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Repaka Appalanarasimham and ors. Vs. Repaka Udalama and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 559 of 1953
Judge
Reported inAIR1959AP407
ActsHindu Law; Evidence Act, 1872 - Sections 32(3), 32(5) and 101 to 104
AppellantRepaka Appalanarasimham and ors.
RespondentRepaka Udalama and ors.
Appellant AdvocateG. Suryanarayana, Adv.
Respondent AdvocateSankarasastri and ;T. Veerabhadraiah, Advs.
Excerpt:
family - partition - sections 32 (5), 101, 102, 103 and 104 of evidence act, 1872 - plaintiff (widow) wanted partition and separate possession of one third share from her deceased husband's brother - defendants contended that husband died as member of joint family and there was never any division of status as alleged by widow - court found on evidence adduced that deceased husband had indeed demanded partition from his father - deceased husband had also stated in his will that he desired partition - statement that he has separated from family is relevant under section 32 (5) - communication to other coparceners of intention to separate not necessary - held, widow's demand for partition and separate possession allowed. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s......umamaheswaram, j.1. this is an appeal brought by the defendants 1, 2, 6 and 7 against the preliminary decree and judgment of the subordinate judge of narasapur in o.s. no. 28 of 1949 decreeing partition and separate possession of the plaint schedule properties and taking of accounts. the case of the plaintiff-1st respondent was that tie properties mentioned in schedules a to e belonged to the joint family consisting of repaka venkataramayya and his two sons, venkatarama rao (her husband) and appala narasimham, the 1st appellant herein, that there was a severance in status effected during the life time of her husband and that in a sound and disposing state of mind, he executed a will on 27-11-1941 bequeathing his one-third share in the family properties in her favour.she therefore prayed.....
Judgment:

Umamaheswaram, J.

1. This is an appeal brought by the defendants 1, 2, 6 and 7 against the preliminary decree and judgment of the Subordinate Judge of Narasapur in O.S. No. 28 of 1949 decreeing partition and separate possession of the plaint schedule properties and taking of accounts. The case of the plaintiff-1st respondent was that tie properties mentioned in schedules A to E belonged to the joint family consisting of Repaka Venkataramayya and his two sons, Venkatarama Rao (her husband) and Appala Narasimham, the 1st appellant herein, that there was a severance in status effected during the life time of her husband and that in a sound and disposing state of mind, he executed a will on 27-11-1941 bequeathing his one-third share in the family properties in her favour.

She therefore prayed for partition and separate possession of the one-third share in the plaint schedule properties devised in her favour by her bus-band and for taking of account. She impleaded as parties to the suit, her husband's brother as the 1st defendant, and his son as the 2nd defendant, and her mother-in-law as the 3rd defendant. On the death of the 3rd defendant during the pendency of the suit, her daughters, the 6th and 7th defendants, were impleaded as her legal representatives. As in some of the properties sought to be partitioned, the 4th defendant had an interest, he was made a party. The partner, who is interested in the C schedule business, was added as the 5th defendant.

2. Defendants 1 to 3 mainly contested the suit. They pleaded that the plaintiffs husband Venkatarama Rao died as a member of the undivided family and that the division in status alleged by the plaintiff was not true. They further contended that the will set up by the plaintiff was not genuine and was not executed by the testator in a sound and disposing state of mind. The 3rd defendant claimed that items 4, 5 and part of item 3 were not joint family properties but belonged to her absolutely. They contended that all the moveable properties set out in E schedule did not belong to the joint family.

3. The learned Subordinate Judge, in a careful and elaborate judgment, held that there was a division in status effected during the life time of Venkatarama Rao and that he executed the will Exhibit A-1 while he was in a sound and disposing state of mind and that the will was consequently operative to convey his one-third share in favour of the plaintiff. He further negatived the 3rd defendant's claim in regard to items 3 to 5 of A schedule. In the result, he decreed partition and separate possession. He also directed that accounts should be taken of the income, outstandings and expenses from 27-11-1941 till the date of delivery of possession to the plaintiff. As against the said judgment and decree, this appeal has been preferred to this Court.

