2020 Supreme(SC) 449

SUPREME COURT OF INDIA
Sanjay Kishan Kaul, K.M Joseph, JJ.
V. Kalyanaswamy(D) By Lrs. & Anr. – Appellants
VERSUS
L. Bakthavatsalam(D) By Lrs. & Ors. – Respondents
Civil Appeal Nos.1021-1026 of 2013; Civil Appeal With Nos.1027-1032 of 2013; Civil Appeal Nos. 1033-1038 of 2013; Civil Appeal Nos. 1039-1044 of 2013 and Civil Appeal Nos. 1045-1050 of 2013
Decided on : 17-07-2020

IMPORTANT POINTS
(1) Bar on subsequent suit – Cause of action is not to be confused with relief which is sought.
(2) Vested interest is different from contingent interest. Two have vastly different consequences.
(3) Proof of execution of Will – Fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will – Requirement of sound disposing capacity is not to be confused with physical well-being
(4) Section 14(1) of Hindu Succession Act do not confer title on a mere trespasser – It does not confer any right on a person possessing property without any vestige of title.
(5) There cannot be presumption that a person has read a particular newspaper and even more importantly, that he has read Notice.

Headnote:

(A) Civil Procedure Code, 1908 – Order II Rule 2 – Omission to sue for one of several reliefs – Cause of action is not to be confused with relief which is sought – It has more to do with basis for relief which is sought – Be it omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), fatal consequences they pose, will arise only if cause of action is same – Law contemplates a distinction between a case where a claim arising out of cause of action is either intentionally relinquished or omitted to be sued upon – Such a claim cannot be subject matter of a fresh suit – However, when more than one reliefs are available stemming from same cause of action, then, seeking further reliefs than sought in first suit, except where leave is obtained, would be barred – It is open to a plaintiff to omit any portion of claim – However, consequences of same are declared in Order II Rule 2 (2) of CPC. (Paras 47 and 54)

(B) Transfer of Property Act, 1882 – Section 19 – Indian Succession Act, 1925 – Section 119 – Vested interest and contingent interest – Vested interest is different from contingent interest – Two have vastly different consequences – Upon death of legatee under Will, in whom absolute right is vested after transient possession and enjoyment of life estate holder, a heritable right, which, in fact, arose at the time of the death of testator, would confer legal rights upon heirs of absolute owner under Will when succession to his estate opens, should he not wish to leave a Will behind – Though right is vested in property, enjoyment of property with absoluteness of a full owner under Will could be done by appellants only. (Para 52)

(C) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Sections 33, 68 and 69 – Proof of execution of Will – In a case covered under Section 69 of Evidence Act, what is to be proved as far as attesting witness is concerned, is, that attestation of one of attesting witness is in his handwriting – Section 68 of Evidence Act contemplates attestation of both attesting witnesses to be proved – But that is not the requirement in Section 69 of Evidence Act – In a case where there is evidence which appears to conform to requirement under Section 69, Court is not relieved of its burden to apply its mind to evidence and find whether requirements of Section 69 are proved – Section 69 of Evidence Act manifests a departure from requirement embodied in Section 68 of Evidence Act – In case of a Will which is required to be executed in the mode provided in Section 63 of Indian Succession Act, when there is an attesting witness available, Will is to be proved by examining him – He must not only prove that attestation was done by him but he must also prove attestation by other attesting witness – Fate of transferee or a legatee under a document which is required by law to be attested, is not placed at mercy of attesting witness and law enables proof to be effected of document despite denial of execution of document by attesting witness. (Paras 68, 70, 71 and 74)

(D) Indian Succession Act, 1925 – Section 63 – Proof of execution of Will – Suspicious circumstance – Fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will – What is important is whether he is conscious of what he is doing and will reflects what he has chosen to decide – Requirement of sound disposing capacity is not to be confused with physical well-being – A person who is having a physical ailment may not be robbed of his sound disposing capacity – Making a totally incorrect statement in a Will arouses suspicion – This is on the principle that testator would not make an incorrect statement when he makes a Will – If he makes a rank incorrect statement inference is that he would not have made that Will – In present case, will is a registered will – Fact that no bequest is made in favour of sons of testator cannot be treated as a suspicious circumstance. (Paras 81 and 82)

