Full Judgment Text
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PETITIONER:
KRISHNABAI DESHMUKH
Vs.
RESPONDENT:
TULJERAMARAO NAMBIAR & ORS.
DATE OF JUDGMENT31/07/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
DESAI, D.A.
CITATION:
1979 AIR 1880 1979 SCC (4) 60
CITATOR INFO :
E 1980 SC1173 (10)
ACT:
Interpretation-Deed of Settlement-Intention-How could
be gathered.
Evidence Act, s. 92-When applicable.
Hindu Law-Family partition-Intimation to live
separately-Whether should be explicit.
HEADNOTE:
The grandfather and great-grand-father of the
respondents and the father of the appellant were brothers.
By a registered deed (Ext. 39) the elder brother purportedly
gave the younger brother (appellant’s father) some lands for
separate living and maintenance of himself, and his male
lineal descendants for ever. The lands in dispute were a
part of the lands covered by the deed.
In their suit, the plaintiffs alleged that the suit
lands were part of Desgat Watan estate which, by virtue of
an immemorial family and territorial custom, was impartible
and the junior members were given lands only for their
maintenance, and that till his death, the appellant’s father
continued, to be an undivided member of the joint family
consisting of himself and the plaintiffs, and that on the
death of the appellant’s father the lands should go to them.
The trial court held: (1) that the impartibility of the
estate and the rule of primogeniture had not been proved;
(2) that there was severance of the joint family in 1902
since when the brothers were living separately; (3) that on
the abolition of Watans by Bombay Act 60 of 1950, the suit
lands which originally were Watan lands, were re-granted in
favour of the appellant’s father and that the plaintiffs
tacitly assented to the regrant of the lands exclusively in
his favour.
On appeal, the High Court affirmed the view of the
trial court that the estate was not impartible and that the
onus of proving partition was on the defendant (appellant
herein). It was held that Ext. 39 did not establish that the
brothers were divided in 1902 and that the suit lands were
allotted to the appellant’s father; that on the erroneous
but honest belief that Desgat lands were impartible, the
elder brother granted the lands to his brother and his
descendants in the male line in lieu of their maintenance
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and that the younger brother having died without male issue,
the tenure came to an end whereupon the plaintiffs who were
the surviving male members of the family, were entitled to
resume the lands. The High Court remitted the matter to the
trial court with certain directions.
In appeal to this Court, the appellant contended: (i)
that her father prior to the execution of Ext. 39, had
clearly intimated to his brother his intention to divide the
estate and to live separately after division, resulted in a
severance of the joint family status, and that such
severance was evident from the recitals in Ext. 39 and the
subsequent conduct of the members of the erstwhile family.
162
Since the appellant’s father after such division was
holding, the suit lands as his separate property, the same
were inherited by the appellant to the exclusion of the
plaintiffs. (ii) Since the regrant of the suit lands to the
appellant’s father created new rights exclusively in his
favour, the regrant did not enure for the benefit of the
plaintiffs.
Allowing the appeal and dismissing the plaintiff’s suit
^
HELD: 1. Unity of ownership and commonsality of
enjoyment are the essential attributes of an undivided Hindu
family of Mitakshra concept. So long as the family remains
undivided no member can predicate a definite share to
himself. Cesser of this unity and commonsality means cesser
or severance of the joint family status, which in Hindu Law
amounts to partition, irrespective of whether it is
accompanied or followed by a division of the properties by
metes and bounds. Disruption of joint status covers both
division of right and division of property. Division of
joint status may be brought about by any adult member of the
joint family by intimating the others his intention to
separate and enjoy his share in the family property in
severalty. Such intimation may be an explicit declaration
(written or oral) or manifested by conduct of the members of
the family. [170A-B]
(i) In the instant case, Ext. 39 speaks of a division
of the joint family status and separation of interests. The
trial judge translated the term "Vibhaktarahave" in Marathi,
as connoting division of status. But the High Court did not
agree with the translation made by the trial judge, and
preferred to rely on the translation by the High Court
translator. Except for the English translation of the word
"Vibhaktarahave" there is no substantial difference between
the two translations. [171 A-B]
The word "Vibhaktarahave" is a compound of two words
viz., "Vibhakta" and "Rahave". "Vibhakta" appears to have
its roots in the Sanskrit word "Vibhaga". "In the Mitakshra,
Vijnanesvara, defines the word ’Vibhaga’, which is usually
rendered into English by the word ’partition’ as the
adjustment of diverse rights regarding the whole by
distributing them in particular portions of the aggregate".
