K.S. Ramamurti, J.
1. This appeal arises out of a suit, Original Suit No. 152 of 1960 filed by respondents 1 and 2 herein for partition and separate possession of their 1/6th share in the properties specified in Schedules A to C attached to the plaint. Annavi, is the fifth defendant in the suit and his sons who are now alive are defendants 1 to 4. Annavi had a son by name Arumugham who died in 1954. The first plaintiff, Pakkiam Ammal has filed the present suit for partition claiming to be the legally wedded wife of this Arumugham, her marriage having taken place in 1943. The second plaintiff is their daughter born in June, 1945. The case of the first plaintiff is that her husband Arumugham and the defendants, her father-in-law and brothers-in-law, constituted members of a joint Hindu undivided family, that all the properties involved in the suit are joint family properties, that her husband and the plaintiffs were living with the defendants in the family house at Manapparai and that even after the death of Arumugham the plaintiffs continued to be with the defendants 1 and 3 to 5 at Manapparai, that all throughout from the time of her marriage in 1943 she was acknowledged and treated as the legally wedded wife of Arumugham, that her daughter was also acknowledged and treated as their legitimate daughter by all the members of the family, that the fifth defendant was particularly attached towards the second plaintiff, that the defendants brought up the second plaintiff just like the other children in the family, that they put her in the school and that the relationship was throughout friendly and cordial till the middle of 1959, when misunderstandings arose consequent upon the first plaintiff not acceding to the proposal of defendants 1 to 5 that her daughter, the second plaintiff, should be married to one Sachidanandam, the wife's brother of the first defendant who was aged about 40 years. The first plaintff's further case is that consequent upon these misunderstandings, she and her daughter were driven out of the family house in the middle of October, 1959 resulting in the present suit for partition and allotment of 1/6th share of her husband under the Hindu Women's Rights to Property Act and also for suitable provision for maintenance and marriage expenses of her daughter. In 1959, the father Annavi Pillai had executed a release deed taking some properties for himself and relinquished his interest in the rest of the properties and one month later in July, 1959, a partition evidenced by a registered deed was effected between the four brothers, defendants 1 to 4. The plaintiffs have attacked these transactions as fraudulently, brought about to defeat their rights.
2. The defendants resisted the suit questioning the status of the plaintiff as the legally wedded wife of Arumugham. They even went to the extent of alleging that the first plaintiff was living a life of prostitution and the second plaintiff is the offspring of such prostitution. The substance of their defence is that this Arumugham did not prosecute his studies properly was leading wayward life, getting out of the control of the father, left the family house and to eke his livelihood, he has been going to various places like Madura, Kattuputhur, Muthupet, etc., etc., that again when he came back to the father in 1944, he executed a release deed on 10th November, 1944 receiving a sum of Rs. 500, that under that release deed, this Arumugham had relinquished all his rights and that Arumugham was not entitled to any rights in the suit properties at the time of his death in 1954. Their further case is that the properties were originally the self-acquired properties of the father, the fifth defendant, that they became joint family properties as a result of blending and that when Arumugham himself had no rights in the properties, the plaintiffs cannot claim any right.
3. The trial Court on a consideration of the oral and documentary evidence held that Arumugham married the first plaintiff in 1943, that even though Arumugham had been shifting from place to place, he continued to be a member of the joint family, that all the members of the family and friends and relatives acknowledged and treated the first plaintiff as the legally wedded wife of Arumugham and the second plaintiff as their legitimate daughter and that even after Arumugham's death in 1954, plaintiffs 1 and 2 lived with the defendants in the family house, they being treated just like any other member or members of the family and that it was only in 1959 that on account of misunderstandings arising out of the marriage proposal of the second plaintiff that plaintiffs were driven out of the family house. For reasons not quite intelligible, the trial Court took the view that as the original of Exhibit B-3, the release deed executed by Arumugham in favour of the fifth defendant, was not produced, the said release would not operate to deprive Arumugham and the plaintiff's their rights in the family properties. Ultimately the trial Court granted in favour of the first plaintiff, a decree for partition of her 1/6th share in the A and B Schedule properties and items 2, 3 and 4 of the C Schedule. The precise basis on which the first plaintiff's 1/6th share was upheld is not quite clear from the reasoning of the trial Court except that it has accepted the plaintiff's case that the properties are all joint family properties. Hence the present appeal by the defendants.
4. The fifth defendant, the father, died in 1963 during the pendency of the appeal and his legal representatives have been brought on record.
5. From the above narration of facts, it will be seen that the three main points which arise for consideration in the appeal are:
1. Whether the first plaintiff Pakkiam Ammal is the legally wedded wife of Arumugham.
2. Whether the suit properties are the self-acquired properties of the fifth defendant or the joint family properties of the father and sons and if former when did they become joint family properties. What is the effect of the release deed executed by Arumugham in 1944 in regard to the suit properties? and
3. Whether at the moment of Arumugham's death he had any interest in the suit properties along with his father and brothers.
