# KALLYANI v. NARAYANAN AND ORS

- **Citation:** [1980] 2 S.C.R. 1130
- **Court:** Supreme Court of India
- **Decided:** 1980-02-27
- **Case number:** Civil Appeal No. 2544 of 1969
- **Bench:** V. D. Tulzapurkar, D. A. Desai, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kallyani-v-narayanan-and-ors-7712
- **Pages:** 22

## Headnote

Maru111akkatayan1 Law-Property ancestral and of joint ftanilv-Will executed by a testator would be ineffective as he had no power or
~uthority to
dispose of by will ancestral properties in Ids hand.
Partition n1eaning of-Hindu Law-Effect of partition under Hindu AJitakshara
Law-A Hindu father has the po1ver to partition the joint fan1ily property ·which
includes the di.\Tuption of joint fa1nily status.
One Karappan son of Chulliparambil Krishnan had two wives Naini tm.d
1'onni.
Through
bis
first 'vife Naini he had four
sons-Kric;hnan (D1),
Shankaran (D2), Raman and the husband of plaintiff appellant Kallyani who
died after him at1d Madhavan \Vho• predeceased him and husband of D3 and
father of D4, D5 and D6-and four daughters.
Ile had one son by name
Kesavan and two drlughters, through his second wife Ponni.
One \'aHi! \\'as
the second wife of his father and she had three daughters.
Karappa·n and' his
family are Ezhavas and in the matter of inheritance, succession and oo the
question of personal !a\V they \Vere governed essentially by customary law and
in the a-bsence of any specific custom, they are governed by the Hindu, Mitakshara law. Karappan executed. a registered deed variously described as a will
or a deed of partition or evidencing family arrangement, Ex. Pl dated January
25, 1910. In this deed after na.rrating his near relations including his two wives
male and fema1e children born to each and his father's second \1.-ife and her
children, he described the manner in which the A, B and C scheduled properties
should be taken by them. after his death.
In February 1910 Karappan died.
Raman, the husb~nd of the plaintiff appellant, the third son of the first wife
died on February 20, 1936. Plaintiff widow of Raman sued for partition and
separate possession of her undivided !t11 share in properties set out in A, B
and C schedules to the plaint.
The Trial Court held tlrnt Ext. Pl had the
effect of constituting a coparcenary of four brothers, sons of first
wife
of
Ka·rappan and that it was their joint family property and they did not hold as
tenants-in-common but as joint tenants and were governed by survivorship in
the matter of succCssion. The contention that even in such a situation the widow
wou1d be entitled to her husband's share. becau'ie'· of a customary right was
negatived. In respect of B & C schedule properties, it ·was held that they
belonged exclusively to defendant 1 and his wife a11d plaintiff c<lnnot claim
a share in them.
The High Court affirmed the Trial . Court':s judg1nent and
decree treating Ex. Pl as family arrangement and hence the plaintiff's appeal
by certificate.
Allo\ving the appeal, the Court
'B
HELD: 1. Ext. PL siyled as a will by the deceased Karappan is not
effective as a wi11.
If by Ext. P-1 deceased Karappan atten1pted tc make a
\Vill of the ancestral property in his hand in \vhich his sons had ncquired
.. ~
•
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KALLYANI v. NARAYANAN
1 I 3 I
·interest by birth, obviously he had no power to make a will in respect of
such property. Ex. Pl does not purport to devise by will the undivided share
of btator Karappan in the jo_int family property, but he attempts to dispose
of by a will all the properties in which his sons had interest by birth. He
had not claimed any share in the property but claimed a right to deal with
ancestral property as he desired.
Jn Ex. Pl itself he describes properties set
eut in schedules A and B annexed to Ex. Pl as his tarvad properties. [1139BC]
2. Expression "tarvad" in Marumakkattayam law is. the narne given to the
joint family consisting of 1nales and females, a.II dcsca1dants in the female line
from a .common ancestress.
A tarvad may consist of two or more branches
kncw.n as 'Thavazhies', each tavazhi or brooch consisting of one of the female
members of the tarvad and her descendant~ in the. female line.
Thus when
property is described as tarvacl p1~operty in a broad sense it is admitted to be
joint family.
This also becomes. clear from the recital in Ex. P.1 that p

## Text

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1130
KALLYANI
v.
NARAYANAN AND ORS.
February 27, 1980
[V. D. TULZAPURKAR, D. A. DESAI AND A. P. SEN, JJ.]
Maru111akkatayan1 Law-Property ancestral and of joint ftanilv-Will executed by a testator would be ineffective as he had no power or
~uthority to
dispose of by will ancestral properties in Ids hand.
Partition n1eaning of-Hindu Law-Effect of partition under Hindu AJitakshara
Law-A Hindu father has the po1ver to partition the joint fan1ily property ·which
includes the di.\Tuption of joint fa1nily status.
One Karappan son of Chulliparambil Krishnan had two wives Naini tm.d
1'onni.
