PAVITRI DEVI AND ANR.versusDARBARI SINGH AND ORS.

A                          PAVITRI DEVI AND ANR.
                                          v.
                          DARBARI SINGH AND ORS.

                               SEPTEMBER 7, 1993

B                [KULDIP SINGH AND K. RAMASWAMY, JJ.]

           Hindu Succession Act, 1956: Section 3(}-Testamentary Succes-
    sion-Mitakshara Coparcenary-Suit for Partition-Held, deceased upon
    making a demand for partition stood divided from other members of copar-
c   cenary and became entitled to dispose of his undivided share and interest by
    testamentary disposition-Testamentary disposition means disposition of the
    property which would take effect after the death instead of eo-instantine on
    execution of document-Gift by a coparcener of his undivided interest is in-
    valid.
D          Section 6-Mitakshara Coparcenary-Devolution of interest-Suit for
    partition by coparcener--Plaintiff died pending litigation-Plaintiff's daughter
    being class-I heir succeeds to estate by intestate succession.

          Code of Civil Procedure, 1908: Order 22, Rule 3-Suit for partition of
E   Mitakshara Coparcenary-Plaintiff died pending litigation-Daughter of
    deceased being class I heir, entitled to represent the estate.

          Words & Phrases: "Testamentary disposition'Yfeaning of.

          The Appellant's father filed a suit for partition against. his brothers
F and their legal heirs claiming his share in the co·parcenary properties. The
  suit was dismissed by the trial court. While the appeal was pending before
  the High Court the plaintiff died. The appellant claiming herself and her
                                                                                      I
  son to be the legal heirs of the plaintiff, filed an application for substitu-
  tion. She claimed herself to be the daughter of the deceased. It was also
G claimed that her father, through a registrered gift deed, gave her the entire
  share that would accrue to him in the joint family property, and was put
  in possession.

           The appellant court directed the trial court to ascertain and submit
    a report in respect of the date of death of the plaintiff and the appellants'
H   entitlement to the proporty. The trial court found that the plaintiff died
                                         162
                              PAVITRI v. DAR BARI                            163

    on May 6, 1981 and not on June 8, 1981 and hence the appeal stood abated.           A
    It also found the appellant was not his daughter.

          On receiving the report, the High Court held that since the plaintiff
    died on June 8, 1981, the application for substitution was within limitation.
    However, it accepted the finding of the trial court that the appellant was
    not the heir of the deceased. The High Court also held that the gift deed           B
    executed was doubtful, and dismissed the appeal.

           In the appeal by special leave, the appellants contended that under
    Section 30 of the Hindu Succession Act, 1956 the deceased had power to
    dispose of his undivided share in the joint family property by testamentary         C
    disposition including by way of gift to his daughter; that the deceased could
    bequeath his interest in the property by way of a gift and, therefore, the
    appellant became the successor in interest by devolution under Order 22
    Rule 10 of the Civil Procedure Code, 1908 and entitled to be brought on
    record as a legal representative of her father to continue the appeal; that
    the appellant being the daughter of the deceased plaintiff equally could be         D
    brought on record as a daughter, being a class I heir under Order 22 Rule
    3 of the Civil Procedure Code 1908.

            Setting aside the order of the High Court and remitting the case to
    it, this Court
                                                                                        E
          HELD : 1.1. The deceased upon making a demand for partition, laid
    a suit in that behalf claiming a specific share in the Mitakshara Copar-
    cenary. Hence he stood divided from other members of the coparcenary
    and even though partition by metes and bounds had not taken place on
    the date of his death, he was a dividing member of the joint family. By             F
    operation of Sectio~ 30 he was entitled to dispose of his undivided share
    and interest in the coparcenary by testamentary disposition. [168-D-E]

         Jalaja Shedthi v. Lakshmi Shedthi, [1973] 1 SCR 707, followed

          Phoolchand v. Gopal Lal, [1967) 3 SCR 153; Baba v. Thimma, (1884)             G
    7 Mad. 357; Soorjeemoney Dossee v. Deenobundo Mullick, (1857) 6 Moore's
    Indian Appeals 523 at 553; Tagore v. Tagore, (1872) Indian Appeals
    (Suppl.) 47 and Subbaramani v: Ramanamma, (1920) I.LR. 43 Mad. 420,
    referred to.
                                                                                    •
          1.2. Testametary disposition means disposition of the property which          H


