1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of South Kanara in O. S. No. 118 of 1950.
2. The facts are :--Ramakrishnaya, a retired District Registrar, and Ananda Rao, a retired Sub-Assistant Surgeon, were brothers governed by the Mitakshara Law. Both had divided themselves from the other members of the family and from each other. In 1934 Ramakrishnaya, the retired District Registrar, owned a house and garden and also some money and investment (mentioned in schedule A of the plaint) and Ananda Rao owned immovable properties described in item 2 of the plaint B schedule which he had got at partition and items 1 and 3 to 6 therein which were his self-acquisitions, and also large investments of moneys of his own.
It is common ground that Ananda Rao was a rich brother and Ramakrishnaya was a poor brother. This Ramakrishnaya was childless though he had married twice. His childless second wife Radhamma alias Kaveri is even now alive and she is the 7th defendant in the suit. Ananda Rao's wife had died by 1934 and by her he had two sons living Nagasayana then aged about 13 and Hayavadana, then aged about 11, who is the husband of the plaintiff and the plaintiff after her widowhood is now pursuing her career as a, medical internee.
This Ananda Rao had also five daughters and are defendants l to 5 in this suit. All of them have been married and some are well-to-do and some are ill-to-do. The 6th defendant is the husband of Ananda Rao's daughter Tara Bai, who is the 4th defendant. This was the state of things in 1934 when Ramakrishnaya has been pressing his brother Ananda R0o to give him his younger son Hayavadana in adoption.
3. It is amply established in evidence that Ananda Rao, though willing to oblige his brother for whom he seems to have had great affection, did not want to be unjust to Hayavadana as he, Ananda Rao, was a rich man and Ramakrishnava was comparatively poor and by giving Hayavadana in adoption and cutting him off from the family of his birth, Nagasayana would get his entire properties and Hayavadana would only get the small portion of Ramakrishnaya.
The brothers consulted the then leading advocate in Madras coming from their District viz., the late well-known Government Pleader Sri B. Sitarama Rao. This correspondence is set out in Ex. A 2 dated 13-5-1934. The brothers have solved for themselves this problem of giving Hayavadana in adoption and at the same time ensuring to Hayavadana one half of the properties of Ananda Rao by the legitimate Hindu Law legal device of re-union.
On 15-5-1934 the brothers entered into a registered family agreement (Ex.A 3) which runs as follows:--
'Under the Palu Nishoodi (partition deed) jointly entered into and got registered in the year 1894 by the first and second individuals among us, and their other brothers viz., Srinivas Upa-dhyaya and Krishna Rao and also our father, the first individual got himself divided from the other members of the family. Further, in the year 1916, he retired on pension from the District Registrar's post; and in the year 1918, when his first wife Munamma died, he married again (a second wife) named Kaveri alias Radhamma and he has been living with her in a separate house at the said place, Kambala.
After the death of father of individuals Nos. 1 and 2 in the year 1903, the second individual and the two individuals mentioned above, who were living together, jointly entered into a partition deed. The second individual who acquired a share under the same has been from the date of his retirement in 1932 on Government pension from the Assistant Surgeon's post, residing in a separate house in the said place, Alke, along with his minor sons. His wife Padmavathi, has died and his five daughters have also been got married.
All the properties such as movable, immovable and cash belonging to the nrst individual are his self-acquisitions and they belong to him as his own. Out of the properties belonging to the second individual, only a small portion thereof has been got by him by way of share and a major portion of the same has been his own self-acquisition and it can be utilised by him as he pleases.
The first individual who has no issue has become old and is past 73 and it has become impossible for him to carry on the entire management of his family affairs and properties in future in the same manner as up to now; and his wife Radhamma is not competent to take up the entire burden of such management. For relief of such difficulties and also the purpose of performing regularly the karmas according to Sastra for future welfare of the first individual and his wife, Radhamma, after their death, the first individual wanted and also made attempts to adopt a son.
But as it was not possible to get one from outside, the nrst individual wanted the second individual to give him in adoption the second individual's minor second son Hayavadana. The second individual could not make up his mind in this matter either by way of satisfying the desire of the flrst individual or to allow his great family to become extinct for the following reasons i.e. in case Hayavadana is given in adoption to the first individual, the second individual would have for himself only one son viz., Nagasayana; further, till the time, Hayavadana attains age and becomes able to carry on the management of the properties and family affairs of the first individual, he himself, i.e., the second individual himself, shall have to undertake the burden of conducting that management also and shall have to keep separate accounts and records in respect ofthe same; and for that, it is not possible for him at present at this age; and further, the shares of properties got by his two sons would not be equal.
Hence, in order to overcome these objections of the second individual who could not make up his mind and in order that both the families also may prosper alike, we have decided to mingle the properties of the first individual with the properties under the possession of the second individual and to live from now onwards jointly. All the movable and immovable properties which belonged separately to individuals Nos. 1 and 2 up to now shall from now onwards be joint properties.
With regard to realisation of the amounts of pensions of the first and second individuals and the geni, house rent and interest etc., due to us and also with regard to payment of tirva, tax etc. payable to others, although any one out of them could have done the same without the other's objection, the rights and responsibilities for profit and loss relating to management shall belong to our joint family only. Further, the immovable properties belonging to us should be alienated by us only jointly and should not be alienated by each of us separately.
After the lifetime of the individuals Nos. 1 and 2, if the first son of the second individual, viz, Nagasayana and the second son of the second individual who has been decided to be taken in adoption by the first individual do not like to live jointly, they shall be entiled to get all the movable and immovable properties of this joint family of ours partitioned as a whole.
After the death of the first Individual, if his wife Radhamma does not like to live jointly in the family or after Hayavadana attains majority, if his adoptive mother Radhamma does not like to live jointly with him and if she wants to live separately, the ejaman of the family at the respective times shall be bound not only to provide with conveniences, such as buildings, etc., required for her residence but should at the beginning of each respective month make payment at the rate of Rs. 15 per month towards the expenses of her maintenance up to her death with security of the properties of the family.
In case, a separate building is left for her maintenance, the tirva and the tax relating to the same should he paid from the family itself and the responsibility of payment of the same should not be placed upon her. Although the cold jewels worn by her belong to her as her stridhana, it is proper that she should sell so much of them only as would be sufficient for purposes of charity by her and for making suitable presents to such of the persons as would be helpful to her in her difficult times and to save the remaining portion and give the same for use by his son's wife'.
4. Three davs after this registered agreement came into existence, on or about 18-5-1934 Hayavadana was taken in adoption bv 'Ramkrishnaya with the religious ceremonies and his Upanayana was also performed by the adoptive father and mother. There is no dispute regarding this adoption.
5. Subsequently the two brothers arid their sons have been living in great amity and subscribing for the same copy of the 'Hindu' pursuing a methodical and thrifty life and keeping correct accounts, though apparently for the sake of convenience Ananda Rao and Nagasavana continued to live in the house at Alke in Mangalore town, situated in item 1 of the plaint B schedule, and Hayavadana was living and being brought up by Ramakrishnaya in his house at Kambal Crossroad situated in schedule A of the plaint, within two furlongs from the Alke house.
6. In these circumstances in 1942 an incident took place which throws much light on this reunion. There was a Grama Sangha of the Dravida Brahmins to which community these parties belonged, and of which Ramakrishnaya was the President and P.W. 8 the secretary. There were 10 or 12 members in that Sangha the annual subscription being 8 annas. One of the functions of this Sangha was to help the members in whose house any ceremony was to be performed.
When Nagasayana was married to the daughter of the brother of P.W. 8's wife, 4 or 5 days before the date of Ex. A 4, and the marriage feast was given in the house of Dr. Ananda Rao he felt irritated that none of the members came to help him and his brother at the time of the marriage feast and therefore he resigned his membership and presidentship by the letter Ex. A4, which he wrote to P.W. 8.
The dispute between the members of theSangha and these brothers was this. The Sangha people, on the ground that Ramakrishnaya and Ananda Rao were living in separate houses, demanded that they must pay two subscriptions. The contention of the brothers was that the two households were one and one house and they were jointand that they could not have two votes or pay, two subscriptions.
It would appear that the members of the Sangha accepted this position at one stage and went back upon it later. Hence the severance of these two brothers from the Sangha. The point of the controversy is that in 1942 the brothers considered themselves joint.
7. In 1943 Nagasayana was married. Ramakrishnaya died in May 1945. Then in 1946 the plaintiff was married to Hayavadana on 6-7-1946. She was living with her father in the compound adjoining Ramakrishnaya's house, her father being the tenant of P.W. 8. Dr. Ananda Rao's residence in Alke was 2 or 2 1/2 furlongs away. The plaintiff's father and Ramakrishnayya were friends. The marriage was celebrated in Dr. Ananda Rao's house. There can be no doubt that both the houses formed the scenes of the marriage function and the allied festivities.
8. Nagasayana and Hayavadana started an electric photo studio which subsequently they converted into an educational film producing business called 'Sandhya Pictures'. This business was run in a house, item 1 of the plaint B schedule. By the time of their death on 13-2-1949 the two brothers had invested in all Rs. 11,217-13-0, including the purchase of a motor car used for the business MD. 1441 (Ford Prefect).
A sum of Rs. 1,000/- belonging to this concern was in the current account in the Karnataka Bank Limited. The sum of Rs. 11,217-13-0 had been advanced for this business from time to time by Dr. Ananda Rao.
9. On 13-2-1949, a stark tragedy took place. Dr. Ananda Rao, Nagasayana, the latter's wife Yashoda, Hayavadana, defendants 1, 2 and 4 and several others numbering in all 21, many of whom were women and children, went for a picnic party in the evening at about 6 p.m. to the foreshore opposite to Sultan's Battery and whilst returning at about 8 p.m. the two boats in which the party was crossing over-turned with the result that ten members of the party perished.
The plaintiff has no knowledge about it as fortunately she remained at home because she was Unwell. One Krishnan who was the motor driver of the Ford Prefect and who gave the first information report, of which Ex. B 9 is a copy, and who formed one of the members of the picnic party, swam to the shore and rescued some women and children and attempted to save others who load drowned. One member by name Rama Rao was brought to the hospital for treatment.
Hayavadana and three others were rescued by some Mogavlras. They were unconscious at that time. P.W. 3, the Sub-officer in charge of the Man-galore Fire station, on a telephone call regarding the accident, went to the scene and found the bodies of Hayavadana and others warm, though the pulse was slow and they were unconscious, and removed them to the Wenlock hospital in an ambulance and delivered them to the duty doctor in charge.
But it is now established that life had become extinct even before their removal to the hospital and nothing could be done for them by D.W. 3 who had rushed there on hearing of this accident and who was able to give the much needed help only to Rama Rao with an Injection of Coramin and Adranalin. The bodies of Ananda Rao, Nagasayana and his wife Yashoda and three others were not found and a search was being made.
The first information about this accident was given at about 11-30 p.m. and the Inquest was held between 12-30 and 4-30 a.m. on 14-2-49.
10. The plaintiff, who considered herself to be entitled to all the assets of the joint family as the widow of the last surviving coparcener Hayavadana or at least to one-half of the joint family properties as the widow of Hayavadana, has been making claims to these joint family properties and on account of her being resisted from getting possession of the family properties by the daughters of Ananda Rap and the widow of Ramakrishnaya who were sailing together, gave a lawyer's notice to them on 13-4-1949 and had followed it with two suits viz., present O. S. 118 of 1950 and O. S. 121 of 1951.
O. S. 118 of 1950 as amended is (1) for possession from defendants 1 to 6 of the properties described in plaint schedules B to D with past mesne profits from 13-2-1949 to 13-3-1950; (2) for a declaration that the plaintiff is entitled to collect the outstandings mentioned in plaint schedule E, (3) to direct the defendants 1 to 6 to deliver to the plaintiff ail the fixed deposit receipts mortgage deeds, title deeds, account books and other documents relating to the properties described in plaint schedules B, D and E and in the alternative for partition of the properties described in schedules A to F into two equal shares and for separate possession and delivery to her of one such share with past mesne profits at half the rate claimed and for a declaration that the plaintiff is entitled to a half share of the outstandings mentioned in schedule E and interest and past mesne profits and for future mesne profits and costs of suit.
O. S. 120 of 1951 was a suit for taking an account of the assets and liabilities of the Sandhya pictures as they stood on 13-2-1949 and of its working subsequent thereto by the defendants after discharging the liabilities of the concern and for payment to her of her net share and for costs.
11. O. S. 120 of 1951 was originally filed in the District Munsif's court, Mangalore, and it was subsequently transferred to the sub-court to be tried along with this O. S. 118 of 1950. We are not concerned, however, with the disposal of that suit because the present appeal is filed against the decision in O. S. 118 of 1950.
12. The substance of the controversy between the parties is as follows; The plaintiff Manorama Bai first sets up the re-union dated 15-5-1934; secondly, that Hayavadana was the last surviving coparcener in the stark tragedy on 13-2-1940; and thirdly that under the Hindu Women's Bight to Property Act, 1939 and the Madras Act XXVI of 1947 the plaintiff has, in any event, become entitled to a half share apart from the fact that by virtue of that Act she has become entitled to the entire properties as the surviving coparcener.