4. Sri G. Suryanarayana, the learned Advocate for the appellants, raised the following contentions:

(1) that the will Exhibit A-1 was not true and was not executed in a sound and disposing state of mind;

(2) that there was no severance in status between Venkatarama Rao and his father Venkataramayya and his brother Appalanarasimham; (3) that items 4, 5 and part of item 3 belonged to the 3rd defendant; and (4) that the decree in regard to the gold jewels and silver vessels in schedule E was erroneous.

5. We shall take up the first question as to whether the plaintiff's husband Venkatarama Rao duly executed the will, while he was in a sound and disposing state of mind. The will is marked as Exhibit A-1. It is dated 27-11-1941 and it was executed at Rajahmundry. The will recites that the testator was suffering from anaemia and that he was undergoing treatment under Dr. Korukonda Buchiraju examined as P.W. 1. The writer of the will Mukku Ramamurthy was examined as P.W. 2. The will was attested by five persons and two of them were examined as P.Ws. 3 and 4. The last attesting witness Koduri Subba Rao is dead. The case of the plaintiff is that as her husband was ill, he was taken to Rajahmundry for treatment and that he was residing in Appalaswami Lodge. On the night prior to his death, he was taken to Darbhavari Satram and on the morning of 27th, the will was executed while he was in a sound and disposing state of mind.

The doctor, who attended upon him and who is one of the attesting witnesses, was examined as P.W. 1. He deposed that the will was read over to the testator, that he said it was all right and he then attested the same. He also spoke in clear and unambiguous terms that till the time of his death, he was conscious and talking to others. He also stated that as the testator's fingers were swollen he could not sign and that his thumb impression was consequently affixed to the will. From a perusal of Ms evidence, we are impressed that he is speaking the truth and we hold that the will was executed by the testator while he was quite conscious and in a sound and disposing state of mind.

P.W. 1 is a disinterested and respectable witness. He is a Registered Medical Practitioner practising at Rajahmundry from 1935. He was an Honorary Assistant Surgeon in the Rajahmundry Hospital from 1939 to 1950. He was also assessed to income-tax from 1937. Nothing tangible is suggested in the cross-examination as to why he should be a party to a forgery and why he should perjure himself on behalf of the plaintiff. We are inclined to hold that the suggestion that he was called in for treatment for the first time a day prior to his death after he lost consciousness and that the will was taken to him at the hospital for attestation on the next day after his death is puerile and baseless. We are not inclined to accept the evidence of the defendants' witnesses that he died of consumption and that he was unconscious for a few days prior to his death.

6. The writer of the will was examined as P.W. 2. He stated that he was working in the shop of Koduri Sarayya paternal grand-father of the plaintiff and father of 3rd defendant at the time of the execution of the will and that he was called at about 8 a.m. to write the will. He deposed that the testator gave out the contents of the will and that the draft was destroyed after the will was duly executed. He explained that the signature of the testator was not taken as his fingers were swollen.

Nothing was elicited in the cross-examination to discredit his evidence.

7. The 3rd attestor to the will, Penjerla Ramalingayya was examined as P.W. 3. He stated that he was a partner with Koduri people and that after the will was read over and the testator had affixed his thumb impression, he attested the same. It was, sought to be made out by the defendants by reference to the entries Exhibits X-13 to X-16 that he was only a clerk and not a partner as there were four entries showing payment of salary to him. As pointed out by the Subordinate Judge in paragraph 24 of the judgment, it is not very material whether he was a clerk or a partner as spoken to by him. The main question is whether he was not present on the date of the execution of the will and whether he did not attest it. Apart from the evidence of the witnesses referred to supra, there is the evidence of the plaintiff examined as P.W. 5 and her brother in regard to the due execution of the will.