-
    164                    SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A would take effect after the death, instead of eo-instantine on the execution
    of the document. [167-C]

         Webster : Comprehensive Dictionary, International edition p. 1298; P.
    Ramahatha Aiyar : Law Lexicon Reprint Edition, 1987 p. 1271 and Black's
    Law Dictionary, 6th Edition 1991 of 1475, referred to.
B
          1.3. A gift by a coparcener in a Mitakshara family of his undivided
    interest is wholly invalid. A disposition intra vi vos by gift of coparcenary
    property except either with consent of other coparceners or between copar-
    ceners or in exceptional circumstances, is void. [170-E]
c         Maine's Hindu Law p. 685; N.R. Raghavachariar's Hindu Law p. 236
    referred to.

          Ramalinga v. Narayana, (1922) 49 Indian Appeals, 168 at 173;
    Lakshman Dada Naick v. Ramachandra, (1881) 7 Indian Appeals; 181
D   (P.C.); Appanpatra v. Srinivasa, (1917) I.L.R. 40 Mad. 1122; Dwarampudi
    Nagarathamba v. Kunuku Ramayya & Anr., (1968) 1 SCR 43; Venkata
    Subbammana v. Rathnamma, AIR (1987) SC 1757 and Mukund Singh v.
    Wazir Singh, [1972) 4 SCC 178, followed.

E        2.1. Gift is not a testamentary succession under section 30 of the
    Hindu Succession Act. Hence, the appellant donee acquires no interest by
    devolution to represent the interest of the deceased plaintiff under Order
    22 Rule 10 of C.P.C. [170-F, G]

           3.1. In the instant case, evidence establishes that the appellant is the
F   daughter of the deceased. Voluminous oral evidence of 11 witnesses was
    adduced to prove paternity of the appellant that the plaintiff was her father;
    No attention was bestowed by the High Court to subject that evidence to
    close scrutiny. There was no good ground to reject the oral evidence. Besides
    the plaintiff himself described in 1963 the geneology attached to the palint
G   that the appellant was his daughter and her son as his grandson. In the gift
    deed also he reiterated that she was his daughter. [172-C-D]

         4. A private document produced from the custody of private party
    though of 30 years old, cannot have the same weight as a public document
    and cannot be used as evidence to deny the paternity of the child, when
H   voluminous oral evidence speaks to the contrary. [172-B]

                                                                                      .
                     PAVITRI v. DARBARI[RAMASWAMY,J.]                      165

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1592 of A
    1993.

         From the Judgment and order 11.2.1984 of the Patna High Court in
    appeal from original decree No. 582/68.

            Ranjit Kumar for the appellants.                                     B
            The Judgment of the Court was delivered by

           K. RAMASWAMY. J. 1. One Brahmadeo Singh son of Tuso Singh
    filed partition Title Suit No. 13 of 1963 against his brothers and their heirs
    claiming 1/6th share in the coparcenary properties mentioned in schedules C
    attached to the plaint. The trial court dismissed the suit. While the F.A.
    No. 582/68 was pending in the High Court of Patna, he died on June 8,
    1981. The appellant, Pavitri Devi, filed an application for substitution· of
    her and her son as legal representatives. Her claim has been founded on
    two grounds, namely as the daughter of Brahmadeo Singh as well as the D
    registered gift deed Ex. 2 dated August 5, 1980 executed by her father
    giving his entire share in the joint family property and put them in posses-
    sion of 9.96 acres of land. When the factum of the date of death and her
    entitlement as an heir were put in issue by the contesting respondents
    before the appellate court, the trial court was directed to record the
    evidence and to submit its report thereon. The trial court on recording E
    voluminous evidence found that Brahmadeo Singh died on May 6, 1981 and
    not on June 8, 1981, and consequently the appeal stood abated. The trial
    court also found that the appellant is not his daughter. The High Court
    held that "for the evidence it is clear that Brahmadeo Singh died on June
    8, 1981" and the application for substitution was within limitation. However, F
    it held that the appellant is not his heir and the gift deed executed by
    Brahmadeo Singh was doubtful. Accordingly the appeal was dismissed by
    decree and judgment dated Feb. 11, 1984. Thus this appeal by special leave.