In regard to the widow of Ramakrishnaya, the 7th defendant, who is now sailing with the daughters of Ananda Rao, though at an earlier stage she has stated in Ex. A 81 dated 25-7-1949 that Ramakrishnaya and Ananda Rao and his two sons became re-united under Ex. A3 and which has also been followed up by her in Ex. A79 dated 8-8-1949, the plaintiff's case is that the 7th defendant is entitled to one-half of the movables and maintenance rights charged on half of the immovable properties as Ramkrishnaya died before Madras Act XXVI of 1947 came into force.
The case for the daughters of Ananda Rao is that there was only an intention to re-unite but that Ex A3 was not followed up and remained inoperative and consequently there was no re-union and that therefore the plaintiff would not be entitled to any portion of Ananda Rao's properties; secondly, the plaintiff is put to strict proof that Hayavadana died after Ananda Rao, Nagasayana end Yashoda; and thirdly, that under the Hindu Women's Right to Property Act, 1937, the female widowed daughter-in-law Manorama Bai would not be a coparcener entitled to the benefits of survivorship.
13. The learned Subordinate Judge came to the following conclusion on point (1) regarding re-union:
'I agree with the argument oE the plaintiff that the two brothers did intend to become a reunited family under Ex. A3'.
'Whatever may be the understanding between defendants 1 to 6 on the one hand and the 7th defendant on the other, it cannot be gainsaid that the parties that is to say, (the brothers) really believed that there was a re-union effected by Ex A3. They never questioned its validity in law and there was no occasion also where its legal effect could be questioned also till the unfortunate tragedy near the Sultan's Battery on 13-2-1949 after which the 5 daughters of Ananda Rao took possession of the estate and of the Sandhya Pictures'.
'Analysing the evidence let in as regards joint living, it has to be found that even though the two brothers were agreed that they should, after the date of Ex. A3, live as a re-united family .....'.
In fact that the learned Subordinate Judge has found against the plaintiff only on the ground that the subsequent conduct of these two brothers, between whom, according to the learned Subordinate Judge, there was utmost affection and cordiality and who were visiting each other on every occasion, showed that they lived separately, and managed their properties separately and that therefore Ex. A3 cannot be invested with any invalidity in law.
14. On point (2) after professing not to discredit the important pieces of evidence adduced by both sides the learned Subordinate Judge came to the conclusion that all the victims died by drowning under water and that there was no evidence to show that Hayavadana died last.
On the 3rd point the learned Subordinate Judge concluded:
'It may be taken, therefore, that all those who died in the drowning died under water. The plaintiff would then be entitled to a half share of the properties in the manner set out above, I do not accede to the contention of the defendants that the plaintiff would be entitled to only such of the properties as are dealt with in Ex. A3 because the document contains sufficiently wide expressions to take in the entire properties'.
The learned Subordinate Judge did not go into the question of the plaintiff as a coparcener entitled to the benefits of the survivorship under the Hindu Women's Right to Property Act, though the foundation was laid for it in the pleadings and in the issues as apparently the point of law was not developed before him as has been done before us by the accomplished advocate (for the plaintiff-appellant) in Hindu law Mr. K. V. Venkatasubramania Iyyar, and by the equally able reply arguments of Mr. T. Krishna Rao.
The learned Subordinate Judge somewhat in-consequently dismissed the suit. Hence this appeal by the defeated plaintiff.
15-16. The points for determination in this appeal are fourfold viz.,
1. Whether there was re-union in fact and there could have been a re-union in law?
2. Whether Hayavadana could be presumed to have died later than Ananda Rao, Nagasayana and Yasodha?
3. Whether under the Hindu Women's Right to Property Act, 1937, this plaintiff would be entitled to a half of the entire joint family estate?
4. What will be the relative rights of the 7th defendant and this plaintiff vis-a-vis that estate? .
17. Point I. A re-union properly so called can take place only between those who were parties to the original partition. Re-union, therefore, postulates three stages viz., (1) Joint family, (2) partition between members of a joint family, (3) an intention and an agreement, express or implied, to re-unite in estate among members who were parties to the partition.
If persons who had separated in interest merely stay together, that is not re-union in law, as said by the Sm. C. II p. 302 and Vivadachandra P. 82.
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The Vivadachandra quoting Visnupurana says that re-union may be implied from a course of conduct, even though an express agreement cannot be proved. There is a divergence or views as to who can re-unite. The Mit., the Dayabhaga, the Sm. C. hold literally construing a verse of Br. (S.B.E. 33 p. 381 verse 72), that a member of a joint family when once divided can re-unite only with his father, brother or paternal uncle, but not with any other relation (such as a paternal uncle's son or paternal grandfather) while the V. C. (p. 157), the V. Mayuka (p. 146), the V. P. (p. 533) hold that the members expressly mentioned by Br. are only Illustrative and that a person may re-unite with any member who was a Party to the original partition.
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A re-united person is called samsrsta or samsrstin (who has re-united wealth).
(See Kane's History of Dharmasastra, Volume III, pages 765 and 766.
18. Thus re-union under the Hindu law takes place where, after partition, the separated coparceners agree to have joint residence, joint estate and joint possession of the estate with the other clear condition that 'the property which is mine is thine, and that which is thine is mine'. In Lakshmibai v. Ganpat Moroba, 4 Bom HCOC 150, at p. 166 (A), it has been held that four things are necessary to constitute a re-union under the Hindu law. They are:--
1. There must have been a previous state of union;
2. There must have been a partition in fact, that is, apportionment of lands as well as division of estate, in the absence of which it would be very difficult to establish a conclusive case of re-union as a matter of evidence;
3. The re-union must be effected by the parties or some of them who have made the partition; and
4. There must be junction of estate and a reunion of property as the mere fact of living together at the same residence or the carrying out of Joint trade cannot constitute re-union. Katu Bully Viraya v. Kutu Chudappavathamulu, 2 Mad HCR 235 (B); Amam Singhat v. Chaitular, 1879-8 Select case No. 12 (C); Gopal Chunder v. Kenaram, 7 Suth WR 35 (D); Rashi Mandli v. Sundar, ILR 37 Cal 703 (E): Lal Singh v. Hira Singh, 7 Ind Cas 352: 84 PWR 1910 (F); Parbhu v. Jwala, 2 All LJ 467: 1905 AWN 183 (G).
What is necessary for the complete re-union is that the divided coparceners should bring into the common stock their whole possession at the time they re-unite. 1879-8 Select case No. 12 (C). (See C. S. Ramakrishna's Hindu Law volume II, page 117).
19. No writing is required to effect either apartition or re-union thereafter, but as in the caseof a partition, so a fortiori in the case of a reunion, if the transaction is once reduced to writing,then it must be registered, since a re-union isonly possible if there is an agreement declaratoryof the new status Section 17 of the Indian RegistrationAct): See GOUR'S Hindu Code (4th edition) page676.
20. Re-union can be effected either by an oral agreement between the parties after the partition or by their subsequent conduct; Balabux v. Rukhmabai, 30 Ind App 130: ILR 30 Cal 725 (H); Jatti v. Banwari Lal, 50 Ind App 192: ILR 4 Lah 350: AIR 1923 PC 136 (I); Palani v. Muthuvenkatachala Jag Prasad Rai v. Mt. Singari Bhima Rout V Dasarathi, ILR 40 Cal 323 (L); Gourishankar v. Kasheb Deo : AIR1929All148 see Mayne's Hindu Law (11th edition), page 570.
21. The effect of re-union may be summed up as follows:
'A re-union remits the re-united parties to their original status of jointness. As the Hindu Law recognises the father's power to alter the son's joint family status into one of separation, there is nothing inherently illogical in the father also possessing the power of converting his son's status of a separated member into that of a reunite member. Thus a father can re-unite carrying by his act into the re-united family, his own sons. When a partition is effected between the re-united members, their shares are the same as they would be at the original partition irrespective of the amount of capital contributed by each coparcener on re-union.
On a re-union even the sons, grandsons and great-grandsons of those re-uniting though born subsequent to the re-union, will remain joint and are entitled to succeed to one another on the basis of survivorship as in ordinary Joint family until a fresh partition takes place. But this general rule of succession by survivorship is subject to certain special rules when the re-united family consists of half-brothers'.
(See Raghavachariar's Hindu Law (3rd edition), page 428).
22. Re-union is a very rare occurrence. It must be strictly proved as any other disputed fact is proved. Re-unions though nowadays are rare, they are not absolete, since the causes which lead to partition are not easy to eliminate nor is the state of independence born of partition easily forsaken. He who relies upon a re-union must prove it. This proof In the case of re-union set up in court falls under two heads viz., (1) where the re-union is sought to be proved through a registered agreement evidencing the same; and (2) cases where there is no such instrument evidencing the intention and the agreement to re-unite and it has to be deducted from subsequent conduct.
In fact almost all the cases which came to court fell within the latter category, because as just now mentioned re-union need not be in a formal manner or by a formal deed or by any deed at all. Therefore we have to fall back upon subsequent conduct of the parties to deduce whether there was mere living together or trading together or there was junction of estate and re-union of property resulting from the crux of re-union vis., an intention and agreement to re-unite. See the decisions Babu v. Gokuldoss, 55 Mad LJ 132. AIR 1828 Mad 1064 (N); Satcherla v. Satcherla, ILR 22 Mad 470 (O); Rajgopal v. Veeraperumal : AIR1927Mad792 Bhagabati v. Murlidar .
This will depend upon the circumstances of each case and no hard and fast rule can be laid down because it is well settled law that a separation from commensality, though an element properly to be considered on the question whether there has been a separation, does not, as a necessary consequence, effect a division of the joint status, since such separation in mess and worship may be due to various causes unconnected with severance in interest, as, for instance, for the convenience of the parties. Even a mere division of the income for the convenience of the different members does not amount to a partition.
(See Ganesh Dutt v. Jewach, : AIR1933Bom386 (Z). Re-union is only the reverse process of partition.
It is true, there may be cases where the members of a family, proceeding on ignorance or seeking fulfilment of immediate purposes, make statements that they are living in divided or undivided status. In such cases it is not their statements but their relations with the estate that should be taken into consideration in determining the issue whether they are undivided or separated. In deciding such issue it would not be proper to consider whether each fact or document is sufficient to rebut or make out jointness or division and what is necessary is to take into account the cumulative or converging effect of all the documents and oral evidence so tendered. But where there is an instrument duly executed and registered; that by itself establishes the severance or re-union because both partition as well as re-union are not evidence of process but of facts accomplished.
The legal construction and effect of a deed effecting separation or its reverse process re-union cannot be controlled or altered by the subsequent conduct of the parties: Babu v. O. A. Madras Manickam v. Kamalam : (1937)1MLJ95 Hirasingh v. Mangalan, AIR 1928 Lah 122 (Z3); Harikishen v. Partap . The onus of proving that such deeds do not evidence a real and bona fide transaction between the parties thereto but are a mere pretence or that they were intended ab initio to be operative only in a particular event or contingency lies on the party who asserts to that effect: Sham Chand v. Protap Chandra, ILR 25 Cal 78 (PC) (Z5); Sookheemonee Dasi v. Mohendra Nath, 13 Suth WR 14: 4 Beng LR 16 (PC) (Z6).
23. We shall now briefly notice the Madras decisions on the subject. In Narasimha Charlu v. Venkata Singaramma, ILR 33 Mad 165 (27) it was held that succession in a re-united family governed by Mitakshara Law is by survivorship that this mode of succession is not confined to the members who actually re-united and the son of a re-united member born after the re-union is re-united and takes by survivorship. This decision refers to the earlier decision of Krishtraya v. Venkatramayya, 19 Mad LJ 723 (FB) (Z8), wherein it was held that re-united members of a Hindu family are not tenants in common, but are coparceners with right of survivorship inter se; and that the son of re-united member will himself be a member 're-united' with the others.
In 55 Mad LJ 132: AIR 1928 Mad 1064 (N), Venkatasubba Rao, J. held as follows:
Physical or de facto division is not essential to a separation; an agreement between the members to hold the joint family property in defined shares as separate owners Is enough to operate as an immediate partition. From the mere fact, therefore, that there was not a division by metes and bounds in regard to certain items, it does not follow that the deed of partition did not effect a severance.
Where it was contended that an award effecting a partition of joint family properties did not effect a severance as between two of the members of the family inter se, but It appeared that, immediately after the partition, those two members agreed to bear their house-keeping expenses in certain defined shares.
Held, that the circumstances afforded the most cogent evidence to show that the deed was intended to effect a separation as between those two members inter se.
A member of a Joint Hindu family, having a minor son, can effect a partition between himself and his brother, also having a minor son, so as to affect the status of the minor as regards his uncle. There is nothing in the Hindu Law to prevent the member from entering into a re-union with his brother, the sons of both continuing to be minors at the time of the re-union, so as to confer upon the minor son the status of a reunited member.
Re-union does not merely give rise to a rule of preferential succession. On the other hand, it cancels the partition and remits the parties to their original status and they thereby become subject to all the incidents of a Hindu coparcenary.
Jointness in residence, food and worship does not necessarily connote re-union.
Division into shares of expenses of house-keeping and of worship is essentially a characteristic of a separated status.
Re-union is of very rare occurrence, and must be strictly proved'.
In Venkatramayya v. Seshayya : AIR1942Mad193 , Patanjali Sastri, J. (as he then was) has had to deal with a case of re-union which was not evidenced by any contemporaneous documentary evidence but had to be deduced from subsequent conduct and the learned Judge held that in the absence of subsequent acts or transactions pointing to a re-union with the son after he became a major, the mere fact of the parties having lived together cannot be relied upon to indicate a re-union.
