PETITIONER: VALLIAMMAI ACHI Vs. RESPONDENT: NAGAPPA CHETTIAR & ORS. DATE OF JUDGMENT: 23/01/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. SHELAT, J.M. CITATION: 1967 AIR 1153 1967 SCR (2) 448 ACT: Hindu Law-Joint family property bequeathed by will--Effect on character of property. Indian Succession Act, (39 of 1925) s. 180-Scope of election under. HEADNOTE: A Hindu died after making a will in respect of certain joint family properties and appointed his son as the executor. The son obtained pro. bate of the will, provided for the legacies indicated therein and came into possession of the residue of the property. Thereafter, he adopted the plaintiff. The adoptive father died after the Hindu Succession Act came into force and the plaintiff filed the suit claiming two-thirds share of the properties left by his father. The defendants (viz., the widow and mother Of the plaintiffs-adoptive father) contended that the conduct of the plaintiff's adoptive father-in obtaining the probate of the will and carrying out its terms amounted to an election and therefore the father became absolute owner of the residue of the properties bequeathed to him by the will, and as the election to take under the will, would bind the plaintiff also he could not claim half the property on the ground that it was joint family property of himself and his father. The trial Court decreed the suit, which in -appeal was upheld by the High Court. The defendants appealed to this Court. HELD:The appeal must be dismissed. The character of the property did not change because of the will and it would still be joint family property in the hands of the plaintiff's father as far as his male issue was concerned. Further, as soon as the plaintiff was adopted he acquired interest in the joint family property in the hands of his adoptive father and this interest of his was independent of that of his father. In such circumstances even if his father could be said to have made an election there could be no question of the plaintiff being bound by that election, for he was not claiming through his father. [453 C, E-F] Election under s. 180 of the Indian Succession Act, would only arise where the legate derives some benefit from the will to which he would not be entitled except for the will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of the legate deriving any benefit from the will to which he would not be entitled except for the will the fact at he confirms the will and accepts what the will provides would not account to election, for he would have in any case got what the will gave him. Thus election only arises where the legate has to choose between his own property which might have been testator and which the testator has given to the legate by the will. [451 H-452 C] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 806 of 1964.
Appeal by special leave from the judgment and decree dated
July 13, 1962, of the Madras High Court in Appeal No. 347 of
1958.
449
C. B. Agarwala, B. Dutta, T. S. Krishnaswamy Iyenr, P. L.
Meyyappan and J. B. Dadachanji, for the appellant.
A. K. Sen and R. Ganapathji Iyer, for respondent. No. 1.
K. R. Chaudhuri and K. Rajendra Chaudhury, for respondent
No. 2.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the
judgment of the Madras High Court. The facts are not now in
dispute and may be briefly narrated. A suit was brought by
Nagappa Chettiar, respondent No. 1 (hereinafter referred to
as the respondent) against Villiammi Achi appellant and
Nachiammai Achi now dead and represented by her legal
representative. The respondent claimed two-thirds share of
the properties left by his father, Pallaniappa and prayed
for a decree for separate possession of that share after
partition. The facts on which this claim was based are not
now in dispute and are these. The respondent is the adopted
son of Pallaniappa. having been adopted in 1941. The
appellant is the widow of Pallaniappa and Nachiammai Achi
was Pallaniappa’s mother. Pallaniappa’s father also named
Nagappa had considerable properties. This Nagappa made a
will on June 10, 1934 by which after making certain dis-
positions, in favour of certain persons including his own
wife he gave the residue of his property absolutely to
Pallaniappa and appointed him as the executor of the will.
In one place the will stated that all the property except a
small part was the exclusive and self-acquired property of
the testator while at the end the testator said that he had
made the will with the full consent of his son Pallaniappa..
After Nagappa’s death in July 1934 Pallaniappa obtained
probate of the will and after providing for the legacies to
others as indicated therein came into possession of the
residue of the property. In 1941 the respondent was adopted
by Pallaniappa.
In the trial court there was a dispute between the parties
whether Pallaniappa and his father were members of a joint
Hindu family and whether properties left by Pallaniappa’s
father were the joint family properties of both. But it has
been found that all the properties left by Pallaniappa’s
father were joint family properties of Pallaniappa and his
father which Pallaniappa could acquire by survivorship on
his father’s death. This finding was upheld by the High
Court and is not now in dispute. We have to proceed on the
basis that even though Pallaniappa’s father said in the will
that the properties, except a small part, were his self-
acquired properties,. in fact all the properties mentioned
in the will of Pallaniappa’s, father were joint family
properties of Pallaniappa and his father.