"Rahave" means "living". Understood in its etymological
sense the word "Vibhaktarahave" means living separately
after division.[172H]
(ii) None of the four features which, according to the
High Court, militate against the literal interpretation of
the word "Vibhaktarahave", viz., that the deed was one for
maintenance, that it was executed by the elder brother, that
the lands were given to the appellant’s father and his
descendants in the male line and that the appellant’s father
would not have remained contended with only a small portion
instead of claiming entire half-share detracts from the
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conclusion that in substance and reality the document
evidence a division of joint family status as a result of an
intimation by the appellant’s father to his brother of his
intention to live separately after division. [173D]
2. Section 92 of the Evidence Act prohibits only the
varying of terms of a document, not the memorandum or
recitals of facts, bereft of dispositive terms, particularly
when the correctness of the whole or any part of the recital
is in question. [174E]
163
In the instant case the preliminary recital does not
fall under the dispositive or operative portion of the
document. The bar under s. 92 against the admissibility of
extrinsic evidence for the purposes of showing that the
insertion of the words ’for your maintenance’ in the recital
is wrong, is not attracted. [174G]
3. (a) When there is a dispute in regard to the true
character of a writing evidence de hors the document can be
led to show that the writing was not the real nature of the
transaction but was only illusory which cloaked something
else and that the apparent state of affairs was not the real
state of affairs. [174H]
Chandi Prasad Singh v. Piari Bidi, CA No. 75 of 1964,
decided on 16-3-1966, Bhagwan Dayal v. Reoti Devi, [1962] 3
SCR 440; referred to.
(b) The preliminary recital in Ext. 39 raises an
inference that sometime prior to the date of the deed the
younger brother had clearly intimated to his coparcener of
his intention to sever the joint family status and to enjoy
the joint family property in severalty. Disruption of the
joint family status ensued. From that date onwards the
brothers ceased to be coparceners. That is, at the time of
the execution of the deed, joint family status did not
exist. There is no evidence that after the severance of the
joint family status there was a re-union. [175 E-F]
(c) It cannot be said that the preliminary recital
furnished little or no evidence that the younger brother
intimated in clear terms his intention to sever the joint
family status. The document had been let in evidence more
than 70 years after its execution. All those who might have
given evidence were dead. In such a situation it is
permissible to draw reasonable inferences to fill the gap of
details obliterated by time. [175H; 176A]
Chintamanibhatla Vankat Reddy v. Rani of Wadhawan; 47
I.A. 6 at p. 10; Sree Sree Iswar Gopal Jien Thakur v.
Pratapmal Begaria, [1951] SCR 332; referred to.
(d) Once it is found that the division of joint status
preceded the execution of the deed, the elder brother had no
power to impose a condition that the land was being given to
his younger brother and male lineal descendants for their
maintenance. [176 E-F]
(e) The expression ’Potgi’ (maintenance) or
’Nirwahkrit’ used in the deed could not be construed as
conferring an estate with restricted rights of ownership to
the younger brother and his descendants. The deed evidences
a permanent transfer of land to be enjoyed from generation
to generation. Moreover the younger brother remained in full
ownership of the land till his death. After the abolition of
Watans he alone applied for re-grant of this land in his
favour. The plaintiffs were aware of this position. [177A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 54 of
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1969.
From the Judgment and Order dated 23-10-1968 of the
Mysore High Court in R.F.A. No. 25/63.
B. D. Dal, S. Bhandare, A. N. Karkhanis and Miss M.
Palival for the Appellant.
V. S. Desai and N. Nettar for the Respondent.
164
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by the defendant, on
certificate, is directed against a judgment, dated October
23, 1968, whereby in First Appeal, the High Court of Mysore
set aside the judgment and decree passed by the joint Civil
Judge, Senior Division, Belgaum.
The pedigree of the family given below will be helpful
in understanding the facts leading to this appeal:
Ravalojirao
(died before 1900)
|
-------------------------------------------
| |
Narayanarao Ramachandrarao
(died in 1924) (died on 20-1-1955)
| |
Tuljeramarao Krishnabai
(died in 1944) (Defendant-appellant)
| |
-------------------------------------------
| |
Appasaheb Nanasaheb
(Pltf.1.) (Pltf.2.)
Sou. Vasundhararaje (Pltf. 3.)
|
------------------------------------------------------------
| | | | | |
Ashok Kumar Pushpendra Virendra Indrajit Ravalogirao |
(Pltf.3) Singh Singh Singh (Pltf.9) |
(pltf.6) (pltf.7) (pltf.9) Narayanarao
(Pltf.10)
By a registered document, dated July 25, 1902 (Ex. 39),
executed by Narayanarao, six Desgat lands situated in
villages Nanandi, Umarani and Nandikurli totalling about 120
acres, were received by Ramachandrarao, for separate living
and maintenance of himself and his male lineal descendants.
Out of the lands covered by the said deed, three lands
comprised in Survey Nos. 114 (26 acres-30 gunthas), 115 (9
acres-38 gunthas) and 116 (26 acres-34 gunthas), totalling
about 63 acres and 22 gunthas, situate in the area of
village Umarani, Taluka Chikodi, are the subject-matter of
the suit, out of which this appeal has arisen.