In Venkatasubbayya v. Venkataramayya, ILR 1944 Mad 33: AIR 1943 Mad 349 (Z10), a Bench of this Court hearing a Letters Patent appeal from the aforesaid decision held, that the embracing of Christianity by the father effected a division in status between him and his son and once the family became divided, it could not be re-united without the consent of the spn and during his minority he was not in a position to give his consent.
The latest decision in this series is that of Rajamannar, Officiating Chief Justice, and Satya-narayana Rao, J. in Kaliammal v. Sundarammal, ILR 1949 Mad 171: AIR 1949 Mad 84 (Z11). This was also a case where the re-union had to be deduced, in the absence of a contemporaneous documentary evidence from subsequent conduct. The learned Judges held that though reunion under Hindu law can be established by proof of subsequent conduct of the parties, yet, in order to establish it it is necessary to show not only that the parties lived together, but that they did so with the intention of thereby altering their status and forming a joint estate with all its usual incidents.
24. Bearing these principles in mind, if we examine the facts of the present case, we find that the re-union set up by the plaintiff has been proved to the hilt. The motive for this re-union is fully set out in the registered agreement reproduced above. It arose from a request of Rama-krishnayya to Ananda Rao to give Hayavadana in adoption to him and the latter's agreeableness to oblige his brother, provided that by such an adoption his son Hayavadana would not lose a due share of his patrimony.
The preparation made for this re-union is seen by the consultation with Mr. B. Sitarama Rao. This intention of re-uniting has fructified into the registered agreement Ex. A-3, carrying out the intention. The terms of the agreement show that both junction of estate as well as jointness of possession were effected. Subsequent to this agreement, apart from separate living and separate management of their affairs for convenience, nothing was done by these brothers showing any going back on this re-union effected.
On the other hand, both the brothers continued to live together in the greatest amity, were subscribing for the same copy of the newspaper and the family marriages were jointly sponsored and each was assisting the other as the diary entries and the memorandum show and both the brothers Nagasayana and Hayavadana were jointly financed to carry on a common venture viz., the Sandhya Pictures. On one occasion when this re-union had to be asserted before their community, this was done: See Ex. A-4. In fact, Ramakrishnaya's widow, the 7th defendant, who is now sailing with the daughters of Ananda Rao categorically asserted this re-union in Exs. A79 and A81.
It is not necessary to multiply these details to show that, for good reasons which have been established, the two brothers Ramakrlshnaya and Ananda Rao effected a re-union under Ex. A-3 and Hayavandana was adopted three days later by Ramakrishnaya and both the brothers till the date of their death continued to live in their joint status along with their sons Nagasayana and Hayavadana.
The weight of this evidence and the probabilities of the case are not in any way displaced by the entire evidence adduced on behalf of the daughters of Ananda Rao, who even went to the extent of pretending ignorance of this agreement and put the plaintiff to strict proof, amounting to nothing more than separate living and separate management of the individual day to day affairs of the brothers.
The case-law on the subject has already been set out above and it is now settled law that commensality or non-commensality, mess, residence and worship by themselves do not connote partition or divided status and may be due to convenience of living. This is not also a case where the brothers are shown to have had any motive for entering into a nominal transaction from the very beginning. On the other hand, the circumstances under which the re-union came into existence are all consistent only with its being a genuine transaction.
The alleged subsequent conduct viz., separate living and separate management of the brothers' individual affairs would not make the re-union effected on 15-5-1934 nominal. In fact the legal construction and effect of a deed affecting separation or its reverse process re-union cannot be controlled or altered by the subsequent conduct of the parties. The cases relied on by the defendants all relate to re-unions set up but not supported by any contemporaneous agreement or other document and where this re-union had to be deduced from subsequent conduct.
In such cases it has been held that mere living together or trading together without proof of an intention to re-unite and an agreement to re-unite would not be sufficient to establish re-union. In the result, the re-union set up by the plaintiff has been proved to the hilt.
25. The learned advocate for the defendants contended that this was not a re-union in law because out of the two parties to the re-union one of them was the original party to a partition and in regard to the other he only along with his father and brothers got separated and that to such a case the junction must be of the separated brother and the other entire group from which that brother got divided.
This novel argument is devoid of any substance. The rules of the Mitakshara on the subject of re-union are: 'Effects, which had been divided and which are again mixed together, are termed reunited. He, to whom such appertain, is a re-united parcener'. 'That cannot take place with any person indifferently; but with a father a brother and a paternal uncle'; as Brihaspati declares 'He, who, being once separated, dwells again through affection with his father, brother or a paternal uncle is termed re-united with him': (Brihaspati, XXV, 7; Mitakshara, II. IX. 2, 3; translation as corrected by the decision in --'Basanta Kumar v. Jogendra Nath', ILR 33 Cal 371 (Z12); Manu, IX, 210-212; Yaj., II, 138-139; Smrithi Chandrika XII, 1-28; Madhaviva Section 47; V. Mav., IV, ix, 1-25; Viramit; IV (Setlur's Ed., 427-428).
The Smritichandrika says that there can be no re-union with relations other than a father, brother or paternal uncle, Smritichandrika, XII, 1; Sarasvathivilasa (para 176, p. 139). The express mention by Brihaspati of father, brother and paternal uncle has been held to be restrictive and not merely illustrative. In -- 'Ram Narain Chaudhury v. Pan Kuer' , the Privy Council held (1) that the text of the Mitakshara is clear and unambiguous and excludes recourse to the other authorities; and (2) that in a Hindu family governed by the Mitakshara, a re-union is valid only if it is with a father, brother or paternal uncle and only if it is between parties to the partition. Therefore, all that is required under these texts In order to constitute re-union is fourfold:
(i) a previous state of union;
(ii) re-union by those who have made a partition;
(iii) an intention to re-unite; and
(iv) the requisite relationship.
In this case all these four conditions are fulfilled. The previous state of union between Ramakrishnaya and Ananda Rao is not disputed. It is idle to contend that when one of the brothers got divided from his father and the other brothers, though the latter remained undivided as between themselves, there was no division in status between that separated brother and the father and each of the other brothers remaining joint with the father.
Out of these people who got divided only Ramakrishnaya and Ananda Rao have had an intention of re-uniting. This is perfectly justifiable both under partition as well as re-union viz., for any two of the persons who had got divided to reunite as they pleased. The requisite relationship has also been made out. Therefore, nothing can be deduced from the texts as not covering a case of the instant re-union and we are unable to see wherein the texts require a further requirement that a separated brother must re-unite with an entire group because at the previous stage that group as between itself remained undivided.
Secondly, none of the well-known standard commentaries on Hindu law lends support to this contention. In Mulla's Principles of Hindu Law (10th Edition), page 429, the comment is that it would appear from the texts that a re-union can take place between any persons who were parties to the original partition. In Gour's Hindu Code, page 674 the comment is:
'As might be supposed, re-union does not amount to the cancellation of partition though the parties to a partition may cancel it, in which case, they would remain as united as if the partition had never taken place. On the other hand, where there is a mere re-union, it cannot re-unite all those who had separated, and the new status cannot be created except by an intention and an agreement to do so.'
In other words, re-union can take place betweenthose who intend to do so, provided the other qualifications are fulfilled. We have already reproduced an extract from Kane's History of DharmaSastra page 766 that a member of a joint familywhen once divided may re-unite with any memberwho was a party to the original partition deedunder the Mitakshara if they fall within the requisite relationship. Ramakrishna's Hindu Law,Volume II, page 117, mentioning that the re-unionmust be effected by the parties or some of themwho have made the partition, has already beenalluded to.
In Raghavachariar's Hindu Law (3rd Edition) page 427, it has been pointed out how the text of Brihaspati has been treated as exhaustive and restrictive and not merely illustrative in Bengal and Southern India and how the Bombay High Court adopts the view of Mayukha and how the Lahore High Court and the Patna High Court take the view that under the Mitakshara a re-union cannot take place with any person except with a father, a brother, of a paternal uncle and that it can take place only between persons who were parties to the original division so that a person who had not divided the inheritance with a father, brother or uncle cannot become re-united with any of them; and now this view has now been approved by their Lordships of the Privy Council in 62 Ind App 16: (Z13).
In other words, all these standard commentaries proceed on the footing that a re-union can be effected by any two persons who were coparceners at one stage and got divided and then agreed to re-unite. It is on this foot it has been held that no agreement to re-unite can be made by or on behalf of a minor who under the law is not capable of entering into any agreement either expressly or by implication 30 Ind App 130 (H), and it is only fathers who by their re-union can carry their undivided sons, though minors within the re-united family, by their own act of reunion 55 MLJ 132; AIR 1928 Mad 1064 (N).
Thirdly, no decision has been brought to our notice in support of this contention by the advocate for the defendants giving this more extended or restricted meaning, as the case may be, to Brihaspati's text. Fourthly, this contention would lead to illogicalities and absurdities because the entire text of Brihaspati will have no meaning if one of the coparceners got separated from the coparcenary and others remained joint as amongst themselves and when on the, subsequent date when he wants to re-unite with any one of those members, they had got divided amongst themselves in the meanwhile.
Then, if one or more members can get divided from the rest remaining Joint in a coparcenary, why should there be restriction if any of two those divided members want to re-unite? Reunion is, after all the reverse process of partition and there is no reason why what is possible in a partition should be made impossible in a reunion. If a person who has got separated wants to dwell through affection once again with a father, a brother or a paternal uncle, why should he be compelled to carry over into this transaction a whole series of other unwanted people?
Therefore, this contention that this re-union is not in accordance with Brihaspati's text and void in law is devoid of substance and fails.
26. On this conclusion it follows that the plaintiff Manorama Bai would be entitled to a life estate in regard to the properties which would have fallen to the share of her husband Hayava-dana, that is to say, a half share in the properties owned by Ramakrishnaya and Ananda Rao.
27. Point 2:-- The next point for consideration is the law on the subject of 'commorientes' that is to say, when two or more persons perished by a common disaster. The English law on the subject is set out in Taylor on Evidence (12th Edition), Sections 302-203, as follows:
'202. When two persons, and especially when two relatives, have perished in the same calamity, such as a wreck, a battle, or a conflagration, it often becomes important, with a view of determining the right of succession to estates, to ascertain who was the survivor. Direct proof however, can seldom be procured in these cases, and, consequently, in the Roman law, and in several other codes, recourse had to artificial presumptions, whenever the particular circumstances connected with the deaths were wholly unknown.
Those presumptions were based on the probabilities of survivorship resulting from strength, age, and sex. In the case of a father & son perishing together in the same shipwreck or battle, the Roman Law presumed that the son died first if he was under the age of puberty, but if he was above that age, that he was the survivor, on the principle that, in the former case, the elder was generally the more robust, and, in the latter, the younger.
203. In cases of this nature the Law of England generally recognised no presumption, either of survivorship, or of contemporaneous death and, in the total absence of all evidence respecting the particular circumstances of the calamity, the matter will be treated as one Incapable of being determined. But by section 184 of the Law of Property Act 1925 (c. 20): 'In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder.'
It remains only to observe, that if any circumstances connected with the death of either party can be proved, the whole question of survivorship may be dealt with as one of fact, and the comparative strength, or skill, or energy, of the two sufferers may then very fairly be taken into account.'
28. The position is summed up by Phipson on Evidence (9th Edition) page 702 where it is stated :
'Formerly there was no presumption of survivorship in the case of 'Commorientes', i. e., two or more persons who have perished by a commondisaster, but now, for all purposes affecting the title to property, Section 184 of the Law of Property Act, 1925, Ch. 20 George V (L. R. Statutes--1925 Vol. I p. 700) provides that such deaths shall be presumed to have occurred in order of seniority, and consequently, that the younger was the survivor.
Under this section, it was held that when four persons died in a house as the result of one bomb explosion, they were to be taken to have died in the order of the respective ages -- 'Hickman v. Peacey', 1945 AC 304 (Z14); 'Re Pringle', 1946 Ch 124 (ZI5), where 'simultaneous death' in a will was held to cover a similar calamity; -- 'Re Bate', (1947) 2 All ER 418 (Z16). Where foreign law is to be applied the presumption may be different 'Re Cohn', 1945 Ch 5 (Z17).'
28a. In Halsbury's Laws of England Vol XIII (Hailsham Edition) the following passage at page 503 occurs:
'Where several persons perish in the same disaster, there is, in the absence of evidence on the point, no presumption as to the order in which they died, or that they died at the same time. The onus probandi lies on the party who asserts survival, or concurrent decease, or pre-decease.
Where legal rights dependent on the fact, or date, of the death of a person have to be adjudicated, and such fact or date cannot, be determined on evidence of presumption, and the question cannot be solved by the incidents of the burden of proof, the Court will make the best order that it can in the circumstances.'
29. The American Law in regard to survivor-ship in a common disaster is set out in Wigmore on Evidence (3rd Edition) Volume 9, Section 2532 as follows:
'Where two or more persons have perished in the same disaster, there is at common law no presumption or law that either survived the other, or that all perished at the same time. (England: -- 'Wing v. Angrave', (1860) 8 HLC 183 (Z18), Canadian decision collected In footnote 1 to Section 2532; U. S. A. Federal; 'Young Women's Christian Home v. French', (1902) 187 US 401: 47 Law Ed 233 (Z19); -- 'Cedergren v. Mass Bonding and Ins. Co.', 8th CCA 292 Fed 5 (Z20), (death on the waters in a storm).
