{"id":142723,"date":"1967-01-23T00:00:00","date_gmt":"1967-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/valliammai-achi-vs-nagappa-chettiar-ors-on-23-january-1967"},"modified":"2016-11-27T06:03:43","modified_gmt":"2016-11-27T00:33:43","slug":"valliammai-achi-vs-nagappa-chettiar-ors-on-23-january-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/valliammai-achi-vs-nagappa-chettiar-ors-on-23-january-1967","title":{"rendered":"Valliammai Achi vs Nagappa Chettiar &amp; Ors on 23 January, 1967"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Valliammai Achi vs Nagappa Chettiar &amp; Ors on 23 January, 1967<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1967 AIR 1153, \t\t  1967 SCR  (2) 448<\/div>\n<div class=\"doc_author\">Author: K Wanchoo<\/div>\n<div class=\"doc_bench\">Bench: Wanchoo, K.N.<\/div>\n<pre>           PETITIONER:\nVALLIAMMAI   ACHI\n\n\tVs.\n\nRESPONDENT:\nNAGAPPA CHETTIAR &amp; ORS.\n\nDATE OF JUDGMENT:\n23\/01\/1967\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nBACHAWAT, R.S.\nSHELAT, J.M.\n\nCITATION:\n 1967 AIR 1153\t\t  1967 SCR  (2) 448\n\n\nACT:\nHindu  Law-Joint family property bequeathed by\twill--Effect\non character of property.\nIndian Succession Act, (39 of 1925) s. 180-Scope of election\nunder.\n\n\n\nHEADNOTE:\nA Hindu died after making a will in respect of certain joint\nfamily\tproperties  and appointed his son as  the  executor.\nThe  son  obtained pro. bate of the will, provided  for\t the\nlegacies  indicated therein and came into possession of\t the\nresidue\t of  the  property.   Thereafter,  he  adopted\t the\nplaintiff.   The  adoptive  father  died  after\t the   Hindu\nSuccession  Act came into force and the plaintiff filed\t the\nsuit claiming two-thirds share of the properties left by his\nfather.\t  The defendants (viz., the widow and mother Of\t the\nplaintiffs-adoptive  father) contended that the\t conduct  of\nthe plaintiff's adoptive father-in obtaining the probate  of\nthe will and carrying out its terms amounted to an  election\nand  therefore\tthe  father became  absolute  owner  of\t the\nresidue of the properties bequeathed to him by the will, and\nas  the\t election  to take under the will,  would  bind\t the\nplaintiff  also he could not claim half the property on\t the\nground that it was joint family property of himself and\t his\nfather.\t The trial Court decreed the suit, which in  -appeal\nwas  upheld by the High Court.\tThe defendants\tappealed  to\nthis Court.\nHELD:The appeal must be dismissed.\nThe character of the property did not change because of\t the\nwill  and  it would still be joint family  property  in\t the\nhands of the plaintiff's father as far as his male issue was\nconcerned.  Further, as soon as the plaintiff was adopted he\nacquired interest in the joint family property in the  hands\nof  his\t adoptive  father  and\tthis  interest\tof  his\t was\nindependent  of that of his father.  In\t such  circumstances\neven  if his father could be said to have made\tan  election\nthere  could be no question of the plaintiff being bound  by\nthat  election, for he was not claiming through his  father.\n[453 C, E-F]\nElection  under s. 180 of the Indian Succession\t Act,  would\nonly  arise where the legate derives some benefit  from\t the\nwill to which he would not be entitled except for the  will.\nIn  such a case he has to elect whether to confirm the\twill\nor  dissent from it.  But where there is no question of\t the\nlegate deriving any benefit from the will to which he  would\nnot be entitled except for the will the fact at he  confirms\nthe  will  and\taccepts what the  will\tprovides  would\t not\naccount to election, for he would have in any case got\twhat\nthe  will  gave him.  