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Karpagathachi & Others v. Nagarathinathachi .
Factual and Procedural Background
Sivasubramania Pillai died in 1924, leaving two widows—Thialaiachi and Karpagathachi—his mother, and a daughter, Nagarathinathachi (respondent). The widows inherited his estate as joint tenants with a right of survivorship. On 14 July 1927 they executed two partition lists (Exs. A-1 and B-45) dividing the bulk of the properties and setting aside two velis of land for the mother’s maintenance. Each widow thereafter possessed the properties allotted to her.
Thialaiachi died on 26 August 1954. Her daughter, the respondent, took possession of the properties that had been allotted to Thialaiachi. On 8 December 1954 Karpagathachi filed a suit for possession of those properties. The District Judge (18 August 1958) decreed in favour of Karpagathachi, holding the 1927 partition to be only for convenience of enjoyment. The Madras High Court (12 January 1962) reversed, finding that each widow had relinquished her right of survivorship. The present appeal to the Supreme Court was brought by Karpagathachi and others under Article 133 of the Constitution.
Legal Issues Presented
- Whether, in view of Section 6(a) of the Transfer of Property Act, 1882, two Hindu widows could validly agree to relinquish their right of survivorship in their husband’s estate.
- Whether the unregistered partition lists (Exs. A-1 and B-45) were admissible in evidence or required compulsory registration.
- Whether the evidence established that the widows in fact agreed to relinquish their right of survivorship, thereby entitling the respondent to succeed to her mother’s share.
Arguments of the Parties
Appellants’ Arguments (Karpagathachi & Ors.)
- The right of survivorship is merely a “chance” and, under Section 6(a) of the Transfer of Property Act, could not be transferred or relinquished.
- The partition lists were unregistered documents affecting immovable property and therefore inadmissible.
- The 1927 partition was only for convenience; there was no agreement to forego survivorship, and the respondent had not proved such an arrangement.
Respondent’s Arguments (Nagarathinathachi)
- Section 6(a) does not bar an arrangement that includes transfer of an existing estate along with the incidental right of survivorship.
- The partition was effected orally; the written lists were mere memoranda and did not require registration.
- The conduct of the widows and documentary evidence showed they had mutually relinquished survivorship rights, giving the respondent the right to her mother’s allotment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bhugwan Deen Doobey v. Myna Baee (1867) 11 MIA 487 | Widows inheriting jointly may seek partition for separate enjoyment. | Cited to show that each widow could demand partition without destroying survivorship. |
| Gauri Nath Kakaji v. Gaya Kuar (1928) LR 55 IA 399 | Same principle as above regarding joint tenancy of widows. | Reinforced the authority permitting partition for convenience. |
| CIT v. Smt. Indira Balakrishna (1960) 3 SCR 513 | A co-widow cannot unilaterally enforce an absolute partition to defeat survivorship. | Used to stress that consent of both widows is essential for an absolute partition. |
| Ramakkal v. Ramasami Naickan (1899) ILR 22 Mad 522 | By mutual consent, widows may absolutely partition and extinguish survivorship. | Cited to establish legal competence of widows to relinquish survivorship by agreement. |
| Sudalai Ammal v. Gomathi Ammal (1912) 23 MLJ 355 | Same as Ramakkal; consent can create absolute partition. | Used similarly to validate possible relinquishment. |
| Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty (1897) ILR 24 Cal 339 | Daughters inheriting jointly may likewise agree to extinguish survivorship. | Extended the principle beyond widows to show consistency of rule. |
| Subbammal v. Lakshmana Iyer (1914) 26 MLJ 479 | Supports competence of joint heirs to convert survivorship into separate estates. | Referred to bolster the same legal position. |
| Ammani Ammal v. Periasami Udayan (1923) 45 MLJ 1 | Confirms power of heirs to agree to absolute division. | Relied upon as additional authority on the point. |
Court's Reasoning and Analysis
Issue 1 – Competence to Relinquish Survivorship: The Court held that Section 6(a) of the Transfer of Property Act prohibits transfer of a bare expectancy, but not the transfer of a present interest together with its incidental right of survivorship. Relying on earlier Privy Council and High Court decisions, it concluded that widows could, by mutual consent, partition the estate absolutely and relinquish survivorship. Therefore, the statutory objection failed.
