1. This is a Letters Patent appeal from a judgment of Mr. Justice Mudholkar dismissing the appeal of the plaintiffs which they had filed from a judgment of the First Additional District Judge, East Berar Division, Amravati, in Civil Appeal No. 23-A of 1946. The said Civil Appeal No. 23-A of 1946 was filed by the plaintiffs from a judgment and decree passed by the learned Additional Civil Judge, Class II, Wun, in Civil Suit No. 1-A of 1945. By the said judgment and decree the learned Judge dismissed the suit of the plaintiffs for possession of certain properties mentioned in schedule A to the plaint and also for possession of certain other properties mentioned in schedules B and C to the plaint.
2. Now, a few facts leading up to the present litigation may be briefly stated, One Deorao had two wives. The names of both the wives happened to be the same. Both were called Chandrabhaga. For convenience, therefore, we shall refer to the first wife of Deorao as Chandrabhaga I and the second wife as Chandrabhaga II. Deorao died on 10th January, 1933. His first wife Chandrabhaga had died on 18th August, 1927. Through his first wife, Deorao had a son, Shriniwas, and this Shriniwas is plaintiff No. 1 in the present litigation. Plaintiffs Nos. 2, 3 and 4 are the sons of Shriniwas. On 28th September, 1929 Deorao married his second wife. This was, as I have just stated above, about two years after the death of his first wife. The plaintiff's case is that the property which is the subject-matter in the suit was the joint family property of Deorao and his son Shriniwas during their life-time. When Shriniwas discovered that his father desired to marry a second wife after the death of his mother who was Deorao's first wife, he did not appreciate the idea. This led to embitterment of feelings between the father and the son and the embitterment led to a severance of status between the father and the son. This, say the plaintiffs, took place in January, 1928. It may be noted at this stage that in January, 1928 Deorao had not yet married his second wife. It is the plaintiffs' contention that although the severance of status between the father and the son took place in the year 1928, the actual division of the property by metes and bounds had not taken place in that year, but had taken place in the year 1930 when the suit property was physically delivered into the possession of Deorao. Certain other properties of equal value were delivered into the possession of Shriniwas. This, according to the plaintiffs' case, took place on 10th March, 1930. As I have mentioned above, Deorao died on 10th January, 1933 and the plaintiffs say that ever since then the suit property has been in possession of Deorao's second wife Chandrabhaga and her daughters, Kamal and Wasanti, who are defendants 2 and 3 respectively in the suit. Deorao's second wife Chandrabhaga is defendant No. 1 in this litigation. The suit is filed within 12 years of the date of Deorao's death and therefore, say the plaintiffs, it is within time. In this suit, the plaintiffs have asked for recovering possession of the properties which are mentioned in the various schedules to the plaint.
3. The suit is resisted by the defendants. Their contention is that what happened on 10th March, 1930 was a family arrangement between Deorao and Shriniwas. It was one of the terms of the document which was drawn up on that date that the property which was allotted to the share of Deorao was to devolve, upon the death of Deorao, on the issues of Deorao born of his second wife. It was to devolve upon these issues as full owners thereof. In case no issues were born to the second wife of Deorao from Deorao, the property which on 10th March, 1930 was allotted to the share of Deorao, was to devolve upon his second wife Chandrabhaga after his death. This was one of the terms of the document dated 10th March, 1930. The next relevant term of the document was that neither Shriniwas nor his issues born in future would assert any right to, or raise any objection in respect of, or claim any right of inheritance to, the property allotted to Deorao. It was provided that the property which was allotted to Deorao and whose possession was delivered over to Deorao on 10th March, 1930 was to be regarded as the self-acquired property of Deorao's second wife Chandrabhaga. These were the important terms of the document which was drawn up on 10th March, 1930. It is a registered document.
