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Bhagwan Dayal vs Mst. Reoti Devi on 4 September, 1961

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[Cites 16, Cited by 109] Supreme Court of India Bhagwan Dayal vs Mst. Reoti Devi on 4 September, 1961 Equivalent citations: 1962 AIR 287, 1962 SCR (3) 440 Bench: P.B. Gajendragadkar, M. Hidayatullah PETITIONER: BHAGWAN DAYAL Vs. RESPONDENT: MST. REOTI DEVI DATE OF JUDGMENT: 04/09/1961 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. CITATION: 1962 AIR 287 1962 SCR (3) 440 CITATOR INFO : R 1965 SC1531 (12) RF 1979 SC1880 (12,27,29) R 1980 SC1173 (22,24) RF 1988 SC 576 (20) R 1991 SC 884 (22) ACT: Res judicata- Suit in Revenue Court-Question of proprietary title referred to Civil Court-Decree-Subsequent suit in Civil Court for declaration of title-Whether decree of Revenue Court operates as res judicata-Code of Civil Procedure, 1908 (Act V of 1908), s. 11. Hindu Law-Joint family- Presumption as to jointness- Separation- Re-union, proof of-Whether members of different branches can acquire property as joint Hindu family property. HEADNOTE: One L was living with his sons K and j in the village. He was not in affluent circumstances. K left the ancestral home; he first joined military service and then police service. He gave up service and started a business with his savings. He brought his nephews R (husband of the respondent) and B (appellant) at differernt times and allowed them to take part in the business. At his death K left a will bequeathing all his properties to his two nephews. After the death of R, his widow, the respondent, filed' a suit against B, the appellant in a Revenue Court under the U.P. Tenancy Act, for a half share of the income of some of the villages left by K. As a dispute arose as to proprietary title the Revenue Court framed an issue there on- and referred it to the Civil Court as required by the Act. The Civil Court held that the respondent had a half share in the villages and on the basis of this finding the Revenue Court decreed, the suit. Thereafter, the appellant filed the present suit in a Civil Court for a declaration that he was the absolute owner of all the properties in suit. His case was that L, his sons and descendants constituted a joint Hiudu family, that there was never any partition in the family, that K, R and B jointly started a business and they jointly acquired some properties during the lire time of K, some after the death of K and some after the death of R, that the said pro. pretties were joint family properties and that he as the survivor was the absolute owner of all the properties. Alternatively, 441 441 he pleaded that even if there was a partition in -the family of L, a reunion should be inferred from the conduct of K, R and B during the lifetime of K and thereafter. The respondent contended that the family of.L was divided, that K started the business with the aid of his self acquisitions and purchased properties out of the income thereof, that after the death of K the two brothers R and B got his properties under his will, that they jointly acquired further properties out of the income of the business, that after the death of R, the appellant succeeded to the half share of R and that the decree of the Revenue Court operated as resjudicata. Held, that the suit was not barred by resjudicata by the judgment of the Revenue Court. The present suit was not within the exclusive jurisdiction of the 'Revenue Court and was maintainable in the Civil Court and as such s. 11 of the Code of Civil Procedure was attracted. The judgment of the Revenue Court on the issue of proprietary title could not operate as res judicata as the Revenue Court was not competent to try the subsequent suit. Venkatarama Rao v. Venkayya, A. 1. R. 1954 Mad. 788 approved. Held, further, that there was a partition of the family during the lifetime of I,. Every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence of partition or by course of conduct leading to an inference of partition. There is no presumption that when one member separates from the others the latter remain united; whether the latter remain united or not must be decided on the facts of each case. in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants of the transactions have passed away, though the burden still remains on the person who asserts separation, it. is permissible to fill up gaps more readily by reasonable inferences than in cases where the evidence is not obliterated by passage of time. The conduct of the parties for about 50 years was consistent with their separation rather than with their jointness. Held, further, that it was not established that there was any reunion between K and his nephews. Reunion must be strictly proved. To constitute reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate -with an intention to revert to their former status of a joint Hindu family. It is not necessary that there should be a formal and express agreement to reunite; such an agreement can be established by clear evidence of conduct incapable of explanation 442 on any other footing. In, the plaint it was not alleged that a reunion had taken place by agreement but the court was asked to hold that there was reunion on the ground that the conduct of parties amounted to a reunion. The conduct of the parties spreading over 50 years did not show that K and his nephews had consciously entered into an agreement to reunite and become members of a joint Hindu family. Palani Ammal v. Muthuvenkatacharla Maniagar, (1924) 52 I.A. 83, Venkataramayya v. Tatayya, A.I.R. 1943 Mad, 538 and Ramadin v. Gokul prasad, A.I.R. 1959 M.P. 251, referred to. It is not possible under the Hindu law for some members only belonging to different branches or even to a single branch of a family to constitute a subordinate joint Hindu family. Any property jointly acquired by such members cannot become joint family Property and would be governed by the terms of the agreement between them under which it was acquired. The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship. Sundaraman Maistri v. Narasimhulu Maistri, (1902) I.L.R, 25 Mad. 149, Chakra Kannan v. Kunhi Pokkar, (1916) I.L.R, 39 Mad 317. The Official Assignee v. Neelambal Ammal (1933) 65 M.L.J. 798, Himmat Bahadur v. Bhawani Kumar (1908) I.L.R. 30 All 352, Jogeshwar Narain Deo v. Ram Chund Dutt, (1896) L.R. 23 I.A 37 and Babu Bani v. Bajendra Baksh Singh (1933) L.R. 60 I.A.:95, approved. Nathu Lal v. Babu Ram, (1936) L.R. 63 I.A. 155 and Ramprashad Tewarry v. Sheachuran Doss, (1866) 10 M.I.A. 490 referred to. Sham Narain v. The, Court of Wards (1873) 20 W. R. 197, overruled. JUDGMENT: CIVIL APPELLATE, JURISDICTION Civil Appeal No. 448 of 1958. Appeal from the judgment and decree dated May 7, 1944, of the Allahabad High Court in First Appeal No. 486 of 1944. M. C. Setalvad, Attorney-General for India and B. D. Sharma, for the appellant. A. V. Viswanatha Sastri, S. N. Andley. Rameshwar Nath and P.L.V. Vohra, for the respondent. 443 1961. September 4. The judgment of the court was delivered by SUBBA RAO,, J. -This is an appeal by certificate granted by the High Court at Allahabad against its judgment dated May 7, 1954 setting aside the decree made by the Civil Judge, Agra, in a suit filed by the appellant for a declaration that the properties more particularly mentioned in Schedules B, C and D annexed to the plaint, were his absolute properties. To appreciate the facts and the contentions of the parties, the following relevant part of the genealogy will be useful. Pt. Lachhman Prasad | --------------------------------- | | Pt. Kashi Ram Pt. Jwala Prasad | Mst. Batashi | ------------------------------------------- | | | | Raghubar Banwari Bhagwan Ram Dayal Lal Dayal Lal = Mat. Reoti Devi | | | Mat. Dayavati Ajudhia Prasad The date of death of Lachhman Prasad does not appear in the record. Jwala Prasad died in 1908 Kashi Ram, in 1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in 1933. The ancestral house of the family was in village Naugaien, district Farrukhabad. The plaintiff's case is that Lachhman Prasad, his sons and descendants constituted a joint Hindu family, that there was never a partition in the family, that three of the members of the said family, namely, Kashi Ram, Raghubar Dayal and Bhagwan Dayal, jointly startled a business at Agra, that they jointly acquired some properties and houses during the. lifetime of Kashi Ram, some 444 after his death, and others after the death of Raghubar Dayal, and that the said properties were the. joint family properties of the said members, under the Hindu law. His further case in that after the death of Kashi Ram, the business and the properties acquired during's life time devolved upon the plaintiff land Raghubar Dayal by survivorship, and that after the death of Raghubar Dayal the said properties along with the properties acquired during the lifetime of Raghubar Dayal passed on by survivorship exclusively to the plaintiff. The properties. described in :Schedule A are the ancestral properties; those described in Schedule B are the properties acquired jointly by the said three members during the life-time of Kashi Ram; these described in Schedule C are properties acquired by Raghubar Dayal and the plaintiff after the death of Kashi Ram; and the D Schedule properties are those acquired by the plaintiff after the death of Raghubar Dayal. Alternatively, it is alleged that even on the assumption that there wag a partition in the family of Lachhman Prasad, a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter. It is further alleged that the defendant, the widow of Raghubar Dayal, filed suits in the Revenue Court under the provisions of the U. P. Tenancy Act for half a share in the income of mauza Chaoli Chak Soyam Nagla Kasheroo and mauza Chak Chaharam Talab Firoz Khan that the said Revenue Court, framed an issue raising the question of title to the said properties and sent the same for decision to the Civil Court, as it should do under the provisions of the said Act, that the learned District Munsif held in Suit No. 15 of 1939, a suit filed in respect of mauza Chaoli, that the plaintiff therein had title to ahalf share in the said village, that the Revenue Court, on the basis of the said finding, gave a decree in her favour in respect of half a share of-the income of the I said village and that 445 the said decree was taken on appeal to the District Court, and also, on further appeal, to the High Court, but without success i.e., the decree of the District Munsif wag confirmed, and that the suits in respect of other villages are still pending. The plaintiff (appellant herein) says that the said finding of the Revenue Court does not operate as res judicata in the present suit, and that he is entitled to reagitate the matter. On those allegations the present suit was filed in the court of the Civil Judge, Agra, for a declaration of the plaintiff 's title to the properties described in Schedules B, C and D annexed to the plaint and for a permanent injunction restraining the defendant from executing the decree in Suit No. 15 of 1939. The defendant (respondent herein) in her written-statement alleges that the family of Lachhman Prasad wag divided, that Kashi Ram started a business in Agra only with the aid of his self acquisitions and purchased properties out of the income derived therefrom, that after the death of Kashi Ram the two brothers, Raghubar Dayal and Bhagwan Dayal (plaintiff), got his properties under a will executed by him, that they jointly acquired further properties from and out of the income of the business started by Kashi Ram, and that after the death of Raghubar Dayal the defendant suc- ceeded to the interest of Raghubar Dayal and that, therefore, she was entitled to an equal share in B, C and D Schedule properties along with the plaintiff. She further pleads that' the decision of the Revenue Court in Suit No. 15 of 1939, holding that the brothers were not members of a joint family and that, therefore, she succeeded to the, interests of her husband, Raghubar Dayal, in the joint pro- perties, operated as res judicata in respect of the plaintiff's entire claim. The suit was tried by the Civil Judge, Agra, and' the learned Judge gave the following findings: (1) the judgment and decree of the Revenue Court 446 in Suit No. 15 of 1939 operated as res judicata. on the question of title of the defendant only in respect of the half share claimed by her in mauza Chaoli ; (2) there was a, partition of the larger family, and that Kashi Ram, Raghubar Dayal and Bhagwan Dayal were the divided members of the ,said joint family; (3) there was no: reunion between the said members; (4) Kashi Ram had. validly bequeathed his properties under a will to his two nephews; and (5) there was a reunion between Raghubar Dayal and Bhagwan Dayal and, therefore, on the death of Raghubar Dayal, Bhgwan Dayal acquired his interest in the plaint schedule properties by survivorship. On the said findings the Civil Judge declared- the plaintiff's absolute title to the properties described in Schedules B, C and D, except in regard to a half share in mauza Chaoli. The defendant preferred an appeal against that decree to the High Court and the plaintiff preferred cross-objections in respect of his claim disallowed by the Civil Judge. The appeal was heard by a division bench of that Court consisting of Agarwala and Gurtu, JJ. The two learned Judges gave different findings but came to the same conclusion in holding against the plaintiff. Briefly stated, the findings of Agarwala, J., are as follows: (1) The evidence on the record is not sufficient to establish partition in the family. (2) Though as a matter of law two or more members of a larger Hindu family not belonging to the same branch can form a smaller joint family and acquire properties with all the attributes of a joint Hindu 'family property, in the instant case the evidence does not establish that Kashi Ram,, Raghubar Dayal and Bhagwan Dayal constituted such a unit and acquired the properties; the properties were the self-acquired properties of Kashi Ram, but were bequeathed 'by him 'in equal shares to Raghubar Dayal and Bhagwan Dayal, and- after 447 his death they held those properties and those acquired subsequently only as co-tenants and not as members of a joint Hindu family. (3) The finding of the Revenue Court in Suit No. 15 of 1939 does not operate as. res judicata in respect of any properties in the suit. In the result, the learned Judge held that the properties described in Schedules B, C and D were owned by the plaintiff and the defendant in equal shares. Gurtu, J., gave the following findings : (1) There was a separation between, Kashi Ram and Jwala Prasad and also between the sons of Jwala Prasad. (2) Two brothers out of four and an uncle cannot in law form a distinct corporate family with the incidents of a joint family and acquire properties for that unit. (3) Kashi Ram could never reunite with his nephews as a matter of law, because Kashi Ram had separated from Jwala Prasad when Raghubar Dayal and Bhagwan Dayal were not even born; nor did he unite with them as a matter of fact. (4) The judgment, of the Revenue Court in regard to the question of title would operate as res judicata in respect of the plaintiffs entire claim to the estate of Raghubar Dayal. And' (5) the plaintiff and Raghubar Dayal held the properties only as co-tenants. The learned Judge, though for different reasons, agreed with the conclusion arrived at by Agarwala, J. In the result, the High Court allowed the appeal filed by the defendant and dismissed the cross-objections filed by the plaintiff : the suit of the plaintiff was dismissed with costs through out. Hence the present appeal. We shall first take the question whether the judgment of the Revenue Court passed on the findings recorded 'by the District Munsif in Suit No.15 of 1939 operates as res judicata in the present suit in respect of the plaintiff's right to succeed to the share of her husband, Raghubar Dayal, in the joint properties. Some of the facts relevant to the 448 question may be recapitulated. The respondent Reoti Devi filed Suit No. 15 of 1939 in the Revenue Court for recovery of her share of profits of village. Chaoli against Bhagwan Dayal in respect of 1343, 1344 and 1345, fasli on the ground that she was his cosharer. The present appellant, who was the defendant in that suit, contested the suit, inter, alia on the ground that he and his deceased brother constituted members of a joint Hindu family and that OD his brother's death his interest in the entire joint family property devolved on him by right of survivorship. As the defendant raised the question of title, the Revenue Court framed an issue on the question of title raised in the pleadings and referred the same to the Civil Court for decision under s. 271 of the Agra Tenancy Act 1926 (hereinafter called the Act). The learned District Munsif decided the issue against the appellant herein, with the result that the Revenue Court made a decree on the basis of that finding in favorer of the respondent herein. Against the said: decree, the appellant preferred an appeal (No. 65 of 1941) to the'District Court, Agra but that appeal was dismissed. The second appeal filed by him in the High Court of'Allahabad was also dismissed. The result of that litigation was that a decree was given in favour of the respondent herein for recovery of her share of the profits of village Chaoli. The question is whether the said decree operated as res judicata in the present suit. The learned Judges of the High Court differed on the question of res judicata ; Agarwala, J., held that the said decision of the Revenue Court in Suit No. 15 of 1939 did not operate as res judicata while Guru, J., held that it did. Learned Attorney-General contended that the decision in Suit No. 15 of 1939 would not operate as res judicata on the present suit for two reasons, namely, (1) in the previous suit, the question of title was decided by a Civil Court and, therefore, S. 11 of the Code of Civil. procedure in terms was 449 attracted,; and, as that Court was not competent to try the present suit, the decision therein would not operate, as res judicata ; (2) even if the original suit must be deemed to have been decided by a Revenue Court, that Court had no exclusive jurisdiction to decide the present suit and, therefore, any decision therein would not operate as res judicata on the present suit for the same reason, viz., that the Court was not competent to, try the present suit. Mr. A. V. Viswanatha Sastri learned counsel for the respondent, on the other hand, contended that, though the question of title was decided by a Civil Court, the final decision was that of the Revenue Court, that the subject- matter of the present suit was within the exclusive jurisdiction of that Court and that, therefore, the present suit was not maintainable. That apart, he contended that as the subject-matter of the present suit was within the exclusive jurisdiction of the Revenue, Court, the decision of that Court on the question of title would be res judicata in the present suit not under s.11 of the Code of Civil Procedure but under the general principles of res- judicata, ; for, it is said that in the case of a decision of a Court of exclusive jurisdiction s. 11 is not applicable and therefore,, under the general principles of res judicata, the condition that the court which decided the previous suit should be- competent to try the subsequent suit need not be. complied with. Before addressing ourselves to the question raised, it. would be necessary to notice some of the relevant provisions of the Act. Section 227. (1) A co-sharer may sue another- for a settlement of accounts, and for his share of the profits of a mahal, or of any part thereof. (2)In any such suit when it is proved or admitted that either party has made collections the amount of which is in issue. he 450 shall, be bound to furnish &true account of such collections. If he fails to do so the court may make any presumption against him which it considers reasonable. Section 230 : Subject to the provisions of section 271 all suits , and applications of the nature specified in the Fourth Schedule shall he heard and determined by the revenue courts, and, no Courts.. other than a revenue Court shall 'except by way of appeal or revision as provided in this Act, take cognizance of any suit or application, or of any suit or application based on a cause of action in respect of which 'relief could be obtained by means of any such suit or application.; Explanation.,-If the cause of action is one in respect of which relief might be granted, by the revenue court it is immaterial that the relief asked from the civil courts may not be, identical with that which the revenue court could have granted. Section 271 (1) If(a) ............. (b) in any suit instituted under 'Chapter XIV the defendant pleads that the plaintiff has not got the proprietary right entitling him to