Through
bis
first 'vife Naini he had four
sons-Kric;hnan (D1),
Shankaran (D2), Raman and the husband of plaintiff appellant Kallyani who
died after him at1d Madhavan \Vho• predeceased him and husband of D3 and
father of D4, D5 and D6-and four daughters.
Ile had one son by name
Kesavan and two drlughters, through his second wife Ponni.
One \'aHi! \\'as
the second wife of his father and she had three daughters.
Karappa·n and' his
family are Ezhavas and in the matter of inheritance, succession and oo the
question of personal !a\V they \Vere governed essentially by customary law and
in the a-bsence of any specific custom, they are governed by the Hindu, Mitakshara law. Karappan executed. a registered deed variously described as a will
or a deed of partition or evidencing family arrangement, Ex. Pl dated January
25, 1910. In this deed after na.rrating his near relations including his two wives
male and fema1e children born to each and his father's second \1.-ife and her
children, he described the manner in which the A, B and C scheduled properties
should be taken by them. after his death.
In February 1910 Karappan died.
Raman, the husb~nd of the plaintiff appellant, the third son of the first wife
died on February 20, 1936. Plaintiff widow of Raman sued for partition and
separate possession of her undivided !t11 share in properties set out in A, B
and C schedules to the plaint.
The Trial Court held tlrnt Ext. Pl had the
effect of constituting a coparcenary of four brothers, sons of first
wife
of
Ka·rappan and that it was their joint family property and they did not hold as
tenants-in-common but as joint tenants and were governed by survivorship in
the matter of succCssion. The contention that even in such a situation the widow
wou1d be entitled to her husband's share. becau'ie'· of a customary right was
negatived. In respect of B & C schedule properties, it ·was held that they
belonged exclusively to defendant 1 and his wife a11d plaintiff c<lnnot claim
a share in them.
The High Court affirmed the Trial . Court':s judg1nent and
decree treating Ex. Pl as family arrangement and hence the plaintiff's appeal
by certificate.
Allo\ving the appeal, the Court
'B
HELD: 1. Ext. PL siyled as a will by the deceased Karappan is not
effective as a wi11.
If by Ext. P-1 deceased Karappan atten1pted tc make a
\Vill of the ancestral property in his hand in \vhich his sons had ncquired
.. ~
•
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KALLYANI v. NARAYANAN
1 I 3 I
·interest by birth, obviously he had no power to make a will in respect of
such property. Ex. Pl does not purport to devise by will the undivided share
of btator Karappan in the jo_int family property, but he attempts to dispose
of by a will all the properties in which his sons had interest by birth. He
had not claimed any share in the property but claimed a right to deal with
ancestral property as he desired.
Jn Ex. Pl itself he describes properties set
eut in schedules A and B annexed to Ex. Pl as his tarvad properties. [1139BC]
2. Expression "tarvad" in Marumakkattayam law is. the narne given to the
joint family consisting of 1nales and females, a.II dcsca1dants in the female line
from a .common ancestress.
A tarvad may consist of two or more branches
kncw.n as 'Thavazhies', each tavazhi or brooch consisting of one of the female
members of the tarvad and her descendant~ in the. female line.
Thus when
property is described as tarvacl p1~operty in a broad sense it is admitted to be
joint family.
This also becomes. clear from the recital in Ex. P.1 that properties
seL out in A and B schedules \Vere tarvad pr0pertics and property in C schedule
were claimed by him as his self~acquired properties and they were
to be
kept joint and were not sought to be dealt with by Ex. Pl. Therefore, to the
extent Ex. Pl purports to dispose of an ancestral properties by will it would
be ineffective as a will as Kara-ppan had no power or authority to dispose of
by will ancestral properties in his hand.
[1139C-GJ
3; Partition is a word of technical import in Ifindu l~w. Partition in one
sense is a severance of joint family status and coparcener of a copa-rcenary
is entitled to claim it as a matter of his individual volition.
In this narro\V
sense all that is necessary to constitute partition is a definite and unequivoca-l
indication of his intention by a member of a joint family to separate himself
from the. family and enjoy his share in severalty, Such an unequivocal intention
to sep&rate brings about a disruption of joint family status, at any rate, in
fe6PCCt of separating member or members and thereby puts an end to the
coparcenary with right of survivorship and such separated n1cmber holds from
the time of disruption of joint family as tenant-in-conimon. Such partition
bas an impact on devolution of shares of such members. It goes to his heirs
displacing survivorship. Such partition irrespective of y,:hether it is accompanied
or followed by division of properties by metes and bounds covers both a division
of right and division of property.
A disruption of joint fan1ily status by
definite and unequivocal indication to separate implies separation in interest
and in right, although not immediately followed by a de facto octual division
of .the subject-1natter. This may at any time, be claimed by virtue of the separate
right.
A physical and actual division of property by metes and bounds follows
frOl;Il disruption of status and \vould be termed partition in a broader sense.
[1140A-EJ
4. A Hindu father joint with his sons governed by Mitakshara. la\v has the
pov;er to partition lhe joint family property at any moment during his life
time. The consent of the sons is not necessary for the exercise of that power.
