http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 23  

PETITIONER: ADDAGADA RAGHAVAMMA AND ANR.

       Vs.

RESPONDENT: ADDAGADA CHENCHAMMA AND ANR.

DATE OF JUDGMENT: 09/04/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR  136            1964 SCR  (2) 933  CITATOR INFO :  R          1965 SC 825  (6)  E          1968 SC1018  (4)  R          1970 SC1286  (7)  R          1976 SC 588  (5)  E&R        1978 SC1062  (13)  R          1978 SC1428  (13,14)  R          1980 SC1173  (18)  R          1983 SC 114  (19,31)

ACT: Hindu  Law-Partition-Adoption-Burden  of proof and  onus  of proof-Distinction-Separation-Elements  necessary to make  it effective-Declaration  and  knowledge-Doctrine  of  relation back if affect vested right-Concurrent findings of fact,  if and  when can be interfered with-Certificate  granted  under Art. 133-Scope and limit-Constitution of India, Art. 133.

HEADNOTE: The appellants and the respondents trace their interest  and rights  through their geneology to one Veeranna who died  in 1906.   One of his sons Pitchayya, predeceased him  in  1905 and  it is alleged that sometime before his death  Pitchayya took  Venkayya,  the  son of  his  brother  Chimpirayya,  in adoption.   It  is further alleged that a partition  of  the joint  family properties between Veeranna and his four  sons took  place.  Venkayya died in 1938 having a  son  Subbarao. Chimpirayya  died in 1945 having executed a will  whereunder he  gave  his  properties in equal shares  to  Subbarao  and Kamalamma,  the  daughter of his predeceased  daughter.   He also directed Raghavamma, the wife of his brother Pitchayya, to take possession of the entire property belonging to  him, manage  it  and  to  hand over the same  to  his  two  grand children when they attained majority.  Chimpirayya  excluded his  daughter-in-law Chenchamma from management as  well  as inheritance.   But  Raghavamma allowed  Chenchamma  to  take possession  of  the property.  Subbarao died  in  1949.   In 1930, Raghavamma filed a suit for possession of the property impleading  Chenchamma as the first defendant, Kamalamma  as the second defendant and Punnayya as the third defendant. 934 Chenchamma,  the  first  defendant  and  the  present  first

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23  

respondent,  contended  that  Venkayya  was  not  given   in adoption  and that there was no partition as alleged by  the plaintiff.  She averred that Chimpirayya died undivided from his   grandson  Subbarao  and  therefore,  Subbarao   became entitled to all the properties of the joint family by  right of survivorship. The  trial Judge came to the conclusion that  the  plaintiff had  not  established adoption of Venkayya  by  her  husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other and in the result dismissed the suit.  On appeal, the High.  Court upheld  the above  two  findings  of the trial judge.  A  new  pica  was raised by the appellant before the High Court that the  will executed  by  Chimpirayya  contained a  clear  intention  to divide and that this declaration constituted a severance  in status  enabling  him  to execute a will.   The  High  Court rejected  this contention also and in the  result  dismissed the appeal. On appeal by certificate, the appellants contended that  the findings  of  the  High  Court on adoption  as  well  as  on partition  were vitiated by the High Court not  drawing  the relevant  presumptions  permissible  in  the  case  of   old transactions,  not appreciating the great evidentiary  value of  public  documents, ignoring or at any  rate  nor  giving weight to admissions made by parties and witnesses, adopting a  mechanical  instead  of  an  intellectual  approach   and perspective and above all ignoring the consistent conduct of parties spread over a long period. inevitably leading to the conclusion that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the court should have held on the  basis of the entire evidence that there was a  division in  status between Chimpiravva and Pitchayya, conferring  on Chimpirayya the right to , bequeath his divided share of the family  property.  (3) The  will-itself  contained  recitals emphasizing the fact that he had all through been a  divided member  of the family and that on the date of  execution  of the will he continued to possess that character of a divided member  so as to entitle him to execute the will in  respect of  his  share  and, therefore, the  recitals  in  the  will themselves  constituted  an unambiguous declaration  of  his intention to divide and the fact that the said manifestation of  the intention was not communicated before his  death  to Subbarao  or  his guardian Chenchamma could not  affect  his status as a divided member. (4) Chenchamma, the guardian  of Subbarao,  was present at the time of execution of the  will and, therefore, even if communication was  935 necessary  for bringing about a divided status, it was  made in the present case. The  respondents  raised a preliminary objection,  that  the certificate  issued  by the High Court did not  contain  any issue relating to adoption or partition.  Hence, this  Court should  not allow the appellants to raise  these  questions. Secondly, it was contended that since the question,  whether declaration  in the will constituted a partition was  raised in  the  High  Court for the first time  it  should  not  be allowed  to  be raised.  It war. further urged that  on  the issues  of  partition and adoption,  there  were  concurrent findings  of fact by the trial Court and the High Court  and this Court should not interfere. Held  that  a successful party can  question  the  maintain- ability  of the appeal on the ground that a certificate  was wrongly  issued by the High Court in contravention  of  Art. 133  of the Constitution, but if the certificate  was  good,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23  

the provisions of that Article did not confine the scope  of the appeal to the certificate. This  Court has the power to review the concurrent  findings of fact arrived at by the lower courts in appropriate cases. But this Court ordinarily will not interfere with concurrent findings  of  fact except in exceptional  cases,  where  the findings are such as "shocks the conscience of the Court  or by disregard to the forms of legal process or some violation of   some  principles  of  natural  justice   or   otherwise substantial and grave-, injustice has been done’ . It is not possible  nor advisable to define those  circumstances.   It must  necessarily  be left to the discretion of  this  Court having  regard  to  the facts of  a  particular  case.   The present  case is not one of those exceptional cases where  a departure  from the salutary practice adopted by this  Court is justified.   Case Law referred to. There  is an essential distinction between burden  or  proof and onus of proof; burden of proof lies upon the person  who has  to  prove a fact and it never shifts but  the  onus  of proof  shifts.   Such  a shifting of onus  is  a  continuous process  in  the  evaluation  of  evidence.   The  criticism levelled   against  the  judgments  of  the  lower   courts, therefore,  only  pertain to the domain of  appreciation  of evidence. It  is well settled that a person who seeks to displace  the natural succession to property by alleging an adoption  must discharge  the  burden that lies upon him by  proof  of  the factum  of adoption and its validity.  In the present  case, the appellant has failed to discharge that burden. 936 The  burden  is upon that person who sets  up  partition  to prove  that  fact.  The general principle is  that  a  Hindu family  is  presumed  to be joint  unless  the  contrary  is proved.  The finding whether there was partition or not is a finding of fact.  An interference in the concurrent findings of fact on this point by the courts below is not justified. Bhagavati Prasad Shah v. Dulbi Rameshwari Juar, [1951] S.   C. R. 603, referred to. It is settled law that a member of a joint Hindu family  can bring  about his separation in status by a definite and  un- equivocal  and  unilateral declaration of his  intention  to separate  himself  from the family and enjoy  his  share  in severality.  One cannot declare or manifest his mental state in  a  vaccum.  To declare is to make known,  to  assert  to others.   Others must necessarily be those affected  by  the said  declaration.   Therefore, a member of  a  joint  Hindu family seeking to separate himself from others will have  to make known his intention to the other members of the  family from  whom  he  seeks  to separate.   A  declaration  to  be effective should reach the person or persons affected by one process or other appropriate to a given situation. Adujallath Kathusumma v. Adujalath Beechu, I.L.R. 1950  Mad. 502,  Suraj Narain v. Iqbal Narain, (1912) I.L.R. 35  All.80 (P.  C.), Ramalinga Annavi v. Narayanan Annavi, (1922) I. L. R.  45  Mad.  489 (P.  C.), Sayed Kasam  v.  Jorawar  Singh, (1922)  I.L.R.  50  Cal.  84  (P.   C.),  Soundararayanl  v. Arunachalam Chetty, (1915) I. L. R. 39 Mad. 159 (P.C.),  Bal Krishna v.  Ram Krishna, (1931) I. L. R. All. 300 (P.   C.), Babu  Ramasaray Prasad Choudhary v. Radhika Devi, (1935)  43 L. W. 172 (P.C.), Kamepalli Avilamma v. Manmen Venketaswamy, (1913) 33 M.   L.J.  745,  Rama Ayyar  v.  Meenakshi  Ammal, (1930) 33 L.   W.  384, Narayana Rao v. Purshothama Rao,  I. L.  R. 1938 Mad. 315 and Indira v. Sivaprasad Rao, I. L.  R. 1953 Mad. 245, discussed .

