RAMASWAMI, J.- - (1.) THE Judgment of the court was delivered by
(2.) THIS appeal is brought by special leave from the judg-ment of the Bombay High court, dated 12/12/1962, in First AppealNo. 436 of 1958 by which the High court dismissed the appeal and allowedthe cross-objections filed by the respondents in the said appeal. 387 The relationship of the parties will appear from the followingpedigree: JUDGEMENT_386_1_1969Image1.jpg Gowdappa had one daughter by name Gangabai, while Apparayahad three children (i) Nenappa II, (ii) Revagowda and (iii) Subhadrabai.In 1930 Nenappa II was given in adoption to Goudappa. He had two wivesKashibai and Sidgangawa. Revagowda married another Sidgangawa. In1938 Revagowda was murdered. Thereafter Goudappa and Apparayapurported to effect a partition between themselves. At the time of the deathof Nenappa I, six plots of lands belonged to the joint family. Five of theseplots are survey Nos-43,59,65, 66 and 69 measuring 137 acres and 15gunthas and assessed at Rs. 126/12/-and are located in Borgi Khurd. Theother plot survey No. 77 which was in Borgi Budruk measured 14 acres and24 gunthas and was assessed at Rs. 16/14/-. The total area of the ancestrallands was, therefore, 151 acres and 27 gunthas assessed at Rs. 143.00. Between1911 and 1940, 12 other pieces of lands in both these villages measuring 137acres and 39 gunthas and assessed at Rs. 18/10/-were acquired in variousnames. After Nenappa II was murdered in 1944, both the brothers deniedhis adoption by Goudappa and purported to effect a partition on 28/04/1944. After the partition deed was executed various alienations were madeby the two brothers. On 25/09/1944, by Ex. 161 Goudappagifted Serial Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of BorgiKhurd to defendant No. 4, Subhadrabai. By Ex. 162, dated 1/10/1946, Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurdand Survey No. 11/3 of Borgi Budruk to denfendant No. 3 who is thedaughter of Nenappa II. On 20/04/1948, by Ex. 159 Apparaya sold388survey Nos.77 and 43 to defendent No. 3 for a sum of Rs.5,000.00. On thesame day by Ex. 160 Goudappa sold survey No. 79 for Rs. 1,000.00 toApparaya. Again on 17/05/1948, by Ex. 158 Goudappa made a giftof plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3. By Ex.117, dated 7/12/1948, Goudappa by a Vardi transferred surveyNo. 66 of Borgi Khurd to defendant No. 6, his widowed daughter. On 1 5/12/1948, Goudappa gave aportion of plot No. 96 to Sidgangawa,wife of Apparaya for maintenance. By Ex. 166, dated 25/05/1950,Goudappa and defendant No. 1 together sold to defendant No. 5 portion ofsurvey No. 23 for a sum of Rs. 3,000.00. Finally on 19/11/1953,Apparaya executed his last will which is Ex. 168 whereby he bequeathedsurvey No. 79 to defendant No. 4 and one house ..to his daughter, defendantNo. 4. The plaintiff claimed to be the adopted son of Revagouda andbrought the present suit on 10/06/1954, challenging the partition deed asfraudulent. He alleged that it was intended to defeat the rights of the widows,that it was never acted upon and that the family continued to bejoint.The defendants contested the suit on the ground that the partition deedEx. 157 was a genuine transaction and was acted upon, that Apparaya andGoudappa became separate in status and managed their properties separa-tely. The defendants supported all the alienations as being genuine andeffective. The trial court came to the conclusion that the 12 pieces of landswhich were acquired between 1911 and 1940 formed part of the jointfamily properties, that the partition deed, Ex. 157, was not intended to beacted upon but was executed to defeat the rights of the widows. The trialcourt held that none of the alienations except the sale deed, Ex. 159, executedby Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendantNo. 3 was binding on the plaintiff. The trial court accordingly made adecree for partition with appropriate directions. The defendants took thematter in appeal to the High court. The plaintiff also filed a cross-objectionwith regard to the sales-deed, Ex. 159. By its judgment, dated 12/12/1962, the High court dismissed the appeal of the defendants and allowedthe cross-objection of the plaintiff holding that the sale-deed, Ex. 159,regarding survey plots No. 43 and 77 was also not binding upon the plain-tiff.
