Holding

Ext. P‑1 is not a valid will or a family arrangement, but by specifying shares it disrupted the joint‑family status, converting the members into tenants‑in‑common, thereby giving the widow a one‑fourth share in Schedule A property.

Summary

Karappan, a Hindu father, executed a registered deed (Ext. P‑1) describing the distribution of his property among his two wives, their children and his father's second wife. After his death, Kallyani, the widow of his son Raman, sued for partition and a one‑fourth share in the properties listed in Schedule A, B and C. The trial court and the Kerala High Court held that Ext. P‑1 was ineffective as a will, not a valid partition, and not a binding family arrangement, consequently denying her claim. The Supreme Court held that while Ext. P‑1 could not be treated as a will or a family settlement without the consent of all adult members, it did specify shares and thereby disrupted the joint‑family status, converting the coparceners into tenants‑in‑common. This disruption entitled Kallyani to her husband's undivided one‑fourth share in Schedule A, but not in Schedules B and C. The appeal was allowed in part, a preliminary decree for the one‑fourth share was ordered, and costs were awarded to the plaintiff.

Issues considered

Whether Ext. P‑1 is a valid will of ancestral property under Mitakshara law.
Whether Ext. P‑1 constitutes a partition (narrow or broad sense) of joint‑family property.
Whether Ext. P‑1 can be treated as a family arrangement binding on all members without their consent.
Effect of a deed that specifies shares on the disruption of joint‑family status and survivorship rights.
Whether the concept of "tavazhi" (branch) can create separate coparcenary units under Hindu law.

Subjects

Hindu lawMitaksharapartitionwillfamily arrangementjoint familycoparcenarysurvivorshiptenant-in-commoninheritancewidow's right

Judgment

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 exe-
cuted 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
c 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
'D 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, Mitak-
shara law. Karappan executed. a registered deed variously described as a will
or a deed of partition or evidencing family arrangement, Ex. Pl dated January
·E
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 ..~
F 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
KALLYANI v. NARAYANAN 1I3I

·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. [1139B-
• C]
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 c
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 E
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 p
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 G
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 B
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
1132 SUPREME COURT REl'ORT'i (1980] 2 8.C.R.

A 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

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
B 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
c 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
D 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 mem-
bers 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
E 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
F 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
G 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
H 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
KALLYANI V. NARAYANAN 1133

tirnpose family arrangement sans direct evidence of consent of each of his sons, A
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
B
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
·. . -: ·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.
c
!ll45E-H, 1146A]
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 G
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 D
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
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 con-
stituted 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~.
B 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.

c 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 con-
D duct 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
G 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]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2544 of
1969.
B
From the Judgment and Decree dated 21-12-1965 of the Kerafac
High Court in A.S. No. 403 of 1961.
-
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 B
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
'"" 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 c
judgment rendered by it :
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 Ponni- Defendant 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 H
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
1136 SUPREME COURT REPORTS [1980] 2 S.C.R. t

A 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 arrange-
ment, 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".
D "Since I am seriously ill and in order that there may not
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
/'
E 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".
KALLYANI v. NARAYANAN (Desai, !.) 113'7

•rt is also resolved that each tavazhi shall meet the travel- A
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
0 1

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 D
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 E
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 F
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.

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 :
e
"Even though Karappan has no right to execute the Will
accordingly, what Karappan actually did was that he parti-
1138 SUPREME COURT REPORTS (1980] 2 S.C.R.

A 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
I B had been taken possession by the two tavazhies separately. '
Even though the execution Qf such a deed was against proce-
dure, it was in order to honour the wishes of deceased
Karappan that the same was acted upon".

c 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 inci-
dents of a coparcenary and, therefore, succession was governed by sur-
D vivorship 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
' E 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
1
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
F of B and C schedule properties it was held that they belonged exclB- '
sively to defendant 1 and his wife and plaintiff cannot claim a share
in them. Consistent with these findings, the plaintiff's suit was dis-
missed. A Full Bench of the Kerala High Court heard the first appeal
preferred by the plaintiff. The High Court substantially agreed with
G the findings of the trial Court and specifically held that Ext. P-1 fur-
nished 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
B 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.
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 parti-
tkm 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 .
B
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. c
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 self- D
aoquired 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 Maru-
makkattayam Law is the name given to the joint family consisting of E
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 G
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 H
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
1140 SUPREME COURT REPORTS (1980] 2 S.C.R.