The burden of proving that one survived another will commonly be on any claimant for whom that fact is essential to his own chain of title. If there is evidence, from the age, sex, or physical condition of the persons who perished, or from the nature of the accident and the manner of death of the parties, which tends to show that some one did in fact survive the others, the whole question is one of fact, to be decided in each case by the jury, according to the incidence of the first burden of proof (ante Section 2485); but without any rule of presumption.
Artificial rules were indeed prescribed by the Continental law, and by a few of our own Codes. But in escaping the artificialities of these rules, the common law left many difficulties unsolved, and created new technicalities capable of doing inordinate violence to a testator's intentions. For example, the supposed logic which has sometimes permitted the identical devisee of two co-perishing testators to be, after all, judicially deprived of the estate is as unnecessary in legal principle as it is shocking to good sense: (As in 'Wing v. Angrave' (Z18), and 'Newell v. Nicholls', (1878) 75 NY 78 CZ21, the following decisions are commendable instances of a refusal to accept such a result: (1902) 187 US 401 (Z19); 'Re Fowle's will', (1918) 222 NY 222; 118 NE 611 (Z22), (See rational and liberal opinions of Car-dojo J. and Crane J.; 'Fitzgerald v. Ayres Tex Civ. App (1916) 179 SW 289 (Z23)). (See footnotes 3 and 4 at p. 482) and a fairer solution for this problem is a present desideratum in the law, for such disasters have now become more frequent since the extension of rapid mechanical travel on land, on sea and in the air.'
30. Lawson, writing with reference to American Law, gives in his work on Presumptive Evidence the following list of presumptions of survivorship:
'Rule 54: There is no presumption as to the order in which two or more persons died, who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant.
Rule 55: But where the calamity, though common to all, consists of a series of successive events, separated from each other in point of time and character, and each likely to produce death upon the several victims, according to the degree of exposure to it, the difference in age, sex, or health may raise an inference of survivorship.
Rule 56: And the one of several in a common danger which proved fatal to all, who was last seen or heard of alive within the operation of the cause of death, is presumed to have survived the others.'
31. In Ameer Ali's Law of Evidence 8th Edition B787-788 contains the following passage:--
'Connected with the subject of continuance of life is the question of the presumption of survivorship in common disaster. Allusion is here made to those cases where several persons generally of the same family have perished by a common calamity, such as shipwreck, earthquake, conflagration, railway accident or battle, and where the priority in point of time of the death of one over the rest exercises an influence on the rights of third parties.
The Civil law recognised certain arbitrary rules or presumption for determining the relative times of death of two or more persons who perished in the same catastrophe. These rules were based on the age, sex or state of health of the parties. So a child under the age of puberty was presumed to have died before its parent, but if above that age the rule was reversed.
These fixed presumptions, however, never prevailed in the Common Law, and the Courts rejecting this conjectural mode of ascertaining the truth have laid down the rule that the case must be determined upon its own peculiar facts and circumstances whenever the evidence is sufficient to support a finding of survivorship, but in the absence of any such evidence the question of such survivorship is regarded as unascertainable, and in such cases, the question is determined as if the death of all occurred at the same moment.'
31a. In India, the English rule Preceding the Law of Property Act, 1925 (Section 184) will govern cases failing under Lawson's Rule 54. The leading decision on that subject is -- 'Agha Mir Ahmad Shah v. Mir Mudassir Shah' , which held:
'When two individuals perished in a common calamity and the question is as to who died first, in the absence of evidence on the point, there is no presumption in law that the younger survived the elder. The question is always from first to last a pure question of fact the onus pro-bandi lying on the party who asserts the affirmative.'
See also 'Digendra Kumar v. Kuti Mian' : AIR1944Cal132 .
31b. In cases falling under Lawson's Rules 55 and 56, the ordinary presumption in human nature is that the elder man died first: -- 'Gopal Chan-dra Deo Goswami v. Padmapani Goswami' 18 Ind Cas 814 (Z26):
'Therefore when the evidence on the question as to who died first is so evenly balanced I think we are entitled to say that the probabilities are in favour of the younger man surviving the elder.'
'Y. N. Kulkarni v. Laxmibai', ).
(See Monir's Principles and Digest of the Law of Evidence Third Edition pp. 815 and 899; V B. Raju I. C. S., Indian Evidence Act, Vol. II, pages 847-848).
32. Bearing these principles in mind, if we examine the facts of the instant case, we find that though all the fatal results arose from a common disaster to two boats, on account of the sparse evidence at our disposal a meticulous timetable cannot be constructed and it cannot be premised with any amount of safety about the exact timings of the deaths of the victims of this disaster.
On that foot there is no evidence that Hayavadana died last, as concluded by the learned Subordinate Judge. But as this is not a case which falls under Lawson's Rule 64, but Rule 65 this case of commorientes cannot be disposed of under the earlier rule in the English Law, applying the Privy Council decision (Z24), referred above, but has to be disposed of under the rule now embodied in English Law of Property and which it may be stated is also being embodied in the forthcoming Hindu Succession Act.
The established facts in the instant case are: The picnic party was returning in two boats. They capsized on reaching place to the south of Sultan's battery. One of the party, the motor driver of Ananda Rao by name Krishnan, swam to the shore and rescued some women and children and attempted to save others. One of the party by name Rama Rao was brought to the hospital for treatment.
Hayavadana and three others were rescued by some Mogaviras and were brought to the shore, a place near the ferry on the aide of the road. The bodies of Ananda Rao, Nagasayaha and his wife Yasodha and three others were not found and the bodies were being searched for, P. W. 3, whom the learned Subordinate Judge states that he was not for a moment saying that he was giving false evidence and P. W. 9 stated that the bodies were warm when they saw them and before they saw them and before they were rushed to the hospital in the ambulance.
D. W. 2, whom the learned Subordinate Judge believed, is a registered medical practitioner who was at one stage approached by the plaintiff's father to give the certificate Ex. A85 and he has stated therein that when he examined the bodies at 8-45 p. m., he was not able to hear the heartbeats and there was no movement of the chest. If D. W. 2 is to be believed, P. Ws. 3 and 9 have come to the scene later.
There is also the evidence of the fisherman D. W. 3 who stated that when the bodies of Hayavadana and others were rescued by netting and brought ashore, their hands and legs had become rigid and froth was coming out of their face and nose and they were dead. The evidence of D. W. 4 who is the first defendant can be discarded as interested and was so discarded by the learned Subordinate Judge. In regard to D. W. 1 who is the station house officer of Mangalore North police station and who held the inquest, he has naturally no personal knowledge of the tragedy that took place on the previous evening.
Therefore, in this state of divided evidence, two witnesses supporting the plaintiff and two witnesses supporting the defendants and both sets of whom the learned Subordinate Judge has not discredited, all that emerges is that one set of people went under the water and their bodies could not then be recovered and another set of people had been struggling and keeping themselves above water and had been netted and brought ashore and of whom one actually recovered. Beyond that every thing is a conjecture.
In these circumstances Lawson's Rule 55 applies and it is permissible for us to draw the presumption that deaths occurred in the order of seniority and the younger viz., Hayavadana was the survivor and that he died later than Ananda Rao, Nagasayana and Yasodha. In this state of evenly balanced evidence this is also the best order which the Court can make in the circumstances and would be entitled to say that the probabilities are in favour of the younger man surviving the elder.
33. On this conclusion it follows that the plaintiff Manorama Bai is the widow of the last surviving coparcener.
34. Point 3 :-- The Mitakshara coparcenary has been a narrower body than a joint family described in the smrithis and commentaries aa Kutumba (Nardattapradanika 6 or Yaj 11, 175) or avibhakta Kutumba (Yaj II 45) and has been consisting of only those persons who have taken by birth an interest in the property of the holder for the time being and who can enforce a partition whenever they like.
It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus while a son, grandson, or a great-grandson is a coparcener with the holder of the property, the great-great grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder. Vide -- 'Moro v. Ganesh', 10 Bom HCR 444 at pp. 461-468 (Z31), where Mr. Justice Nanabhai Haridas very lucidly explained by several diagrams the limits of coparcenary and which persons are entitled to demand a partition and from whom.
The reason why coparcenership is so limited is to be found in the peculiar tenet of the Hindu religion that only descendants upto three degrees can offer spiritual ministration to an ancestor. Besides, only males could be coparceners though females who by marriage entered the undivided family were regarded as members of an undivided family and all females are excluded from the coparcenary, because the test of coparcenership had been the right to enforce a partition and no female had that right though females like wives and mothers may be allotted shares when a partition takes place.
This was the position of the 'males' and the female members of the undivided joint Hindu Mitakshara family by marriage before the passing of the Hindu Women's Rights to Property Act 1937. (See Commr of I. T. Bombay v. Lakshmi-narayanan', : 3ITR367(Bom) (Z32).
35. The incidents of that coparcenary right have been neatly summarised by Raghavachariar in his Hindu Law (3rd Edition), Chap. VIII, Section 236 as follows:
'There is a community of interest and unity of possession between all the members of a coparcenary, and upon the death of any one of them the others take by survivorship, that in which, during the deceased's lifetime, they had a common interest and common possession -- 'Lalla Mohabeer Pershad v. Mt. Kundun', 8 Suth WR 116 (Z33); -- 'Katama Natchiar v. Raja of Shivaganga', 9 Moo Ind App 539 (Z34). No individual member while the family remains undivided can predicate of the joint and undivided property that he, that particular member, has a certain definite share, either in the corpus or in the income. --'Girdharee Lall v. Kantoo Lall', 1 Ind App 321 (Z35); -- 'Appovier v. Rama Subba Aiyan' 11 Moo Ind App 75 (Z36); -- 'Pirthi Pal v. Javahiri Singh', 14 Ind App 37 (PC) (Z37).
Till a partition takes place his interest remains a fluctuating interest enlarged by deaths and diminished by births in the family: --'Sudarasanam v. Narasimhulu', ILR 25 Mad 149 (Z38). In every coparcenary the son, grandson or great-grandson obtains an interest by birth in the coparcenary property so as to be able to control and restrain improper dealings with the property by another coparcener. -- 'Suraj Bunsi Koer v. Sheo Proshad', 6 Ind App 88 (Z39).
He is entitled to reside and be maintained in the family house along with his wife and children and to have joint possession and enjoyment of coparcenary property. He can enforce a partition of his share in the common property; and in modern times the courts in Bombay, Madras and the Central Provinces Courts have loosened the strict rule of Mitakshara by holding that a coparcener may sell mortgage or alienate for value his undivided interest in coparcenary property without the consent of the coparceners and then courts have allowed the undivided interest of a coparcener in joint family property to be attached at the instance of a creditor for the individual debts of a coparcener.
This is one of the most serious departuresfrom ancient and medieval Hindu law made bythe courts on grounds of equity' (Vide for example -- 'Vasudeva Bhat v. Venkatesh', 10 Bom HCR139 (Z40), which was approved by the Full Benchin -- 'Fakkirappa v. Chanappa', 10 Bom HCR 162(Z41); -- 'Vitla Butten v. Yamenamma', 8 Mad HCRule 6 (Z42).
Moreover the joint family property devolves by survivorship i. e., on the death of a coparcener the interest lapses and goes to the other coparceners subject to this that if the deceased has left a son, a grandson, or great-grandson, the latter represents and occupies the place of the deceased coparcener when a partition takes place'.
36. It may be pointed out here, as it has an important bearing on our discussion, that what is known as coparcener in Hindu Law is not identical with coparcener as understood under the English Law.
37. The incidents of English coparceners or parceners are set out in Wharton's Law Lexicon (12th Edition), page 222, as follows:
'Persons inheriting an inheritable estate by virtue of descents from the ancestor which confers on them all an equal title to it. It arises by Act of law only i. e., by descent, which, in relation to this subject, is of two kinds:--
(1) Descent by the common law, which takes place where an ancestor dies intestate, leaving two or more females as his coheiresses, these according to the canon of real property inheritance, all take together as coparceners or parceners, the law of primogeniture not obtaining among women in equal relationship to their ancestor; they are, however, deemed to be one heir; and
(2) Descent by particular custom, as in the case of gavelkind lands, which descend to all the males in equal degree, as the sons, brothers, or uncles of the deceased intestate ancestor; in default of sons, they descend to all the daughters equally.
Coparceners have a unity though not an entirety or necessarily an equality, of interest; if there be two only, each is properly entitled to the whole of a distinct moiety; and being seized in moiety there is no jus accrescendl between them, for on the death of one of them intestate, her moiety descends to her heir-at-law, who holds, subject to courtesy (if any), with the surviving parcener in coparcenary, although such heir maybe a male or a collateral.
Indeed, their estates are held in coparcenary so long as they claim by descent. As soon as any part is severed by conveyance, from the title of the remaining part, the part so severed will be held in common.
Between the alienee and the other coparceners there will be a tenancy in common. The remaining coparceners will, as between themselves, continue to hold in coparcenary.
They are seized both jointly and severally, and possess a unity of title, but the estate may vest in them at different periods.
Coparcenary is like joint tenancy so far as the same unity of title and similarity of interest is common to both, but they differ in this, that while coparceners always must claim by descent (for if two sisters purchase an estate to hold to them and their heirs they are not parceners, but joint-tenants), joint-tenants always claim by act of parties.
This estate may be dissolved in any of the following modes:
(1) By deed of partition, as
(a) Where coparceners agree to divide the estate into equal parts in severally, each to have a determinate portion.