Issue 2 – Admissibility of Partition Lists: A partition could be effected orally. The written lists merely recorded an accomplished oral partition; they were used as evidence in the trial court without objection. Because the registration point required fresh fact-finding and was raised for the first time on appeal, the Supreme Court agreed with the High Court that the objection could not be entertained.
Issue 3 – Proof of Relinquishment: The Court emphasised that a mere division for convenience does not destroy survivorship. The burden lay on the respondent to prove an express or necessarily implied agreement to relinquish that right. Examining the language of Exs. A-1 and B-45 (“adainthu anubavithu” — “take and enjoy”), the continued joint pattas, subsequent dealings, and the oral testimony, the Court found no clear or cogent evidence of such an agreement. It accepted the District Judge’s factual finding that no relinquishment was proved and held that the High Court erred in reversing that finding.
Holding and Implications
APPEAL ALLOWED; High Court judgment set aside; trial court decree restored.
Consequently, Karpagathachi is entitled to possession of the suit properties, while each party bears its own costs throughout. The decision reaffirms that: (a) widows may legally relinquish survivorship by mutual agreement, but (b) a party alleging such relinquishment must prove it with clear evidence. No new legal precedent was created, but existing principles were clarified and applied.
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-l and B-45 dated July 14, 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 Thialaiachi 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 Article 133 of the Constitution.
5. 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 Section 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-l 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.
6. 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 (1167) 11 MIA 487, Gauri Nath Kakaji v. Gaya Kuar (1928) LR 55 IA 399. Neither could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see CIT v. Smt Indira Balakrishna (1960) 3 SCR 513. But by mutual consent 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 to the portion allotted to the other. See Ramakkal v. Ramasami Naickan (1899) ILR 22 Mad 522, Sudalai Ammal v. Gomathi Ammal (1912) 23 MLJ 355. Likewise, two daughters succeeding to their father's estate as joint tenants with right of survivorship could enter into a similar arrangement. See Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty (1897) ILR 24 Cal 339, Subbammal v. Lakshmana Iyer (1914) 26 MLJ 479, Ammani Ammal v. Periasami Udayan (1923) 45 MLJ 1. 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 properties 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. The first contention of Mr Viswanatha Sastry must be rejected.
7. The second contention of Mr Viswanatha Sastry must also be rejected. A partition may be effected orally. By an oral partition, the two widows could adjust their diverse rights in the entire estate, and as part of this arrangement, each could orally agree to relinquish her right of survivorship to the portion allotted to the other. In the trial court, the suit was tried on the footing that the partition was oral, and that the two partition lists were merely pieces of evidence of the oral partition, and no objection was raised with regard to their admissibility in evidence. In the High Court, the appellants raised the contention for the first time that the two partition lists were required to be registered. The point could not be decided without further investigation into questions of fact, and in the circumstances, the High Court rightly ruled that this new contention could not be raised for the first time in appeal. We think that the appellants ought not to be allowed to raise this new contention.
8. We think that the third contention of Mr Viswanatha Sastry is sound and should be accepted. 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. The respondent has failed to discharge this onus. It is common case that the partition is evidenced by Exs. A-l and B-45. Exhibit B-45 is the list showing the properties allotted to Thialaiachi. The relevant portion of Ex. B.45 reads:
“In accordance with the chit cast, Theiyalai Achi, wife of Sivasubramania Pillai, residing at Karuppur, shall take the nanja, punja, house and ground, cattle-shed, cattle, pathway for men, cattle and cart and shed where dried dung cakes are stored mentioned in the list and shall pay the Government kist for the aforesaid properties from the current Fasli 1337 and enjoy them.”
