1. This appeal comes on before us by reason of a reference made by our learned brother Manohar Pershad, J.
2. Defendants 1 to 3 and 6 are the appellants. The suit was filed by the 1st respondent herein for recovery of possession of the B schedule properties and mesne profits, past and future. Her case was that the properties belonged to her mother Janaki Busamma, and that on her death, they devolved upon her and her sister Nagamma, and that for the sake of beneficial enjoyment, they partitioned the B Schedule properties and some other properties and that in that partition, the B schedule properties fell to the share of Nagamma. She claimed that on the death of Nagamma in the first week of June, 1950, she was entitled to recover those properties from the defendants who are in possession, thereof.
3. Defendants 4 and 5, in possession of items 6 to 8, did not contest the suit. Defendants 1 to 3, in possession of items 1 to 5 pleaded in their written statement that Nagamma had acquired absolute rights in the suit properties and that the plaintiff was estopped from contending that Nagamma had no absolute rights in those properties.
4. The Court below held that as the original gift deed executed in favour of Janaki Busamma by her father Janaki Busappa was not produced, it cannot be held that Busamma had absolute right in the property and that Nagamma and Gangamma acquired absolute interest therein. The plea of estoppel was negatived. It was held that the partition between the plaintiff and Nagamma was only for convenient enjoyment and that on the death of Nagamma, the plaintiff was entitled to recover the entire properties. As a result of the joint memo filed by the parties, the question of mesne profits was left open to be determined under Order XX, Rule 12 C.P.C. As against the judgment and decree of the Subordinate Judge, defendants 1 to 3 and 6 interested in items 1 to 5, have preferred the appeal.
5. Mr. M. S. Ramchandra Rao, the learned advocate for the appellants, did not urge that either Busamma or her daughters, the plaintiff and Nagamma, had any absolute interest in the suit properties. He also did not press the plea of estoppel. He, however, contended that on a true construction of the partition arrangement entered into between two limited owners, the plaintiff and her sister Nagamma, marked as Ex. B-2 she gave up her right of survivorship in the suit properties, and was therefore not entitled to recover possession of those properties.
6. Before dealing with the construction of the terms of the partition arrangement, it is necessary to deal with the law relating to the nature of the estate taken by co-widows or daughters jointly and the rights resulting from any partition arrangement entered into between them. In Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba, 3 Mad HCR 424, it was held, on a review of all tests and authorities, that the sound rule of inheritance is that two or more lawfully married wives (patnis) take a joint estate for life in their husband's property with rights of survivorship and equal beneficial enjoyment.
It was observed that though no absolute partition of the joint estate could be effected,
'two or more widows might by an arrangement inter se not prejudicial to the rights of the next heir in succession, provide for such enjoyment by an apportionment of the property.'
The question as to whether at the partition a widow might have given up her right of survivorship was expressly left open by the Privy Council in Bhugwandeen Doobey v. Myna Baee, 11 Moo Ind App 487 at p. 515 in the following terms:
'There is, however, no proof of any contract to make a partition, and, as part of that contract, to release the rights of survivorship, supposing it to have been competent to the widows to enter into such a contract.'
It was pointed out that there was no jurisdiction in the Court to make a complete partition in invitum. The same view was reiterated by the Privy Council in Gajpathi Nillamani v. Gajapathi Radhamani, ILR 1 Mad 290.
The effect of an ordinary partition between two or more co-widows is stated in Aryaputri v. Alamelu, ILR 11 Mad 304 at p. 306 in the following terms:
'It is true that when there are more widows than one, they take together as a class. It is also true that partition is permitted between them not as in the case of male-coparceners for the purpose of converting a joint estate into two or more separate estates to be held in severally, but for the limited purpose of securing to each widow a distributive enjoyment of the benefit of joint property.
In this view partition between them certainly creates no separate property in the portions placed in their separate possession and no disposing power so as to defeat the right of survivorship vesting in the co-widow, but as between them, each widow is entitled to take the income of the portion placed in her possession during her life, and it is to this extent the purchase must be upheld; otherwise, the widow that sells may induce her co-widow to recover the entire property sold and give her back her share so as to defraud the purchaser.'
The question which falls to be determined in the present case as to whether the right of survivorship may be released by a widow directly arose for consideration before a Division Bench consisting of Subramania Ayyar and Boddam JJ. in Ramakkal v. Ramaswami Naicken, ILR 22 Mad 522. From the facts set out, it appears that the widows divided the property of their deceased husband by a formal registered partition deed, which after reciting that each had taken charge of her share under the division declared that each would be bound to enjoy separately the property appertaining to her share, with power of alienation by way of gift, mortgage, sale, etc., and that from that day, forward the relationship between them should be no further relationship in pecuniary matters.
