PETITIONER:
BINDUMATI BAI
Vs.
RESPONDENT:
NARBADA PRASAD
DATE OF JUDGMENT28/10/1976
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1977 AIR 394 1977 SCR (1) 988
1976 SCC (4) 626
ACT
Hindu Law--If a co-widow can relinquish right of survi-
vorship--Whether after relinquishment, a widow can dispose
of property by will.
HEADNOTE
One Lakshmi Dayal died in 1952 leaving behind two wid-
ows, appellant and Shantibai. In 1954, Chandanbai widow of
brother of Laxmi Dayal filed a suit against the appellant
and Shantibai in respect of the. properties left by Lakshmi
Dayal. During the. pendency of the said suit, the appel-
lant, Shantibai and Chandanbai executed a partition deed
alloting different properties to each one of the widows.
The partition deed was registered and necessary mutation
entries were made. The suit filed by Chandanbai was dis-
posed of in terms of the Partition Deed. In September.
1955, Shantibai made a will in favour of the respondent and
she died on 29-5-1956. After her death, the appellant took
forcible possession of the suit land from the respondent.
The respondent, therefore, filed a suit against the appel-
lant for possession of the land in dispute. The Trial
Court, the first Appellate, Court and the High Court in
Second Appeal came to the conclusion that the appellant had
relinquished her right of survivorship in lands which fell
to the share of Shantibai and, therefore, decreed the
respondefts suit.
In an appeal by Special Leave the appellant
contended:
1. The appellant did not relinquish her
right of survivorship.
2. It is not permissible for a Hindu co-
widow. to give up her right of survivorship
even by an agreement.
3. Even if right of survivorship can be given
up during the lifetime of the widows con-
cerned, the property could have been trans-
ferred inter vivos but could not have been
disposed of by a will.
Dismissing the appeal,
HELD: 1. It is clear from the Partition Deed
and the evidence of the appellant herself that
she had relinquished her right of survivor-
ship. The findings of all the courts below to
the effect that the appellant relinquished her
right of survivorship are correct. [990 B-C]
2. It is permissible under Hindu Law for a
co-widow to relinquish by agreement her right
of survivorship’ in the property which falls
to the share of the other widow. [990 G]
Karpagathachi & Ors. v. Nagarathipathachi [1965] 3 SCR 335
followed.
Bhuowan Deen Doobey v. Myna Baee (1867) 11 MIA 487;
Gauri Nath Kakaji v. Gaya Kaur (1928) LR 55 IA 299 re-
ferred.
Commissioner of Income-Tax v. Smt. Indira Balakrishna
[1960] 3 SCR 513, 517 distinguished.
Ramakkal v. Ramasami Naichan (1899) ILR, 22 Mad. 522,
Sudalai Ammal v. Comathi Ammal (1912) 23 PLJ 355; Kailash
Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty [1897]
ILR 24 Cal. 339; Subbammal v. Lakshmana Iyer (1914) 26 MLJ
479; Ammani Ammal v. Perissemi Udayan (1923) 45 MLJ 1 re-
ferred to.
3. The power of a co-widoW to execute a will in respect
of the property falling to her share in the partition with
the other co-widows is co-extensive with her power to trans-
fer it inter vivos.
989
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870 of 1968.
(From.the Judgment and Order dated 22.11.1967 of the
Madhya Pradesh High Court in Second Appeal No. 436/64.
G.L. Sanghi and D.N. Misra for the appellant.
P.H. Parekh (amicus curiae) for the respondents.
The Judgment of the Court was delivered by
KRANNA, J.--This appeal by special leave is against the
judgment of the Madhya Pradesh High Court affirming on
second appeal the decision of the trial court and the first
appellate court whereby suit for possession of the land in
dispute had been decreed in favour of the plaintiff-re-
spondent against the defendant-appellant.
Laxmi Dayal died in 1952 leaving the lands in dispute
and some other properties. He was succeeded by his two
widows, Shantibai and Bindumati. In 1954 Chandanbai, widow
of brother of Laxmi Dayal, filed civil suit No. 34A of 1954
against Shantibai and Bindumati in respect of the property
left by Laxmi Dayal. During the pendency of that suit, a
deed of partition was executed by Shantibai, Bindumati and
Chandanbai, as a result of which each one of them was stated
to have become full owner of the property which fell to her
share. The partition deed was got registered and necessary
mutation entries were made in accordance with that deed.
On September 8, 1955, Shantibai made a will of the property
which fell to her share as a result of partition,. in favour
of the plaintiff-respondent. The suit filed by Chandanbai
was disposed of on February 18, 1956 in terms of partition
deed dated January 13, 1955. Shantibai died on May 29,
1956. The respondent filed the present suit against Bindu-
mati defendant-appellant for possession of the land in
dispute on the allegation that he (the respondent) had taken
possession of the land in dispute in pursuance of the will
executed in his favour by Shantibai. The appellant was
stated to have relinquished her right of survivorship in the
land which fell to the share of Shantibai. The appellant,
it was further pleaded, had taken forcible possession of
the land in dispute.
The suit was resisted by the appellant on the ground
that she had not relinquished her right of survivorship in
the land which fell to the share of Shantibai. Shantibai,
it was further averred, had no right to dispose of the said
land by will. The trial court accepted the contention of
the respondent and decreed his suit. The decision of the
trial court was affirmed on appeal by the first appellate
court and by the High Court in second appeal.