6. On the first point, we may mention even at the outset that the appellants have totally failed to make out that the first plaintiff Pakkiam Ammal is not the legally wedded wife of Arumugham. We have no hesitation in holding that the finding arrived at by the trial Court is correct, supported by ample and satisfactory oral and documentary evidence. We are of the view that the evidence adduced by the plaintiffs is overwhelming as against the worthless evidence adduced on the side of the defendants who in questioning the status of the first plaintiff were only exploiting her helplessness taking advantage of the fact that the marriage took place about 20 years prior to the suit and that too at Madurai and not at Manapparai, the place of residence of both the parties. The defendants are unscrupulous persons and they even went to the extent of making utterly irresponsible scurrilous allegations that the first plaintiff was leading the life of prostitution and the second plaintiff was born of that prostitution. No attempt whatsoever was made and no evidence of any kind whatsoever was adduced in the trial Court in support of this outrageous pleading. The conduct of (he members of the family themselves, all of them, as we shall presently refer to, shows beyond all shadow of doubt that (his scurrilous allegation of damning the first plaintiff as a prostitute was thoroughly false, false to the knowledge of all the defendants. It is a matter of regret that the second defendant who is an Advocate has also been a party to this baseless and reckless pleading. The oral evidence on the side of the plaintiffs consists of the evidence, about the actual marriage and the evidence of strangers, residents of the village and school teacher to the effect that to their knowledge, the first plaintiff is the legally wedded wife of Arumugham and second plaintiff, their daughter, and that for a considerable time Arumugham, his wife and their daughter lived at Manapparai at the family residential house and that after Arumugham's death, the plaintiffs continued to live with the defendants and that the latter was protecting them putting the second plaintiff into school and looking after her education meeting the expenses thereof. The relevant records of the school like application for admission and the record sheet of the second plaintiff have been filed as evidence to show that the second plaintiff was put to school by the defendants and at the time of the admission, she was represented as the daughter of Arumugham. The printed voter's list has also been filed to show that the plaintiffs were living in the family residential house at Manapparai. The oral and documentary evidence was also relied upon by the plaintiff to show the natural way in which both the plaintiffs were acknowledged and treated just like any other member of the family demonstrating that if the first plaintiff was not the legally wedded wife of Arumugham, the defendants would not have admitted her into the family residential house on equal terms with the other members of the family and the children and that this evidence of the uniform course of conduct of the members of the defendants family would show that the first plaintiff was the legally wedded wife of Arumugham. The evidence adduced on the side of the defendant is merely of a negative character. The documentary evidence is only about the right of Arumugham to a share in the family properties at the moment of his death. Some witnesses have been examined on the side of the defendants to show that there was no marriage between Arumugham and the first plaintiff and the plaintiff; did not live in the family residential house.
(After discussing the facts their Lordships proceeded to observe : )
7. Learned Counsel for the appellant took us through the entire oral evidence in an effort to make out that the quality and the quantity of the evidence adduced on the side of the plaintiffs is unsatisfactory and insufficient to warrant a finding that a marriage (legal and factual) had taken place between the first plaintiff and Arumugham. The oral evidence of the witnesses examined on the side of the plaintiffs was criticised as being interested, useless and untrustworthy, the substance of the argument being that if such a marriage had actually taken place, far better and more acceptable evidence would be available. We are not inclined to accept these submissions, as they proceed upon a totally wrong perspective of approach. The marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a Very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage.
8. The presumption of law is the strongest of legal presumptions and is not lightly-to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage, the' more readily is the presumption drawn, based upon cohabitation and repute. The weight of the presumption gets strengthened when it is proved that the party whose marriage is in question distinctly intended to marry and went through a form of a marriage with that intent and also subsequently lived together as man and wife and were esteemed and reputed as such by those who knew them. The presumption still exists, even when there is no positive evidence of any marriage having taken place. Reference may be made to the following statement of law in 19 Halsbury's Laws of England, third edition (Simonds) page 812, paragraphs 1323 and 1324:
Presumption from cohabitation.--Whether a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be, no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary.
Presumption of validity.--Where there is evidence of a ceremony of marriage having been gone through followed by the cohabitation of the party, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a special licence.
9. Our attention was drawn to some of the leading decisions in England and India in which strong emphasis was laid on this principle that the evidence to rebut that legal presumption must be very strong, distinct and satisfactory and evidence of cohabitation and repute cannot be lightly repelled by a mere balance of probability or evidence touching the marriage episode as improbable or artificial, or that if the parties had gone through a form of marriage, it would have been in a completely different manner. We may refer to the leading decision in Piers v. Piers 9 E.R. 1118. In this decision the House of Lords reversed the view of Lord Chancellor Brady in the Court of Chancery in Ireland. Lord Chancellor Brady was not inclined to accept the evidence of marriage on the ground that there was no satisfactory evidence that the Bishop concerned had granted the requisite special licence for the marriage. As Lord Chancellor Brady considered the point as a mere question of weight of evidence and the probabilities independent of the legal presumption, Lord Chancellor, the Right Hon'ble Earl of Salisbury (in the House of Lords) even at the threshold stated the law in these terms at page 1129:
Now it does appear to me that the issue so tendered goes very much to explain the ground upon which the Lord Chancellor decided the case, because it shows that according to the view which he took of it, the question in dispute depended upon the greater or less weight of the evidence upon the one side or the other; otherwise the issue would not reach the question so as to decide upon the validity of the marriage. Such an issue would rest upon the balance of evidence as to a particular fact, upon the result of which the validity of the marriage undoubtedly would depend; but that is not the mode in which the law contemplates matters of proof relating to the lawfulness of a marriage. It entirely lays aside all the strong legal presumption upon which the law proceeds in the case of marriage, and adjudicates upon the point as upon any other matter of fact, with respect to which there is no presumption one way or the other, but where, upon the result of the investigation as to the existence of the fact, the right of the parties might depend.
In that case it was pointed out that after a distance of time, it might be possible to disprove by some circumstances upon which the factum and validity of the marriage might depend, but that piece of contradiction in the evidence would be wholly insufficient to satisfy the condition of the positive distinct and satisfactory disproof to repell the presumption.
