# BINDUMATI BAI v. NARBADA PRASAD

- **Citation:** [1977] 1 S.C.R. 988
- **Court:** Supreme Court of India
- **Decided:** 1976-10-28
- **Case number:** Civil Appeal No. 870 of 1968
- **Bench:** H. R. Khanna, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bindumati-bai-v-narbada-prasad-6993
- **Pages:** 5

## Headnote

Hindu Law-If a co-widow can rdinquish right of sunivorsldp--W/u:ther
after relinquishment, a widow can dispose of property by will.
One Lakshmi Dayal died in 1952 leaving behind two widows, appellant and
Shantibai.
In 1954, Chandanbai widow of brother of Laxmi Dayal filed a suit
ag11inst the appellant and Shantibai in respect of the properties left by tnkshmi
Dayal.
During the pendency of the said suit, the appellant, Shantibai
and
Chandanbai executed a partition deed alloting different propertie~ to each one
of the widows.
The partition deed was registered
and necessary •mutation
entries were made.
The suit filed by Chandanbai WM disposed of in terms of
the Partiti011 Deed. In September, 1955, Shantibai made a will in favour of
the respondent and she died on 29-5-1956.
After her death, the appellant took
forcible possession of the suit land from the respondent. The respondent, therefore, filed a suit against the appellant for possession of the land in dispute. The
Trial Court, the first Appellate Court and the High Court in Second
Appeal
came to the conclusion that the appellant had relinquished her right of survivorship in lands which fell to the share of Shantibai and, therefore, decreed the
respondent's suit.
In an appeal by Special Leave the, appellant contended :
1. The appellant did not relinquish her right of survivorship.
2. It is not permissible for a Hindu co-widow to give up her right of
1survivorship even by an agreement.
•
3. Even if right of survivorship can be given up during the lifetime of
the widows concerned, the property could bave been transfeJTed inter
vivas but could not have been disposed of by a will.
Dismi~sing the appeal,
HELD : 1. It is clear from the Partition Deed and the evidence of the appellant
herself that ~he had relinquished her right of survivo"hip. The findings of all the courts below to the effect that th~ appellant relinquished
her right of survivorship are correct.
[IJ90 B-C]
2. lt is permissible under Hindu Law for a co-widow to relinquish by
\
agreement her right of survivorship in the property which falls to the
"\
share of the other widow. [990 GJ
Karpagathac/1i & Ors. v. Nagarathipathachi ,[19651 3 SCR 335 followed.
Bliuowan Deen Dooboy v. Myna Baeo <1867) 11 MTA 487; Gauri
Nath
G
Kakaji v. Caya Kaur (1928) LR 55 IA 299 referred.
•
H
Commissioner of lncomo-Tax v. Smt. Indira Balakrish11a [1960] 3 SCR 513
517 distinguished.
'
Ramakkal v. Ramasa_mi Naichan (1899) ILR, 22 Mad. 522, Sudalai Ammal
v. Comathi A mmal (1912) 23 PLJ 355; Kai lash
Chandra
Chuckerburty
v.
Kashi Chandra Chuckorbutty [1897] ILR 24 Cal. 339; Subbammal v. Lakshmana Iyer (1914) 26 MU 479; Ammani A.mmal v. Periasemi Udavan (1923)
4 5 MLJ 1 refeJTed to.
·
_3. The power o_f a co-wi~o:w to. execute a will i~ reSJ't'.Ct of the property
falling to her share in the partition with the other co-widows 1s co-extensive with
her power to tran~fer it intor vivos.
/
')
I
BINDUMATI BAI v. NARBADA PD. (Khanna, J.)
989

