Subba Rao, J.
1. This appeal by certificate is preferred against the Judgment and Decreeof the High Court of Andhra confirming those of the Subordinate Judge, Bapatla,dismissing the suit filed by the appellants for possession of the plaintschedule properties. The following genealogy will be useful in appreciating thefacts and the contentions of the parties :
Veeranna (d. 2.2.1906)
(1st wife) (2nd wife)
| | |
Chimpirayya Pitchayya Raghavamma |
(d. 5-5-1945) (d. 1-9-1905) (Plff.-Applt.) |
| | |
| --------------------- |
| | | |
| Daughter Venkayya = Chen- |
| (d. 1-11-1905) chamma (D1, R1) |
| (alleged adopted) |
| | |
| Subbarao (d. 28-7-1949) |
| | | |
Venkayya Saraswatamma Raghavayya |
(d. 24-5-1938) | (b. 28-10-1910 |
(alleged to have Komalamma d. 1916) |
been adopted by (D-2/R-2) |
Peda Punnayya China Punnayya
(died unmarried) (D-3, R-3)
1st wife 2nd wife
(died issueless) Subbamma
L.R. of D3/R3
2. It will be seen from the genealogy that Veeranna had two wives and thatChimpirayya and Pitchayya were his sons by the first wife and Peda Punnayya andChina Punnayya were his son by the second wife. Veeranna died in the year 1906and his second son Pitchayya had predeceased him on 1-9-1905 leaving his widowRaghavamma. It is alleged that sometime before his death, Pitchayya tookVenkayya, the son of his brother Chimpirayya in adoption; and it is alsoalleged that in or about the year 1895, there was a partition of the jointfamily properties between Veeranna and his four sons, Chimpirayya, Pitchayya,Peda Punnayya and China Punnayya, Veeranna taking only 4 acres of land and therest of the property being divided between the four sons by metes and bounds.Venkayya died on May 24, 1938, leaving behind a son Subbarao. Chimpirayya diedon May 5, 1945 having executed a will dated January 14, 1945 whereunder he gavehis properties in equal shares to Subbarao and Kamalamma, the daughter of hispre-deceased daughter Saraswatamma; thereunder he also directed Raghavamma, thewidow of his brother Pitchayya, to take possession of the entire propertybelonging to him, to manage the same, to spend the income therefrom at herdiscretion and to hand over the property to his two grandchildren after theyattained majority and if either or both of them died before attaining majority,his or her share or the entire property, as the cases may be, would go toRaghavamma. The point to be noticed is that his daughter-in-law, Chenchamma wasexcluded from management as well as from inheritance after the deathChimpirayya. But Raghavamma allowed Chenchamma to manage the entire propertyand she accordingly came into possession of the entire property after the deathChimpirayya. Subbarao died on July 28, 1949. Raghavamma filed a suit on October12, 1950 in the Court of the Subordinate Judge, Bapatlal, for possession of theplaint scheduled properties; and to that suit, Chenchamma was made the firstdefendant; Kamalamma, the second defendant; and China Punnayya, the second sonof Veeranna by his second wife, the third defendant. The plaint consisted of A,B, C, D, D-1 and E Schedules, which are alleged to be the properties ofChimpirayya. Raghavamma claimed possession of A, B, and C Scheduled propertiesfrom the 1st defendant, for partition and delivery of half share in theproperties covered by plaint-schedule D and D-1 which are alleged to belong toher and the 3rd defendant in common and a fourth share in the property coveredby plaint-schedule E which are alleged to belong to her and the 1st and 3rddefendants in common. As Kamalamma was a minor on the date of the suit,Raghavamma claimed possession of the said properties under the will - half inher own right in respect of Subbarao's share, as he died before attainingmajority, and the other half in the right of Kamalamma, as by then the had notattained majority, she was entitled to manage her share till she attainedmajority.
3. The first defendant denied that Venkayya was given in adoption toPitchayya or that there was a partition in the family of Veeranna in the mannerclaimed by the plaintiff. She averred that Chimpirayya died undivided from hisgrandson Subbarao and, therefore, Subbarao became entitled to all theproperties of the joint family by right of survivorship. She did not admit thatChimpirayya executed the will in a sound and disposing frame of mind. She alsodid not admit the correctness of the Schedules attached to the plaint. Thesecond defendant filed a statement supporting the plaintiff. The thirddefendant filed a statement denying the allegations in the plaint and disputingthe correctness of the extent of some of the items in the plaint schedules. Healso averred that some of the items belonged to him exclusively and thatChimpirayya had no right to the same.
4. On the pleadings various issues were raised and the main issues, withwhich we are now concerned, are issues 1 and 2, and they are : (1) whether theadoption of Venkayya was true and valid; and (2) whether Pitchayya andChimpirayya were divided as alleged by the plaintiff. The learned SubordinateJudge, after considering the entire oral and documentary evidence in the case,came to the conclusion that the plaintiff had not established the factum ofadoption of Venkayya by her husband Pitchayya and that she also failed to provethat Chimpirayya and Pitchayya were divided from each other; and in the resulthe dismissed the suit with costs.
5. On appeal, a division Bench of the Andhra High Court reviewed the entireevidence over again and affirmed the findings of the learned Subordinate Judgeon both the issues. Before the learned Judges another point was raised, namely,that the recitals in the will disclose a clear and unambiguous declaration ofthe intention of Chimpirayya to divide, that the said declaration constituted aseverance in status enabling him to execute a will. The learned Judge rejectedthat plea on two grounds, namely, (1) that the will did not contain any suchdeclaration; and (2) that, if it did, the plaintiff should have claimed adivision of the entire family property, that is, not only the property claimedby Chimpirayya but also the property alleged to have been given to Pitchayya andthat the suit as framed would not be maintainable. In the result the appeal wasdismissed with costs. The present appeal has been preferred by the plaintiff bycertificate against the said judgment.