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23  

Once  the  declaration  is  expressed  and  brought  to  the knowledge  of  the person affected, it relates back  to  the date of  937 declaration or the expression of intention to separate.   As the  doctrine  of relation back involves  retroactivity,  it cannot  affect vested rights.  It would follow that,  though the  date  of  severance is that  of  manifestation  of  the intention  to separate, the rights accrued to others in  the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the above principles to the present case it must be held that on the death of Chimpirayya his interest  devolved on Subbarao since it has not been established that  Subbarao or   his   guardian  had  knowledge  of  the   contents   of Chimpirayya’s will before Chimpirayya died.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 165 of 61. Appeal from the judgment and decree dated December 20, 1955, of  the former Andhra Pradesh High Court in Appeal Suit  No. 716 of 1952. D.Narsaraju,  Advocate-General for -the State  of  Andhra Pradesh, and T. V. R. Tatachari, for the appellants. K.Bhimsankaram,  G. Jagapathi Rao and Satyanarayana,  for the respondent No. 1. K. R. Choudhry, for the respondent No. 2. 1963.  April 9. The judgment of the Court was delivered by SUBBA RAO J.-This appeal by certificate is preferred against the  judgment  and  Decree  of  the  High  Court  of  Andhra confirming   those  of  the  Subordinate   judge,   Bapatla, dismissing  the suit filed by the appellants for  possession of the plaint schedule properties.  The following  genealogy will be useful 938 in appreciating the facts and the contentions of the parties :                    Veeranna (d. 2.2.1906)                               |    :                                                :    :                                                : Atchamma                                      Seshamma (1st wife)                                    (2nd wife)     :                                             :     :                                             : :                 :              :                : :                 :              :                : Chimpirayya     Pitchayya   Raghavamma            : (d.5-5-1945)   (d. 1-9-1905)  (Plff.Applt.).      : :                  :                              : :                  :                              : :    ...................                           : :      :               :                           : :    Daughter          :                           : :                      :                           : :  (d.1-11-1905)   Venkayya Chen-                  : :                  chamma (DI, R 1)                : :                  (alleged adopted)               : :                        :                         : :                        :                         : :          Subbarao (d.28-7-1949)                  : :                                                  :        :           :                     :         :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23  

      :           :                     :         : Venkayya        Saraswatamma       Raghavayya      : (d.24-5-1938)       :              (b.28-10-1910   : (alleged to         :                d. 1916)      : have been adopted    Komalamma                     : by Pitchayya)         D-2/R-2                      :                                                    :                   .......................................                    :                                :                    :                                :                  Peda Punnayya            China Punniayya                (died unmarried              (D-3, R-3)                                                  :                                                  :                                 .........................                                  :                 :                                  :                 :                              1st wife           2nd wife                              (died issue-      Subbamma                                    less)     L.R. of D3/R3                                                   :                                                   :                                     ..................                                      :               :                                      :               :                                 Alivelamma   Venkayamma  939 It  will  be seen from the genealogy that Veeranna  had  two wives  and that Chimpirayya and Pitchayya were his  sons  by the first wife and Peda Punnayya and China Punnayya were his sons by the second wife.  Veeranna died in the year 1906 and his  second  son Pitchayya had predeceased him  on  1-9-1905 leaving  his widow Raghavamma.  It is alleged that  sometime before  his death, Pitchayya took Venkayya, the son  of  his brother Chimpirayya in adoption; and it is also alleged that in  or  about the year 1895, there was a  partition  of  the joint family properties between Veeranna and his four  sons, Chimpirayya,  Pitchayya, Peda Punnayya and  China  Punnayya, Veeranna  taking  only 4 acres of land and the rest  of  the property  being divided between the four sons by  metes  and bounds.  Venkayya died on May 24, 1938, leaving behind a son Subbarao.  Chimpirayya died on May 5, 1945 having executed a will   dated  January  14,  1945  whereunder  he  gave   his properties  in equal shares to Subbarao and  Kamalamma,  the daughter   of   his  pre-deceased   daughter   Saraswatamma; thereunder  he  also directed Raghavamma, the widow  of  his brother Pitchayya, to take possession of the entire property belonging  to him, to manage the same, to spend  the  income therefrom at her discretion and to hand over the property to his  two grandchildren after they attained majority  and  if either  or both of them died before attaining majority,  his or  her  share or the entire property, as the case  may  be, would go to Raghavamma.  The point to be noticed is that his daughter-in-law, Chenchamma was excluded from management  as well  as  from inheritance after the death  of  Chimpirayya. But  Raghavamma  allowed  Chenchamma to  manage  the  entire property  and  she accordingly came into possession  of  the entire  property after the death of  Chimpirayya.   Subbarao died  on July 28, 1949.  Raghavamma filed a suit on  October 12,  1950 in the Court of the Subordinate  judge,  Bapatlal, for possession of the plaint scheduled 940 properties; and to that suit, Chenchamma was made the  first defendant;  Kamalamma,  the  second  defendant;  and   China Punnayya, the second son of Veeranna by his second wife, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23  

third  defendant.  The plaint consisted of A, B, C,  D,  D-1 and  E schedules, which are alleged to be the properties  of Chimpirayya.   Raghavamma claimed possession of A, B  and  C Scheduled  properties from the 1st defendant, for  partition and  delivery  of half share in the  properties  covered  by plaint-schedule D and D-1 which are alleged to belong to her and  the 3rd defendant in common and a fourth share  in  the property  covered by plaint-schedule E which are alleged  to belong to her and the 1st and 3rd defendants in common.   As Kamalamma  was a minor on the date of the  suit,  Raghavamma claimed  possession  of the said properties under  the  will -half in her own right in respect of Subbarao’s share, as he died  before attaining majority, and the other half  in  the right  of  Kamalamma,  as  by  then  she  had  not  attained majority,  she  was entitled to manage her  share  till  she attained majority. The  first  defendant  denied that  Venkayya  was  given  in adoption  to Pitchayya or that there was a partition in  the family  of Veeranna in the manner claimed by the  plaintiff. She  averred  that  Chimpirayya  died  undivided  from   his grandson  Subbarao and, therefore, Subbarao became  entitled to  all  the  properties of the joint  family  by  right  of survivorship.   She did not admit that Chimpirayya  executed the  will in a sound and disposing frame of mind.  She  also did  not admit the correctness of the Schedules attached  to the  plaint.   The  second,  defendant  filed  a   statement supporting  the  plaintiff.   The third  defendant  filed  a statement   denying  the  allegations  in  the  plaint   and disputing the correctness of the extent of some of the items in  the plaint schedules.  He also averred that some of  the items belonged to him exclusively and that Chimpirayy a  had no right to the mm. 941 On  the  pleadings various issues were raised and  the  main issues, with which we are now concerned, are issues I and 2, and they are : (1) whether the adoption of Venkayya was true and  valid ; and (2) whether Pitchayya and Chimpirayya  were divided   as   alleged  by  the  plaintiff.    The   learned Subordinate  judge,  after considering the entire  oral  and documentary  evidence  in the case, came to  the  conclusion that  the plaintiff had not established the factum of  adop- tion of Venkayya by her husband Pitchayya and that she  also failed to prove that Chimpirayya and Pitchayya were  divided from  each other ; and in the result he dismissed  the  suit with costs. On  appeal,  a  division  Bench of  the  Andhra  High  Court reviewed  the  entire evidence over again and  affirmed  the findings  of  the  learned Subordinate  judge  on  both  the issues.  Before the learned judges another point was raised, namely,  that the recitals in the will disclose a clear  and unambiguous  declaration of the intention of Chimpirayya  to divide, that the said declaration constituted a severance in status  enabling him to execute a will.  The  learned  judge rejected that plea on two grounds, namely, (1) that the will did  not contain any such declaration ; and (2) that, if  it did,  the  plaintiff should have claimed a division  of  the entire  family  property,  that is, not  only  the  property claimed by Chimpirayya but also the property alleged to have been  given to Pitchayya and that the suit as  framed  would not be maintainable.  In the result the appeal was dismissed with  costs.  The present appeal has been preferred  by  the plaintiff by certificate against the said judgment. Learned  Advocate-General of Andhra Pradesh,  appearing  for thE  appellant, raises before us the following points :  (1) The  findings  of the High Court on adoption as well  as  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23  