          2. Though the respondents have been served before and after the
•   grant of speical leave, none has appeared either in person or through G
    counsel. Shri Ranjit Kumar, learned counsel for the appellants placing
    reliance on s.30 of the Hindu Succession Act, 1956 for short 'the Act',
    contended that Brahmadeo Singh had power to dispose of his undivided
    share in the joint family property by testamentary disposition including by
    way of gift to his daughter. The interest held by him in the coparcenary H
    166                   SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A   property could be bequeathed by the gift deed. Thereby the appellant
    became successor in interest of Brahmadeo Singh, her father, by devolution
    under Order 22 Rule 10 of Code of Civil Procedure; 1908. Undouotedly,
    Order 22 Rule 10 is applicable to an assignee or a person acquiring, during
    pendency of the suit, the interest in the suit property by devolution. so she
    would be entitled to be brought on record as her father's legal repre-
B   sentative to continue the appeal. Equally as a daughter, being Class I heir,
    she could be brought on record under Order 22 Rule 3 C.P.C. The question
    is whether the gift over of the interest in the coparcenary property by
    Brahmadeo Singh is valid in law. Section 30(1) of the Act provides that
    'any Hindu may dispose of, by will or other testamentary disposition, any
c   property which is capable of being so disposed of by him, in accordance
    with the provisions of the Indian Succession Act, 1925, or any other law
    for the time being in force and applicable to Hindus'. The explanation
    thereto provides that the interest of a male Hindu in a Mitakshara copar-
    cenary property.......shall notwithstanding anything contained in this Act, or
D   in any other law for the time being in force, be deemed to be property
    capable of being disposed of by him or by her within the meaning of this
    section. Section 6 of the Act provides that when a male Hindu dies, after
    the commencement of this Act, having at the time of his death an interest
    in a Mitakshara coparcenary property, his interest in the property shall
    devolve by survivorship upon the surviving members of the coparcenary. If
E   the deceased had left behind him a surviving female relative specified in
    Class I of the Schedule, the interest of the deceased in the Mitakshara
    coparcenary property shall devolve by testamentary or intestate succession,
    as the case may be, under the Act and not-by survivorship.

F         3. Webster in Comprehensive Dictionary in international edition at         •
    page 1298, stated the meaning of the word 'testamentary' thus: (i) derived
    from, bequeathed by, or set forth in a will; (ii) appointed or provided by,
    or done in accordance with, a will; (iii) pertaining to a will, or to the
    administration or settlement of a will, testamental. In the Law Lexicon by
G   P. Ramanatha Aiyar, [reprint edition 1987 at p. 1271) testamentary instru-
    ment was defined to mean a "testamentary instrument" is one which
    declares the present will of the maker as to the disposal of his property
    after death, without attempting to declare or create any rights therein prior
    to such event. Black's Law Dictionary [6th Ed. 1991) defines "testamentary
    disposition" at page 1475 thus - "the passing of property to another upon
H   the death of the owner. A disposition of property by way of a gift, Will or
                    PAVITRI v. DARBARI[RAMASWAMY,J.]                         167