6. Learned Advocate-General of Andhra Pradesh, appearing for the appellant,raises before us the following points : (1) The findings of the High Court onadoption as well as on partition were vitiated by the High Court not drawingthe relevant presumptions permissible in the case of old transactions, not appreciatingthe great evidentiary value of public documents, ignoring or at any rate notgiving weight to admissions made by parties and witnesses adopting a mechanicalinstead of an intellectual approach and perspective and above all ignoring theconsistent conduct of parties spread over a long period inevitably leading tothe conclusion that the adoption and the partition set up by the appellant weretrue. (2) On the assumption that there was no partition by metes and bounds,the Court should have held on the basis of the entire evidence that there was adivision in status between Chimpirayya and Pitchayya, conferring on Chimpirayyathe right to bequeath his divided share of the family property. (3) The willitself contains recitals emphasizing the fact that he had all through been adivided member of the family and that on the date of execution of the will hecontinued to possess that character of a divided member so as to entitle him toexecute the will in respect of his share and, therefore, the recitals in thewill themselves constitute an unambiguous declaration of his intention todivide and the fact that the said manifestation of intention was notcommunicated before his death to Subbarao or his guardian Chenchamma could notaffected his status as a divided member. And (4) Chenchamma, the guardian ofSubbarao, was present at the time of execution of the will and, therefore, evenif communication was necessary for bringing about a divided status, it was madein the present case.
7. Mr. Bhimasankaram, learned counsel for the contesting first respondent,raises a preliminary objection to the effect that the certificate given by theHigh Court was confined only to three questions which did not include theissues relating to adoption or partition and, therefore, the appellant couldnot question the correctness of those findings in respect of those issues andthat the question whether the recitals in the will themselves constituted apartition in status could not be allowed to be raised, as that point was raisedonly for the first time in the High Court. He further contends that both theCourts below gave concurrent findings of fact on the question of adoption aswell as on partition and this Court will not reconsider that evidence as a ruleof practice and there are no exceptional circumstances to depart from thatsalutary practice in this appeal. He further seeks to sustain the findings ofthe High Court on the evidence adduced in the case.
8. We shall take the preliminary objection first. The material part of the certificateissued by the High Court reads thus :
1. Whether a will executed by amember of a joint Hindu family would of itself be operative to effect aseverance between him and the other members of the family by reason of thedisposition contained in the will.
2. Whether a will executed by amember of a joint family on the assumption not proved to be well founded orcorrect that as a result of an anterior partition in the family he, thetestator, was solely entitled to the properties disposed of by the will, wouldbe effective to create a severance between the testator and the other members ason the date of the will, and
3. Whether the aforesaid pleascould be raised for the first time on appeal without their having been raisedin the pleadings or at any stage of the trial.'
9. The said certificate was granted within the terms of Article 133(1) ofthe Constitution. The material part of Article 133(1) reads :
and where the judgment, decree orfinal order appealed from affirms the decision of the court immediately belowin any case other than a case referred in sub-clause (c), if the High Courtfurther certifies that the appeal involves some substantial question oflaw.'
10. Mr. Bhimasankaram contends that the conditions laid down for issuing acertificate must also govern the scope of the appeal to the Supreme Court, for,otherwise, the argument proceeds, the said conditions would become otiose. Heconcedes that the Supreme Court can exercise an unrestricted power of reviewingthe judgment of the High Court in the case of a certificate hedged in withconditions by resorting to its power under Art. 136 of the Constitution, butthis is not a case where it can do so especially having regard to the fact thatthe appellant did not seek to invoke that power.
11. Under Art. 133 of the Constitution the certificate issued by the HighCourt in the manner prescribed therein is a precondition for themaintainability of an appeal to the Supreme Court. But the terms of thecertificate do not circumscribe the scope of the appeal, that is to say, once aproper certificate is granted, the Supreme Court has undoubtedly the power, asa court of appeal, to consider the correctness of the decision appealed againstfrom every standpoint, whether on questions of fact or law. A successful partyno doubt can question the maintainability of the appeal on the ground that thecertificate was issued by the High Court in contravention of the provisions ofArt. 133 of the Constitution, but once the certificate was good, the provisionsof Art. 133 did not confine the scope of the appeal to the certificate. We,therefore, reject this preliminary objection.
12. His next objection is that both the learned Subordinate Judge and, onappeal, the learned Judges of the High Court gave concurrent findings of facton adoption as well as on partition and it is the usual practice of this Courtnot to interfere with such findings, except in exceptional circumstances andthere are no such circumstances in the present case.
13. Article 133 of the Constitution does not in any way limit the scope ofan appeal, provided a proper and valid certificate is issued by the High Courtthereunder. This Court has undoubtedly the power to review the concurrentfindings of fact arrived at by the lower Courts in appropriate cases. But ithas been long standing practice of the Privy Council not to interfere with suchfindings based upon relevant evidence, except under extraordinary andexceptional circumstances : Vide Rani v. Khangendrar I.L.R. (1904) Cal. 871 Fatima Bibi v. Ahmed Bakshi (1903) I.L.R. 35 Cal. 271.; Harendra v.Haridasi I.L.R. (1914) Cal. 972 and Bibhabati v. Ramendra 51 C.W.N. 98; The same practice has been adopted and followed by this Courtsince its inception : see Nanalal v. Bombay Life Assurance Co. : 1SCR391 ; Firm Srinivas Ram v. Mahabir Prasad : 2SCR277 ; Trojan& Co. v. Naganna : 4SCR789 ; Rajinder Chand v. Smt. SukhiA.I.R. S.C. 286.; Bhikka v. Charan Singh  Su 2 S.C.R. 798.; M. M. B.Catholics v. T. Paulo Avira A.I.R. 1959 S.C. 31. and Narayan BhagwantraoGosavi Balajiwale v. Gopal Vinayak Gosavi : 1SCR773 .