## Text

A
B
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D
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F
988
BINDUMATI BAI
v.
NARBADA PRASAD
October 28, 1976
[H. R. KHANNA AND V. R. KRISHNA IYER JJ.]
Hindu Law-If a co-widow can rdinquish right of sunivorsldp--W/u:ther
after relinquishment, a widow can dispose of property by will.
One Lakshmi Dayal died in 1952 leaving behind two widows, appellant and
Shantibai.
In 1954, Chandanbai widow of brother of Laxmi Dayal filed a suit
ag11inst the appellant and Shantibai in respect of the properties left by tnkshmi
Dayal.
During the pendency of the said suit, the appellant, Shantibai
and
Chandanbai executed a partition deed alloting different propertie~ to each one
of the widows.
The partition deed was registered
and necessary •mutation
entries were made.
The suit filed by Chandanbai WM disposed of in terms of
the Partiti011 Deed. In September, 1955, Shantibai made a will in favour of
the respondent and she died on 29-5-1956.
After her death, the appellant took
forcible possession of the suit land from the respondent. The respondent, therefore, filed a suit against the appellant for possession of the land in dispute. The
Trial Court, the first Appellate Court and the High Court in Second
Appeal
came to the conclusion that the appellant had relinquished her right of survivorship in lands which fell to the share of Shantibai and, therefore, decreed the
respondent's suit.
In an appeal by Special Leave the, appellant contended :
1. The appellant did not relinquish her right of survivorship.
2. It is not permissible for a Hindu co-widow to give up her right of
1survivorship even by an agreement.
•
3. Even if right of survivorship can be given up during the lifetime of
the widows concerned, the property could bave been transfeJTed inter
vivas but could not have been disposed of by a will.
Dismi~sing the appeal,
HELD : 1. It is clear from the Partition Deed and the evidence of the appellant
herself that ~he had relinquished her right of survivo"hip. The findings of all the courts below to the effect that th~ appellant relinquished
her right of survivorship are correct.
[IJ90 B-C]
2. lt is permissible under Hindu Law for a co-widow to relinquish by
\
agreement her right of survivorship in the property which falls to the
"\
share of the other widow. [990 GJ
Karpagathac/1i & Ors. v. Nagarathipathachi ,[19651 3 SCR 335 followed.
Bliuowan Deen Dooboy v. Myna Baeo <1867) 11 MTA 487; Gauri
Nath
G
Kakaji v. Caya Kaur (1928) LR 55 IA 299 referred.
•
H
Commissioner of lncomo-Tax v. Smt. Indira Balakrish11a [1960] 3 SCR 513
517 distinguished.
'
Ramakkal v. Ramasa_mi Naichan (1899) ILR, 22 Mad. 522, Sudalai Ammal
v. Comathi A mmal (1912) 23 PLJ 355; Kai lash
Chandra
Chuckerburty
v.
Kashi Chandra Chuckorbutty [1897] ILR 24 Cal. 339; Subbammal v. Lakshmana Iyer (1914) 26 MU 479; Ammani A.mmal v. Periasemi Udavan (1923)
4 5 MLJ 1 refeJTed to.
·
_3. The power o_f a co-wi~o:w to. execute a will i~ reSJ't'.Ct of the property
falling to her share in the partition with the other co-widows 1s co-extensive with
her power to tran~fer it intor vivos.
/
')
I
BINDUMATI BAI v. NARBADA PD. (Khanna, J.)
989
CIVIL APPELLATE JuRISDICTION : Civil Appeal No. 870 of 1968.
A
(From the Judgment and Order dated 22.11.1967 of the Madhya
Prades·h High Court in Second Appeal No. 436/64.
G. L, Sanghi and D. N. Misra for the appellant.
P. H. Pa;rekh (amicus curiae) for the respondents.
B
The Judgment of the Court was delivered by
•
KHANNA, J.-This appeal by special leave i8 against the judgment
of tlf Madhya Pradesh High Court affirming on second appeal
the
decision of the trial court and the first appellate court whereby suit
C
for possession of the land in dispute had been decreed in favour of
the. plaintiff-respondent against the defendant-appellant.
Laxmi Dayal died in 1952 leaving the lands in dispute and some
other properties.
He was succeeded by his two widows, Shantibai
and Bindumati.
In 1954 Chandanbai, widow of brother of Laxmi
Dayal, filed civil suit No. 34A of 1954 against Shantibai and Bindumati in respect of the property left by Laxmi Dayal.
During
the
pendency of that suit, a deed of partition was executed by Shantibai,
Bindumati and Chandanbai, as a result of which each one of them
was stated to have become full owner of the property which fell to
her share. The partition deed was got registered and necessary mutation entries were made in accordance with that deed.
On September
8, 1955, Shantibai made a will of the property which fell to her share
as a result of partition, in favour of the plaintiff-respondent.
The
suit filed by Chandanbai was disposed of on February 18, 1956 in
terms of partition deed dated January- 13, 1955.
Shantibai died on
May 29, 1956.
The m;pondent filed the present suit against Bindumati defendant-appellant for possession of the land in dispute on the
allegation that he (the m;pondent) had taken possession of the land
in dispute in pursuance of the will executed in his favour by Shantibai.
The appellant was stated to have relinquished her right of survivorship
in the land which fell to the share of Shantibai.
The appellant,
it
was further pleaded, had taken forcible possession of the land in
dispute.
-
The suit wa~ resisted by the apP-ellant on the ground that she had
not relinquished her right of survivorship in the land which fell to the
share of Shantibai.
Shantibai, it was further averred, had no right
to dispose of the said land by will.
The trial court accepted the contention of the respondent and decreed his suit.
The decision of the
trial court was affrmed on appeal by the first appellate court and by
the High Court in second appeal.
The first question which arises for consideration in this appeal is
whether the appellant relinquished her right of survivorship in
the
property which fell to the share of Shantibai as a result of the deed of
partition dated January 13, 1955. In this respect we find that each
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990
SUPREME COURT REPORTS
[1977] 1 S.C.R.
A
of the three executants stated in that deed that none of them would
have any. right or claim over the property that fell to the share of
other shareholders in partition.