The respondents herein, who are the grand-sons and
great grandsons of Narayanarao, on July 24, 1960, instituted
Suit No. 26/60 in the Court of Civil Judge, Belgaum against
Smt. Krishnabai, appellant, for possession of the said lands
and for recovery of past and future mesne profits, with
these allegations: (i) that the suit lands were Desgat Watan
lands and were part of the Desgat Watan estate of Nanandi,
(ii) that by virtue of an ancient and immemorial family and
territorial custom, the Desgat estate of Nanandi was
impartible and descended from generation to generation to
the seniormost member by the rule of primogeniture, while
the junior members of the family were only given some lands
for their maintenance by the holder of the Desgat for the
time being; (iii) that till his death,
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the appellant’s father continued to be an undivided member
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of the Joint family consisting of himself and the
plaintiffs; and (iv) that on July 31, 1956, a partition by
metes and bounds has taken place between the plaintiffs
inter se under a partition deed.
The suit was resisted by the defendant-appellant. She
denied the alleged ancient, family and territorial custom of
primogeniture. She denied that the property formed part of
the Desgat Watan estate of Nanandi. She further denied that
her father, Ramachandrarao, came into possession of the suit
land for his maintenance. She further pleaded that
Ramachandrarao and his brother Narayanarao had separated
during their life-time and the suit lands and some other
lands were given to Ramachandrarao in the partition between
the two brothers towards a part of his share, and it was
agreed that the share of Ramchandrarao in other family
properties would be separated and settled at some future
convenient time. She further stated that since 1902,
Ramachandrarao was in separate possession and enjoyment of
the suit lands till his death on January 20, 1955, and that
at the time of his death he was not an undivided member of
the joint family of himself and the plaintiffs. She further
pleaded that on her father’s death she succeeded to the suit
lands, which were his separate property. She further relied
on the Bombay Pargana and Kulkarni Wantans (Abolition) Act,
1950 (Bombay Act No. 60 of 1950), (for short, called the
Act), and the re-grant of the land made in favour of her
father, under that Act.
The learned trial judge by his judgment, dated
September 29, 1962, dismissed the respondents’ suit with
these findings:
(a) that the alleged custom of impartibility and
devolution of property by the rule of primogeniture had not
been proved;
(b) that there was a severance of the joint family
consisting of the two brothers, in 1902, when they had
agreed to separate, that since then for about 53 years till
his death in 1955, Ramachandrarao was living separately and
enjoying the suit land as his separate property;
(c) that the suit lands were originally Watan lands,
but they were not so at the date of the suit because the
Bombay Act 60 of 1950, which came into force on May 1, 1951,
had abolished Watans and thereafter the suit lands were, on
the application of its holder, Ramachandrarao, regranted in
his favour; that the plaintiffs were aware of
Ramachandrarao’s application for the regrant and they had
tacitly assented to the regrant in his favour.
166
Aggrieved, the plaintiffs preferred an appeal in the
High Court of Mysore. The High Court affirmed the finding of
the trial court, that the custom pleaded by the plaintiffs
with regard to the impartibility of the property had not
been established. It observed that "the onus of proving
partition is on the defendant, "but the only evidence in
support of her case that Ramachandrarao was divided, is
Exhibit No. 39". The High Court construed the deed (Ex. 39)
with the aid of its translations into English, one made by
the trial judge and the other by the High Court Translator.
It then took note of these features in support of the
’theory of partition’:
"(a) Permanency of the arrangement. The deed
provides that Ramachandrarao and his descendants
in the male line shall enjoy the property from
generation to generation without interference from
the grantor.
(b) Cesser of commonsality. The deed says
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that Ramachandrarao desired to live separately and
therefore the lands were granted to him. The
evidence is that Ramachandrarao lived separate
from 1902. There is no evidence to the contrary."
It then listed these features to negative the
’theory of partition’:
"(a) The nomenclature of the deed. It is
styled as a deed of maintenance.
(b) It was executed by one of the parties
only. If it was intended to be a partition deed it
would have been executed by both the parties each
relinquishing his rights in the properties not
allotted to him.
(c) The deed says that the lands were given
to the grantee and his descendants in the male
line for maintenance only and they should enjoy
the lands continuously.
(d) The total extent of the Desgat lands was
over eight thousand acres; if partition was
intended, Ramachandrarao who was entitled to a
one-half share would not have been contented with
90 acres valued at Rs. 3,400/-."
After cataloguing these pros and cons the High Court
concluded:
"In our judgment, Exhibit 39 considered along with
the circumstances in which it was executed, does not
establish the defendant’s case that Ramachandrarao was
divided from Narayanarao in 1902 and that the suit
lands, among others, were allotted to Ramachandrarao’s
share. We are of the view that on the erroneous but
honest belief that Des-
167
gat was an impartible estate, Narayanarao granted the
lands to Ramachandrarao and his descendants in the male
line in lieu of their maintenance. When Ramachandrarao
died without male issue, the interest granted ceased or
the tenure came to an end. The plaintiffs who are the
surviving members of the family are entitled to resume
the lands."