Thus election only  arises  where\t the\nlegate\thas to choose between his own property\twhich  might\nhave  been testator and which the testator has given to\t the\nlegate by the will. [451 H-452 C]\n\n\n\nJUDGMENT:\n<\/pre>\n<p>CIVIL APPELLATE JURISDICTION: Civil Appeal No. 806 of 1964.<br \/>\nAppeal\tby special leave from the judgment and decree  dated<br \/>\nJuly 13, 1962, of the Madras High Court in Appeal No. 347 of<br \/>\n1958.\n<\/p>\n<p><span class=\"hidden_text\">\t\t\t    449<\/span><\/p>\n<p>C.   B. Agarwala, B. Dutta, T. S. Krishnaswamy Iyenr, P.  L.<br \/>\nMeyyappan and J. B. Dadachanji, for the appellant.<br \/>\nA.   K. Sen and R. Ganapathji Iyer, for respondent.  No. 1.<br \/>\nK.   R. Chaudhuri and K. Rajendra Chaudhury, for respondent<br \/>\nNo. 2.\n<\/p>\n<p>The Judgment of the Court was delivered by<br \/>\nWanchoo,  J. This is an appeal by special leave against\t the<br \/>\njudgment of the Madras High Court.  The facts are not now in<br \/>\ndispute and may be briefly narrated.  A suit was brought  by<br \/>\nNagappa Chettiar, respondent No. 1 (hereinafter referred  to<br \/>\nas  the\t respondent) against Villiammi\tAchi  appellant\t and<br \/>\nNachiammai  Achi  now  dead and\t represented  by  her  legal<br \/>\nrepresentative.\t The respondent claimed two-thirds share  of<br \/>\nthe  properties left by his father, Pallaniappa\t and  prayed<br \/>\nfor  a\tdecree for separate possession of that\tshare  after<br \/>\npartition.  The facts on which this claim was based are\t not<br \/>\nnow in dispute and are these.  The respondent is the adopted<br \/>\nson  of\t Pallaniappa.  having been  adopted  in\t 1941.\t The<br \/>\nappellant  is the widow of Pallaniappa and  Nachiammai\tAchi<br \/>\nwas  Pallaniappa&#8217;s mother.  Pallaniappa&#8217;s father also  named<br \/>\nNagappa\t had considerable properties.  This Nagappa  made  a<br \/>\nwill  on  June 10, 1934 by which after making  certain\tdis-<br \/>\npositions,  in favour of certain persons including  his\t own<br \/>\nwife  he  gave\tthe residue of his  property  absolutely  to<br \/>\nPallaniappa  and appointed him as the executor of the  will.<br \/>\nIn one place the will stated that all the property except  a<br \/>\nsmall  part was the exclusive and self-acquired property  of<br \/>\nthe testator while at the end the testator said that he\t had<br \/>\nmade the will with the full consent of his son Pallaniappa..<br \/>\nAfter  Nagappa&#8217;s  death in July\t 1934  Pallaniappa  obtained<br \/>\nprobate of the will and after providing for the legacies  to<br \/>\nothers\tas  indicated therein came into\t possession  of\t the<br \/>\nresidue of the property.  In 1941 the respondent was adopted<br \/>\nby Pallaniappa.\n<\/p>\n<p>In  the trial court there was a dispute between the  parties<br \/>\nwhether\t Pallaniappa and his father were members of a  joint<br \/>\nHindu  family and whether properties left  by  Pallaniappa&#8217;s<br \/>\nfather were the joint family properties of both.  But it has<br \/>\nbeen  found  that all the properties left  by  Pallaniappa&#8217;s<br \/>\nfather\twere joint family properties of Pallaniappa and\t his<br \/>\nfather\twhich Pallaniappa could acquire by  survivorship  on<br \/>\nhis  father&#8217;s  death.  This finding was upheld by  the\tHigh<br \/>\nCourt and is not now in dispute.  We have to proceed on\t the<br \/>\nbasis that even though Pallaniappa&#8217;s father said in the will<br \/>\nthat  the  properties, except a small part, were  his  self-<br \/>\nacquired  properties,. in fact all the properties  mentioned<br \/>\nin  the\t will  of Pallaniappa&#8217;s, father\t were  joint  family<br \/>\nproperties of Pallaniappa and his father.