This power comprehends the power to disrupt joint ·family
status.
[l 141H,
1142A]
Ka11daswan1y v. Doraiswamy Iyer, [1880] ILR 2 ~Iad. 317; approved .
.5 •. Even though the f .. ther has a right to make a partition of the joint family
property in his hand, he has no right to make a partition by will of joint
family property amongst various members of the fa...1).i.ly except, of course, with
their consent. Jn the instant case, if by Ex .. Pl Karappan attempted to make
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1132
SUPREME COURT REl'ORT'i
(1980] 2 8.C.R.
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a partition of the property by his \vill, Ex. Pl would he ineiffective as a
partition.
~Y Ex. Pl Karappan does not divide his properly by metes and
bounds vesting the sh~ue of each in present in each of his sons. [1142-.B-CJ
B
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Ex. Pl would not be eIIcctive as a partition in broader sense, namely, dividing
property by metes and bounds fron1 the dnte on which it was executed as it
was to be effective from a future date and that future uncertain event \Vas
the death of Karappan and that during the tiinc he ~'ould remain alive he
\vould deal \Vith the properties at his S\Veet_will.
Further, there ·wn-3 no effective
partition by metes and bounds by E.x. Pl thLlugh the shares of sons were
specified aS also the provision for female members \Vas made.
If intention
of the testator is to be gathered from the language of
Ex. Pl
Ka.mppan
intended it to be a will not a partition in presenti.
Therefore, Ex. Pl cannot
be effective as a deed of partition in the broader sense i.e., partition by metes
and bounds.
[l 142E-G]
Brijraj Singh v. Sheoda11 Singh, 40 I.A. 161; referred.
6. An ineffective will sometimes though not ahvays, if otherv:ise consented
by all adult members, may be effective as a family arra-ngement but as the
father of a joint Hindu family has no power to impose' a family arrangement
under the guise of exercising the po\ver of partition, the power which undoubtedly
he had but \h.'hich he has, failed to effectively exercise, it cannot in the absence
of
consent
of
all
male
members bind them as a family arrangement.
[l 143D-FJ
7. A family management must be nn agreement amongst the various members of the family intended to be generally a.n<l reasonably for the benefit of
the family and secondly the agreement should be with the object either of
con1promising doubtful or disputed rights or for preserving the family property
or the place and security of the fan1i1y.
Jn this case, both these ingredtents
are absent.
[ll43F·G]
H. N. Aryornurthy &_ Anr. v. Jl.l. D. Subbaraya Setty (dead) through l.r5 and
Ors., [1972] 4 S.C.C. !; applied.
Brijraj Singh v. Shcodan Singh, 40 I.A. 161; Laksl11nichand v. AnanJi, 53
I.A. 123; discussed.
8. To be effective ns a family arrangement the deed n1ust be one intended
to operate from the date of the execution, and it must be assented to and
acquiesced in and acted upon by all. affecte-d party. In the
instant case,
Ex. Pl in term reserves to Karappan his right to <leal with the property at his
sweet will and was to be operative after his death. Moreover, at the time of
the execution of Ex. P.1 there· is no evidence as to who were the adult members
of the family other than Karappan who consented to the alleged family
arrangement
Assuming that Ex. Pl was to be treated as family arrangement
after the death of Karappan, the absence of any c,·idence of agreement amongst
family members entitled to share, to the tenns of Ex. P.1 when it was executed,
the absence of any dispute at or about the time Ex. P .1 was executed amongst
the members of the family sought to be settled by Ex. P.1 and the absence
of evidence that arrangement V.'as necessary for the security of the family or
property would wholly negative the contention that Ex. P. I would furnish
evidence of family arrnngement. Jt is doubtful whether ai Hindu father -can
•
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KALLYANI V. NARAYANAN
1133
tirnpose family arrangement sans direct evidence of consent of each of his sons,
to be effective after his death.
Therefore Ex. P-1 does not furnish evidence
<>f family arrangement.
[!444E-H, 1145A-CJ
9. In Hindu Law c111a joint family and joint fnmily property
th!'.'
word
"'partition' is understood in a- special sense.
Jf scverence of joint family statu~
is br0ught about by a deed, a writing or an. unequivocal declaration (,f intention
-to bring about such disn1ption, qua the joint fnmily, it constitutes partition.
1 'fo
·constitute a partition all that is hecessary is a definite and unequivocal indication
of intention by a member of a joint :fi1mily to sepamte himself from the family
Wt.at form such intimation, indication or representation of members should take
. -v.rould depend upon the circumstances of each case.
A further requirement is
A
B
·....-:
·that the unequivocal indication of intention to separate must be to the know-
~--
ledge of the persons affected by such declaration : This intention to separate
may be manifest in diverse ways. Undoubtedly, indication or intimation must
be to members of the joint family likely to be affected by such a declaration.
!ll45E-H, 1146A]
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Raghavan v. Chenchanuna, A.LR. 1964 S.C. 136; referred to.
