RAMASWAMI. - (1.) THE following Judgment of the courtwas delivered by
(2.) THIS, appeal is brought by certificate fromthe judgment of the Mysore High court dated 5/12/1960in R. A. No. 81 of 1956. The appellants and respondent No. 4 are the daughters andlegal representatives of Savoy Ranganna who was theplaintiff in O.S. 34 of 1950-51 instituted in the court ofthe District Judge, Mysore. The suit was filed by thedeceased plaintiff for partition of his share in theproperties mentioned in the schedule to the plaint and forgranting him separate possession of the same. RespondentNo., 1 is the brother's son of the Plaintiff. The rela-tionship of the parties would appear from the followingpedigree: JUDGEMENT_1018_AIR(SC)_1968Image1.jpg The case of the plaintiff was that he and the defendantslived together as members of a Joint Hindu family till 7/01/1951, Plaintiff being the karta. The plaintiffhad no male issue but had only four daughters, ChikkaRangamma, Putta Rangamma, Rangathayamma and Chinnathayamma.The first 2 daughters were widows. The fourth daughterChinnathayamma was living with her husband. ExceptChinnathayamma, the other daughters with their families hadbeen living with the joint family. The plaintiff became illand entered 'Sharda Nursing Home for treatment as an in-patient on 4/01/1951. In order to safeguard theinterests of his daughters the plaintiff, Savoy Rangannaissued a notice on 8/01/1951 to the defendantsdeclaring his unequivocal intention to separate from them.After the notices were registered at the post office certainwell-wishers of the family intervened and wanted to bringabout a settlement. On their advice and request theplaintiff notified to the post office that he intended towithdraw the registered notices. But as no agreement couldbe subsequently reached between 'the parties theplaintiff.instituted the present suit on January 13 The951'for partition 'of his share of the joint familyproperties. The suit was contested mainly byrespondent no. 1 who alleged that there was. no separationof status either because of the notice of 8/01/1951 orbecause of the institution of the, suit on 13/01/1951.The case (if respondent no. 1 was that Savoy Ranganna was85 years of age and in a weak state of health and was not ina position to understand the contents of the plaint or toaffix-his signature or thumb impression thereon as well ason the Vakalatnama. As regards the notice of 8/01/1951,respondent no. 1 asserted that there was no communicationof any such notice to him and, in any case, the notices werewithdrawn by Savoy Ranganna unconditionally from the postoffice. It was therefore contended that there was nodisruption of the joint family at the time of the death ofSavoy Ranganna and the appellants were not entitled to adecree for partition as legal representatives of SavoyRanganna. Upon the examination of the evidence adduced inthe case the trial court held that Savoy Ranganna hadproperly affixed his thumb impression on the plaint and theVakalatnama and the presentation of the plaint was valid.The trial court found that Savoy Ranganna was not dead bythe time the plaint was presented. On the question whetherSavoy Ranganna was separate in status the trial court heldthat the notices dated 8/01/1951 were a clear andunequivocal declaration of the intention of Savoy Rangannato become divided in status and there was sufficientcommunication of that intention to respondent no. 1 andother members of the family. The trial court was also ofthe opinion that at the time of the issue of the noticesdated 8/01/1951 and at the time of execution of theplaint and the Vakalatnama dated 13/01/1951 SavoyRanganna was in a sound state of mind and conscious of theconsequences of the action he 'Was taking. The trial courtaccordingly granted a decree in favour of the appellants.Respondent no took the matter in appeal to the Mysore HighCourt which by its judgment dated 5/12/1960 reversedthe decree of the trial court and allowed the appeal.Hegde, J. one of the members of the bench held that the suitcould not be said to have been instituted by Savoy Rangannaas it was not proved that Savoy Ranganna executed theplaint. As regards the validity of the notice Ex.A, and asto whether it caused any disruption in the, joint familystatus, Hegde, J. did not think it necessary to express anyopinion. The other member of the bench, Mir. lqbal Husain,J., held that the joint family of which the deceased SavoyRanganna was a member had not been disrupted by the issue ofthe notice dated 8/01/1951. The view taken by Mirlqbal Husain,-J. was that there was no proof that the noticewas communicated either to respondent no. 1 or other membersof the family and, in any event, the notice had beenwithdrawn by Savoy Ranganna and so there was no severance ofjoint status from the date of the notice. The first question to be considered in this appeal iswhether Savoy Ranganna died as a divided member of the jointfamily as alleged in the plaint. It is admitted that SavoyRanganna was very old, about 85 years of age and was ailingof chronic diarrhoea. He was living in the family housetill 4/01/1951 when he was removed to the ShardaNursing Home where he died on 13/01/1951 at 3 p.mAccording to the case of respondent no. 1 Savoy Ranganna hada paralytic stroke in 1950 and was completely bed-riddenthereafter and his eyesight was bad for 5 to 6 years priorto his death. It was alleged in the written statement thatSavoy Ranganna was unconscious for some days prior to hisdeath. The case of respondent no. 1 on this point is dis-proved by the evidence of D.W. 6, Dr. Venkata Rao who was incharge of the Sharda Nursing Home on the material dates.This witness admitted that the complaint of Savoy Rangannawas that he was suffering from chronic diarrhoea for overfive months. He was anaemic but he was not suffering fromany attack of paralysis. As regards the condition of SavoyRanganna on 8/01/1951, the evidence of P.W. 1, Dr.Subbaramiah is important. This witness is the owner of theSharda Nursing Home and he has testified that the notice Ex.A was read