14. The reason for the practice is stated to be that when facts have beenfairly tried by two Courts and the same conclusion has been reached by both, itis not in the public interest that the facts should be again examined by theultimate court of appeal. Whatever may be the reason for the rule, the practicehas become fairly crystallized and this Court ordinarily will not interferewith concurrent findings of fact except in exceptional cases, where thefindings are such that it 'shocks the conscience of the Court or bydisregard to the forms of legal process or some violation of some principles ofnatural justice or otherwise substantial and grave injustice has beendone.' It is not possible nor advisable to define those circumstances. Itmust necessarily be left to the discretion of this Court having regard to thefacts of a particular case. We have heard learned counsel on merits and we donot think it is one of those exceptional cases where we should depart from thesalutary practice adopted by this Court.
15. Learned Advocate-General contends that the learned Subordinate Judge aswell as the High Court did not draw the appropriate presumptions arising fromthe fact that the transactions were old ones, nor did they give sufficientweight to the entries in the revenue records, the admissions made by theparties and to the conduct of the parties and such other important circumstancesand, therefore, their findings are liable to be questioned in this appeal. Thisargument in effect and substance means that the Courts below have not given dueweight to particular pieces of evidence. There is an essential distinctionbetween burden of proof and onus of proof; burden of proof lies upon the personwho has to prove a fact and it never shifts, but the onus of proof shifts. Theburden of proof in the present case undoubtedly lies upon the plaintiff toestablish the factum of adoption and that of partition. The said circumstancesdo not alter the incidence of the burden of proof. Such considerations, havingregard to the circumstances of a particular case, may shift the onus of proof.Such a shifting of onus is a continuous process in the evaluation of evidence.The criticism leveled against the judgments of the lower Courts, therefore,only pertain to the domain of appreciation of evidence. We shall, therefore,broadly consider the evidence not for the purpose of revaluation, but to seewhether the treatment of the case by the Courts below is such that it falls inthe category of exceptional cases where this Court, in the interest of justice,should depart from its usual practice.
16. We shall first take the question of adoption.
17. It is well settled that a person who seeks to displace the naturalsuccession to property by alleging an adoption must discharge the burden thatlies upon him by proof of the factum of adoption and its validity. Here, theappellant alleges in the plaint that Venkayya : the son of Chimpirayya, wastaken in adoption by her husband, Pitchayya. The first defendant, the widow ofVenkayya, denies in her written statement that her husband was adopted byPitchayya. On the said pleadings the following issue was framed : 'Whetherthe adoption of Venkayya is true and valid.' On the pleading the burden ofproof has rightly been placed on the plaintiff. The adoption is alleged to havetaken place in the year 1905. The circumstances obtaining at that time were asfollows : Chimpirayya was about 40 years old; he had only one son, Venkayya,who was aged about 2 years : Pitchayya was about 25 years old and, therefore,ordinarily he had every prospect of having children of his own; it is,therefore highly improbable, unless there are special circumstances, that anonly son of an elder brother was taken in adoption by his younger brother;though there is no legal prohibition, it is well known that ordinarily an onlyson is neither given nor taken in adoption. P.W.I. admits that Addagada familyis a prominent and affluent family in the village. But curiously no document ofadoption was executed, no invitations were sent to relatives and villageofficers, and no expenditure incurred in connection with the adoption wasentered in the accounts. Unless there were compelling and extraordinarycircumstances which necessitated dispensing with all formalities, it isunthinkable that in a village there could have been an adoption made in such anaffluent family without pomp and show. P.Ws. 1 and 2 speak to the adoption.P.W. 1 is the cousin of the appellant and P.W. 2 is appellant herself. P.W. 1says that Pitchayya adopted his brother's son Venkayya and he lived for onemonth thereafter. The reason for the adoption, according to her, was that hewas sick and was afraid that he would die. She graphically describes thatAlivelamma, the wife of Chimpirayya, gave her son in adoption to theaccompaniment of 'mantrams and tantrams', that one Subbayya ofUpputur was the prohit who officiated in the ceremony. In the cross-examinationshe says that Pitchayya did not die suddenly of an attack of fever but wassuffering from dropsy for about a month and also even earlier; she admits thatfor important functions like marriage and adoption in their family they wouldinvite the village officers and other important people of the village, but nosuch officers or important people were invited when Venakayya was taken inadoption. This witness was 60 years old in 1961 and therefore she would havebeen about 15 years at the time of the alleged adoption. Assuming for a momentthat Pitchayya was suffering from dropsy, there is no reason why no importantpersons were invited for the function. If her evidence were true, Pitchayyatook part in the alleged ceremony and it cannot therefore be suggested that hewas so ill that all the formalities had to be dispensed with. Indeed, if he wasill and if the adoption was made without inviting the important people, thatshould have been the very reason why the village officers would have beeninvited and a document to evidence it executed. P.W. 2 is the appellantRaghavamma. She says that there was a ceremony of adoption officiated by theprohit Subbayya and that her brother-in-law and his wife gave the boy to herand her husband in adoption. She also deposes that her father and his brotherswere present at the adoption. In the cross-examination she says that herhusband lived for about 3 months after the adoption. She admits that nodocument was executed and that though there were accounts, no entries relatingto the expenses of the adoption were entered therein. While P.W. 1 says thatPitchayya lived for one month after the adoption, P.W. 2 says that he lived forabout 3 months thereafter. Neither in the pleadings nor in the evidence thedate of adoption is given. The evidence of P.W. 1 is vague and appears to beimprovised and the evidence of P.W. 2 discloses the improbabilities inherent insuch an adoption. They also contradict each other on material circumstances.The Courts below have disbelieved their evidence.
