LawDistill
Supreme Court of India

BINDUMATI BAI vs NARBADA PRASAD on 28 October, 1976

Cites 1 provisionsCites 2 judgmentsCited by 0
Official PDFBench Hans Raj Khanna, Vaidyanathapuram Rama Krishna Iyer
PETITIONER:
BINDUMATI BAI
Vs.
RESPONDENT:
NARBADA PRASAD
DATE OF JUDGMENT28/10/1976
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1977 AIR 394 1977 SCR (1) 988
1976 SCC (4) 626
ACT:
Hindu Law--If a co-widow can relinquish right of survi-
vorship--Whether after relinquishment, a widow can dispose
of property by will.
HEADNOTE:
One Lakshmi Dayal died in 1952 leaving behind two wid-
ows, appellant and Shantibai. In 1954, Chandanbai widow of
brother of Laxmi Dayal filed a suit against the appellant
and Shantibai in respect of the. properties left by Lakshmi
Dayal. During the. pendency of the said suit, the appel-
lant, Shantibai and Chandanbai executed a partition deed
alloting different properties to each one of the widows.
The partition deed was registered and necessary mutation
entries were made. The suit filed by Chandanbai was dis-
posed of in terms of the Partition 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 appel-

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870 of 1968.

(From.the Judgment and Order dated 22.11.1967 of the Madhya Pradesh High Court in Second Appeal No. 436/64. G.L. Sanghi and D.N. Misra for the appellant. P.H. Parekh (amicus curiae) for the respondents. The Judgment of the Court was delivered by

KRANNA, J.--This appeal by special leave is against the judgment of the Madhya Pradesh High Court affirming on second appeal the decision of the trial court and the first appellate court whereby suit 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 respondent filed the present suit against Bindumati defendant-appellant for possession of the land in dispute on the allegation that he (the respondent) 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 was resisted by the appellant 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 affirmed 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 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:

"Every shareholder may get the property

fallen to her share, mutated and may take

possession thereof and thus may become abso-

lute owner thereof. ’Every shareholder may

get her name separately mutated in Patwari’s

papers. She may sell it. If other sharehold-

er claim it, it will be contrary to

law .......... By taking our respective

share from the entire property in the parti-

tion we become separate from the entire

property."

When she came into the witness box, the

appellant admitted that their object in making

the partition was that they would be able 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. In 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 relin-

quished 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 fails to

the share of the co-widow even as a result of

an agreement. This contention, in our opin-

ion, is devoid of force and runs counter to

the decision of this Court in the: case of

Karpagathachi & Ors. v. Nagarathipathachi.(1)

As observed in that case,

"under the Hindu law as it stood in 1924,

two widows inheriting their husband’s proper-

ties took together one estate as joint tenants

with rights of survivorship and equal benefi-

cial enjoyment. They were entitled to en-

force 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 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 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. 55 I.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,

tenants with rights of survivorship could

enter into a similar arrangement, see Kailash

Chandra Chuckerbutty v. Kashi Chandra Chuck-

erbutty (1), Subbammal v. Lakshmanu

Iyer(2), Ammani Ammal v. Periasami Udavan.(a)

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 trans-

ferred. 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 hus-

band on the death of the Co-widow, but it

does not prohibit the transfer by the widow of

her present interest in the properties inher-

ited by her together with the incidental

right of survivorship. The widows were

competent to partition the properties and

allot separate portions to each, and inciden-

tal to such an allotment, each could agree

relinquish her right of survivorship in the

portion allotted to the other."

There is nothing in the decision of Smt. Indira Balakrishna (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 dispose 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.I. 1. 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 dismissed.