MUDHOLKAR, - (1.) THE following judgment of the court was delivered by :
(2.) THIS is an appeal by special leave from the judgment of the High court of Andhra Pradesh affirming the decrees for partition and separate possession of certain movable and immovable properties, passed by the second Additional Subordinate Judge, Vijayawada. The genealogical table showing the relationship between the parties set out below will be of assistance in appreciating the facts of the case: JUDGEMENT_825_AIR(SC)_1965Image1.jpg Potti Subba Rao who died in the year 1919 was survived by three sons Sitaramaiah, Lakshmi Perumallu and Krishnamurti. Sitaramaiah was married twice. From the first wife he had a son named Pulla Rao. After the death of the first wife he married Krishnavenamma, the plaintiff in the suit. Sitaramaiah died on 10/08/1938. No issue was born to Krishnavenamma who was only 14 years of age at the time of Sitaramaiah's death. Pulla Rao died in the year 1939 at the age of 11 years. Krishnamurti died in the year 1930 i.e., before Sitaramaiah, without leaving any issue or a widow. The plaintiff continued to stay in the same house as the defendant till the beginning of July, 1950. Then she suddenly left the house and instituted the suit in question on the 6th of that month. According to her Sitaramaiah and his two brothers, defendant and Krishnamurti, acquired large movable and immovable property at Vijayawada, described in the schedule to the plaint, with the aid of their ancestral business. She claimed half Share in the entire property set out in the schedules, by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. She admitted that her husband had purported to execute a will before his death but contended that it was inoperative because he was a member of a Hindu joint family at the time of his death. The defendant contested the claim on various grounds. According to him there was no ancestral property and the suit properties were acquired by the brothers by their individual efforts and treated as self-acquisition. Further according to him the will executed by Sitaramaiah is valid and binding on the plaintiff and that the property allotted to the plaintiff under the will was being enjoyed by the plaintiff and further the properties allotted to Pulla Rao devolved upon him after Pulla Rao's death. Lastly, according to him even if the property were held to be joint family property of Sitaramaiah and the defendant the plaintiff would be entitled only to th share in them and not half share. The courts below have found that. the suit properties were the joint family properties of Sitaramaiah and the defendant, that the will executed by Sitaramaiah was inoperative and not binding on the plaintiff and that the plaintiff is entitled to half share in the Suit properties. 'the trial court gave direction to the effect that a commissioner be appointed for ascertaining the property liable to be partitioned and for dividing them into two equal shares by metes and bounds for the purpose of awarding to the plaintiff the separate possession of her half share in the properties. Mr. S. T. Desai who appears for the defendant-appellant has not challenged the concurrent findings of the courts below to the effect that the properties acquired by the family were joint family properties. He, however, urged the following three contentions before us : (1) The will executed by Sitaramaiah on 3/08/1938 itself resulted in severance in the status of the two brothers constituting the joint family and that in any event separation ensued between them at the death of Sitaramaiah; (2) that at any rate the will should be construed to be a family arrangement made by the karta of the family and assented to by the defendant and by the father and the fosterfather of the plaintiff on her behalf; (3) assuming that neither of the two contentions is correct, the interest to which the plaintiff would be entitled would be th share in the property and not half share therein. This interest has to be ascertained as on the date of the death of Sitaramaiah.
(3.) ALL these contentions were also urged before the High court but were negatived by it and in our opinion, rightly. Mr. Desai has, however, placed reliance upon a recent decision of this court in A. Raghavamma and anr. v. A. Chenchamma and anr. (1) in support of the contention that the will itself effected a severance in status. What was held in that case was that a member of a joint Hindu family can bring about a separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty by expressing such an intention even in a will. It was further held that the knowledge of the expression of intention to separate has to be brought home to the persons affected by it and if that is done it relates back to the date when the intention was formed and expressed. A perusal of the will, Ex. B-1, does not however unmistakably show that the intention of Sitaramaiah was to separate himself from the joint family. At the outset he has stated : 'I have executed this will regarding the arrangements to take effect after my life-time with regard to the enjoyment of the joint immovable and movable properties which are possessed by me and under my management by my brother and others.' In the second paragraph he has stated that he had no ancestral property at all and that the business carried' on by himself and his brother was established by them. In the third paragraph he directed that the plaintiff shall maintain his son Pulla Rao and that his brother would took after the interests of Pulla Rao. The 4th 5th and the 8th paragraphs on which reliance is placed by Mr. Desai run thus : '4. If for any reason the said Krishnaveni does not agree to be like that my younger brother Lakshmi Perumallu shall deliver possession of the upstair house constructed newly on the house site purchased from Nadakurthi Kristamma and others and the tiled room situate in the big street and purchased from Gunda Subbarayudu out of the immovable property possessed by me in Bezwada town on condition of including them in the half share of the property that shall pass to my -,on after my life-time. 5. The said Krishnaveni shall be at liberty to take passion of the two properties mentioned in paragraph 4 above, to pay all kinds of taxes payable thereon and to enjoy freely throughout her life-time only the income got every year from the said two properties without powers of gift, mortgage, exchange and sale by following the age-old custom and by maintaining the family respect and custom and the said two properties shall pass to,my son Pulla Rao alias Venkatasatyanarayana after tier life-time. 8. My younger brother Lakshmi Perumallu shall keep the remaining entire property joint till my son Pulla Rao alias Venkatasatyanarayana attains majority and manage the same, shall bring up the boy properly, celebrate the marriage and other auspicious functions and divide the half share of the property after he attains majority and deliver possession of the same to my son.' It seems to us difficult to infer from the recitals in these paragraphs that Sitaramaiah had expressed his unequivocal intention to get separated in status. No doubt, in the 4th paragraph he has that in certain circumstances certain property will be included in the half share of the property that would pass to his son after his death and he has also said in paragraph 5 that the plaintiff shall be at liberty to take possession of the two properties indicated in paragraph 4, enjoy them during her life time and that on her death they will pass to Pulla Rao. But in paragraph 6 he has referred to the remaining property -is 'joint property' and has repeated that in paragraph 7. Again, what he has said in paragraph 8 militates wholly against the inference of separation in status. There he has enjoined upon the defendant to keep the remaining property joint till Pulla Rao attained majority, manage the same and divide that property between himself and Pulla Rao after the latter attained majority. Nowhere in the will has he stated that be wanted to put an end to the coparcenary. Indeed, the very assertion which has been concurrently found to be untrue that the property was not joint family property would preclude an inference that Sitaramaiah intended to express his intention to separate in status and put an ,end to a coparcenary which, according to that assertion, in fact did not exist. In the circumstances we cannot accept the first contention of Mr. Desai. No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a court of law. But before the court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon. It is quite clear that there is complete absence of evidence to show that there was such an occasion or the arrangement indicated in the will was acted upon. The letter Ex. B12 upon which reliance was placed before the High court on behalf of the defendant has not been found by it to be genuine. The defendant had also pleaded that the provisions under the will were given effect to but no satisfactory evidence has been adduced to prove that the plaintiff was in enjoyment of the properties allotted to her under the will. We cannot, therefore, accept the second contention of Mr. Desai. Coming to the list question there is a certain amount of conflict in the decisions of the various High courts. One view is that the quantum of interest to which a Hindu widow is entitled under s. 3(2) of the Hindu Women's Rights to Property Act, 1937, is to be determined as on the date on which she seeks to enforce partition under sub-s. (3) of s. 3. The other view is that it has to be determined as on the date on which her husband died, that is to say, that it is not a fluctuating interest increasing or decreasing as a result of deaths or births in the family. ;