PETITIONER: PUTTARANGAMMA & 2 ORS. Vs. RESPONDENT: M. S. RANGANNA & 3 ORS. DATE OF JUDGMENT: 08/02/1968 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. CITATION: 1968 AIR 1018 1968 SCR (3) 119 CITATOR INFO : RF 1979 SC1880 (29) R 1983 SC 114 (31) ACT: Hindu Law--Joint family--Unilateral decalration to separate- Communicated to other members of family--Declaration withdrawn--Effect. HEADNOTE: The karta of a joint Hindu family fell ill. He had no male issue arid in order to safeguard the interests of the appellant and fourth respondent, who were his daughters, he issued registered notices to the other members of the joint family declaring his unequivocal intention to separate from them. Later, he decided to withdraw the notices and instructed the postal authorities not to forward them, but, the unequivocal declaration of his intention to separate was conveyed to the other members, of the joint family and they had full knowledge of such intention. A few days thereafter he instituted a suit for partition and possession of his share of the Property. The plaint was prepared by a responsible advocate, who explained the contents to the plaintiff (the karta), who was conscious and in full possession of his mental faculties, had his thumb impression affixed on the plaint and Vakalatnama, signed them both and had them filed in court. After the suit was filed on the same day, the plaintiff died. The trial court decreed (the suit, but the High Court, in appeal, reversed the decree. In appeal to this Court, HELD: The mere withdrawal of the Plaintiffs unilateral declaration of intention to separate, which already had resulted in his division in status because of the communication of the intention to the other members, did not nullify its effect so as to restore the family to its original joint status, or amount to an agreement to reunite; and (the appellant and the fourth respondent, as the legal representatives of the plaintiff, were entitled to the decree. [126 G-H; 127 A-B; 129 D] Radhakrishna v. Satyanarayana, (1948) 2 M.L.J. 331, approved. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 322 of 1965.
Appeal from the judgment and decree dated December 5, 1960
of the Mysore High Court in Regular Appeal No. 81 of 1956.
A. K. Sen and R. Gopalakrishnan, for the appellants.
H. R. Gokhale, K. R. Chaudhuri and K. Rajendra Chaudhri for
respondent No. 1.
The Judgment of the Court was delivered by
Ramaswami, J. This, appeal is brought by certificate from
the judgment of the Mysore High Court dated December 5, 1960
in R. A. No. 81 of 1956.
120
The appellants and respondent No. 4 are the daughters and
legal representatives of Savoy Ranganna who was the
plaintiff in O.S. 34 of 1950-51 instituted in the court of
the District Judge, Mysore. The suit was filed by the
deceased plaintiff for partition of his share in the
properties mentioned in the schedule to the plaint and for
granting him separate possession of the same. Respondent
No., 1 is the brother’s son of the Plaintiff. The rela-
tionship of the parties would appear from the following
pedigree:
Savoy Ranganna (Sr)
—————————————————
Rangamma Savoy Ranganna Chikka Ranganna
(Died 45 Alamma (plaintiff) (Died in 1947
years ago (Deft. 2)
Dodda Rangamma M. S. R. Ranganna, 3
(Deft. 2 (a) (Deft. 1)
Lakkamma
Kenchanna (suppl, (D. W. 10)
Def).
Chikka Rangamma PuttaRangamma Rangathayamma Chinnathayyamma
(Deft. 3) (1st L. R. of (2nd L. R. of (3rd I- R. Of
plaintiff) plaintiff) plaintiff)
The case of the plaintiff was that he and the defendants
lived together as members of a Joint Hindu family till
January 7, 1951, Plaintiff being the karta. The plaintiff
had no male issue but had only four daughters, Chikka
Rangamma, Putta Rangamma, Rangathayamma and Chinnathayamma.
The first 2 daughters were widows. The fourth daughter
Chinnathayamma was living with her husband. Except
Chinnathayamma, the other daughters with their families had
been living with the joint family. The plaintiff became ill
and entered ‘Sharda Nursing Home for treatment as an in-
patient on January 4, 1951. In order to safeguard the
interests of his daughters the plaintiff, Savoy Ranganna
issued a notice on January 8, 1951 to the defendants
declaring his unequivocal intention to separate from them.
