KARPAGATHACHI Vs. NAGARATHINATHACHI

JUDGEMENT

(1.) One Sivasubramania Pillai died in the year 1924 leaving him surviving his mother, two widows, Thialaiachi and Karpagathachi, and a daughter, Nagarathinathachi (respondent herein) born of Thialaiachi. The two widows inherited the properties left by Sivasubramania. In July 1927, they divided the bulk of the properties and each entered into separate possession and enjoyment of the properties allotted to her. The partition is evidenced by two partition lists called partition deeds, Exs. A-1 and B-45, dated July14, 1927 and signed by both of them. Under this partition, two velis of land were set apart for the maintenance of Sivasubramania's mother, to be enjoyed by her during her lifetime, and on her death, to be taken and enjoyed by the two widows in separate portions as mentioned in the partition lists. On August 26, 1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927. On December 8, 1954, Karpagathachi instituted against the respondent the suit, out of which this appeal arises, claiming possession of the suit properties. The respondent resisted the suit claiming that under the partition each widow gave up her right of survivorship in respect of the properties allotted to the other, and consequently on the death of Thialaiachi, the respondent as her daughter was entitled to take her share as her heir and to enjoy the same during the life of Karpagathachi. By his judgment, dated August 18, 1958, the District Judge, East Thanjavur, rejected the defendant's contention, and held that the division between the two widows was for convenience of enjoyment only, and decreed the suit in respect of the properties held by Thialachi under the partition of July, 1927. On appeal, the Madras High Court by its judgment, dated January 12, 1962 held that under the partition each widow gave up her life interest in the properties allotted to the other and consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit. Karpagathachi and several other persons impleaded as party respondents in the appeal before the High Court now appeal to this Court under a certificate granted by the High Court under Art. 133 of the Constitution.

(2.) Mr. Viswanatha Sastry appearing on behalf of the appellants contends that (1) the right of survivorship of each widow in respect of her husband's estate is the chance of the surviving widow to take the entire estate of her husband on the death of the co-widow, and in view of S. 6 (a) of the Transfer of Property Act, 1882, the widows were not competent to enter into an arrangement transferring or relinquishing their right of survivorship; (2) the partition lists, Exs. A-1 and B-45 not being registered, are not admissible in evidence; (3) the partition between the widows was for convenience of enjoyment only, and the respondent has failed to establish that each co-widow gave up her right of survivorship in respect of the properties allotted to the other. The learned Solicitor-General appearing on behalf of the respondent disputed these contentions.

(3.) We are of opinion that the first contention of Mr. Viswanatha Sastry should be rejected. Under the 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 and equal beneficial enjoyment. They were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Bhugwan Deen Doobey vs. Myna Baee, 11 Moo Ind App 487 (PC), Gauri Nath Kakaji vs. Mt. Gaya Kuar, 55 Ind App 399. Neither 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 vs. Smt. Indira Balakrishna, (1960) 3 SCR 513 at page No. 517. 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 to the portion allotted to the other. See Ramakkal vs. Ramasami Naickan, ILR 22 Mad 522, Sudalai Ammal vs. Gomathi Ammal, 23 Mad LJ 355. Likewise, two daughters succeeding to their fathers estate as joint tenants with right of survivorship could enter into a similar arrangement. See Kailash Chandra Chuckerbutty vs. Kashi Chandra, ILR 24 Cal 339, Subbammal vs. Krishna Aiyar, 26 Mad LJ 479, Ammani Ammal vs. Periasami Udayan, 45 Mad LJ 1. Such an arrangement was not repugnant to S. 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 transferred. 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 husband on the death of the co-widow, but it does not prohibit the transfer by the widow of her present interest in the properties inherited by her together with the incidental right of survivorship. The widows were competent to partition the properties and allot separate portions to each, and incidental to such an allotment, each could agree to relinquish her right of survivorship in the portion allotted to the other. The first contention of Mr. Viswanatha Sastry must be rejected.