separate from thee" because severance is a particular state(or condition) of the mind and the declaration is merely a manifestation of this mental state or condition)." The Sanskrit expressions "san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this marital state (or condition). " One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. "Others" must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. This idea was expressed by learned judges by adopting different terminology, but they presumably found it as implicit in the concept of declaration. Sadasivalyerj.,in Soundarajan v. Arunachalam Chetty ((1915) I.L.R. 39 Mad. 159 (P.C.), said that the expression "clearly expressed" used by the Privy Council in Suraj Narain v. Iqbal Narain [(1912) I.L.R. 35 All. 80 (P.C.)], meant "clearly expressed to the definite knowledge of the other coparceners." In Girja Bai v. Sadashiv Dhundiraj [(1916) I.L.R. 43 Cal. 1031 (P.C.)], the Judicial Committee observed that the manifested intention must be "clearly intimated" to the other coparceners. Sir George Lowndes in Balkrishna v. Ram krishna [(1931) I.L.R. 33 All. 300 (P.C)], took it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1926, when the son received the notice and as the testator had died on August 5, 1926 and the estate had passed by survivorship to the son on that date the receipt of the notice on August 9, 1926 could not divest the son of the estate so vested in him and the will was therefore, not valid. Varadachariar J., delivering the judgment of the Bench observed thus : "It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners." After pointing out the various anomalies that might arise in accepting the contention advanced before them, the learned judge proceeded to state : "It may be that if the law is authoritatively settled, it is not open to us to refuse to give effect to it merely on the ground that it may lead to anomalous consequences but when the law has not been so stated in any decision of authority and such a view is not necessitated or justified by the reason of the rules, we see no reason to interpret the reference to "'com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of his unambiguous intention to separate from the other members of the family on the Karnavan of the tarwad. The question was whether the communication of his intention to the Karnavan was sufficient. The appeal first came up before Satyanarayana Rao and Panchapagesa Sastri JJ. Satyanarayana Rao J. held that the notice was not sufficient to constitute a severance, as it was not served on all the other members of the tarwad; and Panchapagesa Sastri,J., held that the service on the Karnavan or the manager of the joint family was sufficient as he was representative of the family. As there was difference of view between the two learned judges, the matter was placed before Viswanatha Sastri.J. and the learned judge agreed with Panchapagesa Sastri.J. But in the course of the judgment, the learned judge went further and held that a unilateral declaration of an intention to become divided on the part of a member of a joint Hindu Family effects severance, in status and therefore the dispatch to, or receipt by, the other members of the family of the communication or notice announcing the intention to divide on the part of one member of the family is not essential or its absence fatal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by one process or other appropriate to a given situation. This view does not finally solve the problem. There is yet another difficulty. Granting that a declaration will be effective only when it is brought to the knowledge of the other members affected, three questions arise, namely, (i) how should the intention be conveyed to the other member or members; (ii) when it should be deemed to have been brought to the notice of the other member or members; and (iii) when it was brought to their notice, would it be the date of the expression of the intention or that of knowledge that would be crucial to fix the date of severance. The questions posed raise difficult problems in a fast changing society. What was adequate in a village polity when the doctrine was conceived and evolved can no longer meet the demands of a modern society. Difficult questions, such as the mode of service and its sufficiency, whether service on a manager would be enough, whether service on the major members 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly: with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and common sense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should not affect vested rights ? By imposing such a limita- tion we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights: . As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. 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 famil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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