     deed which is not to take effect unless the grantor dies or until that event." A
     Section 123 of the Transfer of Property Act provides disposition by a gift
     which takes effect even during the lifetime of the donor and effective as
     soon as it is registered and normally given possession of the property
     therein. Section 30 of the Act is merely declaratory of the law not only as
     it stood before the Act, but as it now stands modified by the provisions of B
     the Act. It declares that any Hindu may dispose of by a will or other
     testamentary disposition his property or interest in coparcenary which is
     capable of being so disposed of by him in accordance with the provisions
     of the Indian Succession Act, 1925 or any other law for the time being in
     force applicable to the Hindus. Its explanation is really material. The
     testamentary disposition, therefore, would mean disposition of the property C
     which would take effect after the death, instead of eo-instentine on the
     execution of the document. A testamentary disposition is generally effected
     by a will or by a codicil which means an instrument made in relation to a
     will extending, altering or adding to its disposition and is to be deemed to
     form part of the will. Will as defined in s.2(h) of the Indian Succession Act, D
     1925 means legal declaration of the intention of the testator with respect
     to his property which he desired to carry into effect after his demise. It
     limits alienation intra vivos. While the gift being a disposition in presenti,
     it becomes effective on due execution and registration and generally
     delivery of the possession. Section 30 makes it clear that testamentary
     disposition under the Act would be dealt with in accordance with the E
     Indian Succesion Act. Section 55 and Schedule 3 of the said Act prescribe .
     procedure effecting succession amongst Hindus by testamentary succession
     by will or codicil. Section 30 employs non-obstenti clause and excludes
     from the operation of pre-existing or any other law applicable to coparcen-
     ary property governed by Mitakshara law and introduced fiction in its F
     explanation and empowers the Hindu male or female to dispose of his or
     her interest by a will or any other testamentary disposition known to law
     which would be effective after the demise. It would, therefore, be difficult
     to envisage that disposition by gift partakes the character of testamentary
     succession under s.30 of the Act.
                                                                                   G
           4. It would be clear when we glean through the pre-existing law. In
     Jalaja Shedthi v. Lakshmi Shedthi, [1973) 1 SCR 707, relied on by Mr.
     Ranjit Kumar this court held thus:

                 "On the demand for partition there is a division in status, and   H

.•
    168                   SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A           though partition by metes and bounds may not have taken place,
            that family can thereafter never be considered as an undivided
            family, nor can the interest of a coparcener be considered to be
            an undivided interest. It is a well established principle in the Hindu
            Law that a member of a joint Hindu family has a right to intimate
            his definite and unambiguous intention, to the other members of
B           the joint family that he will separate himself from the family and
            enjoy his share in severalty. Such an unequivocal intention com-
            municated to the others will amount to a division in status and on
            such division he will have a right to get a de facto division of his
            specific share of the joint family property, in which till then all of
c           them had an undivided coparcenary interest, and in which none of
            them could claim that he had any right to any specific part thereof.
            Once the decision to divide has been unequivocally expressed and
            clearly intimated to his co-sharers whether or not the other co-
            sharers agree, an immediate severance of the joint status is effected
            to which he is admittedly entitled, becomes specified."
D
           5. Having made demand for partition and laid the suit in that behalf
    claiming a specific share in the Mitakshara Coparcenary, Brahmadeo Singh
    stood divided in status from other members of the coparcenary, though
    partition by metes and bounds had not been taken place, on the date of
E   hi~ death; he was a dividing member of the joint family. By operation of
    s.30 he was entitled to dispose of his undivided share and the interest in
    the coparcenary by testamentary disposition.

           6. In Phoolchand v. Gopal Lal, (1967] 3 SCR 153 this court held that
F   after filing the suit there was a division in status among the members of
    the joint family, even though they had been separated earlier. In that case
    there was a decree passed. Sohan Lal had bequeathed his share by a will
    in favour of Gopal Lal. This court held that Sohan Lal being the owner of
    his share in the undivided coparcenary, was competent to bequeath by will
    of his undivided share he got out of the joint family property. This bequeast
G   was between coparceners.

          7. It is settled law that the Karta or the Manager of the Hindu Joint
    Family has a right to alienate undivided interest in the Hindu jomt family
    property for valid consideration for family necessity. Karta or coparcener
H   has right to alienate his undivided share in coparcenary property and the
                PAVITRI v. DARBARl(RAMASWAMY,J.j                             169