A 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
B 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 con-
stitute partition is a definite and unequivocal indication of his inten- '
tion 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,
c in respect of separating member or members and thereby puts an end
to the coparcenary with right of survivorship and such separated mem-
ber holds from the time of disruption of joint family as tenant-in-
common. 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
D 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
E
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.
F 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 t
father under the Mitaksbara Law can effect a partition between him-
self and his sons as also between bis sons inter se without their con-
sent 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
B (1) (1886) 11 M. T. A. 75.
(2) [1979] 4 S.C.C. 60 at 68.
(3) 41 I. A. 151.
KALLYANI v. NARAYANAN (Desai, !.) 1141

inter se. The power extends not only to effecting a A
division by metes and bounds but also to a division of status".

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 B
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. c
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 D
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 copar-
E
cenary 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 F
or an ordinary coparcener enjoys the larger power to impose a parti-
tion 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 G
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 B

(I) [1880] 1.L.R.2Mad/317.
1142 SUPREME COURT REPORTS (1980] 2 S.G.R.

A Mitakshara law has power to partition the joint family property belong- •,
ing 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
8 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
c 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 pre-
senti in each of his sons.
One thi'ng that is not in dispute is that Karappan did not intend
D 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
E 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 effec-
tive 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
F bounds from the date on which it was execnted. It was to be effec-
tive 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
G made. If intention of the testator is to be gathered from the langu-
age 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. There-
fore, Ext.P-1 cannot be effective as a deed of partition in the broader
sense, i.e. partition by metes and bounds.
H 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.
KALLYANI v. NARAYANAN (Desai, !.) 1143

it is a family arrangement providing for carving out branchwise A
(shakha per wire) separation of interest in the joint family proper-
ties 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 8
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 c
partition the property between the two tavazhies represented by
Karapp 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 D
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 arrange-
ment 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 E
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 F
them as a family arrangement. What constitutes family arrangement
bas been fully examined by this Court in M. N. Aryamurthy & Am·.
v. M. D. Subbaraya Setty (dead) through l.r. & Ors.('). Broadly
stated, it is that there must be an agreement amongst the various
members of the family intended to be generally and reasonably for
the benefit of the family and secondly the agreement should be with G
the object either of compromising doubtful or disputed rights or for
preserving the family prop~rty or the place a'nd security of the
family. Both these ingredients appea rto be absent in this case. Jn
Briira; Singh's case (supra) a father purported to make a will in
which he recorded a partition of the joint family property amongst
H
his three sons. He did not take a share for himself and simultan-
(1) [/972] 4 s.c.c. l.
1144 SUPREME COURT REPORTS [1980] 2 s.c.R.

A eously gave double share to his eldest son. There were usual reci-
tals of partition and allotment of shares and it was further stated
that in anticipation of execution of the deed various sharers were
put in possession of property allotted to each of them. This was
done two months prior to the execution of the so-called will. The
document was held ineffective as a will but on evidence it was found l
.B that all concerned had acquiesced in the arrangement evidenced by
the deed and the deed was intended to operate from the date of its
execution and, therefore, it evidenced a family arrangement contem-
poraneously made and acted upon by all the partie'.l and hence bind-
ing. Similarly in Lakshmi Chand v. Anandi,(') two brothers having
no male issue and constituting a joint Hindu · family governed by
c Mitakshara, signed a document, described therein as an agreement
by way of will. The document provided in effect that if either party
died without male issue, his widow should take a life interest in
a moiety of the whole estate and that if both the parties died with-
out male issue, the daughters of each, or their male issue, should
divide the father's share. The document was registered. A few
D days after its execution one brother died, and his widow was entered
as owner of a moiety of the estate. Subsequently the other brother
sued for a declaration that the document was null and void. Privy
Council held that the docmnent could not operate as will but that as
a co-sharer in a Mitakshara joi'nt family with the consent of all his
co-sharers he could deal with the share to which he would be entitled
E
on a partition and was binding as family arrangement. To be effec-
tive as a family arrangement the deed must be one intended to operate
from the date of its execution, a feature wanting in Ext.P-1. and it
must be assented to and acquiesced in and acted upon by all affect-
ed thereby. At the time of execution of Ext.P-1 there is no evidence
F as to who were the adult members of the family other than Karappan
who consented to the alleged family arrangement. One thing, how-
ever, may be pointed out that defendant 1 gave his age as 87 years
on December 29, 1959, when his evidence commenced. Presumably
he must have been born in 18 72. But there is no evidence about
the age of other children of Karappan. The only evidence as to the
G consent of the male members is that after the death of Karappan all
male members acted according to the wishes of Karappan as dis-
closed and ordained in Ext.P-1. Assuming it to be so, Ext.P-1 was
to operate after the death of Karappan and not from the date of
execution. The High Court after referring to Brijra; Singh's case
(supra) overlooked the fact that in accepting the deed before it, the
H Judicial Committee was impressed by the fact that it was intended to
lipeak from the date on which it was written and not future date, viz.,
(!) 53 I. A. 123.
•
KALLYANI v. NARAYANAN (Desai, !.) 1145