10. Reference may next be made to the following observations of Lord Ghampellor at page 1136 where strong legal presumption in favour of the marriage is adverted to:
My Lords, my opinion is, that a presumption of this sort, in favour of a marriage, can only be negatived by disproving every reasonable possibility. I do not mean to say that you must shew the impossibility of any supposition which can be suggested to support the validity of the marriage; but you must shew that this is most highly improbable and that it is not reasonably possible. Because, otherwise there is a tremendous responsibility cast upon you with regard to the status of the woman and of the children. See the peril which you are encountering; because you may be deciding that a woman is a concubine, and that the children are bastards, upon a mere speculation, when in fact, contrary evidence may afterwards be produced, when it is too late, to shew that there was that in existence which would render the marriage valid, the woman the wife of the person to whom she was married, and the children legitimate. My Lords, to avoid such a peril, the law requires that you should negative every reasonable possibility.
11. It is sufficient to refer to some decisions in which it is held that marriage is established by mere repute on the basis of the legal presumption even though the positive evidence in support of the marriage was not satisfactory. In Collins v. Bishop (1878) 48 L.J. Ch.D. 31. A and B cohabited together as man and wife for 30 years and until B's death in 1835. There was no evidence of any marriage having been solemnised, but there was general reputation that they were married and proof of the registry of the baptism of several of their children as of A and B his wife, and C, the brother of B, by his will made in 1871, gave a legacy to one of these children, describing her as his niece. Malins, Vice-Chancellor, observed as follows at page 33:
I found myself on the broad principle, so essential to the interests of society, that when two persons have lived together for many years as husband and wife, have been universally received as such, and had their children baptized, they should be considered as married people. The decision in Piers v. Piers 9 E.R. 1118, is in substantial agreement with what I have just stated. The Lord Chancellor; in giving judgment, says : The presumption of law (in favour of marriage) must prevail unless it is most satisfactorily repelled by the evidence in the cause appearing conclusive to those who have to decide the question.
12. We may next refer to the decision in Re Thompson; Langham v. Thompson 91 L.T. 680 In that case a man and woman lived together as husband and wife from 1856 to 1866 and had five children. There was evidence that they had been treated as man and wife by friends and neighbours and that their children had been recognised by the head of the father's family. In 1866, the woman left the man, who in 1874, while she was still alive, married another woman. When disputes arose in 1904 it was held that the presumption in favour of a marriage having taken place, had not been repelled by strong, distinct and satisfactory evidence. Particular emphasis was laid in that case upon the fact that the head of the family recognised as legitimate children of the man, i.e., his brother Nathaniel Thompson.
13. We may next refer to the decision in Shephard in re George v. Thyer (1904) 1 Ch. 456, as a case of interest and some relevance to the facts of the instant case. There too, the principle of the strong presumption arising by long cohabitation and repute pointed out in Piers v. Piers 9 E.R. 1118, was applied. In that case, an English man and woman travelled to France with the intention of getting married, there purported to go through a form of marriage and since then, lived together in England as man and wife for 30 years and had several children. There was some evidence of recognition of the children by the family. Even though it appeared that the marriage, such as the one as was alleged, was impossible, according to French law and the habits of law abiding people in France, it was held that that fact was not sufficient to rebut the presumption in favour of a marriage arising from the long continued cohabitation of parties as man and wife. The main argument against the proof of the marriage was that if the parties had really intended to live as husband and wife, they could have got themselves married by going to the Parish Church in England, instead of a visit to France, that what they did in France was difficult to ascertain in proof and that no marriage can be inferred when such a marriage was impossible according to French law. There too the evidence adduced in support of the fact of the marriage was criticised as being insufficient but it was held that all these circumstances were insufficient to out-weigh or repel the presumption arising from the evidence of long cohabitation and repute. What happened in that case was stated in these terms at page 461:
What they did in France is very difficult to ascertain. I think I must take it that they went somewhere in accordance with an arrangement made by the intended sister-in-law. They went somewhere they purported to go through something like a ceremony of marriage. There was a ring put on by the lady herself, some kind of ceremony and something by way of acknowledgment that a marriage had taken place.... They came home and after a short interval, they lived together as husband and wife. There seems to have been some reason for not doing so during the first two or three weeks. They have lived together as husband and wife up to the present time, that is, for thirty years, and she has borne several children, and it is their claim which I am considering. There is some evidence on the affidavits and some evidence in the witness box today of recognition by the family.
After referring to some of the decisions including Piers v. Piers 9 E.R. 1118, the matter was put thus at page 463:
So that I have here a case of the highest authority getting rid of the fact of marriage, and recognition of children : It does not shew that either of these is essential; but the parties were living together as man and wife for the time mentioned in the report, and it was held that the presumption of marriage must prevail. Now here I have the intention to marry : about that there is not a shadow of doubt. I have some evidence about which there is a great deal of doubt. There is somewhat romantic story, doubtful in its details, of a marriage de facto, of something gone through to perfect the intention of marriage, and I have some evidence or recognition of children. Now, after thirty years, the Court has been asked to say that because the marriage has not been proved, and cannot be proved, these children are not to be admitted to share. I think I should be going against the authorities if I came to any such conclusion and therefore I must hold that they are entitled to share.
In the instant case too, all that the defendants have attempted to do is merely to create some doubts about the somewhat romantic story of marriage at Mathurai and nothing more. It is futile to argue that this is sufficient to repel the presumption.