institute the suit, and such question of proprietary right, has not been already determined by a I court of competent jurisdiction the revenue court shall frame an issue on ,the. question of proprietary right and submit the record to the competent civil court for the decision,of that issue only. (2) The civil court after re-framing the, issue, if necessary, shall decide that issue only and return the record together with its 451 finding on that issue, to. the revenue court which submitted it. (3) The revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it. (4) Every decree of a revenue court ,.passed in a suit in which an issue involving a question of proprietary, right has been decided by a civil court under sub-section (2) of this section shall (a) if the question of proprietary right is in issue also in appeal, be applicable to the civil court which has jurisdiction to hear appeals from the court to which the issue of proprietary right has been referred (b) if the question of proprietary right is not in issue in appeal be applicable to the revenue court. The Fourth Schedule-Group A-Suits. ------------------------------------------------------------ Section Serial.No. of Description of suit..... Act. ----------------------------------------------------------- 15 227 By a CO-Sharer against a, co-sharer for a' settlement of accounts and his share of the profits of the mahal, or if any part thereof. ---------------------------------------------------------- Section 264. The provisions of the Code of Civil Procedure, 1908, except:-- (a), provisions inconsistent with any thing in this Acts so far the inconsistency extends,, 452 (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c)the provisions contained ill list 1 of the Second Schedule, shall' apply to all suits and other proceedings under this Act, subject to; the modifications contained in list If of the Second Schedule. The gist of the said provisions may be stated thus;: One of the co-sharers call file, a suit against another co-sharer for settlement of accounts and for his share of the profits of a Mahal or any part thereof. If the defendant denies the plaintiff's proprietary right all issue on the, question of title is raised and sent to the civil court for decision. -The revenue court shall accept the finding of the civil court and decide the suit accordingly. An appeal would lie against that decree to a court which has jurisdiction to hear appeals from the court to which the question; wage referred. The "Revenue Court has exclusive jurisdiction to -decide ,suits of the, nature described in Fourth Schedule. One of, the suits mentioned in the Fourth Schedule is a suit by a co-sharer against a co-sharer for a settlement of accounts and his share of the profits of the Mahal, or of any part thereof. No other court shall take cognizance based upon a cause of action in respect of which relief can be obtained by any such suit. The first query is whether, the present suit is based on a cause of action in respect of which relief can be obtained by means, of a suit specified in the Fourth 1 Schedule to the Act. The present suit is for a declaration of the plaintiff's title to the plaint schedule properties; and for- ant injunction restraining the, execution of the decree obtained by the defendant in the Revenue Court. The plaintiff claims title to the suit properties on the ground 453 that he, was a member of a joint Hindu family along with his deceased brother -,and, therefore he succeeded to his share by right of survivorship; The question is whether such a suit is in the nature of suits specified in the Fourth Schedule to the Act. The said Schedule does not provide for any suit by a person claiming to be the proprietor of a property and in possession thereof praying for a declaration of his title -and for an,, injunction against another who is trying to interfere with his title. If so, under s. 230 of the Act, the Revenue Court has no exclusive jurisdiction to entertain a suit of the nature that is before us. If it is not a suit of that nature, under that section, the civil court's jurisdiction is not ousted. A full bench of the Madras High,.Court had occasion to consider a similar ques- tion arising under the Madras Estates, Land Act, 1908 in Venkatarama .Rao v. Venkayya(1). There, certain tenants filed a petition under s. 40 of the Madras Estates Land Act, 1908 in the revenue, court for commutation of rent against the landholders. The landholders raised the plea that the village iii which the petitioners' lands were situated was not an estate and, therefore the petition was not maintainable in the revenue court. The Revenue Divisional Officer held that it was not an estate and on that finding dismissed the petition. The matter was taken up on appeal to the District Court and thereafter to the High Court without success. Subsequently, the landlords filed a suit in the 'Civil Court against the, tenants for -An injunction restraining them from removing the paddy crops standing on the suit lands until the rent was paid to them. The landholders raised the plea, that the decision of the revenue court holding that the village was not an estate was binding on the civil court,. The full bench of the Madras High Court, held that the said finding was not binding on the civil court. Adverting, to s. 189(3) of the (1) A. I. R. 1954 Mad. 788. 454 Madras Estates land Act, which corresponds to a. 230 of the present Act, the learned Judges observed thug at p. 790 "Therefore, it is clear that it is only in respect of such disputes or matters as are covered 'by the 'its or applications specified in s.189(1) that the revenue court can be said to have exclusive 'jurisdiction, that is, jurisdiction to the exclusion of a civil court. x x x x x If a particular matter is one which does not fall within the exclusive jurisdiction of the revenue court, then a decision of a revenue court on such a matter, which might be inci- dentally given by the revenue court, cannot be binding on the parties in a civil court." We agree with the said observations. On the same analogy, the present suit was not within the exclusive jurisdiction of the revenue court and, therefore the suit in the civil court was maintainable. If so, s.11 of the Code of Civil Procedure is immediately attracted to the present suit. The relevant part of s. 11 of the Code reads: "No Court shall try any suit or issue in which the matter directly and substantially in issue has bee n directly and substantially in issue in a former slut between the same parties or-between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in, which such issue has been subsequently raised, and has been heard and finally decided by such Court. In this case the title to properties now put in issue was tried in the revenue court. But that court is not competent to try the present suit in which the, same issue' is raised. It follows that in terms of s.11 of the Code, the decision on the said issue in the revenue court could not operate as res judicata 455 for the necessary condition of competency of that court to try the present suit is lacking. In this view, it is not necessary to consider the differences between the'scope of the priniciple of res judicata covered by s. 11 of the 'Code 'of Civil Procedure and that of the principle of res judicata de hors the said section.. Nor is it necessary to express our view on the question 'whether the decision on the question of title in the previous suit was that of a revenue court or. of a 'civil court. We, therefore, reject the plea. of res judicata. We shall next take the question of partition in the larger family. ,,Learned Attorney General contends that the finding of Agarwala, J., that there was a partition of- the larger family is correct and is supported by evidence in the case. Mr. Viswanatha Sastri, learned counsel for the respondent. contests the correctness of both the legal and factual submissions made by the learned Attorney General. His argument may be briefly summarized thus : The members of the family were villagers. the ancestral property owned by them was insignificant, its income was small, the partition must have taken place long ago and, in these. Circumstances neither documentary evidence nor the evidence of the elders is available but there is sufficient evidence on the record to sustain the' finding of partition given by the learned Civil Judge and Gurtu, J. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united ; whether the latter remain 'united or not must be decided on the facts of 'each case. To these it may be added that in the case 'of old transactions, when no 'contemporaneous documents are maintained and when most of the active 456 participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time. From this Stand point let us first look at the admitted facts in the case. It is common case that Lachhman Prasad was living with his sons in village Naugaien. He was not in affluent circumstances. The particulars of the ancestral property are given in Schedule A ; it comprised certain lands and houses in village Naugaien. Bhagwan Dayal, the plaintiff-appellant, in his deposition admits that the income of the land was about Rs.80/- per year, though subsequently it was enhanced to a sum of Rs.100/- per year. He admits that they (meaning, thereby Kashi Ram, Raghubar Dayal and Bhagwan Dayal used to get a sum of Rs 5/- or Rs.10/- a year from the land. It is clear from this that they were getting not the entire income from the land but only a part of it, ,There is no evidence to show when Lachhman Prasad died; but it is not disputed that Kashi Ram left the ancestral home Iona ago and had joined military services at Gwalior and thereafter police service in or about 1895. He gave up the service and came to Agra and started a business with his savings. There is nothing on the record, except the assertion made by Bhagwan Dayal in his deposition, to -show that Kashi Ram as manager either received the entire income from the ancestral property or paid any taxes in respect thereof. Raghubar Dayal says that rent of the said holdings was entirely in the accounts maintained by Kashi Ram; but they were not produced. Kashi Ram executed a will on September 13, 1919. Under that will he gave the entire properties to his two nephews, and it cannot be suggested that it was, 457 executed to defraud any person. There is a faint suggestion that the said will was executed to bar the claim of his daughter. In that document he does not say that he was a member of a joint Hindu family. The assertion that he was a member of a joint Hindu family would have barred the claims, of his daughter more effectively if that was his intention in executing the document. Be it as it may, the will, which, in our view, was an honest attempt on. the part of the testator to give his properties to his nephews, does not contain any assertion that he was a member of a joint Hindu family. A number of documents were executed by or in his documents there is a recital that he was a member of a joint Hindu family. This consistent conduct also indicates that Kashi Ram, never considered himself to be a member of any undivided Hindu family. Bhagwan Dayal admits in his evidence that Ram Lail. his youngest brother, who was killed in the War in 1914, did not live with him and that his family and the family of Ram Lal were separate from each other and were not joint. He also concedes that Banwari Lal, his elder brother, who died in the year 1914, was also separate from him. There is nothing on record to show that these two brothers alone separated from the main family before 1914. The concession that they were separate members supports to a large extent, the theory that there must have been a partition in the larger family. Reoti Devi, the defendant-respondent, in her evidence says that her marriage took place about 30 years ago. Her evidence discloses that her father-in-law, Jwala Prasad war, alive at the time of her marriage. She says that when she came to -her husband's house, Kashi Ram and her father-inlaw lived separately in Naugaien, that they were cultivating separately and that thereafter he went favour during his lifetime, but in none of them 458 away to Gwalior to serve in the army. The evidence of this witness is not very helpful as regards the particulars of the partition but it discloses that the 'brothers were living separately and earning their livelihood. This evidence is further reinforced by the fact that in regard to the ancestral property the names of the different members of the family, including Reoti Devi, are entered in the Government accounts against different portions of the said property. Lastly, there was never any dispute between Kashi Ram and the sons of Jwala Prasad, or between the four brothers in respect of the income from the ancestral land. That could be explained only on the hypothesis that the said property was divided and the members of the family were getting their share of the income 'therefrom. This conduct of the parties for about 50 years was consistent with their partition rather than their joint status. On the whole, on a consideration of the material placed before us, we cannot say that the finding given by the learned Civil Judge and accepted by Gurtu, J., is not supported by evidence. We accept, the said finding. The next. question is whether there was a reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal. The learned Attorney-General contends that on the assumption that there was a partition of the family, the consistent conduct of the parties for a period of 50 years unambiguously establishes that there was a reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal during the lifetime of Kashi Ram, or at any rate there was a reunion after the death of Kashi Ram bet- ween Raghubar Dayal and Bhagwan Dayal. Mr. Viswanatha Sastri on the other hand, argues that when there was a partition in the family, the members of the family who allege a reunion must strictly prove the same,. and that the documentary evidence filed in this case spread over a long period of time is destructive of any, such, claim. 459 For the correct approach to this question, it .would be convenient to quote at the outset the observation of the Judicial Committee in Palani Ammal V. Muthuvenkatacharla Moniagar(1) "It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many oases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v. Bukhmabai(1)". It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to. reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement :need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne's Hindu Law, 11th edn., thus at p. 569: "As the presumption is in favour of union until a partition is made out, so after a par- tition the presumption would be against a reunion. To establish it, it is necessary to show, not only that the parties 'already (1) (1924) L.R. 52. I.A. 83, 86. (2) (1903) L.R. 30 I.A 190, 460 divided, lived, or traded together, but that they did so with the intention of thereby altering their status and of farming a joint estate with all its, usual incidents It requires very cogent evidence to satisfy. the burden of establishing that by agreement between them, the divided members of a joint Hindu. family have succeeded. in so altering their status an to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family." As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney General. Venkataramayya v. Tatayya (1) is a decision of a division bench, of the Madras High Court. It was.. pointed out there that "mere, jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest-unless an intention to become reunited. in the sense of the Hindu law is clearly established. The said proposition is unexceptionable,, and indeed, that is the well settled law. But on, the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the. first wife. One of the sons was a minor. The question was whether there was a reunion between the brothers soon after the alleged partition. The learned Judges held that as between the sons there was never any reason for separation inter se and' that the evidence disclosed that on their conduct no explanation other than reunion was possible. They also pointed out that though at the time of partition one of the brothers *us a minor, sifter he attained majority, he, accepted the position of reunion. The observation& relied upon by the learned Attorney General read thus (1) A.I.R. 1943 Mad. 538. 461 "In our view, it is not necessary that there should be a formal and express agreement to re-,unite. 'Such an agreement can be estab- lished by clear evidence of conduct incapable of explanation on any other footing." This' principle also is unexceptionable. But the facts 'of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case. Nor does the decision of the Madhya Pradesh High :Court in Ramadin v. Gokul prasad (1) carry the matter further. Therein the learned Judges restated the correct principle, namely, that in order to constitute a reunion there must be an agreement, express or implied, on the part of the members who separate, to reunite in estate and interest., and that in-the absence of a registered document, the agreement has to be inferved from subsequent conduct of the parties. On the fact,% of the case before them, the learned Judges came to the conclusion that there was a reunion. This case only restates a well settled principle; and the court's cannot help us in deciding the present case. Before we consider the evidence, we would like to make some general observations. In the plaint, the case of reunion is mentioned as an alternative case:; further the plaint does not give the date of the alleged agreement to reunite or even the necessary and relevant particulars. The :plea is stated in the following words : " That even if it were assumed against facts strictly without prejudice to any plea herein taken, that there was separation between Pandit Lachhman Prasad's issues after his death, still in view of the conduct of Pandit Kashi Ram and Raghubar Dayal during their lifetime, and the.fact that the plainteff (1) A.I.R. 1959 M.P. 251. 462 pandit Raghubar Dayal and pandit Kashi Ram (and after the latter's death the first two) worked jointly and lived and messed together and acquired , owned and possessed the entire properties jointly by their joint labour, which amounted to reunion, the plaintiff would still be the sole owner of the entire property in any view of the case." The plaintiff's case is that there was no partition of the larger family at all ; and on that case no question of reunion arises. Further, he does not say that a reunion has taken place by agreement ; but he asks the court to hold that there was a reunion on the ground that the conduct of the parties amounted to a reunion. The Plea, to say the least., indicates that the plaintiff himself is not clear of his case. The next circumstance is that neither Kashi Ram nor Raghubar Dayal and Bhagwan Dayal bring in any joint family property either to start the business or to make joint acquisitions. On the other hand, the entire capital for the business was furnished by Kashi Ram ; and., under those circumstances, it is not likely that there would have been any con-. scions act of reunion between the members of the divided family. Further, the business was started in 1885, and, it is in evidence that Raghubar Dayal joined Kashi Ram in the said business in 1889 and Bhagwan Dayal between 1893 and 1902. Raghubar Dayal in his evidence says that when he came to Agra, he was about 8 or 9 years old. If so, it follows that there could not have been any reunion before he attained majority. In Revenue Appeal No. 65 of 1941, it was not disputed that Raghubar Dayal was also a minor when Kashi Ram started his business. It is not clear from the record when Raghubar Dayal became' major. He could not have reunited with Kashi Ram before he attained majority. 463 The evidence may be considered in the following three parts: (1) the period between 1885, when Kashi Ram started the business, and 1924, when he died; (2) the period between 1924 and 1933 i. e., from the year when Kashi Ram died to the year when Raghubar Dayal died; and (3) the, period between 1933 and 1939 when the dispute between the parties came to the forefront. The first set of documents pertaining to the first period are 10 sale deeds whereunder properties were acquired in the joint names of Kashi Ram, Raghubar Dayal and Bhagwan Dayal. As the relevant recitals in all these documents are similar, it would be sufficient if we look at the earliest document, Ex. 58, dated August 24, 1903 and the last, Ex. 33, dated November 27, 1916. Under Ex. 58 the property mentioned therein was purchased from one Shyam Lal. The relevant recitals described the vandees thus " ...... Kashi Kam, son of Lachhman Prasad, Raghubar Dayal and Bhagwan Dayal, sons of Jawala Prasad.............." It records that consideration was received from the said there persons. Ex. 33 is also a sale deed, a