18. The appellant and the first respondent relied upon the conduct of theparties subsequent to the alleged adoption and filed a number of documents tosupport their respective cases. Documentary evidence considered [omitted].
X X X X X X X X X X X
19. So far as the documentary evidence goes, the position is as follows :Till 1911 there was no document recording the fact that Venkayya was theadopted son of Pitchayya, and that after 1911 there had been contradictoryrecitals in the documents. Broadly speaking whenever Venkayya executed adocument he described himself as the son of Chimpirayya, and whenever thirdparties executed documents, he was described as the adopted son of Pitchayya.He field suits, sometimes as the son of Chimpirayya and sometimes as theadopted son of Pitchayya. His name was entered in the accounts relating toParuchur, but not in the accounts relating to Upputur; he gave evidencedeclaring himself as the son of Chimpirayya and also insured his life as suchhe operated on the accounts of third parties as the son of Chimpirayya; Whilein the will executed by Chimpirayya, he was described as the adopted son ofPitchayya on the death of Venkayya the appellant herself, who under the willwas entitled to continue in possession and management, handed over the entiremanagement to the first respondent indicating thereby that the will was notreally intended to take effect. In this state of evidence it is not possible tosay that there had been a consistent pattern of conduct from which a Courtshould draw the inference that the adoption must have taken place.
20. Attempt is made to reconcile these contradictory descriptions in thedocuments by developing different theories. Learned Advocate-General suggeststhat there was no reason why Chimpirayya should have put forward Venkayyafalsely as the adopted son of Pitchayya as early as 1911 when he should nothave gained any advantage thereby, for without the aid of adoption the entireproperty of Pitchayya would have come to him be survivorship. Mr. Bhimasankaramsurmises that Chimpirayya put forward the adoption without the knowledge ofRaghavamma to safeguard his family interests against the possible adoptionlater on by Raghavamma of a stranger and that subsequently both joined togetherwith a view to put pressure upon the first respondent to marry her son Subbaraoto Kamalamma. He also suggests that Chimpirayya began to put forward his sonVenkayya as the adopted son of Pitchayya only after the birth of his second sonin 1910 and that after the death of that son in 1916, his only interest was tosee that his grand son by his son Venkayya was married to his grand-daughter byhis daughter and that the will was executed only to put pressure upon the firstrespondent. That the will was executed only for this limited purpose, learnedcounsel argues, is clearly demonstrated by the fact that Raghavamma, though shewas entitled to be put in possession of the entire property, handed over themanagement of the same to the first respondent after the death of Chimpirayya.The said suggestions made by learned counsel on both sides are only based onsurmises and they cannot be made the basis for a court's conclusion. In thisstate of evidence when both the Courts found, on a careful consideration oforal and documentary evidence and the probabilities arising therefrom that theappellant on whom the burden of proof lay to establish that Venkayya wasadopted to Pitchayya has failed to discharge it, we cannot say that the findingwas vitiated by such errors that we should review the entire evidence overagain and come to a conclusion of our own. We therefore, accept the concurrentfinding of fact that there was no adoption.
21. The next question is whether the concurrent finding of fact arrived atby the Courts below on the question of partition calls for our interference. Inthe plaint neither the details of the partition nor the date of partition aregiven. In the written-statement the first respondent states that Chimpirayyadied undivided from his son's son Subbarao and so Subbarao got the entireproperty by survivorship. The second issue framed was whether Chimpirayya andPitchayya were divided as alleged by the plaintiff. The partition is alleged tohave taken place in or about the year 1895; but no partition deed was executedto evidence the same. The burden is certainly on the appellant who sets uppartition to prove the said fact. P.W. I, though she says that Veeranna wasalive when his own effected the partition, admits that she was not present atthe time of partition, but only heard about it. P.W. 2, the appellant, deposesthat her husband and his brothers effected partition after she went to livewith him; she adds that in that partition her father-in-law took about 4 acresof land described as Bangala Chenu subject to the condition that after hisdeath it should be taken by his four sons, that at the time of partition theydrew up partition lists and recited that each should enjoy what was allotted tohim and that the lists were written by one Manchella Narasinhayya; she alsoadmits that the lists are in existence, but she has not taken any steps to havethem produced in Court. She says that each of the brothers got pattas accordingto the partition, and that the pattas got for Pitchayya's share are in hishouse; yet she does not produce them. She says that she paid kist for the landsallotted to Pitchayya's share and obtained receipts; but the receipts are notfiled. She admits that she has the account books; but they have not been filedin Court. On her own showing there is reliable evidence, such as accounts,pattas, receipts, partition lists and that they are available; but they are notplaced before the Court. Her interested evidence cannot obviously be acted uponwhen all the relevant evidence has been suppressed.
22. Strong reliance is placed upon the alleged admissions made by D.W. 8 andD.W. 10. D.W. 8 is the karnam of Paruchur for over 30 years. He says in hisevidence that Veeranna took 3 acres and 63 cents. of land with a condition thatit should go to his sons in equal shares and the rest of the lands were dividedinto shares, one taken by Chimpirayya and Pitchayya and the other by PedaPunnayya and China Punnayya. He explains that some lands, where the soil ispartly good and partly bad, were divided into four parts and one good and onebad went to each sharer. This evidence does not contain any admission thatthere was a partition inter se between the four brothers; indeed it onlysupports the case that there was a partition between the children of Veerannaby his two wives. The division in four plots in respect of certain lands wasonly for an equitable distribution of the said lands between the sons of twowives. D.M. 10 in his evidence says that he does not know in what year thepartition took place; that it went on for two months; that some of the landswere divided into four plots. His evidence is also consistent with the evidenceof D.W. 8. There is no admission by defendant's witnesses that the division wasbetween the four brothers. The oral evidence therefore, does not support thecase of the appellant that there was a division inter se between Chimpirayyaand Pitchayya.