partition  were vitiated by the High Court not  drawing  the relevant presumptions permissible in the case of old 942 transactions,  not appreciating the great evidentiary  value of  public  documents, ignoring or at any  rate  not  giving weight to admissions made by parties and witnesses  adopting a  mechanical  instead  of  an  intellectual  approach   and perspective and above all ignoring the consistent conduct of parties spread over a long period inevitably leading to  the conclusion that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the Court should have held on the  basis of the entire evidence that there was a  division in  status between Chimpirayya and Pitchayya, conferring  on Chimpirayya  the right to bequeath his divided share of  the family  property.  (3)  The will  itself  contains  recitals emphasizing the fact that he had all through been a  divided member  of the family and that on the date of  execution  of the will he continued to possess that character of a divided member  so as to entitle him to execute the will in  respect of  his  share  and, therefore, the  recitals  in  the  will themselves  constitute  an unambiguous  declaration  of  his intention to divide and the fact that the said manifestation of  intention  was  not communicated  before  his  death  to Subbarao  or  his guardian Chenchamma could not  affect  his status  as  a  divided  member.   And  (4)  Chenchamma,  the guardian  of Subbarao, was present at the time of  execution of  the  will  and, therefore,  even  if  communication  was necessary  for bringing about a divided status, it was  made in the present case. Mr. Bhimasankaram, learned counsel for the contesting  first respondent,  raises  a preliminary objection to  the  effect that  the certificate given by the High Court  was  confined only  to  three questions which did not include  the  issues relating  to  adoption  or  partition  and,  therefore,  the appellant  could  not  question  the  correctness  of  those findings  in respect of those issues and that  the  question whether the recitals in the 943 will themselves constituted a partition in status could  not be  allowed to be raised, as that point was raised only  for the first time in the High Court.  He further contends  that both  the Courts below gave concurrent findings of  fact  on the  question of adoption as well as on partition  and  this Court will not reconsider the evidence as a rule of practice and  there are no exceptional circumstances to  depart  from that salutary practice in this appeal.  He further seeks  to sustain  the  findings  of the High Court  on  the  evidence adduced in the case.               We shall take the preliminary objection first.               The material part of the certificate issued by               the High Court rears thus:               subject  matter  of the suit in the  court  of               first  instance is upwards Rs.  20,000/(Rupees               twenty thousand) and the value of the  subject               matter  in  dispute on appeal to  the  Supreme               Court of India is also of the value of upwards               of  Rs. 20,000/- (Rupees twenty thousand)  and               that   the  affirming  decree  appealed   from               involves  the following substantial  questions               of law :-               1.    Whether a will executed by a member of a               joint   Hindu  family  would  of   itself   be               operative  to effect a severance  between  him               and the other members of the family by  reason

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23  

             of the disposition contained in the will.               2.    Whether a will executed by a member of a               joint  family on the assumption not proved  to               be well founded or correct that as a result of               an  anterior partition in the family  he,  the               testator,   was   solely   entitled   to   the               properties  disposed of by the will, would  be               effective to               944               create  a severance between the  testator  and               the other members as on the date of the  will,               and               3.    Whether  the  aforesaid pleas  could  be               raised  for the first time on  appeal  without               their  having been raised in the pleadings  or               at any stage of the trial."               The  said certificate was granted  within  the               terms of Article 133 (1) of the  Constitution.               The material part of Article 133 (1) reads :               "An appeal shall lie to the Supreme Court from               any     judgment,     decree     or      final               order   ............   if   the   High   Court               certifies-(a) that the amount or value of  the               subject matter of the dispute in the court  of               first instance and still in dispute on  appeal               was  and  is  not less  than  twenty  thousand               rupees  or such other sum as may be  specified               in  that behalf by Parliament ; (b)  that  the               judgment,  decree  or  final  order   involves               directly or indirectly some claim or  question               respecting  property  of the  like  amount  of               value ; or (c) that the case is a fit one  for               appeal to the Supreme Court ;               and where the judgment, decree or final  order               appealed  from  affirms the  decision  of  the               court immediately below in any case other than               a case referred in sub-clause (c), if the High               Court   further  certifies  that  the   appeal               involves some substantial question of law." Mr. Bhimasankaram contends that the conditions laid down for issuing  a  certificate must also govern the  scope  of  the appeal  to the Supreme Court, for, otherwise,  the  argument proceeds,  the  said  conditions would  become  otiose.   He concedes that the Supreme Court can exercise an unrestricted power of reviewing the judgment of the High Court  945 in  the case of a certificate hedged in with  conditions  by resorting  to its power under Art. 136 of the  Constitution, but this is not a case where it can do so especially  having regard to the fact that the appellant did not seek to invoke that power. Under Art. 133 of the Constitution the certificate issued by the  High  Court  in  the manner  prescribed  therein  is  a precondition  for  the maintainability of an appeal  to  the Supreme  Court.   But the terms of the  certificate  do  not circumscribe the scope of the appeal, that is to say, once a proper  certificate  is  granted,  the  Supreme  Court   has undoubtedly the power, as a court of appeal, to consider the correctness  of  the decision appealed  against  from  every standpoint,  whether  on  questions  of  fact  or  law.    A successful  party no doubt can question the  maintainability of the- appeal on the ground that the certificate was issued by  the  High -Court in contravention of the  provisions  of Art. 13 3 of the Constitution, but once the certificate  was good,  the provisions of Art. 133 did not confine the  scope

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 23  

of  the  appeal to the certificate.  We,  therefore,  reject this preliminary objection. His  next  objection is that both  the  learned  Subordinate Judge  and, on appeal, the learned judges of the High  Court gave  concurrent findings of fact on adoption as well as  on partition and it is the usual practice of this Court not  to interfere   with  such  findings,  except   in   exceptional circumstances  and  there are no such circumstances  in  the present case, Article  133 of the Constitution does not in any  way  limit the  scope  of  an  appeal,  provided  a  proper  and  valid certificate  is issued by the High Court  thereunder.   This Court  has  undoubtedly the power to review  the  concurrent findings  of  fact  arrived  at  by  the  lower  Courts   in appropriate cases.  But it has 946 been  a long standing practice of the Privy Council  not  to interfere  with such findings based upon relevant  evidence, except under extraordinary and exceptional   circumstances : Vide Rani v.   Khagendrar   (1);   Fatima  Bibi   v.   Ahmed Bakshi(2),  Harendra  v.  Haridasi  (3);  and  Bibhabati  v. Ramendra  (4);  The  same  practice  has  been  adopted  and followed by this Court since its inception : see Nanalal  v. Bombay  Life  ,  Assurance Co. (5):  Firm  Srinivas  Ram  v. Mahabir  Prasad  (6) Trojan & Co. v. Naganna  (7);  Rajinder Chand v. Mst.  Sukhi (8); Bhikka v. Charan Singh (9); M.M.B. Catholicos  v. P. Paulo Avira (10) and  Narayan  Bhagwantrao Gosavi Balajiwale v. Gopal Vinanyak Gosavi (11). . The reason for the practice is stated to be that when  facts have been fairly tried by two Courts and the same conclusion has  been reached by both, it is not in the public  interest that  the  facts should be again examined  by  the  ultimate court  of appeal.  Whatever may be the reason for the  rule, the  practice ha% become fairly crystallized and this  Court ordinarily  will not interfere with concurrent  findings  of fact  except  in exceptional cases, where the  findings  are such  that  it  "sbocks the conscience of the  Court  or  by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise  substantial and  grave injustice has been done." It is not possible  nor advisable   to   define  those   circumstances.    It   must necessarily  be left to the discretion of this Court  having regard  to  the facts of a particular case.  We  have  beard learned  counsel on merits and we do not think it is one  of those  exceptional  cases where we should  depart  from  the salutary practice adopted by this Court. Learned   Advocate-General   contends   that   the   learned Subordinate judge as well as the High Court did not draw the appropriate  presumptions  arising from the  fact  that  the transactions were old ones, (1)  (1904) I.L R. 31  Cal. 871. (2) (1903) S.L.R.  35  Cal. 271. (3)  (1914) A.I.R. 41 Cal. 972, 988.(4) (1946) 51 C.W.N  98. 147 (5) A.I.R. 1950 S.C. 172.(6) A I R. 1951 S. C. 177. (7) A.I.R. 1953 S.C. 235.(8) A.I.R. S.C. 286. (9) [1959] Supp 2 S.C.R. 798(10) A.I.R 1959 S.C. 31, (11) [1960] 1 S.C.R. 773 947 nor  did they give sufficient weight to the entries  in  the revenue  records, the admissions made by the parties and  to the  conduct  of  the  parties  and  such  other   important circumstances and, therefore, their findings are, liable  to be  questioned in this appeal.  This argument in effect  and substance  means  that the Courts below have not  given  due