Kailash Sonkar vs Smt. Maya Devi on 16 December, 1983

Court 1

[Cites 12, Cited by 65] Supreme Court of India Kailash Sonkar vs Smt. Maya Devi on 16 December, 1983 Equivalent citations: 1984 AIR 600, 1984 SCR (2) 176, AIR 1984 SUPREME COURT 600, (1985) JAB LJ 671, 1984 UJ (SC) 262, (1984) 97 MAD LW 28, 1984 (2) SCC 91 Author: Syed Murtaza Fazalali Bench: Syed Murtaza Fazalali, R.B. Misra, M.P. Thakkar PETITIONER: KAILASH SONKAR Vs. RESPONDENT: SMT. MAYA DEVI DATE OF JUDGMENT16/12/1983 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MISRA, R.B. (J) THAKKAR, M.P. (J) CITATION: 1984 AIR 600 1984 SCR (2) 176 1984 SCC (2) 91 1983 SCALE (2)1211 CITATOR INFO : R 1984 SC1260 (16) ACT: Hindu law-Whether a Hindu on conversion to another religion loses she original caste. Convertee loses caste unless new religion accepts caste system and permits convertee to retain his original caste and family laws. During conversion original caste remains under eclipse- Ecliyse Disappears on reconversion to original religion. On reconversion to old religion-Whether the original caste revives-Factors which determine revival of original caste. Representation of the People Act-Person born of Christian parents-Educated and known as Christian- Reconverted to Hinduism voluntarily-Married a member of scheduled caste-Performed shudhikaran ceremony-Accepted and welcomed by member of that community as scheduled caste- Whether such person can contest state assembly election as member o scheduled caste from constituency reserved for members of scheduled castes. HEADNOTE: In the nomination papers filed by the respondent for contesting legislative assembly elections in May, 1980 from a constituency which was reserved for scheduled castes, she described herself as belonging to the scheduled caste 'Katia'. Several persons raised objection that the respondent, being a Christian by birth, could not be treated as a member of the scheduled caste. The Returning Officer rejected the objection and accepted her nomination papers. The respondent won the election defeating the appellant. The appellant having unsuccessfully challenged the election of the respondent in the High Court, alleged in this appeal that the respondent after being born a Christian was baptised according to Christian rites; her mother's name was Elizabeth; her marriage with Jai Prakash Shalwar, who belonged to Katia caste, was not valid and even on marriage her caste could not revive because caste was determined not by marriage but by birth. The respondent stated that she was never a Christian nor was she born a Christian. She also averred that even her father or mother were not Christians. On the other hand, she always remained a member of the Katia caste and was accepted as such by the members of that community because her marriage with Jai Prakash Shalwar was performed according to Hindu rites of Aryasamaj sect and was attended by a number of members of her caste and due publicity was given to the marriage. Dismissing the appeal, ^ HELD: It cannot be said that at the time when the respondent filed her nomination papers, she was not a member of the Katia caste. [199 G] A caste to which a Hindu belongs is essentially determined by birth and if a Hindu is converted to Christianity or any other religion which does not recognise 177 caste, the conversion amounts to a loss of the said caste. In considering whether on conversion the loss of the caste is absolute, irrevocable so as not to revive under any circumstance the guiding principles are: (a) Where a person belonging to a scheduled caste in converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retained their caste or family laws and despite the new order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action, and (b) In all other cases, conversion to Christianity or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion. [190C-F; 191 B] The norms and conditions under which a caste could revive on reconversion to the old religion as laid down by the authorities of the High Courts and this Court are: (1) where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefit or gain, (2) where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and (3) Rules of the new Order in permitting the convertee to join the new caste. Unless the aforesaid conditions are fulfilled the loss of caste on conversion is complete and cannot he revived. But having regard to the present set-up and the circumstances prevailing in our modern society, it will be difficult to insist on the second condition, viz., the insistence on the members of the community of the caste to admit the convertee on reconversion to the original caste because such a course of action may lead to dangerous consequence and ill- concieved exploitation. [191 C-G] G.M. Arumugam v. S. Rajagopal & Ors., [1976] 3 S.C.R. 82; Sacred Books of the East (Vol. VIII) by F. Max Muller; Charlotte Abraham and Daniel Vincent Abraham v. Francis Abraham, 9 M.I.A. 199: Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram & Ors., [1954] S.C.R. 817; S. Anbalalagn v. B. Devarajan & Ors., [1984] I.S.C.R. Goona Durgaprasada Rao & Anr. v. Goona Sudarsanaswami & Ors., ILR 1940 Madras 653; G. Michael v. S. Venkateswaran, AIR 1952 Madras 474; Dippala Suri Dora v. V.V. Giri AIR 1958 A.P. 724; Wilson Reade v. C.S. Booth & Ors. AIR 1958 Assam 128; and B. Shyamsunder v. Shakar Deo Vedalankar & Ors., AIR 1960 Mysore, 27 referred to. S. Rajagopal v. C.M. Armugam & Ors., [1969] 1 S.C.R. 254, distinguished. The main test for determining the revival of the original caste on reconversion should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. It may be added here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste.[192C-E] Ganpat v. Returning Officer & Ors., [1975] 2 S.C.R. 923, referred to. 178 When a child is born neither has he an religion nor is he capable of choosing one until he reaches the age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms his caste automatically revives. [192 G-H; 193 A] Another dominant factor to determine the revival of the caste of a convert from Christianity to his old religion would be that in cases of election to the State Assemblies or the Parliament where under the Presidential Order a particular constituency is reserved for a member of the scheduled caste or tribe and the electorate given a majority verdict in his favour, then this would be doubtless proof positive of the fact that his community has accepted him back to his old fold and this would result in a revival of the original caste to which the said candidate belonged. [193 B-C] When a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her life-time the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. [193 D] Whether or not the revival of the caste depends on the will and discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case there is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste. Even so, if the fact of the acceptance by the members of the community is made condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community otherwise in normal circumstances the caste would revive by applying the principles of doctrine of eclipse. It may be added that where it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. [193 D-G] In the instant case, on a full and complete appraisal of the oral and documentary evidence, the following conclusions are inevitable: (1) that the respondent was born of Christian parents and was educated in various schools or institutions where she was known as a Christian; (2) that 3- 4 years before the election, the respondent was reconverted to Hinduism voluntarily and married Jai Prakash Shalwar, a member of the Katia caste, and also performed the shudhikaran ceremony; (3) that she was not only accepted but also welcomed by the important members, including the President and Vice-President, of the community; (4) there is no evidence to show that there was any bar under the Christian religion which could have prevented her from reconverting herself to Hinduism; and (5) that 179 there was no evidence to show that even her parents had been Christians from generation to generation. In these circumstances, therefore, this case fulfils the conditions required for being reconverted to Hinduism from Christianity in order to revive the original caste [198 G-H; 199 A-D] JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3118 of 1981. From the Judgment and Order dated the 25th September, 1981 of the Madhya Pradesh High Court in Election Petition No 2 of 1980. U.R. Lalit and A.K. Sanghi for the Appellant. G.B. Pai and Vineet Kumar for the Respondent. The Judgment of the Court was delivered by FAZAL ALI. J. By our Order dated October 20, 1983, we had dismissed the appeal. We now proceed to give our reasons for the same. The victory of our long drawn struggle for freedom from the British Yoke came to us after one and a half century of perpetual and constant efforts soaked in cold blood and dipped in supreme sacrifice. The historical midnight of August 15, 1947, which ushered in a new era, was merely a completion of a phase and not the end of an epoch but only the beginning of the end. Soon thereafter the wise wizards and the founding fathers of our Constitution set out to devote their wholehearted attention to devise ways, and means to give to our sub-continent a solid and comprehensive Constitution which may solve multifarious and manifold difficulties, fulfil the burning needs of the nation and sort out complex and complicated problems which arose after our hardwon freedom which must have baffled our leaders. There was the question of achieving a secular democracy, the largest in the world, based on a socialist pattern which would taken care of all sorts and kinds of people having different cultures, languages and religions; to confer and guarantee fundamental rights of citizens through mandatory provisions, to lay down directive principles of State Policy which were to be the guiding spirit of the Constitution, the question of achieving agrarian reforms by displacing the old British bureaucratic system and substituting a new order, the issue of reconciling the irreconcilable and various other thorny and tricky matters. One 180 of the important objectives to be translated into action was to take special care of the backward classes, members of the scheduled castes and tribes by bringing them to the fore through pragmatic reforms and providing adequate opportunities for their amelioration and development, education, employment and the like. As Mahatma Gandhi, father of the nation, said "India lives in villages" and so do the backward classes, hence the primary task was to take constructive steps in order to boost up these classes by giving them adequate concessions, opportunities, facilities and representation in the services and, last but not the least, in the electorate so that their voices and views, grievances and needs in the Parliament and State legislatures in the country may be heard, felt and fulfilled. In this election appeal which has been filed against the Judgment dated October 25, 1981 of the High Court of Madhya Pradesh, we are really concerned with the last aspect mentioned above. Despite odds and ends our Constitution has made exhaustive provisions for difficult to say, for this is really a herculean task and one cannot expect miracles to be performed within a span of three decades which in the history of nations, is not a very long period. The knotty and difficult, puzzling and intricate issue with which we are faced is, to put it shortly, 'what happens if a member of a scheduled caste or tribe leaves his present fold (Hinduism) and embraces Christianity or Islam or any other religion'-does this amount to a complete loss of the original caste to which he belonged for ever and, if so, it he or his children choose to abjure the new religion and get reconverted to the old religion after performing the necessary rites and ceremonies, could the original caste revive ? The serious question posed here arose and has formed the subject-matter of a large catena of decisions starting from the year 1861, traversing a period of about a century and a half, and culminating in a decision of this Court in the case of G.M. Arumugam v. S. Rajagopal & Ors.(1) The Constitution has tried to solve the problem to a great extent by the Constitution (Scheduled Castes) Order 1950 (hereinafter referred to as the '1950 Order') issued under Art. 341, which lays down a list of various castes prevailing in the country and the norms to determine the same. This Order has been amended from time to 181 time. In our opinion, despite a genuine attempt to solve the problem the provisions do not provide a complete answer to the judicial interpretation by this Court which lays down the law of the land. It is true that the controversy has been narrowed down to the minimum by the decision in Arumuga's case (supra) still there are some vital question which remain unanswered. Before dealing with the cases on the subject and starting the chapter of the issues involved in this case, it may be germane to give a short history of the nature, character, origin and background of the controversy. To begin with, the caste system actually came into existence since the dawn of the civilized races in this country, viz., Dravidian followed by Aryan civilization which through Hinduism divided by castes into three clear-cut sub- divisions which started by virtue of the occupational pursuits followed by the various classes. The priests and the scholars were known as the Bhrahmanas and looked after religious ceremonies, education, etc. This Class was supposed to be the highest Class or atleast respected and regarded as such. Then came the Kshatriyas who were the people engaged in fighting wars and ruling and administering the States. Thirdly, there were the Vaisayas who carried on the occupation of trade and commerce. The Sudras were added as the fourth Class after fusion of the pre-Dravidian with the Dravidian and Aryan civilizations which formed the basic fabric of Hinduism and the Hindu society. This Class was treated as a little inferior and suffered from certain disabilities. In fact, it seems to us that our large sub-continent was inhabited by a very large variety of peoples and races- indigenous and outsiders-consisting of Scythians, Yavanas, Kirathas, Kambhojas and Persians and others who came to India in ancient times and got mixed up with the old inhabitants of the country and thus completely lost their identity. It appears to us that all these races entered the wide and broad fold of Hinduism, which is not only a religion but also a way or poetry of life, a philosophy, an exhaustive and ethical code of living which adapts-itself to all forms and cultures. In view of this complex intermingling of various kinds of people, as time went by, castes started multiplying, and in this process the avocations and occupations followed by members of such castes from generation to generation were labelled as a separate class to which the people practising various professions belonged and this institution had come to stay. The origin, therefore of the fundamental basis of the castes has now disappeared and given rise to individualism and separa- 182 tism as a result of which it was duly recognised by all schools of Hindu thought that birth alone would determine the caste and this principle would have to continue unless the concept of caste is banished for ever. In other words, it is now well settled-whether one accepts it or not-that caste is the result of birth and not of choice or volition. Without traversing on any controversial issue and coming back to the origin of the caste system, we would like to refer to the most authoritative pronouncements ordained by Lord Krishna in Shree Bhagvadgita which would demonstrate that the division of castes was made purely on the basis of inherent qualities and avocations of a person and hence the question of superiority between one or the other lay not on the nature of the caste but on their actions and deeds. This would be illustrated by a reference to the actual text of Shri Bhagvadgita as compiled by F. Max Muller in his book entitled 'Sacred Books of the East (Vol. VIII)' and we would like to extract some passages and injunctions of Lord Krishna illustrating the vices and virtues of men where castes also figure. In Shloka 13, Chapter 4 of Bhagvada Geeta, Lord Krishna clearly proclaimed that "Four Varnas, viz., Brahmanas, Kshtriyas, Vaisyas and Sudras were created by him on the basis of inherent qualities and avocations of a particular individual". (Translated into English from the original text in Hindi). Further said Lord Krishna to the son of Kunti thus: "Whatever you do, O'Son of Kunti: Whatever you eat, whatever sacrifices you make, whatever you give, whatever-penance you, do that as offered to me...I am alike to all beings; to me none is hateful, none dear. But those who worship me with devotion (dwell) in me, and I too in them. Even if a very ill-conducted man worships me, not worshiping any one else, he must certainly be deemed to be good, for he has well resolved.. (You may) affirm, O son of Kunti: that my devotee is never ruined. For, O son of Pritha: even those who are of sinful birth, women, Vaisyas; and Sudras likewise, resorting to me, attain the supreme goal. What then (need be said of) holy Brahmanas and royal saints who are (my) devotees ?" These passages clearly go to confirm the true philosophy of Mahatma Gandhi that the Sudras or the members of the scheduled castes are Harijans and he condemned untouchability and the habit of looking down upon the scheduled caste people merely because 183 they belonged to the Sudra caste. Further, Lord Krishna goes on to ordain as follows: "The duties of Brahmanas, Kshatriyas and Vaisyas, and of Sudras, too, O terror of your foes ! are distingushed according to the qualities born of nature. Tranquility, restraint of the senses, penance, purity, forgiveness, straight forwardness, also knowledge, experience, and belief (in a future world), this is the natural duty of Brahmanas. Valour, glory, courage, dexterity, not a slinking away from battle gifts, exercise of lordly power, this is the natural duty of Kshatriyas. Agriculture, tending cattle, trade, (this) is the natural duty of Vaisyas. And the natural duty of Sudras, too, consists in service. (Every) man intent on his own respective duties obtains perfection....Worshipping, by (the performance of) his own duty, him from whom all things proceed, and by whom all this is permeated, a man obtains perfection." In another chapter, Vidura is quoted as saying thus: "I am born of a Sudra womb, and do not like to say more than what (I have said'). But the intelligence of that youth, I believe to be eternal. He who has come of a Brahamana womb, even though he may proclaim a great mystery, does not thereby become liable to the censure of the gods. Therefore do I say this to you." In view of the revealed injunctions in the Shree Bhagavadgita Mahatma Gandhi's dream that all distinctions of castes and creed must disappear and man must be known by his action, to whatever caste he may belong, has been realised to some extent and necessary provisions to this effect have been made in the Constitution in order to safeguard the interests of the backward classes and members of the members of the scheduled castes and scheduled tribes and perhaps, let us hope, a day comes when the distinction between caste and creed disappears completely. One of the most puzzling question that arises in this case is: 'Is membership in a caste or tribe to be determined solely by birth or by allegiance or by the opinion of its members or of the neighbourhood? Does one lose his caste on conversion or by ex-communication ? 184 The decisions to which we would we would refer hereafter have thrown flood of light on these questions and the generally accepted view seems to be the one which has been laid down in Charlotte Abraham and Daniel Vincent Abraham v. Francis Abraham(1) where the Privy Council observed thus: "It is plain that no rule as to such use and enjoyment, which the ancestors may voluntarily have imposed on themselves, could be of compulsory obligation on a descendant of theirs; acquiring his own wealth. If a Hindoo in an undivided family may keep his own sole acquisitions separate, as he undoubtedly may, a fortiori a Christian may do the same ....If the spirit of an adopted religion improves those who become converts to it, and they reject, from conscience, customs to which their first converted ancestors adhered, must the abandoned usages be treated by assort of fictio Juris as still the enduring customs of the family." So far as this Court is concerned, these questions were clearly answered in Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram & Ors.,(2) (hereinafter referred to as 'Jasani's, case' where a triple test was laid down thus: "Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or ex-communicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter...On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advanta- 185 ges which are special to the old order.... The only modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament." The observations cited above give the general test that can be applied in judging the question as to when a Hindu on conversion loses his caste. Although the test laid down by this case is fully supported by the original text of Hindu Law, it does not in so many words answer the other side of the picture, viz., if a Hindu after conversion to another religion is reconverted to his original fold, could his caste revive ? In fact, the case cited above was not a case of conversion from one religion to another religion or from one sect to another sect. By and large, the test laid down in that case can be usefully applied with alterations and modifications to suit the facts of a particular case in judging the question whether on conversion the caste is completely lost. The next case which throws some light on the question is S. Rajagopal v. C.M. Armugam Ors.(1) In this case what had happened was that the appellant (before the Supreme Court) had filed his nomination papers for a constituency reserved for members of the scheduled caste mentioned under the 1950 Order but he was defeated by respondent No. 1 of that case, whose petition succeeded. The contention in the petition was that the appellant was not a Hindu but a Christian and therefore not qualified to be a candidate for a constituency reserved for scheduled caste. The High Court found as a fact that the appellant had become a Christian in 1949 and his later reconversion to Hinduism remained unproved. This Courts agreeing with the High Court dismissed the appeal. One important feature of this case may be noted which would at once distinguish this case from the facts of the present case. The question as to whether a Christian on being reconverted to Hinduism would get back his caste did not arise at all in that case because on the facts found, reconversion was not proved. Therefore, the question of caste being acquired or being revived on reconversion to Hinduism did not fall for determination and was left open. Even so, considering Jasani's case and a number of other texts, Bhargava, J. made 186 the following observations: "Considering the question of entry into the caste, Krishnaswami Ayyangar, J., held that, in matters affecting the well-being or composition of a caste, the caste itself is the supreme judge. It was on this principle that a reconvert to Hinduism could become a member of the caste, if the caste itself as the supreme judge accepted him as a full member of it." While holding that if a person is reconverted to Hinduism and the community of the caste to which he originally belonged accepts him, his caste would revive; nevertheless the question was left open. Rajagopal's case (supra) merely reiterates what was held in Jasani's case and does not go any further. In our opinion, there is one aspect which does not appear to have been dealt with by any of the cases discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies ? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in a Christian family ? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Perhaps, this factor was present in the mind of Bhagwati, J., who delivered the leading judgment 187 in a later decision of this Court in G.M. Arumugam v. S. Rajagopal & Ors.(1) where, speaking for the Court, he made the following observations: "It is sufficient to state that originally there were only four main castes, but gradually castes and sub-castes multiplied as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity......But that immediately raises the question; what is a caste. When we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub- castes which disfigure the Indian social scene.....A caste is more a social combination than a religious group. But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion.. . If the structure of the caste is such that its member must necessarily belong to Hindu religion, out of the caste, because no non- Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu- religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste......... This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians. 188 These weighty observations support the view that after reconversion the caste will normally revive. On the question whether the caste will revive if the members of the community accepts the reconvert, the Judges are silent. Although Bhagwati, J. held that prima facie on conversion to Christianity the respondent would not cease to belong to the Adi Dravida caste, yet he refrained from expressing any final opinion on the point. In a recent decent decision of this Court S. Ambalagan v. B. Devarajan & Ors.(1) (which was also an election case), a three-Judge Bench reiterated the principles enunciated by Arumugan's case (supra) and observed thus: "Unless the practice of the caste makes it necessary no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him.........The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion........ In fact, this process goes on continuously in India and generation by generation lost sheep appear to return to the castefold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religions in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. (Emphasis ours) The facts of this case appears to be on all fours with the facts of the present case. A number of High Courts have also taken a view similar to the one taken in Arumugam's case of 1976 (supra) basing mainly their decisions on the leading case of Jasani. In the case of Goona Durgaprasada Rao & Anr. v. Goona Sudarsanaswami & Ors.,(2) a Division Bench of the Madras High Court observed thus: 189 "It is hardly right for the Court to erect a barrier which the autonomy of the caste does not see fit to do, simply because in some other caste or some other community it might be considered proper that an expiatory ceremony should be performed. That a Hindu having renounced Hinduism once can revert to it scarcely admits of doubt. A Similar view was expressed in G. Michael v. S. Venkateswaran(1) which may be extracted thus: "A member of one of the castes or sub-castes when he is converted to Islam ceases to be a member of any caste. He becomes just a Mussalman find his place in Muslim society is not determined by the caste to which he belonged before his conversion. Learned counsel also conceded that generally this is so even when there has been a conversion to Christianity. But he said that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who had not been converted........But these are all cases of exception and the general rule is conversion operates as an expulsion from the caste; in other words a convert ceases to have any caste. Thus, it was clearly hinted that in some cases even converts to Christianity could retain their original caste. In the case of Dippala Suri Dora v. V.V. Giri(2) a Division Bench of the Andhra Pradesh High Court made the following observations: "Even if they come within the fold of Hinduism, question would arise whether they have formed separate sect among themselves, or they would belong to the 4th class, or to the twice-born class......In order to prove that he ceased to be a member of that tribe, there should be first of all, evidence of intention, the reactions of the old body and that of the new body. Viewed in the light of these observations, the evidence discussed above, in our opinion, falls short of the test. 190 This case merely lays down the triple test enunciated in Jasani's case. To the same effect are the decisions in the cases of Wilson Reade v. C.S. Booth & Ors.,(1) and B Shyamsunder v. Shankar Deo Vedalankar & Ors.(2) On a careful consideration of the authorities referred to above and the principles enunciated by them, the position that emerges may be stated thus: It is true that caste to which a Hindu belongs is essentially determined by birth and if a Hindu is converted to Christianity or any other religion which does not recognise caste, the conversion amounts to a loss of the said caste. The question that arises for consideration is whether the loss of the caste is absolute, irrevocable so as not to revive under any circumstances ? In considering this question the courts have gone into the history of the caste system and have formulated the following guiding principles to determine this question:- (a) Where a person belonging to a scheduled caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retain their caste or family laws and despite the new Order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion however does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In a large area of South and some of the North-Eastern States it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new Order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted to a new one, there is no loss of caste. Moreover, it is a common feature of many converts to a new religion to believe or have faith in the Saints belonging to other religions. For instance a number of Hindus have faith in the Muslim Saints, Dargahs, Imam- 191 badas which becomes a part of their lives and some Hindus even adopt muslim names after the Saints but this does not mean that they have discarded the old Order and got themselves converted to Islam (b) In all other cases, conversion to Christianity or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion. The other important question which is to be answered and which is really the controversy in the present case is if after a person is converted to a new religion - in the instant case, Christianity - does his caste revive if he is reconverted to his old religion and, if so, under what circumstances ? As indicated above, starting from the Privy Council to the present-day, authorities of the High Courts and this Court have laid down certain norms and conditions under which a caste could revive. These conditions are as follows:- (1) where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefit or gain, (2) where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and (3) Rules of the new Order in permitting the convertee to join the new caste. Unless the aforesaid conditions are fulfilled to the loss of caste on conversion is complete and cannot be revived. In our opinion having regard to the present set-up and the circumstances prevailing in our modern society, it will be difficult to insist on the second condition, viz., the insistence on the members of the community of the caste to admit the convertee on reconversion to the original faith because such a course of action may lead to dangerous consequences and ill-conceived exploitation. The curse and cancer of untouchability despite thirty years of social reforms still persist and no quarter should be given to further persecution of the members of the scheduled castes who, as we often find, are subjected to all kinds of indignities 192 insults and are looked down upon as slaves or vassals, meant merely to serve the members of the higher caste. In the case of Ganpat v. Returning Officer & Ors (1) this Court speaking through Alagiriswami, J. highlighted this particular aspect in the following words: "The monstrous curse of untouchability has got to be eradicated. It has got to be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are untouchable should assert their self-respect and fight for their dignity than that members of the other communities should forget about it. In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion. Another aspect which one must not forget is that when a child is born neither has he any religion nor is he capable of choosing one until he reaches the age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing that is being done but after the child has grown up and becomes fully mature and able to decide his future he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine 193 the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives. Another dominant factor to determine the revival of the caste of a convert from Christianity to his old religion would be that in cases of election to the State Assemblies or the Parliament where under the Presidential Order a particular constituency is reserved for a member of the scheduled caste or tribe and the electorate gives a majority verdict in his favour, then this would be doubtless proof positive of the fact that his community has accepted him back to his old fold and this would result in a revival of the original caste to which the said candidate belonged. In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her life- time the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Whether or not the revial of the caste depends on the will and discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case, there is overwhelming evidence to show that the respondent was accepted by the community of her original katia caste. Even so, if the fact of the acceptance by the members of the community is made a condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community, otherwise in normal circumstances the caste would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said, i.e., where it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here. Coming now to the facts and evidence of the present case the position may be briefly stated as follows: The appellant, an M.A., LL.B. from Jabalpur University had contested election from the Madhya Pradesh Vidhan Sabha (here- 194 inafter referred to as 'Vidhan Sabha) from Legislative Assembly constituency No. 195 in the general election of 1977 as a Janata Party Candidate which was reserved for Scheduled Caste under Art. 332 of the Constitution being item No. 30 of Part IX-Madhya Pradesh of the 1950 Order. He was declared elected defeating his nearest rival candidate, one Ramprasad Choudhary, a Congress candidate. The Vidhan Sabha

Apoorva Shantilal Shah vs Commissioner Of Income Tax Gujarat I, ... on 3 March, 1983