<br \/>\nThe  case  of  the  appellant  was  that  even\tthough\t the<br \/>\nproperties  left by Pallaniappa&#8217;s father were  joint  family<br \/>\nproperties which<br \/>\nMISup.CI\/67-15<br \/>\n<span class=\"hidden_text\">450<\/span><br \/>\nPallaniappa  could acquire by survivorship, the\t conduct  of<br \/>\nPallaniappa  in obtaining probate of the will  and  carrying<br \/>\nout   its   terms  amounted  to\t election   and\t  thereafter<br \/>\nPallaniappa  became  absolute owner of the  residue  of\t the<br \/>\nproperties  bequeathed to him by the will.  The\t consequence<br \/>\nof this was that when Pallaniappa adopted the respondent  in<br \/>\n1941  long  after he had become -the absolute owner  of\t the<br \/>\nproperties,  the  respondent  acquired no  interest  in\t the<br \/>\nproperties  left  by  his  grand-father\t by  virtue  of\t the<br \/>\nadoption.  Pallaniappa died. on September 16, 1956 after the<br \/>\nHindu Succession Act, (No. 30 of 1956) came into force.\t  As<br \/>\nthere  was no joint family property of Pallaniappa  and\t the<br \/>\nrespondent   at\t the  time  of\tPallaniappa&#8217;s  ,death,\t the<br \/>\nrespondent  could not claim half the property on the  ground<br \/>\nthat   it   was\t joint\tfamily\tproperty  of   himself\t and<br \/>\nPallaniappa,  as  Pallaniappa&#8217;s election to take  under\t the<br \/>\nwill of his father would bind the respondent also.  Reliance<br \/>\nin  this  connection  was placed ,on S. 180  of\t the  Indian<br \/>\nSuccession Act, (No. 39 of 1925) also.\n<\/p>\n<p>The reply on behalf of the respondent to this contention was<br \/>\ntwo-fold.   In the first place, it was urged that there\t was<br \/>\nno question of election even by Pallaniappa in this case and<br \/>\ns. 180 of the Indian Succession Act would not apply.  It was<br \/>\nfurther\t urged\tthat  even  assuming  that  there  could  be<br \/>\nelection by Pallaniappa the respondent would not be bound by<br \/>\nthat  election as the property left by his  grandfather\t was<br \/>\njoint  family  property\t and the  respondent  would  acquire<br \/>\ninterest therein as soon ;is he was adopted by\tPallaniappa,<br \/>\neven though Pallaniappa might have been the sole co-parcener<br \/>\nfor sometime i. e. between 1934 and 1941.  This interest  of<br \/>\nthe respondent in the joint family property was\t independent<br \/>\nof his father Pallaniappa and even though Pallaniappa  might<br \/>\nbe  bound  by  any  election that he  might  have  made\t the<br \/>\nrespondent  would not be so bound and would be\tentitled  to<br \/>\ntreat the property as joint family property in the hands of,<br \/>\nPallaniappa  in\t which he would acquire\t interest  on  being<br \/>\nadopted.  In the second place the respondent&#8217;s case was that<br \/>\nin any case after his adoption Pallaniappa threw the ,entire<br \/>\nproperty  into the family hotch-pot and therefore it  became<br \/>\njoint family property by blending.\n<\/p>\n<p>Two questions therefore arose for consideration in this case<br \/>\nnamely&#8211;(i) whether there was election by Pallaniappa and if<br \/>\nso  whether  the respondent would be bound by it,  and\t(ii)<br \/>\nwhether\t Pallaniappa  threw  the entire\t property  into\t the<br \/>\nfamily\thotch-pot  after  adoption  of\tthe  respondent\t and<br \/>\ntherefore it became joint family property in any case.\t The<br \/>\ntrial  court accepted the case put forward on behalf of\t the<br \/>\nrespondent and decreed the suit passing a preliminary decree<br \/>\ngiving two-thirds share to the respondent and one-sixth each<br \/>\nto the appellant,, and the mother of Pallaniappa.