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 23  

weight  to  particular  pieces of  evidence.   There  is  an essential  distinction between burden of proof and  onus  of proof, burden of proof lies upon the person who has to prove a  fact and it never shifts, but the onus of  proof  shifts. The  burden  of proof in the present case  undoubtedly  lies upon  the plaintiff to establish the factum of adoption  and that of partition.  The said circumstances do not alter  the incidence  of  the burden of  proof.   Such  considerations, having regard to the circumstances of a particular case, may shift  the  onus  of proof.  Such a shifting of  onus  is  a continuous  process  in  the evaluation  of  evidence.   The criticism  levelled  against  the  judgments  of  the  lower Courts,   therefore,   only  pertain  to   the   domain   of appreciation  of  evidence.  We  shall,  therefore.  broadly consider  the evidence not for the purpose  of  revaluation, but  to see whether the treatment of the case by the  Courts below  is such that it falls in the category of  exceptional cases  where this Court, in the interest of justice,  should depart from its usual practice. We shall first take the question of adoption. It  is well settled that a person who seeks to displace  the natural succession to property by alleging an adoption  must discharge  the  burden that lies upon him by  proof  of  the factum  of adoption and its validity.  Here,  the  appellant alleges in the plaint that Venkayya: the son of Chimpirayya, was taken in adoption by her husband, Pitchayya.  The  first defendant,  the  widow of Venkayya, denies in  her  written- statement that her husband was adopted 948 by Pitchayya.  On the said pleadings the following issue was framed  :  "Whether  the adoption of Venkayya  is  true  and valid." On the pleading the burden of proof has rightly been placed  on the plaintiff.  The adoption is alleged  to  have taken  place in the year 1905.  The circumstances  obtaining at  that  time were as follows : Chimpirayya  was  about  40 years old; he had only one son, Venkayya, who was aged about 2  years  Pitchayya was about 25 years old  and,  therefore, ordinarily  he had every prospect of having children of  his own;  it is, therefore highly improbable, unless  there  are special circumstances, that an only son of an elder  brother was  taken in adoption by his younger brother; though  there is no legal prohibition, it is well known that ordinarily an only  son is neither given nor taken in  adoption’.   P.W.I. admits  that  Addagada family is a  prominent  and  affluent family  in  the  village.   But  curiously  no  document  of adoption was executed, no invitations were sent to relatives and  village  officers,  and  no  expenditure  incurred   in connection  with the adoption was entered in  the  accounts. Unless there were compelling and extraordinary circumstances which  necessitated dispensing with all formalities,  it  is unthinkable  that  in  a village there could  have  been  an adoption  made in such an affluent family without  pomp  and show.  P. Ws. 1 and 2 speak to the adoption.  P. W. I is the cousin of the appellant and P.W. 2 is appellant herself.  P. W. I says that Pitchayya adopted his brother’s son  Venkayya and  he lived for one month thereafter.  The reason for  the adoption,  according  to her, was that he was sick  and  was afraid  that he would die.  She graphically  describes  that Alivelamma,  the  wife  of  Chimpirayya,  gave  her  son  in adoption  to the accompaniment of "mantrams  and  tantrams", that  one Subbayya of Upputur was the prohit who  officiated in  the  ceremony.  In the cross-examination she  says  that Pitchayya did not die suddenly of an attack of fever but was suffering from dropsy 949

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 23  

for about a month and also even earlier; she admits that for important  functions  like marriage and  adoption  in  their family  they  would invite the village  officers  and  other important  people  of the village, but no such  officers  or important  people were invited when Venakayya was  taken  in adoption.   This  witness  was  60 years  old  in  1961  and therefore she would have been about 15 years at the time  of the alleged adoption.  Assuming for a moment that  Pitchayya was  suffering  from  dropsy,  there is  no  reason  why  no important  persons  were invited for the function.   If  her evidence  were  true,  Pitchayya took part  in  the  alleged ceremony and it cannot therefore be suggested that he was so ill  that  all  the formalities had to  be  dispensed  with. Indeed,  if he was ill and if the adoption was made  without inviting  the  important people, that should have  been  the very reason why the village officers would have been invited and  a  document to evidence it executed.  P. W.  2  is  the appellant Raghavamma.  She says that there was a ceremony of adoption  officiated  by the prohit Subbayya  and  that  her brother-in-law  and  his wife gave the boy to  her  and  her husband  in adoption.  She also deposes that her father  and his  brothers were present at the adoption.  In  the  cross- examination  she  says that her husband lived  for  about  3 months after the adoption.  She admits that no document  was executed  and  that though there were accounts,  no  entries relating  to  the  expenses of  the  adoption  were  entered therein.   While  P.W. I says that Pitchayya lived  for  one month  after  the adoption, P. W. 2 says that he  lived  for about 3 months thereafter.  Neither in the pleadings nor  in the evidence the date of adoption is given.  The evidence of P.  W.  I  is vague and appears to  be  improvised  and  the evidence  of P. W. 2 discloses the improbabilities  inherent in  such  an adoption.  They also contradict each  other  on material  circumstances. The Courts below  have  disbelieved their evidence. 950 The  appellant  and  the first respondent  relied  upon  the conduct  of the parties subsequent to the  alleged  adoption and filed a number of documents to support their  respective cases.  Documentary evidence considered [omitted]. So far as the documentary evidence goes, the position is  as follows: Till 1911 there was no document recording the  fact that  Venkayya  was the adopted son of Pitchayya,  and  that after  1911  there had been contradictory  recitals  in  the documents.   Broadly speaking whenever Venkayya  executed  a document he described himself as the son of Chimpirayya, and whenever third parties executed documents, he was  described as the adopted son of Pitchayya.  He filed suits,  sometimes as  the son of Chimpirayya and sometimes as the adopted  son of Pitchayya.  His name was entered in the accounts relating to Paruchur, but not in the accounts relating to Upputur; he gave  evidence declaring himself as the son  of  Chimpirayya and  also  insured-his  life  as such  he  operated  on  the accounts  of third parties as the son of Chimpirayya;  while in the will executed by Chimpirayya, he was described as the adopted  son  of  Pitchayya on the  death  of  Venkayya  the appellant  herself,  who  under the  will  was  entitled  to continue  in  possession  and management,  handed  over  the entire management to the first respondent indicating thereby that  the will was not really intended to take  effect.   In this state of evidence it is not possible to say that  there had been a consistent pattern of conduct from which a  Court should draw the inference that the adoption must have  taken place. Attempt   is  made  to  reconcile  these   contra.   dictory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23  