Exhibit A-l showing the properties allotted to Karpagathachi contains similar words. Now, the two lists show that each widow is to “take and enjoy” the properties allotted to her. The corresponding Tamil words are “adainthu anubavithu”. These words do not either expressly or by necessary intendment exclude the right of survivorship of the other widow. The Tamil words “Sarva Swatantra Badyamayum” and “Santhathi pravesamayum” and other words indicating relinquishment of the right of survivorship are conspicuous by their absence. The words used in the two partition lists are wholly insufficient to show that the two widows relinquished their right of survivorship inter se. The fact that two separate partition lists were drawn up and each was signed by the two widows does not carry the matter any further. The two partition lists show that the two velis of land kept separately for the maintenance of the mother-in-law were to be divided by metes and bounds on her death between the two widows. The division of the two velis on the death of the mother-in-law was agreed upon to avoid future disputes. The fact that Thialaiachi had a daughter and was older than Karpagathachi by 20 years does not show that Karpagathachi must have agreed that Thialaiachi's daughter should enjoy the properties allotted to Thialaiachi after her death. After the partition, the pattas in respect of all the lands continued to be in the joint names of both the widows. If there was an absolute partition between the two widows, it is not explained why there was no separate mutation in the name of each widow in respect of the lands allotted to her.
9. The deeds executed by Thialaiachi, Exs. B-3, B-4, B-6, B-7 and B-8 to B-43 recite the partition, but they do not use words indicating that there was an absolute partition. The sale deeds, Exs. A-3, A-4, and A-6 executed by both the widows are in respect of undivided properties and throw no light on the question at issue. The evidence on the record does not show clearly whether the sale deed, Ex. B-44, executed by both the widows relates to undivided properties, or whether it relates to properties a separately allotted to Thialaiachi. From time to time Thialaiachi executed three wills, Exs. B-l, B-2 and A-5 giving to the legatees and particularly the respondent certain properties absolutely with full powers of alienation. The first two wills, Exs. B-l and B-2, refer separately to Thialaiachi's separate properties and to the properties obtained by her on partition. The recitals in the two wills do not indicate that Thialaiachi obtained her husband's properties on partition with absolute rights. The third will, Ex. A-5, does not purport to dispose of specifically the properties obtained by her on partition. Karpagathachi knew that Thialaiachi had executed the wills, but it is not shown that she knew of the contents of the wills. By Ex. A-2, both Thialaiachi and Karpagathachi made a free gift of some of the properties allotted to Thialaiachi. DW 1 is unable to explain why Thialaiachi joined in this deed. By sale deed, Ex. B-5, Thialaiachi sold absolutely some of the properties allotted to her and a notice, Ex. A-22, regarding the proposed transfer of the patta in the name of the vendee was served upon Karpagathachi. It is not clear if the patta was actually transferred in the name of the vendee. The explanation of Karpagathachi that she protested against the transfer and ultimately received one-half of the sale price has not been believed. But assuming that Karpagathachi did not object to the transfer, this single circumstance does not establish that at the time of the partition, she had agreed to give up her right of survivorship in respect of the properties allotted to Thialaiachi.
10. Karpagathachi (PW 1) denied that there was an absolute partition. She was not shaken in cross-examination. Nataraja Pillai (PW2) said that there was no talk that each should take the properties absolutely and it was agreed that each would enjoy separately. We find nothing in the evidence of PW2 to show that the widows agreed to partition the properties absolutely so as to destroy the right of survivorship. Manickam Pillai (DW 1) said that at the time of the partition, Thialaiachi said that she had a daughter and if what was allotted for her share was given to her absolutely she would agree to the partition and Karpagathachi also wanted to have absolute rights. The District Judge rightly rejected the evidence of DW 1 . The partition lists were drawn up after consulting lawyers. DW 1 is unable to explain why words indicating absolute partition were not used in the partition lists. DW 1 had been in management of the properties of the respondent, yet he falsely denied this fact. He had intimate dealings with Thialaiachi and the respondent. On a meticulous examination of the oral and documentary evidence, the learned District Judge rejected the respondent's case that the widows had orally agreed to relinquish their right of survivorship. We think that this finding is correct, and the High Court was in error in reversing this finding.
11. In the result, the appeal is allowed, the decree and judgment passed by the High Court are set aside and those of the trial Judge restored. In all the circumstances, we direct that the parties will pay and bear their own costs throughout, in this Court and also in the courts below.
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