purchaser acquires only the equitable right to allotment of his                     A
predecessor's share at a partition.? The purchaser is entitl~d to the allot-
ment of the specific property sold and was put in possession, as far as
possible, subject to equities. In Baba v. Thimma, (1884) 7 357, the Full
Bench held that an undivided Hindu father has no right to bequeath
coparcenary property.
                                                                                    B
       8. In Soorjeemoney Dossee v. Deenobundo Mullick, (1857) 6 Moore's
Indian Appeals 523 at 553, under Dayabaga law the Judicial Committee
held that whatever may have formerly been considered the state of that law
as to testamentary power of the Hindus over their property, the power has
long been recognised and must be considered as completely established. C
In Tagore v. Tagore, (1872) Indian Appeals (Suppl.) 47, the Judicial Com-
mittee set the limits thus: the law of will among the Hindus is analogous
to law of gifts and even of wills are not universally to be recognised in all
respects as gifts to take effect upon death, they are generally so to be
regarded as to the property which they can transfer and the persons to D
whom it can be transferred. A bequest by a will made by a Hindu father
of his joint family property for the maintenance of his wife was held to be
invalid Subbaramani v. Ramanamma, (1920) I.L.R. 43 Madras 420.

       9. At p.685 in paragraph 406 of Mayne's Hindu Law, 13th Edition
revised by Justice A. Kuppuswami former Chief Justice of Andhra Pradesh             E
High Court, it is stated thus: "It is now equally well settled in all this states
that a gift or device by a coparcener in a Mitakshara family of his undivided
interest is wholly invalid. The exceptional· cases recognised by the Mitak-
shara law where it is open to the father or managing member of the family
to make a gift of ancestral movable or immovable property have been                 F
noticed in paragraph 377, 393 and 394. A coparcener cannot make a gift
of his undivided interest in the movable family property either to a stranger
or a relative except for the purpose warranted by special texts.

       10. In N.R. Raghavachariar's Hindu Law, edited by late Prof. S.
Venataraman, who himself was an authority on Hindu Law, stated at page G
236 that a coparcener cannot transfer his undivided interest without con-
sideration. Such transfer is totally void. At page 237 it was stated that a gift
of his interest by a coparcener being void altogether, there is no estoppel
or other kinds of personal bar precluding the donor from asserting his
rights to recover the transferred property. A gift by a major coparcener in H
    170                   SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A favour of the minor coparcener was stated to be valid as an exception to
    the general principle. A transaction of gift of a joint family property would
    be void in toto and would not bind even the donor.

           11. Mayne's Hindu Law, in paragraph 379 at p.661 it is stated that
    the father's power to make gift through affection within reasonable limits
B   of ancestral movable property has been duly recognised. In Rama/inga v.
    Narayana, (1922) 49 Indian Appeal, 168 at 173 the Judicial Committee held
    that the father has undoubtedly the power under the Hindu law of making,
    within reasonable limits gift of movable property of Rs. 8,000 to a daughter,
    but the gift through affection of joint family property as invalid. Right of
c   the coparceners vests by survivorship at the moment of the trestator's
    death, and there is accordingly nothing upon which the will can operate,
    as held in Lakshman Dada Naick v. Pamchandra, (1881) 7 Indian Appeals
    181 (P.C.). A gift made with the consent of the coparceners was held to
    be valid inAppanpatra v. Srinivasa, (1917) l.L.R. 40 Madras 1122.
D
           12. InDwarampudi Nagaratnamba v. Kunuku Rnmayya &Anr., (1968]
    1 SCR 43, this court held that under the Madras School of Mitakshara law
    by which V was governed, he had no power to make gift of his undivided
    interest in the coparcenary property to his concubine. But a gift by· one
    coparcerner of his undivided share to another coparcener, to the exclusion
E   of the others is not invalid Venkata Subbammana v. Rathnammal, AIR 1987
    SC 1757. This court inMukund Singh v. WazirSingh, (1972] 4 SCC 178 held
    that a gift of coparcener's property by a me~ber is void. In other words it
    is settled law that a disposition intra vivas by gift of coparcenary property
    except either with the consent of other coparceners or between copar-
F   ceners or in exceptional circumstances is void. Since the gift being not for
    consideration is void in toto and operates eo instentine during the life time
    of the donor, it is not a testamentary succession under. Section 30 of the
    Act, therefore, brought about change in law of testamentary disposition of
    a Hindu Coparcener of his interest in coparcenary property governed by
    Mitakshara School of Hindu Law worked out in accordance with Section
G   55 read with Schedule III of Indian Succession Act or any other law in
    force to the above extent. The appellant, donee acquires no interest by
    devolution under the gift to represent the interest of the deceased plaintiff
    under Order 22 rule 10 of C.P.C. Therefore, though for different reasons,
    we uphold the finding of the High Court in this behalf that the appellant
H   is not a successor in interest by devolution by operation of Order 22 Rule
               PAVITRI v. DARBARI [RAMASWAMY,J.)                        171