descriptions  in  the  documents  by  developing   different theories.  Learned Advocate-General suggests that there  was no  reason why Chimpirayya should have put forward  Venkayya falsely as the  951 adopted son of Pitchayya as early as 1911 when he should not have  gained any advantage thereby, for without the  aid  of adoption the entire property of Pitchayya would have come to him  by  survivorship.   Mr.  Bhimasankaram  surmises   that Chimpirayya  put forward the adoption without the  knowledge of Raghavamma to safeguard his family interests against  the possible  adoption later on by Raghavamma of a stranger  and that  subsequently both joined together with a view  to  put pressure upon the first respondent to marry her son Subbarao to  Kamalamma.  He also suggests that Chimpirayya  began  to put forward his son Venkayya as the adopted son of Pitchayya only  after  the birth of his second son in  1910  and  that after  the death of that son in 1916, his only interest  was to see that his grand son by his son Venkayya was married to his  grand-daughter  by his daughter and that the  will  was executed  only  to put pressure upon the  first  respondent. That  the will was executed only for this  limited  purpose, learned counsel argues, is clearly demonstrated by the  fact that  Raghavamma,  though  she was entitled  to  be  put  in possession   of  the  entire  property,  handed   over   the management  of  the same to the first respondent  after  the death of Chimpirayya.  The said suggestions made by  learned counsel  on both sides are only based on surmises. and  they cannot be made the basis for a court’s conclusion.  In  this state  of evidence when both the Courts found, on a  careful consideration  of  oral  and documentary  evidence  and  the probabilities  arising therefrom that the appellant on  whom the  burden  of  proof lay to establish  that  Venkayya  was adopted to Pitchayya has failed to discharge it,. we  cannot say  that the -finding was vitiated by such errors  that  we should  review the entire evidence over again and come to  a conclusion of our own.  We therefore, accept the  concurrent finding  of  fact  that  there was  no  adoption.  The  next question  is whether the concurrent finding of fact  arrived at by the Courts below on the 952 question  of partition calls for our interference.   In  the plaint neither the details of the partition nor the date  of partition  are  given.  In the written statement  the  first respondent  states that Chimpirayya died undivided from  his son’s  son Subbarao and so Subbarao got the entire  property by  survivorship.   The  second  issue  framed  was  whether Chimpirayya  and  Pitchayya were divided as alleged  by  the plaintiff.  The partition is alleged to have taken place  in or  about the year 1895; but no partition deed was  executed to  evidence  the  same.  The burden  is  certainly  on  the appellant  who  sets up partition to prove  the  said  fact. P.W.  1,  though she says that Veeranna was alive  when  his sons effected the partition, admits that she was not present at the time of Partition, but only heard about it.  P.W.  2, the  appellant,  deposes that her husband and  his  brothers effected partition after she went to live with him; she adds that in that partition her father-in-law took about 4  acres of land described as Bangala Chenu subject to the  condition that  after his death it should be taken by his  four  sons, that  at the time of partition they drew up partition  lists and recited that each should enjoy what was allotted to  him and   that   the  lists  were  written  by   one   Manchella Narasinhayya;  she  also  admits  that  the  lists  are   in existence,  but  she has not taken any steps  to  have  them

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 23  

produced  in Court.  She says that each of the brothers  got pattas  according to the partition, and that the pattas  got for  Pitchayya’s  share are in his house; yet she  does  not produce  them.   She says that she paid kist for  the  lands allotted to Pitchayya’s share and obtained receipts; but the receipts are not filed.  She admits that she has the account books;  but they have not been filed in Court.  On  her  own showing  there  is  reliable  evidence,  such  as  accounts, pattas,   receipts,  partition  lists  and  that  they   are available;  but they are not placed before the  Court.   Her interested evidence cannot obviously be acted upon when  all the relevent evidence has been suppressed. 953  Strong reliance is placed upon the alleged admissions  made by D.W.8 and D. W. 10.  D.W. 8 is the karnam of Paruchur for over 30 years.  He says in his evidence that Veeranna took 3 acres and 63 cents. of land with a condition that it  should go  to  his sons in equal shares and the rest of  the  lands were  divided into two shares, one taken by  Chimpiryya  and Pitchayya and the other by Peda Punnayya and China Punnayya. He  explains that some lands, where the soil is partly  good and  partly bad, were divided into four parts and  one  good and  one  bad went to each sharer.  This evidence  does  not contain  any admission that there was a partition  inter  se between the four brothers; indeed it only supports the  case that there was a partition between the children of  Veeranna by his two wives.  The division in four plots in respect  of certain lands was only for an equitable distribution of  the said  lands between the sons of two wives.  D.M. 10  in  his evidence  says  that  he  does not know  in  what  year  the partition  took place; that it went on for two months;  that some  of  the  lands  were divided  into  four  plots.   His evidence  is  also consistent with the evidence of  D.W.  8. There  is  no admission by defendants’  witnesses  that  the division  was between the four brothers.  The oral  evidence therefore,  does not support the case of the appellant  that there  was  a  division inter  se  between  Chimpirayya  and Pitchayya. Now  coming to the documentary evidence, as we have  already indicated, all the relevant documents admitted to have  been in  existence have not been placed before the Court  and  an adverse  inference has, therefore, to be drawn  against  the appellant.  Even the documentary evidence filed in the  case does not help the appellant.  The family property is situate in three villages, Paruchur, Upputur and Podapadu.  If there was  a  partition inter se between the 4 -brothers,  in  the ryotwari settlement 954 effected in 1906 the names of the brothers should have  been entered separately in the revenue accounts but the  relevant register  pertaining to that settlement has not been  filed. Even  in  the later accounts of the year 1918  the  name  of Venkayya  was  entered  only in respect  of  some  lands  in village Paruchur, but no such entries  are found in  respect of the other villages.    Those  entries  were  made  on   a representation made by Chimpirayya and no one was interested to object to the entries.  Even these accounts show that  in the  earlier  register  Pitchayya’s name  was  not  entered. Though they have some probative value of possession, they do not show that  the said lands shown against Venkayya fell to the  share of Pitchayya at the partition in the year   1895. In Benyala Chenu alleged to have been given to Veeranna with a  condition that after his death the four sons should  take it  in  equal shares, Venkayya did not get his share  as  he should  if Pitchayya was divided from Chimpirayya and if  he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23  

was  adopted to Pitchayya.  P. W. 2 admits that  Chimpirayya had  two acres in Bengala Chenu and Punnayya had  the  other two  acres.  This admission belies the statement that  there was a partition inter se among the four brothers, for if the said  partition  was true, one acre should  have  fallen  to Pitchayya’s branch.  P. W. 3 also says that Chimpirayya  was in enjoyment of the said two acres. Exs.  B-52, B-53, B-54, B-55, B-56 and B-57 established that the original mortgage of 1900 executed in favour of Veeranna was later on renewed only by Chimpirayya and Punnayya,  that after the alleged partition separate mortgages were executed for  portions  of  the debt in  favour  of  Chimpirayya  and Putinayya, that the property which was the subject matter of the  mortgages  was  sold  in  favour  of  Chimpirayya   and Punnayya,  and thereafter, under Exs.  B-61, B-62 and  B-63, Chimpirayya and Punnayya sold the said land to  955 third  parties.  These series of documents support the  case that there was no partition inter se between Chimpirayya and Pitchayya.  So too, another land obtained by Veeranna  under an oral sale in 1886 was formally sold by a registered  sale in  favour  of Chimpirayya and Punnayya under Ex.   B-60  in 1911.   If Pitchayya had a share, Venkayya should have  been one of the vendses.  Exs.  B-67 and B-68 are the  assessment orders  of  the year 1933 and Chimpirayya  was  assessed  as representing  a  Hindu -undivided family.  At  the  time  of assessment  if Venkayya was not a member of the Hindu  joint family,  there was no other mate member in the family.   The assessment  could  only  be  explained  on  the  basis  that Venkayya  and  Chimpirayya  were members of  a  Joint  Hindu family.  Both the Courts, on the basis of the said  evidence and  other evidence, came to the conclusion that it has  not been  established that in the partition of 1895 there was  a division inter se between Chimpirayya and Pitchayya. Some argument is made on the question of burden of proof  in the context of separation in a family. The legal position is now very well settled.  This Court in Bhagwati Prasad Sah v. Dulhin Rameshwari Juer (1), stated the law thus :               "The  general  principle undoubtedly  is  that               a .Hindu family is presumed to be joint unless               the  contrary  is  proved,  but  where  it  is               admitted  that  one  of  the  coparceners  did               separate himself from the other members of the               joint  family and had his share in  the  joint               property partitioned off for him, there is  no               presumption  that the rest of the  coparceners               continued   to   be  joint.    There   is   no               presumption on the other side too that because               one  member of the family  separated  himself,               there has been separation with regard to  all.               It   would  be  a  question  of  fact  to   be               determined in each case upon the               (1)   [1951] S. C.  R. 603, 607.               956               evidence relating to the intention of the par-               ties  whether there was a  separation  amongst               the  other coparceners or that  they  remained               united.   The burden would undoubtedly lie  on               the  party  who  asserts the  existence  of  a               particular  state  of things on the  basis  of               which he claims relief." Whether  there  is a partition in a Hindu joint  family  is, therefore, a question of fact; notwithstanding the fact that one  or  more  of  the members  of  the  joint  family  were separated  from the rest, the plaintiff who seeks to  get  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 23  