Court 1

[Cites 14, Cited by 61] Supreme Court of India Apoorva Shantilal Shah vs Commissioner Of Income Tax Gujarat I, ... on 3 March, 1983 Equivalent citations: 1983 AIR 409, 1983 SCR (2) 492, AIR 1983 SUPREME COURT 409, 1983 (2) SCC 155, 1983 TAX. L. R. 563, (1983) 96 MAD LW 90, (1983) 69 TAXATION 1, 1983 UJ(SC) 249, (1983) 2 APLJ 1(2), (1983) 141 ITR 558, (1983) 1 SCJ 305, 1983 UJ(SC) 317, (1983) 1 GUJ LR 799, 1983 SCC(TAX) 111, 1983 UPTC 757 Author: Amarendra Nath Sen Bench: Amarendra Nath Sen, P.N. Bhagwati PETITIONER: APOORVA SHANTILAL SHAH Vs. RESPONDENT: COMMISSIONER OF INCOME TAX GUJARAT I, AHMEDABAD DATE OF JUDGMENT03/03/1983 BENCH: SEN, AMARENDRA NATH (J) BENCH: SEN, AMARENDRA NATH (J) BHAGWATI, P.N. CITATION: 1983 AIR 409 1983 SCR (2) 492 1983 SCC (2) 155 1983 SCALE (1)181 ACT: Partial partition-IV/other the father in exercise of his right as "patria potestas" or otherwise can effect a partial partition between himself and his minor sons of joint family properties of a Hindu Joint Family governed by the Mitakshara School of Hindu Law-Income Tax Act, 1961, Section 171. HEADNOTE: The assessee is a Hind undivided Family consisting of four members, namely, Sri Apoorva Shantilal Shah, his wife Smt. Karuna and their minor sons Chintan and Tejal. During the assessment pertaining to the assessment year 1975-76. Shri Apoorva as a Karta of the H.U.F. made an application to the Income Tax officer for recognising partial partition under S. 171 of the Income Tax Act, 1961 (hereinafter referred to as the Act) claiming that two partial partitions had taken place amongst the members of the said family, one on 24.12.1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on 29.12.1973 in respect of 1?77 shares of the same Company. The Income Tax officer refused to record them for three reasons, namely (i) the partitions have not been made at the instance of the minor sons; (ii) after making certain allocations in favour of the two minor sons. he remaining shares were not allotted in their entirety to tho remaining third coparcener, normally Apoorva separately or Apoorva and Smt. Karuna jointly describing them as U P. and (iii) the distribution of shares had not been made equally either amongst the three members including the two minor sons or amongst the four members of the U.P, as Apoorva s wife Karuna also became entitled to an equal share on partition between the father and sons. The appeal preferred before the-Assistant Appellate Commissioner was accepted. The further appeal, by Revenue to the Income Tax Appellate Tribunal was allowed since the Tribunal was of the opinion that the partial partitions in the instant case, beings outside the framework at the Hindu Law could not be recognised as valid for the purposes of Section 171 of the Income Tax Act. All the questions refferd to in the reference under Section 256 (1) to the High Court were answered against the assessee. The High Court held that under Hindu Law the father has no power or authority to effect any partial partition of joint family properties between himself and this minor sons. Hence the appeal by special leave. Allowing the appeal, the Court 493 ^ HELD: 1.1. Partial Partition of the shares belonging to the Hindu A undivided Family cannot be said to be bad either under the Hindu Law or under the Indian Income Tax Act. [514 H, 515 A] 1.2. Partial partition of properties brought about by the father between himself and his minor sons is valid and binding under the Hindu Law. This right of the father to effect a partial partition of joint family properties between himself and his minor sons, whether in exercise of his superior right as father or in exercise of the right as patria potestas has necessarily to be exercised bonafide by the father and is subject to the right of the sons to challenge the partition, if the partition is not fair and just. [511 C-E] 1.3. The right of the father to bring about the disruption of the joint family properties in exercise of his superior right, as father or of his rights as patria potestas is recognised in ancient Hindu Law. [509 D-E] 1.4. The stand taken by the High Court to the effect that the proportion laid down by judicial decisions to the effect that partial partition of a joint Hindu family qua some joint family properties or qua some members of the joint family is permissible and valid in law, will apply only when partial partition is effected with the consent of the members of joint family and cannot be extended to a case when partial partition is sought to be brought by father in exercise of his superior rights as father or his right as patria potestas is incorrect. [509 F-H] If the father in exercise of his superior right or of his right as patria potestas in entitled lo bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu joint family consisting of himself and his minor sons even against The wishes of the minors and if partial partition be permissible with the consent of sons when they have all become major, the power or authority of the father to effect the partition of properties cannot be limited only to a case where the partition is total. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does Dot act bonafide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interest. [510 A-H] Charandas Haridas v. Commissioner of Income Tax, Bombay (1960) 39 I.T.R. 202 (S.C.) Kalloomal Tapeswari Prasad (HUF) v. Commissioner of Income J. J Tax. Kanpur (1982)133 I.T.R. 690 (S.C.) followed: 494 1.5. The provisions of the Income Tax Act, 1961 before the amendment by Finance Act (No. 2 of 1980) also clearly recognise partial partition. The definition of partial partition in Explanation (b) makes it clear that partial partition as regards the persons constituting the Hindu undivided family or as regards proper ties belonging to the Hindu Undivided family, or both, is recognised. [514 P-G] 2.1. A partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been Do equal distribution amongst the co-sharers It is expected that the father who seeks to bring about a partial partition of joint family properties will act bonafide in the interest of the joint family and its members bearing in mind in particular the interest of the minor sons. If, however, any such partial revision causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partial partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case till such partial partition has been held to be invalid by any competent court, the partial partition must he held to be valid. [515 D-F] 2.2. It is not open to the Income-tax Authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the Income-tax officer before recognizing the partition to come to a conclusion on proper enquiry whether the partition is genuine or not. If the Income-tax officer on enquiry comes to a finding that the partition is sham or fictitious, he will be perfectly within his right to refuse to recognise the same. [515 F-G] 2.3. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the Income-tax officer, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of S. 171 of the Income-Tax Act and the assessment must be necessarily made on the basis that there is partial partition of the said shares. [515 H,. 516 A-B] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 35 of 1982 Appeal by Special leave from the Judgment and order dated the 9th July, 1981 of the Gujarat High Court in Income Tax Reference No. 28 of 1980. P,H. Parekh, Harish Salva and Gatutam Philip for the Appellant. 495 S C. Manchanda Anil Dev Singh and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. The principal question for decision 5 in this appeal by Special Leave is whether the father in exercise of his right as Patria Potestas or otherwise can effect a partial partition between himself and his minor sons of joint family properties of a Hindu joint family governed by the Mitakshara School of Hindu Law. The assessee, a Hindu undivided family (hereinafter referred to as H.U.F.), which consists of four members, namely,(l) Shri Apoorva Shantilal Shah, 2) his wife Smt. Karuna and their minor sons (3) Chintan and 4) Tejal, is the appellant before us. The members of the H.U.F. are governed by the Mitakshara School of Hindu Law. The D assessment year in question is the year 1975-76. During the assessment pertaining to the assessment year under consideration, Shri Apoorva who is the father of the minor sons and husband of Smt. Karuna and the Karta of the H.U.F. made an application to the Income Tax officer for recognising partial partition under S. 171 of the Income Tax Act, 1961 (hereinafter referred to as the Act), claiming that two partial partitions bad taken place amongst the members of the said family, one on 24.12.1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on 29.12.1973 in respect of 1777 shares of the same company. On enquiry the Income-Tax officer (hereinafter for the sake of brevity referred to as I.T.O.) found that the partial partitions had been embodied in memoranda of agreements of partition. The I.T O. however, refused to record that there had been a partial partition of joint family properties, as he was of the view that partial partitions in question could not be recognised inasmuch as the remaining shares, after making certain allocations in favour of the two minor sons were not allotted in their entirety to the remaining third coparcener, namely, Shri Apoorva separately or to Shri Apoorva and his wife Karuna jointly, describing them as members of the H.U.F. The I.T.O. further held that the said partitions did not purport to have been made at the distance of the minor children, as this course would require the approval of the Court but the same had been purported to 496 have been made at the instance of Shri Apoorva. The I.T.O. hinted in the order that the distribution of the shares had not been made equally either amongst the three members including the two minor sons or amongst the four members of the H.U.P., as Apoorva's wife Karuna also became entitled to an equal share on partition between the father and the sons. Against the order of the I.T.O. the assessee H.U.F. presented an appeal before the Appellate Assistant Commissioner (hereinafter referred to as A.A.C. for the sake of brevity). The A.A.C. allowed the appeal and held that there had been genuine partial partitions between the coparceners in respect of the said shares. The A.A.C. held that it was not necessary to obtain court's sanction even in a case where some of the parties to the partition were minors. As regards the print that the distribution of shareholding had not been made on equal basis, the A..A.C., taking into consideration some earlier partitions, came to the' conclusion that the distribution had been equally made. The A.A.C. further observed that even if the distribution had not been made on equal basis that would not affect the validity-of the partitions in question and the minor sons, if they felt aggrieved in this regard, could on attainment of majority seek to avoid the said partitions. Aggrieved by the order of the A.A.C., the Revenue went up in appeal to the Income-Tax Appellate Tribunal (referred to as tribunal hereinafter for the sake of brevity) to challenge the A.A.C's recognition of the said partitions. The Tribunal held for reasons recorded in the order that partial partitions in the instant case were outside the framework of the Hindu Law and as such they could not be recognised as valid for the purposes of S. 171 of the Act. In that view of the matter the Tribunal set aside the A.A.C's order and restored the order of the I.T.O. Under S. 256 (1) of the Act, the Tribunal referred the following question to the High Court:- (1) Whether on the facts and in the circumstances of the-case, the Tribunal was right in holding that Shri Apoorva Shanti1al could not himself have given consent on behalf of his minor sons to the partitions proposed by him in his individual capacity as father ? 497 (2) Whether on the facts and in the circumstances of A the case, the Tribunal was right in holding that the partial partitions were outside the framework of Hindu Law ? (3) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the partial partitions could not be recognized as valid for the purpose - of section 171 of the Income-tax Act, 1961 ? (4) Whether on the facts and circumstances of the case, the Tribunal was right in holding that partial partitions made by a Hindu father in exercise of his patria potestas cannot be recorded as a valid partitions under section 171 of the Income-tax Act, 1961 ? (5) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the partial partition did not amount to a family arrangement in which the father acted as a natural guardian of the two minors sons after he had exercised his patria potestas ? (6) Whether the Income-tax Department ;9 competent to challenge the exercise of patria potestas by a Hindu father in respect of coparcenery property, making a partial 1 partition ? For reasons recorded in the judgment the High Court answered all the questions in the affirmative and against the assessee. The High Court in its judgment has held that the father under the Hindu Law has no power or authority to effect any partial partition of Joint family properties between himself and his minor sons. The High Court has observed that apart from the decision of the Madhya Pradesh High Court in the case of Commissioner of Income-tax v. Seth Gopaldas H.U.F (1) there was no decision of any court on the point. The High Court also considered other decisions and books and C' treatises on Hindu Law. The High Court held that on a consideration of the authorities, the following propositions were established :- 1. From the stand point of ancient Hindu Law, what was recognised was only a partition in respect of all the 498 properties of the H.U.F., upon disruption of the status of H.U.F. regardless of whether the properties were actually divided by metes and bounds or whether these were there after (after disruption of joint status) held as tenants-in common. 2. Partial partition in the sense of division in respect of part of the assets while continuing the status of HUF in respect of rest of the assets was not known to the ancient Hindu Law and was not recognised by ancient Hindu Law 3. Partial Partition in the sense of division of some of the properties whilst continuing the status of HUF in respect of other items of property originally belonging to the HUP came to be recognised only later on by evolution of custom and by judge-made law. 4. Such a partial partition was so recognised only if it was made by consent of all the coparceners. In other words, partial partitions in respect of only some items of property whilst continuing the status of HUF in respect of rest of the items of property could be effected only with the consent of all the coparceners. When there was a disruption of the status of the HUF only one or more of the coparceners could not insist for division of some items of the property without effecting division in respect of all the items of properties except by consent of all the coparceners. 5. Tn respect of a joint family consisting of a father and his sons, the traditional Hindu Law recognised the right of a father in his capacity as patria protestas to exercise his extraordinary power to disrupt the status of HUF and to divide his sons inter se without their consent subject to the rider that 'all' assets of the HUF were subjected to partition. . 6. The aforesaid extra ordinary power is subject to the qualification that he gives to his sons an equal share and division is not unfair (vide Gupte's Hindu Law 2nd Edn., Page 259). "The Power of the father to sever the sons inter se is a survival of the patria potestas and may be exercised 499 by him without the consent of his sons'.. "Again, in all A cases his power must be exercised by him bonafide and in accordance with law; the division must not be unfair and the allotment must be equal. He must give his sons equal share with himself " 7. There is nothing in (I) either ancient Hindu Law or (2) customary or judge-made law which authorises the father in exercise of his extraordinary power to effect a partial partition of HUF consisting of himself and his minor sons by dividing some items of properties whilst continuing the joint status in respect of the rest of the properties. C The High Court observed:- "The validity of the aforesaid propositions is incapable of being disputed and has not been disputed. What has been contended on behalf of the assessee is that whilst there is no express provision in so many words, either in the ancient Hindu texts or Judge-made law, that the power of a Hindu father to effect partition of a HUF consisting of him self and his sons including minor sons in exercise of his power as patria protestas extends even to partition in respect of only some items of property it is required to be inferred by implication. In other words, it is argued that though there is no express reference to the power to effect that partial partition in the sense of division of some items of property while continuing the status of HUF in respect of the rest and though such power is not recognised in terms, it follows as a necessary corollary." The High Court noted that this contention has been negatived by the Madhya Pradesh High Court in the case of Gopaldas (supra) and the High Court for reasons recorded in "the judgment rejected this contention. The High Court further held that the transaction in question was in any event invalid in the facts and in the circumstances of this case. Aggrieved by the judgment of the High Court, the assessee with special leave granted by this Court has preferred this appeal. 500 In this appeal before us, two main contentions have been urged on behalf of the appellant. The first contention urged is that the High Court went wrong in holding that the father cannot effect any valid partial partition between himself and his minor sons of joint family property belonging to Hindu undivided family consisting of himself, his wife and minor sons who are governed by the Mitakashra School of Hindu Law. The other contention raised is that the High Court erred in coming to the conclusion that in the facts and circumstances of this case, the partial partitions were invalid. Mr. Desai learned counsel appearing on behalf of the appellant has advanced the following arguments. 1. According to the Mitaksbara School of Hindu Law, the father has a power to divide ancestral property among his sons and the partition made by him is binding on his sons provided that the power is exercised bonafide and in accordance with law which regulates and restricts it in the interests of his sons. This power on the part of the father is recognised in text books on Hindu Law and has been accepted in a number of decisions beginning with the case of Kondaswami v. Doraisamy Ayyar.(1) 2. A father in any such case of ancestral property has the power to separate from all or from even some of his sons remaining joint with the other sons or leaving them to continue as a joint family with each other. The consent of the sons is not necessary for the exercise of that power whether they are majors or minors. In this connection reference is made to para 323 of Hindu Law by D.F. Mulla and para 458 at p. 559 of Mayne's Hindu Law (11 the Edn.). Para 323 of Mulla's Hindu Law, 11th Edn. at page 443 and 444 reads as follows:- "The father of a joint family has the power to divide the family property at any moment during his life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise 501 of that power. But a grandfather has no power to bring A about a separation among the grandsons. The right of a father to sever sons inter se is a part of the patria potestas still recognised by the Hindu Law." Para 458 of Mayne's Hindu Law and Usage, 11th Edn. at p.559 and 560 reads as follows:- "Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. It is open to the members of a joint family to sever in interest in respect of a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Any one coparcener may separate from the others. but no coparcener except the father or grandfathers, can compel the others to become separate amongst themselves. A father may separate from all or from some of his sons, remaining joint with the other sons or leaving them to continue a joint family with each other. A separation between coparceners, for instance, between two brothers, does neither necessarily nor even ordinarily involve a separation between either of the coparceners and his own sons " 3. So extensive and wide is this patriarchal power of the father that it has been recognised even in cases where all the sons were minors or an only son was a lunatic. Reference is made to the decision of the Bombay High Court in the case of Bapu Hambira Patil v. Shankar Bahu Patil, (1) and to the decision of the Madras High Court in the case of Venkataswara Pattar v. K. Mankayammal.(2) 4. S. 171 of the Income-tax Act, 1971 and S. 25A of the earlier Acc have been all along accepted as machinery provisions and not charging sections. In the earlier Act though there was no express reference to partial partitions, the preferable view expressed in deci- 502 sions under that Act was that if there was a partial partition of an asset of the family or an asset of the family was divided and a partnership was constituted and the family continued joint as regards other properties, the assessment on the basis of undivided Hindu family would be confined to the income of the properties so remaining undivided and the income of the property partitioned would be excluded from the computation of the income for assessment. It was only income received from the properties not partitioned that would be considered to be the income of the joint family. Reliance has been placed on the decision in the case of Charandas Haridas v. C.l.T. Bombay. (1) 5. This power of the father has been described as his "superior power" or "peculiar power" or "patria potestas". There is neither principle nor authority for the proposition that the exercise of this independent and extensive power of the father even in the context of minor sons could not take into its purview the lesser power to partition only some of the family properties without disrupting the status of the members of the joint family as regards other properties even when it is a genuine exercise of the lesser power. At no time was there recognised any limitation or inhibition on the power of the father, though of course the partition effected by him had to be fair and equitable. There is no text of Hindu Law which prohibits partial partition whether as to person or as to property. 6. The decision of the Privy Council in the case of Appovier v. Ram Subba Aiyan,(2) when it speaks of partial partition of the joint family by agreement of the coparcener cannot possibly be read as restricting the patriarchal and superior power of the father to effect division of the entire joint family properties and to exclude operation in case of exercise of the lesser right of division of only some of the family properties. Mr. Manchanda learned counsel appearing on behalf of the department, has advanced the following arguments: 503 1. Under ancient Hindu Law, partial partition was unknown. Severence of status disrupted the family. The joint family need not necessarily have any property. If it bas property, then its separation is only an incidence of the severence of status. 2. Partial partition is judge made law and the earliest case where this was mooted was in 1846 in the case of Rewun Prashad v. Radha Beeby.(l) This was followed in Appovier's case (supra) and then in certain decisions of Indian Courts. Reference is also made to paragraph 458 of Mayne's Book on Hindu Law and Usage for contending that agreement between the parties is a sine qua non. 3. The powers of patria potestas are confined mainly to the power to sever the status of the joint family as-a whole. Judge. made law which has recognised partial partition has attempted to extend the ancient, feudal archaic patriarchal powers of patria potestas to joint families so as to include the power of partial partition with the consent of the parties. There could be no justification for now extending it, particularly as the legislature itself, as per the Finance Act (2) 1980 w.e.f. 1,4.80 has de-recognised partial partition altogether. Sub- section (9) has been added to S. 171 of the Act and by this provision partial partition of a HUF effected after 31.12.78 will be de-recognised for income-tax purposes and this sub- section has been incorporated with the object of curbing the creation of multiple HUF by making partial partitions. Where a HUF is taxed in the status of HUF it will continue to be taxed as such unless there has been a total partition of the family properties by metes and bounds and an order to that effect is recorded by I.T.O. 4. The powers of patria potestas of a father have always been understood to be restricted and limited to a complete and whole partition. This power can only be exercised with regard to the entire property, provided the property is divided equally and fairly by the father. We may observe that in course of the hearing, reference was made to a number of decisions of various courts by the learned counsel for the parties. 504 We shall now proceed to consider the decisions which appear to us to leave a material bearing on the question involved in the appeal. We shall first refer to the decision of this Court in the case of Charandas Haridas (supra). This decision which appears to have clear bearing on the question and which considers an earlier decision of the Privy Council, does not appear to have been cited before the High Court. The material facts of this case may be briefly noted;- Charandas Haridas was the Karta of a Hindu undivided family consisting of his wife, Shantaben, three sons and himself. He was a partner in six managing agency firms in six mills In previous years the income received by him as partner in these Managing Agencies was being assessed as the income of the Hindu undivided family. On December 11, 1945, Charandas Haridas acting for his three minor sons and himself and Shantaben his wife, entered into an oral agreement for partial partition. By that agreement Charandas Haridas gave one pie share to his daughter Pratibha in the managing agency commission from two of the six managing agencies held by the family. The balance together with the other shares in the other managing agencies was divided in five equal shares between Charandas Haridas, his wife and sons. This agreement was to come into effect from 1st January, 1946 which was the beginning of afresh accounting year. On 11th September, 1946 Charandas Haridas acting for himself and his minor sons and Shantaben executed a memorandum of partial partition in which the above facts were recited, the document purporting to be a record of what had taken place orally earlier. In the assessment year 1947- 48 and 1948-49, Charandas Haridas claimed that the income should no longer be treated as income of Hindu undivided family but as separate income of the divided members. The Income-tax officer declined to treat the income as any but of the Hindu undivided family, and assessed the income as before. An appeal to the Appellate Assistant Commissioner was unsuccessful and the matter was taken to the Income-tax Appellate Tribunal. The Tribunal held that by the document in question, the division, if any, was of the income and not of the assets from which the income was derived inasmuch as "the agreements of the managing agency with the managed com- panies did not undergo any chaoge whatever as a result of the alleged partition." The Tribunal, therefore, held that the arrangement to share the receipts from this source of income was not binding on 505 the department, if the assets themselves continued to remain joint. A It further held that the document was "a farce", and did not save the family from assessment as Hindu undivided family. The following question as directed by the High Court on the application of Charandas Haridas was referred to the High Court.: "Whether there were materials to justify the finding of the Tribunal that the income in the share of the com mission agency of the mills was the income of the Hindu undivided family ?" The High Court held that though the finding given by the Appellate Tribunal could not be construed as a finding that the document was not genuine, the method adopted by the family to partition the assets was insufficient to bring about the results intended by it. According to the High Court the Tribunal was right in holding that the document was ineffective and though the income might have been purported to be divided and might, in fact, have been so divided, the source of income still remained undivided as belonging to the Hindu undivided family. The High Court accordingly answered the question in the affirmative holding that there were materials before the Tribunal to enable the Tribunal to reach the conclusion that in so far as these income-bearing assets were concerned, they still belonged to the Hindu undivided family. The assessee Charandas Haridas filed an appeal in this Court with special leave granted by this Court. This Court-allowed the appeal. At page 207, this Court referred to the following observations of the Privy Council in Appovier v. Rama Subba Aiyan (supra). "Nothing can express mere definitely a conversion of the tenancy, and with that conversion a change of the status of the family quoad this property. The produce is no longer to be brought to the common chest, as representing the income of an undivided property, but the proceeds are to be enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become entitled to those definite shares." Thereafter this Court proceeded to hold at page 208:- 506 "In our opinion, here there are three different branches of law to notice. There is the law of partnership, which takes no account of Hindu undivided family. There is also the Hindu Law which permits a partition of the family and also a partial partition binding upon the family. There is then the income-tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition. The fact of a partition in the Hindu Law may have no effect upon the position of partner, in so far as the law of partnership is concerned, but it has full effect upon the family in so far as the Hindu Law is concerned. Just as the fact of a karta becoming a partner does not introduce the member of the undivided family into the partnership, the division of the family does not change the position of the partner vis-a-vis the other partner or partners. The Income-tax law before the partition takes note, factually, of the position of the karta, and assessee not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partner ship Act, but to the provisions of Hindu Law. When once the family has disrupted, the position under the partnership continues as before, but the position under - the Hindu Law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues cannot be said to be of a Hindu undivided family. There is nothing in the Indian Income-tax law or the law of partnership which prevents the members of a Hindu joint family from dividing any asset. Such division must, of course, be effective so as to bind the members; but Hindu law does not further require that property must in every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured according to the shares of the members. For an asset of this kind, there was no other mode of partition open to the parties if they wished to retain the property and yet held it not jointly but in severalty, and the law does contemplate that a person should do the impossible. Indeed, the result would have been the same, even if the dividing members had said in so many words that they had partitioned 507 the assets, because in so far as the firms were concerned, A the step would have been wholly inconsequential." This Court further observed at p. 209:- "No doubt, there were many modes of partition which might have been adopted; but the question remains that if the family desired to partition these assets only and no more, could they have acted in some other manner to achieve the same result ? No answer to the question was attempted; It is, therefore, manifest that the family took the fullest measure possible for dividing the joint interest into separate interests. There is no suggestion here that this division was a mere pretence nor has the Appellate Tribunal given such a finding. The document was fully effective between the members of the family, and there was actually no Hindu undivided family in respect of these particular assets." In the case of Kalloomal Tapeswari Prasad (HUF) v. Commissioner of Income-tax, Kanpur(l), this Court observed at p. 702:- "Under Hindu Law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been a partition, it is presumed that it was total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendents. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property, to establish-it. The decision on that question depends on proof of what the parties intended-whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided as regards properties in respect of which such partition has taken place but continues to be undivided with regard to the 508 remaining family property. After such partial partition the right of inheritance and alienation differ according as to property in question belongs to the members in their divided or undivided capacity. Partition can be brought about, (1) by a father during his life time between himself and his sons by dividing equally amongst them, (2) by agreement, or (3) by a suit or arbitration." These two decisions of this Court clearly state that partial Partition under Hindu Law is permissible. We may mention that in the case of Moti Lal Shyam Sunder v. Commissioner of Income-tax, U.P.(l) a division Bench of the Allahabad High Court also recognised the validity of partial partition. R.S. Pathak, J. (as his Lordship then was) who spoke for the Bench held for reasons stated in the judgment that the tribunal was in error in holding that there was no valid partial partition in law on 1st July, 1961. It may be noted that in the case of Charandas Haridas (supra) decided by this Court and in the case of Motilal Sham Sunder (supra) decided by the Allahabad High Court to which we have just referred, all the sons were minor. We have earlier quoted the relevant passages on the subject from Mulla's Hindu Law and from Mayne's Hindu Law and Usage. We may now qoute the following observations appearing at p. 18 in 'Mitacshare and Daya-Bhaga-Two Treatises on the Hindu Law of Inheritance translated by H.T. Colebrooke, Esq.,' in Ch. I, sec. II (2):- "When a father wishes to make a partition, he may at his pleasure separate his children from himself, whether one. two or more sons". In 'History of Dharamshastra' by Shri P.V. Kane (second Edition, 1973) Vol. III at p. 592, it has been stated:- "The Manager is called Karta in modern times though the smritis and digests employ words like Kutumbin (Yaj II. 45), Grhin, Grhapali, Prabhupa Kat. 543) and not Karta. He has special powers of disposition (by mortgage, 509 sale or gift) of family property in a season of distress (for debts), for the purposes and benefit of the family (maintenance, education and marriages of members and other dependents) and particularly for religious purposes (Sradhas and the like). The father has the same powers as manager and certain other special powers, which no other coparcener has. The father can separate his sons from himself and also among themselves if he so desires, even if they do not desire to separate (Yaj. II. 114)". There are observations more or less to the similar effect in the other commentaries on Hindu Law by other learned authors. We do not, therefore, consider it necessary to refer to the comments of the other learned authors placed before us in course of the hearing of the appeal. The various commentaries on Hindu Law by the various learned 1 authors go to indicate that ancient Hindu Law speaks of complete severance of joint family and partition of joint family properties and does not mention partial partition either with regard to the joint family properties or with regard to some of the members of the joint family. The right of the father to bring about the disruption of the joint family properties in exercise of his superior right as father or of his rights as patria potestas is recongnised in ancient Hindu Law. It is, however, well settled by judicial decisions that partial partition of a joint Hindu family qua some joint family properties or qua some members of the joint family is permissible and valid in law. The High Court appears to have accepted this position but the High Court then proceeds to hold that the proposition laid down by judicial decisions with regard to partial partition will apply only when partial partition is effected with the consent of the members of the joint family and cannot be extended to a case where partial partition is sought to be brought about by father in exercise of his superior rights as father or his right, as patria potestas. On an anxious and careful consideration of the matter we are unable to agree with the view expressed by the High Court. 510 If the father in execise of his superior right or of his right. as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu family consisting of himself and his minor sons even against the wishes of the minors and if partial partition be permissible with the consent of sons when they have all become major, we see no reason to limit the power or authority of tho father to effect the partition only to a case where the partition is total. The superior right or the right of patria potestas which a father enjoys is always expected to be exercised in the best interest of the members of the family and more particularly his minor sons. The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family consisting of himself and his minor sons and to effect a complete partition of The joint family properties even against the will of the minor sons. It is also now recognised that partial partition of joint family properties is permissible. When father can bring about a complete partition of joint family properties between himself and his minor sons even against the will of the minor sons and when partial partition under the Hindu Law is now accepted and recognised as valid by judicial decisions, we fail to appreciate on what logical grounds it can be said that the father who can bring about a complete partition of the joint family properties between himself and his minor sons will not be entitled to effect a partial partition of joint family properties between himself and his minor sons if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including the minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does not act bona fide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority, the minor sons through d proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interests. 511 We may point out that in the case of Charandas Haridas to which we have earlier referred and in which this Court recognised the validity of partial partition brought about by the father of some joint family properties, the sons were all minors. Also in the case of Motilal Shamsunder earlier quoted, where the Allahabad High Court recognised the validity of partial partition brought about by the father between himself and his sons, all the sons were minors. The decision of this Court in the case of Charandas Haridas and the observations of this Court in the case of Kalloomal Tapeswari Prasad (supra) which we have earlier quoted, in our opinion, clinch the decision of the question. We must, therefore, hold that partial partition of properti

