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PETITIONER: VALLIAMMAI   ACHI

       Vs.

RESPONDENT: NAGAPPA CHETTIAR & ORS.

DATE OF JUDGMENT: 23/01/1967

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. SHELAT, J.M.

CITATION:  1967 AIR 1153            1967 SCR  (2) 448

ACT: Hindu  Law-Joint family property bequeathed by  will--Effect on character of property. Indian Succession Act, (39 of 1925) s. 180-Scope of election under.

HEADNOTE: A Hindu died after making a will in respect of certain joint family  properties  and appointed his son as  the  executor. The  son  obtained pro. bate of the will, provided  for  the legacies  indicated therein and came into possession of  the residue  of  the  property.   Thereafter,  he  adopted   the plaintiff.   The  adoptive  father  died  after  the   Hindu Succession  Act came into force and the plaintiff filed  the suit claiming two-thirds share of the properties left by his father.   The defendants (viz., the widow and mother Of  the plaintiffs-adoptive  father) contended that the  conduct  of the plaintiff’s adoptive father-in obtaining the probate  of the will and carrying out its terms amounted to an  election and  therefore  the  father became  absolute  owner  of  the residue of the properties bequeathed to him by the will, and as  the  election  to take under the will,  would  bind  the plaintiff  also he could not claim half the property on  the ground that it was joint family property of himself and  his father.  The trial Court decreed the suit, which in  -appeal was  upheld by the High Court.  The defendants  appealed  to this Court. HELD:The appeal must be dismissed. The character of the property did not change because of  the will  and  it would still be joint family  property  in  the hands of the plaintiff’s father as far as his male issue was concerned.  Further, as soon as the plaintiff was adopted he acquired interest in the joint family property in the  hands of  his  adoptive  father  and  this  interest  of  his  was independent  of that of his father.  In  such  circumstances even  if his father could be said to have made  an  election there  could be no question of the plaintiff being bound  by that  election, for he was not claiming through his  father. [453 C, E-F] Election  under s. 180 of the Indian Succession  Act,  would only  arise where the legate derives some benefit  from  the

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will to which he would not be entitled except for the  will. In  such a case he has to elect whether to confirm the  will or  dissent from it.  But where there is no question of  the legate deriving any benefit from the will to which he  would not be entitled except for the will the fact at he  confirms the  will  and  accepts what the  will  provides  would  not account to election, for he would have in any case got  what the  will  gave him.  Thus election only  arises  where  the legate  has to choose between his own property  which  might have  been testator and which the testator has given to  the legate by the will. [451 H-452 C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 806 of 1964. Appeal  by special leave from the judgment and decree  dated July 13, 1962, of the Madras High Court in Appeal No. 347 of 1958.                             449 C.   B. Agarwala, B. Dutta, T. S. Krishnaswamy Iyenr, P.  L. Meyyappan and J. B. Dadachanji, for the appellant. A.   K. Sen and R. Ganapathji Iyer, for respondent.  No. 1. K.   R. Chaudhuri and K. Rajendra Chaudhury, for respondent No. 2. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal by special leave against  the judgment of the Madras High Court.  The facts are not now in dispute and may be briefly narrated.  A suit was brought  by Nagappa Chettiar, respondent No. 1 (hereinafter referred  to as  the  respondent) against Villiammi  Achi  appellant  and Nachiammai  Achi  now  dead and  represented  by  her  legal representative.  The respondent claimed two-thirds share  of the  properties left by his father, Pallaniappa  and  prayed for  a  decree for separate possession of that  share  after partition.  The facts on which this claim was based are  not now in dispute and are these.  The respondent is the adopted son  of  Pallaniappa.  having been  adopted  in  1941.   The appellant  is the widow of Pallaniappa and  Nachiammai  Achi was  Pallaniappa’s mother.  Pallaniappa’s father also  named Nagappa  had considerable properties.  This Nagappa  made  a will  on  June 10, 1934 by which after making  certain  dis- positions,  in favour of certain persons including  his  own wife  he  gave  the residue of his  property  absolutely  to Pallaniappa  and appointed him as the executor of the  will. In one place the will stated that all the property except  a small  part was the exclusive and self-acquired property  of the testator while at the end the testator said that he  had made the will with the full consent of his son Pallaniappa.. After  Nagappa’s  death in July  1934  Pallaniappa  obtained probate of the will and after providing for the legacies  to others  as  indicated therein came into  possession  of  the residue of the property.  In 1941 the respondent was adopted by Pallaniappa. In  the trial court there was a dispute between the  parties whether  Pallaniappa and his father were members of a  joint Hindu  family and whether properties left  by  Pallaniappa’s father were the joint family properties of both.  But it has been  found  that all the properties left  by  Pallaniappa’s father  were joint family properties of Pallaniappa and  his father  which Pallaniappa could acquire by  survivorship  on his  father’s  death.  This finding was upheld by  the  High Court and is not now in dispute.  We have to proceed on  the basis that even though Pallaniappa’s father said in the will that  the  properties, except a small part, were  his  self-