(3.) THE first question to be considered in this appeal is whether thepartition deed executed by Goudappa and Apparaya on 28/04/1944, wasa sham transaction and not intended to be effective. Both the trial courtand the High court have reached a concurrent finding after an elaborateexamination of the evidence that the partition deed was not genuine, andthat it was effected for an ulterior purpose in order to defeat the rights ofthe widows in the joint family. It is manifest that the finding of the lowercourts upon this question is essentially a finding upon a question of fact) andin an appeal by special leave it is the normal practice of this court to acceptsuch a concurrent finding of fact as correct. It was, however, contendedby Mr. Sanghi that the finding of the lower courts is vitiated in law becausethere was no evidence in support of that finding. In our opinion, there isno justification for this argument. In the partition deed it is recited thatthe lands were partitioned with the help of Panchas but the names of Panchasare not mentioned in the document and none of the Panchas has signed it.As to the division of the properties, Goudappa has been given 101 acres and39 gunthas while Apparaya has been given 50 acres and 10 gunthas only.THE total assessment of lands given to Goudappa is Rs. 82.00/3.00 while theassessment of the lands given to Apparaya is Rs. 61/71-. THEre appears to beno division of the house at all, since nothing is mentioned in the partitiondeed about the house. THE unequal division of the lands in the so called389partition deed is a strong circumstance which indicates that the transactionwas not genuine. It should also be noticed that at the time of the partitiondeed there were widows of two sons in the family, Nenappa the second andRevagouda. At about this time, after Nenappa's death, the adoption ofNenappa by Goudappa was denied. THE scheme' of the partition was,therefore, to deprive the two widows of any claim for maintenance out ofthe joint family properties but to limit their rights to about 50 acres of landgiven to Apparaya. THEre is also evidence that after the partition deed,the two brothers continued to be in joint possession of the lands and theylived joint in the same house as before. It appears that the two brothershad a joint mess even after the date of partition. It was contended byMr. Sanghi that there was no evidence that the two brothers continued tobe in joint possession of the lands. But it is not possible to accept thisargument as correct. On a perusal of the evidence it is apparent thatP. Ws. 1 to 4 all supported the case of the joint possession of the two brothersand their evidence has been believed by both the lower courts. THEre isanother circumstance which strongly lends support of the plaintiff's case onthis point. It was at one time supposed that the doctrine of Mitaksharalaw was that if the last surviving coparcener died and the property passedto his heir, such as a widow or a collateral, the power of the widow of apredeceased coparcener to adopt was at an end. (Chandra v. Gojarabai andAdivi Suryaprakasarao v. Nidamarty Gangaraju. THE cases on this point wereconsidered in 1936 by the full bench of the Bombay High court in BaluSakharam Powar v. Lahoo Sambhaji Tetgura. It was held in that case thatwhere a coparcenery exists at the date of the adoption the adopted sonbecomes a member of the coparcenary, and takes his share in the join'property, but where the partition takes place after the termination of thecoparcenary by the death, actually or fictionally, of the last survivingcoparcener, the adoption by a widow of a deceased coparcener has not theeffect of reviving the coparcenary and does not divest property from the heirof the last surviving coparcener (other than the widow) or those claimingthrough him or her. But' the decision of the full bench of the BombayHigh court was expressly overruled by the Judicial Committee in Anant v.Shankar It was held that the power of a Hindu widow does note ome to anend on the death of the sole surviving coparcener. Neither does it dependupon the vesting or divesting of the estate, nor can the right to adopt bedefeated by partition between the coparceners. THE rights of the adoptedson relate back to the date of the adoptive father's death and the adopted sonmust be deemed by a fiction of law to have been in existence as the son of theadoptive father at the time of the latter's death. If, therefore, there was acoparcenary in existence when the adoptive father died, then whether itcame to an end by the death of the last surviving coparcener or by subsequentpartition among the remaining members, an adoption validly made by thewidow of the deceased coparcener would have the effect of divesting theestate in the hands of the heir to the last surviving coparcener in the first caseand of putting an end to the partition in the second case and enabling theadopted son to claim a share in the family properties as if they were stilljoint. THE decision of the Judicial Committee in Anant v. Shankar wasunexpected and revolutionary in character. It is likely that in view of thefluid and uncertain state of the law on.this point the two brothers Goudappaand Apparaya decided to execute a bogus deed of partition in order to avoidany legal consequence which may follow if either of the widows should take390a son in adoption. We are accordingly of the view that there is properevidence to support the concurrent finding of the lower courts and there isno reason to disturb that finding. It was also contended on behalf of the appellants that even thoughthe partition deed was bogus there was in law a severence of joint familystatus and the family could not continue to be joint after 20/04/1944,which was the date of the partition deed. In other words, the argument wasthat there was a declaration by the coparceners of their intention to separateand that declaration was sufficient to put an end to the joint family status ofthe two brothers. In our opinion, there is no substance in this argument. Itis now well established that an agreement between all the coparceners is not essentialto the disruption of the joint family status, but a definite and unambiguous indicationof intention by one member to separate himself from the family and to enjoy his sharein severalty will amount in law to a division of status. It is immaterial in such acase whether the other members assent or not. Once the decision isunequivocally expressed, and clearly intimated to his co-sharers, the right ofthe coparcener to obtain and possess the share to which he admittedly isentitled, is unimpeachable. But in order to operate as a severance of jointstatus, it is necessary that the expression of intention by the member separat-ing himself from the joint family must be definite and unequivocal. Ifhowever the expression of intention is a mere pretence or a sham, there is inthe eye of law no separation of the joint family status. See for instance thedecision of the Judicial Committee in Merla Ramanna v. Chelikani JagannadhaRao and Others.;