over to Savoy Ranganna and after getting it readthe latter affixed his thumb mark thereon. The witnessasked Savoy Ranganna whether he was able to understand thecontents of the notice and the latter replied in theaffirmative. The witness has certified on the notice, Ex.A-1 that Savoy Ranganna was conscious when he affixed hisleft thumb mark, to the notice in his presence. No reasonwas suggested on behalf of the respondents why the evidenceof this witness should be disbelieved. The trial court washighly impressed by the evidence of this witness and we seeno reason for taking a different view. The case of theappellants is that respondent no. 1 had knowledge of thenotice, Ex. A because he was present in the Nursing Home on 8/01/1951 and he tried to snatch away the notice fromthe hands of P.W. 1 but he was prevented from. so doing.P.W. 5, Chinnanna stated in the course of the evidence thatafter P.W. 1 had signed the certificate in all the threecopies, respondent no. 1 and one Halappa came to the wardand tried to snatch away the notices. The first respondenttried to snatch away the copy Ex. A-1 that was in the handsof Dr. Subbaramiah and attempted to tear it. Dr.Subbaramiah somehow prevented respondent no. 1 from takingaway Ex. A and handed it over to P.W. 5. The evidence ofP.W. 5 with regard to the `snatching incident` iscorroborated by Dr. Subbaramiah who stated that after SavoyRanganna had executed the notices and he had signed thecertificates, one or two persons came and tried to snatchthe document. P.W. 1 is unable to identify the firstrespondent as one of the persons who had taken part in the`snatching incident`. The circumstance that P.W. 1 wasunable to identify respondent no. 1is not very material, because the incident took place aboutthree years before he gave evidence in the court, but hisevidence with regard to the `snatching incident' stronglycorroborates the allegation of P.W. 5 that it was respondentno. 1 who bad come into the Nursing Home and attempted tosnatch the notice. There is also another circumstance whichsupports the case of the appellants that respondent no. 1had knowledge of the contents of Ex. A and of theunequivocal intention of Savoy Ranganna to become divided instatus from the joint family. According to P.W. 5 res-pondent no. 1 and his wife and mother visited SavoyRanganna in the Nursing Home later on and pressed him towithdraw the notices promising that the matter will beamicably settled. Sowcar T. Thammanna also intervened ontheir behalf. Thereafter the deceased plaintiff instructedhis grandson P.W. 5 to withdraw the notice. AccordinglyP.W. 5 prepared two applications for the withdrawal andpresented them to the postal authorities. The notice, Ex.A meant for the first respondent and Ex. E meant for theoriginal second defendant were withheld by the postal autho-rities. These notices were produced in court by the postalauthorities during the hearing of the case. In our opinion,the evidence of P.W. 5 must be accepted as true, because itis corroborated by the circumstance that the two notices,Exs. A and E were intercepted in the post office and didnot reach their destination. This circumstance alsoindicates that though there was no formal. communication ofthe notice, Ex. A to the first respondent, he hadsufficient knowledge of the contents of that notice and wasfully aware of the clear and unequivocal intention of SavoyRanganna to become separate from other members of the jointfamily.
(3.) IT is now a settled doctrine of Hindu Law that a member of ajoint Hindu family can being about his separation in statusby a definite, unequivocal and unilateral declaration of hisintention to separate himself from the family and enjoy hisshare in severalty. IT is not necessary that there shouldbe an agreement between all the coparceners for thedisruption of the joint status. IT is immaterial in such acase whether the other coparceners give their assent to theseparation or not. The jural basis of this doctrine hasbeen expounded by the early writers of Hindu Law. Therelevant portion of the commentary of Vijnaneswara states asfollows[And thus though the mother is having her menstrual courses(has not lost the capacity to bear children) and the fatherhas attachment and does not desire a partition, yet by thewill (or desire) of the son a partition of the grandfather'swealth does take place]`Saraswathi Vilasa, placitum 28 states [From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention without speech.]`Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to thefollowing effect: [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)].` Vyavahara Mayukha of Nilakantabhatta also states [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).]` (Ch. IV, S. iii-I).Emphasis is laid on the `budhi visesha` (particular stateor condition of the mind) as the decisive factor inproducing a severance in status and the declaration isstated to be merely `abhivyanjika` or manifestation whichmight vary according to circumstances. In Suraj Narain v.Iqbal Narain(1) the Judicial Committee made the followingcategorical statement of the legal position : `A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed.......... Suraj Narain alleged that he separated a few months later; there is, however, nowriting in support of his allegation, nothing to show thatat that time he gave expression to an unambiguous intentionon his part to cut himself off from the joint undividedfamily.