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SUPREME COURT OF INDIA
10th March 1965
K. SUBBA RAO, J.C. SHAH AND R.S. BACHAWAT, JJ.
Karpagathachi and others, Appellants
Versus
Nagarathinathachi, Respondent.
Civil Appeal No. 998 of 1963.
Advocates appeared
Mr. A. V. Viswanatha Sastri, Senior Advocate, (M/s. V. S. Ramaswami Iyengar and R. Thiagarajan, Advocates, with him), for Appellants; Mr. S. V. Gupte, Solicitor General of India (Mr. R. Ganapathy Iyer, Advocate, with him), for Respondent.
PARTITION - Hindu Law - Widow's Estate - Partition between widows - Whether destroys right of survivorship - Whether agreement to relinquish right of survivorship can be inferred from mere partition - Transfer of Property Act (4 of 1882), S. 6 (a).
Fact of the Case:
Two widows inherited their husband's properties and divided the bulk of the properties in July 1927. The partition was evidenced by two partition lists called partition deeds, Exs. A-1 and B-45, dated July14, 1927 and signed by both of them. On August 26, 1954, one of the widows died, and upon her death, the respondent took possession of the properties allotted to her under the partition of July, 1927. The other widow instituted a suit claiming possession of the suit properties.
Finding of the Court:
The court held that the partition between the widows was for convenience of enjoyment only, and each widow did not give up her right of survivorship in respect of the properties allotted to the other. The court further held that the partition lists, Exs. A-1 and B-45, not being registered, were not admissible in evidence.
Issues: 1. Whether the right of survivorship of each widow in respect of her husband's estate is the chance of the surviving widow to take the entire estate of her husband on the death of the co-widow, and in view of S. 6 (a) of the Transfer of Property Act, 1882, the widows were not competent to enter into an arrangement transferring or relinquishing their right of survivorship? 2. Whether the partition lists, Exs. A-1 and B-45 not being registered, are not admissible in evidence? 3. Whether the partition between the widows was for convenience of enjoyment only, and the respondent has failed to establish that each co-widow gave up her right of survivorship in respect of the properties allotted to the other.
Ratio Decidendi: 1. The right of survivorship of each widow in respect of her husband's estate is not the chance of the surviving widow to take the entire estate of her husband on the death of the co-widow, but it is a present interest in the properties inherited by her together with the incidental right of survivorship. Section 6 (a) of the Transfer of Property Act, 1882 does not prohibit the transfer by the widow of her present interest in the properties inherited by her together with the incidental right of survivorship. 2. A partition may be effected orally, and the partition lists, Exs. A-1 and B-45, were merely pieces of evidence of the oral partition. 3. Mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other. The party who asserts that there was an arrangement by which the widows agree to relinquish the right of survivorship must establish this arrangement by clear and cogent evidence.
Final Decision: The appeal was allowed, the decree and judgment passed by the High Court were set aside and those of the trial Judge restored.
Judgment
BACHAWAT, J.: One Sivasubramania Pillai died in the year 1924 leaving him surviving his mother, two widows, Thialaiachi and Karpagathachi, and a daughter, Nagarathinathachi (respondent herein) born of Thialaiachi. The two widows inherited the properties left by Sivasubramania. In July 1927, they divided the bulk of the properties and each entered into separate possession and enjoyment of the properties allotted to her. The partition is evidenced by two partition lists called partition deeds, Exs. A-1 and B-45, dated July14, 1927 and signed by both of them. Under this partition, two velis of land were set apart for the maintenance of Sivasubramania s mother, to be enjoyed by her during her lifetime, and on her death, to be taken and enjoyed by the two widows in separate portions as mentioned in the partition lists. On August 26, 1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927. On December 8, 1954, Karpagathachi instituted against the respondent the suit, out of which this appeal arises, claiming possession of the suit properties. The respondent resisted the suit claiming that under the partition each widow gave up her right of survivorship in respect of the properties allotted to the other, and consequently on the death of Thialaiachi, the respondent as her daughter was entitled to take her share as her heir and to enjoy the same during the life of Karpagathachi. By his judgment, dated August 18, 1958, the District Judge, East Thanjavur, rejected the defendant s contention, and held that the division between the two widows was for convenience of enjoyment only, and decreed the suit in respect of the properties held by Thialachi under the partition of July, 1927. On appeal, the Madras High Court by its judgment, dated January 12, 1962 held that under the partition each widow gave up her life interest in the properties allotted to the other and consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit. Karpagathachi and several other persons impleaded as party respondents in the appeal before the High Court now appeal to this Court under a certificate granted by the High Court under Art. 133 of the Constitution.
2. Mr. Viswanatha Sastry appearing on behalf of the appellants contends that (1) the right of survivorship of each widow in respect of her husband s estate is the chance of the surviving widow to take the entire estate of her husband on the death of the co-widow, and in view of S. 6 (a) of the Transfer of Property Act, 1882, the widows were not competent to enter into an arrangement transferring or relinquishing their right of survivorship; (2) the partition lists, Exs. A-1 and B-45 not being registered, are not admissible in evidence; (3) the partition between the widows was for convenience of enjoyment only, and the respondent has failed to establish that each co-widow gave up her right of survivorship in respect of the properties allotted to the other. The learned Solicitor-General appearing on behalf of the respondent disputed these contentions.
3. We are of opinion that the first contention of Mr. Viswanatha Sastry should be rejected. Under the Hindu law as it stood in 1924, two widows inheriting their husband s properties took together one estate as joint tenants with rights of survivorship and equal beneficial enjoyment. They were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Bhugwan Deen Doobey v. Myna Baee, 11 Moo Ind App 487 (PC), Gauri Nath Kakaji v. Mt. Gaya Kuar, 55 Ind App 399: (AIR 1928 PC 251). Neither could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see Commissioner of Income-tax v. Smt. Indira Balakrishna, 1960-3 SCR 51
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