4. Now, the question which has arisen in this appeal is as to the nature of the transaction which took place on 10th March, 1930 and which is evidenced by the document of the same date. The defendants rely upon this transaction as being a family arrangement and the learned advocate Mr. Bobde appearing for the plaintiffs strenuously challenges that transaction as being a void transaction, void as it altered the course of succession and rendered nugatory the principle of Hindu Law in the matter of inheritance. Now, in this case, the first thing which must be remembered is that Mr. Justice Mudholkar has definitely recorded a finding in the course of his judgment that the transaction dated 10th March, 1930 was in the nature of a family arrangement. According to Mr. Justice Mudholkar, and be it noted that Mr. Justice Mudholkar confirmed the finding of the Courts below, the real object or the dominant intention of the transaction of the 10th March, 1930 was to settle the disputes which were existing between the father and the son, Deorao and Shriniwas, at the material time. In this connection, I can do no better than quote the words of Mr. Justice Mudholkar from paragraph 6 of his judgment. This is what the learned Judge has said :--
'It is quite clear that this partition is in the nature of a family arrangement because there were unquestionably disputes between the father and the son, not only regarding the father's action in contracting a second marriage and thus creating the possibility of introducing additional co-parceners in the family but also regarding the extent of the family property since some of the property which was actually partitioned was claimed by Deorao as his self-acquired property.'
This, as I have just said above, is a finding of fact which it would not be open to us to disturb in the Letters Patent appeal. The point to be borne in mind is that according to all the learned Judges in this case who have dealt with this matter, the real purpose or the dominant intention of the parties who entered into the transaction of the 10th March, 1930 was not to alter the rule of succession, though incidentally the alteration might have resulted, but the dominant intention was to have family peace and to settle the disputes which were undermining the harmony of the family, the disputes relating not only to the contemplated second marriage of Deorao but also the claim which Shriniwas putting up even in respect of the self-acquired property of Deorao. It would not be open to us, while deciding the Letters Patent appeal, to decide whether in point of fact Deorao had any self-acquired property or not. That point is a concluded point and we have before us a finding of Mr. Justice Mudholkar that one of the disputes which were raging between the father and the son in the year 1930 was that whereas Deorao was contending that a certain property was his self-acquisition, his son was contending to the contrary effect. It was this dispute which was primarily sought to be settled by the transaction between the father and the son entered into by them on 10th March, 1930. This is the first filing to remember before we proceed further.
5. Now, I may turn conveniently to the text of the document dated 10th March, 1930. It is not necessary to reproduce the whole of the document at this stage. The material portions of the document read thus :
'Deorao Baliram's present wife (and by the present wife was meant his second wife) and her issue will not claim their share from the property received by No, 2 Shriniwas, and assert any right or raise any objection or claim any right of inheritance ..... The entire property that has gone to the share of Deorao Baliram will remain with the issues that Deorao Baliram may have from the new wife, as full owners. If he does not get any issue from his wife, that entire property will, on Deorao Baliram's death, go to his wife. At that time neither Shriniwas Deorao himself nor his issue will assert any right to or raise any objection in respect of (or claim any right or inheritance to) the said property and that property will become Deorao Baliram's present wife Sou. Chandrabhaga's self-acquired property of full ownership and rights. She will be fully entitled to sell, mortgage, gift or otherwise transfer the said property. If Shriniwas or his issue asserts any right to or raise any objection in respect of (or, claim any right of Inheritance to) the property devolving upon Mst. Chandrabhagabai, Shriniwas personally and his property will be liable therefor,'
6. Now, the learned -advocate Mr. Bobde appearing for the plaintiffs has contended before us that when Deorao and Shriniwas sat down on 10th March, 1930 and settled amongst themselves that the property which had been allotted to the share at Deorao would remain with the issues that might in future be born to Deorao from his second wife as full owners and that in case issues were not born of the second wife, the entire properly would devolve upon Deorao's second wife after the death of Deorao and that neither Shriniwas nor any issues born to him in future would he entitled to lay any claim by way of inheritance to that property, they altered the mode of succession and ignored the principle of Hindu Law. Such being the case, says Mr. Bobde, the transaction of the 10th March, 1930 was a void transaction and the defendants could not take any benefit under that transaction. Mr. Bobde says that once the Court came to the conclusion that the transaction was a void transaction in so far as the mode of succession was sought to be altered by it, the plaintiffs must succeed in the present suit.