23. Now coming to the documentary evidence, as we have already indicated,all the relevant documents admitted to have been in existence have not beenplaced before the Court and an adverse inference has, therefore, to be drawnagainst the appellant. Even the documentary evidence filed in the case does nothelp the appellant. The family property is situate in three villages, Paruchur,Upputur and Podapadu. If there was a partition inter se between the 4 brothers,in the ryotwari settlement effected in 1906 the names of the brothers shouldhave been entered separately in the revenue accounts but the relevant registerpertaining to that settlement has not been filed. Even in the later accounts ofthe year 1918 the name of Venkayya was entered only in respect of some lands invillage Paruchur, but no such entries are found in respect of the othervillages. Those entries were made on a representation made by Chimpirayya andon one was interested to object to the entries. Even these accounts show thatin the earlier register Pitchayya's name was not entered. Though they have someprobative value of possession, they do not show that the said lands shownagainst Venkayya fell to the share of Pitchayya at the partition in the year1895. In Bengala Chenu alleged to have been given to Veeranna with a conditionthat after his death the four sons should take it in equal shares, Venkayya didnot get his share as he should if Pitchayya was divided from Chimpirayya and ifhe was adopted to Pitchayya. P.W. 2 admits that Chimpirayya had two acres inBengala Chenu and Punnayya had the other two acres. This admission belies thestatement that there was a partition inter se among the four brothers, for ifthe said partition was true, one acre should have fallen to Pitchayya's branch.P.W. 3 also says that Chimpirayya was in enjoyment of the said two acres.
24. Exs. B-52, B-53, B-54, B-55, B-56 and B-57 established that the originalmortgage of 1900 executed in favour of Veeranna was later on renewed only byChimpirayya and Punnayya, that after the alleged partition separate mortgageswere executed for portions of the debt in favour of Chimpirayya and Punnayya,that the property which was the subject matter of the mortgages was sold infavour of Chimpirayya and Punnayya, and thereafter, under Exs. B-61, B-62 and B-63,Chimpirayya and Punnayya sold the said land to third parties. These series ofdocuments support the case that there was no partition inter se betweenChimpirayya and Pitchayya. So too, another land obtained by Veeranna under anoral sale in 1886 was formally sold by a registered sale in favour ofChimpirayya and Punnayya under Ex. B-60 in 1911. If Pitchayya had a share,Venkayya should have been one of the vendees. Exs. B-67 and B-68 are theassessment orders of the year 1933 and Chimpirayya was assessed as representinga Hindu undivided family. At the time of assessment if Venkayya was not amember of the Hindu joint family, there was no other male member in the family.The assessment could only be explained on the basis that Venkayya andChimpirayya were members of a Joint Hindu Family. Both the Courts, on the basisof the said evidence and other evidence, came to the conclusion that it has notbeen established that in the partition of 1895 there was a division inter sebetween Chimpirayya and Pitchayya.
25. Some argument is made on the question of burden of proof in the contextof separation in a family. The legal position is now very well settled. ThisCourt in Bhagwati Prasad Sah v. Dulhin Rameshwari Juer : 2SCR603 , stated the law thus :
26. Whether there is a partition in a Hindu joint family is, therefore, aquestion of fact; notwithstanding the fact that one or more of the members ofthe joint family were separated from the rest, the plaintiff who seeks to get aspecified extent of land on the ground that it fell to the share of thetestator has to prove that the said extent of land fell to his share; but whenevidence has been adduced on both sides, the burden of proof ceases to have anypractical importance. On the evidence adduced in this case, both the Courtsbelow found that there was no partition between Chimpirayya and Pitchayya asalleged by the appellant. The finding is one of fact. We have broadlyconsidered the evidence only for the purpose of ascertaining whether the saidconcurrent finding of fact is supported by evidence or whether it is in any wayvitiated by errors of law. We find that there is ample evidence for finding andit is not vitiated by any error of law.
27. Even so, learned Advocate-General contends that we should hold on theevidence that there was a division in status between Chimpirayya and the othermember of the joint Hindu family i.e., Subbarao, before Chimpirayya executedthe will, or at any rate on the date when he executed it.
28. It is settled law that a member of a joint Hindu family can bring abouthis separation in status by a definite and unequivocal declaration of hisintention to separate himself from the family and enjoy his share inseverality. Omitting the will, the earlier documents filed in the case do notdisclose any such clear intention. We have already held that there was nopartition between Chimpirayya and Pitchayya. The register of changes on whichreliance is placed does not indicate any such intention. The statement ofChimpirayya that his younger brother's son is a sharer in some lands and,therefore, his name should be included in the register, does not ex facie or bynecessary implication indicate his unambiguous declaration to get divided instatus from him. The conflicting descriptions in various documents introduceambiguity rather than clarity in the matter of any such declaration ofintention. Be it as it may, we cannot therefore hold that there is any suchclear and unambiguous declaration of intention made by Chimpirayya to dividehimself from Venkayya.
29. Now we shall proceed to deal with the will, Ex. A - 2(a), on whichstrong reliance is placed by the learned Advocate-General in support of hiscontention that on January 14, 1945, that is, the date when the will wasexecuted, Chimpirayya must be deemed to have been divided in status from hisgrandson Subbarao. A Will speaks only from the date of death of the testator. Amember of an undivided coparcenary has the legal capacity to execute a will;but he cannot validly bequeath his undivided interest it the joint familyproperty. If he died an undivided member of the family, his interest survivesto the other members of the family and, therefore, the will cannot operate onthe interest of the joint family property. But if he was separated from thefamily before his death, the bequests would take effect. So, the importantquestion that arises is whether the testator in the present case becameseparated from the joint family before his death.