8. In this connection, it is important to note that the will was also attested by the 1st appellant's, maternal uncles Koduri Viswanatham and Koduri Subba Rao and their paternal uncle's son Koduri Ramayya. There is no evidence whatsoever to show that the 1st appellant and his mother Manikyam, the 3rd defendant, were not in good terms with Koduri Viswanatham and Subba Rao or their father Koduri Sarayya. It is unlikely that the 3rd defendant's brothers Viswantham and Subba Rao would bring into existence a forged will to affect the rights of their sister's husband and their nephew, the 1st appellant. We are not inclined to agree that as the plaintiff was the daughter of the deceased, brother of Viswanatham and Subba Rao, they brought into existence a false will.

8a. The learned Subordinate Judge accepted the oral testimony of P.Ws. 1 to 5 in paragraph 24 of the judgment and held that the will was duly proved. Having carefully perused their evidence, we are inclined to agree with his conclusion,

9. On behalf of the defendants, D.Ws. 1 and. 2 were examined to show that no will was executed by the plaintiff's husband after he was brought to the Satram. D.W. 1 stated that the plaintiff's. husband was brought to the Satram on 27th at about 9 a.m. in an unconscious state and that he died at about 2 p. m. On the other hand, D, W. 2, stated that the plaintiff's husband was brought to the Satram at about 9 or 10 a. m. prior to the day of his death. There is thus an inconsistency between the evidence of D.W. 1 and D.W. 2. D.W. 1, the manager of the Darbhavari Satram, has not produced any register to show when exactly the-plaintiff's husband was brought there. The learned Subordinate Judge discussed their evidence in para. 25 of the judgment and rejected their testimony that plaintiff's husband was not conscious when he was brought there. As pointed out by him, it is clear from the evidence of D.W. 2 that P.W. 1 was attending upon the testator during his illness and that the case that he was brought for the first time a day prior to his death was not true.

10. As against the positive testimony already referred to and discussed above, the learned Advocate for the appellants, relied on certain circumstances to doubt the genuineness of the will. He contended that as the testator did not sign the will but only his thumb impression was taken, it ought not to be accepted. There is no force in this contention inasmuch as all the witneses examined on behalf of the plaintiff explained why the signature could not be taken. They spoke in one voice that as his fingers were swollen, his signature could not be obtained. Though a suggestion was made that the thumb impression on Exhibit A-1 was not that of the testator, no documents have been produced on behalf of the appellants to compare the thumb impressions or show that it is not his. As we are inclined to accept the evidence of P.Ws. 1 to 5. we repel this contention. Strong comment was next made that the will must be false as it was not presented for registration.

There is also no force in this contention as the evidence discloses that the testator died a few hours after the execution of the will. The omission to obtain the attestation of Sarayya, the father of the 3rd defendant, is also immaterial. His two sons Viswanatham and Subba Rao attested the will and his clerk wrote the same. The explanation given by the plaintiffs witnesses that as he was not present at the time of the execution of the will, his attestation was not obtained appears to be quite probable. Comment was next made on the non-examination of the two attesting witnesses Koduri Ramayya and Koduri Viswanatham. The evidence discloses that Koduri Viswanatham was debtor of the defendants 1 and 4 and that ho was not consequently willing to give evidence on behalf of the plaintiff.

The evidence further shows that Koduri Ramayya took Viswanatham's son in adoption and that he consequently did not enter the witness box. We are not inclined to agree with the contention of the learned Advocate for the appellants that they were not examined as witnesses as they were not willing to dispose to a false will. In our view, the appellants must have brought to bear pressure upon them and that they consequently did not give evidence in the case. The next contention of the learned Advocate for the appellants was that the will was not put forward till the date of the suit and it must be false.

