Orissa High Court
Chetti Balakrishnamma Alias ... vs Chetti Chandrasekhar Rao And Ors. on 13 April, 1990
Equivalent citations: AIR1991ORI332, AIR 1991 ORISSA 332, (1992) 1 HINDULR 274
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Defendant No. 6 is the appellant. The plaintiff filed the suit for partition of the plaint schedule property claiming on the basis of a registered will executed by his grandfather Chetti Venkataswamy in 1953 (Ext. 43).
2. One Sarathi had two sons, Venkataswamy and Narasimhulu. Venkataswamy died on 5-5-1957 leaving his widow Ammayamma and two sons Krishnamurty and Balakrishna (defendants 4 and 6 respectively) and daugher Sundaramma (defendant No. 8). Krishnamurty's wife is Anusuya (defendant No. 5) and Balakrishna's son is Jagannadha (defendant No. 7). Krishnamurty's son Chandrasekhar is the plaintiff and the three daughters Suguna, Geeta and Vanaja are defendants 1, 2 and 3 respectively. Narasimhulu died on 24-4-1952 leaving three wives, Narasamma, Sundaramma and Manikyamma who were issueless. According to the plaintiffs case, Venkataswamy and Narasimhulu had a business of selling country cigar and out of the money thus earned lots of properties were acquired. After death of Narasimhulu in 1952, his three widows filed suits for partition which were ultimately disposed of on compromise and in the said compromise Venkataswamy got 10 annas share and the three widows got six annas share. Venkataswamy had executed a registered will on 20-4-1953 disposing of his properties in a particular manner. Venkataswamy died on 5-5-1957. The plaintiff was born on 3-10-1961. Under the will all lands in village Matiapalli would vest with Sundaramma after the death of Venkataswamy and the remaining properties would be enjoyed by Ammayamma but she had no power of alienation, After the death of Ammayamma half of the properties would go to Balakrishna and rest half would devolve upon the children of Krishnamurty and the sons of Krishnamurty would receive 10/ 16th share after the death of Ammayamma. Therefore, under the will, Krishnamurty was excluded from getting any interest in the property of Venkataswamy. Notwithstanding the aforesaid will, on 17-9-1961, a family arrangement was entered into which is Ext. A and under the family arrangement, the members of Krishnamurty's family, namely defendant No. 4, Defendant No. 5 and defendants 1,2 and 3, all got one share and both Krishnamurty and Anusuya, father and mother of the plaintiff, were parties to the said family arrangement. Plaintiff's case is that the property in question being the self-acquired property of Venkataswamy and he having executed a will indicating the manner in which the property will devolve, defendants 4 and 5 had no authority to enter into a family arrangement under Ext. A and, therefore, the so-called family arrangement under Ext. A is not binding on the parties and the will must be given effect to. Accordingly, he prayed for partition.
3. Defendants 6 and 7 are the contesting defendants and it is their case in the written statement that the suit is not maintainable and the family arrangement was entered into in order to keep peace and harmony in the family and the plaintiffs family namely his parents and others have been benefited by that family arrangement and the arrangement having been acted upon the same cannot be Challenged now by the plaintiff. It is also their lease that the will in favour of an unborn child is not valid and even if it is valid, the same is superseded by the family arrangement dated 17-9-1961 (Ext. A).
4. The other defendants who are mostly alienees from either of the parties also filed their written statements taking the stand that the family arrangement of 1961 had been fully acted upon and they were all bona fide purchasers from different members of the family who derived their interest from the family arrangement under Ext. A and, therefore, the will could not be said to be valid.
5. On these pleadings, the trial Court framed six issues and on issue No. I which is on the question of validity of the will, found that the truth and genuineness of the will executed by Venkataswamy was admitted;
Venkataswmay had the right to will away his (interest in the property and the will could not [be said to be invalid being in favour of a son who was not born on the date of execution of the will, as under the will the property devolved upon Ammayamma on the death of the testator and Chandrasekhara, the plaintiff, got the property only after death of Ammayamma and Chandrasekhara was admittedly born while Ammayamma was living land, therefore, the will executed by Venkataswamy must be held to be valid and operative and was binding to the extent of his interest in the property. On issue No. 2 which is on the question of binding nature of the family arrangement under Ext. A, the trial court found that the family arrangement could not disturb or change the mode of devolution made by Venkataswamy under the will and, therefore, it could not have the effect of either disturbing or taking away the rights of the plaintiff created under the will. On issue No. 4 as to the plaintiffs right for partition, the same was answered in favour of the plaintiff.