7. In support of the above submission Mr. Bobde has invited our attention to certain cases and the first case to which our attention is invited by him is the Privy Council case of Purna Shashi Battacharji v. Kalidhan Rai Chowdhuri ILR 38 Cal 603. Now, it is to be remembered that in the above mentioned Calcutta case two brothers K and N, who were subject to the Dayabhaga School of Hindu Law, executed a document whereby after reciting that
'whereas body is mortal it is impossible to say what may be fall at what time, and as ruin may. ensue from disputes relating to the shares arising in future among son, daughter, daughter's son and childless widow unless some rules are regularly framed, and it has accordingly become necessary to prescribe a set of rule in that behalf, and hence the rules mentioned below are laid down : these shall become operative and come into force on our death.'
they purported to provide for the permanent devolution of their respective properties in the direct male line, including adopted sons, with the condition that in case of failure of lineal male heirs in one branch the properties belonging to that branch should go to the other, subject to the same rule, and only in the absence of male descendants in the direct line in either branch were the properties to go to female heirs and their descendants. D died in 1868 leaving a son A, a daughter D, his brother N and their mother C. A died in 1872 without any issue, and C in March, 1901. The plaintiffs, who were the sons of D, instituted a suit on 29th July, 1901 against N, and they claimed, as next reversioners to A who was their maternal uncle, the properly which originally belonged to K and which had since come into the possession of N the defendant. N died shortly after the suit was brought and his sons were substituted for him on the record. Their contention was that under the instrument of 1866 the properties in dispute passed on the death of A to N and on his death, to them. The Calcutta High Court reversed the decision of the Subordinate Judge and came to the conclusion that in the circumstances that had actually happened, A under the document of 1866 had, in the properties in suit, an absolute estate defeasible in case of death without male issue, and as he died without male issue the heirs of K would succeed. This decision of the Calcutta High Court was reversed by the Privy Council and the Privy Council held that the clear intention of the instrument of 1866 was to vary the rule of Hindu Law and to control the devolution of the properties until the indefinite failure at some remote period of the male line of K and N; and that such an attempt to alter the mode of succession was, on the principles laid down in the case of Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 Ben LR 377, illegal and void. Their Lordships of the Privy Council observed that throughout the instrument of 1866 there was no indication of an intention to make a gift to any person. Referring to paragraph 4 of the instrument, their Lordships said that the recitals therein clearly showed that the 'sons and grandsons', who took the properties left by the executants, acquired them as 'full owners.' Their Lordships examined the general policy of the instrument and upon the examination and scrutiny of the general policy of the instrument, they came to the conclusion that the instrument was intended to vary the rule of Hindu law, and to control the devolution of the properties until the indefinite failure at some remote period of the male line of both brothers. It is therefore clear that the decision of that case turned round the intention which underlay the instrument of 1866. Had their Lordships of the Privy Council come to the conclusion that the dominant intention of the instrument of 1866 was something other than the intention to alter the mode of succession, their Lordships, with great respect, would have arrived at a different conclusion from the one arrived at by them. So, the whole case turns upon one thing and one alone, namely, what was the dominant intention of the parties, who sat down together in this case on 10-3-1930 and entered into a certain transaction? Was the dominant intention to settle the disputes which were then raging between the father and the son; or was the dominant intention to alter the mode of succession which obtained the Hindu Law? If the former, the Calcutta case would not assist Mr. Bobde's client; if the latter, Mr. Bobde's client must succeed in this litigation.