(b) Where they appoint some third person to divide the estate, and after a division by him, each coparcener according to the seniority of age, or as shall be agreed between them, selects her own portion. The privilege of seniority is in this case personal; for it the eldest sister be dead, her issue shall not choose first, but the next sister, But if an advowson descend in coparcenary, and the sisters cannot agree in the presentation the oldest and her issue, may, her husband, or her assigns, shall present alone, before the younger.
And the reason given is, that the former privilege of priority in choice upon a division arises from an act of her own, the agreement to make partition, and therefore is merely personal; the latter, of presenting to the living, arises from the act of the law and is annexed not only to her person but to her estate also.
(c) Where the eldest coparcener divides the estate, in which case she takes the portion remaining after her sisters have made their choice.
(d) Where they agree to cast lots for their shares.
(2) By the alienation of one of the parties which destroys the unity of title.
(3) By all the estate at last descending toone person, which reduces it to a severalty; and
(4) By a compulsory partition or sale under the Partition Acts'.
See also Halsbury's Laws of England (Hallsham Edition), Volume 27, at page 753, (note 'u'); W. S. Holdsworth's History of English Law, Volume III, pages 126-128; and Stephen's Commentaries on the Laws of England (18th Edition), Volume II, page 212 and following.
37a. It is interesting in this connection to examine the term 'co-parceners' in Muhammadan Law. Co-sharers in Muhammadan Law are also described as coparceners: -- 'Enatullah v. Kow-sher Ali', ILR 54 Cal 266: AIR 1926 Cal 1153 (Z43); -- 'Lalla Nowbutlal v. Lala Jewan Lal', ILR 4 Cal 831 (Z44). The discussion in these cases related to the right of pre-emption under the Muhammadan Law.
There are three categories of persons entitled to claim pre-emption or Shufa viz. (1) Shafi-i-sharik (2) Shafi-i-khalit and (3) Shafi-i-jar. The first category comprised those who are entitled to claim pre-emption by virtue of co-sharership. This phrase Shafi-i-sharik has been translated by Ameer Ali following the earlier writers like Baillie and Hamilton as 'pre-emptor by right of coparcenary': See Ameer Ali's Muhammandan Law, 4th Edition, volume I, page 717.
The Arabic word Sharik sometimes translated as co-sharer, co-partner has also been frequently translated in text-books and cases as coparceners.
(See also K. P. Saksena, Muslim law as administered in India and Pakistan Third Edition (1954) p. 669 wherein the co-sharers' position is pointed out to be that of a tenant in common (p. 94) and a partition suit is an administration suit, p. 96).
38. The Hindu coparcenary is also different from joint tenancy under English law, though there are no doubt many points of resemblance between a Hindu coparcenary and the English joint tenancy; but there are equally striking differences between them. They resemble each other in that (1) there is the right ot survivorship in both, (2) in both each member is entitled to possession over the whole of the joint property and (3) the acts of the member enure to the benefitof others in both the cases. But they differ fundamentally in the modes of their creation and the extent and nature of the interests.
(1) Coparcenary is a creature of law and comes into existence by birth while a joint tenancy is created by a deed or will and not by descent.
(2) A coparcenary consists of only relations, -- 'Karsandas v. Gangabai', ILR 32 Bom 479 (Z45), while a joint tenancy may be created in favour of strangers.
(3) A coparcenar's power of alienation in respect of his share is a restricted one, while that of an English joint tenant is absolute, though he too cannot transfer it by will.
(4) The quantity of a coparcener's interest is ever fluctuating with births or deaths in the family, while that of the joint tenant's interest is fixed and ascertained.
(5) The wife and children of a coparcener have a right to be maintained out of the joint property which is denied to those of a joint tenant. (6) On the death of the last surviving coparcener, the whole property passes to his own heirs while on the death of the last surviving joint tenant, the property descends in equal shares to the heirs of all the joint tenants.
39. In fact the term 'coparcener' borrowed from English Law has been used in distractingly discordant senses, as pointed out by the learned advocate for the appellant Mr. K. V. Venkatasubramania Ayyar in his Article published in 1942 2 M LJ 63 Journal section, page 63, and following. He writes:
'When Colebrooke translated the Digest of Jagannatha and later the Mitakshara and the Dayabhaga he borrowed the term coparcener from English Law for the purpose of describing the members of a joint family who are entitled to demano partition of the family property. In some places he used the old form, parcener.
In some places he used the more familiar term coparcener which has now definitely established itself in the English vocabulary of Hindu law. It is clear that he had no intention of importing into Hindu law the technical English idea of coparcenary, for coparcenary never arises under English law except under a Joint inheritance, but joint descent is not a necessary condition of co-ownership of joint family property under Hindu Law.
The essential connotation of the term so far as Colebrooke was concerned, lay in the right to demand partition, the object being to distinguish share-holders in the joint family estate from the inferior category of members who are merely entitled to maintenance.
It is certain that Colebrooke had no intention . to associating the idea of coparcenary with the special incidents of Joint family relationship under the Mitakshara, for he used the term. In various places in his translation of the Dayabhaga also.
In course of time precisely how and when it is unnecessary now to consider, the term coparcener and its variants came to acquire a special affinity with the rule of survivorship under the Mitakshara law. In a well-known passage in the judgment of the Privy Council in the 9 Moo Ind App 539 , Lord Justice Turner says; 'There is coparcenership between the different members of a united family and survivorship following upon it.'
The change in the meaning of the term coparcener is interesting. Under English Law coparcenary is sharply differentiated from Joint tenancy. The former never arises except under a joint inheritance. The latter never arises except under a joint grant. In coparcenary there is no right of survivorship, but the jus accrescondi is the distinctive feature of a joint tenancy.
It is true that Colebrooke's coparcenary is not the same as the coparcenary of English law, but Colebrooke applied the idea of coparcenary to both schools of Hindu law. In blending coparcenary and survivorship, therefore, the Judgment in the Shivaganga case (Z34), was taking a term imported from English law by Colebrooke but giving to it a meaning which differs both from Colebrooke and the English law.
The judgment in Shivaganga case (Z34), was in 1863. Five years later, in the judgment of the Privy Council in -- 'Bhugwandeen Doobey v. Myna Baee', 11 Moo Ind App 487 (Z46) another development emerges in the connotation of the term coparcener. Sir James Colville, in his judgment in this case, says:
The estate of two widows, who take their husband's property by inheritance is one estate. The right of survivorship is so strong that the survivor takes the whole property to the exclusion even of daughters of the deceased widow. They are therefore in the strictest sense coparceners and between undivided coparceners there can be no alienation by one without the consent of the other'.
The reference to coparceners in this case, even though there was no question of a joint family, was a complete departure from Colebrooke. Coparcenary and joint tenancy have here become practically synonymous. Further a new element has come in, that coparcenary property cannot be alienated by one coparcener without the consent of the others.
This emphasises the deviation from Colebrooke strikingly, for Colebrooke recognised coparcenary under Dayabhaga law and under Dayabhaga law one coparcener can alienate his share without the consent of the others.
Has Sir James Colville's conception of coparcenary been maintained in later cases? Clearly not, for the proposition enunciated by him is flatly contradicted by the law relating to impartible estates.
There was a tendency until comparatively recently to deny the possibility of coparcenership in impartible estates. It was categorically asserted, for instance, in -- 'Rama Rao v. Rajah of Pittapur', 35 M LJ 392: AIR 1918 PC 81 (Z47) when the Privy Council was still under the spell of --'Sartaj Kuari's case', ILR 10 All 272 (Z48), that impartibility is the inevitable negation of coparcenership. But this view has now been abandoned. In -- 'Komammal v. Annadana Jadaya', : AIR 1928 PC 68 (Z49), Sir John54 MLJ 504 Wallis says:
The Betia Raj case, contains observations denying that the junior members of the family have any coparcenary interest in the impartible estate even for the purposes of succession, but these observations have been explained in Lord Dunedin's judgment in -- 'Baijnath Prasad v. Tej Ball Singh', AIR 1921 PC 62 (Z50).'
Later in the 'Jheria case, Shiba Prasad v. Rani Prayag Kumari' , Sir Dinshaw Mulla says:
Though the other rights, which a coparcener acquires by birth in joint family property, no langer exist the birth-right of the senior member to take by survivorship still remains'. What in this state of the authorities is the connotation of the term coparcener under the Hindu law?
The English law association of coparcenary with joint inheritance is clearly inapplicable to Hindu Law. The notion that coparcenary is a relationship between members of a joint family, though, supported by Colebrooke, is contradicted by the judgment in 11 Moo Ind App 487 (Z46).
It is generally assumed that the right to partition and the right to restrain alienation are essential incidents of, coparcenary, but any generalisation to this effect is clearly inconsistent with the law relating to impartible estates. The common tendency nowadays is to treat coparcenary as the technical description of the joint tenancy that prevails in an undivided Mitakshara family, but the usage originated by Colebrooke still persists and passages can be found in any text book on Hindu Law explaining the distinctions between coparcenary under Mitakshara law and coparcenary under the law of Dayabhaga.
The conclusion is perfectly plain. The term coparcener has the deceptive appearance of a term of art, but it has really no unchangeable and unchallengeable legal connotation. Any quarrel about the meaning of this expression will be merely the old story of the chameleon, all will be right and all will be wrong.
Would it not be advantageous to accept the advice given by Lord Dunedin in 40 MLJ 387: AIR 1921 PC 62 (Z50), and avoid verbal confusion by dropping this unhappy term wherever possible, concentrating attention on the substance of whatever legal issue may be in question?'
40. It was in this context that the Hindu Women's Rights to Property Act, 1937 came to be passed. Its object as its very name indicates was to give fresh rights to Hindu Women. Section 3(2) states.
'When a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu Joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.'
Sub-section (3) states:
'Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.'
There are no words in this Act by which the widow can either be deemed to be or not deemed to be a coparcener. There are no words in this Act by which the widow can either be deemed to take by survivorship or by inheritance. Therefore, we have to gather from the case law on the subject the interpretation of the term 'same interest as he himself had' and to find out whether the sum and substance of all these decisions would amount to 'all the interests which the deceased coparcener would have had including the right of taking by survivorship which would equate her to a pucca coparcener.'
41. The earliest decision is 'Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938, In re'. ). In the course of delivering their opinion, their Lordships of the Federal Court have remarked at pp. 6-7 (of FLJ): at p. 74 (of AIR), as follows:
'In addition to the constitutional points above summarised, a suggestion was made on the construction of the Act that it does not provide for the devolution of any property by survivorship nor confer on the widow a right by survivorship though it gives her the same interest in the joint property as her deceased husband had.
This does not seem to be tenable. It is true that Section 3 of the Act does not use the word 'survivorship', and it may be that the widow taking ashare under the Act does not become a coparcener with the other sharers; but there can be no doubt that in the cases in which it gives to the widow of a deceased coparcener a right to a share in the joint property which she did not possess under the pre-existing law, it takes away to that extent the benefit of the rule of survivorship which would have accrued to the remaining coparceners.
The reference must therefore be dealt with on the footing that so far as its effect goes, the Act does legislate 'with respect to' the law of survivorship. It can make no difference for this purpose whether the measure confers on one person a benefit by way of survivorship or takes away from another the benefit of survivorship'.
The guarded language 'it may be' and 'on the footing that so far as its effect goes' may be noted. It is clear that their Lordships did not want to pronounce a final opinion on the subject.
In 'Saradambal v. Subbarama Ayyar', ILR 1942 Mad 630: AIR 1942 Mad 212 (Z53), a much quoted decision of this Court of Venkataramana Rao J., it was held:
'Under Section 3(2) of the Hindu Women's Rights to Property Act, 1937, a widow of an undivided member of a Hindu joint family takes the same interest in the joint family property (excepting such properties as would fall under the category of agricultural lands) as her husband himself had subject to the restrictions placed on her powers by Section 3(3) of the Act.
That sub-section leaves the right to partition untouched but restricts the right of alienation because the nature of the interest which she takes is a Hindu Women's estate. The Act has taken away the rule of survivorship and allowed the property to descend to the deceased's wife. The property taken by her is liable for the payment of her husband's debts and is liable to be attached by her husband's creditors'.
In 'Satyanarayanacharlu v. Narasamma' : AIR1943Mad708 , decided by Horwill J., the learned Judge in the course of his discussion has stated at p. 282 (of MLJ) : at p. 708 (of AIR).
'The effect of the death of a coparcener with regard to property other than agricultural land is that the widow stands in the shoes of her deceased husband, who was a coparcener. She is a member of the joint family and the son is the proper person to bring a suit on behalf of the joint family of which his mother is a member.
It does not follow that because the mother is not a coparcener and did not obtain the property by survivorship, she must have obtained it as a heir. She became entitled to her rights by statute'.
In 'Nandkumart Devi v. Bulkan Devi' ILR 23 Pat 508: : AIR1945Pat87 ) (Z55), decided by Fazl Ali C. J., and Beevor J.. it was held:
'That the widow took under Section 3(1) the same share as if she had been a son, and the widowed daughter-in-law inherited under the first proviso to that sub-section in the like manner as a son of N, as his son left no son. Thus the widow and the widowed daughter-in-law each took half the property.
Under Section 3(3), the interest devolving on them being limited interests (Hindu Women's estate), provided that each of them had the same right of claiming partition as a male owner.
Semble: Sections 3(1) and 3(2) of the Act taken together are intended to be exhaustive of the possible circumstances in which a male Hindu may die intestate leaving property or an interest in property.'