Although no such plea was taken by the plaintiffs in
the plaint, the High Court held that in view of Section 90
of the Indian Trust Act, the regrant made, after the
abolition of Watans, under the Act in favour of
Ramachandrarao must ensure for the benefit of the family of
the Watandars including the plaintiffs, because
Ramachandrarao at the time of his death was holding the suit
land as an undivided member of the joint family, for his own
benefit and that of the other members of the undivided
family.
Since there was no evidence as to the occupancy price
paid by Ramachandrarao to obtain the regrant, the High
Court, after allowing the appeal and setting aside the
decree of the Trial Court, remanded the matter to the court
below, with a direction that it should ascertain the amount
of occupancy price paid by Ramachandrarao, and then pass a
decree for possession in favour of the plaintiffs subject to
the repayment of the said amount.
Hence this appeal by the defendant on the basis of a
certificate granted by the High Court under Article
133(1)(e) and (c) of the Constitution.
Shri B. A. Bal, learned counsel for the appellant, has,
in the course of his arguments, sought to make out two main
points:
1. (a) Sometime prior to the execution of the deed.
(Ex. 39) dated July 25, 1902, there was a severance of the
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joint Hindu family as a result of an intimation by
Ramachandrarao of his intention to separate and
Narayanarao’s acceptance of the same. Such severance can he
clearly inferred from:
(i) the recitals in the deed (Ex. 39), the permanent
allocation of the suit land along with some other land, to
Ramachandrarao and his descendants, and (ii) the subsequent
conduct of the members of the erstwhile joint family.
(b) Since the deed (Ex. 39) (it is argued) is more than
75 years old and Narayanarao, Ramachandrarao and others who
might have given evidence with regard to the circumstances
resulting in this transaction are all deed and gone, the
recitals, in the deed coupled with the subsequent conduct of
the parties, and supplemented by reasonable inferences, were
more than sufficient to discharge the initial
168
onus, if any, on the defendant to show severance of the
joint family since 1902 or thereabout and the same continued
till Ramachandrarao’s death in 1955. Reference in this
connection has been made to Bhagwan Dayal v. Mst. Reoti
Devi.(1)
(c) Since at the time of his death in 1955,
Ramachandrarao was not a member of an undivided Hindu family
and the suit land was his separate property, his daughter
the defendant would, even according to traditional Hindu
Law, inherit his estate to the exclusion of the plaintiff-
collaterals.
(2) Section 4 of the Bombay act 60 of 1950 abolished
Watons with effect from May 1, 1951. Section 5 of the same
Act abrogated the rule of primogeniture and also every law
or custom by virtue of which females were postponed to males
in the matter of succession. After the abolition of the
Watons Ramachandrarao alone, to the knowledge of the
plaintiff-respondents, obtained a regrant of the suit land
from the Government in his favour. Similarly, the plaintiffs
applied for regrant of the other Ex-watan lands measuring
about 8000 acres, to the exclusion of Ramachandrarao. The
regrant of the suit land in favour of Ramachandrarao created
new rights exclusively in his favour. Since on May 1, 1951
he was holding the suit land separately as a divided member
of the family, the regrant did not ensure for benefit of the
plaintiffs.
As against this, Shri V. S. Desai submits that since it
was the admitted case of the parties that sometime before
the execution of the deed (Ex. 39) dated July 25, 1902.
Narayanarao and Ramachandrarao constituted a joint Hindu
family governed by Mitakshra, and the presumption of
jointness in case of brothers is stronger, the burden was on
the defendant to prove by cogent and convincing evidence
that the joint family had disrupted and Ramachandrarao had
separated in 1902 and the suit land was his separate
property which fell to his share in partition. It is
maintained that the recitals in the deed, Ex. 39, do not
furnish any evidence that Ramachandrarao had communicated an
unambiguous and clear intention to separate from his brother
in estate and thenceforth hold it in defined shares. It is
urged that the transaction evidenced by the deed should be
construed by the Court, not according to its own sense of
right and wrong, but according to the notions and beliefs
prevailing among orthodox Hindus in 1902, of a strata of
society to which Narayanarao and Ramachandrarao belonged. In
1902, proceeds the argument, to cause disruption of a joint
Hindu family of Watandars
169
was considered to be a sin. According to Shri Desai, if the
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document, Ex. 39, is considered from that view-point it
would appear that the arrangement devised thereby was
consistent with the continuance and preservation of the
jointness of the family and its estate, rather than its
division and disruption. It is pointed out that the area of
Watan Land held by the joint Hindu family in 1902 was about
eight thousand acres, and if the intention of the brothers
was to sever the joint family status, there was no
difficulty in declaring that thenceforth the two brothers
would hold the entire estate in equal, defined shares. It is
emphasised, though Ramchandrarao, died in 1955, he never
asked for partition and possession of his one-half share in
the remaining seven or eight thousand acres held by
Narayanarao and his descendants, but remained contented with
a mere 118 or 120 acres given to him for maintenance under
Ex. 39 in 1902. It is further submitted that the Court
cannot construe the deed Ex. 39, as a deed of partition, but
only as a deed of maintenance, as it, expressly purports to
be, because in view of Section 92 of the Evidence Act no
extrinsic evidence is admissible to contradict or vary its
terms.