8. Now, turning to the transaction of 10-3-1930,'which transaction is the bone of contention in this case, it would appear that in respect of some property which was the self-acquired property of Deorao, a gift of certain interest in that property was made by Deorao to Shriniwas, and this feature would immediately distinguish the Calcutta case from the present case, because in the Calcutta case their Lordships of the Privy Council observed that throughout the instrument of 1966 there was no indication of any intention to make a gift to any person. Here, in this case, as I have mentioned above, Mr. Justice Mudholkar has recorded a finding of fact that some of the properties which were concerned in the transaction of 10-3-1930 were the self-acquired properties of Deorao and that even in respect of these self-acquired properties a certain interest was transferred by Deorao to his son Shriniwas, which, in the circumstances of the case, amounted to making a gift by Deorao to his son Shriniwas. That there were disputes between the father and the son prior to 10-3-1930 is abundantly established in this case, and this is a finding of fact which it would not be permissible to us to disturb. I may nevertheless refer to that finding. The learned Judge of the trial Court in paragraph 18 of his judgment observed that Shriniwas did not like the idea of second marriage of Deorao, his father, and that was the reason why the severance of interest took place in the year 1928. Then the learned Judge said:
'Deorao got himself married in 1929. Shriniwas knew very well that the marriage of his father was not purely for the sake of intellectual companionship. There was every possibility of birth of new sons to his father. Shriniwas had no evidence of oral partition with him. Birth of each son to Deorao meant diminution of Shriniwas's share. This was the idea which dominated the mind of Shriniwas.'
In saying this the learned Judge of the trial Court was distinctly referring to the state of mind prevailing between the father and the son prior to the transaction of 10-3-1930. It was a state of dispute between the father and son. Turning to the view of the matter taken by the learned Judge of the lower appellate Court, the learned Judge observed in paragraph 16 of his judgment:
'He (meaning thereby Shriniwas) had received half the share in the family estate which was more than what he was entitled in view of marriage of Deorao with defendant No. 1, and he must be naturally keen to see that the property given to him is not touched by anyone in future except by his own issues. There was the possibility of defendant No. 1's demanding her share or of Deorao's begetting male issues from the defendant No. 1. It was necessary to set at rest plaintiff No. 1's fours and apprehensions in that connection.'
I am referring to this in order to emphasise that the dominant idea which underlay the transaction dated 10-3-1930 was not that the parties, the father and the son, wanted to set up a rule of succession different from the one recognized by the Hindu Law, though that might incidentally have been the result; but the dominant intention was to settle the various disputes between them. It is to be remembered that before 10-3-1930 Deorao had married again. As I have said above, it was on 28-9-1929 that Deorao married his second wife, the present defendant No. 1. Whether by reason of the severance of interest which had taken place in the year 1928 Deorao's second wife would be entitled to claim any share in the property or not was a matter about which Shriniwas might not have worried. Ho might have succeeded in showing that the only persons who were entitled to the property were his father and himself and that his stepmother had no interest in those properties. The point which I wish to emphasise is as to the state of mind in which Shriniwas must have been when he entered into the transaction dated 10-3-1930. What did he want to do? Did he intend to alter the ordinary rule of succession or did he want peace and contentment by making certain that he would have half share at any rate in the property which was once the joint family property of himself and his father? This is an important aspect of the case which must not be lost sight of when we are considering the nature of the transaction of 10-3-1930. Then again, the matter was not going to rest merely with the possible claim that Shriniwas' step-monther might make to the property. There is always a possibility, when a young man and a young woman marry, of children who might be begotten of them. Therefore, there was always a possibility that the children that might be begotten of Deorao and his second wife might claim an interest in the property. How far their claim would be sustainable is a different matter, The issues of Deorao and his second wife might not succeed in the Court of law if the matter had gone to the Court of law. But the point is as to the state of mind of Shrinivvas at the time he entered into the transaction. He might have said to himself, and it is likely that he did say to himself, that if he entered into that particular transaction, he would have a certain amount of property to which no claim would be made either by Chandrabhaga, Shriniwas' stepmother, or by the issues to be born of her through Deorao, Then again, as I have just pointed out, in a properly so-called partition of the joint family properties Shriniwas would not have hoped to get any share in the self-acquisitions of his father. As I have mentioned above, in Letters Patent appeal, it would not be open to us to disturb a finding of fact recorded by Mr. Justice Mudholkar that in this case Deorao was possessed of certain property which was his self-acquisition. In respect of that property Shriniwas would not have