death of the writer. Ext.P-1 in terms reserves to Karappan his right
to deal with the property at his sweet will and was to be operative
after his death. The High Court completely overlo.o'ked this mate-
rial differe'llce. Assuming that Ext.P-1 was to be treated as family
arrangement after the death of Karappan, the absence of any evidence
of agreement amongst family members entitled to a share, to the
terms of Ext.P-1 when it was e~;,cuted, the absence of any dispute B
at or about the time Ext.P-1 was executed amongst the members of
the family sought to be settled by Ext.P-1; and the absence of evi·
dence that arrangement was necessary for the security of the family
or property would wholly negative the contention that Ext. P-1 would
furnish evidence of family arrangement. We have grave doubt
whether a Hindu father can impose family arrangement sans direct
c
evidence of consent of each of his sons, to be effective after his
death. Therefore, Ext.P-1 does not furnish evidence of family
arrangement.
Now, if Ext.P-1 cannot be effective as a deed of partition inas-
much as it did not result in division of property by mete6 and bounds, D
its effect on continued joint family status may be examined. If it
disrupted joint family status by its very execution, there was there-
after no question of directing any family arrangement to be effective
from a futnre date as per its terms and even though it may spell ont
a family arrangement what effect the disruption of joint family status
would have on the mode of succession has to be ascertained.
One thing is crystal clear that Ext. P-1 is not a deed of partition in
the sense it does not purport to divide the property amongst various
coparceners by metes and bounds. However, in Hindu law qua
joint family and joint family property the word 'partition' is under-
stood in a special sense. If severance of joint status is brought about F
by a deed, a writing or an unequivocal declaration of intention to
bring about such disruption, qua the joint family, it constitutes par-
tition. (see Raghavamma v. Chenchamma)('). To constitute a
partition all that is necessary is a definite and unequivocal indication
of intention by a member of a joint family to separate himself from
the family. What form such intimation, indication or representation G
of such interest should take would depend upon the circumstances
of each case. A further requirement is that this unequivocal indi-
cation of intention to separate must be to the knowledge of the per-
sons affected by such declaration. A review of the decisions shows
that this intention to separate may be manifested in diverse ways.
11
It may be by notice or by filing a suit. Undoubtedly, indication or
(I) A.l.R. 1964 S.C. 136.
1146 SUPREME COURT REPORTS [1980] 2 s.c.R.
A intimation must be to members of the joint family likely to be affect-
ed by such a declaration.