specified  extent of land on the ground that it fell to  the share  of the testator has to prove that the said extent  of land  fell to his share; but when evidence has been  adduced on  both  sides,  the burden of proof  ceases  to  have  any practical importance.  On the evidence adduced in this case, both  the  Courts below found that there  was  no  partition between   Chimpirayya  and  Pitchayya  as  alleged  by   the appellant.   The  finding is one of fact.  We  have  broadly considered the evidence only for the purpose of ascertaining whether the said concurrent finding of fact is supported  by evidence  or whether it is in any way vitiated by errors  of law.   We find that there is ample evidence for the  finding and it is not vitiated by any error of law. Even  so, learned Advocate-General contends that  we  should hold  on  the evidence that there was a division  in  status between Chimpirayya and the other member of the joint  Hindu family  i.  e.. Subbarao, before  Chimpirayya  executed  the will, or at any rate on the date when he executed it. It is settled law that a member of a joint Hindu family  can bring  about  his  separation in status by  a  definite  and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality.  Omitting the will, the  957 earlier documents filed in the case do not disclose any such clear  intention.   We have already held that there  was  no partition  between Chimpirayya and Pitchayya.  The  register of changes on which reliance is placed does not indicate any such  intention.   The  statement of  Chimpirayya  that  his younger  brother’s  son  is  a sharer  in  some  lands  and, therefore, his name should be included in the register, does not  ex  facie  or by  necessary  implication  indicate  his unambiguous  declaration to get divided in status from  him. The conflicting descriptions in various documents  introduce ambiguity  rather  than clarity in the matter  of  any  such declaration  of  intention.   Be it as  it  may,  we  cannot therefore hold that there is any such clear and  unambiguous declaration  of  intention  made by  Chimpirayya  to  divide himself from Venkayya. Now we shall proceed to deal with the will, Ex. A-2 (a),  on which  strong  reliance is placed by the  learned  Advocate- General  in  support of his contention that on  January  14, 1945,  that  is,  the  date  when  the  will  was  executed, Chimpirayya  must be deemed to have been divided  in  status from  his  grandson Subbarao.  A Will speaks only  from  the date  of  death of the testator.  A member of  an  undivided coparcenary has the legal capacity to execute a will; but he cannot  validly  bequeath his undivided interest  the  joint family  property.   If he died an undivided  member  of  the family,  his interest survives to the other members  of  the family  and,  therefore.  the will  cannot  operate  on  the interest  of  the  joint family property.   But  if  he  was separated  from  the family before his  death,  the  bequest would  take effect.  So, the important question that  arises is whether the testator in the present case became separated from the joint family before his death. The learned Advocate-General raises before us the  following contentions in the alternatives : (1) Under 958 the   Hindu  law  a  manifested  fixed  intention  as   con- tradistinguished  from an undeclared intention  unilaterally expressed  by  a member to separate himself from  the  joint family is enough to constitute a division in status and  the publication  of  such a settled intention is  only  a  proof thereof.  (2) Even if such an intention is to be  manifested

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 23  

to  the knowledge of the persons affected,  their  knowledge dates  back to the date of the declaration, that is to  say, the  said member is deemed to have been separated in  status not on the date when the other members have knowledge of  it but  from  the  date when he declared  his  intention.   The learned  Advocate-General  develops  his  argument  in   the following  steps  (1) the Will, Ex.  A-2  (a),  contains  an unambiguous intention on the part of Chimpirayya to separate himself from Subbarao, (2) he manifested his declaration  of fixed intention to divide by executing the will and that the Will  itself was a proof of such an intention; (3) when  the Will  was  executed, the first respondent  the  guardian  of Subba Rao was present and, therefore, she must be deemed  to have had knowledge of the said declaration’; (4) even if she had  no such knowledge and even if she had knowledge  of  it only  after  the death of Chimpirayya, her  knowledge  dated back  to  the  date  when  the  Will  was  executed,   ’and, therefore,  when Chimpirayya died he must be deemed to  have died separated from the family with the result that the Will would operate on his separate interest. The main question of law that arises is whether a member  of a  joint  Hindu  family becomes  separated  from  the  other members  of  the  family  by  a  mere  declaration  of   his unequivocal  intention  to divide from  the  family  without bringing  the same to the knowledge of the other  member  of the family.  In this context a reference to Hindu law  texts would be appropriate, for they are the sources from which  959 the  Courts evolved the doctrine by a pragmatic approach  to the problems that arose from time to time.  The evolution of the  doctrine can be studied in two parts, namely,  (1)  the declaration  of the intention, and (2) the communication  of it  to  others  affected thereby.  On  the  first  part  the following  texts would throw considerable light.   They  are collated  and translated by Viswanatha Sastri J., who has  a deep  and abiding knowledge of the sources of Hindu  Law  in Adivalath  Katheesumme  v.  Adiyalath Beechu (1)  ;  and  we accept  his  translations  as  correct  and  indeed  learned counsel on both sides proceeded on that basis.   Yajnavalkya Ch.  11,  6.  121.  "In land, corrody  (annuity,  etc.),  or wealth  received from the grandfather, the ownership of  the father  and the son is only equal." Vijnaneswara  commenting on the said sloka says :               "............... And thus though the mother is               having  menstrual  courses (has not  lost  the               capacity to bear children) and the father  has               attachment  and does not desire  a  partition,               yet  by  the  will (or desire) of  the  son  a               partition  of  the grandfather’s  wealth  does               take  place." (Setlur’s Mitaksbara,  pp.  646-               648.)               Saraswati Vilasa, placitum 28 : "From this  it               is   known   that  without  any   speech   (or               explanation) even by means of a  determination               (or  resolution) only, partition is  effected,               just  as an appointed daughter is  constituted               by mere intention without speech."               Viramitrodaya   of Mitra Misra : (Ch. 11.  pl.               23) "Here too there is no distinction  between               a partition during the lifetime of the  father               or after his death and partition at the desire               of  the  sons may take place or  even  by  the               desire   (or   at  the  will)  of   a   single               (coparcener).                (1) I.L.R. 1950, Mad. 502.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 23  

             960               Vyavahara  Mayukha  of  Nilakantabhatta:  (Ch.               IV, S. iii)                "Even  in  the absence of any  common  (joint               family) property, severance does indeed result               by  the mere declaration "I am  separate  from               thee"   because  severance  is  a   particular               state(or  condition)  of  the  mind  and   the               declaration is merely a manifestation of  this               mental state or condition)." The   Sanskrit   expressions  "sankalpa"   (resolution)   in Saraswati  Vilas, "ekechchaya (will of a single  coparcener) in   Viramitrodaya,  "budhivisesha"  (particular  state   or condition  of the mind) in Vyavahara Mayukha, bring out  the idea  that  the  severance of joint status is  a  matter  of individual  discretion,  The  Hindu  law  texts,   therefore support the proposition that severance in status is  brought about by unilateral exercise of discretion. Though  in the beginning there appeared to be a conflict  of views,  the later decisions correctly interpreted the  Hindu law  texts.   This aspect has been considered  and  the  law pertaining thereto precisely laid down by the Privy  Council in  a series of decisions; see Suraj Narain v. Iqbal  Narain (1);  Girija  Bai v. Sadashiv Dhundiraj (2); Kawal  Nain  v. Budh Singh (3); and Ramalinga Annavi v. Narayana Annavi (4). In Syed Kasam v. Jorawar Singh (5); the judicial  Committee, after reviewing its earlier decision laid the settled law on the subject thus :                "It  is  settled law that in the  case  of  a               joint  Hindu family subject to the law of  the               Mitaksbara, a severance of estate is  effected               by  an unequivocal declaration on the part  of               one  of the joint holders of his intention  to               bold  his  share separately,  even  though  no               actual division takes place ... ........." (1) (1912) I.L.R. 35 All. 80 (P.C.) (2) (1916) I.L.R. 43 Cal. 1031 (PC.). (3) (1917) I.L.R. 39 All. 496 (P.C.) (4) (1922) I.L.R. 45 Mod. 489 (P.C.) (5) (1922) I.L.R. 50 Cal. 84 (P.C.) 961 So  far, therefore, the law is well settled, namely, that  a severance in estate is a matter of individual discretion and that   to  bring  about  that  state  there  should  be   an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by  authoritative decisions of Courts.  But the difficult question is  whether the knowledge of such a manifested intention on the part  of the  other  affected members of the family  is  a  necessary condition for constituting a division in status.  Hindu  law texts  do  not directly help us much in this  regard  except that the pregnant expressions used therein suggest a line of thought  which was pursued by Courts to evolve  concepts  to meet the requirements of a changing society.  The  following statement in Vyavahara Mayukha is helpful in this context :               declaration" "I am separate from thee" because               severance is a particular state (or condition)               of  the mind and the declaration is  merely  a               manifestation of this marital state (or condi-               tion).  " One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others.   "Others" must necessarily be those affected by the said  declaration. Therefore  a  member  of a joint  Hindu  family  seeking  to separate  himself  from others will have to make  known  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23  

