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PETITIONER: KARPAGATHACHI AND ORS.

       Vs.

RESPONDENT: NAGARATHINATHACHI

DATE OF JUDGMENT: 10/03/1965

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. SHAH, J.C.

CITATION:  1965 AIR 1752            1965 SCR  (3) 335  CITATOR INFO :  D          1974 SC 175  (11)  R          1977 SC 394  (5,6)

ACT:     Hindu Law--Partition  between  co-widows--Whether  right of   survivorship  can  be  relinquished--If  repugnant   to Transfer of Property Act, 1882 (4 of 1882) s. 6(a)--Onus.

HEADNOTE:     Two co-widows divided their husband’s property and  each entered into separate possession of her share. on the  death of  one  of  the widows her  daughter  the  respondent  took possession   of  her  mother’s  share.  The  appellant   the surviving  widow  filed  a   suit  against  the   respondent claiming  possession of that share. The Trial Court  decreed the  suit, which on appeal was set aside by the High  Court. In appeal by certificate:     HELD: (i) Under the Hindu Law the widows were  competent to  partition  the properties and  allot  separate  portions each,  and incidental to such allotment each could agree  to relinquish her right of survivorship in the portion allotted to  the other. Such an arrangement was not repugnant  to  s. 6(a) of the Transfer of Property Act, 1882. [337 C-D]. Case law referred to.     (ii) Mere partition of the estate between the two widows does  not destroy the right of survivorship of each  to  the properties allotted to the other. The party who asserts that there  was  an  arrangement by which the  widows  agreed  to relinquish  the  right of survivorship must  establish  this arrangement  b.v  clear  and  cogent evidence. [338 B].     The  respondent,  in  the instant case,  had  failed  to discharge this onus. [338 B-C].

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil  Appeal No. 998   of 1963.     Appeal from the judgment and  decree  dated  January 12, 1962  of  the Madras High Court in Appeal Suit  No.  292  of 1958.

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   A.V. Viswanatha Sastri,  V.S. Ramaswami  lyengar and  R. Thiagarajan, for the appellants.     S.V.  Gupte, Solicitor General, and R.  Ganapathy  lyer, for the respondent. The Judgment of the Court was delivered by     Bachawat J.  One Sivasubramania Pillai died in the  year 1924   leaving  him  surviving  his  mother.   two   widows, Thialaiachi    and    Karpagathachi,   and    a    daughter, Nagarathinathachi  (respondent herein) born of  Thialaiachi. The   two   widows   inherited  the   properties   left   by Sivasubramania.  in July 1927, they divided the bulk of  the properties  and  each entered into separate  possession  and enjoyment  of the properties allotted to her. The  partition is evidenced by two partition lists called partition  deeds, Exs A--I and B--45 dated July 14. 1927 and signed by both of them. Under this partition, two veils of land were set apart for the maintenance 336 of Sivasubramania’s mother, to be enjoyed’ by her during her lifetime,  and on her death, to be taken and enjoyed by  the two  widows  in  separate  portions  as  mentioned  in   the partition  lists. On August 26. 1954, Thialaiachi died,  and upon  her  death,   the respondent took  possession  of  the properties  allotted to Thialaiachi under the  partition  of July,  1927. On December 8,  1954, Karpagathachi  instituted against  the respondent the suit, out of which  this  appeal arises,  claiming  possession of the  suit  properties.  The respondent  resisted  the  suit  claiming  that  under   the partition  each widow gave up her right of  survivorship  in respect  of  the  properties  allotted  to  the  other,  and consequently on the death of Thialaiachi, the respondent  as her daughter was entitled to take her share as her heir  and to  enjoy the same during the life of Karpagathachi. By  his judgment  dated  August 18, 1958, the District  Judge,  East Thanjavur,  rejected’ the defendant’s contention,  and  held that the division between the two widows was for convenience of  enjoyment only, and decreed the suit in respect  of  the properties held by Thialaiachi under the partition of  July, 1927.   On  appeal, the Madras High Court  by  its  judgment dated  January, 12, 1962 held that under the partition  each widow  gave up her life interest in the properties  allotted to  the  other  and   consequently  Karpagathachi  was   not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit. Karpagathachi and several other  persons impleaded as party respondents in the appeal before the High Court  now  appeal under a certificate granted by  the  High Court to this court under Art. 133 of the Constitution.     Mr.  Viswanatha  Sastry  appearing  on  behalf  of   the appellants  contends that: (1) the right of survivorship  of each widow in respect of her husband’s estate is the  chance of  the  surviving widow to take the entire  estate  of  her husband on the death of the  cowidow, and in view of  s.6(a) of  the Transfer of Property Act, 1882, the widows were  not competent  to  enter  into an  arrangement  transferring  or relinquishing their right of survivorship; (2) the partition lists,  Exs. A--I and B---45 not being registered,  are  not admissible in evidence; (3) the partition between the widows was  for convenience of enjoyment only, and  the  respondent has failed to establish that each co-widow gave up her right of survivorship in respect of the properties allotted to the other. The learned’ Solicitor-General appearing on behalf of the respondent disputed these contention.        We  are of opinion that the first contention  of  Mr. Viswanatha Sastry should be rejected. Under the Hindu law as