On issue No. 3 which is in respect of alienation of the property made by different members in favour of different alienees, it was held that to the extent the alienations are contrary to the interest of the plaintiff, the same could not be sustained and would not be binding on the plaintiff. On issue No. 5 which is on the question whether the defendants are liable to render accounts, it was also held in favour of the plaintiff. On these findings, the plaintiffs suit was decreed and it was observed that while dividing the property, the property which is the subject-matter of alienation should as far as practicable be allotted to the share of the alienor without affecting the rights of the plaintiff. Defendant No. 6 has filed the present appeal against the judgment and decree of the learned Subordinate Judge.
6. Mr. P.V. Ramdas, the learned counsel for the appellant, raises two contentions in assailing the judgment and decree of the Subordinate Judge:--
(i) The will being in favour of a person who was not born on the date of the execution of the will is invalid and inoperative and, therefore, the plaintiffs basis for the suit is taken away and the plaintiff cannot get a decree in the suit; and
(ii) Even if the will is valid, but in the family arrangement under Ext. A, plaintiffs parents having derived interest in the property and they having already sold away the property, the present suit by their son is a mala fide move and the family arrangement having been acted upon, the same should not be disturbed particularly when the beneficiaries under the family arrangement are the members of the plaintiffs branch.
The learned counsel for the plaintiff-respondent No. 1, on the other hand, contends that in view of exception to Section 111 of the Succession Act and in view of the terms of the will, the will in favour of the plaintiff cannot be said to be invalid even though the plaintiff was not born on the date of execution of the will. It is further argued that the family arrangement cannot disturb the mode of devolution of the property provided under the will. In support of the cross-appeal that has been filed by the plaintiff-respondent No. 1, the learned counsel argues that the prayer for partition should not have been left open to be worked out in a separate suit and the said relief should have been allowed.
7. In view of the rival submissions of the counsel for parties, four questions arise for our consideration:--
(i) Whether the property acquired by Venkataswamy through his own endeavour can be said to be the joint family property of Venkataswamy and his heirs or it is the self-acquired property of Venkataswamy?
(ii) Can the will be said to he invalid on the ground that it was in favour of a person who was not born on the date of death of the testator?
(iii) Whether the parties by way of a family arrangement under Ext. A could dispose of the property of Venkataswamy contrary to his disposition under the will?
(iv) Is the plaintiffs prayer for partition should have been granted in this suit itself?
8. So far as the first point is concerned, it is almost admitted and evidence is overwhelming that neither Venkataswamy nor his brother Narasimhulu had any ancestral joint family property in their hand. By dint of their own labour and by preparing and selling country cigar both the brothers earned their livelihood and in course of time out of their own income they acquired the property in question. Uadoubtedly in the property both Narasimhulu and Venkataswamy had their respective shares. But so far as the property of Venkataswamy is concerned it must be held to be his self-acquired property having been acquired out of his own endeavour and it cannot be impressed with the character of a joint family property. The property in question having been acquired by Venkataswamy out of his own exertions and without the aid of any joint family property, it must be held to be the self-acquired property of Venkataswamy. When a property is acquired by persons constituting a joint Hindu family by their joint labour, as has been done in the present case, but the same is acquired without the aid of joint family property, then it becomes the joint property of the joint acquirers and in such property, the male issues of the acquirers do not take any interest in it by birth. There has not been an iota of material in the present case to indicate that the property acquired by the two brothers, namely Venkataswamy and Narasirnhulu was acquired with the aid of any joint family property. On the other hand, it is almost the admitted case of the parties that the property was so acquired by the endeavour of the two brothers without the aid of joint family property and, therefore, it must be held to be the joint property of the joint acquirers and consequently, the property that was in the hands of Venkataswamy must be held to be his self-acquired property.