intention  to the other members of the family from  whom  he seeks  to separate.  The process of manifestation  may  vary with  circumstances.   This idea was  expressed  by  learned judges   by   adopting  different  terminology,   but   they presumably   found  it  as  implicit  in  the   concept   of declaration.   Sadasivalyerj.,in Soundarajan v.  Arunachalam Chetty  (1),  said that the expression  "clearly  expressed" used  by the Privy Council in Suraj Narain v.  Iqbal  Narain (2),  meant "clearly expressed to the definite knowledge  of the other coparceners." (1)  (1915) I.L.R. 39 Mad. 159 (P.C.) (2) (1912) I.L.R. 35 All. 80 (P.C.) 962 In  Girja  Bai  v.  Sadashiv  Dhundiraj  (1),  the  Judicial Committee  observed  that the manifested intention  must  be "clearly  intimated" to the other coparceners.   Sir  George Lowndes in Balkrishna v. Ram krishna (2), took it as settled law  that  a  separation  may  be  effected  by  clear   and unequivocal declaration on the part of one member of a joint Hindu  family to his coparceners of his desire  to  separate himself  from  the joint family’.  Sir John Wallis  in  Babu Ramasray  Prasad  Choudhary  v.  Radhika  Devi  (3),   again accepted as settled law the proposition that "a member of  a joint  Hindu  family may effect a separation  in  status  by giving  a clear and unmistakable intimation by his  acts  or declaration  of a fixed intention to  become  separate...... Sir  John  Wallis  C.  T.,  and  Kumaraswami  Sastri  J.  in Kamepalli  Avilam v. Mannem Venkataswamy (4), were  emphatic when  they stated that if a coparcener did not  communicate, during his life time, his intention to become divided to the other coparcener or coparceners, the mere declaration of his intention, though expressed or manifested, did not effect  a severance  in status.  These decisions authoritatively  laid down  the proposition that the knowledge of the  members  of the  family  of the manifested intention of one of  them  to separate  from  them is a necessary condition  for  bringing about  that member’s severance from the family.  But  it  is said that two decisions of the Madras High Court  registered a  departure from the said rule.  The first of them  is  the decision  of  Madhavan Nair J. in Rama  Ayyar  v.  Meenakshi Ammal (5).  There, the learned judge held that severance  of status  related back to the date when the communication  was sent.   The learned judge deduced this proposition from  the accepted principle that the other coparceners had no  choice or option in the matter.  But the important circumstance  in that case was that the testator lived till after the date of the service of the notice.  If that was so that decision  on the facts was correct.  We shall deal with the doctrine (1) (1916) I.L.R. 43 Cal. 1031 (P.C.) (2) (1931) I.L.R. 33 All. 300 (P.C) (3) (1935) 43 L.W. 172 (P.C.) (4)  (1917) 13 M.L.J. 746, (5)  (1930) 33 L W.  963 of  relating back at a later stage.  The second decision  is that  of  a  Division  Bench  of  the  Madras  High   Court, consisting of Varadachariar and King, JJ., it) Narayana  Rao v.  Purushotama Rao (1).  There, a testator executed a  will disposing  of  his  share in the joint  family  property  in favour of a stranger and died on August 5, 1926.  The notice sent  by  the testator to his son on August 3, 1926  was  in fact  received  by  the latter on August 9,  1926.   It  was contended  that  division  in status was  effected  only  on August 9, 1926, when the son received the notice and as  the testator  had  died  on August 5, 1926 and  the  estate  had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 23  

passed  by survivorship to the son on that date the  receipt of the notice on August 9, 1926 could not divest the son  of the estate so vested in him and the will was therefore,  not valid.   Varadachariar  J., delivering the judgment  of  the Bench observed thus :               "It  is  true that the  authorities  lay  down               generally   that  the  communication  of   the               intention   to   become   divided   to   other               coparceners  is  necessary, but none  of  them               lays  down that the severance in  status  does               not  take place till after such  communication               has been received by the other coparceners."               After pointing out the various anomalies  that               might   arise  in  accepting  the   contention               advanced   before  them,  the  learned   judge               proceeded to state :               "It may be that if the law is  authoritatively               settled,  it  is not open to us to  refuse  to               give effect to it merely on the ground that it               may  lead to anomalous consequences  but  when               the law has not been so stated in any decision               of   authority   and  such  a  view   is   not               necessitated or justified by the reason of the               rules,  we  see  no reason  to  interpret  the               reference  to "’communication" in the  various               cases as implying that the severance does  not               arise until notice has               (1)   I.L.R. 1968 Mad. 315, 318,               964               actually  been  received by the  addressee  or               addressees." We  regret our inability to accept this view.  Firstly,  be- cause, as we have pointed out earlier, the law has been well settled by the decisions of the judicial Committee that  the manifested  intention  should  be made known  to  the  other members  of the family affected thereby ; secondly,  because there would be anomalies on the acceptation of either of the views.    Thirdly  it  is  implicit  in  the   doctrine   of declaration  of an intention that it should be  declared  to somebody and who can that somebody be except the one that is affected thereby. There  is  yet another decision of the  Madras  High  Court, which is of Rajamannar C.  J. and Venkataramma Ayyar, J.  in Indira   v.  Sivaprasada  Rao  (1).   There,  the   testator despatched a telegram addressed to his undivided brother  on August 4, evening.  In the ordinary course it must have been delivered  on  August  5.  The testator  died  on  August  6 morning.    Learned  counsel  appearing  for   the   brother contended that it had not been established that the telegram reached his client before the testator died and,  therefore, the  will did not operate on the testator’s interest in  the joint  family  property.  The learned judges  rejected  that contention on the basis of the judgment of Varadachariar and King  JJ.  in Narayana Rao v. Purushothama Rao  (2).   As  a division  Bench they were bound by the decision  of  another Division Bench; but the real basis of the decision is  found at p. 256: "In  the case before us, the telegram was despatched on  the 4th  evening  and in the ordinary course it must  have  been delivered  on the 5th and the testator died only on the  6th morning." (1) I. L. R. 1953 Mad. 245, 2 56. (2) I.L.R. 1938 Mad. 315, 318.  965 It appears that in the circumstances of the case the learned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 23  