The first question which arises for consideration in
this appeal is whether the appellant relinquished her right
of survivorship in the property which fell to the share of
Shantibai as a result of the deed of partition dated January
13, 1955. In this respect we find that each
990
of the three executants stated in that deed that none of
them would have any right or claim over the property that
fell to the share of other shareholders in partition. it
was further stated in the deed:
"Every shareholder may get the property
fallen to her share, mutated and may take
possession thereof and thus may become abso-
lute owner thereof. ’Every shareholder may
get her name separately mutated in Patwari’s
papers. She may sell it. If other sharehold-
er claim it, it will be contrary to
law .......... By taking our respective
share from the entire property in the parti-
tion we become separate from the entire
property."
When she came into the witness box, the
appellant admitted that their object in making
the partition was that they would be able to
dispose of their separate lands in any way
they liked. The appellant also stated that
as a result of partition, each one of the
executants of the deed of partition became
exclusive owner of the property that fell
to her share. In the face of the recitals in
the deed of partition and the admissions made
by the appellant in the witness box, we find
no reason whatsoever to disturb the finding of
the courts below that the appellant had relin-
quished her right of survivorship in the
property which fell to the share of Shantibai.
Mr.Sanghi on behalf of the appellant,
however, contends that it is not permissible
in Hindu law for a widow to give up her right
of survivorship in the property which fails to
the share of the co-widow even as a result of
an agreement. This contention, in our opin-
ion, is devoid of force and runs counter to
the decision of this Court in the: case of
Karpagathachi & Ors. v. Nagarathipathachi.(1)
As observed in that case,
"under the Hindu law as it stood in 1924,
two widows inheriting their husband’s proper-
ties took together one estate as joint tenants
with rights of survivorship and equal benefi-
cial enjoyment. They were entitled to en-
force a partition of those properties so that
each could separately possess and enjoy the
portion allotted to her, see Dhuowan Deen
Dobey v. Myna Baee(2), Gauri Nath Kakaji v.
Gaya Kuar(3). Neither of them could without
the consent of the other enforce an absolute
partition of the estate so as to destroy the
right of survivorship, see Commissioner of
Income-tax v. Smt. Indira Balakrishna(4). But
by mutual consent they could enter into any
arrangement regarding their respective rights
in the properties during the continuance of
the widow’s estate, and could absolutely
divide the properties, so as to preclude the
right of survivorship of each of the portion
allotted to the other see Ramakkal v. Ramasami
Naichan (5),, Sudalai Ammal v. Gomathi
Ammal(6). Likewise, two daughters succeeding
to their father’s estate as joint
(1) [1965] 3 S.C.R. 335.
(2) (1867) 11 MIA 487.
(3) (1928)L.R. 55 I.A. 299.
(4) [1960] 3 S.C.R. 513,517.
(5) (1899) I.L.R 22 Mad, 522,
(6) (1912) 23 M.L.J., 355,
991
tenants with rights of survivorship could
enter into a similar arrangement, see Kailash
Chandra Chuckerbutty v. Kashi Chandra Chuck-
erbutty (1), Subbammal v. Lakshmanu
Iyer(2), Ammani Ammal v. Periasami Udavan.(a)
Such an arrangement was not repugnant to
section 6(a) of the Transfer of Property Act,
1882. The interest of each widow in the
properties inherited by her was property, and
this property together with the incidental
right of survivorship could be lawfully trans-
ferred. Section 6(a) of the Transfer of
Property Act prohibits the transfer of the
bare chance of the surviving widow taking the
entire estate as the next heir of her hus-
band on the death of the Co-widow, but it
does not prohibit the transfer by the widow of
her present interest in the properties inher-
ited by her together with the incidental
right of survivorship. The widows were
competent to partition the properties and
allot separate portions to each, and inciden-
tal to such an allotment, each could agree
relinquish her right of survivorship in the
portion allotted to the other."
There is nothing in the decision of Smt. Indira Balakr-
ishna (supra) which stands in the way of any mutual arrange-
ment between the cowidows, the effect of which would be to
preclude the right of survivorship of each to the portion
allotted to the other. The question which actually arose
for decision in that case was whether the three widows of a
deceased person could have the status of an association of
persons within the meaning of section 3 of the Indian In-
come-tax Act, 1922. This question was answered in the
negative. While discussing this question, this Court
observed that though the widows take as joint tenants, none
of them has a right to enforce an absolute partition of the
estate against the other so as to destory the right of
survivorship. The question as to whether the right of
survivorship could be relinquished as a result of mutual
agreement did not arise for consideration in that case.
This question was dealt with in the case of Karpagathachi
(supra) and it was held after noticing the decision in Smt.
Indira Balakrishna’s case (supra) that such relinquishment
of the right of survivorship was permissible as a result of
mutual arrangement.
Lastly, it has been argued by Mr. Sanghi that even
though Shantibai became entitled to dispose of during her
life time the property which fell to her share as a result
of the deed of partition, she could not bequeath the same
by means of a will. This submission too. is devoid of
force, and we agree with Mr. Parekh who argued the case
amicus curiae that the power of Shantibai to make a will in
respect of the property in dispute was co-extensive with her
power to transfer it inter vivos. The question as to what
effect the will would have on the right of the male rever-
sioner, if any, of Laxmi Dayal need not be gone into in this
case. So far as Bindumati appellant is concerned, we have
no doubt that in the light of the arrangement contained in
the deed of partition dated January 13, 1955 she cannot
resist the
(1) (1897) ILR. 24. cal. 339. (2) (1914) 26 M.L.J. 479,
(3) (1923) 45 M.L.I. 1.
992
claim of the plaintiff-respondent who is a legatee under the
will of Shantibai. To hold otherwise would be tantamount
to permitting the appellant to assert her right of survivor-
ship in the property which fell as a result of partition to
the share of Shantibai even though the appellant has relin-
quished such right of survivorship.
The appeal consequently fails and is dismissed. As no
one appeared on behalf of the respondent, we make no order
as to the costs of the appeal.
P.H.P.
Appeal dismissed.
993