In the same volume there is another decision of Fazl Ali C. J., and Reuben J., viz., --'Siveshwar Prasad v. Lala Har Narain', ILR 23 Pat 760; : AIR1945Pat116 (Z56), wherein Fazl Ali C. J., remarked at pp. 761-762 (of ILR): at p. 117 (of AIR).
'Now it is quite clear that Musammat Kalawati did not acquire her interest as a survivor. She had acquired it under a statute and although the statute does not say expressly that she will acquire the interest of her husband as his heir, yet it seems to me that if she does not get the interest by survivorship then she must be held to have acquired it as an heir.
If she got it as an heir then the interest is an asset of her husband in her hands and can be proceeded against by the creditor.'
The learned Judge relied upon ILR 1942 Mad 630: AIR 1942 Mad 212 (Z53), for this proposition as well as for the proposition that 'the Act has taken away that rule of survivorship and allowed the property to descend to his wife'.
In 'Chinniah v. Sivagami Achi' : AIR1945Mad21 , the facts were: Subsequent to the death of his only son a Hindu made an adoption of another boy. The widow of the deceased son thereafter made a demand for partition of the joint family estate and filed a suit for the recovery of her share under Sub-section 2 of Section 3 of the Hindu Women's Rights to Property Act, 1937. It was held:
'The widow was entitled to a one-third and not to a half share in the estate. Having regard to the words used in Sub-section 2 of Section 3 of the Act and to the nature of the interest of a coparcener in a joint family governed by the Mitakshara law, the widow got no greater rights than those possessed by her husband, and when she sought partition, the joint family had been increased by the adoption of a son by the head of it.
The word 'interest' in Sub-section 2 does not mean the same thing as the word 'share' used in Sub-section 1 of the section, and the interest which the husband had in the family estate was a fluctuating interest. The widow could not be in a better position than her husband if he had lived.'
The Bench implied that if the demand of the widow claiming her share in the property had been made before the adoption had taken place, she would have got one-half instead of one-third of the estate.
The decision in -- 'Gangabai v. Parmeshari-bai', AIR 1949 Sind 5 (Z58), is authority for the proposition that under Section 3(2) a Hindu widow's interest in her husband's coparcenary estate, so long as she does not claim partition, is liable to be increased or decreased by the death or birth of a coparcener in the joint family in the same way as if her husband had been alive. Reliance was placed on : AIR1945Mad21 , for this proposition.
In 'Seethamma v. Veeranna Chetty' : AIR1950Mad785 , it was held:
'The status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Hindu Women's Rights to Property Act is not that of a coparcener, but that of a member of the joint family with certain special statutory rights.
The death of a coparcener who is a member of a Hindu joint family does not effect a severance or disruption of the joint family, merely because he leaves behind him a widow who has certain statutory rights under the Act. The widow cannot in any sense be regarded as the widow of the divided member. The result is that the joint family will continue as before except that the widow would have a special limited statutory right.
Because the joint family continues, its well-recognised incidents will also continue, namely, the right of the kartha to represent the family and to be in management of its affairs. The widow cannot demand from the kartha an account of the management of the joint family except in special circumstances, e. g., fraud, misappropriation, etc.
The widow cannot be said to be a tenant incommon with the surviving coparceners. The kartha is not liable to render an account of his management for any period prior to the issue of notices demanding partition.'
The Bench referred to the decision of Venkataramana Rao J., in ILR 1942 Mad 630: AIR 1942 Mad 212 (Z53) and the decision of Horwill J., in -- 'Natarajan Chettiar v. Perumal Ammal' : AIR1943Mad246 , wherein the learned Judge was of the opinion that where the widow of the payee of a promissory note endorsed the note in favour of another, the endorsee need not procure a succession certificate in favour of the widow before instituting a suit on the note as the widow though she did not obtain the right given under the Act by survivorship, did not also obtain her right by inheritance either and might be regarded
'as a survival of the husband's persona in the wife giving her the same rights as her husband had except that she can alienate the property only under certain circumstances.'
The Bench also referred to a Bench decision of the Allahabad High Court in -- 'Kallian' Rai v. Kashi Nath' : AIR1943All188 , wherein it was said:
'The Act was intended to give better rights to women in respect of property -- that is the preamble to the Act -- but there is no indication that the Act intended to interfere with the established law relating to joint family. Whatever inroads it may have made on the doctrine of survivorship, it does not effect a statutory severance or disruption of the joint family.
The widow as a member of a joint Hindu family is to have the same interest in the joint property as the deceased husband had and this devolution does not otherwise affect the joint family status unless the widow availing herself of the provisions of Sub-section (3) claims a partition.
As long as she does not do so, the status of a joint Hindu family continues and although she may not be a coparcener with the other sharers as was held in , in the sense that the principle of survivorship no longer subsists, it cannot be said that she is not a member of a joint Hindu family as long as there is no partition.'
In 'Radha Ammal v. Commissioner of Income-tax Madras' : 18ITR225(Mad) , the facts were: A person whowas assessed in respect of a business as Karta of an undivided Hindu family died leaving six minor sons and his widow. For two years thereafter the income was assessed on the basis of the incomeof an undivided family represented by the widow. During the next year the widow entered into a partnership with a stranger in regard to the business and purported to act as guardian on behalf of her minor sons. The registration of this partnership under Section 26 (a) of the Income-tax Act was refused. On a contention that as the widow could validly represent the minors as Kartha, the partnership deed was a valid one, held:
'The new rights conferred by the Hindu Women's Rights to Property Act, 1937, on the Hindu widow cannot have the effect of converting her status into that of a coparcener to enable her to acquire a representative capacity as a Kartha or managing member of the family and bind the minor members of a transaction of this nature. Hence the partnership could not be registered under Section 26(a) of the Income-tax Act.
Per Satyanarayana Rao J. : The right to become a manager of a Joint Hindu family, depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the Joint family. The rights conferred by the Hindu Women's Rights to Property Act on a widow either individually or cumulatively do not have the effect of conferring on her the status of a coparcener in the family.
Nor do they clothe her with a right to represent the other members of the family as Kartha of a joint Hindu family.
Per Viswanatha Sastri J.: Coparcenership is a necessary qualification for managership of a joint Hindu family. Even in the case of a Mitakshara family, the widow notwithstanding the rights conferred on her by the Hindu Women's Rights to Property Act, cannot be treated as a coparcener along with the sons or other coparceners, though she would be a member of the joint family. She does not become a coparcener by the death of her husband and the act does not use apt language to convert the interest which devolves upon her into an interest of a coparcener.
The interposition of her limited interest does not make her a coparcener and cannot clothe her with the managership of the joint family in case she happened to be the eldest member of the joint family.'
The decision of the Special Bench of the Orissa High Court in -- 'Radhi Bewa v. Bhagwan Sahu' : AIR1951Ori378 , is to the effect that the Act, as its preamble shows, is a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief and as such it ought to receive beneficial interpretation. It was held by Narasimham J. and Ray C. J., Das J., contra:
'The quantum of interest which the widow gets is not fixed with reference to what her husband had at the time of hia death. The quantum is liable to fluctuation until partition and hence there is no legal impossibility in applying Section 3(2) to the case of a widow whose husband died prior to the Act, when joint family property continues intact after the passing of the Act.
If there was any valid alienation by the manager of the family or by a coparcener in states like Madras where such alienations are recognised as valid to the extent of his interest, the quantum of interest available to the widow at the time of partition would have to be worked out as if her husband were alive till the date of partition while at the same time preserving vested rights which had accrued to persons before commencement of the Act.
Per Das J. : Under Section 3 (2), the Hindu widow gets her interest from her husband by 'devolution'. By the 'devolution' of the interest on her she intercepts the right of survivorship thereto of the other coparceners, including the direct lineal male descendants or the husband himself. She has the right, under Sub-section (3) to obtain separation of her interest by claiming a partition.
Her interest is a present interest capable of enjoyment, as such, even without division, and is not dependent upon her enforcing partition. She can therefore question alienations made or partitions effected, behind her back after the right accrues to her. The interest which she gets from her husband, in her hands being the limited interest of a Hindu woman's estate, is subject to alienation and devolution in the same way.
It follows that while her interest is an interest in the joint family property, it is not a coparcenary interest--it is only an ex-coparcenary interest. On her death, her interest in the joint family property, or the share therein which she may take on separation, does not, prima facie, revert back to the joint family or coparcenary as such, but goes to the heirs of her husband as the fresh stock of descent.
So far as can be gathered with reference to the wording of Sub-sections (2) and (3) of Section 3 of the Act, the interest taken by the post-Act widow is merely an interest in the joint family property and accruing at the very moment of her husband's death. There is, absolutely no reason for thinking that the position is different in respect of the pre-Act widow in case the Act applies to her.'
'Nagappa Narayan v. Mukambe' : AIR1951Bom309 is authority for the proposition that the interest which the widow gets in the joint family property was neither an interest by survivorship nor one by inheritance but was one specially created under the terms of the Act and was liable to fluctuation until a partition is demanded and disruption of the joint family status has been effected.
In 'Nanda Koshore v. Sukti Dibya' : AIR1953Ori240 , Panigrahi J., has the following to say about the position of the widow under the Act:
'The proposition that the characteristic attribute of a coparcenary is that a coparcener has a mere 'privilege' to admit male issue only to the coparcenary and that the Act purports to deprive him of this privilege by admitting the widow of a 'deceased coparcener' is not correct; because if a widow is 'admitted' to the coparcenary the Act would have said so in clear terms.
On the other hand the Act merely seeks to 'better' the rights of the widows by enabling them to succeed to their husband's interests and enjoy the 'widow's estate'. The extent as well as the limit of her right are defined. A coparcenary is a corporate body and not a partnership.
A coparcenary may exist without owing any property, and the right of a member springs on his birth. This right is not dependent upon the existing coparceners 'admitting' him into the family. They have no right of refusal, any more than they can prevent him from being born.
To characterise the right of a coparcener as a 'privilege' is to confuse it with that of a partner in a firm.........................A woman member of a coparcenary is not a 'coparcener'. Her right is limited to maintenance only, and she has no interest in the coparcenary property as such.
To treat her, therefore, as a coparcener and to hold that she acquires an interest in the property which 'grows' (and presumably also liable to diminution) will altogether remove the differences that now exist between male coparceners and female members of a Hindu family. .........
The deceased husband's interest was the right to enjoy the property jointly with others and this Interest is lapsed by death. On his death his interest does not remain undisposed of. The distinction between the word 'coparcener' as applied to a Hindu undivided family and as it is understood in the English Law of tenures, is that when a member or a joint family dies his right accrues to the other members by survivorship.
But if a coparcener dies, his or her right does not accrue to the other coparceners, but to his or her own heirs. Therefore, it is not correct to say that his interest remains undisposed of and what goes down from time to time by deaths or births is the right to represent him, which is not the same as the right to property.
Fluctuation of an interest by births or deaths is one of the normal incidents of a Hindu coparcenary proposition. It is not correct to say that the interest is liable to fluctuation by reduction, but not by enhancement. Either a member is a 'coparcener' or he is not. Therefore, it is not correct to say that a widow, is a coparcener but 'not a coparcener in the full sense''.
(Observations of Ray C. J. in : AIR1951Ori378 commented upon and AIR 1921 PC 62 (Z50), referred to).
In 'Shivappa Laxman v. Yellawa' : AIR1954Bom47 , Gajendragadkar J., discussed the position of the Hindu Widow under the Act as follows:
'As a result of these provisions the rule of survivorship has received a serious blow. It is no longer possible to apply this rule of survivorship to the interest of a deceased coparcener if he leaves surviving him his widow. Formerly, the interest of the deceased coparcener in the undivided properties passed on to the other surviving coparceners by survivorship.
Devolution of such an interest by survivorship is now no longer possible because the interest of the deceased coparcener must now devolve upon his widow. Even before this Act was passed, females who by marriage entered the undivided family were regarded as members of an undivided family. They were however never given the status of coparceners and it may be that, even after the passing of this Act, the Hindu widow on whom the interest of her deceased husband devolves would not be a coparcener properly so called. She is however a member of an undivided family who is entitled to the same interest in the properties of the family as her deceased husband had.
It is true that piecemeal legislation passed for removing obvious anomalies, or making pressing progressive changes, in Hindu law tends to lead to complications; because it is sometimes difficult to reconcile the new provisions made by the amending acts with the rest of the structure of Hindu law.
The effect of the provisions of Section 3 on the constitution of the surviving family after the death of a coparcener is an illustration in point. The undivided Hindu family would now consist of coparceners and a female who has a share in the properties of the family. The right to property is conferred on the widow without giving her the status of a coparcener.
This position is likely to raise some problems which may not admit of a logically consistent answer. The question as to how the deceased husband's interest devolves upon his widow has given rise to conflicting views. This devolution cannot be attributed to survivorship because survivorship applies as between coparceners and the widow is not a coparcener.
The question as to how the deceased husband's Hindu law and some decisions of the Madras High Court have described this devolution as by inheritance. Bhagwati and Dixit JJ. have however taken a contrary view. It has been held by them in : AIR1951Bom309 that it would be 'fallacious' to describe the devolution of such interest on the Hindu widow as based on inheritance or succession.
On this view, the devolution of such interest should be treated as of a special kind laid down by the Act differing alike from succession and survivorship. Even so, both Mr. Justice Bhagwati and Mr. Justice Dixit agree that the undivided interest of the deceased husband in the family properties does not go to the surviving coparceners after his death, but it devolves upon his widow in the manner contemplated by the Act.