After the notices were registered at the post office certain
well-wishers of the family intervened and wanted to bring
about a settlement. On their advice and request the
plaintiff notified to the post office that he intended to
withdraw the registered notices. But as no agreement could
be subsequently reached between ‘the parties the
plaintiff.instituted the present suit on January 13 The
951’for partition ‘of his share of the joint family
properties. The suit was contested mainly by
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respondent no. 1 who alleged that there was. no separation
of status either because of the notice of January 8, 1951 or
because of the institution of the, suit on January 13, 1951.
The case (if respondent no. 1 was that Savoy Ranganna was
85 years of age and in a weak state of health and was not in
a position to understand the contents of the plaint or to
affix-his signature or thumb impression thereon as well as
on the Vakalatnama. As regards the notice of January 8,1951,
respondent no. 1 asserted that there was no communication
of any such notice to him and, in any case, the notices were
withdrawn by Savoy Ranganna unconditionally from the post
office. It was therefore contended that there was no
disruption of the joint family at the time of the death of
Savoy Ranganna and the appellants were not entitled to a
decree for partition as legal representatives of Savoy
Ranganna. Upon the examination of the evidence adduced in
the case the trial court held that Savoy Ranganna had
properly affixed his thumb impression on the plaint and the
Vakalatnama and the presentation of the plaint was valid.
The trial court found that Savoy Ranganna was not dead by
the time the plaint was presented. On the question whether
Savoy Ranganna was separate in status the trial court held
that the notices dated January 8, 1951 were a clear and
unequivocal declaration of the intention of Savoy Ranganna
to become divided in status and there was sufficient
communication of that intention to respondent no. 1 and
other members of the family. The trial court was also of
the opinion that at the time of the issue of the notices
dated January 8, 1951 and at the time of execution of the
plaint and the Vakalatnama dated January 13, 1951 Savoy
Ranganna was in a sound state of mind and conscious of the
consequences of the action he ‘Was taking. The trial court
accordingly granted a decree in favour of the appellants.
Respondent no took the matter in appeal to the Mysore High
Court which by its judgment dated December 5, 1960 reversed
the decree of the trial court and allowed the appeal.
Hegde, J. one of the members of the Bench held that the suit
could not be said to have been instituted by Savoy Ranganna
as it was not proved that Savoy Ranganna executed the
plaint. As regards the validity of the notice Ex.A, and as
to whether it caused any disruption in the, joint family
status, Hegde, J. did not think it necessary to express any
opinion. The other member of the Bench, Mir. lqbal Husain,
J., held that the joint family of which the deceased Savoy
Ranganna was a member had not been disrupted by the issue of
the notice dated January 8, 1951. The view taken by Mir
lqbal Husain,-J. was that there was no proof that the notice
was communicated either to respondent no. 1 or other members
of the family and, in any event, the notice had been
withdrawn by Savoy Ranganna and so there was no severance of
joint status from the date of the notice.
L4Sup.C.1/68-9
122
The first question to be considered in this appeal is
whether Savoy Ranganna died as a divided member of the joint
family as alleged in the plaint. It is admitted that Savoy
Ranganna was very old, about 85 years of age and was ailing
of chronic diarrhoea. He was living in the family house
till January 4, 1951 when he was removed to the Sharda
Nursing Home where he died on January 13, 1951 at 3 p.m
According to the case of respondent no. 1 Savoy Ranganna had
a paralytic stroke in 1950 and was completely bed-ridden
thereafter and his eyesight was bad for 5 to 6 years prior
to his death. It was alleged in the written statement that
Savoy Ranganna was unconscious for some days prior to his
death. The case of respondent no. 1 on this point is dis-
proved by the evidence of D.W. 6, Dr. Venkata Rao who was in
charge of the Sharda Nursing Home on the material dates.
This witness admitted that the complaint of Savoy Ranganna
was that he was suffering from chronic diarrhoea for over
five months. He was anaemic but he was not suffering from
any attack of paralysis. As regards the condition of Savoy
Ranganna on January 8, 1951, the evidence of P.W. 1, Dr.
Subbaramiah is important. This witness is the owner of the
Sharda Nursing Home and he has testified that the notice Ex.