14. It is sufficient to wind up the discussion of the legal position on this portion of the case by referring to the observations of Lord Evershed, Master of the Rolls, in the latest decision In re Taylor (deceased) (1961) 1 All E.R. 55. The learned Master of the Rolls has in his judgment extracted the relevant observations in the leading decision Piers v. Piers 9 E.R. 1118, and had also made reference with approval to the decision in Shephard, In re George v. Thyer L.R. (1904)I Ch. D.456, referred to earlier. In that case, there was no satisfactory evidence of any marriage ceremony, but there was evidence of cohabitation and repute, that one John Taylor and one Izender had lived together as Mr. and Mrs. Taylor in a small community during the period 1908 to 1913 till Izender's death and it was held that this evidence of cohabitation and repute was sufficient to raise the strong presumption that they were living together in consequence of a valid marriage and not in state of concubinage. After referring to the observations of Lord Cottenham in Piers v. Piers 9 E.R. 1118, Lord Evershed, Master of the Rolls observed as follows at page 57:
In spite, however, of the fact that the language to which I have referred in Piers v. Piers 9 E.R. 1118, was applied to a case different in an essential respect from the present case, I think that it is none the less true that during the century and more that has followed something like a similar principle seems to have been adopted and treated as applicable in a case where, as here, the question aye or no, were two people married, turns on evidence of cohabitation and reputation in the absence of any evidence of a ceremony I have said that the principle has been applied in some degree, and for the purpose of stating what I now conceive the law to be in a case such as the present I will take a phrase cited by Kekewich, J. in Shephard, In re. George v. Thyer I.R. 1904 1 C. D. 456, a case to which much reference was made in the argument but which in my judgment does not on the facts provide any very safe guidance for the present case. In Shephard, In re. George v. Tkyer 1904 LR 1 C. D. 456, Kekewich, J., after referring to a Privy Council case, Sastry Velaider Aroneyary v. Sembucurty Vaigalie (1831) 6 App. Cas 364, quoted Stephard's case 1904 LR 1 Ch. D. 456 the language used in that case by Sir Barnes Peacock:
It appears from the authorities which he' (Dr. Phillimore)' cited that, according to Roman-Dutch law there was a presumption in favour of marriage rather than that of concubinage. It does not, therefore, appear to their Lordships that the law of Ceylon is different from that which prevails in this country; namely [and this is the essential sentence] that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage'.'
' I take that passage as a statement of the law which ought to be applied in a case like the present, and I note the adverb ''clearly'. It is of course, not to be forgotten that in the hundred years that have gone by since Piers v. Piers 9 E.R. 1118, the law relating to the registration of marriages has been made more strict, communications are easier and the likelihood of people being married and nobody knowing about it and, indeed, not being able to find a record of it is no doubt much decreased.
It is significant to notice that in that case, the evidence of cohabitation and repute was only for a short period of 5 to 6 years. Even so, the question was discussed, from this particular perspective, viz., whether the evidence adduced on the side of the defendants was cogent, satisfactory and convincing as to repel the presumption. After discussing the evidence and the alleged infirmities on the side of the party seeking to establish the marriage between Taylor and Izender, the Master of the Rolls pointed out that the appellants had not clearly proved that the inference drawn from the evidence of cohabitation and repute was wrong or that the presumption had been rebutted by cogent evidence. The particular aspect on which emphasis was laid was that the evidence of cohabitation as man and wife and repute and acceptance of that status by the people of the neighbourhood, obviously threw on the contesting defendants, a Very heavy burden and that could be discharged only by most cogent evidence and that the case cannot be decided on a mere question of relative probabilities as in the case of adjudication of other facts which come up for decision before Courts. Warman, L.J., in taking the same view as to the nature of the strong presumption observed that the evidence in rebutting the presumption, must he firm and clear and that in a case of that kind it would not be right for the appellate-Court to substitute its own estimate of that evidence, and to hold that the presumption had been rebutted on the basis of the mere credibility of the witnesses.
15. Learned Counsel for the respondent also drew our attention to the decision of the Privy Council in Mouji Lal v. Chandrabati Kumdri 38 I.LA. 122 : 21 M.L.J. 933 : I.L.R. (1911) Cal. 700, in which emphasis was laid upon the Significance of the evidence of cohabitation and repute that a man and woman lived together as husband and wife and esteemed as such. In that case too, the woman had been recognised by all persons concerned in the family as wife their daughters were respectably married, as in the case of legitimate children, and the Privy Council held that the presumption of marriage applied to the forms and ceremonies necessary to constitute a valid marriage. Reference may also be made to the statement of the law in Sarkar's Evidence Act, 11th Edn. at page 1015 where the learned author has summed up the case-law (both English and Indian) that the presumption arising from cohabitation and repute can be repelled only by strong and conclusive evidence and the mere fact that direct evidence of marriage which took place many years ago is unsatisfactory would be wholly insufficient to displace the presumption.
16. From the above, it is obvious that the crucial question to be considered is whether the defendants have adduced strong, distinct, satisfactory and cogent evidence to repel the strong presumption arising from long cohabitation and repute. As observed earlier, the suggestion that the first plaintiff was living a life of prostitution has to be summarily ruled out as an irresponsible, reckless suggestion without any basis. The fact, then remains that from 1943 onwards Arumugham and the first plaintiff were living together cohabiting as husband and wife and they were also acknowledged as such by friends and neighbours and their own relatives. The attempt of the defendants is merely to attack and criticise the evidence adduced on the side of the plaintiff as insufficient, unreliable or improbable. We are clear in our minds that the evidence adduced on the side of the plaintiffs quite satisfactorily establishes both the distinct limbs, (i) the factum of the marriage and (it) long cohabitation and repute as husband and wife, necessarily giving rise to the strong presumption of a legal marriage. The defendants have proved nothing to repel that strong presumption.