This contention is without any substance in asmuch as the plaintiff deposed that the will was mentioned by her paternal uncles to her father-in-law when he came to Rajahmundry on 27th, i.e., prior to her husband's death. We are inclined to take the view that the execution of the will must have been mentioned to the father-in-law as also to the 1st appellant and on account of that fact, both her father-in-law and her brother-in-law, the 1st appellant, treated her well and the 1st appellant met the expenses of her daughter's marriage. As the relations beween the plaintiff and her father-in-law and the first appellant were cordial, no suit for partition was filed on the strength of the will.

Possibly it was only after the marriage of her daughter was performed that the troubles have started and the suit was instituted at the instance of the son-in-law and his relations. There was thus no occasion for the plaintiff to publish or put forward the will and the omission to do so does not, in our opinion, affect the genuineness of the will. The learned Subordinate Judge was right in holding that as the properties were all undivided, the plaintiff could not apply for mutation of the properties in her name on the strength of Exhibit A-E. Having carefully perused the entire evidence and heard the strenuous arguments of Sri G. Suryanarayana the learned Advocate for the appellants, we confirm the finding of the Subordinate Judge that the will was duly executed by the testator while he was in a sound and disposing state of mind.

11. The next question that arises for consideration is whether the will is invalid on the ground that the testator died undivided with his father and brother. The plaintiff examined as P.W. 5 stated in her evidence that about ten months prior to her husband's death, her husband demanded partition or his share from his father on account of misunder standings between her and her mother-in-law and that she and her husband were having a separate mess in the family house. Her brother was examined as P.W. 4 and he also deposed that she and her husband were having separate cooking. This was denied by the 1st appellant and his sister examined as D.W. 5. We are inclined to agree with the. Subordinate Judge that the plaintiff's husband had separate mess but it does not by itself show that the family became divided in status.

Apart from the evidence of the plaintiff that her husband demanded partition of his share from his father and expressed his unequivocal intention to divide, the regular accounts maintained by the family also corroborate that fact. As pointed out by the Subordinate Judge by reference to the accounts, there are debit entries separately made for the expenses incurred for pickles prepared for the plaintiff's husband's family. The important point to be noticed is that while in the earlier accounts, the plaintiff's husband's family was not treated as a separate entity, from 1941 his family was treated distinctly and separately. Venkataramayya, the father-in-law of the plaintiff and the 1st defendant were treated as a separate unit. As pointed out in paragraph 33 of the judgment, the expression used in all the later entries is 'for the family of Venkatarama Rao.' If really, the family continued to be undivided, there was no necessity to treat Venkatarama Rao's family as a separate unit. The entries in the earlier accounts referred to by Sri Suryanarayana do not help the appellants' case inasmuch as they are not entered as 'for the family of Venkatarama Rao.'

So also are the subsequent entries in regard to the payment of dhobi charges. The learned Subordinate Judge has discussed this question in paragraphs 32 to 37 of the judgment and we agree with him that the use of the expression 'family' after 1941 is very significant and leads to the conclusion that there must have been a separation in status by reason of the demand for partition. There is the further fact that in the will executed by Venkatarama Rao (Exhibit A-1), it is clearly stated that there was a demand for partition made by him. We are not inclined to hold that the testator made an untrue statement.

In Bhagwati Prasad v. Rameshwari Kuer, : [1951]2SCR603 , Mukherjea, J., delivering the judgment of the Supreme Court, held that the statement of a person that he is separated from a joint family of which he was a coparcener and that he has no further interest in joint it property or claims to any assets left by his father would be a statement made against the interests of such person, and after such person is dead, it would be relevant under Section 32(3) of the Evidence Act. Following this decision, we hold that the statement made by the testator in the will that there was a demand for partition is relevant and admissible in evidence. We are inclined to agree with the Subordinate Judge that there was a division in status prior to the execution of the will and that the will is consequently operative.

12. It was contended by Sri Veerabhadrayya on behalf of the 1st respondent that even assuming that there was no severance in status prior to the date of the will as spoken to by the appellants, still it might be gathered that there was severance in status from the terms of the will. The testator refers to his one-third share in the property and bequeaths it in the manner mentioned therein. From those terms, the learned Advocate for the 1st respondent contended that an unequivocal declaration of intention on the part of the testator to get himself divided from his father and brother might be inferred.