A was read over to Savoy Ranganna and after getting it read
the latter affixed his thumb mark thereon. The witness
asked Savoy Ranganna whether he was able to understand the
contents of the notice and the latter replied in the
affirmative. The witness has certified on the notice, Ex.
A-1 that Savoy Ranganna was conscious when he affixed his
left thumb mark, to the notice in his presence. No reason
was suggested on behalf of the respondents why the evidence
of this witness should be disbelieved. The trial court was
highly impressed by the evidence of this witness and we see
no reason for taking a different view. The case of the
appellants is that respondent no. 1 had knowledge of the
notice, Ex. A because he was present in the Nursing Home on
January 8, 1951 and he tried to snatch away the notice from
the hands of P.W. 1 but he was prevented from. so doing.
P.W. 5, Chinnanna stated in the course of the evidence that
after P.W. 1 had signed the certificate in all the three
copies, respondent no. 1 and one Halappa came to the ward
and tried to snatch away the notices. The first respondent
tried to snatch away the copy Ex. A-1 that was in the hands
of Dr. Subbaramiah and attempted to tear it. Dr.
Subbaramiah somehow prevented respondent no. 1 from taking
away Ex. A and handed it over to P.W. 5. The evidence of
P.W. 5 with regard to the “snatching incident” is
corroborated by Dr. Subbaramiah who stated that after Savoy
Ranganna had executed the notices and he had signed the
certificates, one or two persons came and tried to snatch
the document. P.W. 1 is unable to identify the first
respondent as one of the persons who had taken part in the
“snatching incident”. The circumstance that P.W. 1 was
unable to identify respondent no. 1
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is not very material, because the incident took place about
three years before he gave evidence in the court, but his
evidence with regard to the “snatching incident’ strongly
corroborates the allegation of P.W. 5 that it was respondent
no. 1 who bad come into the Nursing Home and attempted to
snatch the notice. There is also another circumstance which
supports the case of the appellants that respondent no. 1
had knowledge of the contents of Ex. A and of the
unequivocal intention of Savoy Ranganna to become divided in
status from the joint family. According to P.W. 5 res-
pondent no. 1 and his wife and mother visited Savoy
Ranganna in the Nursing Home later on and pressed him to
withdraw the notices promising that the matter will be
amicably settled. Sowcar T. Thammanna also intervened on
their behalf. Thereafter the deceased plaintiff instructed
his grandson P.W. 5 to withdraw the notice. Accordingly
P.W. 5 prepared two applications for the withdrawal and
presented them to the postal authorities. The notice, Ex.
A meant for the first respondent and Ex. E meant for the
original second defendant were withheld by the postal autho-
rities. These notices were produced in court by the postal
authorities during the hearing of the case. In our opinion,
the evidence of P.W. 5 must be accepted as true, because it
is corroborated by the circumstance that the two notices,
Exs. A and E were intercepted in the post office and did
not reach their destination. This circumstance also
indicates that though there was no formal. communication of
the notice, Ex. A to the first respondent, he had
sufficient knowledge of the contents of that notice and was
fully aware of the clear and unequivocal intention of Savoy
Ranganna to become separate from other members of the joint
family.
It is now a settled doctrine of Hindu Law that a member of a
joint Hindu family can being about his separation in status
by a definite, unequivocal and unilateral declaration of his
intention to separate himself from the family and enjoy his
share in severalty. It is not necessary that there should
be an agreement between all the coparceners for the
disruption of the joint status. It is immaterial in such a
case whether the other coparceners give their assent to the
separation or not. The jural basis of this doctrine has
been expounded by the early writers of Hindu Law. The
relevant portion of the commentary of Vijnaneswara states as
follows
[And thus though the mother is having her menstrual courses
(has not lost the capacity to bear children) and the father
has attachment and does not desire a partition, yet by the
will (or desire) of the son a partition of the grandfather’s
wealth does take place]”
124
Saraswathi Vilasa, placitum 28 states
[From this it is known that without any speech
(or explanation) even by means of a
determination (or resolution) only, partition
is effected, just an appointed daughter is
constituted by mere intention without
speech.]”
Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the
following effect:
[Here too there is no distinction between a
partition during the lifetime of the father or
after his death and partition at the desire of
the sons may take place or even by the desire
(or at the will) of a single (coparcener)].”
Vyavahara Mayukha of Nilakantabhatta also
states
[Even in the absence of any common (joint
family) property, severance does indeed result
by the mere declaration ‘I am separate from
thee’ because severance is a. particular state
(or condition) of the mind and the declaration
is merely a manifestation of this mental state
(or condition).]” (Ch. IV, S. iii-I).
Emphasis is laid on the “budhi visesha” (particular state
or condition of the mind) as the decisive factor in
producing a severance in status and the declaration is
stated to be merely “abhivyanjika” or manifestation which
might vary according to circumstances. In Suraj Narain v.
Iqbal Narain(1) the Judicial Committee made the following
categorical statement of the legal position :
“A definite and unambiguous indication by one
member of intention to separate himself and to
enjoy his share in severalty may amount to
separation. But to have that effect the
intention must be unequivocal and clearly
expressed………. Suraj Narain alleged that
he separated a few months later; there is,
however, no
(1) I.L.R. 35 All. 80. (P.C.)
125
.lm15
writing in support of his allegation, nothing to show that
at that time he gave expression to an unambiguous intention
on his part to cut himself off from the joint undivided
family.”
In a later case–Girja Bai v. Sadashiv Dhundiraj(1) the
Judicial Committee examined the relevant texts of Hindu Law
and referred to the well-marked distinction that exists in
Hindu law between a severance in status so far as the
separating member is concerned and a de facto division into
specific shares of the property held until then jointly, and
laid down the law as follows :
“One is a matter of individual decision, the
desire on the part of any one member to sever
himself from the joint family and to enjoy his
hitherto undefined or unspecified share
separately from the others without being
subject to the obligations which arise from
the joint status; whilst the other is the
natural resultant from his decision, the
division. and separation of his share which
may be arrived at either by private agreement
among the parties, or on failure of that, by
the intervention of the Court. Once the
decision has been unequivocally expressed and
clearly intimated to his co-sharers, his right
to his right to have his share allocated
separately from has a title is unimpeachable;
neither the co-sharers can question it nor can
the Court examine his conscience to find out
whether his reasons for separation were well-
founded or sufficient; the Court has s
imply to
give effect to his right to have his share
allocated separately from the others.
In Syed Kasam v. Jorawar Singh (2), Viscount Cave, in
delivering the judgment of the Judicial Committee, observed
“It is settled law that in the case of a joint
Hindu family subject to the law of the
Mitakshara, a severance of estate is effected
by an unequivocal declaration on the part of
one of the joint holders of his intention to
hold his share separately, even though no
actual division takes place : and the
commencement of a suit for partition has been
held to be sufficient.to _effect a severance
in interest even before decree.”
These authorities were quoted with approval by this Court in
Addagada Raghavamma v. Addagada Chenchamma(3), and it was
held that a member of a joint Hindu family seeking to
separate himself from others will have to make known his
intention to other members of his family from whom he seeks
to separate. The
(1) I.L.R. 43 Cal. 1031. (P.C.)
(2) I.L.R. 50 Cal. 84. (P.C).
(3) [1964] 2 S.C.R. 933.
126
correct legal position therefore is that in a case of a
joint Hindu family subject to Mitakshara law, severance of
status is effected by an unequivocal declaration on the part
of one of the jointholders of his intention to hold the
share separately. It is, how.ever, necessary that the
member of the joint Hindu family seeking to separate himself
must make known his intention to other member of the family
from whom he seeks to separate. The process of
communication may, however, vary in the circumstances of
each particular case. It is not necessary that there’
should be a formal despatch to or receipt. by other members
Of the family of the communication announcing the intention
to divide on the part of one member of the joint family.
The proof of such a despatch or receipt of the communication
is not essential, nor its absence fatal to the severance of
the status. It is, of course, necessary that the
declaration to be effective should reach the person or
persons affected by some process appropriate to the given
situation and circumstances of the particular case.