Has not Ext.P-1 the effect of bringing about a disruption of joint
family headed by Karappan and consisting of himself and his sons ?
B The fact situation is that in Ext. P-1 Karappan specified the share of
each of his sons, the property allotted on share being valued at
Rs. 1300/- each of the four by the first wife and one by the second
wife, and vesting the share so specified in each of his sons. He also spe- \'
cified value of the property allotted to his first wife, to his second wife
and to the second wife of his father. In the process he found that some-
C thing more was given to the sons of his first wife and in order to restore
the equilibrium of treating his sons equally, he directed that owelty to
the tune of Rs. 227 /- and odd be paid by the sons of the first wife to
the sons of his second wife. This was with a view to correcting the
inequality in division of shares. He also states that there will be two
branches. He refers to them as tavazhies and himself and his family as
D tarvad. Tarvad is akin to joint family and tavazhi is a branch of the
family. The High Court, however, treated the use of the words 'tarvad'
and 'tavazhi' and 'Karnavaran' to be inappropriate and hence inconse-
quential. Similarly, the High Court found specification of share of each
of the male child as not indicative of a partition in the sense of disrup-
tion of joint family status.
E
Partition can be partial qua person and property but a partition
which follows disruption of a joint family status will be amongst
those who are entitled to a share on partition. On death of Karappan,
Kesavan, the son of the second wife obtained a physical parti-
F tion of the property, took his own share and left the family. There
was first a disruption of the joint family by specifying the shares in
Ext.P-1. Till disruption of joint family status takes place no copar-
cener can claim what is his exact share in coparcenary property. It is
liable to increase and decrease depending upon the addition to the
number or departure of a male memlx:r and inheritance by survivor-
G ship. But once a disruption of joint family status takes place, copar-
ceners cease to hold the property as joint tenants but they hold as
tenants-in-common. Looking to the terms of Ext.P-1 there was a
disruption of joint family status, the shares were specified and vested,
liabilities and obligations towards the family members were defined
and imbalance out of unequal division was corrected. This certainly
H has effect of bringing about disruption of joint family status and
even if there was no partition by metes and bounds and the copar-
ceners continued to remain under the same roof or enjoyed the
KALLYANI v. NARAYANAN (Desai, /.) 1147

property without division by metes and bounds, they did not hold A
as joint tenants unless re-union is pleaded and proved.
It was, however, contended and the contention has found favour
with the High Court that when Kesavan, the second wife's son of
Karappan took the properties allotted to his share and left the (amily,
• as per terms of Ext. P-1 four sons of Nani were constituted joint B
tenants or members of a coparcebary. In reaching this conclusion
reliance was placed by the High Court on Palani Ammal v. Muthu-
•
venkatachala Moniagar('). In that case, after referring to Appo-
' viers case, (supra) it was observed as under:
"But the mere fact that the shares of the coparcc11ers c
have been asoortained does not by itself necessarily lead
to an infer~ncc that the family had separated. There may
be reasobs other than a contemplated immediate separation
for ascertaining what the shares of the coparceners on a sepa-
ration would be. It is also now beyond doubt that a mem-
ber of such a joint family can separate himself from other D
members of the jojnt family and is on separation entitled
to have bis share in the property ascertained and partitioned
off for hinl and that the remaining coparceners without any
special agreement amongst themselves may continue (o be
coparceners and td enjoy as members of a·,joint family, what
remained after such a partition of the family property. That E
the remaining members continued to be joint may, if disputed,
be inferred from the way in which their family business was
carried on after their previous coparcener had separated from
them."
In Bhagwan Dayal v. Smt. Reoti Devi, (2 ) this Court examined F
the effect of a separation of om' member of a joint family on the
joint family status and on the remaining members in the light of the
Privy Council decision in Pa/an; Ammal's case: (supra) The rele-
vant observation is as under :
"The general principle is that every Hindu family is pre- G
sumed to be joint unless the contrary is proved : but this
presumption can be rebutted by direct evidence or by
course of conduct. It is also settled that there is no pre-
sumption that when one memlnr separates from others that
the latter remained united; whether the latter remain united
or 'not must be decided on the facts of each case." H

, (l) 52 IA 83.
(2) [1962] 3 S.C.R. 440.
1148 SUPREME COURT REPORTS [1980] 2 S.C.R.
.. ~.