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it  stood  in 1924. two widows  inheriting  their  husband’s properties  took together one estate as joint  tenants  with rights of survivorship and equal beneficial enjoyment.  They were entitled to enforce a partition of those properties  so that  each  could separately possess and enjoy  the  portion allotted  to her, see Bhugwan Deen Doobey v. Myna  Baee  (1) [1867] 11 M .I. A. 487 337 Gauri  Nath  Kakaji v. Gaya Kuar(1). Neither of  them  could without  the  consent  of  the  other  enforce  an  absolute partition  of  the  estate so as to  destroy  the  right  of survivorship, see Commissioner of Income-tax v. Smt.  Indira Balakrishna(2)  But by mutual consent they could enter  into any  arrangement  regarding their respective rights  in  the properties during the continuance of the widow’s estate, and could  absolutely divide the properties, so as  to  preclude the  right of survivorship of each to the portion   allotted to  the other. See Ramakkal v. Ramasami Naickan(3),  Sudalai Ammal   v.   Gomathi  Ammal(4).  Likewise,   two   daughters succeeding  ,to their father’s estate as joint tenants  with rights   of  survivorship   could  enter  into   a   similar arrangement.   See  Kailash Chandra  Chuckerbutty  v.  Kashi Chandra  Chuckerbutty(5)   Subbammal v. Lakshmana lyer  (6), Ammani Ammal v. Periasami Udayan(7). Such an arrangement was not  repugnant  to s.6(a) of the Transfer of  Property  Act, 1882. The interest of each widow in the properties inherited by  her  was property, and this property together  with  the incidental   right   of  survivorship  could   be   lawfully transferred.  Section 6(a) of the Transfer of  Property  Act prohibits  the transfer of the bare chance of the  surviving widow  taking  the  entire estate as the next  heir  of  her husband  on  the  death of the co-widow,  but  it  does  not prohibit  the transfer by the widow of her present  interest in  the  properties  inherited  by  her  together  with  the incidental right of survivorship. The widows were  competent to  partition the properties and allot separate portions  to each, and incidental to such an allotment, each could  agree to  relinquish  her  right of survivorship  in  the  portion allotted   to  the  other.  The  first  contention  of   Mr. Viswanatha Sastry must be rejected.     The second contention of Mr. Viswanatha Sastry must also be rejected. A partition may be effected orally. By an  oral partition, the two widows could adjust their diverse  rights in the entire estate, and as part of this arrangement,  each could  orally agree to relinquish her right of  survivorship to  the portion allotted to the other. In the  trial  Court, the  suit  was tried on the footing that the  partition  was oral, and that the two partition lists were merely pieces of evidence of the oral partition, and no objection was  raised with regard to their admissibility in evidence. In the  High Court,  the appellants raised the contention for  the  first time  that  the  two partition lists  were  required  to  be registered.  The point could not be decided without  further investigation   into   questions  of  fact,   and   in   the circumstances,  the High Court rightly ruled that  this  new contention  could  not  be  raised for  the  first  time  in appeal. We   (1) [1928] L.R. 55 I.A. 299. [1960] 3 S. C.R. 513, 517.   (2) [1899] I.L.R. 22 Mad. 522.   (3) [1912] 23 M.L.J. 355.   (4) [1897] I.L.R. 24 Cal. 339.   (5) [1914] 26 M.L,J. 479. [1923] 45 M.L.J. 1. 338 think  that the appellants ought not to be allowed to  raise this new contention.