10. Partition can be partial qua person and property but a partition which
'folio'WS disruption of joint family status will be a-mongst those who are entitled
to a share on partition. Till disruption of joint family status takes place no
D
-coparcener can claim wh.it is his exact share in coparcenary property. lt is
1iable to increase aod decrease depending upon the addition to the number or
·departure of a male mem~er and inheritance by survivorship.
But once a
.disruption of joint fantily status takes place, coparceners cease to hold the
pl·eperty as joint tenants but they hold as tenants-in-common.
[1146E-G]
In the instant case, on death of Karappan~ Kesavan the son of the second
E
-wife obtained a physical partition of the property took his O\\n share and Jeft
1he family, there was first a disruption of the joint family status. Looking to
the terms of Ex. P-1 there \Vas a disruption of joint family status a, the share
-0f each son was specified and vested, liabilities and obligations to\vards the
family members were defined and imbalance out of unequal division v.ras cor-
-rccted. This certainly has the effeet of bringing n·bout
disruption of
joint
·family sta.tus and even if there was no partition by metes and bounds and
F
the coparceners continued tOI remain under the same roof or enjoye.d the property
·without division by metes and bounds, they did not bold as joint tenants un1cas
re-union is pleaded and proved.
[1146G-H, 1147A]
11. There is no presumption when one coparcener separates from othe"
Lhat the latter remMned united.
An agreement amongst them must be proved
-either to remain united or to re-unite. A Hindu family is presumed to be
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joint unless the contrary is proved but where it is admitted that one of the
-coparceners did separate himself from the other members of the joint family
11nd had his share in the joint property partitioned off for him, there is no
'presupiption that the rest of the coparceners continued to be joint. There is no
presumption on the other side too that because one n1cmbcr of the family
separated himself there has been separation with regard to all. It would be a
questiQ-n of fact to be de~rmined in each case upon the evidence relating to
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the intention of the parties whether there was a separation amongst the other
<:oparceners or they remained united. Except that four sons by N aini remained
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1134
SU!'REM:J COURT REPORTS
(!980] 2 S.C.R •.
under one roof and were joint in· food
laboured
together
there
is
no.
evidence that they agreed to constitute a coparcenary assun1ing th<M. a coparcenary
a creature of law could be: created by agreement.
A.nd if Karappan specified··
even the <;,hare of ea1.;h of his son<; by Naini in Ex.. P-1, this evidence of remaining
together is hardly sufficient 1o v.·arrant a conclusion that the&Se four sons constituted a coparcenary.
E.x.' P-1, could not support -such a conclusion and the
lligh Court \Vas in error in spelling out such conclusion from Ex. P-1 overlook~.
ing its specific direction of a specified share of each of his sons and liability to
pay owelty.
[1148B-F]
Palani Anunal v. Muthuvenkatachala Mariagon, 52 I.A. 83; Bhagwan Dayal
v. Mrs. Reoti Devi, [1962] 3 S.C.R. 440; Bulabax v. Rukhmabai, !LR 3G IA.
130; Sengoda v. Muthu, I.LR. 47 Mad. 567; referred to.
Bhagwati Prasad Shah and Ors.' v. Pulhin Ra1neshwari Jucr and Anr., {1951J
S.C.R. 603, followed.
12. Partition branch\vise is, unknown to Mitakshara Law. Jn the instant case,
if five sons of Karappan each constituted a branch obviously aJtcr one son
as a branch sepM"ated unless a reunion is pleaded, other four cannot constitute
a corporate bcxly like a coparcenary by agreement or even by subsequent conduct ot remaining together enjoying the property together.
[1148F, 11"9E1
Balakishan DaS and Ors. v. Ram Narain Sahu and Ors., 30 I.A. 139; Blzagwan
Dayal v. Mrs. Reoti Bai. [1962] 3 S.C.R. 440; Boddu Venkatakrislma 1'a1> and
Ors. v. Boddu Satyava1hi and Or.1., [1968] 2 S.C.R. 395; referred to.
13. Once disruption of joint fa1nily status takes place, it covers both a
:I
division of right and division of prQperty.
If a document clearly sholft. the
division of rights and status il'\ legal construction and effect cannot be altered'
by evidence of subsequent conduct of parties. [1150C]
14. There is no concept known to Hindu Law that there would be a branch
of a family wife-wise.
[ll 50D]
p
In this case Ex. P-1 itself specifies the share of each men1ber
separatr~ly.
1herefore, tavazbi wife-wise stated in Ex. P-1 has to be ignored.
Ex P-t· d.id•
bring about a sp~ifi.cation of shares and once such shares were defined. by
the father ""ho had the power to define and vesting the same there was a
disruption of joint family.
There was thus a division of rights and division of
property by allotment of shares. The mode of enjoyment immediately clwlged
and members cf such family ceased to be coparceners holding as joint ten.aats but
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they held as tenants-in-common. The plaintiff would be entitled to the share .to
which her deceased bus.band Raman was entitled.
R.an1an had 1th tlaa.re. in·
'A' schedule properties which the plaintiff would be entitled.