judges  presumed  that the telegram must  have  reached  the testator’s brother before the testator died.  The conclusion arrived at by the learned judges would certainly be right on the said facts.  But we cannot agree with the view in so far as  they  agreed with that expressed  by  Varadachariar  and King, JJ. Viswanatha Sastri, J., in Adiyalath Katheesumma v. Adiyalath Beechu  (1),  elaborately and  exhaustively  considered  the question that is now posed before us.  There, a member of  a tarwad  served  a  notice of his  unambiguous  intention  to separate  from  the  other  members of  the  family  on  the Karnavan  of  the  tarwad.  The  question  was  whether  the communication   of  his  intention  to  the   Karnavan   was sufficient.   The appeal first came up before  Satyanarayana Rao  and Panchapagesa Sastri JJ.  Satyanarayana Rao J.  held that   the  notice  was  not  sufficient  to  constitute   a severance, as it was not served on all the other members  of the  tarwad;  and  Panchapagesa  Sastri,J.,  held  that  the service  on the Karnavan or the manager of the joint  family was  sufficient as he was representative of the family.   As there was difference of view between the two learned judges, the  matter was placed before Viswanatha Sastri.J.  and  the learned judge agreed with Panchapagesa Sastri.J. But in  the course  of the judgment, the learned judge went further  and held that a unilateral declaration of an intention to become divided  on  the part of a member of a  joint  Hindu  Family effects severance, in status and therefore the dispatch  to, or  receipt  by,  the other members of  the  family  of  the communication  or notice announcing the intention to  divide on the part of one member of the family is not essential  or its absence fatal to a severance in status.  The conclusions of  the learned judge on the question now raised  before  us are expressed in two places and they are at pp. 543 and 549: (1)  I. L. R. 1953 Mad. 245,256. 966               "The only reasonable rule that can be  deduced               from  the texts and the several  decisions  of               the Judicial Committee is that the declaration               of  an  intention to divide on the part  of  a               member  of  the  family should  be  clear  and               unequivocal    and   should   be    indicated,               manifested,  or published in such a manner  as               is  appropriate in the circumstance,-, of  the               case.  One method, but not the only method, of               such   manifestation  or  publication  is   by               delivering  a notice containing a  declaration               of  intention to become divided to  the  other               members of the family."               At p. 549 it is stated:               "There must be some manifestation, indication,               intimation or expression of that intention  to               become divided, , so as to serve as  authentic               evidence  in case of doubt or  dispute.   What               from that manifestation, expression, or  inti-               mation  of intention should take would  depend               upon  the  circumstances of each  case,  there               being  no  fixed rule or right  formula.   The               dispatch to or receipt by the other members of               the  family  of  a  communication  or   notice               announcing the intention to divide on the part               of  one member of the family is not  essential               nor  its  absence  fatal  to  a  severance  in               status." We  agree with the learned judge in so far as he  held  that there  should be an intimation, indication or expression  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 23  

the  intention  to become divided and that  what  from  that manifestation   should   take   would   depend   upon    the circumstances of each case.  But if the learned judge  meant that  the said declaration without it being brought  to  the knowledge  of the other members of the family in one way  or other  constitutes  a  severance  in  status,  we  find   it difficult to accept it.  In our view, it is implicit in  the expression "declaration’.’ that it should be to the  967 knowledge of the person affected thereby.  An uncommunicated declaration is no better than a mere formation or harbouring of  an  intention to separate.  It becomes  effective  as  a declaration  only after its communication to the  person  or persons who would be affected thereby. It  is, therefore, clear that Hindu Law texts suggested  and Courts  evolved, by a process of reasoning as well as  by  a pragmatic approach, that such a declaration to be  effective should  reach the person or persons affected by one  process or other appropriate to a given situation. This view does not finally solve the problem.  There is  yet another  difficulty.   Granting that a declaration  will  be effective  only when it is brought to the knowledge  of  the other  members affected, three questions arise, namely,  (i) how should the intention be conveyed to the other member  or members; (ii) when it should be deemed to have been  brought to the notice of the other member or members; and (iii) when it was brought to their notice, would it be the date of  the expression of the intention or that of knowledge that  would be  crucial  to fix the date of  severance.   The  questions posed  raise difficult problems in a fast changing  society. What was adequate in a village polity when the doctrine  was conceived  and evolved can no longer meet the demands  of  a modern  society.  Difficult questions, such as the  mode  of service  and its sufficiency, whether service on  a  manager would  be enough, whether service on the major members or  a substantial  body  of  them would  suffice,  whether  notice should  go to each one of them, how to give notice to  minor members of the family, may arise for consideration.  But  we need  not  express  our opinion on the  said  questions,  as nothing  turns upon them, for in this appeal there are  only two members in the joint family and it is not suggested that Subba Rao 968 did  not have the knowledge of the terms of the  will  after the death of Chimpirayya. The  third question falls to be decided in this  appeal,  is this  : what is the date from which severance in  status  is deemed  to have taken place ?  Is it the date of  expression of intention or the date when it is brought to the knowledge of  the other members?  If it is the latter date, is it  the date  when  one  of  the members  first  acquired  the  said knowledge  or  the  date  when the  last  of  them  acquired knowledge  or  the  different dates on  which  each  of  the members of the family got knowledge of the intention so  far as  he is concerned ? If the last alternative  be  accepted, the  dividing member will be deemed to have  been  separated from each of the members on different dates.  The acceptance of  the said principle would inevitably lead  to  confusion. If the first alternative be accepted, it would be doing  lip service  to  the doctrine of knowledge, for the  member  who gets knowledge of the intention first may in no sense of the term  be  a  representative  of  the  family.   The   second alternative may put off indefinitely the date of  severance, as the whereabouts of one of the members may not be known at all  or may be known after many years.  The Hindu law  texts

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 23  

do  not  provide any solution to meet  these  contingencies. The  decided  cases also do not suggest a way out.   It  is, therefore,  open  to this Court to evolve a  reasonable  and equitable solution without doing violence to the  principles of  Hindu  law.  The doctrine of relation back  has  already been  recognised  by Hindu Law as developed  by  Courts  and applied  in that branch of the law pertaining for  adoption. There  are  two ingredients of a declaration of  a  member’s intention  to  separate.   One  is  the  expression  of  the intention  and the other is bringing that expression to  the knowledge of the person or persons affected.  When once that knowledge  is  brought home-that depends upon the  facts  of each case it relates back  969 to the date when the intention is formed and expressed.  But between  the two dates, the person expressing the  intention may  lose  his  interest  in the  family  property;  he  may withdraw  his  intention to divide; he may  die  before  his intention to divide is conveyed to the other members of  the family: with the result, his interest survives to the  other members.   A manager of a joint Hindu family may  sell  away the entire family property for debts binding on the  family. There  may be similar other instances.  If the  doctrine  of relation  back  is invoked without any  limitation  thereon, vested rights so created will be affected and settled titles may  be disturbed.  Principles of equity require and  common sense  demands that a limitation which avoids the  confusion of  titles  must  be  placed on  it.   What  would  be  more equitable  and reasonable than to suggest that the  doctrine should not affect vested rights ? By imposing such a limita- tion we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle  by analogy  subject  to  a limitation to  meet  a  contingency. Further,   the   principle  of   retroactivity,   unless   a legislative  intention  is clearly to  the  contrary,  saves vested  rights: . As the doctrine of relation back  involves retroactivity  by  parity  of reasoning,  it  cannot  affect vested  rights.   It would follow that, though the  date  of severance  is  that  of manifestation of  the  intention  to separate,  the rights accrued to others in the joint  family property between the said manifestation and the knowledge of it by the other members would be saved. Applying  the said principles to the present case,  it  will have  to  be  held  that on the  death  of  Chimpirayya  his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate  from the family, could not convey his interest  in the  family  property, as it has not been  established  that Subbarao or his 970 guardian  had  knowledge of the contents of  the  said  will before Chimpirayya died. It  is contended that the first respondent, as the  guardian of Subbarao, had knowledge of the contents of the Will  and, therefore, the Will operates on the interest of Chimpirayya. Reliance  is  placed  upon the evidence of  P.  W.  11,  one Komanduri  Singaracharyulu.  He deposed that be was  present at the time the Will was executed by Chimpiryya and that  he signed  it  as  an  identifying  witness.   In  the   cross- examination he said that at the time of the execution of the Will  the first defendant-respondent was inside  the  house. This  evidence is worthless.  The fact that she  was  inside the  house cannot in itself impute to her the  knowledge  of contents  of  the Will or even the fact that  the  Will  was registered  that  day.   D. W. 4  is  the  first  respondent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 23  

herself.   She  says in her evidence that she did  not  know whether  the  Sub-Registrar  came to register  the  Will  of Chimpirayya,  and  that she came to know of  the  Will  only after  the suit was filed.  In that state of evidence it  is not possible to hold that the first respondent, as  guardian of Subbarao, had knowledge of the contents, of the Will. In  this view, it is not necessary to consider  the  further question whether the Will contained a clear and  unambiguous declaration  of  intention on the part of  the  testator  to divide himself from the members of the joint family. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. 971