Baldev Krishan vs The State Of Haryana on 28 January, 1997

Court 1

[Cites 7, Cited by 10] Supreme Court of India Baldev Krishan vs The State Of Haryana on 28 January, 1997 Equivalent citations: AIR 1997 SUPREME COURT 1666, 1997 (4) SCC 486, 1997 AIR SCW 718, 1997 (1) SCALE 509, (1997) 2 JT 39 (SC), 1997 SCC(CRI) 575, 1997 (2) JT 39, 1997 CRILR(SC&MP) 361, (1997) 2 LS 9, 1997 CRILR(SC MAH GUJ) 361, (1997) 1 SCJ 265, (1997) 1 CURCRIR 203, (1997) 1 CRICJ 449, (1997) 3 SUPREME 304, (1997) 2 CRIMES 1, (1997) 1 ALLCRILR 547, (1997) 1 CHANDCRIC 68, (1997) 1 EASTCRIC 717, (1997) 1 HINDULR 282, (1997) 1 RECCRIR 743, (1997) 1 SCALE 509, (1997) 34 ALLCRIC 457 Author: S.P. Kurdukar Bench: S.P. Kurdukar PETITIONER: BALDEV KRISHAN Vs. RESPONDENT: THE STATE OF HARYANA DATE OF JUDGMENT: 28/01/1997 BENCH: FAIZAN UDDIN, S.P. KURDUKAR ACT: HEADNOTE: JUDGMENT: J U D G M E N T S.P. KURDUKAR, J. Smt. Pratibha (since deceased) was the daughter of Kamal Goyal (PW 2) a resident of Sangrur. She was married to Ravi Kumar (A-3) on February 19, 1981. It was an arranged marriage. Kamal Goyal comes from a middle class family and is in service with limited source of income. At the proposal stage Kamal Goyal alleged to have made it clear that having regard to his means the marriage would be a simple one. He claimed to have spent on marriage of pratibha an amount of Rs. 70,000/-. ravi Kumar (A-3) and Narinder Kumar (A-4) who has been acquitted are the sons of Baldev Krishan (A-1). Sarla Devi (S-2) is the wife of A-1. They are the residents of Jullundur city, owning a ground floor and one stormy house. On the ground floor they run business in electric goods under the name of B.K. Electrical Industry; whereas the first floor is used for their residence. It is a joint Hindu family. Baldev Krishan being a businessman was then having comparatively a better financial position. 2. Smt. pratibha after her marriage came to Jullundur and resided with her husband and in laws. In the last week of February, 1981, Kamal Goyal came to Jullundur and took away Smt. Pratibha to Sangrur. Pratibha told her father that her in-laws were of a very greedy nature and were criticising her on dowry issue. On the following day on reaching Sangrur A-3 sent a telephonic message to Kamal Goyal that his mother was taken ill and Pratibha would return within a short period. Accordingly, she was brought back to Jullundur. After about two or three months. Pratibha again came to Sangrur and told her father that all the accused persons were taunting her for having brought nothing in dowry and that the clothes brought by her in dowry were mere rags and even other articles were not given worth to their use. It is alleged that Pratibha used to explain to her in-laws that her father came from an ordinary family and whatever he could give in dowry had been given and there was no point in criticising her parents. It is common premise that Rekha Rani (PW 1) who happened to be her aunt was residing at Jullundur and as and when Pratibha met her she used to convey as to how she was illtreated by the accused. Upon hearing the distressing remarks made by the accused, the father used to advise Pratibha not to take the remarks of her in-laws seriously and things would be settled down after passage of time. Pratibha used to tell her parents that her husband (A-3) and mother-in-law (A-2) used to tease her on her squint. It may be stated that Pratibha was blessed with a son on December 24, 1981, at her parents' house and this event was celebrated by her father by inviting members of her i-laws family and spent about Rs. 7,000/- on customary gifts (Shushak). It is then alleged by the prosecution that on June 2, 1981 which was a Nirjala Ekadasi day, Smt. Rekha Rani (PW 1) and her husband Vijay Kumar (PW 5) went to the house of the accused for giving her presents. Rekha Rani wished Pratibha but, however, she was found to be depressed. At that time A-2 told Rekha Rani that she should have searched a boy having a squint as a better match for Pratibha having a status commensurate with a girl. A-2 also taunted saying that they accepted the proposal as Kamal Goyal was a gentleman but he had given rages in dowry. A-2 also alleged to have remarked that Kamal Goyal was a scoundrel and would learn a lesson when he would marry his other children. He must find out only scoundrels. Rekha Rani thereafter came to an adjoining courtyard where A-3 was sitting with a view to have to talk to him and convey the remarks may by A-2. Sarla Devi (A-2) thereafter followed her whereupon A-3 told his mother to keep quiet and should not talk nonsense. A-2 thereupon stated that she would set right Pratibha as God has given her a lot of money. A-2 also then passed remarks saying that some other proposals had come for. A-3 offering dowry of two lakhs. After hearing these remarks of A-2 Rekha Rani returned to her room. 3. It is then alleged by the prosecution that on June 5, 1982 Kamal Goyal came to Jullundur for taking Smt. Pratibha to Amritsar where his mother-in-law was ailing. He also intimated to A-1 that he would be taking Smt. Pratibha on June 6, 1992 to Sangrur as the marriage of his brother (Kamal Goyal's brother) was to take place on June 20, 1982 at Delhi. Accordingly on 5th June, 1992 Kamal Goyal came to the house of Accused whereupon A-1 and A-3 told him that Pratibha would accompany him. Kamal Goyal then went to the house of Rekha Rani who told him that Pratibha was not happy as the members of her in-laws family were taunting her on various grounds including a squint in the eye. At about 3.00 p.m. Kamal Goyal went to the house of A-1 and he was told by A-1 and A-3 that Pratibha would not accompany him. Kamal Goyal wanted to sort out the differences and, therefore, he along with A-1 and A-3 went to the drawing room on upstairs. A-2 and Pratibha also came there and it was found that the latter was very much disturbed. Pratibha told her father that all the accused were ill-treating her and calling her and him as bastards. Kamal Goyal according to the prosecution told the accused that he belonged to a cultured family and requested not to abuse. Sarla (A-2) then told him that because of this matrimonial relation and of meagre gifts of a poor quality their status in the society was lowered down. It is alleged by the prosecution that A-2 complained to Kamal Goyal that Pratibha had no desire to work in the house and was a burden to the family. Accused persons then told Kamal Goyal that Pratibha would not accompany him. 4. Despite the protest Kamal Goyal requested the accused to send Pratibha to Sangrur with him at about 3.00 p.m. on the following day. Kamal Goyal accordingly went to the house of the accused on June 6, 1982. Pratibha was getting ready to accompany him but after some time she came with tears in her eyes and told him that she would not accompany him. Kamal Goyal found her very much frightened and perplexed and wanted to know from her the reasons therefor but she refused to say anything at that time. Kamal Goyal then asked Baldev Krishan (A-1) as to what was happening in the house and who had threatened Pratibha whereupon he told him not to worry and he would take every precaution and responsibility of her safe stay in the house. A-2 then told Kamal Goyal that Pratibha would come directly to Delhi on June 18, 1982 or she would be sent to Sangrur either on 21th or 13th June, 1982. With great disappointment Kamal Goyal returned to Sangrur and since he was worried about Pratibha's well being, wrote a letter Ex. PB to Vijay Kumar (PW 5) and sent another to A-1 on June 7, 1982. Smt. Janak, the mother of Pratibha also wrote a few lines on Ex. PB to Smt. Rekha Rani. It is alleged by the prosecution that relations between Pratibha and members of her in-laws family instead of improving worsened and ultimately on June 8, 1992, she died of burn injuries in her matrimonial house. 5. Coming to the eventful afternoon of June 8, 1982 at about 6.30 p.m. Raj Kumar (PW 4) happened to pass in front of the shop of A-1 and saw many persons gathered there. People were taking that accused persons had burnt their daughter-in-law on account of their greed for dowry. He noticed that the accused persons were very much perturbed. He then went to the house of Rekha Rani to inform her about the incident. Rekha Rani and Vijay Kumar reached the house of accused immediately. Pratibha had sustained burn injuries between 4.00 and 6.00 p.m. on 8th June, 1982. Dr. R. N. Batra (DW 1) who had come to the house of A-1 at about 7.00 p.m. was asked to inform Kamal Goyal on telephone about the death of Pratibha. Kamal Goyal on receipt of a telephone call from Dr. R. N. Batra from the house of A-1 was shocked to hear about his daughter's death. Kamal Goyal wanted to talk to A-1 personally but doctor told him that he would not be able to speak on telephone due to shock. Kamal Goyal and his wife left Sangrur for Jullundur and reached at the house of A-1 during mid night. 6. In the meantime A-1 asked Chanan Ram (DW 4) to go and lodge a report at the police station. However, at about 7.30 p.m. he met ASI Hardip Singh near the Laxmi Cinema and told him about the incident. His statement Ex. PH was recorded and the crime came to be registered as "death due to accidental burns." ASI Hardip Singh then reached the place of occurrence and started the investigation. An inquest Ex.P was held on the dead body of Pratibha. He also prepared the Panchnama of place of occurrence. Gopal Singh (PW 9) the Inspector, on getting the information about the incident reached the house of the accused at about 10.30 p.m. and took over the investigation. He recorded the statement of Rekha Rani Ex. PA/1 and forwarded the same to the police station which was formally treated as the FIR Ex. PA/2. During investigation he seized some of the articles lying in the kitchen. In the meantime, Kamal Goyal along with his wife reached there. An ambulance was arranged and the dead body of Pratibha was sent to the Civil Hospital, Jullundur. Vijay Kumar (PW 5), Subhash Chander and two constables, namely, Gurmit and Ghanshyam Dass accompanied the dead body. The post-mortem examination was conducted by the Board headed by Dr. B.S. Parmar (PW 3) along with Dr. Mandip Singh Sethi and Dr. Surinder Kaur. This was done at the instance of Harbans Lal, Advocate, an uncle of A-3. The statements of various persons were recorded during investigation. The accused came to be arrested on June 9, 1982. After completing the investigation, a charge-sheet was submitted against four accused persons for an offence punishable under Section 302/34 IPC. 7. The accused denied the allegations levelled against them and they pleaded that they are innocent. They denied to have demanded any dowry or meted out any ill-treatment to Pratibha. They also denied to have taunted Pratibha on her squint in the eye. According to the accused she was treated very well in their house and there used to be no quarrels with her. The burn injuries on Pratibha were either accidental or suicidal and not homicidal. A-1, A-3 and A-4 pleaded that they were in the shop (ground floor) and busy with their customers and they first time came to know when A-4 went upstairs at about 6.00 p.m. who reported of a burning smell coming from their residential block. When they went upstairs they found Pratibha lying in the kitchen with burn injuries. The defence of A-2, Sarla Devi was one of alibi. According to her she had done to her sister's house at 4.00 p.m. as she had returned home after her eye operation. She came to know about the incident on her way to her house. She denied that she ever ill-treated her and claimed that she is innocent and be acquitted. 8. The prosecution case entirely rested upon the circumstantial evidence and it relied upon five circumstances, namely, (1) motive; (2) place and time of the incident; (3) presence of all the four accused at the time of occurrence; (4) conduct of the accused persons who gave a false explanation that deceased died due to accidental burn injuries; and (5) medical evidence. 9. In order to prove motive the prosecution relied upon the evidence of Rekha Rani (PW 1), Kamal Goyal (PW 2) and Vijay Kumar (PW 5). In addition to this evidence the prosecution also relied upon the evidence of formal witnesses including the police officers who investigated into the crime. The accessed in their defence examined six witnesses including Dr. R.N. Batra (DW 1) and Chanan Ram (DW 4). 10. On careful scrutiny of the oral evidence and other materials on record the trial court by its judgment and order dated October 16, 1982 held that the prosecution had proved all the circumstances which had established beyond reasonable doubt that A-1, A-2, and A-3 were responsible for committing the murder of Pratibha. Having held so the learned trial judge convicted A-1, A-2 and A-3 under Section 302/34 IPC and sentenced each one of them to suffer life imprisonment and to pay a fine of Rs. 5,000/- in default of payment of fine to undergo further RI for two years. The learned trial judge, however, gave the benefit of doubt and acquitted Narinder Singh (A-4). 11. The appellants-convicts being aggrieved by the judgment and order of conviction passed by the trial court preferred criminal appeal to the Punjab & Haryana High Court at Chandigarh. The Division Bench of the High Court by its judgment and order dated April 30, 1993 after reappraisal of the evidence on record dismissed the appeal and confirmed their conviction and sentence. It is against this order of conviction and sentence, the three appellants on obtaining Special Leave filed three separate Criminal Appeals i.e. Criminal Appeal No. 45 of 1984 is filed by Baldev Krishan (A-1), Criminal Appeal No. 143/84 is filed by Sarla Devi (A- 2) and Criminal Appeal No. 144/84 is filed by Ravi Kumar. 12. During the course of arguments we are informed by the learned counsel for the appellants that Baldev Krishan died on 5-2-1993, resultantly his appeal stands abated. 13. We have carefully gone through the judgments of the learned courts below and the evidence on record. Mr. U.R. Lalit and Shri R.C. Kohli, Sr. counsel appearing for the appellants assailed the impugned judgment on various grounds. They urged that the courts below have totally misread the evidence of Rekha Rani (PW 1), Kamal Goyal (PW 2) and Ravi Kumar (PW 5) and strenuously urged that the evidence of these three witnesses did not make a mention that at any point of time any of the appellant/accused demanded dowry or any other articles of gift. The expression of poor quality of gifts or of meagre value assuming to be true would not and could not amount to a demand of dowry. The evidence of these witnesses in that behalf is nothing but their figment of imagination or at best inferential one and, therefore, finding of ill-treatment based on each evidence is unsustainable. They then urged that Pratibha had no physical disability much less any squint and, therefore, there was no question of teasing her on that score. They urged that there was no evidence worth the name on record to hold that any of the appellants/accused meted out ill- treatment to Pratibha at any time. They therefore, submitted that the finding of the courts below as regards motive to cause death is patently illegal and cannot be sustained. 14. After careful scrutiny of the evidence of these three witnesses and other materials on record, we are satisfied that the contentions raised by the learned counsel for the appellants are totally unsustainable. Rekha Rani (PW 1) and Kamal Goyal (PW 2) testified several instances where the appellants taunted Pratibha by saying that A-3 had better proposals who were prepared to give dowry of rupees two lakhs but they had accepted her proposal. The witness further stated that Pratibha always used to complain that members of her in-laws family often made humiliating remarks as regards the poor quality of gifts of merger value given at the time of marriage. In the facts of this case such remarks in our opinion undoubtedly connected with harassment on account of insufficient dowry. There are ways and ways to express the demand of dowry. One adopted by the appellants could be said to be a sophisticated one without using the word "dowry". Rekha Rani in her evidence had referred to the incident in detail when she and her husband on 2nd June, 1982 went to give presents to Pratibha on Nirjala Kkadshi festival. From her evidence there is no manner of doubt that the appellants had given most humiliating treatment not only to Pratibha but also to Rekha Rani. A-2 had gone to the extent of calling the parents of Pratibha as bastards and telling her that they should have found out a suitable match for their daughter having a squint. The fact of ill- treatment meted out to Pratibha also finds support from the evidence of Kamal Goyal (PW 2) on two occasions when he had visited the house of A-1 when Pratibha was found totally perplexed and depressed and was unable to speak out her painful feelings. As and when Pratibha went to Sangrur and particularly when she had gone at the time of her delivery, she told her parents how she was treated by the appellants. The letters Exs. PB/1 and PB/2, on record do suggest and express concern over the well being of Pratibha at her in- laws house and those two letters were written to Rekha Rani (PW 1) and Vijay Kumar (PW 5). 15. Mr. Lalit contended that the evidence of Rekha Rani (PW 1), Kamal Goyal (PW 2) and Vijay Kumar (PW 5) did not even remotely suggest that A-3 had given any ill-treatment to Pratibha. The evidence on record is totally vague and could not be the basis of present conviction. We are not impressed by this argument because Kamal Goyal (PW 2) in his evidence has stated that Pratibha on several occasions had told him that the appellants were giving ill-treatment to her because of insufficient dowry and also squint in her eye. We see no reason to discard the statement of Kamal Goyal in this behalf. 16. Mr. Lalit then urged that the prosecution had failed to lead any evidence as regards the physical ill-treatment and the reason being obvious that there was no such ill- treatment. The physical ill-treatment is one of the facets of ill-treatment and it is true that there is no such evidence but there is sufficient evidence on record to hold that appellants did cause a mental ill-treatment to Pratibha. The courts below have very carefully scrutinized the evidence in this behalf and in our opinion the findings as regards motive and ill-treatment call for no interference. 17. It was then urged by Mr. Lalit that the courts below have totally over looked the fact that Pratibha on December 24. 1981 was blessed with a son. This fact indicated that the relations between Pratibha and A-3 were quite cordial. He emphasised that the newly born son was hardly less than six months old at the time of incident and, therefore, it is difficult to believe that the appellants would think of committing the murder of Pratibha. We are not at all impressed by this argument but on the contrary this argument would go against the appellants. It would be difficult to believe that having regard to the ordinary course of human conduct and in particular of mother, she would commit a suicide and leave the child at the mercy of her in-laws. The contention as regards accidental death would be examined a little later. 18. The second circumstance relied upon by the prosecution was the place and time of the incident. There is no dispute that Pratibha died due to burn injuries in her matrimonial house. Her in-laws family was then consisted of A-1 to A-3 and the acquitted accused (A-4). The evidence on record does not show that any other person was staying in the house. Admittedly, the dead body of Pratibha was found in the kitchen. The time of incident was between 4.00 p.m. and 6.00 p.m. It is in these circumstances a reasonable explanation was expected from the accused as to under what circumstances Pratibha sustained the burn injuries. A-3 in his statement recorded under Section 313 Cr. P.C. had stated that he was busy in his shop between 4.00 p.m. and 6.00 p.m. and he did not know as to what happened on the first floor. A-2 in her statement recorded under Section 313 Cr.P.C. had been taken up a plea of alibi which we have found not acceptable. After careful scrutiny of the prosecution evidence on record and the statements of the appellants under Section 313 Cr.P.C. we have no hesitation in accepting the findings of the courts below that Pratibha sustained burn injuries in her matrimonial home which was a convenient place and opportune time for the accused to commit the offence in question. The prosecution, therefore, has proved this circumstance also. 19. The next circumstance, namely, conduct of the appellants (accused) who gave false explanation that the deceased died due to accidental burn injuries is again an important circumstance against the accused. Chandan Ram (DW 4) was asked to and lodge a report that Pratibha sustained accidental burn injuries. This was done only with a view to misguide the investigating agency and to take a plea that the incident was communicated to the police at the earliest opportunity without there being any time to concoct the same. Having held the guilt of the appellants proved in the present case, we are of the opinion that the conduct of the appellants in giving false information about accidental burn injuries sustained by Pratibha is a circumstance which prosecution has rightly pressed into service and held proved by the courts below. 20. It was then urged on behalf of the appellants that the prosecution has failed to prove that the death of Pratibha was a homicidal. In support of this argument, it was urged that A-3 was in the shop premises on the ground floor when the incident took place. A-2 had gone to her sister's house to enquire about her health as she had returned from the hospital after her eye operation. In the absence of positive and credible evidence to prove the presence of the appellants at the time of occurrence on the first floor of the house, it would be unsafe to convict them under Section 302/34 IPC. In order to prove that at the time of occurrence A-3 was in the shop premises, the defence led the evidence of Surjit Singh (DW 2), Dina Nath (DW 3) and Chanan Ram (DW 4). All these witnesses tried to support the defence story by stating that when they visited the shop of A-3 for some work between 4 and 6 p.m., at the time A-3 was found dealing with the customers. The evidence of these three witnesses is nothing but a tailored made to suit the defence and in our opinion the courts below have rightly disbelieved their evidence. Ramesh Kumar Mittal (DW 5) testified that his mother was operated upon her eye on 3rd June, 1982 and she had returned to Jullundur on June 8, 1982. A-2 had come to his house to enquire about her mother at about 4.30 p.m. and left at about 6.00 p.m. This evidence again does not persuade us to accept it as credible one and in our opinion the courts below have committed no error in rejecting his evidence. 21. It was then contended on behalf of the appellants that there is no mention in the Panchnama that any kerosene smell was coming from the clothes of Pratibha or from her body. As against this Dr. B.S.Parmar (PW 3) who conducted the post mortem examination had noted that the clothes of the deceased were drenched in kerosene and the small piece of cloth was found tightly held between the teeth inside the mouth of dead body of Pratibha. Relying upon these discrepancies it was urged that the evidence of Dr. B.S.Parmar (PW 3) was totally inconsistent with the inquest Panchnama and the prosecution has created a false evidence that the clothes were drenched in kerosene to show that kerosene was used for burning her. It was also urged on behalf of the appellants that in the inquest panchnama it was mentioned that the clothes of Pratibha were completely burnt yet a new saree was found to have been wrapped around her body. This clearly indicated an attempt on the part of the prosecution to create a false evidence against the appellants. We have gone through the evidence of witnesses in this behalf, the inquest panchnama and the medical evidence very carefully and we are satisfied that there was no attempt whatsoever on the part of the prosecution to create any false evidence. It is no doubt true that the clothes of Pratibha were completely burnt and some parts of the burnt clothes were sticking to her body. In order to cover the body it appears that the body was wrapped up in the available saree. All that we could say about the inquest panchnama is that the police officer was not careful in doing his job. Dr. B.S.Parmar (PW 3) had no axe to grind against the appellants and we, therefore, prefer to accept his evidence to hold that the clothes of Pratibha were smelling kerosene. 22. It was then urged on behalf of the appellants that the medical evidence of Dr. B.S.Parmar (PW 3) did not prove that Pratibha met with a homicidal death. It was further urged that the burn injuries sustained by Pratibha could be accidental and none of the appellants was responsible for these injuries. To find an answer to this contention we have very carefully perused the evidence of Dr. B.S.Parmar and the post mortem examination report. Dr. Parmar in his evidence has stated that Pratibha had sustained 100% burn injuries and her body and clothes were smelling kerosene. He further stated that a small piece of cloth was found in the mouth of Pratibha being held tightly between the teeth and small portion thereof could be seen from outside. He admitted that he did not open the jaw as it was closed tightly. Dr. Parmar stated that cause of death was 100% burn injuries. Learned Counsel for the appellants urged that there is serious lacuna in the medical evidence inasmuch as they did not take out the cloth piece from the mouth which could have been a decisive factor to know whether there was any kerosene residue on the cloth or it was smelling kerosene. Having not done so the inference of kerosene having been used to cause the burn injuries cannot be sustained. This submission again did not appeal to us because the other part of evidence of Dr. Parmar clearly indicated otherwise. Moreover, the fact that a piece of cloth was found in the mouth militates against the accused and completely rules out the possibility of accidental burn injuries. The courts below in our opinion have rightly concluded that Pratibha met with a homicidal death and the appellants were responsible for the same. 23. It was then contended that the appellants were convicted with the aid of Section 34 IPC for the substantive offence of murder alongwith A-4 but he was acquitted. In view of acquittal of A-4 it was contended that the conviction of the appellants with the aid of Section 34 IPC is bad. In support of this submission our attention was drawn to the reported decisions of this Court in Pohalya Motya Valvi Vs. State of Maharashtra (AIR 1979 SC 1949). Shidagouda Ningappa Ghandavar Vs. State of Karnataka (AIR 1981 SC 764). Sharad Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622), Laxman Naik Vs. State of Orissa (AIR 1995 SC 1387) and Suresh Chandra Bahri etc. etc. Vs. State of Bihar etc. etc. (AIR 1995 Supp (1) SCC 80). We have carefully gone through these judgments and in our opinion all these decisions are clearly distinguishable on facts. The ratio laid down in these decision has no application to the facts of the present case. 24. In the result we find no substance in both the appeals and they are accordingly dismissed. The appellants who are on bail shall surrender to their bail bonds to serve out the remainder of their sentences. Related AI tags, queries and research notes Translation Top AI Tags common-intention murder examine-accused miscarriage-without-consent Related user Queries medical evidence false evidence burn injury sec.34 ipc 302/34 ipc sec 302/34 of ipc no smell of kerosene KEROSENE panchnama section 34 indian penal code 302/34 family laws who can do post mortem examination Inquest panchnama rekha rani inquest kurdukar gifts "Vijay Kumar" Homicide About Disclaimer Privacy Policy Terms Case Removal Blog Share URL Mobile View (function() { const shareBtn = document.getElementById('share-url-btn'); if (navigator.share) { shareBtn.style.display = 'inline-block'; shareBtn.addEventListener('click', async function() { try { await navigator.share({ title: document.title, url: window.location.href }); } catch (err) { if (err.name !== 'AbortError') { console.error('Error sharing:', err); } } }); } })(); (function($) { function ensureAutocompleteAvailable() { if (!($.ui && $.ui.autocomplete)) { throw new Error('jQuery UI Autocomplete plugin not loaded'); } } function overrideGlobalRenderer() { $.ui.autocomplete.prototype._renderItem = function(ul, item) { return $("") .append( $("") .addClass("search-autocomplete-item-wrapper") .html(item.label) ) .appendTo(ul); }; } function attachAutocomplete($input) { if (!$input.length) { return; } var $form = $input.closest('form'); $input.autocomplete({ source: "/qsuggest/", delay: 180, minLength: 2, appendTo: 'body', position: { my: "left top", at: "left bottom+6", collision: "flipfit" }, classes: { "ui-autocomplete": "search-autocomplete-list", "ui-menu-item-wrapper": "search-autocomplete-item" }, open: function() { var $menu = $input.autocomplete('widget'); var offset = $input.offset(); $menu .width($input.outerWidth()) .css({ left: offset.left, top: offset.top + $input.outerHeight() + 6 }); $input.addClass('autocomplete-open'); }, close: function() { $input.removeClass('autocomplete-open'); }, focus: function(event, ui) { // Prevent the default text replacement while navigating suggestions if (ui && ui.item) { event.preventDefault(); } }, select: function(event, ui) { event.preventDefault(); if (ui && ui.item) { $input.val(ui.item.value); } if ($form.length) { $form.trigger('submit'); } else { $('#search-form').trigger('submit'); } } }); } $(document).ready(function() { ensureAutocompleteAvailable(); overrideGlobalRenderer(); attachAutocomplete($("#search-box")); attachAutocomplete($("#header-search-box")); }); })(jQuery); $(document).ready(function() { $('#pdfdoc').button({icons: {primary: 'ui-icon-document'}}); $('#printdoc').button({icons: {primary: 'ui-icon-print'}}); $('#courtcopysubmit').button({icons: {primary: 'ui-icon-arrowthickstop-1-s'}}); $('#courtcopyform').submit(function(e) { signupForDownload(); e.preventDefault(); return false; }); $('#translatewarn').click(function(e) { e.preventDefault(); var params = {title: 'Warning on translation', closeText: "", width: 450}; var content = 'The option to translate the legal documents is to overcome language barriers and for broader understanding but should not be considered as authoritative text for any official purpose. 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Revanasiddappa vs Mallikarjun on 1 September, 2023