It was further stated in the deed :
B
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"Every shareholder may get the property fallen to her
share, mutated and may take possession thereof and thus
may become absolute owner thereof.
Every shareholder
may get her name separately mutated in Patwari's papers.
She may sell it.
If other shareholder claim it, it will
be
contrary to law.. . . . . .
. .. By taking our respective share
from the entire property in the partition we become separate
from the entire property."
•
When she came into the witness box, the appellant admitteq that
their object in making the partition was that they would be abre to
dispose of their separate lands in any way they liked.
The appellant
also stated that as a result of partition, each one of the executants of
the deed of partition became exclusive owner of the property that fell
to her share.
Jn the face of the recitals in the deed of partition and
the admissions made by the appellant in the witness box, we find no
reason whatsoever to disturb the finding of the courts below that the
appellant had relinquished her right of survivorship in the
property
which fell to the share of Shantibai.
Mr.
Sanghi on behalf of the appellant, however, contends that it
is not permissible in Hindu law for a widow to give up her right of
survivorship in the property which falls to the share of the co-widow
even as a result of an agreement.
This contention, in our opinion, is
devoid of force and runs counter to the decision of this Court in the
case of KarpagMhachi & Ors. v. Nagarathipathachi.(1)
As observed
in that case,
"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 Dhuowan Deen Dobey
v. Myna Baee(2), Gauri Nath Kakaji v. Gaya Kuar( 3).
Neither of them 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(4 ). But by mutual consen\ they could
enter into any arrangement regarding their respective rights
in the properties during the continuance of the widow's estate, and could absolutely divide the properties, so as to
preclude the right of survivorship of each of the
portion
allotted to the other see Ramakkal v. Ramasami Naichan
(5),,
Sudalai Ammal v. Gomathi
Ammal( 6). Likewise,
two daughters succeeding to their father's estate as joint
(1) [1965] 3 S.C.R. 335.
(2) (1867) 11 MIA 487.
(3) (1928) L.R. 551.A. 299.
(4) [1960]3 S.C.R. 513, 517,
(5) (1899) I.L.R 22 Mad, 522,
(6) (1912) 23 M.L.J., 355,
BINDUMATI BAI v. NARBADA PD. (Khanna, !.)
991
tenants with rights of survivorship could enter into a similar
arrangement, see
Kai/ash Chandra Chuckerbutty v. Kashi
Chandra
Chuckerbutty ('),
Subbammal
v.
Lakshmanu
lyer( 2), Ammani Ammal v. Periasami Udavan.( 3)
Such an
arrangement was not __ repugnant to section 6(a) of the Transfer of Property Act, 1882.
The interest of each widow in
the properties inherited by her was property, and this property together with the incidental right of survivorship could
be lawfully transferred.
Section 6(a) of the Transfer of
Property Act prohibits the transfer of the bare chance
of
the surviving widow taking the entire estate as the
next
• heir of her husband on the death of the Co-widow, but it
does not prohibit the transfer by the widow of her present
interest in the propertie-s inherited by her together with the
•incidental right of survivorship.
The widows were competent to partition the properties and allot separate portions
to each, and incidental to such an allotment, each could agree
to relinquish her right of survivorship in the portion allotted
to· the other."
·
There is nothing in the decision of Smt. Indira Ba/akrishna (supra)
which stands in the way' of any mutual arrangement between the cowidows, the effect of which would be to preclude the right of survivorship of each to the portion allotted to the other. The question
which actually arose for decision in that case was whether the three
widows of a deceased person could have the status of an association
of persons within the meaning of section 3 of the Indian Income-tax
Act, 1922.
This question was answered in the negative.
While
discussing this question, this Court observed that though the widows
take as joint tenants, none of them has a right to enforce an absolute
partition of the estate against the other so as to destory the right of
survivorship.
The question as to whether the right of survivorship
could be relinquished as a result of mutual agreement did not arise for
consideration in that case.
This question was dealt with in the case
of Karpagathachi (supra) and it was held after noticing the decision
in Smt. Indira Balakrishna's case (supra) that 'such relinquishment
of the right of survivorship was permissible as a result of mutual
arrangement.
Lastly, it has been argued by Mr. Sanghi that even though Shantibai
became entitled to dispooe of during her life time the property which
fell to her share as a result of the deed of partition, she could
not
bequeath the same by means of a will.
This submission too
is
devoid of force, and we agree with Mr. Parekh who argued the case
amicus curiae that the power of Shantibai to make a will in respect of
the property in dispute was co-extensive with her power to transfer it
inter vivos. The question as to what effect the will would have on,
the right of the· male reversioner, if any, of Laxmi Dayal need not be
gone into in this case.
So far as Bindumati appellant is concerned,
we have no doubt that in the light of the arrangement contained in
the deed of partition dated January 13, 1955 she cannot resist the
(1) (1897) ILR. 24. ·cal. 339,
(2) (1914) 26 M.L.J. 479,
(3) (1923) 45 M.L..T. 1.
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992
SUPREME COURT REPORTS
[1977] 1 S.C.R.
A
claim of the plaintiff-respondent who is a legatee under the
will of
Shantibai.
To hold otherwise would be tantamount to permitting the
appellant to assert her right of survivorship in the property which fell
as a result of partition to the share of Shantibai even though the appellant has relinquished such right of survivorship.
The appeal consequently fails and is dismissed.
As no
one
appeared on behalf of the respondent, we make no order as to the
costs of the appeal.
P.H.P.
Appeal dismis~d.
•
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I