30. The learned Advocate-General raises before us the following contentionsin the alternatives : (1) Under the Hindu law a manifested fixed intention ascontradistinguished from an undeclared intention unilaterally expressed by amember to seperate himself from the joint family is enough to constitute adivision in status and the publication of such a settled intention is only aproof thereof. (2) Even if such an intention is to be manifested to theknowledge of the persons affected, their knowledge dates back to the date ofthe declaration, that is to say, the said member is deemed to have beenseparated in status not on the date when the other members have knowledge of itbut from the date when he declared his intention. The learned Advocate-Generaldevelops his argument in the following steps (1) the Will, Ex. A - 2(a),contains an unambiguous intention on the part of Chimpirayya to separatehimself from Subbarao, (2) he manifested his declaration of fixed intention todivide by executing the will and that the Will itself was a proof of such anintention; (3) when the Will was executed, the first respondent the guardian ofSubba Rao was present and, therefore, she must be deemed to have had knowledgeof the said declaration; (4) even if she had no such knowledge and even if shehad knowledge of it only after the death of Chimpirayya, her knowledge datedback to the date when the Will was executed, and, therefore, when Chimpirayyadied he must be deemed to have died separated from the family with the resultthat the Will would operate on his separate interest.
31. The main question of law that arises is whether a member of a jointHindu family becomes separated from the other members of the family by a meredeclaration of his unequivocal intention to divide from the family withoutbringing the same to the knowledge of the other member of the family. In thiscontext a reference to Hindu law texts would be appropriate, for they are the sourcesfrom which the Courts evolved the doctrine by a pragmatic approach to theproblems that arose from time to time. The evolution of the doctrine can bestudied in two parts, namely, (1) the declaration of the intention, and (2) thecommunication of it to others affected thereby. On the first part the followingtexts would throw considerable light. They are collated and translated byVishwantha Sastri J., who has a deep and abiding knowledge of the sources ofHindu Law in Adivalath Katheesumme v. Adiyalath Beechu I.L.R. 1950, Mad.502; and we accept his translations as correct and indeed learned counsel onboth sides proceeded on that basis. Yajnavalkya Ch. II, 6, 121. 'In land,corrody (annuity, etc.), or wealth received from the grandfather, the ownershipof the father and the son is only equal.' Vijnaneswara commenting on thesaid sloka says :
Saraswati Vilasa, placitum 28 :'From this it is known that without any speech (or explanation) even bymeans of a determination (or resolution) only, partition is effected, just asan appointed daughter is constituted by mere intention without speech.'
32. Viramitrodaya of Mitra Misra : (Ch. II pl. 23) 'Here too there isno distinction between a partition during the lifetime of the father or afterhis death and partition at the desire of the sons may take place or even by thedesire (or at the will) of a single (coparcener).
33. Vyavahara Mayukha of Nilakantabhatta : (Ch. IV, S. iii-I) :
34. The Sanskrit expressions 'sankalpa' (resolution) in SaraswatiVilas, 'ekechchaya' (will of a single coparcener) in Viramitrodaya,'budhivisesha' (particular state or condition of the mind) inVyavahara Mayukha, bring out the idea that the severance of joint status is amatter of individual discretion. The Hindu law texts, therefore support theproposition that severance in status is brought about by unilateral exercise ofdiscretion.
35. Though in the beginning there appeared to be a conflict of views, thelater decisions correctly interpreted the Hindu law texts. This aspect has beenconsidered and the law pertaining threrto precisely laid down by the PrivyCouncil in a series of decisions; see Suraj Narain v. Iqbal Narain I.L.R. (1912) All. 80; Girja Bai v. Sadashiv Dhundiraj I.L.R. (1916) Cal. 1031; Kawal Nain v. Budh Singh I.L.R. (1917) All. 496;and Ramalinga Annavi v. Narayana Annavi I.L.R. (1922) Mad. 489. InSyed Kasam v. Jorawar Singh I.L.R. (1922) Cal. 84; the judicialCommittee, after reviewing its earlier decision laid the settled law on thesubject thus :
36. So far, therefore, the law is well settled, namely, that a severance inestate is a matter of individual discretion and that to bring about that statethere should be an unambiguous declaration to that effect are propositions laiddown by the Hindu law texts and sanctioned by authoritative decisions ofCourts. But the difficult question is whether the knowledge of such amanifested intention on the part of the other affected members of the family isnecessary condition for constituting a division in status. Hindu law texts donot directly help us much in this regard except that the pregnant expressionsused therein suggest a line of thought which was pursued by Courts to evolveconcepts to meet the requirements of a changing society. The followingstatement in Vyavahara Mayukha is helpful in this context :
37. One cannot declare or manifest his mental state in a vacuum. To declareis to make known, to assert to others. 'Others' must necessarily bethose affected by the said declaration. Therefore a member of a joint Hindufamily seeking to separate himself from others will have to make known hisintention to the other members of the family from whom he seeks to separate.The process of manifestation may very with circumstances. This idea wasexpressed by learned Judges by adopting different terminology, but theypresumably found it as implicit in the concept of declaration. Sadasiva IyerJ., in Soundarajan v. Arunachalam Chetty I.L.R. (1915) Mad. 159,said that the expression 'clearly expressed' used by the PrivyCouncil in Suraj Narain v. Iqbal Narain I.L.R. (1912) All. 80,meant 'clearly expressed to the definite knowledge of the othercoparceners.' In Girja Bai v. Sadashiv Dhundiraj I.L.R. (1916) Cal. 1031, the Judicial Committee observed that the manifested intentionmust be 'clearly intimated' to the other coparceners. Sir GeorgeLowndes in Balkrishana v. Ram Krishna I.L.R. (1931) All. 300, tookit as settled law that a separation may be effected by clear and unequivocaldeclaration on the part of one member of a joint Hindu family to his coparcenersof his desire to separate himself from the joint family. John Willis in BabuRamasray Prasad Choudhary v. Radhika Devi (1935) 43 L.W. 172, againaccepted as settled law the proposition that 'a