Court 1

[Cites 58, Cited by 1] Supreme Court of India Revanasiddappa vs Mallikarjun on 1 September, 2023 Author: Dhananjaya Y Chandrachud Bench: Dhananjaya Y Chandrachud Reportable 2023INSC783 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No 2844 of 2011 Revanasiddappa & Anr. …Appellants Versus Mallikarjun & Ors. …Respondents With Civil Appeal No 2312 of 2021 With SLP (C) Nos 23397-98 of 2018 With Civil Appeal No 7318 of 2014 With SLP (C) No 81 of 2016 With Civil Appeal No 4398 of 2019 With SLP (C) No. 14176-77 of 2016 With SLP (C) No. 27834 of 2017 And with SLP (C) No 1573-74 of 2021 Signature Not Verified Digitally signed by Sanjay Kumar Date: 2023.09.01 17:26:30 IST Reason: 1  JUDGMENT Dr Dhananjaya Y Chandrachud, CJI Table of Contents A. The reference to the three Judge Bench 3 B. Statutory conferment of legitimacy 6 C. Rights in or to the property of parents 14 D. Issues in the reference 16 E. Submissions: 17 F. Joint Hindu family and coparcenary under Mitakshara 23 G. Hindu Succession Act 1956 27 H. Property of the Parents 39 I. Legitimacy and Coparcenary 46 J. The referring judgment revisited: 51 K. Conclusion 55 2  PART A A. The reference to the three Judge Bench 1. A child born to parents whose marriage is null and void under Section 11 of the Hindu Marriage Act 19551 is declared to “be legitimate” by Section 16 (1) if a child “of such marriage... would have been legitimate if the marriage had been valid.” Likewise, where a decree of nullity has been granted under Section 12 in respect of a voidable marriage, a child “begotten or conceived before the decree is made” is “deemed to be their legitimate child” if such a child would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of being annulled2. Section 16(3) enunciates that a child of a marriage that is null or void or which is annulled by a decree of nullity shall not have “any rights in or to the property of any person, other than the parents” where but for the enactment of the legislation such a child would be incapable of possessing or acquiring any such rights “by reason of his not being the legitimate child of his parents”. 2. Several decisions of this Court have considered the nature of the property rights conferred on children of parents whose marriage is either void or in respect of which a decree of nullity has been passed under Section 12. In Jinia Keotin v Kumar Sitaram Manjhi3, a two judge Bench held that merely because the children born out of a void and illegal marriage have been specifically safeguarded under Section 16, they ought not to be treated on par with children born from a lawful 1 The Hindu Marriage Act 1955 (HMA) 2 Section 16(2) of HMA 3 (2003) 1 SCC 730 3  PART A marriage for the purpose of inheritance of the ancestral property of the parents4. This Court held that in view of the express mandate of the legislature in Section 16(3), a child born from a void marriage or a voidable marriage in respect of which a decree of nullity has been passed would have no right to inheritance in respect of ancestral or coparcenary property. The decision in Jinia Keotin was followed by two judge benches in Neelamma v Sarojamma5 and later in Bharatha Matha v R Vijaya Renganathan6. After adverting to the two earlier decisions, this Court held that “a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties.”7 3. The correctness of the decisions in Jinia Keotin, Neelamma, and Bharatha Matha has been doubted by a two judge Bench in Revanasiddappa v Mallikarjun8. In its order referring the correctness of the earlier decisions to a larger bench, the Court has premised its doubt on the following basis: (i) Section 16(3) does not qualify the expression ‘property’ either with ‘ancestral or self-acquired’ property. It sets out an express mandate that such children are only entitled to the property of their parents and not of any other relations; (ii) Once children born from a void marriage (or a voidable marriage which has been declared to be nullity) are declared to be legitimate by sub- sections (1) and (2) of Section 16, they cannot be discriminated against 4 At page 732, para 2 5 (2006) 9 SCC 612 6 (2010) 11 SCC 483 7 At page 513, para 29 8 (2011) 11 SCC 1 4  PART A and will be on par with other legitimate children for the purpose of all the rights in the property of their parents, both self-acquired and ancestral9; (iii) Section 16 was amended by Act 68 of 1976. As a consequence of the amendment, the common law view that children of a marriage which is void or voidable ‘are illegitimate’ ‘ipso jure’ has to change completely10. The law has a socially beneficial purpose of removing the stigma of illegitimacy faced by children of such marriages, since the children themselves are innocent; (iv) The benefit of Section 16 (3) is available only when there is a marriage but the marriage is either void or voidable in view of the provisions of the legislation; (v) In the case of joint family property, children born from a void or voidable marriage will only be entitled to a share in their parents’ property but not in their own right: “38…Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self- acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.” (vi) While the relationship between the parents may not be sanctioned by law, the birth of a child in such a relationship has to be viewed 9 At para 29 page 9 10 At para 36 page 10 5  PART B independently of such relationship. The interpretation of Section 16(3) must be based on the constitutional values of equality of status and opportunity as well as individual dignity; (vii) A child born in such a relationship is innocent and is entitled to all the rights which are given to other children born in a valid marriage subject to the limitation that the right is confined to the property of the parents; and (viii) Section 16(3) as amended does not impose any restriction on the property rights of the children born of a void or voidable marriage except limiting it to the property of their parents. Hence, such children will have a right to whatever becomes the property of their parents, whether self- acquired or ancestral. Thus, the present reference arises before this three judge Bench. B. Statutory conferment of legitimacy 4. Section 5 of the HMA 1955 specifies, as the marginal notes indicates, ‘Conditions for a Hindu Marriage’11. 11 5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. 6  PART B 5. Section 11 stipulates that a marriage solemnised after the commencement of the Act shall be null and void and be so declared by a decree of nullity if (i) either party has a spouse living at the time of the marriage; (ii) parties are within the degrees of prohibited relationship except where a custom or usage governing them permits of a marriage; and (iii) parties are sapinda of each other, unless a custom or usage governing them permits of a marriage.12 6. Section 12 provides for the circumstances in which a marriage shall be voidable and may be annulled by a decree of nullity.13 7. Section 16 as it was originally enacted provided as follows: “16. Legitimacy of children of void and voidable marriages.—Where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12 any child begotten or conceived before the 12 11. Void marriages.- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i),(iv) and (v) of section 5. 13 12. Voidable marriages. — (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely— (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage— (a) on the ground specified in clause (c) of sub-section (1), shall be entertained if— (i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied— (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of thisAct within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by thepetitioner of the existence of the said ground.” 7  PART B decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity: Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.” 8. While Section 16, as originally enacted, protected the legitimacy of children of void and voidable marriages, its applicability was conditioned by four requirements namely: (i) The existence of a marriage; (ii) The marriage should be void under Section 11 or voidable under Section 12; (iii) There must be a decree annulling the marriage under Section 11 or Section 12; and (iv) The child should have been begotten or conceived before the decree was made. 9. The manner in which Section 16 was drafted gave rise to two consequences: firstly, the status of legitimacy granted to a child born from a void or voidable marriage was conditional upon the marriage being annulled by a decree of annulment. Absent a decree of annulment, the child would continue to be ‘illegitimate’. If the parties had not moved a court and obtained a decree, the 8  PART B protection under Section 16 was not available. Secondly, children born from void or voidable marriages were artificially divided into two groups, those born of a marriage performed prior to the enactment of the legislation and those born after its enactment. 10. The anomalies in the erstwhile provisions of Section 16 were succinctly summarised in the judgment of this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v K Devi14. The Court noted: “58. In spite of the foresightedness of the legislators, the intention of Parliament could not be fully reflected in the Act which unfortunately suffered at the hands of persons who drafted the Bill and the various provisions contained therein. The results were startling. Since the Rule of Legitimacy was made dependent upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case, if the parties did not approach the court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought.” 11. The Fifty-ninth Report of the Law Commission of India (March 1974) elaborated upon the status of children born of a void marriage. Paragraph 2.36 of the Report elaborated that there were four possible premises to adopt, which were thus: 14 (1996) 4 SCC 76 9  PART B “2.36. …With reference to the status of children born of a void marriage, theoretically, four principal views are possible:- (i) One view is that such children must be regarded as illegitimate, because a void marriage has, in law, no existence, and the children of such a marriage can only be regarded as filius nullius; (ii) The second view is that they should be entitled to succeed to their parents, as if they were legitimate, provided that the parents had contracted the marriage bona fide and without knowledge of any impediment; (iii) According to the third view, they should, in all cases, be entitled to succeed to their parents as if they were legitimate; (iv) There could be a fourth view, namely, that they must be entitled to succeed to other relations in all cases.” The Law Commission noted that the legislature had adopted the third view. The report noted: “The Hindu Marriage Act, however, has already adopted the third view it would be a retrograde step if it now reverts to the second view. That apart, the third view is absolutely more fair to the innocent off- spring of the marriage, and more in harmony with modern social notions. We are, therefore, of the opinion that there is no justification for reverting to the second view.” Section 16 was amended by Act 68 of 1976. As amended, Section 16 provides as follows: “16. Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act 10  PART B and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.” 12. In Kalliani Amma (supra), a two judge Bench held that Section 16 as it was originally enacted ‘discriminated between two groups of illegitimate children in the matter of conferment of status of legitimacy’ and was hence violative of Article 14. The Court noted that in its earlier form, Section 16 was linked with Sections 11 and 12. While holding that the substituted Section 16 is constitutional, the Court analysed the impact of the non- obstante provision in sub-section 1. The Court held: “78. The words “notwithstanding that a marriage is null and void under Section 11” employed in Section 16(1) indicate undoubtedly the following: (a) Section 16(1) stands delinked from Section 11. (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. 11  PART B (c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended. (d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment. (e) Section 16(1) now stands on its own strength and operates independently of other sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy. Section 16, in its present form, is, therefore, not ultra vires the Constitution.” Section 16 was held to be intra vires. The Court held that Section 16 enacts a legal fiction: by a rule of ‘fictio juris’ the legislature has provided that children, though “illegitimate”, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. Interpreting the legal fiction in Section 16, the Court in Kalliani Amma observed that “illegitimate children, for all practical purposes, including succession to the property of their parents have to be treated as legitimate”. However, “they cannot …succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents”: “82. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.” 12  PART B 13. Section 2 of the HMA 1955 contains provisions for the application of the Act15. Under clause (a) to the Explanation, where both the parents of a child are Hindus, Buddhists, Jainas or Sikhs ‘by religion’, the child, whether legitimate or illegitimate, would also be a Hindu, Buddhist, Jain or Sikh, as the case may be. Under clause (b) where one of the parents professes any of the four religions, the child would be regarded as Hindu, Buddhist, Jain or Sikh, whether the child is legitimate or illegitimate. Clauses (a) and (b) of the Explanation indicate that the legitimacy of a child, one or both of whose parents profess Hinduism, Buddhism, Jainism or Sikhism, is not relevant to the applicability of the Act to the child. 14. Sub-section (1) of Section 16 provides a declaration of legitimacy (“shall be legitimate”) to a child born of a void marriage, while sub-section (2) contains a deeming consequence of the legitimacy of a child (‘shall be deemed to be their 15 2. Application of Act - (1) This Act applies (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation. - The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be: (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. (2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. 13  PART C legitimate child”) born of a voidable marriage in the situations envisaged in the respective provisions. Sub-section (1) governs a situation where a marriage is null and void under Section 11. Sub-section (2) deals with a situation where a decree of nullity is granted in respect of a voidable marriage under Section 12. Sub-section (1) declares that a child born from a marriage that is void under Section 11 “shall be legitimate” if such a child would have been legitimate if the marriage had been valid. The declaration of legitimacy under sub-section (1) operates whether the child is born before or after the commencement of Act 68 of 1976 which substituted the provisions of Section 16 and whether or not (i) a decree of nullity was granted in respect of a marriage; and (ii) the marriage was held to be void otherwise than on a petition under the enactment. 15. In contrast to sub-section (1), sub-section (2) embodies a deeming consequence of legitimacy, contingent on a decree of nullity under Section 12 where the child is “begotten or conceived” before the decree is made, if the child would have been the legitimate child of the parties to the marriage if it was dissolved instead of being annulled on the date of the decree. Once the conditions in sub-sections (1) and (2) are met, both the provisions essentially protect the legitimacy of the child. C. Rights in or to the property of parents 16. Sub-section (3) of Section 16 commences with a non-obstante provision (“nothing contained in sub-section (1) or sub-section (2)”). Parliament while enacting sub-section (3) intends to ensure that the legislative conferment of 14  PART C legitimacy will not confer upon such a child born from a void or voidable marriage as the case may be, “any rights in or to the property of any person other than the parents” where, but for the passing of the legislation, the child would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate child of the parents. There are two crucial expressions in sub-section (3): the first is “any rights in or to the property of any person other than the parents”; and the second is “where but for the passing of this Act such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents”. Sub-section (3), in other words, circumscribes the consequence of the legislative protection of the legitimacy of the child in relation to the conferment of rights in property. But for sub-section (3), the conferment of legitimacy on a child from a void or voidable marriage would have placed the child, for all intents and purposes, at par with a legitimate child in matters relating to property. The frame of sub-section (3), however, indicates that the conferment of legitimacy will not confer upon the child rights in or to the property of a person other than the parents. Sub-section (3) implicitly recognizes that the child conferred with legitimacy by virtue of the provisions of sub-sections (1) and (2) would be entitled to rights in or to the property of the parents of the child. But the provision equally indicates that the conferment of legitimacy will not operate to confer rights in or to the property of persons who are not the parents of the child. This stipulation is, however, conditioned by the last part of sub-section (3) which provides that such a child would not have rights in or to the property of a person who is not a parent where but for the passing of the Act the child would have been incapable of possessing or acquiring such rights by reason of not being the legitimate child. This 15  PART D last part of sub-section (3), takes us back to the position as it stood before the passing of the Act. If, but for the enactment of the provision the child would not have been capable of possessing or acquiring rights over the property of any person other than the parents by virtue of the ‘illegitimacy’, the child will not have rights to or in the property of a third party (other than the parents). By its plain terms, Section 16(3) indicates that Parliament, while conferring legitimacy on a child born from a void or voidable marriage, confined the rights of the child to or in the property of the parents and not a party other than the parents. D. Issues in the reference 17. The reference essentially raises the following issue: whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents. The questions that arise before us are - first, whether the legislative intent is to confer legitimacy on a child covered by Section 16 in a manner that makes them coparceners, and thus entitled to initiate or get a share in the partition - actual or notional; second, at what point does a specific property transition into becoming the property of the parent. For, it is solely within such property that children endowed with legislative legitimacy hold entitlement, in accordance with Section 16(3). 16  PART E 18. The answer to the latter question would primarily depend on interpretation of the phrase ‘any rights in or to the property of any person, other than the parents’. In order to understand the ambit of the phrase, and the scope of the right, it would become necessary to analyse the provisions of the Hindu Succession Act 1956. 19. At this stage, it would be necessary to dwell on the fundamental precepts underlying the institution of the Hindu Undivided Family. Later, having dwelt on those precepts, the focus of the judgment will turn to the manner in which the HSA 1956 has (i) regulated the devolution of interest in coparcenary property; (ii) prescribed general rules of succession; and (iii) stipulated principles for the distribution of property. E. Submissions 20. In the backdrop of the reference, and the legal position as stated above, we shall now avert to the submissions with respect to the interpretation of Section 16(3) and the legislative intent behind the conferment of legitimacy. The first, more expansive, formulation may be summarised as follows: i) property of the parent includes the share in the coparcenary property - once the larger coparcenary (including the father and his father, brothers, etc. is partitioned, the property must then be divided between the father and all his children, including those covered by Section 16; ii) the provision confers all the connotations of legitimacy on the children - including coparcenary rights in the property of the father. 17  PART E On the other hand, according to the second formulation i) the property in the hands of the father after the partition from the larger coparcenary, is still coparcenary property belonging to the father as well as the children (who are per se considered legitimate); as such, it is not the ‘property of the parent’ as per Section 16(3), HMA and thus, the children under Section 16(3), have no right in it; ii) the intention of the legislature was merely to erase the stigma, and not to interfere with the structure of a coparcenary which does not include the children covered by Section 16; and iii) thus, under Section 16(3), the only right is with respect to the self-acquired/ self-earned property of the parent. The more expansive interpretation is sought to be substantiated on the basis of the following formulations: a. Children cloaked with legitimacy under Section 16(3) of the HSA 1956 are to be considered legitimate for the purpose of partition within the branch of the father. They cannot claim partition in the larger coparcenary, but once the larger coparcenary is partitioned- notionally or actually, and the property comes in the hands of the father, all his children – legitimate per se or legitimate by reason of S.16(3), have the same right in partition of this property in the hands of the father. In other words, the only difference between a legitimate child and a child conferred with legitimacy under Section 16(3) is that after the death of the father, the latter cannot claim partition in the larger coparcenary, unlike the children who are per se legitimate. This limitation on their right ends once the father’s share in the larger coparcenary is determined. In the share of the father- once determined and separated from 18  PART E the larger coparcenary, they have the same rights as the children who are legitimate16. b. The purpose of the Amendment is not just to eliminate the stigma experienced by the children of void or voidable marriages, but to treat all legitimate children alike. It is the logical corollary of the legal fiction, which cannot be overlooked. Once a legal fiction is created, as has been created by Section 16(3), all inevitable corollaries thereof, including rights in the coparcenary property are also assumed17. c. Section 16(3) does not qualify the word “property” with ancestral/coparcenary or separate/self-acquired. Therefore, inserting such a qualification to exclude the coparcenary property of the parent would be legislation by the court18. To deny the right to the property of the parents, including the coparcenary property, to such children born out of a void or voidable marriage, is unduly harsh19. d. The legislative intent of Act 68 of 1976 is to treat all legitimate children equally, as coparceners20. Once the children born out of void and voidable marriages have been treated as legitimate, there can be no discrimination between them and the other legitimate children born out of lawful marriages.21 16 Written submissions on behalf of appellant in Revanasiddappa & Anr. vs. Mallikarjun & Ors. by Kiran Suri, Sr. Advocate, page 3-4 17 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna Halde by Mr. Sudhanshu Choudhari, page 2, para 3 18 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna Halde by Mr. Sudhanshu Choudhari, page 7, para 2 19 Written note submitted on behalf of the appellants in Revanasiddappa vs Mallikarjun by Dr. Ravindra Chingale, page 2 20 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna Halde by Mr. Sudhanshu Choudhari, page 7, para 3 21 Brief Notes of Arguments in Rejoinder on Behalf of Respondent No.4 in Mankarnabai vs Niranjan, by Mr. AIS Cheema, Sr. Advocate, page 8. 19  PART E e. Section 2 of the HSA 1956 makes the Act, including S. 6, which deals with coparcenary property, applicable to the children born out of void/voidable marriages. Section 10 Rule 1 of the Hindu Succession Act does not distinguish between heirs born out of void or voidable marriages and those born out of a legal marriage. Class I heirs are similarly not distinguished on the basis of legitimacy under the Act. Impliedly, the law overall, for all purposes including notional and actual partition does not intend different treatment among legitimate children, for all purposes, including the rights in and to the coparcenary property of the parents. The child conferred with legitimacy need not be a coparcener in order to be entitled to such a right.22 f. The latter part of Section 16(3) states- “where but for the passing of this act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents”. Section 4 gives an overriding effect to the provisions of the Act in matters specifically covered thereunder. The Act does not define a “coparcenary”. Therefore, the position of law prior to the enactment of the Hindu Succession Act applies with respect to “coparcenary”. Under the law, as it stood then, children born from the same male ancestor were all considered coparceners, regardless of legitimacy.23 g. Limited reading of S.16(3) violates the property rights of the children born out of void or voidable marriages under Article 300A of the Constitution of India24. 22 Written submissions of Mr. Nikhil Majithia, in Sri. Eshwarachari vs Smt. Sarojamma, page 4. 23 Written submissions of Mr. Nikhil Majithia, in Sri. Eshwarachari vs Smt. Sarojamma, page 4-5. 24 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna Halde by Mr. Sudhanshu Choudhari, page 8 20  PART E The above, interpretation is questioned on the basis of the following formulations: a. There is a difference between conferring legitimacy on a child and elevating them to the status of a coparcener. While Section 16 of the HMA 1955 grants legitimacy, Section 16(3) clarifies the extent of inheritance rights.25 This distinction becomes clear through the decision in Jinia Keotin, where the court held that children covered by Section 16(3) have rights limited to their parents' property.26 b. Article 14 of the Constitution of India allows reasonable classification with an intelligible differentia, which justifies treating children from various marriages differently due to distinct legal status. This classification safeguards the interests of both legitimate offspring and innocent co-parceners, ensuring a balanced approach.27 c. The legislative intent behind Section 16 is to bestow legitimacy and inheritance rights upon children from void and voidable marriages. However, these rights are intentionally confined to parental property, excluding coparcenary or ancestral property, as evidenced by the legislative history and objectives.28 d. The Legislature has intervened multiple times to address inheritance rights of legitimised children: 25 Submitted by Shri K. Radhakrishnan, Senior Advocate on behalf of the Respondents in Revanasiddappa and Anr v. Mallikarjun and Ors, C.A No. 2844 of 2011 26 Submitted by Mr. PB Suresh on behalf of the Respondents in Baby @ Rohini (Since Deceased) through her legal heirs & Ors v. Kamalam Kumaresan and Ors, SLP © 14176-14177 of 2016 27 Submitted by Shri K. Radhakrishnan, Senior Advocate on behalf of the Respondents in Revanasiddappa and Anr v. Mallikarjun and Ors, C.A No. 2844 of 2011 28 Submitted by Mrs V. Mohana, Senior Advocate on behalf of the Respondents in Baby @ Rohini (Since Deceased) through her legal heirs & Ors v. Kamalam Kumaresan and Ors, SLP © 14176-14177 of 2016 21  PART E i. Initial HMA Provision (Section 16): The enactment of the Hindu Marriage Act (HMA) included Section 16, establishing children from void or voidable marriages as legitimate children their parents. ii. 1976 Amendment to Section 16: In 1976, Section 16 of the HMA was amended to rectify issues causing discrimination. iii. HSA Amendment (Section 6(3)): Section 6 of the Hindu Succession Act (HSA) was amended, introducing Section 6(3) that enforces notional partition of parents' undivided interest in copar