(After discussing the facts of the case their Lordships proceeded as follows : )
We are satisfied beyond any doubt whatsoever that the uniform course of conduct on the part of the members of the fifth defendant's family the father and the sons, leads to the irresistible conclusion that they treated the first plaintiff as the legally wedded wife of Arumugham and the second plaintiff as their legitimate daughter. Strangers and neighbours have also dealt with them only on that footing. The evidence indeed is overwhelming in support of this finding. We see no substance in the argament that there is no proof that Homam and Sapathdpathi, the essentials of the marriage have been proved to have been performed. The presumption is not only with regard to the factum of the marriage, but also with regard to the performance of the requisite ceremonies to constitute a valid marriage. It is not as if the first plaintiff has admitted that the necessary ceremonies were not performed and necessary formalities were not observed. At page 54, P.W. I has given evidence that tali was put on her neck by her husband and she and her husband exchanged garlands in the presence of the idol of Goddess Meenakshiamman. Merely because she has not referred to the other ceremonies, it does not mean that those ceremonies were not performed. The defendants did not pursue any such line of cross-examination. They did not elicit any admission from the plaintiff that the other ceremonies were not performed. In fact their cross-examination was for the extreme contention that the whole episode was false and that Arumugham and the first plaintiff never went through any form of a marriage. Having taken up such an extreme contention, it does not lie in their mouth to urge that the plaintiff has not proved that the other ceremonies were performed. There was no specific pleading or specific issue on that aspect of the matter. When once it is proved that the marriage was performed the presumption arises that it is valid in law and that the necessary ceremonies had been performed, unless evidence to the contrary is adduced that the necessary ceremonies were not performed. We have no hesitation in holding that on this portion of the case, it is a mere case of wicked harassment of the plaintiffs by the defendants who, on account of their influence and wealth are exploiting the helpless situation in which the poor plaintiffs are placed.
17. We shall now take up points 2 and 3 for consideration. Arumugham died in 1954, before the Hindu Succession Act of 1956. The first plaintiff would be entitled to 1 /6th share in the suit properties under Section 3, Sub-section (2) of the Hindu Women's Rights to Property Act of 1937 only if she establishes that at the time of his death, Arumugham died leaving an interest in the joint family properties consisting of himself, his father and four brothers and that all the properties involved in the suit are joint family properties. The answer to this question turns upon the effect of the release deed, Exhibit B-3, executed by Arumugham in favour of the fifth defendant on 10th November, 1944 and the document executed by the fifth defendant, Exhibit B-1, in favour of the defendants 1 to 4 on 17th November, 1959. That the properties were all the self-acquired properties of the father, fifth defendant, is not in serious controversy and the same has been established beyond any doubt. Exhibit A-10, executed by the father in June, 1943 shows that the father had been dealing with his properties as his self-acquired properties in favour of his four sons and he has even excluded his first son, Rajagopalan in the scheme of distribution on account of some misunderstanding between the fifth defendant and Rajagopalan. The next document, Exhibit A-11 of the year 1946 also proceeds on the same footing that the properties are all the self-acquired properties of the fifth defendant, except the change that in the proposed scheme of distribution the father had changed his mind and got reconciled with his eldest son, Rajagopalan. Further the fifth defendant had also executed a deed in favour of his daughters again on the footing that the properties were his self-acquired properties and that was also cancelled by Exhibit A-11. There is no evidence that the family owned any ancestral nucleus, with aid of which, the suit properties were acquired. The evidence, oral and documentary shows that all the properties are the self-acquired properties of the fifth defendant.
18. After misunderstandings arose between the plaintiffs and the defendants and immediately after the plaintiffs left the family house of the defendants two registered documents came into existence, one is Exhibit B-1, a registered release deed executed by the fifth defendant, Annavi, in favour of defendants 1 to 4 and another, Exhibit B-2, dated 2nd December, 1959 a registeed partition deed executed between the four brothers, defendants 1 to 4. It is necessary to set out the following relevant portion of Exhibit B-1:
Deed of Release of right to share executed on 17th November, 1959 by Annavi Pillai, son of Veeramalai Pillai, Hindu, Vellala, Miras, aged about 88 years and residing at Sevalur village cusba, Manaparai, Kulitalai taluk in favour of my sons, (1) Rajagopala Pillai, aged 48 years; (2) Akilandam Pillai, aged 43 years; (3) Balasubramania Pillai, aged 35 years; (4) Somasundram Pillai, aged 32 years, all residng at the aforesaid place is as follows:
Now myself and you four persons have been living as members of undivided family for the past 13 years. I have already, of my free will and Voluntarily, abandoned and relinquished my rights in respect of my self-acquired properties already acquired by me and all of us have been till today, enjoying these properties as family properties treating those properties as family properties in which all of us have rights. Excepting myself and yourselves no one else has any right, share or interest or claim in our family properties.
19. We are in enjoyment of properties belonging to our family, namely, Indira Talkies, a permanent theatre at Manapparai, Indira Printing Press and Shantha Touring Talkies that functioned at Manapparai and also other properties.
20. Now inasmuch as I have grown old and incapacitated from running the concerns and managing the properties, and also since my wife Santhayi Ammal, died three years ago and as I have desired to take exclusively the family properties described hereunder and you have agreed to the same and as I have myself taken the properties hereunder with absolute rights and as I am enjoying the same from this date onwards, the remaining properties, namely, all the immovable and movable properties, Indira Talkies, Indira Press, Shantha Touring Talkies, Lorry, money-lending transactions and all the other family properties belonging to the family shall belong only to you four persons. I shall have no interest, right and future claim whatever. To this effect is this deed of release of right to share executed by me with my consent.