[11501>~ £.:.F,
1151C]
B
CIVIL APPELLATE JURISDICTION :
Civil Appeal No. 2544 of
1969.
From the Judgment and Decree dated 21-12-1965 of the Kerafac
High Court in A.S. No. 403 of 1961.
•
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KALLYANI v. NARAYANAN (Desai, J.)
1135
P. Govindan Nair, C. S. Ananthakrishna Iyer, S. Balakrishnan
A
and Mrs. Baby Krishnan, for the Appellant.
•
T. S. Krishnamurthy Iyer and Mrs. S. Gopalakrishnan for the
Respondents.
E. M. S. Anam and P. N. Pura for Respondent No. 9.
:;I'he Judgment of the Court was delivered by
DESAI, J.--On a certificate granted by the Full Bench of the High
Court of Kerala, original plaintiff, a Hindu widow who was seeking
+
partition of a share to which her deceased husband was entitled, having
'""
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lost ia both the Courts, has filed this appeal. The High Court granted
~ the certificate under Article 133(l)(c) of the Constitution as in its
opinion the following substantfal questions of law arise from the
judgment rendered by it :
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1. Whether under the Mitakshara Law the parties are
governed by customary law, and, in the -absence of
any rule of custoniary law on the point in question,
by Mitakshara Law property can be divided, albeit
))
by a family settlement, between two artificial units of
a joint family, one comprising the sons of a father by
his first wife, the first wife and his step mother, and
the other comprising his son by his second wife and
the second wife so as to constitute each unit into a
coparcenary with rights of survivorship between its
E.
members; and
2. Whether the use of the word 'tavazhi' (in any case a
misnomer) in describing the two units in the will, Ext.
P-1 left by the father and held to be the basis of the
family settlement, is sufficient in the circumstances, to
F
establish an intention that the membern of each unit
were to take the property as coparceners and not as
tenants-in-common, the grouping into units being only
for convenient enjoyment?
The factual background from which, according to the High Court
the aforementioned two questions emerge for consideration of thi~
G·
Court may be stated.
One Karappan, son of Chulliparambil Krishnan, had two wives
Nani and PonniDefendant 1 Krishnan, defendant 2 Shankaran, one
Raman, husband
of plaintiff
Kallyani, and deceased Madhavan,
husband of defendant 3 and father of defendants 4, 5 and 6, were
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his sons by first \vife Nani, and one Kesavan was his son by ,the
second wife Ponni.
He had six daughters, four by the first wife and
18-138 SCl/80
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1136
SUPREME COURT REPORTS
[1980] 2 S.C.R.
t
two by the second wife.
One Valli was the second wife of his father
and she had three daughters. Karappan and his family are Ezhavas
and in the matter of inheritance, succession and on the question of
personal law they were governed essentially by customary law and in
the absence of any specific custom they are governed by the Hindu
Mitakshara Law. Karappan executed a registered deed variously
described as a will or a deed of partition or evidencing family arrangement, Ext. P-1 dated January 25, 1910, the salient features of which
may be reproduced.
After narrating his near relations including his
two wives, male and female children born to each and his father's
second wife and her children, the following recitals are worthy of
C
note:
"There are as belonging to me now properties to the!
value of Rs. 8000 /- mentioned in the sub-joined schedules
A and B as my tarwad properties and also my self-acquired
properties and properties to the value of Rs. 200/- of the
C schedule which is set apart as common properties".
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"Since I am seriously ill and in order that there may not
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arise any dispute in future in respect of properties belonging
to me, I have resolved today the following with regard to the
course of enjoyment of the said properties after my death".
"I myself shall have the full powers of disposition over
all th"' properties described in A, B and C schedules during
my life time and after my death, out of the properties to
the value of Rs. 8000/-, Rs. 1300/- worth of properties shall
vest in each of my male issues, Rs. 300/- in my first wife,
Rs. 1000/- in my second wife since she is sick and Rs. 200/-
in my father's second wife''.
"On the above basis I have set apart to be vested in
them after my death Rs. 5200/- worth of properties to the
first tavazhi male issues, Rs. 300/-
to my first wife and
Rs. 200/- to my father's wife, altogether properties worth
Rs. 5700/- scheduled to A schedule; Rs. 1300/- worth of
properties comprising items 1 to 4 and 6 to 12 of B schedule
to the second tavazhi, inclusive of an owelty of Rs. 22 7
as. 8 ps. 5 decided to be paid by the first tavazhi to the
second tavazhi, and item 5 of B schedule worth Rs. 1000/-
to my second wife".
H
"And that 1/5th share of assessment of C schedule
property shall be paid annually by Kesavan in the Amsom and
receipt obtained".
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KALLYANI v. NARAYANAN (Desai, !.)
113'7
•rt is also resolved that each tavazhi shall meet the travelA
ling expenses of female issues and maintain properly the
women who return on the death of their husbands, that both
tavazhis shall equally maintain the dhildren of my aunt and
my sister and that since C schedule properties are partitioned
now, all my male issues shall have equal rights over the
property after my death".
B
This is a registered deed.