In support of that contention, he invited our attention to the decision in Sashi Bhusan Panigrahi v. Labanyabati Debya, 43 Ind Cas 981: (AIR 1918 Cal 324). Flelcher, J. delivering the judgment of the Bench of the Calcutta High Court, held that inasmuch as the will had stated that there had been a separation, there was sufficient evidence of intention to separate and that the testator would not have made a statement like that unless he intended to separate from the other members of the family. To the same effect is the decision of the Lahore High Court in Jumma Ram v. Munsab Rai, AIR 1922 Lah 473.

It was held that as the shares were specified and the testator's one-third share was devised, 'this would suffice to constitute a separation in law, an unequivocal declaration by a member of the coparcenary body of his intention to be divided in status being sufficient to effect, a severance without an agreement by all the coparceners being required.' The decision of the Lahore High Court was followed by a Division Bench of the Madras High Court in Ademma v. Seshayya, 1935 Mad WN 191. The learned Judge held that the clause in the will 'It is also arranged that she (3rd wife) should enjoy during her lifetime my share which is half' would show that he had divided the property in his own mind into two halves and one half had been allotted to his wife. Clause 6 of Exhibit A-1 is similar in terms. It is as follows:

'If my wife is not desirous of taking a boy in adoption, she shall enjoy my 1/3rd share during her life time, with full rights.....'

Clause 4 also states that after his death, his one-third share of the rest of the properties after excluding the amount to be spent according to custom for the marriage and consummation ceremonies of his brother Appalanarasimham should be divided with his father and brother and taken over by his wife. Following these decisions, we hold that there was an unequivocal declaration of intention to divide expressed in the will Exhibit A-1. As soon as the father came to Rajahmundry after hearing that the testator was seriously ill, he was informed about the execution of the will. The plaintiff examined as P.W. 5 stated as follows:

'But my husband told him about his executing the will. But when my paternal uncles asked him to attest the will after he came, he said it was not necessary.'

We accept her evidence and find that there was a communication by the husband about the execution of the will and about his unambiguous and unequivocal declaration of intention to get himself divided from his father and brother. Even assuming that a communication of intention to divide is necessary on the facts of this case we are inclined to hold that the communication was duly made to the manager of the family, Venkataramayya, and that such communication is valid in law to constitute severance. Vide Katheesumma v. Beechu, : AIR1951Mad561 .

13. The next question that was debated at great length was whether communication of intention to divide is necessary to constitute severance in status. There is a divergence of authority on this point. So far as Hindu Law texts are concerned, they do not warrant the necessity for a communication to the co-sharers to bring about a severance in status. Vide observations of Panchapagesa Sastry J. at p. 518 and of Viswanatha Sastri J. : AIR1951Mad561 . In the Privy Council decision in Girja Bai v. Sadasiv Dhundiraj, ILR 43 Cal 1031: (AIR 1916 PC 104), Ameer Ali J. discussed the relevant texts of Hindu Law and observed that no agreement between all the coparceners is essential to the disruption of the joint status. In dealing with the unilateral declaration of intention to divide, he stated as follows at page 1047 (of ILR Cal): (at p. 108 of AIR):

'Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly 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 simply to give effect to his right to have his share allocated separately from the others.'

14. This passage was followed by a Division Bench of the Madras High Court in Kamepalli Ayilamma v. M. Venkataswamy, 33 Mad LJ 746: (AIR 1919 Mad 1156). The learned Judges held that communication was absolutely necessary to bring about a severance in status and that as no communication was proved during the life time of the major coparcener, it must be held that when he died, he was undivided in status from his brother. The same view was expressed in Indoji Jithaji v. Ramacharlu, AIR 1920 Mad 20. But the observations are obiter inasmuch as it was held that the document was executed in order to defeat the creditors. The observations of Venkatasubba Rao J., in Saraswatamma v. Paddayya, ILR 46 Mad 349, at p. 356: (AIR 1923 Mad 297 at p. 300) are also obiter, as the only Question that arose for decision was whether the unregistered partition deed Exhibit V was admissible in evidence to prove the division in status.