Witnesses.--M. S. Srinivasan, son of M. N. Seshagiri Iyer, 27, Agraharam, Kulitalai. M. K. Venkatarman, Advocate, son of M. S. Krishnaswamy Iyer, Advocate, 8, Double Mall Street, Tiruchirappalli, V. Krishnamurthy, son of V. Venkatesa Iyer, Paylur, Muthrasanallur Post, Tiruchirappalli Taluk. Identified by (1) M. K. Venkatarama Iyer, son of M. S. Krishnaswami Iyer, Advocate, (2) V. Krishnamurthi Iyer, son of V. Venkatesa Iyer. The four brothers thereafter effected a partition of the family properties under a registered deed of partition, Exhibit B-2, dated 2nd December, 1959, there is nothing particular in the terms of the language in this document calling for special mention. So far as Exhibit B-1 is concerned, it is Very important to notice that it is a document which has been prepared with precision, presumably with the assistance of lawyer or lawyers. The second defendant himself is an Advocate and he also should have contributed to the significant recitals in Exhibit B-1. The use of the words in Tamil (voluntarily), (having abandoned) and my own free will) are all terms of significant importance. This Exhibit B-1 proceeds on the footing that for the past 13 years (dating back from the date of Exhibit B-1), i.e., from 1946 onwards, the father and four sons were living as members of joint family and that the father had abandoned or relinquished his rights in the self-acquired properties and they have instead been treated as joint family properties in which all the sons have equal rights. In other words, the document proceeds on the footing that the father abandoned his separate rights and there has been a blending of the properties impressing upon them the character of joint family properties and that it is on that basis, the members of the family were enjoying these properties. The reference to the position or situation, 13 years back, in the opening portion of the second paragraph is to show that this abandonment by the father and the consequent blending or the change of character of the properties as joint family properties took place in the year 1946. There is no evidence that the specific reference to 13 years, i.e., dating back to 1946, was due to any mistake or otherwise, and we have to proceed on the footing that that recital is true and correct. It is not the case of any of the parties that there has been any division in status among the members of the family and the reference to 13 years cannot obviously refer to the status of the members of the family as a joint family for a period of 13 years as though, prior thereto, the family was a divided family. The reference to 13 years in the context in that clause can mean only the actual abandonment of the separate rights of the father and the consequent blending and impressing upon the properties the character of joint family properties. We are clear in our minds that that clause cannot have any other meaning.
21. At that time Arumugham was undoubtedly alive. If there has been a blending by the father of his self-acquisitions, it would only mean that the father has abandoned his separate rights in favour of all the coparceners who constituted a joint family. Hindu law does not permit a blending so as to impress upon the separate properties the character of joint family properties confining that right to some only of the coparceners in the family. The doctrine of blending is a peculiar doctrine under Hindu law and blending can be only in favour of the entire body of coparceners. Whether the fifth defendant intended to include Arumugham also as a person entitled to the benefit of the blending or intended to exclude altogether Arumugham, it is of no consequence. The matter does not depend or rest with the intentions of the fifth defendant. The legal consequence of blending flows regardless of his intentions. In other words, if there has been a blending in 1946, as admitted in Exhibit B-1, the benefit of the blending would enure for all the members of the joint family including Arumugham and the result will be that when all the properties had become joint family properties in which Arumugham also, from the year 1946, had an equal share, it will not be open to the defendants 1 to 5 to enter into any transaction either under Exhibit B-1 or under Exhibit B-2, by which the rights of Arumugham which had devolved upon the first plaintiff under the Hindu Women's Right to Property Act would in any way be affected or prejudiced. It would not be open to the father to execute Exhibit B-1 on those terms as to entitle his four sons alone to take the entire properties to the exclusion of the first plaintiff's husband; again it would not be competent to the four brothers to effect a division as they have done under Exhibit B-2 excluding altogether the first plaintiff who is entitled to an equal share in the rights of her husband. To get over this situation, the argument that was advanced on behalf of the defendants is that Arumugham was not a member of the joint family at the time when the blending took place in 1946, as according to the defendants, by reason of the release deed, Exhibit B-3, executed by Arumugham on 10th November, 1944, Arumugham had ceased to be a member of the joint family and that thereafter the joint family consisted only of the father, Annavi and his four sons. The argument is that as a result of Exhibit B-3, a division in status must be held to have taken place between Arumugham on the one side and the rest of the members of the family on the other, and that when the blending took place in 1946, the four brothers alone constituted a joint family along with their father Annavi. It is not the case of the defendants either in the pleadings or in their evidence or in the arguments, either in the trial Court or before us, that Arumugham effected a formal division in status by making the requisite unilateral declaration as required by Hindu law, at any time before his death. This argument advanced is a pure legal one, i.e., Exhibit B-3, the release deed executed by Arumugham by its own force and without anything more, brought about a division in status between Arumugham and the rest of the members of the joint family. A further agrument was advanced that even if Exhibit B-3, did not bring about a division in status, the release deed executed by Arumugham would put an end to all his rights with regard to the suit properties even if the properties became the joint family properties subsequent to the release. It is urged that in Exhibit B-3, Arumugham had not only acknowledged that all the immovable properties, money lending trade, etc., etc., were all the self-acquired properties of the father Annavi, Arumugham had also stated in unambiguous terms that he shall have no legal rights whatsoever in any of those properties and that he had accepted a sum of Rs. 500 paid thereunder in full and final settlement of any rights that he could claim in all the properties aforesaid even after the lifetime of Annavi. The terms by which Arumugham relinquished and released his rights are too wide, unqualified and unrestricted, that after Exhibit B-3, Argument. would not be entitled to put forward any right or claim to the properties either during the lifetime of the father or after the latter's death and that in that context it did not matter, whether the properties, right through continued to be self-acquired properties of the father or subsequently became impressed with the character of joint family properties as a result of the alleged blending in 1946. We are not inclined to accept either limbs of this argument. It is necessary to set out the terms of Exhibit B-3 which run as follows:
Deed of release executed on 10th November, 1944, in favour of V. Annavi Pillai, son of Veeramalai Pillai, Vellala Caste, Saivaite, Miras, aged about 75 years and residing at Cusba Manapparai, Kulittalai taluk, Tiruchirapalli district, by Arumugham, third son of the aforesaid person, of the said caste and religion, aged about 26 years and at present residing at Madura is as follows:As a result of lack of amity between you and me in the family, I have been residing separately at Madura for the last about one year. All the immovable and movable properties, money-lending transactions, trade and cash that are at; present with you, are all your self-acquired properties. I have no kind of legal right in them Even so, I have been asking you to give me something out of them for my sustenance and you have been refusing to give Ultimately on the recommendation of my mother that I might be given something, and on your acceptance of the same, I have on this date received from you Rs. 500 (rupees five hundred) in cash, in the presence of the Sub-Registrar, in full and final settlement of any rights that I may claim in all the properties aforesaid even after your life-time. I have hereby, released all the rights that I may claim over all the aforesaid properties'. I have no right whatsoever in your immovable properties, cash, money-lending transactions and business dealing.