hoped to get any snare in a properly so-called partition of the joint family property; and yet, what do we find if we turn to the document dated 10-3-1930? In the document there is a clear reference to the self-acquired properly of Deorao. Even in that property Shriniwas was given a share. As I have referred to above while dealing with the Calcutta case, this circumstance must immediately and effectively distinguish the Calcutta case from the present case, because in the Calcutta case their Lordships of the Privy Council saw in the instrument of 1866 no intention to make a gift to any party. Here, in the present case, we have clear evidence in respect of the transaction of 10-3-1930 that there was a gift made by Deorao in respect of his self-acquired property to Shriniwas. The point therefore is that upon a careful appraisal of the abovementioned circumstances considered together in their proper context, it is impossible to resist the conclusion that the primary intention, and indeed the only intention, of the father and the son, Deorao and Shriniwas, sitting down together on 10-3-1930 and entering into a transaction evidenced by the document bearing the same date, was not to alter the mode of succession; it was to arrive at a settlement, though, incidentally, by reason of the settlement, the rule of succession might have happened to be altered. Such being the view which we take upon the record before us, we must reject Mr. Bobde's contention that in this case there was no settlement between the father and the son and that what had taken place was only the alteration of the mode of succession and a partition of the joint family property between the father and the son with an added term that the property which had been allotted to the share of Deorao would, upon the death of Deorao, devolve upon his widow as her exclusive property and that to that property neither Shriniwas nor Shriniwas' issues would at any time be able to lay claim by way of inheritance. For the reasons we have given in detail, it is impossible to take the view which Mr. Bobde is asking us to take.
9. The next case to which our attention is invited by Mr. Bobde is the case of Bageshar Rai v. Mt. Mahadei ILR 46 All 525: AIR 1924 All 461. In this case, it was held by the learned Chief Justice and Mr. Justice Piggott of the Allahabad High Court that it was competent to the members of a joint Hindu family, when partitioning joint property among themselves, to come to an agreement that on the death of any one of them his share should pass to the others and, after the death of the last but one, the rights of inheritance should devolve on the last survivor. But, said the learned Judges, it was not competent to contracting parties to lay down a rule of inheritance for the property in the hands of the last survivor, in derogation of the ordinary rules of Hindu law. It is to be noted that the deed of partition which came up for consideration in trial case consisted of certain clauses. There were three clauses and Clause (b) provided that if any co-sharer died la walad (without heirs), the property left by him should be divided amongst his near co-sharers according to their shares and that no co-sharer should have a right to receive anything more than his proper share in the property left by the deceased. It is clear that the dominant intention of the persons who were parties to the deed of partition was to alter the mode of succession. There is nothing in the Allahabad case to show that there was any dispute of the nature and character of the dispute in the present case between the members of the joint family and that in order to settle that dispute the partition deed had come into existence. The whole question, as I have just said, turns round the question of dominant intention, 'the (intention which brought into existence a particular document. If the intention was to alter the mode or succession, Mr. Bobde's client must succeed. If that was not the intention and if the alteration in the mode of succession resulted merely as a coincidence, a coincidence not contemplated or not present in the minds of the parties, neither the Allahabad case nor the Calcutta case could help Mr. Bobde's client.
10. The next case to which Mr. Bobde has invited our attention is the case of Joti Lal Shah v. Beni Madho : AIR1937Pat280 . In this case, the learned Judges of the Patna High Court held that an agreement between two members of the family either to convey or to relinquish the future reversionary right was unenforceable. The learned Judges further held that such agreement, when not acted upon when the succession opened on the death of the widow, did not estop a party from bringing, an action for his share in the property. It is difficult to understand how this case can assist Mr. Bobde's client. In the first place, the transaction dated 10-3-1930 was not a transaction between two ordinary members of a joint Hindu family. It was a transaction between the manager of the family on the one hand and another coparcener on the other But it is not only on that account that we are distinguishing the Patna case from the present case. It is to be remembered that in the present case the agreement which was embodied in the document dated 10-3-1930 was more than acted upon by Shriniwas. Deorao died on 10-1-1933, and even before the death of Deorao, with immediate effect from the date of the document dated 10-3-1930, full effect was given to the terms of the document. The possession of half the property which was once the joint family property was delivered to Shriniwas. Shriniwas and his sons have been enjoying the benefit of the possession ever since then. This feature is a special feature of the present case, which must take the case out of the ambit of the Patna decision.