Soon thereafter, in February 1910,
Karappan died.
Raman, the husband of the plaintiff, the third son,
of the first wife, died on February 20, 1936.
Plaintiff widow of Raman
sued for partition and separate possession of her undivided 1/4 share
in properties set out in A, B and C schedules to the plaint. It is
necessary to clarify here that there were A, B and C schedules annexed
to Ext. P-1 which, for clarity of understanding, would be referred to
as the Will of the deceased though it would be presently pointed out
that it is ineffective as a Will.
Schedules A and B to Ext. P-1 specify
certain properties.
Properties set out in schedule B to Ext. P-1 except
item No. 5 were awarded to Kesavan, the son by the second wife,
and item No. 5 to the second wife. Properties in schedule A to Ext.
P-1 subject to adjustment pointed out in Ext. P-1 wera given to the
first wife and her sons. Properties set out in schedule C to Ext. P-1
were kept undivided and were the subject-matter of another suit filed
by the present plaintiff which has ended in a decree in her favour and
which decree has become final.
On the other hand, properties set out
in schedule A to the plaint are the very properties which are shown
in schedule A to Ext. P-1.
In respect of properties set out in the
schedule B to the plaint it is alleged that they were acquired by tl1e;
joint labour of defendants 1 and 2, deceased Raman and Madhavan,
l!lld it is equally true of properties set out in schedule C to the plaint
bnt they were separately set out because they stood in the name o~
ilie wife of defendant 1.
Plaintiff, however, claimed 1/4 of her share
in all the properties set out in schedules A, B and C to the plaint.
0
1
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E
F
The suit was principally resisted by defendant 1 as per his written
G
statement dated July 12, 1958. It was in terms contended that the
properties dealt with by Ext. P-1 were the joint family properties of
Karappan and his' sons and that Karappan was not entitled to and
had no authority in law to execute a Will in respect of the properties.
Th.ere is an averrnent which may be extracted. It reads :
"Even though Karappan has no right to execute the Will
accordingly, what Karappan actually did was that he partie
A
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1138
SUPREME COURT REPORTS
(1980] 2 S.C.R.
tioned the properties between the two tavazhies in order to
avoid future quarrel between the two wives and their children.
'
As a father he has got the right to partition his properties
according to the custom of the community and according to
the Mitakshara law, that Will would be valid asl a deed of
partition and accordingly accepting the same later, properties
had been taken possession by the two tavazhies separately.
Even though the execution Qf such a deed was against procedure, it was in order to honour the wishes of deceased
Karappan that the same was acted upon".
In respect of plaint B schedule properties, the contention was Iha~ it
was acquired by the private income of the first defendant and that
schedule 'C' properties belonged to the wife of defendant 1 and that
plaintiff has no share in it. It was also contended that as the four sons
by the first wife of Karappan constituted a tavazhi, it has all the incidents of a coparcenary and, therefore, succession was governed by survivorship and hence the plaintiff has no share in schedule A properties.
The trial Court framed as many as 12 issues.
The important
findings of the Trial Court are that Ext. P-1 is neither effective as a
Will nor as a deed of partition. Without specifically so saying that
Ext. P-1 would be effective as a family arrangement, it was held that
Ext. P-1 had the effect of constituting a coparcenary of four brothers,
sons of first wife of Karappan and that it was their joint family property
and they did not hold as tenants-in-common but as joint tenants
and were governed by survivorship in the matter of succession.
The contention that even in such a situation the widow would be entitl·
ed to her share because of a customary right was negatived. In res~t
'
of B and C schedule properties it was held that they belonged exclBsively to defendant 1 and his wife and plaintiff cannot claim a share
in them.
Consistent with these findings, the plaintiff's suit was dismissed. A Full Bench of the Kerala High Court heard the first appeal
preferred by the plaintiff.
The High Court substantially agreed with
the findings of the trial Court and specifically held that Ext. P-1 furnished important evidence of a family arrangement accepted and acted
upon by all the parties affected thereby. It was held that as family
arrangement it is binding and it indicated that the division was per
branches,
therefore, the four sons by the first wife of Karappan
divided as one branch and one son alone by the second wife separated
as a different branch and as four sons by the first wife constituted a
joint family, succession would be governed by survivorship and the
plaintiff is not entitled to claim any share in schedule A properties.
'
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KALLYANI v. NARAYANAN (Desai, J.)
1139
On the question of acquisition of schedule B and C properties, the
A
finding of the trial Court was confirmed.
It may be mentioned that plaintiff had filed another suit for partitkm of properties set out in C Schedule to Ext. P-1 and that suit was
decreed in plaintiff's favour and that decree has become final .
Two questions of general importance framed by the High Court
are rather involved and confusing and do not pinpoint the attention
on questions of law emerging from the judgment of the High Court.
The first question that needs to be answered is whether Ext. P-1
styled as a Will by the deceased Karappan would be effective as a.