In Venkateswara Pattar v. Mankayammal, 69 Mad LJ 410: (AIR 1935 Mad 775), Varadachariar J. referred to the argument of Sri Srinivasa Aiyangar, viz., that as severance in status is a matter of right and the other coparceners have no voice in the matter, there is no significance in the requirement as to notice, and observed that it was unnecessary for the purpose of that ease to express any definite opinion as to the principle on which notice to the other coparceners should be insisted on or as to the manner or circumstances in which the declaration of indention should or could be brought to their knowledge.

Similar observations as to the necessity for communication are to be found in the judgment of Lakshmana Rao J. at p. 399 (of Mad LJ): (at p. 471 of AIR) in Jagannadharao v. Ramanna, 1937-2 Mad LJ 386: (AIR 1937 Mad 461). As the learned Judges found on the evidence that Exhibit B was a nominal sale deed, the observations made in regard to the necessity for communication to effect a severance in status arc no doubt obiter. In Narayana Rao v. Purshothama Rao, ILR 1938 Mad 315: (AIR 1938 Mud 390). decided by Varadachariar and King JJ. it was held that the severance in status took place from the date when the communication of intention to separate was sent by the father and not from the date when it was received by the son. Varadachariar J., who delivered the judgment of the Bench, observed as follows at p. 318 (of ILR Mad): (at p. 391 of AIR):

'It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners ...... We see no reason to interpret the reference to 'communication' in the various cases as involving that the severance does not arise until notice has actually been received by the addressee or addressees'.

15. The next important decision to be noticed on this point is that reported in : AIR1951Mad561 . There was a difference of opinion between Satyanarayana Rao J. and Panchapagesa Sastry J. and the appeal was therefore heard by Viswanatha Sastry J. under Clause 36 of the Letters Patent. While Satyanarayana Rao J. held that communication was necessary to all the members of the family, Panchapagesa Sastry J. took the view that the communication to the manager alone was sufficient to bring about a division in status. Viswanatha Sastry J. agreed with the view of Panchapagesa Sastry J. He further distinguished the earlier decisions of the Privy Council and the Madras High Court and expressed the opinion that no communication was necessary to bring a division in status. He summed up the rule in the following terms at page 543 (of ILR Mad): (at p. 568 of AIR):

'The only reasonable rule that can be deduced from the texts and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested, or published in such a manner as is appropriate in the circumstances of the case. One method but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family.'

16. In Indira Bai v. Sivaprasada Rao, : AIR1953Mad461 , Rajamannar C. J. observed that it was unnecessary to call in aid the dictum of Viswanatha Sastry J. in : AIR1951Mad561 , as he found that the telegram was despatched on the 4th evening and in the ordinary course it must have been delivered on the 5th and the testator died only on the 6th morning. The learned Judges did not observe in that decision that the decision of Viswanatha Sastry J. was wrong or required reconsideration in the light of the earlier decisions. Reference was next made to a Bench decision of this Court in Rama Murthy v. Venkata Subbarayudu, 1954-2 Mad LJ (Andhra) 17; (AIR 1954 Andhra 34), to which I was a party, in which a stray observation was made by Subba Rao, C. J. (as he then was) that

''Another condition for effecting severance is that such a declaration will have to be communicated.'

17. No question as to whether communication was necessary to constitute severance in status arose for decision in that case. The latest decision that might be referred to on this point is that reported in Abdul Basith Sahib v. Shanmughasundaram, 1956-1 Mad LJ 513. The decision of Viswanatha Sastry J. in : AIR1951Mad561 was followed. The learned Judges observed at p. 516 as follows:

'It is now also well settled that if a coparcener desires to sever his joint family status, it is not necessary for him to give a notice to the other coparceners of his severance or indicate his desire to them. A declaration made by him in a document or any other proceeding showing his unequivocal intention to become separated from the family or treat himself as a separated member from a particular date is enough to create a division in status.'