<br \/>\nThe  appellant\tthen appealed to the High Court.   The\tHigh<br \/>\nCourt  dismissed the appeal.  On the question  of  election,<br \/>\nthe<br \/>\n<span class=\"hidden_text\">\t\t\t    451<\/span><br \/>\nHigh  Court  held that as Pallaniappa and  his\tfather\twere<br \/>\nmembers\t of a joint Hindu family and as the entire  property<br \/>\nleft  by  Pallanippa&#8217;s\tfather was  joint  family  property,<br \/>\nPallaniappa had interest in the residue as a survivor and in<br \/>\nconsequence there was no question of election by Pallaniappa<br \/>\nfor  all the property he got by will would have come to\t him<br \/>\nby survivorship.  In such a case there could be no  question<br \/>\nof  election,  for  Pallaniappa had title  to  the  property<br \/>\nirrespective of the will.  The High Court also held that  in<br \/>\nany  case  the claim of the respondent as a  member  of\t the<br \/>\njoint family was not under his father but independent of him<br \/>\nand  therefore the respondent would not be bound-,  even  if<br \/>\nPallaniappa  were held to have made an election.   The\tHigh<br \/>\nCourt also found in favour of the respondent on the question<br \/>\nwhether the property was thrown into family hotch-pot  after<br \/>\nthe  adoption of the respondent and in the result  dismissed<br \/>\nthe appeal.\n<\/p>\n<p>The  High  Court having refused to grant  a  certificate  to<br \/>\nappeal to this Court, the appellant applied for and obtained<br \/>\nspecial\t leave from this Court; and that is how\t the  matter<br \/>\nhas come before us.\n<\/p>\n<p>The same two questions, as indicated above, arise for consi-<br \/>\nderation  in  this  appeal.  We\t shall\tfirst  consider\t the<br \/>\nquestion of election in the background of the fact that\t the<br \/>\nentire\tproperty  left\tby Pallaniappa&#8217;s  father  was  joint<br \/>\nfamily\t property  of  himself\tand  Pallaniappa  and\tthat<br \/>\nPallaniappa  had interest in that property as a member of  a<br \/>\njoint  Hindu family.  Section 180 of the  Indian  Succession<br \/>\nAct  which enunciates the doctrine of election as  known  to<br \/>\nEnglish law for this country is in these terms :\n<\/p>\n<blockquote><p>\t      &#8220;Where  a\t person, by his\t will  professes  to<br \/>\n\t      dispose of something which he has no right  to<br \/>\n\t      dispose  of,  the\t person to  whom  the  thing<br \/>\n\t      belongs  shall  elect either to  confirm\tsuch<br \/>\n\t      disposition or to dissent from it, and, in the<br \/>\n\t      latter  case,  he shall give up  any  benefits<br \/>\n\t      which  may have been provided for him  by\t the<br \/>\n\t      will.&#8221;\n<\/p><\/blockquote>\n<p>It  is\turged on behalf of the appellant that s.  180  would<br \/>\napply  to  the facts of the present case  for  the  property<br \/>\nwilled\tby Pallaniappa&#8217;s father was not his which  he  could<br \/>\nwill  away  as\tit  was\t joint\tfamily\tproperty  in   which<br \/>\nPallaniappa  who  was the residuary legatee had\t also  equal<br \/>\ninterest.   Therefore Pallaniappa had either to confirm\t the<br \/>\ndisposition or dissent from it, and his conduct showed\tthat<br \/>\nhe  had confirmed it for he took out probate.  Therefore  it<br \/>\nmust  be held that after probate was taken out\tthe  residue<br \/>\nbecame\tthe  absolute property of Pallaniappa and  lost\t its<br \/>\ncharacter as joint Hindu family property.<br \/>\nNow it is clear from s. 180 that after the legatee elects to<br \/>\ndissent from the will he must give up any benefits  provided<br \/>\nfor him by the will.  This shows that election under s.