The case of the appellant was that even though the
properties left by Pallaniappa’s father were joint family
properties which
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450
Pallaniappa could acquire by survivorship, the conduct of
Pallaniappa in obtaining probate of the will and carrying
out its terms amounted to election and thereafter
Pallaniappa became absolute owner of the residue of the
properties bequeathed to him by the will. The consequence
of this was that when Pallaniappa adopted the respondent in
1941 long after he had become -the absolute owner of the
properties, the respondent acquired no interest in the
properties left by his grand-father by virtue of the
adoption. Pallaniappa died. on September 16, 1956 after the
Hindu Succession Act, (No. 30 of 1956) came into force. As
there was no joint family property of Pallaniappa and the
respondent at the time of Pallaniappa’s ,death, the
respondent could not claim half the property on the ground
that it was joint family property of himself and
Pallaniappa, as Pallaniappa’s election to take under the
will of his father would bind the respondent also. Reliance
in this connection was placed ,on S. 180 of the Indian
Succession Act, (No. 39 of 1925) also.
The reply on behalf of the respondent to this contention was
two-fold. In the first place, it was urged that there was
no question of election even by Pallaniappa in this case and
s. 180 of the Indian Succession Act would not apply. It was
further urged that even assuming that there could be
election by Pallaniappa the respondent would not be bound by
that election as the property left by his grandfather was
joint family property and the respondent would acquire
interest therein as soon ;is he was adopted by Pallaniappa,
even though Pallaniappa might have been the sole co-parcener
for sometime i. e. between 1934 and 1941. This interest of
the respondent in the joint family property was independent
of his father Pallaniappa and even though Pallaniappa might
be bound by any election that he might have made the
respondent would not be so bound and would be entitled to
treat the property as joint family property in the hands of,
Pallaniappa in which he would acquire interest on being
adopted. In the second place the respondent’s case was that
in any case after his adoption Pallaniappa threw the ,entire
property into the family hotch-pot and therefore it became
joint family property by blending.
Two questions therefore arose for consideration in this case
namely–(i) whether there was election by Pallaniappa and if
so whether the respondent would be bound by it, and (ii)
whether Pallaniappa threw the entire property into the
family hotch-pot after adoption of the respondent and
therefore it became joint family property in any case. The
trial court accepted the case put forward on behalf of the
respondent and decreed the suit passing a preliminary decree
giving two-thirds share to the respondent and one-sixth each
to the appellant,, and the mother of Pallaniappa.
The appellant then appealed to the High Court. The High
Court dismissed the appeal. On the question of election,
the
451
High Court held that as Pallaniappa and his father were
members of a joint Hindu family and as the entire property
left by Pallanippa’s father was joint family property,
Pallaniappa had interest in the residue as a survivor and in
consequence there was no question of election by Pallaniappa
for all the property he got by will would have come to him
by survivorship. In such a case there could be no question
of election, for Pallaniappa had title to the property
irrespective of the will. The High Court also held that in
any case the claim of the respondent as a member of the
joint family was not under his father but independent of him
and therefore the respondent would not be bound-, even if
Pallaniappa were held to have made an election. The High
Court also found in favour of the respondent on the question
whether the property was thrown into family hotch-pot after
the adoption of the respondent and in the result dismissed
the appeal.
The High Court having refused to grant a certificate to
appeal to this Court, the appellant applied for and obtained
special leave from this Court; and that is how the matter
has come before us.
The same two questions, as indicated above, arise for consi-
deration in this appeal. We shall first consider the
question of election in the background of the fact that the
entire property left by Pallaniappa’s father was joint
family property of himself and Pallaniappa and that
Pallaniappa had interest in that property as a member of a
joint Hindu family. Section 180 of the Indian Succession
Act which enunciates the doctrine of election as known to
English law for this country is in these terms :
“Where a person, by his will professes to
dispose of something which he has no right to
dispose of, the person to whom the thing
belongs shall elect either to confirm such
disposition or to dissent from it, and, in the
latter case, he shall give up any benefits
which may have been provided for him by the
will.”