Applying this principle to the facts found in the present
case, we are of opinion that there was a definite and
unequivocal declaration of his intention to separate on the
part of Savoy Ranganna and that intention was conveyed to
respondent no. 1 and other members of the joint family and
respondent no. 1 had full knowledge of the intention of
Savoy Ranganna. It follows therefore that there was a
division of status of Savoy Ranganna from the joint Hindu
family with effect from January 8, 1951 which was the date
of the notice.
It was, however, maintained on behalf of the respondents
that on January 10, 1951 Savoy Ranganna had decided to
withdraw the two notices, Exs. A & E and he instructed the
postal authorities not to forward the notices to respondent
no. 1 and other members of the joint family. It was
contended that there could be no severance of the joint
family after Savoy Ranganna had decided to withdraw the
notices. In our opinion, there is no warrant for this
argument. As we have already stated, there was a unilateral
declaration of an intention by Savoy Ranganna to divide from
the joint family and there was sufficient communication of
this intention to the other coparceners and therefore in law
there was in consequence a disruption or division of the
status of the joint family with effect from January 8, 1951.
When once a communication of the intention is made which has
resulted in the severance of the joint family status it was
not thereafter open to Savoy Ranganna to nullify its effect
so as to restore the family to its original joint status.
If the intention of Savoy Ranganna had stood alone without
giving rise to any legal effect, it could, of course, be
withdrawn by Savoy Ranganna, but having communicated the
intention, the divided status of the Hindu joint family had
already come into existence and the legal consequences had
taken effect. It was not, therefore, possible for Savoy
Ranganna to get back
127
to the old position by mere revocation of the intention. It
is, of course, possible for the members of the family by a
subsequent agreement to reunite, but the mere withdrawal of
the unilateral declaration of the intention to separate
which already had resulted in the division in status cannot
amount to an agreement to reunite. It should also be stated
that the question whether there was a subsequent agreement
between the members to reunite is a question of fact to be
proved as such. In the present case, there is no allegation
in the written statement nor is there any evidence on the
part of the respondents that there was any such agreement to
reunite after January.8, 1951. The view that we have
expressed is borne out by the decision of the Madras High
Court in Kurapati Radhakrishna v. Kurapati Satyanarayana(1)
in which there was a suit for declaration that the sales in
respect of certain family properties did not bind the
plaintiff and for partition of his share and possession
thereof and the plaint referred to an earlier suit. for
partition instituted by the 2nd defendant in the later suit.
It was alleged in that suit that ‘the plaintiff being
unwilling to remain with the defendants has decided to
become divided and he has filed this suit for separation of
his one-fifth share in the assets remaining after
discharging the family debts separated and for recovery of
possession of the same’. All the defendants in that suit
were served with the summons and on the death of the 1st
defendant therein after the settlement of issues, the
plaintiff in that action made the following endorsement on
the plaint : “As the 1st defendant has died and as the
plaintiff had to manage the family, the plaintiff hereby
revokes the intention to divide expressed in the plaint and
agreeing to remain as a joint family member, he withdraws
the suit.’ It was held by the Madras-High Court that a
division in status had already been brought about by the
plaint in the suit and it was not open to the plaintiff to
revoke or withdraw the unambiguous intention to separate
contained in the plaint so as to restore the joint status
and as such the members should be treated as divided members
for the purpose of working Out their respective rights.
We proceed, to consider the next question arising in this
appeal whether the plaint filed on January 13, 1951 was
validly executed by Savoy Ranganna and whether he had
affixed his thumb impression thereon after understanding its
contents. The case of the appellants is that Sri M. S.
Ranganathan prepared the plaint and had gone to the Sharda
Nursing Home at about 9-30 or 10 a.m. on January 13, 1951.
Sri Ranganathan wrote out the plaint which was in English
and translated it to Savoy Ranganna who approved the same.
P.W. 2, the clerk of Sri Ranganathan has deposed to this
effect. He took the ink-pad and affixed the left thumb
impression of Savoy Ranganna on the plaint and also on the
Vakalatnama. There is the attestation of Sri M. S.
Ranganathan on the
(1) (1948)2M.L.J.331.
