POTTI LAKSHMI PERUMALLU Vs. POTTI KRISHNAVENAMMA

JUDGEMENT

(1.) THE following judgment of the court was delivered by :

(2.) THIS is an appeal by special leave from the judgment of the High court of Andhra Pradesh affirming the decrees for partition and separate possession of certain movable and immovable properties, passed by the second Additional Subordinate Judge, Vijayawada.

(3.) ALL these contentions were also urged before the High court but were negatived by it and in our opinion, rightly. Mr. Desai has, however, placed reliance upon a recent decision of this court in A. Raghavamma and anr. v. A. Chenchamma and anr. (1) in support of the contention that the will itself effected a severance in status. What was held in that case was that a member of a joint Hindu family can bring about a separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty by expressing such an intention even in a will. It was further held that the knowledge of the expression of intention to separate has to be brought home to the persons affected by it and if that is done it relates back to the date when the intention was formed and expressed. A perusal of the will, Ex. B-1, does not however unmistakably show that the intention of Sitaramaiah was to separate himself from the joint family. At the outset he has stated : 'I have executed this will regarding the arrangements to take effect after my life-time with regard to the enjoyment of the joint immovable and movable properties which are possessed by me and under my management by my brother and others.' In the second paragraph he has stated that he had no ancestral property at all and that the business carried' on by himself and his brother was established by them. In the third paragraph he directed that the plaintiff shall maintain his son Pulla Rao and that his brother would took after the interests of Pulla Rao. The 4th 5th and the 8th paragraphs on which reliance is placed by Mr. Desai run thus : '4. If for any reason the said Krishnaveni does not agree to be like that my younger brother Lakshmi Perumallu shall deliver possession of the upstair house constructed newly on the house site purchased from Nadakurthi Kristamma and others and the tiled room situate in the big street and purchased from Gunda Subbarayudu out of the immovable property possessed by me in Bezwada town on condition of including them in the half share of the property that shall pass to my -,on after my life-time. 5. The said Krishnaveni shall be at liberty to take passion of the two properties mentioned in paragraph 4 above, to pay all kinds of taxes payable thereon and to enjoy freely throughout her life-time only the income got every year from the said two properties without powers of gift, mortgage, exchange and sale by following the age-old custom and by maintaining the family respect and custom and the said two properties shall pass to,my son Pulla Rao alias Venkatasatyanarayana after tier life-time. 8. My younger brother Lakshmi Perumallu shall keep the remaining entire property joint till my son Pulla Rao alias Venkatasatyanarayana attains majority and manage the same, shall bring up the boy properly, celebrate the marriage and other auspicious functions and divide the half share of the property after he attains majority and deliver possession of the same to my son.' It seems to us difficult to infer from the recitals in these paragraphs that Sitaramaiah had expressed his unequivocal intention to get separated in status. No doubt, in the 4th paragraph he has that in certain circumstances certain property will be included in the half share of the property that would pass to his son after his death and he has also said in paragraph 5 that the plaintiff shall be at liberty to take possession of the two properties indicated in paragraph 4, enjoy them during her life time and that on her death they will pass to Pulla Rao. But in paragraph 6 he has referred to the remaining property -is 'joint property' and has repeated that in paragraph 7. Again, what he has said in paragraph 8 militates wholly against the inference of separation in status. There he has enjoined upon the defendant to keep the remaining property joint till Pulla Rao attained majority, manage the same and divide that property between himself and Pulla Rao after the latter attained majority. Nowhere in the will has he stated that be wanted to put an end to the coparcenary. Indeed, the very assertion which has been concurrently found to be untrue that the property was not joint family property would preclude an inference that Sitaramaiah intended to express his intention to separate in status and put an ,end to a coparcenary which, according to that assertion, in fact did not exist. In the circumstances we cannot accept the first contention of Mr. Desai.