Kallyani vs Narayanan And Ors on 27 February, 1980

Court 1

[Cites 11, Cited by 0] Supreme Court of India Kallyani vs Narayanan And Ors on 27 February, 1980 Equivalent citations: 1980 AIR 1173, 1980 SCC (2)1130 Author: V.D. Tulzapurkar Bench: V.D. Tulzapurkar, D.A. Desai, A.P. Sen PETITIONER: KALLYANI Vs. RESPONDENT: NARAYANAN AND ORS. DATE OF JUDGMENT27/02/1980 BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. DESAI, D.A. SEN, A.P. (J) CITATION: 1980 AIR 1173 1980 SCC (2)1130 CITATOR INFO : R 1983 SC 114 (31) ACT: Marumakkatayam Law-Property ancestral and of joint family-Will executed by a testator would be ineffective as he had no power or authority to dispose of by will ancestral properties in his hand. Partition meaning of-Hindu Law-Effect of partition under Hindu Mitakshara Law-A Hindu father has the power to partition the joint family property which includes the disruption of joint family status. HEADNOTE: One Karappan son of Chulliparambil Krishnan had two wives Naini and Ponni. Through his first wife Naini he had four sons-Krishnan (D1), Shankaran (D2), Raman and the husband of plaintiff appellant Kallyani who died after him and Madhavan who predeceased him and husband of D3 and father of D4, D5 and D6-and four daughters. He had one son by name Kesavan and two daughters, through his second wife Ponni. One Valli was the second wife of his father and she had three daughters. Karappan and his family are Ezhavas and in the matter of inheritance, succession and on the question of personal law they were governed essentially by customary law and in the absence of any specific custom, they are governed by the Hindu Mitakshara law. Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, Ex. P1 dated January 25, 1910. In this deed after narrating his near relations including his two wives male and female children born to each and his father's second wife and her children, he described the manner in which the A, B and C scheduled properties should be taken by them, after his death. In February 1910 Karappan died. Raman, the husband of the plaintiff appellant, the third son of the first wife died on February 20, 1936. Plaintiff widow of Raman sued for partition and separate possession of her undivided 1/4 share in properties set out in A, B and C schedules to the plaint. The Trial Court held that Ext. P1 had the effect of constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint family property and they did not hold as tenants-in-common but as joint tenants and were governed by survivorship in the matter of succession. The contention that even in such a situation the widow would be entitled to her husband's share because of a customary right was negatived. In respect of B & C schedule properties, it was held that they belonged exclusively to defendant 1 and his wife and plaintiff cannot claim a share in them. The High Court affirmed the Trial Court's judgment and decree treating Ex. P1 as family arrangement and hence the plaintiff's appeal by certificate. Allowing the appeal, the Court ^ HELD: 1. Ext. P1, styled as a will by the deceased Karappan is not effective as a will. If by Ext. P-1 deceased Karappan attempted to make a will of the ancestral property in his hand in which his sons had acquired 1131 interest by birth, obviously he had no power to make a will in respect of such property. Ex. P1 does not purport to devise by will the undivided share of testator Karappan in the joint family property, but he attempts to dispose of by a will all the properties in which his sons had interest by birth. He had not claimed any share in the property but claimed a right to deal with ancestral property as he desired. In Ex. P1 itself he describes properties set out in schedules A and B annexed to Ex. P1 as his tarvad properties. [1139B-C] 2. Expression "tarvad" in Marumakkattayam law is the name given to the joint family consisting of males and females, all descendants in the female line from a common ancestress. A tarvad may consist of two or more branches known as 'Thavazhies', each tavazhi or branch consisting of one of the female members of the tarvad and her descendants in the female line. Thus when property is described as tarvad property in a broad sense it is admitted to be joint family. This also becomes clear from the recital in Ex. P.1 that properties set out in A and B schedules were tarvad properties and property in C schedule were claimed by him as his self-acquired properties and they were to be kept joint and were not sought to be dealt with by Ex. P1. Therefore, to the extent Ex. P1 purports to dispose of an ancestral properties by will it would be ineffective as a will as Karappan had no power or authority to dispose of by will ancestral properties in his hand. [1139C-G] 3. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint family status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense. [1140A-E] 4. A Hindu father joint with his sons governed by Mitakshara law has the power to partition the joint family property at any moment during his life time. The consent of the sons is not necessary for the exercise of that power. This power comprehends the power to disrupt joint family status. [1141H, 1142A] Kandaswamy v. Doraiswamy Iyer, [1880] ILR 2 Mad. 317; approved. 5. Even though the father has a right to make a partition of the joint family property in his hand, he has no right to make a partition by will of joint family property amongst various members of the family except, of course, with their consent. In the instant case, if by Ex. P1 Karappan attempted to make 1132 a partition of the property by his will, Ex. P1 would be ineffective as a partition. By Ex. P1 Karappan does not divide his property by metes and bounds vesting the share of each in present in each of his sons. [1142B-C] Ex. P1 would not be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed as it was to be effective from a future date and that future uncertain even was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will. Further, there was no effective partition by metes and bounds by Ex. P1 though the shares of sons were specified as also the provision for female members was made. If intention of the testator is to be gathered from the language of Ex. P1 Karappan intended it to be a will not a partition in presenti. Therefore, Ex. P1 cannot be effective as a deed of partition in the broader sense i.e., partition by metes and bounds. [1142E-G] Brijraj Singh v. Sheodan Singh, 10 I.A. 161; referred. 6. An ineffective will sometimes though not always, if otherwise consented by all adult members, may be effective as a family arrangement but as the father of a joint Hindu family has no power to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he had but which he has failed to effectively exercise, it cannot in the absence of consent of all male members bind them as a family arrangement. [1143D-F] 7. A family management must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family and secondly the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or the place and security of the family. In this case, both these ingredients are absent. [1143F-G] H. N. Aryamurthy & Anr. v. N. D. Subbaraya Setty (dead) through I.rs and Ors., [1972] 4 S.C.C. 1; applied. Brijraj Singh v. Sheodan Singh, 40 I.A. 161; Lakshmichand v. Anandi, 53 I.A. 123; discussed. 8. To be effective as a family arrangement the deed must be one intended to operate from the date of the execution, and it must be assented to and acquiesced in and acted upon by all affected party. In the instant case, Ex. P1 in term reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death. Moreover, at the time of the execution of Ex. P.1 there is no evidence as to who were the adult members of the family other than Karappan who consented to the alleged family arrangement. Assuming that Ex. P1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to share, to the terms of Ex. P.1 when it was executed, the absence of any dispute at or about the time Ex. P.1 was executed amongst the members of the family sought to be settled by Ex. P.1 and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that Ex. P.1 would furnish evidence of family arrangement. It is doubtful whether a Hindu father can 1133 impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death. Therefore Ex. P-1 does not furnish evidence of family arrangement. [1444E-H, 1145A-C] 9. In Hindu Law qua joint family and joint family property the word partition' is understood in a special sense. If severance of joint family status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition. To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family What form such intimation, indication or representation of members should take would depend upon the circumstances of each case. A further requirement is that the unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration: This intention to separate may be manifest in diverse ways. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration. [1145E-H, 1146A] Raghavan v. Chenchamma, A.I.R. 1964 S.C. 136; referred to. 10. Partition can be partial qua person and property but a partition which follows disruption of joint family status will be amongst those who are entitled to a share on partition. Till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property. It is liable to increase and decrease depending upon the addition to the number or departure of a male member and inheritance by survivorship. But once a disruption of joint family status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants-in-common. [1146E-G] In the instant case, on death of Karappan, Kesavan the son of the second wife obtained a physical partition of the property took his owon share and left the family, there was first a disruption of the joint family status. Looking to the terms of Ex. P-1 there was a disruption of joint family status as the share of each son was specified and vested, liabilities and obligations towards the family members were defined and imbalance out of unequal division was corrected. This certainly has the effect of bringing about disruption of joint family status and even if there was no partition by metes and bounds and the coparceners continued to remain under the same roof or enjoyed the property without division by metes and bounds, they did not hold as joint tenants unless re-union is pleaded and proved. [1146G-H, 1147A] 11. There is no presumption when one coparcener separates from other that the latter remained united. An agreement amongst them must be proved either to remain united or to re-unite. A Hindu family is presumed to be joint unless the contrary is proved but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or they remained united. Except that four sons by Naini remained 1134 under one roof and were joint in food laboured together there is no evidence that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be created by agreement. And if Karappan specified even the share of each of his sons by Naini in Ex. P-1, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four sons constituted a coparcenary. Ex. P-1, could not support such a conclusion and the High Court was in error in spelling out such conclusion from Ex. P-1 overlooking its specific direction of a specified share of each of his sons and liability to pay owelty. [1148B-F] Palani Ammal v. Muthuvenkatachala Mariagon, 52 I.A. 83; Bhagwan Dayal v. Mrs. Reoti Devi, [1962] 3 S.C.R. 440; Balabax v. Rukhmabai ILR 3C IA. 130; Sengoda v. Muthu, I.L.R. 47 Mad. 567; referred to. Bhagwati Prasad Shah and Ors. v. Pulhin Rameshwari Juer and Anr., [1951] S.C.R. 603, followed. 12. Partition branchwise is unknown to Mitakshara Law. In the instant case, if five sons of Karappan each constituted a branch obviously after one son as a branch separated unless a reunion is pleaded, other four cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together. [1148F, 1149E] Balakishan Das and Ors. v. Ram Narain Sahu and Ors., 30 I.A. 139; bhagwan Dayal v. Mrs. Reoti Bai, [1962] 3 S.C.R. 440; Boddu Venkatakrishna Rao and Ors. v. Boddu Satyavathi and Ors., [1968] 2 S.C.R. 395; referred to. 13. Once disruption of joint family status takes place, it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties. [1150C] 14. There is no concept known to Hindu Law that there would be a branch of a family wife-wise. [1150D] In this case Ex. P-1 itself specifies the share of each member separately. Therefore, tavazhi wife-wise stated in Ex. P-1 has to be ignored. Ex P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. The plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4th share in 'A' schedule properties which the plaintiff would be entitled. [1150D, E-F, 1151C] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2544 of 1969. From the Judgment and Decree dated 21-12-1965 of the Kerala High Court in A.S. No. 403 of 1961. 1135 P. Govindan Nair, C. S. Ananthakrishna Iyer, S. Balakrishnan and Mrs. Baby Krishnan, for the Appellant. T. S. Krishnamurthy Iyer and Mrs. S. Gopalakrishnan for the Respondents. E. M. S. Anam and P. N. Pura for Respondent No. 9. The Judgment of the Court was delivered by DESAI, J.-On a certificate granted by the Full Bench of the High Court of Kerala, original plaintiff, a Hindu widow who was seeking partition of a share to which her deceased husband was entitled, having lost in both the Courts, has filed this appeal. The High Court granted the certificate under Article 133(1)(c) of the Constitution as in its opinion the following substantial questions of law arise from the judgment rendered by it: 1. Whether under the Mitakshara Law the parties are governed by customary law, and, in the absence of any rule of customary law on the point in question, by Mitakshara Law property can be divided, albeit by a family settlement, between two artificial units of a joint family, one comprising the sons of a father by his first wife, the first wife and his step mother, and the other comprising his son by his second wife and the second wife so as to constitute each unit into a coparcenary with rights of survivorship between its members; and 2. Whether the use of the word 'tavazhi' (in any case a misnomer) in describing the two units in the will, Ext. P-1 left by the father and held to be the basis of the family settlement, is sufficient in the circumstances, to establish an intention that the members of each unit were to take the property as coparceners and not as tenants-in- common, the grouping into units being only for convenient enjoyment? The factual background from which, according to the High Court the aforementioned two questions emerge for consideration of this Court may be stated. One Karappan, son of Chulliparambil Krishnan, had two wives Nani and Ponni. Defendant 1 Krishnan, defendant 2 Shankaran, one Raman, husband of plaintiff Kallyani, and deceased Madhavan, husband of defendant 3 and father of defendants 4, 5 and 6, were his sons by first wife Nani, and one Kesavan was his son by the second wife Ponni. He had six daughters, four by the first wife and 1136 two by the second wife. One Valli was the second wife of his father and she had three daughters. Karappan and his family are Ezhavas and in the matter of inheritance, succession and on the question of personal law they were governed essentially by customary law and in the absence of any specific custom they are governed by the Hindu Mitakshara Law. Karappan executed a registered deed variously described as a will or a deed of partition or evidencing family arrangement, Ext. P-1 dated January 25, 1910, the salient features of which may be reproduced. After narrating his near relations including his two wives, male and female children born to each and his father's second wife and her children, the following recitals are worthy of note: "There are as belonging to me now properties to the value of Rs. 8000/- mentioned in the sub-joined schedules A and B as my tarwad properties and also my self-acquired properties and properties to the value of Rs. 200/- of the C schedule which is set apart as common properties". "Since I am seriously ill and in order that there may not arise any dispute in future in respect of properties belonging to me, I have resolved today the following with regard to the course of enjoyment of the said properties after my death". "I myself shall have the full powers of disposition over all the properties described in A, B and C schedules during my life time and after my death, out of the properties to the value of Rs. 8000/-, Rs. 1300/- worth of properties shall vest in each of my male issues, Rs. 300/- in my first wife, Rs. 1000/- in my second wife since she is sick and Rs. 200/- in my father's second wife". "On the above basis I have set apart to be vested in them after my death Rs. 5200/- worth of properties to the first tavazhi male issues, Rs. 300/- to my first wife and Rs. 200/- to my father's wife, altogether properties worth Rs. 5700/- scheduled to A schedule; Rs. 1300/- worth of properties comprising items 1 to 4 and 6 to 12 of B schedule to the second tavazhi, inclusive of an owelty of Rs. 227 as. 8 ps. 5 decided to be paid by the first tavazhi to the second tavazhi, and item 5 of B schedule worth Rs. 1000/- to my second wife". "And that 1/5th share of assessment of C schedule property shall be paid annually by Kesavan in the Amsom and receipt obtained". 1137 "It is also resolved that each tavazhi shall meet the travelling expenses of female issues and maintain properly the women who return on the death of their husbands, that both tavazhis shall equally maintain the children of my aunt and my sister and that since C schedule properties are partitioned now, all my male issues shall have equal rights over the property after my death". This is a registered deed. Soon thereafter, in February 1910, Karappan died. Raman, the husband of the plaintiff, the third son of the first wife, died on February 20, 1936. Plaintiff widow of Raman sued for partition and separate possession of her undivided 1/4 share in properties set out in A, B and C schedules to the plaint. It is necessary to clarify here that there were A, B and C schedules annexed to Ext. P-1 which, for clarity of understanding, would be referred to as the Will of the deceased though it would be presently pointed out that it is ineffective as a Will. Schedules A and B to Ext. P-1 specify certain properties. Properties set out in schedule B to Ext. P-1 except item No. 5 were awarded to Kesavan, the son by the second wife, and item No. 5 to the second wife. Properties in schedule A to Ext. P-1 subject to adjustment pointed out in Ext. P-1 were given to the first wife and her sons. Properties set out in schedule C to Ext. P-1 were kept undivided and were the subject-matter of another suit filed by the present plaintiff which has ended in a decree in her favour and which decree has become final. On the other hand, properties set out in schedule A to the plaint are the very properties which are shown in schedule A to Ext. P-1. In respect of properties set out in the schedule B to the plaint it is alleged that they were acquired by the joint labour of defendants 1 and 2, deceased Raman and Madhavan, and it is equally true of properties set out in schedule C to the plaint but they were separately set out because they stood in the name of the wife of defendant 1. Plaintiff, however, claimed 1/4 of her share in all the properties set out in schedules A, B and C to the plaint. The suit was principally resisted by defendant 1 as per his written statement dated July 12, 1958. It was in terms contended that the properties dealt with by Ext. P-1 were the joint family properties of Karappan and his sons and that Karappan was not entitled to and had no authority in law to execute a Will in respect of the properties. There is an averment which may be extracted. It reads: "Even though Karappan has no right to execute the Will accordingly, what Karappan actually did was that he parti- 1138 tioned the properties between the two tavazhies in order to avoid future quarrel between the two wives and their children. As a father he has got the right to partition his properties according to the custom of the community and according to the Mitakshara law, that Will would be valid as a deed of partition and accordingly accepting the same later, properties had been taken possession by the two tavazhies separately. Even though the execution of such a deed was against procedure, it was in order to honour the wishes of deceased Karappan that the same was acted upon". In respect of plaint B schedule properties, the contention was that it was acquired by the private income of the first defendant and that schedule 'C' properties belonged to the wife of defendant 1 and that plaintiff has no share in it. It was also contended that as the four sons by the first wife of Karappan constituted a tavazhi, it has all the incidents of a coparcenary and, therefore, succession was governed by survivorship and hence the plaintiff has no share in schedule A properties. The trial Court framed as many as 12 issues. The important findings of the Trial Court are that Ext. P-1 is neither effective as a Will nor as a deed of partition. Without specifically so saying that Ext. P-1 would be effective as a family arrangement, it was held that Ext. P-1 had the effect of constituting a coparcenary of four brothers, sons of first wife of Karappan and that it was their joint family property and they did not hold as tenants-in-common but as joint tenants and were governed by survivorship in the matter of succession. The contention that even in such a situation the widow would be entitled to her share because of a customary right was negatived. In respect of B and C schedule properties it was held that they belonged exclusively to defendant 1 and his wife and plaintiff cannot claim a share in them. Consistent with these findings, the plaintiff's suit was dismissed. A Full Bench of the Kerala High Court heard the first appeal preferred by the plaintiff. The High Court substantially agreed with the findings of the trial Court and specifically held that Ext. P-1 furnished important evidence of a family arrangement accepted and acted upon by all the parties affected thereby. It was held that as family arrangement it is binding and it indicated that the division was per branches, therefore, the four sons by the first wife of Karappan divided as one branch and one son alone by the second wife separated as a different branch and as four sons by the first wife constituted a joint family, succession would be governed by survivorship and the plaintiff is not entitled to claim any share in schedule A properties. 1139 On the question of acquisition of schedule B and C properties, the finding of the trial Court was confirmed. It may be mentioned that plaintiff had filed another suit for partition of properties set out in C Schedule to Ext. P-1 and that suit was decreed in plaintiff's favour and that decree has become final. Two questions of general importance framed by the High Court are rather involved and confusing and do not pinpoint the attention on questions of law emerging from the judgment of the High Court. The first question that needs to be answered is whether Ext. P-1 styled as a Will by the deceased Karappan would be effective as a Will. If by Ext. P-1 deceased Karappan attempted to make a Will of the ancestral property in his hand in which his sons had acquired interest by birth, obviously he had no power to make a Will in respect of such property. Ext. P-1 does not purport to devise by Will the individual share of testator Karappan in the joint family property but he attempts to make a will of all the properties, ancestral and self-acquired and even to dispose of property in which his sons had interest by birth, by will. He has not claimed any share in the property but claimed a right to deal with ancestral property as he desired. In Ext. P-1 itself he describes properties set out in schedules A and B annexed to Ext. P-1 as his tarvad properties. Expression 'tarvad' in Marumakkattayam Law is the name given to the joint family consisting of males and females, all descended in the female line from a common ancestress. A tarvad may consist of two or more branches known as thavazhies; each tavazhi or branch consisting of one of the female members of the tarvad and her decendents in the female line (see Mayne's Hindu Law and Usage, 11th Edn., pp. 792-93.) Thus when property is described as tarvad property in a broad sense it is admitted to be joint family property. This also becomes clear from the recital in Ext. P-1 that properties in A and B schedules were tarvad properties and property in C schedule were claimed by him as his self-acquired properties and they were to be kept joint and were not sought to be dealt with by Ext. P-1. Therefore, to the extent Ext. P-1 purports to dispose of ancestral properties by will it would be ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral properties in his hand. And as he has not attempted to dispose of his undivided share in the ancestral properties by Ext. P-1 it is not necessary here to examine the question whether Mitakshara law as administered in Tamil Nadu and Kerala enables an undivided coparcener to dispose of his share in joint family property by will. Therefore, Ext. P-1 is not effective as a will and 1140 the respondents did not invite us to affirm their rights under Ext. P-1 as if it is a binding will. The next stage in the unfolding of the case is whether Ext. P-1 is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar & Ors. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense. There was some controversy whether a Hindu father governed by Mitakshara law has a right to partition ancestral properties without the consent of his sons. After referring to Mitakshara, I, ii, 2, Mayne in 'Hindu Law & Usage', 11th Edn. p. 547, states that a Hindu father under the Mitakshara Law can effect a partition between himself and his sons as also between his sons inter se without their consent and that not only can he partition the property acquired by himself but also the ancestral property. The relevant text may be extracted: "The father has power to effect a division not only between himself and his sons but also between the sons 1141 inter se. The power extends not only to effecting a division by metes and bounds but also to a division of status". Similarly, in Mulla's Hindu Law, 14th Edn., p. 410 (para 323), it is stated that the father of a joint family has the power to divide the family property at any moment during his life time provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise of that power. It, therefore, undoubtedly appears that Hindu father joint with his sons governed by Mitakshara law has the power to partition the joint family property at any moment during his life time. Mr. Krishnamoorty Iyer urged that even though undoubtedly a Hindu father joint with his sons and governed by Mitakshara law has the power to partition the joint family property, this power enables him to partition the property by metes and bounds but he has no power merely to disrupt the joint family status unaccompanied by division of property by metes and bounds. The limited question that needs answer in this case is whether a Hindu father joint with his sons governed by Mitakshara law has the power to disrupt the joint family status being a first step in the stage of dividing the property by metes and bounds. The wider question whether a coparcener of a coparcenary governed by Mitakshara law brings about a disruption of joint family status by definite and unequivocal indication of his intention to separate himself from the family would constitute disruption of status qua the non-separating members need not be examined. A Hindu father joint with his sons and governed by Mitakshara law in contradistinction to other manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his sons with himself as well as amongst his sons inter se without their consent and this larger power to divide the property by metes and bounds and to allocate the shares to each of his sons and to himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family status which must either precede or be simultaneously taken with partition of property by metes and bounds. This view taken in Kandaswami v. Doraiswami Ayyar; does not appear to have been departed from. Further, the text from Mayne's book extracted in the preceding paragraph shows that the weight of authority is against the proposition canvassed for by Mr. Iyer. It does, therefore, appear that a Hindu father governed by 1142 Mitakshara law has power to partition the joint family property belonging to the joint family consisting of himself and his sons and that this power comprehends the power to disrupt joint family status. The question is, has Karappan as father exercised his power to partition the joint family property by Ext. P-1 ? Even though the father has a right to make a partition of the joint family property in his hand, he has no right to make a partition by will of joint family property amongst various members of the family except, of course, if it could be made with their consent (see Brijraj Singh v. Sheodan Singh. Whether it is effective as family arrangement will be presently examined. Therefore, if by Ext. P-1 Karappan attempted to make a partition of the property by his will, Ext. P-1 would be ineffective as a partition. By Ext. P-1 Karappan does not divide his property by metes and bounds vesting the share of each in presenti in each of his sons. One thing that is not in dispute is that Karappan did not intend Ext. P-1 to be effective from the date on which it was executed. In his own words he states that he was seriously ill and as he would like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his property shall be enjoyed after his death in the manner stated in Ext. P-1. He reserved to himself the full powers of disposition over all the properties more particularly described in the various schedules annexed to Ext. P-1 during his life time and whatever directions were given in Ext. P-1 were to be effective only after his death. At two places in terms he stated that the dispositions made by Ext. P-1 were to be effective after his death. It is, therefore, inescapable that Ext. P-1 was not to be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed. It was to be effective from a future date and that future uncertain event was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will. Further, there was no effective partition by metes and bounds by Ext. P-1 though the shares of sons were specified as also the provision for female members was made. If intention of the testator is to be gathered from the language of Ext. P-1 Karappan intended it to be a will to be effective after his death. He never intended it to be a partition in presenti. Therefore, Ext. P-1 cannot be effective as a deed of partition in the broader sense, i.e. partition by metes and bounds. What then is the effective of Ext. P-1 on the joint family of which Karappan was father-cum-manager ? The respondents contend that 1143 it is a family arrangement providing for carving out branchwise (shakha per wife) separation of interest in the joint family properties and as it was unreservedly accepted by all affected thereby after the death of Karappan, it is binding on all. Appellant contends that Ext.P-1 had the effect of disrupting the joint family status and from that date members of the joint family entitled to their shares in the joint family property, held as tenants-in-common and not as joint tenant with the result that inheritance by survivorship, a special feature of a Hindu coparcenary, would be displaced by Hindu law of succession, the property going to the heirs recognised by law. Defendant 1 who contested the suit in terms stated that Ext.P-1 was not effective as a will. He than stated that Ext.P-1 purports to partition the property between the two tavazhies represented by Karappan's two wives and their respective male offspring. It may, however, be stated that nowhere in the written statement he has put forth the contention that Ext.P-1 evidences a family arrangement assented to by all affected thereby. That case appears to have been made out by the High Court for the first time and since the plaintiff has been non-suited on the finding that Ext.P-1 was a family arrangement which provided for a coparcenary of four sons of the first wife of Karappan, retaining inheritance by survivorship amongst the four members it is necessary to examine the contention whether Ext.P-1 provides for a family arrangement assented to by all concerned. An ineffective will sometimes though not always, if otherwise consented by all adult members, may be effective as a family arrangement but as the father of a joint Hindu family has no power to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he has but which he has failed to effectively exercise, cannot in the absence of consent of all male members bind them as a family arrangement. What constitutes family arrangement has been fully examined by this Court in M. N. Aryamurthy & Anr. v. M. D. Subbaraya Setty (dead) through I.r. & Ors.. Broadly stated, it is that there must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family and secondly the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or the place and security of the family. Both these ingredients appear to be absent in this case. In Brijraj Singh's case (supra) a father purported to make a will in which he recorded a partition of the joint family property amongst his three sons. He did not take a share for himself and simultan- 1144 eously gave double share to his eldest son. There were usual recitals of partition and allotment of shares and it was further stated that in anticipation of execution of the deed various sharers were put in possession of property allotted to each of them. This was done two months prior to the execution of the so-called will. The document was held ineffective as a will but on evidence it was found that all concerned had acquiesced in the arrangement evidenced by the deed and the deed was intended to operate from the date of its execution and, therefore, it evidenced a family arrangement contemporaneously made and acted upon by all the parties and hence binding. Similarly in Lakshmi Chand v. Anandi, two brothers having no male issue and constituting a joint Hindu family governed by Mitakshara, signed a document, described therein as an agreement by way of will. The document provided in effect that if either party died without male issue, his widow should take a life interest in a moiety of the whole estate and that if both the parties died without male issue, the daughters of each, or their male issue, should divide the father's share. The document was registered. A few days after its execution one brother died, and his widow was entered as owner of a moiety of the estate. Subsequently the other brother sued for a declaration that the document was null and void. Privy Council held that the document could not operate as will but that as a co-sharer in a Mitakshara joint family with the consent of all his co-sharers he could deal with the share to which he would be entitled on a partition and was binding as family arrangement. To be effective as a family arrangement the deed must be one intended to operate from the date of its execution, a feature wanting in Ext.P-1, and it must be assented to and acquiesced in and acted upon by all affected thereby. At the time of execution of Ext.P-1 there is no evidence as to who were the adult members of the family other than Karappan who consented to the alleged family arrangement. One thing, however, may be pointed out that defendant 1 gave his age as 87 years on December 29, 1959, when his evidence commenced. Presumably he must have been born in 1872. But there is no evidence about the age of other children of Karappan. The only evidence as to the consent of the male members is that after the death of Karappan all male members acted according to the wishes of Karappan as disclosed and ordained in Ext.P-1. Assuming it to be so, Ext.P-1 was to operate after the death of Karappan and not from the date of execution. The High Court after referring to Brijraj Singh's case (supra) overlooked the fact that in accepting the deed before it, the Judicial Committee was impressed by the fact that it was intended to speak from the date on which it was written and not future date, viz., 1145 death of the writer. Ext.P-1 in terms reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death. The High Court completely overlooked this material difference. Assuming that Ext.P-1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to a share, to the terms of Ext.P-1 when it was executed, the absence of any dispute at or about the time Ext.P-1 was executed amongst the members of the family sought to be settled by Ext.P-1; and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that Ext. P-1 would furnish evidence of family arrangement. We have grave doubt whether a Hindu father can impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death. Therefore, Ext.P-1 does not furnish evidence of family arrangement. Now, if Ext.P-1 cannot be effective as a deed of partition inasmuch as it did not result in division of property by metes and bounds, its effect on continued joint family status may be examined. If it disrupted joint family status by its very execution, there was thereafter no question of directing any family arrangement to be effective from a future date as per its terms and even though it may spell out a family arrangement what effect the disruption of joint family status would have on the mode of succession has to be ascertained. One thing is crystal clear that Ext. P-1 is not a deed of partition in the sense it does not purport to divide the property amongst various coparceners by metes and bounds. However, in Hindu law qua joint family and joint family property the word 'partition' is understood in a special sense. If severance of joint status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition. (see Raghavamma v. Chenchamma). To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What from such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or 1146 intimation must be to members of the joint family likely to be affected by such a declaration. Has not Ext.P-1 the effect of bringing about a disruption of joint family headed by Karappan and consisting of himself and his sons? The fact situation is that in Ext. P-1 Karappan specified the share of each of his sons, the property allotted on share being valued at Rs. 1300/-each of the four by the first wife and one by the second wife, and