(E) Hindu Succession Act, 1956 – Section 30 – Authority to execute Will – As long as family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share – Share remains shrouded and emerges only with division in title or status in joint family – Once there is a division share of a coparcener is laid bare – He becomes owner of “that share” and he can alienate ‘the same’ – It is different from saying that he is owner of property in the sense of being exclusive owner. (Paras 104 and 106)

(F) Hindu Law – Partition – It can be by words – It can be by conduct – It can also embrace very filing of a suit for partition – Right of a Hindu in coparcenary joint family is an interest – Upon disruption or division, it assumes form of a definite share – When there is a metes and bounds partition then share translates into absolute rights qua specific properties – During interregnum (Division in title but before there is a partition of property by metes and bounds), properties of family would continue to remain joint – Unless there is partition qua properties, though shares are ascertained by partition in sense of a division in joint family, no coparcener could point to any specific item and claim it to be his – A man cannot ordinarily transfer a right greater than what he himself has. (Paras 101, 107, 108 and 120)

(G) Hindu Women’s Right to Property Act, 1937 – Section 3 – Object and purpose – By virtue of Section 3(2), there is no rupture in coparcenary – With passing of 1937 Act, in areas to which it applied, an intrusion was indeed made upon a coparceners right to set-up a claim to property of a deceased coparcener based on Doctrine of Survivorship but the Act did not annihilate said Right – Right to claim by Survivorship came to be suspended but not extinguished – Widow, though not a coparcener, was like a coparcener in most respects – She was also conferred with right to claim partition – So long as she did not claim partition and property remained intact upon her death, right to claim by survivorship which stood eclipsed, revived and coparceners would become entitled to property on the basis that succession opened as if coparcener died when widow died – On other hand, if widow claimed partition, her interest transformed into a defined interest and Right to Claim by Survivorship, which stood suspended, was destroyed – Property would then enure to heirs of husband. (Para 108)

(H) Property Law – Partition – Notice – Merely causing a Notice to be published, without there being evidence to show that intended recipient became aware of it, may not suffice – Though Notice in a newspaper is purported to serve as Notice to general public, what is required is Notice to concerned coparcener – There cannot be presumption that a person has read a particular newspaper and even more importantly, that he has read Notice. (Para 153)

(I) Hindu Succession Act, 1956 – Section 14 – Hindu Female Succession – Section 14(1) of Hindu Succession Act do not confer title on a mere trespasser – It does not confer any right on a person possessing property without any vestige of title – Possession of a licensee, lessee or a mortgagee from female owner or possession of a guardian or a trustee or an agent of female owner would be her possession for the purpose of Section 14. (Paras 168 and 172)

Facts of the case:

Trigger for the present litigation was provided by certain transactions by way of sale entered into by A. Alagiriswami (one of the four legatees under the alleged Will by Rangaswami Naidu). Properties belong ancestrally to R. Lakshmiah Naidu and his brother Rangaswami Naidu. Lakshmiah Naidu and his brother Rangaswami Naidu constituted the joint Hindu Family and the plaint schedule property were the joint properties. Rangaswami Naidu died in 1955 without any issues and without any partition, therefore, the suit properties, on the death of Rangaswami Naidu being coparcenary properties on his death, the surviving coparcener Lakshmiah Naidu took all the properties. Krishnamaal, the widow of Rangaswami Naidu was only entitled to limited interest as per the law on that date. The death of Rangaswami Naidu before Hindu Succession Act resulted in the surviving coparceners taking all the property by survivorship plaintiffs sought declaration of title and also prayed for injunction. It is on the basis that they were in possession and the action of the first defendant (A. Alagiriswami) in executing sale deed in favour of the other defendants was without any authority and they were attempting to disturb the possession of the plaintiffs.

Findings of Court:

Following the death of her husband on 01.06.1955, there are two streams providing right to make a claim over the property in favour of R. Krishnammal, when the Hindu Succession Act came into force. Under the Will, she was conferred with a life estate. If the Will is treated as non-existent or invalid, then, again there can be two situations. Her case would fall to be covered either under Section 3(1) or 3(2) of the Hindu Women’s Right to Property Act, 1937 depending on whether the property was separate property of V. Rangaswami Naidu or an interest in Joint Hindu Family Property. She was also having a right to be maintained. Therefore, in the facts of this case in view of the finding that the properties bequeathed under the Will and which are the plaint scheduled properties are not the separate properties of Rangaswamy Naidu, She would have the right to the properties under Section 3(2) of the 1937 Act.

Result : Appeals dismissed.