Will. If by Ext. P-1 deceased Karappan attempted to make a Will
of the ancestral property in his hand in which his sons had acquired
interest by birth, obviously he had no power to make a Will in respect
of such property. Ext. P-1 does not purport to devise by Will the
individual share of testator Karappan in the joint family property but
he attempts to make a will of all the properties, ancestral and selfaoquired and even to dispose of property in which his sons had interest
by birth, by will. He has, not claimed any share in the property but
claimed a right to deal with ancestral property as he desired. In Ext.
P-r itself he describes properties set out in schedules A and B annexed
to Ext. P-1 as his tarvad properties.
Expression 'tarvad' in Marumakkattayam Law is the name given to the joint family consisting of
males and females, all descended in the female line from a common
ancestress.
A tarvad may consist of two or more branches known
as thavazhies; each tavazhi or branch consisting of one of the female
members of the tarvad and her decendents in the female line (see
Mayne's Hindu Law and Usage, 11th Edn., pp.
792-93.)
Thus
when property is described as tarvad property in a broad sense it is
admitted to be joint family property. This also becomes clear from
the recital in Ext. P-1 that properties in A and B schedules were
tarvad properties and property in C schedule were claimed by him
as his self-acquired properties and they were to be kept joint and were
not sought to be dealt with by Ext. P-1. Therefore, to the extent
Ext. P-1 purports to dispose of ancestral properties by will it would
be ineffective as a will as testator Karappan had no power or authority
to dispose of by will ancestral properties in his hand.
And as he
has not attempted to dispose of his undivided share in the ancestral
properties by Ext. P-1 it is not necessary here to examine the question
whether Mitakshara law as administered in Tamfil Nadn and Kerala
enables an undivided coparcener to dispose of his share in joint family
property by will.
Therefore, Ext. P-1 is not effective as a will and
B
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H
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1140
SUPREME COURT REPORTS
(1980] 2 S.C.R.
the respondents did not invite ns to affinn their rights nnder Ext. P-1
as if it is a binding will.
The next stage in the unfolding of the case is whether Ext. P-1 is
effective as a partition.
Partition is a word of technical import in
Hindu law.
Partition in one sense is a severance of joint status and
coparcener of a coparcenary is entitled to claim it as a matter of bis
individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family
and enjoy his share in severalty.
Such an unequivocal intention to
separate brings about a disruption of joint family status, at any rate,
in respect of separating member or members and thereby puts an end
to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-incommon. Such partition bas an impact on devolution of shares of such
members. It goes to his heirs displacing survivorship. Such partition
irrespective of whether it is accompanied or followed by division of
properties by metes and bounds covers both a division of right and
division of property (see Approviar v. Rama Subha Aiyar(') quoted
with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v.
Appasaheb Tuljaramarao Nimbalkar & Ors.(')
A disruption of joint
family status by a definite and unequivocal indication
to separate
implies separation in interest and in right, although not immediately
followed by a de facto actual division of the subject-matter. This
may at any time, be claimed by virtue of the separate right <see Girja
Bai v. Sadashiv('). A physical and actual division of property by
metes and bounds follows from disruption of status and would be
termed partition in a broader sense.
There was some controversy whether a Hindu father
governed
by Mitaksbara Jaw bas a right to partition ancestral properties without
the consent of bis sons.
After referring to Mitakshara, I, ii, 2, Mayne
in 'Hindu Law & Usage', 1 ltb Edn. p. 547, states that a Hindu
father under the Mitaksbara Law can effect a partition between himself and his sons as also between bis sons inter se without their consent and that not only can he partition the property acquired by
himself but also the ancestral property. The relevant text may be
extracted:
''The father has power to effect a division not only
between himself and his sons but also between the sons
(1) (1886) 11 M. T. A. 75.
(2) [1979] 4 S.C.C. 60 at 68.
(3) 41 I. A. 151.
'
t
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KALLYANI v. NARAYANAN (Desai, !.)
inter se. The power extends not only to effecting a
division by metes and bounds but also to a division of status".
1141
SimilarlY, in Mulla's Hindu caw, 14th Edn., p. 410 (para 323), it is
stated that the father of a joint family has the power to divide the
family property at any moment during his life time provided he gives
his sons equal shares with himself, and if he does so, the effect in law
is not only a separation of the father from the sons, but a separation
of the sons inter se.
The consent of the sons is not necessary for the
exercise of that power. It, therefore, undoubtedly appears that Hindu
father joint with his sons governed by Mitaksbara law has the power
to partition the joint family property at any moment during his life
time.
Mr. Krishnamoorty Iyer urged that even though undoubtedly a
Hindu father joint with his sons and governed by Mitakshara law
has the power to partition the joint family property, this power enables
him to partition the property by metes and bounds but he has no
power merely to disrupt the joint family status unaccompanied by
division of property by metes and bounds. The limited question that
needs answer in this case is whether a Hindu father joint with his sons
governed by Mitakshara law has the power to disrupt the joint family
status being a first step in the stage of dividing the property by metes
and bonnds.