9. So far as the second question is concerned, it depends upon the provisions contained in Sections 111 to 113 of the Succession Act. Under the old Hindu Law, a bequest in favour of a person not in existence at the time of testator's death was being considered to be invalid. But in view of the Hindu Disposition of Property Act, 1916, as well as the Succession Act, the said position no longer remains the correct position of law. Under Section 111 of the Succession Act, a bequest made to a class of persons described becomes valid only if the persons in whose favour the property is bequeathed are alive at the time of death of the testator. But there is an exception to said Section 111. Under Section 112, where a bequest is made to a person and that person is not in existence at the time of testator's death, then the bequest becomes void. But there is an exception to the said provision also. Where A bequeaths Rs. 1,000/ - to the eldest son of C to be paid to him after the death of B and on the death of the testator A, C had no son, but a son was born to him during the lifetime of B and was alive at B's death then the said son of C would be entitled to the sum of Rs. 1,000/-that had been bequeathed by A. This illustration fully applies to the facts of the present case. Under the will, Venkataswamy bequeathed all his lands in village Matiapalli in favour of defendant No. 8 and so far as the rest of the properties is concerned, his wife Ammayamma was given the right to enjoy during her lifetime without any right of alienation and after death of Ammayamma half of the property would go to defendant No. 6 and after excluding the said property, the sons of Krishnamurty would be entitled to 10 annas share in the remaining property and daughters of the eldest son would be entitled to six annas share from the property in question. This being the disposition, even though the plaintiff was not born on the date of death of the testator Venkataswamy, but was admittedly born during the lifetime of Venkataswamy's wife Ammayamma, the plaintiff having been born in 1961 and Ammayamma having died on 21-8-1964. On death of Ammayamma the property as per the will and to the extent indicated therein devolved upon the plaintiff and the will cannot be said to be invalid being contrary to any of the provisions of the Succession Act. The contention of Mr. Ramdas, the learned counsel for the appellant, to the contrary in this regard must be rejected and it must be held that in the facts and circumstances of the present case, the will in question though was in favour of the plaintiff and plaintiff was not born at the time of death of the testator, yet it was valid and binding.
10. So far as the third point is concerned, admittedly the property being the self-acquired property of Venkataswamy as held by us earlier, and said Venkataswamy having executed a will indicating the manner of disposition of the property, the successors of Venkataswamy cannot by way of a family arrangement change the devolution or mode of succession. In other words, the heirs of Venkataswamy had no right to meddle with the property in any manner contrary to the wishes of the testator who had acquired the property in question and who had indicated the manner of disposition of his property. The express desire of the testator as reflected in the will cannot be deviated and therefore, the so-called family arrangement must be held to be invalid and inoperative and cannot in any manner override the will (Ext. 43). In this view of the matter, even though the plaintiffs parents are signatories to the family arrangement of the year 1961 under Ext. 4, the plaintiff will not be bound in any manner and the disposition of the property under Ext. A is invalid and inoperative.
11. So far as the fourth point for consideration is concerned, we really fail to understand as to why instead of granting the relief of partition as claimed by the plaintiff, the Subordinate Judge directed that the said remedy should be worked out by filing a separate suit for partition. If the plaintiff succeeds in establishing that it was the property of Venkataswamy and Venkataswamy had indicated a particular way of disposition of that property under the will, and in view of our conclusion with regard to the validity of the will as well as with regard to the invalidity of Ext. A, there is absolutely no justification for driving the plaintiff to work out his remedy by filing a separate suit for partition. We would, therefore, held that the plaintiff's right under the will may be worked out by partitioning the property and the plaintiffs interest as per the will may be carved out. It may, however, be indicated that since the so-called family arrangement has been given effect to, in carving out the interest of the plaintiff under the will, care should be taken to see as far as practicable that the property that had been sold by plaintiffs parents on the basis of Ext. A should be allotted to the share of the plaintiff so that the bona fide transferees will not suffer in any manner.
12. So far as the cross-appeal is concerned, it is also necessary to examine whether the decision of the trial Court that the will executed by Venkataswamy would be valid to the extent of one-third of his interest is correct or not. In our considered opinion, the said decision is wholly contrary to law. If the property is the property of Venkataswamy and in view of our conclusion that it was his self-acquired property, Venkataswamy must be held to have full power of disposing of the same in any manner he liked and the property being in the nature of the property of a joint acquirer, the heirs of Venkataswamy cannot claim any interest in the same by birth. Therefore, the finding of the trial Court that the will was valid only to the extent of one-third interest of Venkataswamy is wholly unsustainable and the same is accordingly set aside. On the other hand, it must be held that the will is valid so far as the entire property of Venkataswamy is concerned and not to the extent of only his one-third interest as held by the Subordinate Judge. In this view of the matter the cross-appeal must succeed.
13. In the result, we do not find any merits in this first appeal which is accordingly dismissed, but the cross-appeal filed by the plaintiff is allowed. There would, however, be no order as to costs of this Court.
J.M. Mahapatra, J.
14. I agree.