Facts
A Hindu joint family consists of two brothers B1¸ and B2¸. B2, predeceased B1 leaving behind his widow B2W (Raghavamma/Plaintiff/Appellant). The only son of B1, B1S also predeceased B1, leaving behind his widow B1SW (Chenchamma/defendant/respondent) and his minor son B1SS (Subbarao).
So ultimately the coparcenary consisted of B1 and B1SS. In 1945, B1 died and therefore B1SS became the sole surviving coparcener. B1SS died in 1949 without attaining majority.
Issues
(1) Whether the testator in the present case, became separated from the joint family before his death merely because of the legal position that a will speaks only from the date of death of the testator?
(2) Whether a member of a Hindu joint family becomes separated from the other members of the family by mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family?
(3) Whether the knowledge of such a manifested intention on the part of the other affected members of the family is a necessary condition for constituting a division in status?
Arguments presented
Plaintiff’s stand: Four months before his death in 1945, B1, executed a will of his undivided properties, dividing it into two equal parts, one part in favour of his grandson (B1SS) and the other part to his granddaughter (B1DD). Since both of them were minors, he provided in the will that till their minority the management of these properties would be in the hands of the plaintiff (B2W: Raghavamma), who is the testator’s brother’s widow, and if any of these beneficiaries under the will died before attaining majority, his/her share will vest in Plaintiff absolutely. The point to be noticed is that testator’s own daughter-in-law (B1SW: Chenchamma), who is the mother of B1SS i.e. Legatee, was excluded from management as well as from inheritance. Upon the death of B1 (Legator), Plaintiff, who was to manage the properties as per the direction under the Will, allowed the defendant to take possession and manage the properties on behalf of her minor son and B1DD. B1SS however, died four years later and as he died without attaining majority, his half share in the property was claimed by the plaintiff as directed in the Will,
Defendant’s stand: Defendant contended that B1SS had died as a sole surviving coparcener and his share on his death will go by inheritance to her as she was his mother, and not as per the directions of the will. Her main argument was that B1, was an undivided coparcener with his grandson (B1SS), when he executed this will, and as an undivided coparcener he did not have the right to execute a will of his undivided share in the Mitakshara coparcenary. Therefore, the will was invalid and could not be given any effect.
Plaintiff’s counsel argument: Partition requires a unilateral, unequivocal and clear declaration by a coparcener of his intention to bring about a severance in status, and in this case, the recitals in the will disclosed a clear and unambiguous declaration of the intention of B1 to divide, and that in itself, should constitute a severance in the status, enabling him to execute a will. The fact that the said manifestation of intention was not communicated before his death to other coparceners or his guardian could not affect his status as a divided member. The knowledge dated back to the date when the will was executed, and, therefore, when B1 died he must be deemed to have died separated from the family with the result that the will would operate on his separate interest.
Supreme Court’s Observations:
The evolution of the doctrine severance of joint status can be studied in two parts, namely,
(a) The declaration of the intention; and
(b) Communication of it to others affected thereby.
As far as the first part is concerned the law is well settled, namely that a severance of joint status is a matter of individual discretion and that to bring about that state there should be an unequivocal and unambiguous declaration to that effect, even though no actual division takes place Severance does indeed result by the mere declaration because severance is a particular state of mind and the declaration is merely manifestation of this mental state. As far as the second part is concerned, the Supreme Court observed that it is implicit in the concept of ‘declaration’ that it should be brought to the knowledge of the persons affected thereby. One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. “Others” must necessarily be those affected by the said declaration. It means the manifested intention must be “clearly intimated” to the other coparceners. If a coparcener did not communicate, during his lifetime, his intention to become divided to other coparceners, the mere declaration of his intention, though expressed or manifested, did not affects a severance in status. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby. Therefore, a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to other members of the family from whom he seeks to separate.
Conclusion:
Until and unless a clear and unequivocal declaration of intention to separate was made by the coparcener seeking Partition, law cannot presume the factum of partition from the confused and ambiguous circumstances. Under the Hindu law presumption is always in favour of joint family. The burden to prove the partition lies on the plaintiff and this burden was not discharged. Even if the “will” may be presumed to contain the intention of the executants to separate, partition cannot be effective unless such an intention is known to other members. In this case, it was not established that either the minor coparcener (Subbarao) or his guardian (mother-Chenchamma) were aware of the contents of the “Will before the testator died. The plaintiff having failed to discharge the burden of proving the factum of partition, his entire case failed, and she could not claim possession of the properties since by survivorship the properties were devolved upon the minor sole surviving coparcener (Subbarao) and after his death, upon his guardian i.e. his mother (Chenchemma).
Appeal dismissed.
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