The wider question whether a coparcener of a coparcenary governed by Mitakshara law brings about a disruption of joint
famil} ~tatus by definite and unequivocal indication of his intention
to sepa~ate himself from the family would constitute disruption of
statuj qua the non-separating members need not be examined. A
Hindu father joint with his sons and governed by Mitakshara law
in contradistinction to other manager of a Hindu undivided family
or an ordinary coparcener enjoys the larger power to impose a partition on bis sons with himself as well as amongst his sons inter se
without their consent and this larger power to divide the property by
metes and bounds and to allocate the shares to each of his sons and
to himself would certainly comprehend within its sweep the initial
step, viz., to disrupt the joint family status which must either precede
or be simultaneously taken with partition of property by metes and
bounds. This view taken in Kandaswami v. Doraiswami Ayyar, (')
does not appear to have been departed from. Further, the text from
Mayne's book extracted in the preceding paragraph shows that the
weight of authority is against the proposition canvassed for by Mr.
Iyer.
It does, therefore, appear that a Hindu father governed by
(I) [1880] 1.L.R.2Mad/317.
A
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B
A
8
c
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1142
SUPREME COURT REPORTS
(1980] 2 S.G.R.
Mitakshara law has power to partition the joint family property belonging to the joint family consisting of himself and his sons and that
this power comprehends the power to 4isrupt joint family status.
The question is, has Karappan as father exercised his power to
partition the joint family property by Ext. P-1 ? Even though the
father has a right to make a partition of the joint family property in
his hand, he has no right to make a partition by will of joint family
property amongst various members of the family except, of course, if
it could be made with thdr consent (see Brijraj Singh v. Sheodan
Slngh(').
Whether it is effective as family arrangement will be
presently examined.
Therefore, if by Ext. P-1 Karappan attempted
to make a partition of the property by his will, Ext. P-1 would be
ineffective as a partition.
By Ext. P-1 Karappan does not
divide
his property by metes and bounds vesting the share of eacb in presenti in each of his sons.
One thi'ng that is not in dispute is that Karappan did not intend
Ext. P-1 to be effective from the date on which it was execu.ted.
In his own words he states that he was seriously ill and as he would
like to avoid a dispute in future in respect of his properties and,
therefore, he resolved that his property shall be enjoyed after his
death in the manner stated in Ext. P-1. He reserved to himself the
full powers of disposition over all the properties more particularly
described in the various schedules annexed to Ext. P-1 during his life
time and whatever directions were given in Ext. P-1 were to be effective only after his death.
At two places in terms he stated that the
dispositions made by Ext. P-1 were to be effective after his death.
It is, therefore, inescapable that Ext. P-1 was not to be effective as
a partition in broader sense, namely, dividing property by metes and
bounds from the date on which it was execnted. It was to be effective from a future date and that future uncertain event was the death
of Karappan and that during the time he would remain alive he would
deal with the properties at his sweet will.
Further, there was no
effective partition by metes and bounds by Ext. P-1 though the shares
of sons were specified as also the provision for female members was
made. If intention of the testator is to be gathered from the language of Ext. P-1 Karappan intended it to be a will to be effective after
his death.
He never intended it to be a partition in presenti. Therefore, Ext.P-1 cannot be effective as a deed of partition in the broader
sense, i.e. partition by metes and bounds.
What then is the effective of Ext. P-1 on the joint family of which
Karappan was father-cum-manager ? The respondents contend that
(I) 40 J. A.161.
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KALLYANI v. NARAYANAN (Desai, !.)
1143
it is a family arrangement providing
for carving out
branchwise
(shakha per wire) separation of interest in the joint family properties and as it was unreservedly accepted by all affected thereby after
the death of Karappan, it is binding on all.
Appellant contends
that Ext.P-1 had the effect of disrupting the joint family status and
from that dale members of the joint family entitled to their shares
in the joint family property, held as tenants-in-common and not as
joint tenant with the result that inheritance by survivorship, a special
feature of a Hindu coparcenary, would be displaced by Hindu law
of succession, the property going to the heirs recognised by Jaw.
Defendant 1 who contested the suit in terms stated that Ext.P-1
was not effective as a will.
He than stated that Ext.P-1 purports to
partition the property between the two tavazhies represented by
Kara pp an' s two wives and their respective male offspring. It may,
however, be stated that nowhere in the written statement he has put
forth the contention that Ext.P-1 evidences a family
arrangement
assented to by all affected thereby.
That case appears to have been
made out by the High Court for the first time and since the plaintiff
has been non-suited on the finding that Ext.P-1 was a family arrangement which provided for a coparce'nary of four sons of the first wife
of Karappan, retaining inheritance by survivorship amongst the four
members it is necessary to examine the contention whether Ext.P-1
provides for a family arrangement assented to by all concerned. An
ineffective will sometimes though not always, if otherwise consented
by all adult members, may be effective as a family arrangement but
as the father of a. joint Hindu family has no power to impose a family
arrangement under the guise of exercising tbe power of partition, the
power which undoubtedly he has but which he has failed to effectively
exercise, cannot in the absence of consent of all male members bind
them as a family arrangement.
What constitutes family arrangement
bas been fully examined by this Court in M. N.