member of a joint Hindufamily may effect a separation in status by giving a clear and unmistakableintimation by his acts or declaration of a fixed intention to becomeseparate..........' Sir John Wallis C.J., and Kumarswami Sastri J. inKamepalli Avilamma v. Mannem Venkataswamy (1917) 13 M.L.J. 746., wereemphatic when they stated that if a coparcener did not communicate, during hislife time, his intention to become divided to the other coparcener orcoparceners, the mere declaration of his intention, though expressed ormanifested, did not effect a severance in status. These decisionsauthoritatively laid down the proposition that the knowledge of the members ofthe family of the manifested intention of one of them to separate from them isa necessary condition for bringing about that member's severance from thefamily. But it is said that two decisions of the Madras High Court registered adeparture from the said rule. The first of them is the decision of MadhavanNair J. in Rama Ayyar v. Meenakshi Ammal (1930) 33 L.W. 384.. There, thelearned Judge held that severance of status related back to the date when thecommunication was sent. The learned Judge deduced this proposition from theaccepted principle that the other coparceners had no choice or option in thematter. But the important circumstance in that case was that the testator livedtill after the date of the service of the notice. If that was so that decisionon the facts was correct. We shall deal with the doctrine of relating back at alater stage. The second decision is that of a Division Bench of the Madras HighCourt, consisting of Varadachariar and King, JJ., in Narayana Rao v.Purushotama Rao I.L.R. 1968 Mad. 315. There, a testator executed a willdisposing of his share in the joint family property in favour of a stranger anddied on August 5, 1926. The notice sent by the testator to his son on August 3,1926 was in fact received by the latter on August 9, 1926. It was contendedthat division in status was effected only on August 9, 1926, when the sonreceived the notice and as the testator had died on August 5, 1926 and theestate had passed by survivorship to the son on that date the receipt of thenotice on August 9, 1926 could not divest the son of the estate so vested inhim and the will was therefore, not valid. Varadachariar J., delivering thejudgment of the Bench observed thus :
38. After pointing out the various anomalies that might arise in acceptingthe contention advanced before them, the learned Judge proceeded to state :
39. We regret out inability to accept this view. Firstly, because, as wehave pointed out earlier, the law has been well settled by the decisions of theJudicial Committee that the manifested intention should be made known to theother members of the family affected thereby; secondly, because there would beanomalies on the acceptation of either of the views. Thirdly it is implicit inthe doctrine of declaration of an intention that it should be declared tosomebody and who can that somebody be except the one that is affected thereby.
40. There is yet another decision of the Madras High Court, which is ofRajamannar C.J. and Venkataramma Ayyar, J. in Indira v. Sivaprasada Rao [I.L.R. 1953 Mad. 245. There, the testator despatched a telegram addressed tohis undivided brother on August 4, evening. In the ordinary course it must havebeen delivered on August 5. The testator died on August 6 morning. LearnedCounsel appearing for the brother contended that it had not been establishedthat the telegram reached his client before the testator died and, therefore,the will did not operate on the testator's interest in the joint familyproperty. The learned Judges rejected that contention on the basis of thejudgment of Varadachariar and King JJ. in Narayana Rao v. Purshothama RaoI.L.R. 1938 Mad. 315. As a division Bench they were bound by thedecision of another Division Bench; but the real basis of the decision is foundat p. 256 :
41. It appears that in the circumstances of the case the learned Judgespresumed that the telegram must have reached the testator's brother before thetestator died. The conclusion arrived at by the learned Judges would certainlybe right on the said facts. But we cannot agree with the view in so far as theyagreed with that expressed by Varadachariar and King, JJ.
42. Viswanatha Sastri, J., in Adiyalath Katheesumma v. Adiyalath BeechuI.L.R. 1953 Mad. 245, elaborately and exhaustively considered thequestion that is now posed before us. There, a member of a tarwad served anotice of his unambiguous intention to separate from the other members of thefamily on the Karnavan of the tarwad. The question was whether thecommunication of his intention to the Karnavan was sufficient. The appeal firstcame up before Satyanarayana Rao and Panchapagesa Sastri JJ. Satyanarayana RaoJ. held that the notice was not sufficient to constitute a severance, as it wasnot served on all the other members of the tarwad; and Panchapagesa Sastri, J.,held the service on the Karnavan or the manager of the joint family wassufficient as he was representative of the family. As there was difference ofview between the two learned Judges, the matter was placed before theViswanatha Sastri J. and the learned Judge agreed with Panchapagesa Sastri J.But in the course of the judgment, the learned Judge went further and held thata unilateral declaration of an intention to become divided on the part of amember of a joint Hindu Family effects severance, in status and therefore thedespatch to, or receipt by, the other members of the family of thecommunication or notice announcing the intention to divide on the part of onemember of the family is not essential or its absence fatal to a severance instatus. The conclusions of the learned Judge on the question now raised beforeus are expressed in two places and they are at pp. 543 and 549 :
43. At p. 549 it is stated :
44. We agree with the learned Judge in so far as he held that there shouldbe an intimation, indication or expression of the intention to become dividedand that what from that manifestation should take would depend upon thecircumstances of each case. But if the learned Judge meant that the saiddeclaration without it being brought to the knowledge of the other members ofthe family in one way or other constitutes a severance in status, we find itdifficult to accept it. In our view, it is implicit in the expression'declaration' that it should be to the knowledge of the personaffected thereby. An uncommunicated declaration is no better than a mereformation or harbouring of an intention to separate. It becomes effective as adeclaration only after its communication to the person or persons who would beaffected thereby.