It is urged on behalf of the appellant that s. 180 would
apply to the facts of the present case for the property
willed by Pallaniappa’s father was not his which he could
will away as it was joint family property in which
Pallaniappa who was the residuary legatee had also equal
interest. Therefore Pallaniappa had either to confirm the
disposition or dissent from it, and his conduct showed that
he had confirmed it for he took out probate. Therefore it
must be held that after probate was taken out the residue
became the absolute property of Pallaniappa and lost its
character as joint Hindu family property.
Now it is clear from s. 180 that after the legatee elects to
dissent from the will he must give up any benefits provided
for him by the will. This shows that election under s. 180
would only arise
452
where the legatee derives some benefit from the will to
which he would not be entitled except for the will. In such
a case he has to elect whether to confirm the will or
dissent from it. But where there is no question of the
legatee deriving any benefit from the will to which he would
not be entitled except for the will, the fact that he
confirms the will and accepts what the will provides would
not amount to election, for he would have in any case got
what the will gave him. Thus election only arises where the
legatee has to choose between his own property which might
have been willed away to somebody else and the property
which belongs to the testator and which the testator has
given to the legatee by the will. The matter is brought out
in Halsbury’s Laws of England, Third Edition, Vol. 14, at p.
588, para 1091 in the following words
“Where a testator by his will purports to give
property to A which in fact belongs to B and
at the same time out of his own property
confers, benefits on B …. in such cir-
cumstances B is not allowed to take the full
benefit given him by the will unless he is
prepared to carry into effect the whole of the
testator’s dispositions. He is accordingly
put to his election to take either under the
instrument or against it. If he elects to
take under the will he is bound and may be
ordered to convoy his own property to A; if he
elects to take against the will and to keep
his own property, and so disappoints A, then,
he cannot take any benefits under the will
without compensating A out of such benefits to
the extent of the value of the property of
which A is disappointed.”
Following this principle the High Court held that as the
property which the will gave to Pallaniappa would in any
case have come to him as a member of the joint family, there
was no question of election even by Pallaniappa in this
case. This view appears to us to be correct.
But even assuming that there was some kind of election by
Pallaniappa we cannot see how the nature of the property
left by Pallaniappa’s father would change merely because
Pallaniappa’s father made a will giving the residue
absolutely to Pallaniappa and Pallaniappa took out probate
of the will. The property being joint family property
Pallaniappa’s father was not entitled to will it away and
his making a will would make no difference to the nature of
the property when it came into the hands of Pallaniappa. A
father cannot turn joint family property into absolute
property of his son by merely making a will, thus depriving
sons of the son who might be born thereafter of their right
in the joint family property. It is well settled that the
share which a co-sharer obtains on partition of ancestral
property is ancestral property as regards his male issues.
They take an interest in it by birth whether
453
they are in existence at the time of partition or are born
subsequently : [see Hindu Law by Mulla, Thirteenth Edition
p. 249, para 223 (2) (4)]. If that is so and the character
of the ancestral property does not change so far as -sons
are concerned even after partition, we fail to see how that
character can change merely because the father makes a will
by which he gives the residue of the joint family property
(after making certain bequests) to the son. A father in a
Mitakshara family has a very limited right to make a will
and Pallaniappa’s father could not make the will disposing
of the entire joint family property, though he gave the
residue to his son. We are therefore of opinion,that merely
because Pallanappa’s father made the will and Pallaniappa
probably as a dutiful son took out probate and carried out
the wishes of his father, the nature of the property could
not change and it will be joint family property in the hands
of Pallaniappa so far as his male issues are concerned.
Further it is equally well settled that under the Mitakshara
law each son upon his birth takes an interest equal to that
of his father in ancestral property, whether it be movable
or immovable. It is very important to note that the right
which the son takes at his birth in the ancestral property
is wholly independent of his father. He does not claim
through the father….” (see Mulla’s Hindu Law, Thirteenth
Edition, p. 251, para 224). It follows therefore that the
character of the property did not change in this case
because of the will of Pallaniappa’s father and it would
still be joint family property in the hands of Pallaniappa
so far as his male issue was concerned. Further as soon as
the respondent was adopted he acquired interest in the joint
family property in the hands of Pallaniappa and this
interest of his was independent of his father Pallaniappa.
In such circumstances even if Pallaniappa could be said to
have made an election there can be no question of the
respondent being bound by that election, for he is not
claiming through his father.
In this view of the matter, it is unnecessary to consider
the question whether Pallaniappa, after the, respondent’s
adoption, threw the property into. the family hotch-pot.
The appeal therefore fails and is hereby dismissed with
costs.
Y.P. Appeals dismissed.
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