A In fact, Judicial Committee in Balabux v. Rukhmabai(') unequi-
vocally held that there is no presumption when one coparcener sepa-
rates from others that the latter remained united. An agreement
amongst them must be proved either to remain united or to re-unite.
In Sengoda v. Muthu,( 2 ) the High Court interpreted Palani Ammars
case to lay down that if a partition takes place with respect to one
B coparcener, the decree or the deed bringing about partition would •
provide a pointer as to the effect of the decree or the deed on the
remaining coparceners. In Bhagwati Prasad Shah & Ors. Dulhin
Rameshwari Juer & Anr.,( 8 ) this Court pointed out that the general
principle undoubtedly is that a Hindu family is presumed to be joint
unless the contrary is proved but where it is admitted that one of the
ccoparceners did separate himself from the other members of the joint
family and had his share in the joiqt property partitioned off for
him, there is no presuinption that the rest of the coparceners conti-
nued to be joint. There is ho presumption on the other side too
thav because one member of the family separated himself there has
D been separation with regard to all. It would be a question of fact
to be determined in each case upon the evidence relating to the
intention of the parties whether there was a separation amongst
the other coparceners or they remained united. Except that four sons
by Nani remained under one roof and were joint in food and laboured
together there is no evidence that they agreed to constitute a coparce-
E nary assuming that a coparcenary a creature of law could be created
by agreement. And if Karappan specified even the share of each of bis
sons by Nani in Ext. P-1, this evidence of remaining together is hardly
sufficient to warrant a conclusion that these four sons constituted a
coparcenary. Ext. P.1 could not support such a conclusion and' IDgh
Court was in error in spelling out such conclusion from Ext. P-1 over-
F looking its specific direction of a specified share of each of his sous and
liability to pay owelty.
A further submission that there was partition branchwise is uh-
known to Mitakshara law and is wholly untenable. In Mayne's Hinda
Law, 11th Bin., p. 347, law as thus stated :
G
"So long as a family remains an undivided family, two
or more members of it, whether they be members of diffe-
rent branches or of one 'and the same brahch of the
family, can have no legal eXistence as a separate indepndent
unit; but all the members of a branch, or of a sub-branch,
R (I) !LR 30 IA 130.
(2) I.LR. 47 Madras 567.
(3) [1951] S.C.R. 603.
eoL-'31. TM

, KALLYANI v. NARAYANAN (Desai, !.) 1149

can form a distinct and sepaiate corporate unit within the A
larger corporate family and hold property as such. Such
property will be joint family property of the members of
the branch inter se, but will be separate property of that
branch in relation to the larger family.

• The principle of joint tenancy is unknown to Hindu
law except in the case of the joint property of an undivided
Hipdu family governed by the Mitakshara law."
•
In Bhagwan Dayal's case (supra) legal pooition after referring to
earlier decisions has been culled out as under :
"Coparcenary is a g-eature of Hindu law and cannot be C
created by agreement of parties except in the case of re-
union. It is a corporate body or a family unit. The law
also recog'.nires a branch of the family as a subordinate
cooperate body. The said family unit, whether the larger
one or the subordinate one, can acquire, hold and dispose
of family property subject to the limitations laid down by D
law ...... Hindu law does not recognise some of the mem-
bers of a joint family belonging to different branches, or
even to a single branah, as a corporate unit."
Now, if five sons of Karapp an each constituted a branch, obvious-
ly after one son as a branch separated unless a reunion is pleaded,
other four caunot constitute a corporate body like a coparcenary by
agreement or even by subsequent conduct of remaining together en-
joying the property together. In Balkishen Das & Ors. v. Ram
Narain Sahu & Ors.,(') an ikrarnama was produced which showed
that defined shares in the whole estate had been allotted to the seve-
ral coparceners. There was a passage which gave liberty to any of I!'
the paities either to live together as a member of the joint family
or to sepaiate his own business. Mahabir was given four a:anas
,share and others defined shi\feS in the remainder. Contention raised
was that Mahabir alone separated and others remained joint. Subse-
quent conduct was relied upon to substantiate the contention that
they remained together. Negativing this contention it was held that G
the ikramama effected a sepaiation of estate even if the paities elect-
,ed either to have a partition of their shares by metes and bounds,
or to continue to live together and enjoy their property in co=on
as before. Whether they did one or the other would affect the
mode of enjoyment, but not the tenure of the property or their in- H
terest in it. The ikrarnama effected a separation in estate, its legal
(l) 30 I. A. 139.
1150 SUPREME COURT REPORTS [1980] 2 S.C.R.