In support of his arguments Shri Desai has referred to
Paragraph 448 of Mayne’s Hindu Law (1953 Edn.).
Learned counsel further submits that in view of the
paucity of evidence produced by the defendant-appellant to
show division of the joint-family, the High Court was right
in holding that Ramchandrarao died as an undivided member of
the joint Hindu family consisting of himself and the
plaintiffs. It is submitted, in that view of the matter, the
second point urged by Shri Bal does not survive for
decision. Nevertheless, Shri Desai took us through the
relevant provisions of the Bombay Act LX of 1950 and the
Watan Act of 1874, to show that there is nothing in those
provisions which militates against the finding of the High
Court to the effect, that if Ramchandrarao died as an
undivided member of the joint family, the regrant would
enure for the benefit of all the members of the family.
We will take Point No. 1 canvassed by Shri Bal. The
primary question that falls to be considered is, whether in
1902 or shortly prior to it, there was a partition between
the two brothers-Narayanarao and Ramchandrarao-in a manner
known to law. In this connection, it is necessary, at the
outset, to notice the fundamental principles of Hindu Law
bearing on the point. The parties are admittedly governed by
Mitakshra School of Hindu Law. In an undivided Hindu family
of Mitakshra concept, no member can say that he is
170
the owner of one-half, one-third or one-fourth share in the
family property, there being unity of ownership and
commonsality of enjoyment while the family remains
undivided. Such unity and commonsality or the essential
attributes of the concept of joint family status. Cesser of
this unity and commonsality means cesser or severance of the
joint family status, or, which under Hindu Law is
’partition’ irrespective of whether it is accompanied or
followed by a division of the properties by metes and
bounds. Disruption of joint status, itself, as Lord Westbury
put it in Appovier v. Rama Subha Aivan.,(1) in effect,
"covers both a division of right and division of property."
Reiterating the same position, in Giria Bai v. Sadashiv,(2)
the Judicial Committee explained that division of the joint
status, or partition implies " separation in interest and in
right, although not immediately followed by a de facto
actual division of the subject matter. This may, at any
time, be claimed by virtue of the separate right."
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The division of the joint status may be brought about
by any adult member of the joint family by intimating,
indicating or representing to the other members in clear and
unambiguous terms, his intention to separate and enjoy his
share in the family property, in severality. Such
intimation, indication or representation may take diverse
forms. Sometimes it is evidenced by an explicit declaration
(written or oral); sometimes, it is manifested by conduct of
the members of the family in dealing separately with the
former family properties. Service of notice or institution
of a suit by one member/coparcener against the other
members/coparceners for partition and separate possession
may be sufficient to cause disruption of the joint status.
We will now deal with the first proposition propounded
by Shri Bal, in the light of these principles. The primary
question that arises for consideration is, whether
Ramchandrarao had brought about a division of the joint
family status or partition by intimating to his brother in
clear terms, sometime in 1902 or shortly prior thereto, his
intention to separate and enjoy his share in severality.
Answer to this question depends on inferences which may,
reasonably be drawn from the contents of the deed (Ex. 39)
and the subsequent conduct of the parties.
The original deed, Ex.39 is in Marathi. It was rendered
into English by the trial judge himself, who concededly had
adequate knowledge of Marathi. According to him, the deed
(Ex.39) speaks of a division of
171
the joint family status and separation of interests. For
this construction, the trial judge drew much on the word
"Vibhaktarahave" which, according to him, connotes division
of status. The learned Judges of the High Court however, did
not accept this interpretation. They preferred to rely on
the English translator of this deed made by the High Court
Translator. Since there is some variation between the two
translations, it will be worthwhile to extract the same here
for facility of comparison and reference.
The translation effected by the trial judge, reads as
under:
"You (Ramchandra Rao) are my younger brother. We
were living jointly till today. Recently you have
desired to take some property for maintenance (Nirwah
Kurat) and live separate after division
(Vibhaktarahave).
Since I have deemed it proper to give you some
property for your maintenance as befits our Sansthan, I
have given you the following properties for your
maintenance. (Then follows the description of the
properties). All these lands have been given to you
along with the appurtenances for meeting the livelihood
of you and your family members. Hence, you and your
successors i.e., your natural born male descendants
should enjoy the properties from generation to
generation and live happily. The Sansthan will not
interfere with the lands any longer. Only you and your
natural male descendants should enjoy the property. You
shall also pay the Joodi to the Government hereafter."