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acquired  properties,. in fact all the properties  mentioned in  the  will  of Pallaniappa’s, father  were  joint  family properties of Pallaniappa and his father. The  case  of  the  appellant  was  that  even  though   the properties  left by Pallaniappa’s father were  joint  family properties which MISup.CI/67-15 450 Pallaniappa  could acquire by survivorship, the  conduct  of Pallaniappa  in obtaining probate of the will  and  carrying out   its   terms  amounted  to  election   and   thereafter Pallaniappa  became  absolute owner of the  residue  of  the properties  bequeathed to him by the will.  The  consequence of this was that when Pallaniappa adopted the respondent  in 1941  long  after he had become -the absolute owner  of  the properties,  the  respondent  acquired no  interest  in  the properties  left  by  his  grand-father  by  virtue  of  the adoption.  Pallaniappa died. on September 16, 1956 after the Hindu Succession Act, (No. 30 of 1956) came into force.   As there  was no joint family property of Pallaniappa  and  the respondent   at  the  time  of  Pallaniappa’s  ,death,   the respondent  could not claim half the property on the  ground that   it   was  joint  family  property  of   himself   and Pallaniappa,  as  Pallaniappa’s election to take  under  the will of his father would bind the respondent also.  Reliance in  this  connection  was placed ,on S. 180  of  the  Indian Succession Act, (No. 39 of 1925) also. The reply on behalf of the respondent to this contention was two-fold.   In the first place, it was urged that there  was no question of election even by Pallaniappa in this case and s. 180 of the Indian Succession Act would not apply.  It was further  urged  that  even  assuming  that  there  could  be election by Pallaniappa the respondent would not be bound by that  election as the property left by his  grandfather  was joint  family  property  and the  respondent  would  acquire interest therein as soon ;is he was adopted by  Pallaniappa, even though Pallaniappa might have been the sole co-parcener for sometime i. e. between 1934 and 1941.  This interest  of the respondent in the joint family property was  independent of his father Pallaniappa and even though Pallaniappa  might be  bound  by  any  election that he  might  have  made  the respondent  would not be so bound and would be  entitled  to treat the property as joint family property in the hands of, Pallaniappa  in  which he would acquire  interest  on  being adopted.  In the second place the respondent’s case was that in any case after his adoption Pallaniappa threw the ,entire property  into the family hotch-pot and therefore it  became joint family property by blending. Two questions therefore arose for consideration in this case namely--(i) whether there was election by Pallaniappa and if so  whether  the respondent would be bound by it,  and  (ii) whether  Pallaniappa  threw  the entire  property  into  the family  hotch-pot  after  adoption  of  the  respondent  and therefore it became joint family property in any case.   The trial  court accepted the case put forward on behalf of  the respondent and decreed the suit passing a preliminary decree giving two-thirds share to the respondent and one-sixth each to the appellant,, and the mother of Pallaniappa. The  appellant  then appealed to the High Court.   The  High Court  dismissed the appeal.  On the question  of  election, the                             451 High  Court  held that as Pallaniappa and  his  father  were members  of a joint Hindu family and as the entire  property left  by  Pallanippa’s  father was  joint  family  property,

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Pallaniappa had interest in the residue as a survivor and in consequence there was no question of election by Pallaniappa for  all the property he got by will would have come to  him by survivorship.  In such a case there could be no  question of  election,  for  Pallaniappa had title  to  the  property irrespective of the will.  The High Court also held that  in any  case  the claim of the respondent as a  member  of  the joint family was not under his father but independent of him and  therefore the respondent would not be bound-,  even  if Pallaniappa  were held to have made an election.   The  High Court also found in favour of the respondent on the question whether the property was thrown into family hotch-pot  after the  adoption of the respondent and in the result  dismissed the appeal. The  High  Court having refused to grant  a  certificate  to appeal to this Court, the appellant applied for and obtained special  leave from this Court; and that is how  the  matter has come before us. The same two questions, as indicated above, arise for consi- deration  in  this  appeal.  We  shall  first  consider  the question of election in the background of the fact that  the entire  property  left  by Pallaniappa’s  father  was  joint family   property  of  himself  and  Pallaniappa  and   that Pallaniappa  had interest in that property as a member of  a joint  Hindu family.  Section 180 of the  Indian  Succession Act  which enunciates the doctrine of election as  known  to English law for this country is in these terms :               "Where  a  person, by his  will  professes  to               dispose of something which he has no right  to               dispose  of,  the  person to  whom  the  thing               belongs  shall  elect either to  confirm  such               disposition or to dissent from it, and, in the               latter  case,  he shall give up  any  benefits               which  may have been provided for him  by  the               will." It  is  urged on behalf of the appellant that s.  180  would apply  to  the facts of the present case  for  the  property willed  by Pallaniappa’s father was not his which  he  could will  away  as  it  was  joint  family  property  in   which Pallaniappa  who  was the residuary legatee had  also  equal interest.   Therefore Pallaniappa had either to confirm  the disposition or dissent from it, and his conduct showed  that he  had confirmed it for he took out probate.  Therefore  it must  be held that after probate was taken out  the  residue became  the  absolute property of Pallaniappa and  lost  its character as joint Hindu family property. Now it is clear from s. 180 that after the legatee elects to dissent from the will he must give up any benefits  provided for him by the will.  This shows that election under s.  180 would only arise 452 where  the  legatee derives some benefit from  the  will  to which he would not be entitled except for the will.  In such a  case  he  has to elect whether to  confirm  the  will  or dissent  from  it.  But where there is no  question  of  the legatee deriving any benefit from the will to which he would not  be  entitled  except for the will,  the  fact  that  he confirms  the will and accepts what the will provides  would not  amount to election, for he would have in any  case  got what the will gave him.  Thus election only arises where the legatee  has to choose between his own property which  might have  been  willed away to somebody else  and  the  property which  belongs  to the testator and which the  testator  has given to the legatee by the will.  The matter is brought out in Halsbury’s Laws of England, Third Edition, Vol. 14, at p.