A construction and effect could not be controlled or altered by the sub-
sequent conduct. Once the shares were determined and allotted, it
was held consistently with Appovier's case (supra) that this convert-
ed them from joiut holders into tenants-in-common.
In Boddu Venkatakrishna Rao & Ors. v. Boddu Satyavathi &
B Ors.,(') the following passage ih Mulla's Transfer of Property Act
(Fifth Edn.), was approved : •
"The principle of joint tenancy appears to be unknown
to Hindu law, except in the case of coparcenary between the
members of an undivided family." T
·~
c putsOnce disruption of joint family status takes place as Lord Westbury
it in Appovier's case, (supra) it covers both a division of right
and division of property. If a document clearly shows the division of
rights and status its legal construction and effect cannot be altered
by evidence of subsequent conduct of parties.
Now, in this case Ext. P-1 itself specifies the share of each mem-
D ber separately. There is no concept 1.'1lown to Hindu law that there
could be a branch of a family wife-wise. To illustrate, if a Hindu
father has two wives and he has three male children by the first wife
and two by the second, each wife constituting a branch with her
children of the family is a concept foreign to Hindu law. There-
fore, tavazhi wife-wise stated in Ext. P-1 has to be ignored and the
E contention that there was a partition amongst wife-wise branches as
represented by each wife is equally untenable. Ext. P-1 did bring about
a specification of shares and once such shares were defined by the
father who 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 enjoy-
F ment immediately changed and members of such family ceased to
be coparoeners holding as joint tenants but they held as tenant11-in-
common. Subsequent conduct of some of them to stay together in
the absence of any evidence of re-union as understood in law is of
no consequence. In any event when Kesavan, the son of the second
G wife, sought and obtained physical partition of the properties allotted
to him and left the family there being no evidence whether others
agreed to remain united except the socalled evidence of subsequent
conduct, which is irrelevant or of no consequence, disruption of status
was complete. Therefore, the four sons of the first wife held the
property as tenants in common.
B There is evidence in the form of some documents showing that
defendant 1 was described as Karnavaran of a coparcenary of the
(!) [1968]28.C.R.395.
KALLYANI v. NARAYANAN (Desai, !.) 115 I

four sons of the first wife of Karappan and that the property was A
enjoyed as a joint family property. In view of our conclusion that
"". such subsequent conduct is not conclusive of any agreement to re-
unite, it is not necessary to examine the evidence.
In view of our conclusion that since the execution of Ext. P-1 on
January 25, 1910, or after the death of Karappan in February 1910,
B
• when Kesavan, the son of the second wife took his share of the pro-
perty left the family there was a disruption of the joint family and the
sons of Karappan by his first wife hdd the property, which remained
for them after Kesavan obtained his share, not as joint tenants but
as tenants-in-common, the plaintiff would be entitled to the share
to which her deceased husband Raman was entitled. Raman had 1/4 c
share in A schedule properties which the plaintiff would be entitled
and therefore, there would be a preliminary decree in her favour to
that effect. Plaintiff's .claim to a share in properties set out in
schedules B and C annexed to the plaint has been concurrently nega-
tived by both the courts on :he finding that they are. the properties
of defendant 1 and his wife and are not accretions to the property D
which devolved from Karappan. This concurrent finding of fact
arrived at on appreciation of evidence appears to be correct and need
not be disturbed. Therefore, plaintiff's suit with regard to a share
!~- B and C scheduk properties has been rightly dismissed.

At the commencement of hearing of the appeal it was pointed out E
that original plaintiff Kallyani is dead and there is some dispute
between her two daugh'.ers Yashoda and J anaki about suco~ssion to
the estate of Kallyani. Both bad applied to the exclusion of each
other for being substituted as legal representatives of \he deceased.
For purposes of this appeal both were subs'.ituted for the deceased
appellant. It is not necessary to decide this question in this appeal F
because who'ever of the two establishes her right to inherit the pro-
perty of Kallyani would be entitled to the same but the dispute would
be between Yashoda and J anaki and the other defendants have no
right to be heard in that mater.
Accordingly this appeal succeeds and it is partly allowed. The
G
_judgment and decree of the trial Court a"nd the High Court dismiss-
ing the plaintiff's suit in regard to A schedule property are set aside.
Plaintiff's suit is decreed and it is declared that she has 1/4 share in
properties set out in schedule A annexed to the plaint. A prelimi-
nary decree to that effect shall be drawn. Defendant 1 shall pay the
costs of the plaintiff throughout. H

S.R. Appeal allowed in part.
19-138 SCIISG