(The disputed words have now been underlined).
The translation made by the High Court Translator reads
as below:
"You are my younger brother and you have been
residing with me only in jointness up till now. As you
have been recently thinking of residing separately
yourself by receiving some properties for your
maintenance, I found it proper to give you some
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property for your maintenace as befits our Sansthan and
have given you for your maintenance the ’Desgat’ lands
of our Khata situate in the below mentioned villages in
Taluka Chikodi Sub-District, Belgaum District.
Particulars thereof are as under: Lands situate at
Village Nanadi. (1) Bagayat Land of No. bearing Survey
No. 189 measuring 14 acres 23 guntas assessed at Rs.
20-0-0. The land together with a well valued at Rs.
1000/-. (2) The land
172
measuring 9 acres 30 guntas assessed at Rs. 41-8-0 out
of Survey No. 187 is bounded on the east by a land in
our possession out of the same No. on the west by the
village limits, on the south by the land No. 196 and on
the north by the land bearing Survey No. 198. In the
land enclosed within the aforesaid boundary there is a
well. This well has two "Veravantas" i.e. one on the
Eastern side and another on the Southern side. It has
10 ’motes’. Out of the ’motes’ of that well we are to
get water with 3 ’motes’ and you are to get water with
2 ’motes’. Repairs to the said well also are to be
carried in that portion only and the expenses required
to remove the mud etc., are also to be borne in the
same proportion itself.
Value Rs. 1000/- Lands situate at the Village Umarani.
Rs. No. Acres Assessment
3 99 26-30 14-0-0 The said 3
4 100 9-38 9-0-0 lands are
5 101 26-34 17-0-0 entire No.
and are
valueed at
Rs. 1000/-
together with
the appurte-
nant thereof.
Land situate at Majere Kenpatte in the Village
Nandikurli.
6 120 24-18 9-0-0
This land of entire No. together with the appurtenances
thereof is valued at Rs.400/-.
The lands as mentioned above are given to you for
your maintenance and the maintenance of your
dependants. Hence, you and your descendants, i.e.,
natural male descendants should enjoy the said lands
continuously and live happily. In respect of the said
lands given to you, you will not be put to any trouble
from the state (Sansthan) in any manner but, the said
lands are to be continued with you and your natural
male descendants. You should go on paying the joodi
payable by you to the Government in respect of the said
lands in our possession are given to your possession
today. To the above effect the deed of maintenance is
duly executed."
A comparative study of the above extracts would show
that except for the English rendering of the word
"Vibhaktarahave" by the learned trial judge, there is no
substantial difference between the two translations. The
Marathi word "Vibhaktarahave", according to my learned
Brother on this Bench, who has working knowledge of Marathi,
is a compound of two words, namely, "Vibhakta" and "Rahave".
"Vibhakta" appears to have its root in the Sanskrit word
"Vibhaga". "In the Mitakshra, Vijnanesvara defines the word
173
"Vibhaga" which is usually rendered into English by the word
"partition" as the adjustment of diverse rights regarding
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the whole, by distributing them in particular portions of
the aggregate." (See Para 448 of Mayne’s Hindu Law, 11th
Edition.) ’Rahave’ means "living". In view of this
etymological analysis, it cannot be said that the learned
trial judge’s interpretation of the word "Vibhaktarahave" as
equivalent to "live separately after division" was literally
wrong. Even the learned Judges of the High Court (who did
not claim to know Marathi), have not held in categoric terms
that this translation of "Vibhaktarahave" made by the trial
judge is grammatically wrong. What the learned Judges appear
to say is that the context in which the word
"Vibhaktarahave" has been used, gives it a meaning different
from its grammatical sense, so that it cannot be understood
as signifying an intention to divide, but connotes only a
desire to live separately. The learned Judges have sorted
out four features from the context of the deed, Ex. 39,
which, according to them, militate against the literal
interpretation of the word "Vibhaktarahave" and negative the
theory of division of status. Those features-it will bear
repetition are: (i) The deed is styled as one for
maintenance, (ii) It was executed by Narayanarao only, (iii)
The lands under the deed were given to Ramchandrarao and his
descendants in the male line for maintenance only, (iv) The
total extent of ’Desgat’ lands was over 8000 acres.
Ramchandrarao should have claimed half of the entire
’Desgat’ area and not remained contented with about 90 acres
given to him under the deed Ex. 39).