A review of the decisions referred to supra clearly shows that there is a conflict of opinion on the question whether any communication at all is necessary to the other members of the unilateral declaration, of intention to bcome divided. On legal principle, we are inclined to agree with the view of Viswanatha Sastry J. in : AIR1951Mad581 , followed in 1956-1 Mad LJ 513, (that no communication is necessary to bring about a division in status (whatever practical difficulties there might be) as it is the inherent right of a coparcener to yet himself divided by an unilateral declaration of intention to divide.

This view is confirmed as it is clearly laid down in all the cases that the consent of the other coparceners is not necessary to make the declaration of intention effective or operative. The Hindu Law texts also do not lay down that such communication is necessary. The difficulty in taking the above view is to some extent caused by the observation of Ameer Ali J. at p. 1048 (of ILR Cal): (at p. 108 of AIR) in ILR 43 Cal 1031: (AIR 1916 PC 104), that the decision of a coparcener should be 'unequivocally expressed and clearly intimated to his co-sharers.' The decision in 33 Mad LJ 746: (AIR 1919 Mad 1156) is also a direct authority taking a contrary view. As we are clearly of opinion on the facts of this case that the testator had communicated the execution of the will and his intention to divide to his father, the manager, we do not think it necessary to refer this question to a Full Bench as desired by Sri G. Suryanarayana, the learned Advocate for the appellants.

18. The next question that has to be decided is whether the 3 acres in item 3, purchased under Exhibit B. 59 and items 4 and 5 of A schedule are not joint family properties but belonged to the 3rd defendant. Item 4 was purchased under Exhibit B. 60 dated 22-12,1931 in the name of Venkataramayya himself for Rs. 1400/-. The 5th item was purchased in Court auction and Exhibit B. 61 is the sale certificate dated 20-11-'33 in the name of Venkataramayya. On 26-1-1935 3 acres and 81 cents were purchased under Exhibit B. 58 in favour of Venkataramayya and his sons. On the same day, a sale deed in respect of 3 acres in item 3 was obtained under Exhibit B. 59 in the name of the 3rd defendant. The documents Exhibits B-58, B-60 and B-61 stand in the name of Venkatarammayya, the manager of the joint family, while Exhibit B-59 stands in the name of his wife, the 3rd defendant.

It is admitted that the property put chased under Exhibit B-58 belongs to the joint family. The 3rd defendant, who claims items 4 and 5 is bound to establish that Exhibits B-60 and B-61 were obtained Benami in the name of her husband. Similarly, the plaintiff who claims that part of item 3 purchased under Exhibit B-59 was purchased by the manager benami in the name of his wife. Mahajan J. held in Gangadara Ayyar v. Subramania Sastrigal, AIR 1949 FC 88 at p. 92 that it is settled law that the onus of establishing a transaction as benami is on the person asserting it and that it must be strictly made out, and that in the absence of evidence, the apparent title must prevail.

We have therefore to examine the evidence to see whether the plea of benami is made out by the 3rd defendant in regard to items 4 and 5 and by the plaintiff in regard to the portion of item 3 purchased under Exhibit B-59. The Subordinate fudge has discussed the evidence in respect of items 4 and 5 in paragraphs 47 and 48 of his judgment. He held that the source of consideration in regard to both the purchases proceeded from the joint family. The third defendant's legal representatives have not been able to draw our attention to any document to show that the consideration for the purchase of those two properties was paid by the 3rd defendant.