\t 180<br \/>\nwould only arise<br \/>\n<span class=\"hidden_text\">452<\/span><br \/>\nwhere  the  legatee derives some benefit from  the  will  to<br \/>\nwhich he would not be entitled except for the will.  In such<br \/>\na  case\t he  has to elect whether to  confirm  the  will  or<br \/>\ndissent\t from  it.  But where there is no  question  of\t the<br \/>\nlegatee deriving any benefit from the will to which he would<br \/>\nnot  be\t entitled  except for the will,\t the  fact  that  he<br \/>\nconfirms  the will and accepts what the will provides  would<br \/>\nnot  amount to election, for he would have in any  case\t got<br \/>\nwhat the will gave him.\t Thus election only arises where the<br \/>\nlegatee\t has to choose between his own property which  might<br \/>\nhave  been  willed away to somebody else  and  the  property<br \/>\nwhich  belongs\tto the testator and which the  testator\t has<br \/>\ngiven to the legatee by the will.  The matter is brought out<br \/>\nin Halsbury&#8217;s Laws of England, Third Edition, Vol. 14, at p.<br \/>\n588, para 1091 in the following words<br \/>\n\t      &#8220;Where a testator by his will purports to give<br \/>\n\t      property\tto A which in fact belongs to B\t and<br \/>\n\t      at  the  same  time out of  his  own  property<br \/>\n\t      confers,\tbenefits  on  B &#8230;.  in  such\tcir-\n<\/p>\n<p>\t      cumstances  B is not allowed to take the\tfull<br \/>\n\t      benefit  given  him by the will unless  he  is<br \/>\n\t      prepared to carry into effect the whole of the<br \/>\n\t      testator&#8217;s  dispositions.\t He  is\t accordingly<br \/>\n\t      put  to his election to take either under\t the<br \/>\n\t      instrument  or  against it.  If he  elects  to<br \/>\n\t      take  under  the will he is bound and  may  be<br \/>\n\t      ordered to convoy his own property to A; if he<br \/>\n\t      elects  to take against the will and  to\tkeep<br \/>\n\t      his own property, and so disappoints A,  then,<br \/>\n\t      he  cannot  take any benefits under  the\twill<br \/>\n\t      without compensating A out of such benefits to<br \/>\n\t      the  extent  of the value of the\tproperty  of<br \/>\n\t      which A is disappointed.&#8221;\n<\/p>\n<p>Following this\tprinciple  the High Court held that  as\t the<br \/>\nproperty which the  will  gave to Pallaniappa would  in\t any<br \/>\ncase have come to him as a member of the joint family, there<br \/>\nwas  no\t question of election even by  Pallaniappa  in\tthis<br \/>\ncase.  This view appears to us to be correct.<br \/>\nBut  even assuming that there was some kind of\telection  by<br \/>\nPallaniappa  we\t cannot see how the nature of  the  property<br \/>\nleft  by  Pallaniappa&#8217;s father would change  merely  because<br \/>\nPallaniappa&#8217;s\tfather\tmade  a\t will  giving  the   residue<br \/>\nabsolutely  to Pallaniappa and Pallaniappa took out  probate<br \/>\nof  the\t will.\t The property being  joint  family  property<br \/>\nPallaniappa&#8217;s  father was not entitled to will it  away\t and<br \/>\nhis making a will would make no difference to the nature  of<br \/>\nthe property when it came into the hands of Pallaniappa.   A<br \/>\nfather\tcannot\tturn  joint family  property  into  absolute<br \/>\nproperty of his son by merely making a will, thus  depriving<br \/>\nsons of the son who might be born thereafter of their  right<br \/>\nin  the joint family property.\tIt is well settled that\t the<br \/>\nshare  which a co-sharer obtains on partition  of  ancestral<br \/>\nproperty  is ancestral property as regards his male  issues.