In our opinion, none of these features, if appreciated
in the right perspective, detracts from the conclusion that
there was a division of joint family status as a result of
an intimation to Narayanarao by Ramchandrarao, of his
intention to separate, followed by allotment to
Ramchandrarao in furtherance of that division, the lands
mentioned in Ex. 39. The four features listed above rested
on erroneous assumptions. Even according to the High Court,
both the brothers were, at the time of execution of the
document Ex. 39, labouring under an erroneous belief that
the ’Desgat’ lands were impartible and held by the eldest
member of the family in the male line, while the junior
members were entitled only to maintenance. The High Court
has expressly upheld the finding of the trial Court that no
custom was established according to which, the ’Desgat’
lands of the family were impartible and vested only in the
eldest male member of the family to the exclusion of the
junior members. The High Court has further not disagreed
with the trial courts finding that no custom of
primogeniture in this family has been established.
174
Once it is held that this two-fold assumption or belief
about the impartibility of the estate and its devolution in
the male line by rule of primogeniture was fallacious, the
said four features stemming therefrom, lose their
significance. These features which purport to give the
transaction (Ex. 39) the colour of a mere maintenance
arrangement as distinguished from an absolute transfer or
allotment, have to be credited with no more substance than
phantoms conjured out of phantasy, probably by the sole
executant of the deed with a self-serving motive. In any
case, they are words of vain show or form lacking reality.
We have therefore, to peal aside this jejune and illusory
cover, to reach at the kernel and concentrate on the crucial
features of the document Ex. 39.
We are unable to accept Shri Desai’s argument that the
process adopted by us would involve contravention of Section
92 of the Evidence Act.
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Firstly, in this process, which is essentially one of
construction of the deed, Ex. 39, no question of
contradicting, varying, adding to or subtracting any term of
the disposition is involved. The deed, Ex. 39, falls into
two distinct parts: The first of them comprises the preamble
or the preliminary recital of a past fact. This part does
not contain any term of disposition of property. Such terms
are confined only to the second part. Section 92 prohibits
only the varying of terms of the documents, not the
memoranda or recitals of facts, bereft of dispositive terms,
particularly when the correctness of the whole or any part
of the recital is in question. We are primarily concerned
with this preliminary recital which does not fall under the
dispositive or operative portion of the document. The
question is, whether or not this recital of a past oral
intimation by Ramchandrarao to Narayanarao had caused
severance of joint family status. It is settled law that a
clear intimation by a coparcener to the other coparcener of
his intention to sever the joint status need not be in
writing. For these two-fold reasons, the bar in section 92
against the admissibility of extrinsic evidence for the
purpose of showing that the insertion of the words "for your
maintenance" in the recital is wrong, unreal, unmeaning and
the coinage of the executant’s own brain, is not attracted.
Secondly, there is ample authority for the proposition
that when there is a dispute in regard to the true character
of a writing evidence de hors the document can be led to
show that the writing was not the real nature of the
transaction, but was only an illusory, fictitious and
colourable device which cloaked something else, and that the
appa-
175
rent state of affairs was not the real state of affairs.
[See Chandi Prasad Singh v. Piari Bedi C.A. No. 75 of 1964,
decided on 16-3-1966, and Bhagwan Dayal v. Mst. Reoti Devi
(supra) ].
This preliminary recital in the deed, Ex. 39 (as
translated by the learned trial judge), with due emphasis on
the words ’recently’ and ’Vibhaktarahave’, coupled with the
surrounding circumstances and natural probabilities of the
case, definitely raises the inference that sometime in the
recent past, prior to the date of the deed, Ex. 39,
Ramchandrarao had clearly and persistently intimated to his
coparcener, Narayanarao, his intention to sever the joint
family status and to hold and enjoy his share of the joint
family property in severalty. The immediate and inexorable
consequence of this intimation was disruption or division of
the joint status, which, in the eye of Hindu Law, amounted
to ’partition’. From that date onwards, which preceded the
date of the deed, Ex. 39 Narayanarao and Ramchandrarao
ceased to be coparceners and held the former coparcenary
property as tenants-in-common. Thus, at the time of
execution of the deed Ex. 39, the joint family status did
not exist; it had already been put an end to by
Ramchandrarao’s intimation to Narayanarao, of his intention
to divide and separate.
If that be the true position, it was not open even to
Ramchandrarao, much less to Narayanarao, to nullify the
effect of the communication of the former’s intention which
had resulted in severance of the joint status, by revoking
or withdrawing that communication. Ramchandrarao could not
get back to the old position by mere revocation of the
intention. A coparcenary is purely a creature of Hindu Law;
it cannot be created, or recreated after disruption, by the
act of par- ties, save in so far that by adoption a stranger
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may be introduced as a member thereof or in the case of
reunion. [See paragraphs 214 and 325 of Mulla’s Hindu Law
and this Court’s decision in Puttorangama v. Ranganna;
Bhagwan Dayal v. Mst. Reoti Devi (supra).] There is hot
evidence that after the severance of the joint family
status, there was a reunion.
As before the High Court, here also, an argument was
raised that the preliminary recital in the deed, Ex. 39,
being qualified, furnishes little or no evidence for a
finding that Ramchandrarao had declared and intimated in
clear and unambiguous terms his intention to sever the joint
family status.