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588, para 1091 in the following words               "Where a testator by his will purports to give               property  to A which in fact belongs to B  and               at  the  same  time out of  his  own  property               confers,  benefits  on  B ....  in  such  cir-               cumstances  B is not allowed to take the  full               benefit  given  him by the will unless  he  is               prepared to carry into effect the whole of the               testator’s  dispositions.  He  is  accordingly               put  to his election to take either under  the               instrument  or  against it.  If he  elects  to               take  under  the will he is bound and  may  be               ordered to convoy his own property to A; if he               elects  to take against the will and  to  keep               his own property, and so disappoints A,  then,               he  cannot  take any benefits under  the  will               without compensating A out of such benefits to               the  extent  of the value of the  property  of               which A is disappointed." Following this  principle  the High Court held that  as  the property which the  will  gave to Pallaniappa would  in  any case have come to him as a member of the joint family, there was  no  question of election even by  Pallaniappa  in  this case.  This view appears to us to be correct. But  even assuming that there was some kind of  election  by Pallaniappa  we  cannot see how the nature of  the  property left  by  Pallaniappa’s father would change  merely  because Pallaniappa’s   father  made  a  will  giving  the   residue absolutely  to Pallaniappa and Pallaniappa took out  probate of  the  will.   The property being  joint  family  property Pallaniappa’s  father was not entitled to will it  away  and his making a will would make no difference to the nature  of the property when it came into the hands of Pallaniappa.   A father  cannot  turn  joint family  property  into  absolute property of his son by merely making a will, thus  depriving sons of the son who might be born thereafter of their  right in  the joint family property.  It is well settled that  the share  which a co-sharer obtains on partition  of  ancestral property  is ancestral property as regards his male  issues. They take an interest in it by birth whether 453 they  are in existence at the time of partition or are  born subsequently  : [see Hindu Law by Mulla, Thirteenth  Edition p. 249, para 223 (2) (4)].  If that is so and the  character of  the ancestral property does not change so far  as  -sons are concerned even after partition, we fail to see how  that character can change merely because the father makes a  will by  which he gives the residue of the joint family  property (after  making certain bequests) to the son.  A father in  a Mitakshara  family has a very limited right to make  a  will and  Pallaniappa’s father could not make the will  disposing of  the  entire joint family property, though  he  gave  the residue to his son.  We are therefore of opinion,that merely because  Pallanappa’s father made the will  and  Pallaniappa probably  as a dutiful son took out probate and carried  out the  wishes of his father, the nature of the property  could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned. Further it is equally well settled that under the Mitakshara law each son upon his birth takes an interest equal to  that of  his father in ancestral property, whether it be  movable or  immovable.  It is very important to note that the  right which  the son takes at his birth in the ancestral  property is  wholly  independent of his father.  He  does  not  claim through  the father...." (see Mulla’s Hindu Law,  Thirteenth

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Edition,  p. 251, para 224).  It follows therefore that  the character  of  the  property did not  change  in  this  case because  of  the will of Pallaniappa’s father and  it  would still  be joint family property in the hands of  Pallaniappa so far as his male issue was concerned.  Further as soon  as the respondent was adopted he acquired interest in the joint family  property  in  the  hands  of  Pallaniappa  and  this interest  of his was independent of his father  Pallaniappa. In  such circumstances even if Pallaniappa could be said  to have  made  an  election there can be  no  question  of  the respondent  being  bound  by that election, for  he  is  not claiming through his father. In  this view of the matter, it is unnecessary  to  consider the  question whether Pallaniappa, after  the,  respondent’s adoption, threw the property into. the family hotch-pot. The  appeal  therefore fails and is  hereby  dismissed  with costs. Y.P.                Appeals dismissed. Sup.CI/67-16 454