22. To this effect have I executed this release with my whole-hearted consent.
23. If the properties were joint family properties in November, 1944 (at the time of Exhibit B-3), Arumugham's rights would be completely extinguished and the release deed executed by him in favour of the father will be regarded as a release deed executed in favour of the entire body of the coparceners In this connection, reference may be made to the recent Full Bench decision of the Andhra Pradesh High Court in Anjaneyulu v. Ramayya : AIR1965AP177 , in which it was held that the effect of the relinquishment by a coparcener of his share is to separate him from the family while the others continue as members of an undivided family. This Full Bench decision applied the Principle of the decision of the Supreme Court in Rukhmabai v. Laxminarayan : 2SCR253 that a member of the joint family need not receive any share in the joint estate, but he may renounce his interest therein and that his renunciation merely extinguishes his interest in the estate, but does not affect those of the remaining members vis-a-vis the family properties. The release or renunciation, though in form is in favour of one of the members of the joint family and not in favour of the rest of the members of the joint family as a unit, it has been held that in law it should be regarded as a renunciation in favour of the entire body on the reasoning that the legal effect of renunciation is extinction and reduction of the number of members to whom shares would have to be allotted if and when a division takes place-vide Mulla's Hindu Law page 299, Section 264, thirteenth edition. It is difficult to refer to the Full Bench decision of hi Court in Subbanna v. Balasubba Reddi : AIR1945Mad142 , in which it was held that when a coparcener relinquishes his interest in the joint family property, the relinquishment operates for the benefit of all the members even though in form, the deed is executed only in favour of one of them.
24. The renunciation by a coparcener of his interest in the joint family property makes him a divided member from the rest (vide Mayne, page 556, paragraph 454, IIth Edn) and Mulla, thirteenth edition, page 384, Section 328, sub-section 6). The principle on which such a renunciation is said to have the effect of bringing about a division in status is that when a person is a member of the joint family he is joint in estate, mess and worship with the rest of the members of the joint family and when he renounces his interest in the joint family properties, there is thereafter no jointness in estote, between himself on the one hand and the other members of the family on the other. The essential condition of jointness in estate no longer subsists and necessarily a division in status takes place. When once the community of property between the releaser and the rest of the members of the family stood severed, the legal consequence is that he ceased to be a member of the joint family. From this it will be seen that such a renunciation will have the legal consequence of bringing about a division in status only if there is a renunciation of his interest in the joint family properties, In other words, if at the time of the release or renunciation, there are no joint family properties, the release will not have the effect of bringing about a division in status. It is unnecessary to refer to the several decisions in which a release was held to have the legal consequences of bringing about a division in status as they are all cases in which the family admittedly owned joint family properties and the release or renunciation was with reference to such properties. In the instant case, Exhibit B-3, proceeds on the footing that all the properties of Annavi are his own self-acquired separate properties. There is no jointness of estate in that sense or community of properties which became severed as a result of the release, and Arumugham continued to be a member of the joint family even though at that time the family owned no joint family properties. From this it follows that when the blending took place in 1946 all the members of the joint family including Arumugham became entitled to rights therein.
25. The question next arises whether Exhibit B-3, would operate as a bar against Arumugham because of the recitals in Exhibit B-3, that Arumugham had released all his rights in the properties including the rights in the properties even after the lifetime of Annavi. The question is what is the effect of the relinquishment or release by Arumugham of all rights of every description in the properties in question. It is well settled rule of interpretation of deeds of release that, however, wide and general the covenant of release may be, its operation must be restricted to the rights which are in the contemplation or in controversy between the parties and would not cover or comprehened rights which are never in the minds of the parties at that time. It is sufficient to refer to the decision of the Supreme Court Chinnathayi v. Kulasekhara : 1SCR241 . In that case, the question arose about the scope of a release deed executed by one Sundra Pandiya (under a compromise) by which Sundara Pandiya released and relinquished his rights to succeed to the Zamindari and one Kandasami was acknowledged as the rightful heir. The question arose whether this release operated as a bar to the rights of Sundara Pandiya to succeed by survivorship, as and when the succession arose, or whether under the release, Sundara Pandiya merely relinquished his right to succeed to the Zamindari immediately as the seniormost member of the family. The Supreme Court held that at the time of the release, the parties were only concerned with the right to succeed to the zamindari as a senior member of the family and that nothing was in the contemplation between the parties as to what should happen in case Kandaswami's line died out. Reference may be made to the following observations in paragraph 34, page 37:
The whole emphasis of Mr. Raghavan who represented Kulasekhara was on the words of the deed contained in Clause 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the Zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasami's suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannailands and Kandaswami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the Zamindari immediately as the senior most member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (vide Directors & Co. of London and South Western Railway Blackmore (1870) L.R. 4 A C 610. In that case it was said that general words in a release are limited to those things which were specifically in the contemplation of the parties when the release was executed. This rule is good law in India as in England. The same rule has been stated in Norton on Deeds at page 206 (2nd Edn.) thus:The general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals.