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   We  think  that the third contention of  Mr.  Viswanatha Sastry  is sound’ and should be accepted. Mere partition  of the estate between the two widows does not destroy the right of  survivorship of each to the properties allotted  to  the other.  The party who asserts that there was an  arrangement by  which  the  widows agreed to  relinquish  the  right  of survivorship  must establish this arrangement by  clear  and cogent evidence. The respondent has failed to discharge this onus.  It is common case that the partition is evidenced  by Exs. A--1 and B...45. Exhibit B--45 is the list showing  the properties allotted to Thialaiachi. The relevant portion  of Ex. B....45 reads:--                   "In   accordance  with  the   chit   cast,               Theiyalai Achi. wife of Sivasubramania Pillai,               residing  at Karuppur, shall take  the  nanja,               punja,   house   and   ground,    cattle-shed,               cattle,  pathway for men, cattle and cart  and               shed   where  dried  dung  cakes  are   stored               mentioned  in  the  list  and  shall  pay  the               Government  kist for the aforesaid  properties               from the current fasli 1337 and enjoy them."  Exhibit   A--1   showing  the   properties    allotted   to Karpagathachi contains similar words. Now the two lists show that  each  widow  is to "take  and  enjoy"  the  properties allotted to her. The corresponding Tamil words are "adainthu anuhavithu."  These  words  do not either  expressly  or  by necessary  intendment  exclude the right of survivorship  of the   other  widow.  The  Tamil  words   "Sarva   Swantantra Badyamayum"  and  "Santhathi pravesamayum" and  other  words indicating  relinquishment of the right of survivorship  are conspicuous  by  their absence. The words used  in  the  two partition lists are wholly insufficient to show that the two widows  relinquished their right of survivorship  inter  se. The fact that two separate partition lists were drawn up and each was signed by the two widows does not carry the  matter any further. The two partition lists show that the two velis of   land  kept  separately  for  the  maintenance  of   the mother-in-taw were to be divided by metes and bounds on  her death between the two widows. The division of the two  velis on  the death of the mother-in-law was agreed upon to  avoid future  disputes. The fact that Thialaiachi had  a  daughter and  was older than Karpagathachi by 20 years does not  show that  Karpagathachi  mush  have  agreed  that  Thialaiachi’s daughter should enjoy the properties allotted to Thialaiachi after her death. After the partition, the pattas in  respect of all the lands continued to be in the joint names of  both the widows.  If there was an absolute partition between  the two  widows. it is not explained why there was  no  separate mutation  in the name of each widow in respect of the  lands allotted to her.     The deeds executed by Thialaiachi. Exs. B--3, B-4. B- 6. B---7  and B--8 to B---43 recite the partition, but they  do not  use  words  indicating  that  there  was  an   absolute partition.  The sale 339 deeds, Exs. A--3, A--4, and A--6 executed by both the widows are in respect of undivided properties and throw no light on the  question at issue. The evidence on the record does  not show clearly whether the sale deed’, Ex. B--44, executed  by both the widows relates to undivided properties, or  whether it   relates  to  properties  as  separately   allotted   to Thialaiachi.  From time to time, Thialaiachi executed  three wills, Exs. B--I, B--2 and  A--5 giving to the legatees  and particularly  the respondent certain  properties  absolutely with  full powers of alienation. The first two  wills,  Exs.

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B--I  and B--2, refer separately to  Thialaiachi’s  separate properties  and  to  the  properties  obtained  by  her   on partition.  The  recitals in the two wills do  not  indicate that  Thialaiachi  obtained  her  husband’s  properties   on partition  with absolute rights. The third will,  Ex.  A--5, does  not purport to dispose of specifically the  properties obtained  by  her  on partition.  Karpagathachi   knew  that Thialaiachi   had  executed the wills, but it is  not  shown that  she  knew of the contents of the wills. By  Ex.  A--2, both Thialaiachi and Karpagathachi made a free gift of  some of the properties allotted to Thialaiachi. D.W. 1 is  unable to  explain  why Thialaiachi joined in this  deed.  By  sale deed,  Ex.  B--5, Thialaiachi sold absolutely  some  of  the properties  allotted  to  her  and  a  notice,  Ex.   A--22, regarding the proposed transfer of the patta in the name  of the vendee was served upon Karpagathachi. It is not clear if the patta was actualy transferred in the name of the vendee. The explanation of Karpagathachi that she protested  against the  transfer and ultimately received’ one half of the  sale price has not been believed. But assuming that Karpagathachi did  not  object to the transfer, this  single  circumstance does not establish that at the time of the partition, he had agreed to give up her right of survivorship in respect of he properties allotted to Thialaiachi.     Karpagathachi (P.W. 1) denied that there was an absolute partition.   She  was  not  shaken   in   cross-examination. Nataraja   Pillai P.W. 2) said that there was no  talk  that each should take the properties absolutely and it was agreed that  each  would enjoy separately. We find nothing  in  the evidence  of  P.W.  2 to show that  the  widows  agreed   to partition  the  properties  absolutely  so as to destroy the right of survivorship.Manickam Pillai (D.W. 1) said that  at the  time of the partition, Thialaiachi said that she had  a daughter and if what was allotted for her share was given to her  absolutely  she  would  agree  to  the  partition   and Karpagathachi  also  wanted  to have  absolute  rights.  The District  Judge  rightly rejected evidence of  D.W.  1.  The partition lists were drawn up after consulting lawyers. D.W. 1  is  unable  to  explain  why  words  indicating  absolute partition  were not used in the partition lists. D.W. 1  had been     in management of the properties of the  respondent, yet  he falsely denied this fact. He had  intimate  dealings with  Thialaiachi  and  the  respondent.  On  a   meticulous examination  of  the  oral  and  documentary  evidence,  the learned  District Judge rejected the respondent’s case  that the widows had orally agreed to relinquish their 3 SCI---9 340 right  of  survivorship.  We  think  that  this  finding  is correct,  and the High Court was in error in reversing  this finding.     In  the  result, the appeal is allowed, the  decree  and judgment passed by the High Court are set aside and those of the  trial  Judge restored’. In all  the  circumstances,  we direct  that the parties  will pay and bear their own  costs throughout, in this Court and also in the Courts below. Appeal allowed 341