10. Accordingly we reject the claim of the appellant on that premise.          A
      13. However, she is right in her contention that she is a successor in
interest under Order 22 Rule 3 of C.P.C. as is seen by operation of the
proviso to section 6 (1) of the Act and explanation I of which reads thus :

        "Explanation 1. - For the purpose of this section, the interest of a   B
        Hindu Mitakshara coparcener shall be deemed to be the share in
        the property that would have been allotted to him if a partition of
        the property had taken place immediately before his death, ir-
        respective of whether he was entitled to claim partition or not."

A reading of s. 6 thereof clearly provides that when a male Hindu dies,        c
after the commencement of the Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest by operation of
the proviso devolve on his surviving members of the relatives specified in
Class I of the Schedule. The interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate succession, D
as the case may be, under the Act and not by survivorship. In other words
interposition of a female class I heir in the family of the deceased copar-
cener interjects the operation of succession to coparcenary property by
survivorship and opens up the intestate or testementary succession under
the Act among the heirs in the order specified in the Schedule. For the E
purpose of this section the interest of a Hindu coparcener shall be deemed
to be the share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not. It is,
therefore, statutorily assumed that the partition had, in fact, taken place
between the deceased and the other coparceners immediately before his F
death by fiction of law. The inevitable corollary being that Pavitri Devi,
female class I heir as per schedule will get her share in the interest which
the deceased had in the coparcenary property at the time of his death at
a notional partition.

      14. The immediate question is whether the first appellant is the G
daughter of Brahmadeo Singh. The High Court rejected her claim
predominently on two grounds;' firstly that there was a discrepancy in the
description of the name of her husband and that at the. tonsuring ceremony
(Mundan) she was described to be the daughter of one Uma Shanker
Singh. As regard the first ground is concerned, we find that it is wholly H
    172                   SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A irrelevant and cuts no ice into her case. With regard to tonsuring ceremony,
  said to be b< >ed on an entry found in a private record said to have been
  maintained b ~fore 30 years by the father of a witness. A private document
  produced from the custody of a privata party though of 30 years old cannot
  have the same weight as a public document, nor. be relied on to make a
  child bastard. One finds that such a precarious document cannot be used
B to deny the paternity of the child. Voluminous oral evidence of 11 witnesses
  was adduced to prove paternity of the appellant that her father is Brah-
  madeo Singh. No adequate attention was bestowed by the High Court to
  subject that evidence to close scrutiny. No valid grounds were given to
  reject it. Therefore, without trenching into the field of· appreciation, we
C have gone· .through it and we find no good ground to ·reject the oral
  evidence. This apartJh_e_ <l:eceased himself described in 1963 ~he geonology
  attached to the plaint that Pavitri Devi is his daughter and her son as
  grandson. The High Court stated was there was no need to describe in the
  geonology of the females. Whether there existed the need or not, it now
D bears great relevance. As a fact, it establishes that he proclaimed that
  Pavitri Devi to be his daughter long before his death. In the gift deed also,
  though we find to be void, he reiterated her to be his daugher. That wa8
  almost one year prior to his death. We have no hesitation to hold that the
  evidence establishes that Pavitri Devi is the daughter of Brahmadeo Singh.
  She being the Class I heir succeeded to the estate of the deceased by
E intestate succession under s.6 and she is entitled to represent the estate in
  the partition action. Accordingly by operation of s.6 of the Act read with
  Order 22 Rule 3 C.P.C. she is entitled to represent the estate of the
  deceased. The application for substitution stands succeeded. She is brought
  on record as legal representative of the deceased appellant. The order of
F the High Court is accordingly set aside. The matter is remitted to the High
  Court for disposal on merits. The appeal is allowed but with no order as
  to costs.

    R.~.K.                                                    Appeal allowed.