<br \/>\nThey take an interest in it by birth whether<br \/>\n<span class=\"hidden_text\">453<\/span><br \/>\nthey  are in existence at the time of partition or are\tborn<br \/>\nsubsequently  : [see Hindu Law by Mulla, Thirteenth  Edition<br \/>\np. 249, para 223 (2) (4)].  If that is so and the  character<br \/>\nof  the ancestral property does not change so far  as  -sons<br \/>\nare concerned even after partition, we fail to see how\tthat<br \/>\ncharacter can change merely because the father makes a\twill<br \/>\nby  which he gives the residue of the joint family  property<br \/>\n(after\tmaking certain bequests) to the son.  A father in  a<br \/>\nMitakshara  family has a very limited right to make  a\twill<br \/>\nand  Pallaniappa&#8217;s father could not make the will  disposing<br \/>\nof  the\t entire joint family property, though  he  gave\t the<br \/>\nresidue to his son.  We are therefore of opinion,that merely<br \/>\nbecause\t Pallanappa&#8217;s father made the will  and\t Pallaniappa<br \/>\nprobably  as a dutiful son took out probate and carried\t out<br \/>\nthe  wishes of his father, the nature of the property  could<br \/>\nnot change and it will be joint family property in the hands<br \/>\nof Pallaniappa so far as his male issues are concerned.<br \/>\nFurther it is equally well settled that under the Mitakshara<br \/>\nlaw each son upon his birth takes an interest equal to\tthat<br \/>\nof  his father in ancestral property, whether it be  movable<br \/>\nor  immovable.\tIt is very important to note that the  right<br \/>\nwhich  the son takes at his birth in the ancestral  property<br \/>\nis  wholly  independent of his father.\tHe  does  not  claim<br \/>\nthrough\t the father&#8230;.&#8221; (see Mulla&#8217;s Hindu Law,  Thirteenth<br \/>\nEdition,  p. 251, para 224).  It follows therefore that\t the<br \/>\ncharacter  of  the  property did not  change  in  this\tcase<br \/>\nbecause\t of  the will of Pallaniappa&#8217;s father and  it  would<br \/>\nstill  be joint family property in the hands of\t Pallaniappa<br \/>\nso far as his male issue was concerned.\t Further as soon  as<br \/>\nthe respondent was adopted he acquired interest in the joint<br \/>\nfamily\tproperty  in  the  hands  of  Pallaniappa  and\tthis<br \/>\ninterest  of his was independent of his father\tPallaniappa.<br \/>\nIn  such circumstances even if Pallaniappa could be said  to<br \/>\nhave  made  an\telection there can be  no  question  of\t the<br \/>\nrespondent  being  bound  by that election, for\t he  is\t not<br \/>\nclaiming through his father.\n<\/p>\n<p>In  this view of the matter, it is unnecessary\tto  consider<br \/>\nthe  question whether Pallaniappa, after  the,\trespondent&#8217;s<br \/>\nadoption, threw the property into. the family hotch-pot.<br \/>\nThe  appeal  therefore fails and is  hereby  dismissed\twith<br \/>\ncosts.\n<\/p>\n<pre>Y.P.\t\t    Appeals dismissed.\nSup.CI\/67-16\n<span class=\"hidden_text\">454<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Valliammai Achi vs Nagappa Chettiar &amp; Ors on 23 January, 1967 Equivalent citations: 1967 AIR 1153, 1967 SCR (2) 448 Author: K Wanchoo Bench: Wanchoo, K.N. PETITIONER: VALLIAMMAI ACHI Vs. RESPONDENT: NAGAPPA CHETTIAR &amp; ORS. DATE OF JUDGMENT: 23\/01\/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. SHELAT, J.M. CITATION: 1967 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-142723","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Valliammai Achi vs Nagappa Chettiar &amp; Ors on 23 January, 1967 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/valliammai-achi-vs-nagappa-chettiar-ors-on-23-january-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Valliammai Achi vs Nagappa Chettiar &amp; 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