176
We are unable to accept this argument. It has to be
borne in mind that this document has been let in evidence
more than 70 years after its execution. Narayanarao and
Ramchandrarao and all others who might have given evidence
with regard to the circumstances of this recital in
particular, and the deed in general, are long deed and gone.
There is no dearth of authority for the proposition that in
such a situation, it is permissible to draw reasonable
inferences to fill the gaps or details obliterated by time.
[See Chintamanibhatia Vankat Reddy v. Rani of Wadhavan; Sree
Sree Iswar Gopal Jien Thakur v. Pratapmal Bagaria.
The preliminary recital in the deed, therefore, assumes
importance. Read in the light of the surrounding
circumstances and in the perspective that the ’Desgat’ land
was partible coparcenary property of the two brothers, each
of whom had an equal interest therein and an equal right to
get his share divided and thereafter enjoy it in severalty,
this recital establishes with a preponderance of
probability, that sometime before the execution of the deed,
Ex. 39, Ramachandrarao had communicated to his brother, in
clear, unmistakable terms his intention not only to separate
in residence and user and put an end to commonsality, but
also to sever the unity of ownership and enjoy his share in
severalty. The result was division of the joint status.
Once it is found that the division of the joint status
preceded the execution of the deed, Ex. 39, then the
disposition made thereunder could only be a step towards the
implementation of that division and in recognition of
Ramchandrarao’s right to have his share, wholly or partly
demarcated and specified for separate enjoyment as an
absolute and exclusive owner thereof. While giving the land
measuring 118 or 120 acres to Ramchandrarao in recognition
of the latter’s equal right in the Desgat, Narayanarao had
no power to impose the futile condition that the land was
being given to Ramchandrarao and his male lineal descendants
for maintenance. As already discussed, this insertion by the
executant from an ulterior self-serving motive was devoid of
substance; it could not be attached any greater importance
and realty than the phantasmic assumption, from which it was
conjured up: a fortiori, when in the deed, Ex. 39, there is
no stipulation that in the event of Ramchandrarao’s male
line becoming extinct, the land would revert to the
’Desgat’, and Narayanarao or his descendants would have a
right of re-entry.
177
We are in agreement with the trial court that the
expressions "Potgi" (maintenance) or "Nirwahkrit" in the
deed cannot be construed as conferring an estate with
restricted rights of ’ownership’, limited to the lifetime of
Ramchandrarao and his linear male descendants. The deed
evidence a permanent transfer or allotment of about 118 or
120 acres of land to Ramchandrarao to be enjoyed from
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generation to generation to the entire exclusion of
Narayanarao and his descendants. In terms, Narayanarao did
not reserve any right of reversion in favour of himself and
his branch in any circumstances. Irrigation rights also with
regard to the land transferred or allotted under this deed,
were divided. It was further provided that from the date of
the deed, payment of Joodi to the Government in respect of
this land, shall also be the exclusive liability of
Ramchandrarao and his descendants.
The inference that this land, measuring about 118 acres
was given to Ramchandrarao in partial implementation of
division of joint family status or partition, receives
further confirmation from the following circumstances: (a)
From the date of the deed, Ex. 39, till Ramchandrarao’s
death in 1955, for a period of about 53 years, the lands
disposed of by the deed, throughout remained in the full,
exclusive and uninterrupted enjoyment of Ramchandrarao. The
relevant entries in the revenue records during this period,
also, stand exclusively in his name as owner-in-possession
thereof. (b) After the abolition of Watans in 1951,
Ramchandrarao alone applied for regrant of this land in his
favour, under the Watan Abolition Act. The plaintiffs were
at all material times, admittedly aware that Ramchandrarao
had applied for the regrant of this land exclusively in his
favour, but they never objected, and tacitly assented to the
same. On the other hand, the plaintiffs applied and obtained
regrant of the ’Desgat’ lands (other than those which were
the subject of the deed, Ex. 39), in their favour to the
exclusion of Ramchandrarao.
In the light of the above discussion, we are of opinion
(i) that there was partition or division of the joint family
status sometime prior to the execution of deed, Ex. 39, and
(ii) that the disposition of about 118 or 120 acres made
under that deed was, in substance an absolute allotment of
that land to Ramchandrarao, towards implementation of that
division or partition in recognition of the latter’s right
to have his share demarcated by metes and bounds to be
enjoyed exclusively in severalty.
Point No. 1 is thus found in favour of the appellant.
In view of the above finding that the suit property was the
separate, divided
178
property of Ramchandrarao at the date of his death, and
under the traditional Hindu Law, would go by succession to
his daughter, the appellant herein, to the exclusion of the
plaintiff-collaterals, it is not necessary to decide Point
No. 2 canvassed by the appellant.
In the result, for all the reasons aforesaid, we allow
this appeal and dismiss the plaintiffs suit with costs
throughout.
P.B.R. Appeal allowed.
179