One of the widows alienated her property, and on her death, the co-widow brought a suit for recovery of possession of that property. It was held as follows;
'We have no doubt that a widow can alienate for her life any estate which comes to her as such and that she can therefore enter into such a deed as will preclude her from recovering during her life property which she has alienated to the full extent of such alienation, provided it does not extend beyond her life interest.'
The decision in Kailash Chandra v. Kashi Chandra, ILR 24 Cal 339 was followed. The same view was repeated in Gomathi Ammal v. Kupputhayi Ammal, 14 Mad LJ 175, though on the particular facts, the learned Judges held that the right of survivorship was not released. It was held that the law applicable to co-widows was equally applicable to daughters who are parties to a partition among themselves of their father's estate.
Following the decision in ILR 22 Mad 522, it was held that
'it is open to persons in the position of these daughters, while effecting the partition by apt words to renounce such right of survivorship.'
A similar view was held in Sudalai Ammal v. Gomathi Ammal, 23 Mad LJ 355, Subbammal v. Krishna Aiyar, 26 Mad LJ 479; (AIR 1914 Mad 327) and Alamelu Ammal v. Balu Ammal, 28 Mad LJ 685: (AIR 1915 Mad 103). In Ammani Ammal v. Periasami Udayan, 45 Mad LJ 1: (AIR 1924 Mad 75), it was held that the partition should he regarded as a transfer by each of the daughters not only of her life-interest but also in case she should survive, of her right to the other's share, and that such a transfer was not repugnant to the provisions of S. 6 of the Transfer of Property Act.
It was therefore held that it was not open to the reversioner to sue for possession of the properties alienated by the deceased so long as there was a surviving daughter. The suit for declaration of the invalidity of the alienation was however held to be maintainable. Again, in Rukmani Ammal v. Narasimhachariar, 46 Mad LJ 285: (AIR 1924 Mad 696), the question arose whether, on a construction of the partition deed Ex. A, the right of survivorship was given up. The learned Judges held that from the use of the words 'Henceforth the only relationship between us will be one of friendship and not of property,' the right of survivorship was renounced.
The next Bench decision that might be usefully referred to is the decision in Appalasuri v. Kannamma Nayuralu, 49 Mad LJ 479; (AIR 1926 Mad 6). All the earlier decisions dealing with the question of partition between limited owners are reviewed and the propositions of law deducible from them are summed up at pages 485 and 486 (of Mad LJ); (at pp. 9 and 10 of AIR). The learned Judges indicated at page 486 (of Mad LJ): (at p. 10 of AIR) in what cases and under what circumstances the right of survivorship does not operate. The last Bench decision of the Madras High Court brought to our notice on this point is Kaliani Anni v. Thirumalayappa, AIR 1927 Mad 115.
At p. 118, Viswanatha Sastry J., delivering the judgment of the Bench held that
'The trend of the decisions above referred to indicates to my mind that it has to be proved by clear evidence that the widows were conscious of the right of survivorship possessed by them; and that they intended to give up such right.'
The decisions of single Judges dealing with the point are those reported in Latchamma v. Subharagudhu, AIR 1925 Mad 343, Pirmanayagam v. Ammugham, AIR 1929 Mad 710 and Minakshi v. Subramanian, AIR 1930 Mad 175. In the last of those decisions, AIR 1930 Mad 175, reliance was placed on the observations of Viscount Cave in Mst. Hardei v. Bhagwan Singh, AIR 1919 PC 27 for reinforcing the conclusion that the right of survivorship might be abandoned.
The view of the Madras High Court discussed above was followed in Parbati Kuer v. Baijnath Prasad, AIR 1936 Pat 200: ILR 14 Pat 518. The same view is taken by the Calcutta High Court in Surendra Nath v. Radharani Debi, AIR 1940 Cal 317.
7. A review of the authorities referred to supra clearly establishes that an arrangement or partition between the two widows may be of such a character that each may relinquish her right of survivorship as to the portion of the estate held by the other, and that the rights of the parties in each case have to be determined by the actual terms of the arrangement or partition entered into between them. Vide Mulla's Hindu Law, 11th Edition, page 191: Mayne's Hindu Law, 11th Edition, page 641 and Hindu Law by N.R. Raghavachariar, 3rd Edition, page 589.