11. In Chinnathayi v. K. Pandiya Naiker, : 1SCR241 the matter was set at rest once and for all. Their Lordships of the Supreme Court decided in that case that there could be no doubt that a member of a joint family owning an impartible estate could on behalf of himself and his heirs renounce his right of succession, but any such re-linquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. In that case it was held that the document which came up for consideration could not operate as a valid relinquishment as it did not evidence an intention on the part of the member concerned to surrender the right of succession of his branch and was not executed in favour of the head of the family or in favour of all the members of the family. In the case before us nothing could be clearer than this that Shriniwas intended to surrender the right of succession of his branch. There is also no doubt that the document was executed in favour of the head of family, namely, Deorao. That being so, it is quite clear that the relinquishment by Shriniwas of his own interest in the property and the interest of his issues was a valid relinquishment.
12. There is one more aspect to which we must advert in conclusion. Plaintiffs Nos. 2 and 3 cannot succeed to the property so long as plaintiff No. I is alive. So far as plaintiffs Nos. 2 and 3 are concerned, succession would open an the death of plaintiff No. 1. Now, so far as plaintiff No. 1 is concerned, it is to be remembered that he was a party to the document dated 10-3-1930. He was one of the persons who was responsible for bringing into existence the settlement which is evidenced by the document dated 10-3-1930. He was anxious to get half share in the property which was once the joint family property. He did not want to wait until a suit for the partition of the joint family property might be brought and he might be allotted his half share in that suit. It is hardly permissible to him to say that what was done by him in the year 1930 was against law and therefore relief should be given to him against his illegal action. He cannot take advantage of his own illegality. As has been said by their Lordships of the Privy Council, a person cannot blow hot and cold in one breath. He cannot be permitted to approbate and reprobate at one and the same time. Here is a case of Shriniwas having retained to himself the benefit and enjoyment of the half share in the joint family property to himself from 10-3-1930 right down to this day. How could he retain to himself that benefit and at the same time say that what he had done was illegal and that he should be relieved against what he had done? It is impossible to countenance such a contention pressed before us so strenuously by his learned Advocate Mr. Bobde. The contention must fail. So far as plaintiff Nos. 2 and 3 are concerned, they may, when time arrives, take such action as they may be advised. At the present time, we are of the view that the learned Judge's decision is correct, and this Letters Patent appeal must fail and be dismissed with costs.
13. At the outset, the learned Advocate Mr. Sheode appearing for the respondents had raised a preliminary objection against the maintainability of this appeal and the objection was raised under section 14(4) of the Hindu Succession Act, 1956 (XXX of 1956). Mr. Sheode contended that in view of the fact that ever since 10-3-1930 the property which is the subject-matter of the suit is held by a female Hindu, namely, Chandrabhaga defendant No. 1, the provisions of Section 14 of the Hindu Succession Act would be attracted and she must be held to be die full owner of these properties. This submission was op-postal by the learned Advocate Mr. Bobde, who said that in this case succession opened in the ycar.-.1933, when Deorao died on 10-1-1933. According to Mr. Bobde, Plaintiff No. 1, upon the death of Deorao, would inherit the property by virtue of his being an heir of Deorao. Mr. Bobde contended that the provisions of the Hindu Succession Act could not vacate the title of Plaintiff No. 1, which plaintiff No. 1 had acquired on 10-1-1933, long before the Hindu Succession Act was enacted. We have not gone into these contentions of the learned Advocates M/s. Bobde and Sheode as we decided to dispose of the appeal on merits.
14. Appeal dismissed