* * * * * It is well settled that in an undivided Hindu family the share of each coparcener is not determined until a partition is effected and during jointness it is liable to fluctuation by deaths or births in the family; but that does not mean that the coparcener has no vested right in the undivided share of the properties.
The position of a Hindu widow's interest in the family properties is, in our opinion, somewhat analogous to the undivided right of the coparcener at least so far as the manager's powers of management and alienation are concerned; so that if the said interest of the Hindu widow is sought to be defeated by an unjustified alienation, she would be entitled to challenge it just in the same manner as a coparcener would'.
In Kedar Nath v. Radha Shyam : AIR1953Pat81 the position of a Hindu widow is summed up as follows at p. 87:
'To sum up, the weight of judicial opinion appears to be that under the Act the widow succeeds not by survivorship but by inheritance or something akin thereto. The property in her hands is liable to be followed in execution of the debts of the previous male owner.
'She continues to be a member of the joint Hindu family and, as such, can be represented by the 'karta' in proceedings in Court.
She has the same interest in the property, subject to Sub-section (3) of Section 3, as the last male owner had. Her interest is, therefore, liable to fluctuation by variations in the number of coparceners Her interest is a limited one of the nature known as a Hindu woman's estate, but she has the same right of claiming partition as a male owner. She continues herself the persona of the previous male owner and, on her death, the property devolves as it would have devolved if he had died on the date when she dies.'
The learned Judges also discussed the scope of the decision in Vinod Sagar v. Vishnubhai, AIR 1947 Lah 388 (Z69) wherein Abdur Rahman J. observed that the right of partition given to the widow by Sub-section (3) of section 3 is confined to the property and does not extend to the coparcenary, and held, differing from that decision that the power of a widow is co-extensive in this respect with that of a male coparcener.
In Rathinasabapathi v. Sarasvathi Ammal : AIR1954Mad307 Bench of this Court held:
' The Hindu Women's Rights to Property Act does not enlarge the right of a widow except to the limited extent provided therein, namely, to ask for a partition of her husband's share which she would, however, be entitled to hold and enjoy as a Hindu women's estate, and her position and status in the joint family is not in any way affected of varied by the enactment. She continues to be a member of the joint family and does not become a coparcener however much she might have become entitled to the interest which her husband possessed in the joint family properties.
The word 'interest' in Section 3 (2) of the Act cannot mean that all the right, title and interest which her husband had, she became entitled to including a right of action which he would have had to question an alienation if he had been alive. It only means the quantum of interest which the husband would be entitled to in the joint family properties.
The widow's general right to be maintained out of the joint family estate has not been taken away by the Act, since there 'is no reference to it. Such a right is still available and the option would rest with her to claim maintenance or a share, but not both.'
Parappa v. Nagamma : AIR1954Mad576 is the decision of a Full Bench of this Court to which one of us was a party. There it was held:
Under the Mitakshara School of Hindu law a wife of a coparcener becomes a member of the family though she does not attain the status of a coparcener; but the later development of the law reduced the content of her rights and confined it to a claim for maintenance from and out of the joint family property. But her husband's interest in the family property would pass by survivorship to the other members of the family.
In essence her right to maintenance was attached to the joint family property. The quantum of maintenance would depend upon the number of shares in the joint family, the extent of its property and other circumstances obtaining at the time when she seeks to enforce her right.
The Hindu Women's Rights to Property Act has conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. Section 3 (2) of the Act does not bring about a severance of interest of the deceased coparcener. The widow is not raised to the status of a coparcener though she continues to be a member of the joint Hindu family as she was before the Act.
The joint family would continue as before subject only to her statutory rights. The lights of the other members of the 'family would be worked out on the basis that the husband died on the date when the widow passed away, the right to survivorship being suspended till then.' In 'Ramsaran Sao v. Bhagwat Shukul' : AIR1954Pat318 , it was held:
'The status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Hindu Women's Rights to Property Act, 1937, is not that of a coparcener, but that of a member of the joint family with certain special statutory rights.
There is nothing in the Act to inhibit the operation of the ordinary rule of Hindu Law that the sole surviving coparcener has absolute right of the disposal over the property of the joint Hindu family. This power is necessarily limited by the interest to which the widow of the deceased coparcener succeeds under the Act.
The interest of a widow in the share of the property of the sole surviving coparcener during his lifetime is merely a 'spes successionis' '.
In 'Subba Rao v. Krishna Prasadam' : AIR1954Mad227 , Venkatarama Ayyar J., who delivered the judgment of the Bench discussed the matter as follows:
'The language of Section 3(2) is, it must be conceded not quite apt to convey the notion that the widow takes as heir, but it becomes intelligible and its true intent dear when recourse is had to a well-known text of Brihaspathi, the principle of which would appear to have been embodied inthe section. The text runs as follows;
'when a person dies and his wife survives, half his body survives in her; when half the body of a person survives, how can another person take his property?'
According to Hindu theory, the widow is the surviving halt of the deceased husband and it is on the basis of this theory that her status as heir which was at one time denied to her came to be recognised later. What the legislature would appear to have done is to extend this theory to widows of coparceners in a Mitakshara Joint family and to have enacted that the interest of the husband will not lapse on his death if there is a widow surviving, because he is still in theory alive in his widow.
The right of the widow being thus founded on the fiction that her husband continues to live in her, there can be no question of her succeeding as heir to her husband, for heirship arises only on the death of a person, whereas the basis of her title is that the husband continues to live in her. If this is the principle underlying Section 3(2), then there can be no question of either severance ofstatus by operation of law or of succession by the widow as heir.
The true scope of Section 3(2) then is that modi, fies the pre-existing law on the subject to this extent that, where under the law as it stood before the Act the interest of the coparcener lapsed on 'his death, thereby augmenting the interest of the surviving coparceners, under that section, the interest of the deceased coparcener does not lapse where he leaves a widow surviving. As against her, the right of the coparceners to take by survivorship under the Mitakshara law is modified. It does not follow from this that that right hag been abrogated altogether, for all times and against all persons.
If a coparcener dies leaving behind a daughter and no widow, Section 3(2) has no application and the right of survivorship under the Mitakshara law stands unaffected. The precise effect of Section 3(2), therefore seems to be that the right of survivorship which the coparceners had under the Hindu law prior to the Act is suspended as against the widow, but in other respect it still subsists and operates in accordance with the principles of Hindu Law.
The result is that, when once the widow dies, Section 3(2) has no further effect and the rights of the parties must be determined exactly as if there had been no interposition of the widow or as if the husband himself and died when the widow died.
The right of the coparceners to take by survivorship, which was in abeyance so long as the widow was alive, comes into operation the moment she dies'.
The latest decision is the judgment in --'Seshi Ammal v. Lakshi Ammal', A. S. No. 299 of 1950, D/- 15-7-1955 (Mad) (Z74), wherein it was held that there is no survivorship to the widow of the rights of a deceased coparcener.
42. To recapitulate the foregoing the term 'coparcener' as it has come to be used in Hindu Law is not the coparcener contemplated either in English Law or in Muhammadan Law. It was Colebrooke who popularised the use of the term 'coparcener under Hindu Law. But alter its adoption by Colebrooke in his translation of Jagannatha's Digest and later in his translation of Dayabhaga and the Mitakshara, the application of the term has passed through various changes.
It seems probable that it was the special association with the right to claim partition under the English Common Law that led to the adoption of this term by English writers on Indian Law who wanted a word to distinguish share entitled members of a family from the mere maintenance entitled members. Somewhat paradoxically the word 'coparcener' came to be associated with the later developments, with family ownership of impartible estates on account of the recognition of the right of survivorship which is emphatically denied to coparceners under English Law notwithstanding the absence in any impartible estate of the right to claim partition which as stated above was historically a vital characteristic of coparcenary under English Law. When the term 'coparcener' was adopted in Indian law it was meant to refer to members of an undivided family who are entitled to enforce partition.
43. The incidents of that coparcenership can be conveniently summed up as every individual member having by virtue of being a coparcener an interest in coparcenary property; a right to enforce partition; until partition takes place an unpredictable and fluctuating interest in the joint and undivided property possessed and enjoyed in common by the coparcenary the interest being a fluctuating interest enlarged by deaths and diminished by the births in the family, right to be in Joint possession and enjoyment of coparcenary property, reside and to be maintained in the family house; and as a necessary corollary thereof be bound by the alienations for benefit and necessity and the legitimate acts of management of the karta; and the right to object to alienations made' without consent or made without legal necessity.
In Madras a coparcener can sel! mortgage or alienate for value his undivided interest in the coparceners property without the consent of the other coparceners and the courts have allowed the undivided interest of a coparcener in Joint family property to be attached at the instance of a credit or for the individual debts of a coparcener.
44. Before the passing of the Hindu Women's Rights to Property Act, 1937, the female members of a Joint Mitakshara Hindu family by marriage were regarded as members, of that undivided family. They were, however, not entitled to enforce partition ana were merely entitled to maintenance. The 1937 Act altered this state of things and conferred upon the female members by marriage the right to enforce partition and were merely entitled to maintenance.
The 1937 Act altered this state of things and Conferred upon the female members by marriage the right to enforce partition and obtain the interest of their deceased husbands.
45. The catena of decisions set out above has construed that 'interest' as conferring the following rights upon that female member by marriage of the undivided family. The Act itself confers upon her the right to enforce partition which is considered the touchstone of coparcenership.
It is not compulsory for her to enforce partition and the death of her husband does not automatically disrupt the joint status of the family. So long as that female member does not enforce the partition, she will continue to be an undivided member of that family bound by all the acts of the karta or family manager who is however called in the Smritis and Digests as Kutumbin, (Yaj II 45) Grihin, grihapati, prabhu (Kat 543). It will also be open to her like the other coparceners under the Mitakshara system of Hindu law obtaining in Madras State to sell, mortgage or alienate for value her undivided interest in the coparcener's property without the consent oi other coparceners and the courts will allow her undivided interest in joint family property to be attached subject to the other limitations and restrictions appurtenant to a woman's estate.
The interest which this female member obtains under the Act is not a fixed interest as would be in the case of inheritance but a fluctuating interest as would be the case under survivorship. The births and deaths in the family would diminish and augment her share which she would obtain at the time the partition is effected. In fact if the coparcenary consists of a father-in-law and a widowed daughter-in-law and if the daughter-in-law takes care to demand and enforce a partition before the father-in-law adopts, she would be entitled to one-half and not one-third in the joint family property.
It is not necessary for a widow, to collect the debt due to her husband, to obtain succession certificate as she does not take the property by inheritance or succession. Finally, this female member by marriage who can enforce a partition, till partition is effected can reside in and is bound to be maintained and be in joint possession of the coparcenary property. It has been held that theoption rests with that female member to claim maintenance or a share but not both.
Thus the catena of decisions cited above has clothed the female member of the undivided family by virtue of the 1937 Act with all the powers which a male coparcener is held to have under the Mitakshara system of Hindu Law.
46. The learned Judges, however, have on occasions made an almost ritualistic profession of faith that the widow is not a coparcener having the right of survivorship. But even here they have not been uniform and most often they have been using guarded language showing that they are not finally deciding the question. In the earliest decision of the Federal Court their Lordships used guarded language that
'it may be that the widow taking 'a share under the Act does not become a coparcener with the other sharers'.
In an Orissa decision it has been held that either the member is a coparcener or he or she is not and therefore it is not correct to say that a widow is a coparcener but not a coparcener in the full sense. In a Bombay decision it is mentioned that 'the position of a Hindu widow's interest in the family properties is, in our opinion, somewhat analogous to the undivided right of the coparcener.'
But all the decisions make clear that the interest which descends on the widow is not a whit less than that of the husband if he had been alive. In one case it is stated that the widow takes the same interest in the joint family property as her husband himself had. In another case it is stated that the widow stands in the shoes of her deceased husband who was a coparcener. In a third it is stated that although she may not be a coparcener it cannot be said that she is not a member of the joint Hindu family, as long as there is no partition.
In the latest decision of the Bombay High Court it is mentioned that it may be that even after the passing of this Act, a Hindu widow on whom the interests of her deceased husband devolves would not be a coparcener properly so-called. In a 1953 decision of this Court it was stated that the widow does not become a coparcener however much she might have become entitled to the interest which her husband possessed in the joint family properties.
But all the decisions are now agreed that a Hindu widow does not take by inheritance as the heir of her husband & that is why as just mentioned before we are not insisting upon succession certificates in her case. The only alternative to inheritance, so far as Mitakshara system is concerned, is survivorship and this is not conceded. The theory evolved therefore, in some decisions is that she neither inherits nor takes by survivorship but obtains certain statutory rights as if a coparcenary cannot be created by statute which Would carry with it all the concomitants of survivorship.
47. The underlying reluctance to recognise the Hindu widow as a coparcener cannot arise from the tests because so far as the texts go, the female member by marriage was always considered to be a member of the undivided Hindu family. In fact the text of Brihaspathi has already been cited in the Judgment of Venkatarama Ayyar J., (as he then was).
This is also at the bottom of the concept of persons mentioned in the judgment of Horwill J. So far as the Hindu law-givers were concerned the only touchstone according to them of coparcenary was the right to enforce partition. This right now having been statutorily conferred by 1937 Act, the texts do not in any way constitute an impediment to the widow being considered a coparcener in the correct meaning of that term under Hindu law.