`In a later case--Girja Bai v. Sadashiv Dhundiraj(1) theJudicial Committee examined the relevant texts of Hindu Lawand referred to the well-marked distinction that exists inHindu law between a severance in status so far as theseparating member is concerned and a de facto division intospecific shares of the property held until then jointly, andlaid down the law as follows : `One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division. and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that, by the intervention of the court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to his right to have his share allocated separately from has a title is unimpeachable; neither the co-sharers can question it nor can the court examine his conscience to find out whether his reasons for separation were well- founded or sufficient; the court has simply to give effect to his right to have his share allocated separately from the others.In Syed Kasam v. Jorawar Singh (2), Viscount Cave, indelivering the judgment of the Judicial Committee, observed `IT is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place : and the commencement of a suit for partition has been held to be sufficient.to _effect a severance in interest even before decree.`These authorities were quoted with approval by this court inAddagada Raghavamma v. Addagada Chenchamma(3), and it washeld that a member of a joint Hindu family seeking toseparate himself from others will have to make known hisintention to other members of his family from whom he seeksto separate. Thecorrect legal position therefore is that in a case of ajoint Hindu family subject to Mitakshara law, severance ofstatus is effected by an unequivocal declaration on the partof one of the jointholders of his intention to hold theshare separately. IT is, how.ever, necessary that themember of the joint Hindu family seeking to separate himselfmust make known his intention to other member of the familyfrom whom he seeks to separate. The process ofcommunication may, however, vary in the circumstances ofeach particular case. IT is not necessary that there'should be a formal despatch to or receipt. by other membersOf the family of the communication announcing the intentionto divide on the part of one member of the joint family.The proof of such a despatch or receipt of the communicationis not essential, nor its absence fatal to the severance ofthe status. IT is, of course, necessary that thedeclaration to be effective should reach the person orpersons affected by some process appropriate to the givensituation and circumstances of the particular case.Applying this principle to the facts found in the presentcase, we are of opinion that there was a definite andunequivocal declaration of his intention to separate on thepart of Savoy Ranganna and that intention was conveyed torespondent no. 1 and other members of the joint family andrespondent no. 1 had full knowledge of the intention ofSavoy Ranganna. IT follows therefore that there was adivision of status of Savoy Ranganna from the joint Hindufamily with effect from 8/01/1951 which was the dateof the notice. It was, however, maintained on behalf of the respondentsthat on 10/01/1951 Savoy Ranganna had decided towithdraw the two notices, Exs. A & E and he instructed thepostal authorities not to forward the notices to respondentno. 1 and other members of the joint family. It wascontended that there could be no severance of the jointfamily after Savoy Ranganna had decided to withdraw thenotices. In our opinion, there is no warrant for thisargument. As we have already stated, there was a unilateraldeclaration of an intention by Savoy Ranganna to divide fromthe joint family and there was sufficient communication ofthis intention to the other coparceners and therefore in lawthere was in consequence a disruption or division of thestatus of the joint family with effect from 8/01/1951.When once a communication of the intention is made which hasresulted in the severance of the joint family status it wasnot thereafter open to Savoy Ranganna to nullify its effectso as to restore the family to its original joint status.If the intention of Savoy Ranganna had stood alone withoutgiving rise to any legal effect, it could, of course, bewithdrawn by Savoy Ranganna, but having communicated theintention, the divided status of the Hindu joint family hadalready come into existence and the legal consequences hadtaken effect. It was not, therefore, possible for SavoyRanganna to get backto the old position by mere revocation of the intention. Itis, of course, possible for the members of the family by asubsequent agreement to reunite, but the mere withdrawal ofthe unilateral declaration of the intention to separatewhich already had resulted in the division in status cannotamount to an agreement to reunite. It should also be statedthat the question whether there was a subsequent agreementbetween the members to reunite is a question of fact to beproved as such. In the present case, there is no allegationin the written statement nor is there any evidence on thepart of the respondents that there was any such agreement toreunite after 8/01/1951. The view that we haveexpressed is borne out by the decision of the Madras HighCourt in Kurapati Radhakrishna v. Kurapati Satyanarayana(1)in which there was a suit for declaration that the sales inrespect of certain family properties did not bind theplaintiff and for partition of his share and possessionthereof and the plaint referred to an earlier suit. forpartition instituted by the 2nd defendant in the later suit.It was alleged in that suit that 'the plaintiff beingunwilling to remain with the defendants has decided tobecome divided and he has filed this suit for separation ofhis one-fifth share in the assets remaining afterdischarging the family debts separated and for recovery ofpossession of the same'. All the defendants in that suitwere served with the summons and on the death of the 1stdefendant therein after the settlement of issues, theplaintiff in that action made the following endorsement onthe plaint : `As the 1st defendant has died and as theplaintiff had to manage the family, the plaintiff herebyrevokes the intention to divide expressed in the plaint andagreeing to remain as a joint family member, he withdrawsthe suit.' It was held by the Madras-High court that adivision in status had already been brought about by theplaint in the suit and it was not open to the plaintiff torevoke or withdraw the unambiguous intention to separatecontained in the plaint so as to restore the joint statusand as such the members should be treated as divided membersfor the purpose of working Out their respective rights.;