128
plaint and on the Vakalatnama. The papers were handed over
to P.W. 2 who after purchasing the necessary court-fee
stamps filed the plaint and the Vakalatnama in the court at
about 11.30, a.m. or 12 noon on the same day. The evidence
of P.W. 2 is corroborated by P.W. 5 Chinnanna. Counsel on
behalf of the respondents., however, criticised the evidence
of P.W. 2 on the ground that the doctor, D.W. 6 had said
that the mental condition of the patient was bad and he was
not able to understand things when he examined him on the
morning of January 13, 1951. D.W. 6 deposed that he
examined Savoy Ranganna during his usual rounds on January
13, 1951 between 8 and 9 a.m. and found “his pulse
imperceptible and the sounds of the heart feeble”. On the
question as to whether Savoy Ranganna was sufficiently
conscious to execute the plaint and the Vakalatnama, the
trial court has accepted the evidence of P.W. 2, Keshavaiah
in preference to that of D.W. 6. We see no reason for
differing from the estimate of the trial court with regard
to the evidence of P.W. 2. The trial court has pointed out
that it is difficult to accept the evidence of D.W 6 that
Savoy Ranganna was not conscious on the morning of January
13, 1951. In cross-examination D.W. 6 admitted that on the
night of January 12, 1951 Savoy Ranganna was conscious. He
further admitted that on January 13, 1951 he prescribed the
same medicines to Savoy Ranganna as he had prescribed on
January 12, 1951. There is no note of the necessary data in
the case sheet, Ex. I to suggest that Savoy Ranganna was not
conscious an January 13, 1951. It is therefore not
unreasonable assume that the condition of Savoy Ranganna was
the same on January 13′, 1951 as on January 12, 1951 and
there was no perceptible change noticeable in his condition
between the two dates. In these circumstances it is not
possible to accept the evidence of D.W. 6 that Savoy
Ranganna was unconscious on the morning of January 13, 1951.
It was pointed out on behalf of the respondents that D.W. 7,
Miss Arnold has also given evidence that the condition of
Savoy Ranganna became worse day by day and on the last day
his condition was very bad and he could not understand much,
nor could he respond to her calls. The trial court was not.
impressed with the evidence of this witness. In our
opinion, her evidence suffers from the same infirmity as of
D.W. 6, because the case sheet, Ex. I does not corroborate
her evidence. It is also difficult to believe that D.W. 7
could remember the details of Savoy Ranganna’s. case after a
lapse of three years without the help of any written case
sheet There is also an important discrepancy in the evidence
of D.W. 7. She said that on January 13, 1951 she called D.W.
6 at 12 noon since the condition of the patient was very
bad, but D.W. 6 has said that he did not visit Savoy
Ranganna after 8 or 9 a.m. on that date. Comment was made
by Counsel on behalf of the respondents that Sri Ranganathan
was not examined as a witness to prove that he had prepared
129
the plaint and Savoy Ranganna had affixed his thumb
impression in his presence. In our opinion, the omission of
Sri Ranganathan to give evidence in this case is
unfortunate. It would have been proper conduct on his. part
if he had returned the brief of the appellants and given
evidence in the case as to the execution of the plaint and
the Vakalatnama. But in spite of this circumstance we
consider that the, evidence of the appellants or, this
aspect of the case must be accepted as true. It is
necessary to notice that the plaint and the Vakalatnama are
both counter-signed by Sri Ranganathan–a responsible
Advocate-and it is not likely that he would subscribe his
signatures to these documents if they had been executed by a
person who was unable to understand the contents thereof.
As we have already said, it is unfortunate that the Advocate
Sri Ranganathan has not been examined as a witness, but in
spite of this omission we are satisfied that the evidence-
adduced in the case has established that Savoy Ranganna
validly executed the plaint and the Vakalatnama and that he
was conscious and was in full possession of his mental
faculties at the time of the execution of these two
documents. It follows therefore that the, appellants and
respondent no. 4 who are the daughters and legal
representatives of Savoy Ranganna are entitled to a decree
in the terms granted by the District Judge of Mysore.
For the reasons expressed, we hold that this appeal should
be allowed, the judgment of the Mysore High Court dated
December5, 1960 in R.A. no. 81 of 1956 should be set aside
and that of’ the District Judge, Mysore dated October 31,
1955 in O.S. no. 34 of 1950-51 should be restored. The
appeal is accordingly allowed with costs.
V.P.S. Appeal allowed.
130