Their case merely rested on the contention that all the monies of the 3rd defendant were being invested by her husband. Exhibits B-25 to B-27 B-29 and B-43 to B-45 relate to the investment of her monies. There is no reliable evidence to show that all the monies entered in those accounts belonged to her. The 1st defendant examined as D.W. 4 stated that her monies were being invested by his father from 1901. The account books relating to that period are not produced. His evidence was not accepted by the Court below on this point. We agree with the conclusion of the Subordinate Judge on this point and we hold that the 3rd defendant's legal representatives have not discharged the burden of proof that lay upon them to show that the properties were purchased with her monies. The mere fact that after the purchases, the propertie were entered in an account book maintained in her name does not lead to the conclusion that the properties were purchased with her monies and for her benefit.

There is also no reliable evidence that the wife was in absolute enjoyment of these properties. We therefore confirm the finding of the Subordinate fudge that these two items are Joint family properties liable to division.

19. As regards the property purchased under Exhibit B-59 we are inclined to differ from the conclusion reached by the Subordinate Judge. The sale deed stands in the name of the wife. As already stated, on the same day, 3 acres and 81 cents were purchased in the name of Venkataramayya and his sons. If really the property was not intended to be purchased on behalf of the wife, there was no reason why on the same day Exhibit B-59 should be taken in the name of the 3rd defendant. Moreover, the recital in the sale deed shows beyond doubt that the amount due under the promissory note executed by one of the vendors in favour of her husband belonged to her. The plaintiff has not satisfactorily established that the recital in the sale deed was not true and should not be acted upon.

The plaintiff's husband, who was a major, did not object to the taking of the sale deed in his mother's name. The account books of the mother Exhibits B-46 to B-56 are partly in the handwriting of the plaintiff's husband. The plaintiff has also not proved that the properties covered by Exhibit B-59 were being enjoyed by the joint family or were treated as part of joint family property. We are inclined to hold on the evidence that the apparent title should prevail.

20. Sri Veerabhadrayya contended that it has not been proved that the consideration of Rs. 758-14-3 under Exhibit B-59 was paid by the 3rd defendant. Even assuming that that sum was contributed by the 3rd defendant's husband, it does not establish that the transaction was benami. The principles tot testing the nature of such transaction are clearly laid down in Sitamma v. Sitapati Rao ILR 1938 Mad 220: (AIR 1938 Mad 8).

Following that decision, we hold that the plaintiff has not satisfactorily established that the property purchased under Exhibit B-59 is either in whole or in part benami for the joint family.

21. The last question that falls to be decided in the appeal if whether the silver vessels and gold jewels claimed by the appellants in E schedule belong to them. In the written statements filed on behalf of the 1st and 3rd defendants, it was not clearly stated as to how the silver vessels and gold jewels claimed by them belonged to them. The learned Subordinate Judge adopted a perfectly intelligible principle in deciding the ownership of the jewels and vessels. He held that the initials found on the jewels and vessels indicate or determine who the owners fire. There is no reliable evidence on behalf of the appellants to show that the silver vessels and jewels claimed in appeal by them belonged to them.

It was contended by Sri Suryanarayana that the 3rd defendant got some jewels from her mother on her death and that Exhibit B-21 is the note book showing the particulars of those jewels. He has not been able to point out that the jewels mentioned in Exhibit B-21 exactly tally with the jewels mentioned in the E schedule. He now requested that a fresh opportunity should be given to his clients to connect the jewel; mentioned in Exhibit B-21 with the jewels mentioned in the E schedule and also to establish the ownership of the appellants in the silver vessels. We are not prepared to accede to their request.

22. As we have confirmed the finding of the Subordinate Judge that the severance in status took place in 1941, the 1st appellant is liable to render an account of the income, outstandings and expenses of the family as provided for in Clause 2 of the decree. The appellants will, however, be entitled to prove the expenses incurred by them on behalf of the plaintiff and her daughter.

23. In the result, the appeal is allowed only in respect of the portion of item 3 purchased under Exhibit B-59, and the decree of the Lower Court is modified to that extent. In other respects, the decree of the Court below is confirmed. As the appeal substantially fails, the 1st respondent will be entitled to her costs in the appeal.


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