Case Note & Summary
The dispute arose between two co-widows of one Sivasubramania Pillai, who died in 1924 leaving behind his mother, two widows Thialaiachi and Karpagathachi, and a daughter Nagarathinathachi born of Thialaiachi. The widows inherited the properties and in July 1927 divided the bulk of them, each entering separate possession of her allotted share. Two partition lists, Exs A-1 and B-45 dated July 14, 1927, evidenced this division. On August 26, 1954, Thialaiachi died, and her daughter Nagarathinathachi took possession of the properties allotted to her mother. On December 8, 1954, Karpagathachi, the surviving widow, filed a suit against Nagarathinathachi claiming possession of those properties, relying on her right of survivorship. The respondent resisted, contending that under the partition each widow had given up her right of survivorship in the other's allotted share, so as Thialaiachi's daughter she was entitled to inherit and enjoy the share during Karpagathachi's lifetime. The District Judge, East Thanjavur, by judgment dated August 18, 1958, held that the division was only for convenience of enjoyment and decreed the suit. The Madras High Court, on appeal, by judgment dated January 12, 1962, reversed this, holding that each widow had given up her life interest in the other's allotted properties and dismissed the suit. Karpagathachi and others appealed to the Supreme Court under a certificate under Article 133 of the Constitution. The appellant raised three contentions: that the right of survivorship was a bare chance not transferable under Section 6(a) of the Transfer of Property Act, 1882; that the unregistered partition lists were inadmissible; and that the partition was for convenience only, with no relinquishment of survivorship. The Supreme Court rejected the first contention, holding that under Hindu Law as it stood in 1924, two widows inheriting their husband's properties took together one estate as joint tenants with rights of survivorship; they could by mutual consent absolutely divide the properties and preclude survivorship, and such an arrangement was not repugnant to Section 6(a), because the widow's present interest was property and could be transferred together with the incidental right of survivorship. The second contention was also rejected: partition could be effected orally, and the suit was tried on that footing; the registration objection raised for the first time in appeal was rightly disallowed. The third contention was accepted: mere partition does not destroy survivorship, and the party asserting relinquishment must prove it by clear and cogent evidence. The Court examined the partition lists and found the words 'take and enjoy' insufficient to show relinquishment; specific Tamil words indicating relinquishment were absent. Other evidence, such as joint pattas, lack of separate mutation, wills and deeds, did not establish an absolute partition. Accordingly, the respondent failed to discharge the onus. The Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the trial court's decree.
Headnote
A) Hindu Law - Co-widows' Partition and Right of Survivorship - Co-widows under Hindu Law may by mutual consent absolutely divide inherited properties and relinquish survivorship rights in each other's allotted share - Transfer of Property Act, 1882, Section 6(a) - The two co-widows inherited husband's properties as joint tenants with rights of survivorship and equal beneficial enjoyment; they were entitled to partition for separate enjoyment, and by mutual consent could enter any arrangement regarding their respective rights during the widow's estate, including absolute division that precludes survivorship. Such arrangement is not repugnant to Section 6(a) because the widow's present interest is property and the incidental right of survivorship can be transferred, while the bare chance of succeeding as next heir is alone prohibited. Held that the first contention of the appellants was rejected. (Paras 337 C-D) B) Hindu Law - Transfer and Relinquishment of Right of Survivorship - Mere partition between co-widows does not destroy right of survivorship; party asserting relinquishment must prove by clear and cogent evidence - Transfer of Property Act, 1882, Section 6(a) - The partition lists used words 'take and enjoy' ('adainthu anuhavithu') which did not expressly or by necessary intendment exclude survivorship; absence of words like 'Sarva Swantantra Badyamayum' and 'Santhathi pravesamayum' indicated no relinquishment. Other evidence such as joint pattas, lack of separate mutation, wills and deeds did not establish absolute partition. Held that respondent failed to discharge onus, so survivorship continued. (Paras 338 B-C, 338-339) C) Evidence - Admissibility of Unregistered Partition Lists - Partition may be effected orally; unregistered partition lists are admissible as evidence of such oral partition when no objection is raised at trial - Transfer of Property Act, 1882, Section 6(a) - The suit was tried on the footing that partition was oral and the partition lists were merely pieces of evidence; the objection to registration was raised for the first time in the High Court and was rightly disallowed without further investigation into facts. Held that the second contention of the appellants was rejected. (Paras 337-338)
Issue of Consideration
Whether co-widows could by mutual arrangement relinquish the right of survivorship despite Section 6(a) of the Transfer of Property Act, 1882; whether unregistered partition lists were admissible in evidence; whether the respondent had established by clear and cogent evidence that the co-widows agreed to relinquish survivorship rights.
Final Decision
The Supreme Court held that respondent failed to establish by clear and cogent evidence that the co-widows agreed to relinquish right of survivorship; mere partition does not destroy survivorship. Accordingly, the appeal was allowed, the High Court's judgment set aside, and the trial court's decree restored.
Law Points
- Mere partition between co-widows does not destroy right of survivorship
- party asserting relinquishment must prove by clear and cogent evidence
- co-widows may by mutual consent absolutely divide inherited properties and relinquish survivorship in each other's share
- such arrangement not repugnant to Section 6(a) Transfer of Property Act
- 1882
- partition may be effected orally
- unregistered partition lists admissible as evidence of oral partition when no objection at trial.