The Act does not stand in the way because it does not state that the female member takes either by survivorship or by inheritance. The catena of decisions arising under the Act has now interpreted the term 'interest' as all the right, title and interest of her deceased husband except that of survivorship. It cannot be pretended that if the Hindu widow is deemed to have a right by survivorship also any complications would arise. On the other hand the distinguished commentator of the Mayne's Hindu Law (11th Edition) specifically states at page 710 that 'though if she were assumed to be a coparcener in the Mitakshara sense, the working of the Act would be easier'. It cannot also be pretended that the conferring of the right of survivorship would constitute a startling innovation because it is recognised in all the decisions that the Act has made great inroads into the theory of survivorship & in fact the Federal Court has stated that when the Act gave to the widow a right to a share in the joint property which she did not possess under the pre-existing law, it took away to that extent the benefit of the rule of survivorship which would have accrued to the remaining coparceners and that it would make no difference for this purpose whether the measure conferred upon one person a benefit by way of survivorship or took away from another person the benefit of survivorship.
In fact, survivorship is a double-edged weapon because time alone can tell whether the interest will be reduced to nothing by the coparcener himself dying or enlarge the sole ownership of the joint family property as a result of the death of all the other coparceners. It cannot also be finally pretended that to construe that the widow has the right pf survivorship would be a case of advanced thinking ahead of notions accepted and acceptable to the Hindu society governed by the Mitakshara law because the Hindu Succession Act which is in the anvil makes a clean sweep of all these restrictions on the rights of the female members by the marriage of an undivided Mitakshara family.
Therefore we must examine how far the notion colouring all our judicial thinking on thissubject viz., that in order to be a coparcener onemust take the interest by birth, is well-founded orill-founded.
48. That a coparcener can be constituted other than by birth under the Mitakshara system is evident. It can be created by statute and a classical instance is that of the husband and wife being constituted as coparceners under Madras Nambudri Act XXI of 1933. It will be remembered that the Nambudris are governed by the Makkattayam or the Mitakshara system of Hindu Law.
49. Coparcenership can be constituted by custom having the force of law among several castes in certain parts of the Madras State who are otherwise governed by the Hindu Mitakshara system. A peculiar type of affiliation called illatom adoption prevails among several castes in certain parts of Madras State.
In 'Hanumantamma v. Rami Reddi', ILR 4 Mad 272 (Z75), it was held that the custom of illatom (the affiliation of a son-in-law as a coparcener son) obtains among the Motali Kapu or Reddi caste in the Districts of Bellary and Kurnool, that one, who has at the time no son, may exercise the right of taking an illatom son-in-law, though he may have more than one daughter and though he may not be hopeless of having male issue and that in case of competition with an afterborn aurasa son he takes an equal share with the latter.
Where a person first affiliated an illatom son-in-law and then adopted another person, it was held that even though the two might have lived in the same family in commensality, neither they nor their descendants can, in the absence of proof of custom, be treated as Hindu coparceners having the right of survivorship: -- 'Chenchamma v. Subbayya', ILR 9 Mad 114 (Z76), followed in -- 'Malla Reddi v. Padmamma', ILR 17 Mad 48 (Z77). Whether an illatom son-in-law can demand a partition is not a pure question of law but is a question of custom depending upon evidence; -- Chinna Obayya v. Sura Reddi' ILR 21 Mad 226 (Z78).
In 'Gadivam v. Mallavarapu', 22 M LJ 265(Z79), it is laid down that to constitute a person illatom, it is not sufficient that he lives in his father-in-law's house, assists his widow after her husband's death and is employed by her for paying the Government assessment but it is necessary to prove a specific agreement. Where a member of the Kamma caste in the District of Nellore took an illatom son-in-law, when he had already a natural born son and when he formed a joint family with his two brothers, it was held by the Privv Council on the evidence as to custom that the illatom adoption was valid: -- 'Krishtnamma v. Kamepalli Venkata Subbayya', ILR 42 Mad 805: AIR 1919 PC 162 (Z80).
Rattigan (in Punjab Customary Law, page 15 Clause 27) notes that a resident son-in-law who has been associated by a deceased person with himself in the cultivation of land with the object of succeeding him as heir is called a Ghar-jawaior Khana-damad and usually succeeds to the father-in-law's estate in default of male issue.
50. In the case of co-widows who take their husband's property by inheritance with a right of survivorship their Lordships of the Privy Council held in '11 Moo Ind App 487 (Z46), that they are in the strictest sense coparceners.
51. The very texts on which Mitakshara Hindu Law is based and to which we profess strict adherence furnish a striking example of a non-cogenital coparcener in the shape of Dasiputra.
52. The classical passage on the rights of the illegitimate son of Sudra from a Dasi is Yaj II, 133-134 which verses are introduced by the V. Mayuka (a) with the words 'Yaj. Declares a special rule as regards one begotten by a Sudra on a woman (of the same caste) not married to him' and which may be rendered thus 'even a son begotten by a sudra on a Dasi may partake of a share at the choice (of his father). But, when the father is dead, the brothers should make him the recipient of a half share'. This passage and the comments of the Mit., the V. Mayuka, the Dayabhaga have been cited and explained in numerous cases.
53. The following propositions as deduced from the case law based on the texts may be set out here:--
(1) the illegitimate son of a Sudra even under the Mitakshara does not acquire by birth any interest in the estate held by the father and so cannot enforce a partition in his father's lifetime, but the father may give him a share in his lifetime, which may even be equal to that of a legitimate son -- 'Sadu v. Baiza', ILR 4 Bom 37 at pp. 44-45 (FB) (Z82); -- 'Karuppannan v. Bulokan', ILR 23 Mad 16 (Z83).
(2) On the father's death an illegitimate son of a deceased Sudra becomes a coparcener along with the legitimate sons and the former is entitled to seek partition 'ILR 4 Bom 37 (Z82);
(3) on a partition the illegitimate son takes only one half of what he would have taken (b) if he were a legitimate son i. e., if there be one legitimate son and illegitimate son, the latter would take one-fourth and the former three-fourths;
(4) if no partition takes place and the legitimate son or sons all die without partition, the illegitimate son would take the whole as the last survivor of the coparcenary -- Chandra Mohapatra v. Nityanand Man Singh', 17 Ind App 128 (Z84);
(5) if there be no legitimate sons, grandsons, or great-grandsons of the Sudra father, the illegitimate son takes the whole (c);
(6) if the Sudra father be joint with his collaterals such as brothers, uncles or nephews, the illegitimate son cannot demand a partition of the joint family property though he is entitled to maintenance as a member of the family provided the father left no separate estate -- 'Vellaiyappa Chetty v. Natarajan' .
54. If the legal position regarding Dasiputra's right of survivorship is analysed, valuable light will be thrown on the theory or coparcenership under the Mitakshara law.
55. In an undivided family according to Vijnaneswara, each sharing member of the family is the owner of the Dravya Samudaya, the totality of the joint family estate. Until Vibhaga there is no Ekadesa Vyavasthapana, or the establishment of a separate and exclusive individual right. The significance of this will be seen from the contrast with the theory of Jimutavahana, who defines vibhaga as a Vyinjana or manifestation merely, the making visible of a pre-existing exclusive a right in the joint family estate which in its very inception was Ekadeso-patta.
It is this distinction that is expressed commonly in the proposition that members of an undivided Mitakshara family hold the family property as joint tenants, whereas members of an undivided Dayabhaga family hold the family properties as tenants-in-common. This is the reason why according to Viramitrodaya and the Smriti Chandrika, the widow is excluded from succession when her deceased husband was a member of the Avibhakta Kutumba or undivided family.
In such a case, the Viramitrodaya says that the deceased husband had no Amsa, nothing that could be said to be his own' individually and exclusively. There is no Iyatta, measure, the Smiriti Chandrika says, and on account of this quantitative indefiniteness, the interest of the deceased husband suffers of Lopa or extinction and there is nothing left to descend to the widow by inheritance. This is the Mitakshara theory of survivorship which the 'Shivaganga case (Z34)', put in the following words:
'According to the principles of Hindu Law, there is coparcenership between the different members of a united family, and survivorship flowing upon it. There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them, the others take by survivorship that in which they had, during the deceased's lifetime a common interest and a common possession.'
The community of interest referred to by the Privy Council from which the right to survivorship follows as a necessary corollary, is the joint and concurrent ownership of the coparceners in the Dravya Samudaya, the holding per tout or ownership in the entirety which is emphasised in connection with the Joint tenants in English text-books on real property, the indefinite and untransmissible interest which by its very nature suffers Lopa or extinction both according to the English Law and the Hindu Jurists.
The principle that the right cannot be predicated otherwise than a right to the totality i. e., the Dravya Samudhaya, operates as a disability and also an advantage. Co-parcenary interest may be decreased by the addition of new coparceners or suffer extinction as a result of the coparcener dying when the family is still undivided. This is the disadvantage. On the other hand, the pre-cariousness of the interest is a rule applicable to all the coparceners and time alone can tell whether the interest will be reduced to nothing by the coparcener himself dying or enlarged to sole ownership of the joint family property as a result of the death of all the other coparceners.
When division in status takes place the uncertainty comes to an end and the disability & advantage both disappear. The right has become heritable and there is no question of survivorship any longer.
57. It is by the operation of the theory of Samudhaya ownership that the Daslputra gets his right of survivorship. He becomes on the death of the father a proprietary member of the family community. But his co-ownership is per tout, an undefined co-ownership in the totality of the paternal estate, a right without lyatta as the Smriti Chandrika says, a right which cannot be defined as an Amsa, as pointed out by the Viramitrodaya.
Such a right will suffer Lopa or extinction if the Dasiputra himself dies. But on the other hand it carries with it the possibility of benefiting by the death of the Aurasa sons. The Dasiputra may only be a half-sharer. But this inferiority does not stand in the way of his being a co-parcener member of the family community as pointed out by Westropp C. J., in ILR 4 Bom 37 at p. 52 (FB) (Z82).
Until the disruption of the joint family status, the right of the Dasiputra is the right of ownership over the Dravya Samudhaya, though he would get only a fraction if he had to divide with the Aurasa son and his right must be enlarged to sole ownership by virtue of jus accrescendi on the death during jointness of the Aurasa son.
58. Is there any essential distinction between Dasiputra's coparcenership on the death of the putative lather and the widow's right in the joint family property under Section 3(2) of the Hindu Women's Rights to Property Act?
59. Before the passing of the Hindu Women's Rights to Property Act, it has become the well-settled law that the females by marriage were members of the undivided Hindu family. What is her position now? If the Nagpur view is accepted viz., that Section 3(2) of the Hindu Women's Rights to Property Act effects a severance of the husband's individual interest on his death, with the result that the widow takes really as heir, it must follow that she is not a member of the undivided family, and the position of her being a coparcener will not arise.
But the Nagpur view has been consistently rejected by this High Court and appears now to be generally given up. If the widow is a member of the undivided family, her status and rights must be considered in the light of the fact that she has a right to partition of the family property which she did not have under the law prior to the 1937 Act. This right to demand partition may not by itself be a justification for regarding her as a coparcener, for a purchaser from an individual coparcener is not regarded as a coparcener, even though he has a right to demand partition as settled by the Bombay, Madras and Central Provinces High Courts.
But the purchaser's right is not properly analogous to the right of the widow, for his right is limited to the property which is affected by his purchase and it is not a right of a co-ownership in the entire joint family estate.
The proper analogy of the widow's position is that of the Dasiputra. In both cases the right is something which can be predicated only per tout, to use the formula of the English law of joint tenancy, what the Mitakshara jurist like Mitramisra and Devanabhatta say, Ansabhava, Iyattabhava, Lopa, Dravya Samudhaya. All these are applicable to the widow's right exactly as they are applicable to the right of the Dasiputra or the ordinary pucca coparcener.
60. Therefore, there does not seem to be any justification for saying that the widow is not a pucca coparcener and at the best is a kacha one not entitled to the rights of survivorship at least (the last male preserve) as a coparcener as she has no right by birth. There seems to be no rational justification for subjecting the widow to the disadvantages of coparcenership without conceding to her the corresponding advantages of that status. The logical result is that arrived at in : AIR1945Mad21 based as that decision is on the assumption that the widow is a coparcener, in the family estate along with the other members of the family.
61. Therefore looked at from this point of view also the plaintiff Manorama Bai is entitled by survivorship to the entire joint family estate of Ananda Rao and Ramakrishnaya along with the 7th defendant, the widow of Ramakrishnaya.
62. Point 4:-- In regard to the relative rights of the plaintiff and the 7th defendant vis-avis, there can be no dispute that both of them would be entitled to moieties of the joint family estate subject to the rider that in regard to the agricultural lands the 7th defendant, who became a widow prior to the passing of the Madras Act XXVI of 1947, would be entitled only to maintenance with reference to and charged upon those agricultural lands. In fact the plaintiff does not dispute this right of the 7th defendant,
63. In the result, the decree and judgment of the lower court are set aside the issues are found in favour of the plaintiff and the suit is decreed in favour of the plaintiff as prayed for in regard to the entire estate subject to what has been set out in the preceding paragraph with costs. This appeal is allowed with costs. (Court-fee due to Government recoverable from plaintiff is included in Lower Court costs).
64. We hold that the jewellery shown in the plaint schedules constitute the properties of Dr. Ananda Rao's daughters and that the tower court has not decided in regard to certain items whether they belong to the joint family or not. This will have to be got decided in final decree proceedings.