8. In support of the contention that under a partition between two widows, a right of survivorship cannot be given up, reference was made to the decision in Gaya Kunwar v. Gauri Nath, AIR 1928 Oudh 401. The observations relied on are at p. 404, and are as follows;
'It appears to us to follow from the rule of law laid down herein, that a partition between widows can in no circumstances have the effect of defeating the right of survivorship, and that whatever be the authority under a friendly arrangement of each widow to enjoy the usufruct of a separate portion of the estate, there can be no right of aliena-nation by a co-widow alone, which will bind the other co-widow after her death.'
This decision of the Oudh Court was taken in appeal to the Privy Council, and it is reported in Gauri Nath v. Mt. Gaya Kaur, 55 Mad LJ 339: (AIR 1928 PC 251). The law on the point is neatly summed up by Lord Salvessen in the following terms at page 342 (of Mad LJ): (at p. 253 of AIR):
'The general law is so well settled that it scarcely required restatement. If a Hindu dies leaving two widows, they succeed as joint tenants with a right of survivorship. They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life-interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner.
If they act together they can burden the reversion with any debts contracted owing to legal necessity, but one of them acting without the authority of the other, cannot prejudice the right of survivorship by burdening or alienating any part of the estate. The mere fact of partition between the two, while it gives each a right to the fruits of the separate estate assigned to her, does not imply a right to prejudice the claim of the survivor to enjoy the full fruits of the property during her life-time.'
The learned Law Lord does not state that by any contract or arrangement between the parties the widows are not entitled to renounce the right of survivorship. The question that was left open by Lord Colvile in 11 Moo Ind App 487 (PC) did not fall to be decided by Lord Salvessen. The arrangement that was entered into between Umrao Kaur and Gaya Kaur was not evidenced by any document. The nature of the arrangement had to be inferred only from the conduct of the parties. The conclusion of the Chief Court confirmed by the Privy Council was in the following terms:
''......most that the evidence could establish was that Umrao Kunwar and Gaya Kunwar each acted independently of one another in making transfers. Each asserted a right, which was not possessed, to deal absolutely with the property in her separate possession ....... The circumstances that neither objected to a transfer made by the other cannot, in our opinion, be construed to mean more than that neither objected to the other making a transfer, provided that transfer did not affect her own interests in the event of her succeeding to the estate by survivorship.'
We are not inclined to take the view that the Privy Council decision in any way affects the long line of decisions referred to supra. This view of ours is further supported by the fact that though reference was made in the course of the judgment to the decision of the Madras High Court in 49 Mad LJ 479: (AIR 1926 Mad 6) on another point, Lord Salvessen did not express any disapproval of the view of the Bench decision on the question of the right of renunciation of survivorship by one widow in favour of another widow under a partition arrangement entered into between.
We are not inclined to agree with Sri Chainnappa Reddy that the wide observations made by the Chief Court of Oudh already referred to supra have been approved by the Privy Council. The facts of the case, as already mentioned, disclose that the question as to whether the right of survivorship was given up or not did not fall to be decided in the said decision. We are therefore inclined to hold, on a consideration of the authorities discussed above, that it is open to a widow to give up her right of survivorship in favour of the other widow by employing appropriate words.
9. The next question that has to be decided is as to the true construction of the partition deed. The relevant terms of the document are as follows:
'We both are uterine sisters. The entire property belonging to our mother having passed to us, we have been enjoying the same jointly. As we are not now willing to so enjoy the said property jointly, the said property worth Rs. 2,000/- (rupees two thousand) that belonged to our mother and that passed to us was partitioned, individual No. 1 of US Sampangi Nagamma taking the A schedule mentioned property worth Rs. 1,000/- (rupees one thousand) & individual No. 2 of us Janaki Gangamma taking the B schedule mentioned property worth Rs. 1,000/-(rupees one thousand). So hereafter each individual shall enjoy with absolute rights the property that has fallen to her respective share. Hereafter we shall have nothing to do (with each other) in respect of the property.'
We are inclined to hold, on a reading of the last two sentences in the document, that each widow gave up her right of survivorship in the properties that fell to the other sharer. The terms of this document are more or less similar to the document that fell to be considered in ILR 22 Mad 522 and 46 Mad LJ 285: (AIR 1924 Mad 696). We therefore hold that under the terms of the document, the plaintiff had renounced her right of survivorship. It is therefore not open to her to file a suit for recovery of possession of items 1 to 5 of the plaint B Schedule.
10. The appeal is allowed and the decree of the lower Court in so far as items 1 to 5 of B schedule are concerned is set aside. There will be no order as to costs in the Court below. So far as the appeal is concerned, the appellants are entitled to all the costs excepting Advocate's fee, as the question of law was raised for the first time only in this Court. So far as court-fee payable in the Court below is concerned, the 1st respondent (plaintiff) will pay the same.