45. It is, therefore, clear the Hindu law texts suggested and Courtsevolved, by a process of reasoning as well as by a pragmatic approach, thatsuch a declaration to be effective should reach the person or persons affectedby one process or other appropriate to a given situation.
46. This view does not finally solve the problem. There is yet anotherdifficulty. Granting that a declaration will be effective only when it isbrought to the knowledge of the other members affected, three questions arise,namely, (i) how should the intention be conveyed to the other member ormembers; (ii) when it should be deemed to have been brought to the notice ofthe other member or members; and (iii) when it was brought to their notice,would it be the date of the expression of the intention or that of knowledge thatwould be crucial to fix the date of severance. The questions posed raisedifficult problems in a fast changing society. What was adequate in a villagepolity when the doctrine was conceived and evolved can no longer meet thedemands of a modern society. Difficult questions, such as the mode of serviceand its sufficiency, whether service on a manager would be enough, whetherserve on the major members or a substantial body of them would suffice, whethernotice should go to each one of them, how to give notice to minor members ofthe family, may arise for consideration. But we need not express our opinion onthe said questions, as nothing turns upon them, for in this appeal there areonly two members in the joint family and it is not suggested that Subba Rao didnot have the knowledge of the terms of the will after the death of Chimpirayya.
47. The third question falls to be decided in this appeal, is this : what isthe date from which severance in status is deemed to have taken place Is itthe date of expression of intention or the date when it is brought to theknowledge of the other members If it is the latter date, is it the date whenone of the members first acquired the said knowledge or the date when the lastof them acquired knowledge or the different dates on which each or the membersof the family got knowledge of the intention so far as he is concerned If thelast alternative be accepted, the dividing member will be deemed to have beenseparated from each of the members on different dates. The acceptance of thesaid principle would inevitable lead to confusion. If the first alternative beaccepted, it would be doing lip service to the doctrine of knowledge, for themember who gets knowledge of the intention first may in no sense of the term bea representative of the family. The second alternative may put off indefinitelythe date of severance, as the whereabouts of one of the members may not beknown at all or may be known after many years. The Hindu law texts do notprovide any solution to meet these contingencies. The decided cases also do notsuggest a way out. It is, therefore, open to this Court to evolve a reasonableand equitable solution without doing violence to the principles of Hindu law.The doctrine of relation back has already been recognised by Hindu Law asdeveloped by Courts and applied in that branch of the law pertaining foradoption. There are two ingredients of a declaration of a member's intention toseparate. One is the expression of the intention and the other is bringing thatexpression to the knowledge of the person or persons affected. When once thatknowledge is brought home - that depends upon the facts of each case - itrelates back to the date when the intention is formed and expressed. Butbetween the two dates, the person expressing the intention may lose hisinterest in the family property; he may withdraw his intention to divide; hemay die before his intention to divide is conveyed to the other members of thefamily : with the result, his interest survives to the other members. A managerof a joint Hindu family may sell away the entire family property for debtsbinding on the family. There may be similar other instances. If the doctrine ofrelation back is invoked without any limitation thereon, vested rights so createdwill be affected and settled titles may be disturbed. Principles of equityrequire and common sense demands that a limitation which avoids the confusionof titles must be placed on it. What would be more equitable and reasonablethan to suggest that the doctrine should not affect vested rights By imposingsuch a imitation we are not curtailing the scope of any well established Hindulaw doctrine, but we are invoking only a principle by analogy subject to alimitation to meet a contingency. Further, the principle of retroactivity,unless a legislative intention is clearly to the contrary, saves vested rights.As the doctrine of relation back involves retroactivity by parity of reasoning,it cannot affect vested rights. It would follow that, though the date ofseverance is that of manifestation of the intention to seperate, the rightsaccrued to other in the joint family property between the said manifestationand the knowledge of it by the other members would by saved.
48. Applying the said principles to the present case, it will have to beheld that on the death of Chimpirayya his interest devolved on Subbarao and,therefore, his will, even if it could be relied upon for ascertaining hisintention to separate from the family, could not convey interest in the familyproperty, as it has not been established that Subbarao or his guardian hadknowledge of the contents of the said will before Chimpirayya died.
49. It is contended that the first respondent, as the guardian of Subbarao,had knowledge of the contents of the Will and, therefore, the Will operates onthe interest of Chimpirayya. Reliance is placed upon the evidence of P.W. 11,one Komanduri Singaracharyulu. He deposed that he was present at the time theWill was executed by Chimpirayya and that he signed it as an identifyingwitness. In the cross-examination he said that at the time of the execution ofthe Will the first defendant - respondent was inside the house. This evidenceis worthless. The fact that she was inside the house cannot in itself impute toher the knowledge of contents of the Will or even the fact that the Will wasregistered that day. D.W. 4 is the first respondent herself. She says in herevidence that she did not know whether the Sub-Registrar came to register theWill of Chimpirayya, and that she came to know of the Will only after the suitwas filed. In that state of evidence it is not possible to hold that the firstrespondent, as guardian of Subbarao, had knowledge of the contents, of theWill.
50. In this view, it is not necessary to consider the further questionwhether the Will contained a clear and unambiguous declaration of intention onthe part of the testator to divide himself from the members of the jointfamily.
51. In the result, the appeal fails and is dismissed with costs.
52. Appeal dismissed.