In Hailsham's edition of Halsbury's Laws of England, Volume 7 at page 251, paragraph 345, the rule has been stated in these terms:
General words of release will be construed with reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had no knowledge at the time when it was given.
In Chintamun Singh v. Nowlukho Konwari , where the document was drafted in almost the same terms as Exhibit P-17, it was said that though the words of the petition of compromise were capable of being read as if the executants were giving up all rights whatever in the taluk a of Gungore, yet in the opinion of their Lordships the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend. The parties in the year 1890 were not thinking of their future rights of survivorship at all. What Sundara Pandiya must be taken to have said by this release was ' I am giving up my present rights as a senior member in favour of Kandasami whom I recognize as the rightful heir to the zamindari as a member of the joint Hindu family'. Kandasami agreed to give him the village of Dombacheri in lieu of recognition of his title by him. It was not within the ken of the parties then as to what was to happen to the zamindari in case Kandasami's line died out. In view of this clear pronouncement by the Supreme Court, it is unnecessary to burden this judgment by reference to other cases dealing with deeds containing general words of release. At the time of Exhibit B-3, none of the parties had any idea of Annavi relinquishing his rights over his self-acquisitions and converting them into joint family properties under the doctrine of blending. This peculiar doctrine of blending under the Hindu Law was not present in the mind of Arumugham or in that of Annavi. In every portion of the document, Annavi was anxious that Arumugham should acknowledge that the properties were self-acquired properties of Annavi and it would be virtually re-writing this document to import into this deed an intention on the part of Arumugham to relinquish his rights if there should be a blending in future. Even assuming that this document be construed as Arumugham releasing his right to a claim on the basis of a blending in future, such a release is void and inoperative as amounting to a release of a mere spes successionis or the right to a chance of a legacy, coming within the mischief of Section 6, Sub-clause (a) of the Transfer of Property Act. Such a precarious right resting upon the hope of a future blending, depending upon the sweet will and pleasure of Annavi, is nothing more than a spes successionis, and the law does not permit a transfer or release of such rights. (Vide Mulla's Transfer of Property Act, fifth edition, pages 57 and 61). This principle is well settled and does not require much elaboration, it is sufficient to refer to the Bench decision of this Court in Abdul Kafoor v. Abdul Razack : AIR1959Mad131 , which contains a discussion of the relevant cases in which either Section 6 (a) of the Transfer of Property Act or the principle of the same was applied. In that case, the question arose whether the release deed executed by a daughter of a Muslim in favour of her daughter relinquishing all her rights of inheritance in the properties of her father on receipt of consideration of Rs. 300 would operate as a bar to her rights of inheritance on the death of the father. That release deed executed by the daughter was substantially in the same terms as the release deed of Arumugham, Exhibit B-3 in the instant case and the relevant clause is as follows:
Whereas I have agreed to receive from you a sum of Rs. 300 and to execute a release in respect of my rights over the immovable and movable properties belonging to you, the sum received by me in the matter of getting a simple debt bond executed by you is Rs. 300. As this sum of Rs. 300 has been received by me in the aforesaid manner, I have no right whatever over our immovable and movable properties. Hereafter there will be between us friendly relationship only and not relationship as regards money matters. To the said effect is the deed of release executed by me with consent.
The learned Judge followed and applied the earlier Full Bench decision of this Court in Asa Beevi v. Karuppan Chetty (1917) 34 M.L.J. 460 : I.L.R. 41 Mad. 365. It was also held that the release cannot be supported on the ground of its being a mere contract not to claim a share when the succession opened and that no distinction can be drawn between a case of actual relinquishment of the chance of inheritance and a contract to relinquish it in future. It was further held that the release could not be upheld as a family arrangement. For these reasons, it has to be held:
(i) that the release deed Exhibit B-3 cannot be interpreted as comprehending a mere contingent right depending upon a future blending at the sweet will and pleasure of Annavi; and (ii) even if such an effect was intended to be achieved either because of the compelling context or the general words of the document, it would be invalid under Section 6 (a) of the Transfer of Property Act.
The argument that at that time, the father was greatly displeased With the son and the sole object of getting a release deed was to exclude Arumugham from any rights in the properties whatsoever and that to uphold Arumugham's right on the basis of blending in 1946 would defeat the Very purpose of Exhibit B-3 does not appeal to us. The answer to this question depends upon the proper interpretation of the terms of the release deed and how far any such contemplated result could be given effect to in the face of the express prohibition in Section 6 (a) of the Transfer of Property Act.
26. In the trial Court, the learned Judge had expressed some doubt about the genuineness of this transaction evidenced by the release Exhibit B-3 as the original document of release was not produced. The entire reasoning of the learned Subordinate Judge on this portion of the case is wrong. Indeed, learned Counsel, for the respondents did not support the view of the trial Court on this aspect of the matter. The certified copy of the release deed, Exhibit B-3, has been produced. The endorsements show that Arumugham presented the document for registration. We see no justification whatsoever for not accepting the evidence of D.W. 1. He is an absolute stranger to the family and he was in identifying and attesting witness before the Sub-Registrar. He is a representative of a well-established and respectable film company and at the time of the registration of Exhibit B-3, this witness was in Manapparai in connection with the business of this company. The document also shows that a sum of Rs. 500 was paid to Arumugham at the time of the registration before the Sub-Registrar. In fact, the suggestion in the cross-examination of Annavi, D.W. 2, is that the release deed was obtained from Arumugham in order to avoid creditors proceeding against the share of Arumugham. The trend of cross-examination accepts that Arumugham had executed the release deed. It is unnecessary to labour this point further as Counsel for the respondents accepted the position that Arumugham had executed the release deed, the original of Exhibit B-3.
27. For all these reasons, we confirm the judgment and decree of the trial Court and dismiss the appeal with costs.