Ivan Rathinam vs Milan Joseph on 28 January, 2025

Court 1

[Cites 34, Cited by 0] Supreme Court of India Ivan Rathinam vs Milan Joseph on 28 January, 2025 Author: Surya Kant Bench: Surya Kant 2025 INSC 115 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 413 OF 2025 [ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 4917 / 2018] Ivan Rathinam ….Appellant(s) versus Milan Joseph ….Respondent(s) JUDGEMENT SURYA KANT, J. Leave granted. 2. The instant appeal impugns the judgment dated 21.05.2018 passed by a Single Judge of the Kerala High Court (Ernakulam) (High Court), upholding the Family Court’s order dated 09.11.2015 reviving a maintenance petition on the following grounds: (i) paternity and legitimacy are independent concepts in law; (ii) the Civil Courts did not have jurisdiction to entertain the original suit; and (iii) since only the Signature Not Verified Family Court can determine maintenance and legitimacy, the Family Digitally signed by SATISH KUMAR YADAV Date: 2025.01.28 14:34:16 IST Reason: Court could proceed to determine paternity as incidental to the maintenance proceedings. 1|Page A. FACTS A.1 First round of litigation 3. Since the instant appeal arises out of a long-drawn saga, during which multiple rounds of litigation occurred inter-se the parties before various fora, including this Court, it is necessary to narrate the factual events before delving into the legal issues raised before us. 3.1 It is a matter of record that the Respondent’s mother married Mr. Raju Kurian on 16.04.1989. In 1991, a daughter was born from this wedlock. Subsequently, the Respondent was born on 11.06.2001. Immediately after the Respondent’s birth, Mr. Raju Kurian’s name was entered as the ‘father’ of the Respondent in the Register of Birth maintained by the Municipal Corporation of Cochin. Owing to differences between them, in 2003, the Respondent’s mother and Mr. Raju Kurian began residing separately. Shortly thereafter, they moved a joint application for divorce, which was granted by the Family Court in 2006. The Respondent’s mother then approached the Municipal Corporation of Cochin, requesting the authorities to enter the Appellant’s name in the Register of Birth, as the father of the Respondent, in place of Mr. Raju Kurian’s name. She allegedly reasoned that such a request was being made on the basis that she had been involved in an extra-marital relationship with the Appellant, due to which the Respondent was begotten. In response, the Corporation authorities expressed that they would be able to grant such a request only if directed to do so by a court of law. 2|Page 3.2 Consequently, the Respondent and his mother filed OS No. 425/2007 (Original Suit) before the First Additional Munsiff Court, Ernakulam (Munsiff Court) seeking a decree declaring the Appellant to be the Respondent’s father and a mandatory injunction directing the Appellant to submit an application to include his name as the Respondent’s father in the relevant registers. Subsequently, the Respondent and his mother also moved an application seeking a direction to the Appellant to undergo a DNA test to prove his paternity. 3.3 The Munsiff Court directed the Appellant, on 03.11.2007, to undergo the paternity test. This direction was substantiated on the ground that, considering no matrimonial relationship subsisted between the Respondent’s mother and the Appellant, the presumption under Section 112 of the Indian Evidence Act, 1872 could not be drawn. 3.4 In the same year, the Respondent filed MC No. 224/2007 (Maintenance Petition) under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) before the Family Court, Alappuzha (Family Court) claiming maintenance from the Appellant, on the ground that he was his biological father. The Respondent filed the Maintenance Petition through his mother as he was a minor at that time. It is pertinent to note that Mr. Raju Kurian was not made a party to the Original Suit or the Maintenance Petition. 3.5 In this backdrop, having been aggrieved by the Munsiff Court’s order dated 03.11.2007, the Appellant filed WP (C) No. 37165/2007 before the 3|Page  High Court. On 18.03.2008, a Single Judge of the High Court: (i) disposed of the said Writ Petition; (ii) set aside the order dated 03.11.2007; and (iii) directed the Munsiff Court to consider the matter in light of this Court’s judgment in Sharda v. Dharmpal,1 which laid down that a court could order a paternity test only if the presumption under Section 112 of the Indian Evidence Act, 1872 was displaced by proving non-access. The High Court further noted that it was well within the power of the court to direct a person to undergo a DNA test but that power could be exercised only if the applicant made out a strong prima facie case through sufficient material placed on record. In this regard, it noted that such an in-depth analysis had, however, not been conducted by the Munsiff Court. 3.6 The Appellant then filed Review Petition No. 411/2008 before the High Court, contending that the correct law was laid down in Kamti Devi v. Poshi Ram,2 wherein this Court held that the results of a genuine DNA test would be insufficient to escape the conclusiveness of Section 112 of the Indian Evidence Act, 1872, especially when the spouses had access to each other. The Review Petition came to be decided by another Single Judge of the High Court on 03.07.2008, who allowed the same and disposed of the Writ Petition while clarifying that the court cannot permit a DNA test unless, after adducing evidence, it was convinced that the 1 Sharda v. Dharmpal, (2003) 4 SCC 493. 2 Kamti Devi v. Poshi Ram, (2001) 5 SCC 311. 4|Page  relevant stakeholders—the Respondent’s mother and Mr. Raju Kurian— had no access to each other when the Respondent was begotten. 3.7 This prompted the Respondent and his mother to prefer SLP (C) No. 20951/2008 before this Court, challenging the order dated 03.07.2008. This Court, on 14.09.2009, dismissed the same stating that no grounds to interfere were made out. 3.8 Approximately a year later, on 15.10.2009, the Munsiff Court dismissed the Original Suit with costs. The Munsiff Court held that there was no need to refer the parties to a DNA test as a valid marriage subsisted between the Respondent’s mother and Mr. Raju Kurian when the Respondent was begotten. Further, it was emphasized that they had been living as spouses under the same roof, from the date of their marriage until 2003, well after the Respondent’s birth. The Munsiff Court, thus, held that since the Respondent’s mother failed to prove non-access between herself and Mr. Raju Kurian, the Respondent would be presumed to be their legitimate son. 3.9 Thereafter on 05.02.2010, in view of the Munsiff Court’s order dated 15.10.2009, the Family Court closed the Maintenance Petition. However, the court imposed a condition permitting the revival of the Maintenance Petition if the Respondent or his mother filed an appeal or revision against the Munsiff Court’s order, and the appeal or revision thereafter favoured them. 5|Page 3.10 The Respondent and his mother then preferred AS No. 150/2010 (First Appeal) before the III Additional Sub-Judge, Ernakulam (Sub-Judge), against the Munsiff Court’s decision dated 15.10.2009. However, the First Appeal was dismissed with costs vide the order dated 21.02.2011. The Sub-Judge based his decision on three prongs: (i) Mr. Raju Kurian would not have signed the consent letter, as the husband of the Respondent’s mother, in the hospital when the Respondent was born, if they had an estranged marital relationship; (ii) the Respondent’s mother and Mr. Raju Kurian were living together as spouses long before, during, and even after the Respondent’s birth; and (iii) the letters produced by the Respondent’s mother, where she claimed the Appellant admitted his paternity, were not proved to be written by the Appellant and thus, could not be relied upon. In this manner, the Sub-Judge held that the evidence adduced was insufficient to uproot the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872. 3.11 The Respondent and his mother then filed RSA No. 973/2011 (Second Appeal) before the High Court, assailing the Sub-Judge’s order. A Single Judge of the High Court dismissed the Second Appeal vide the judgment dated 28.10.2011. The Single Judge held that when the husband and wife were living under one roof, non-access could not be pleaded as they had the opportunity for a marital, sexual relationship. Further, the Single Judge noted that the conclusiveness of Section 112 could not be watered down merely because the mother was alleging paternity on someone other than her husband, especially when the husband was not a party 6|Page  to the proceedings. It is imperative to note that this order has not been challenged in any further proceedings since and has attained finality. A.2 Second round of litigation 3.12 It seems that the dispute then attained quietus for some years, only to be resumed in 2015 when the Respondent filed an application before the Family Court, seeking to revive the Maintenance Petition. The reasons recorded in the said application were that the Respondent was facing various health issues and had undergone several surgeries, which he and his mother were unable to afford. Further, the Respondent claimed that he had also not been receiving any maintenance from Mr. Raju Kurian either for his medical or educational expenses. 3.13 On 09.11.2015, the Family Court revived the Maintenance Petition and allowed Mr. Raju Kurian to be impleaded as a party respondent. In its order, the Family Court observed that after the enactment and effectuation of the Family Courts Act, 1984, the Family Court, alone, had the jurisdiction to adjudicate a dispute regarding maintenance and the legitimacy of a person. It further highlighted that these matters are covered by explanation (e) and (f) of Section 7 of the Family Courts Act, 1984. As a result, the Family Court held the order passed by the Munsiff Court to be devoid of jurisdiction. As a corollary thereto, it was elucidated that the Family Court was not bound by its earlier order dated 05.02.2010 as the Munsiff Court lacked the jurisdiction to entertain the Original Suit. Lastly, the Family Court observed that since the question in a proceeding under Section 125 of the CrPC does not concern 7|Page  legitimacy, the earlier orders of the Munsiff Court, the Sub-Judge, and the High Court would not impede the Family Court from determining the question of paternity. 3.14 Challenging this order of the Family Court, the Appellant filed Crl. (OP) No. 420/2015 before the High Court. In this regard, the Appellant contended that the Respondent was not entitled to institute a revival memo owing to the Family Court’s order dated 05.02.2010, imposing a condition on itself to reopen the case. Further, the Appellant contended that since the Original Suit was filed for a declaration of paternity and the order dated 28.10.2011 had attained finality, the issue in question had already been decided by a court of competent jurisdiction and could not be re-agitated. 3.15 The High Court, vide the impugned judgment dated 21.05.2018, primarily determined that: (i) the legitimacy of birth was irrelevant when considering the right of the child to receive maintenance from their biological father; (ii) the presumption of legitimacy does not prevent an enquiry into the true paternity of a child; (iii) since ‘paternity’ and ‘legitimacy’ operate in different spheres, a declaration on the legitimacy of a child by a Civil Court would not impede an enquiry into ‘paternity’ by the Family Court, for the purpose of determining maintenance; and (iv) the Civil Courts lacked jurisdiction to determine the legitimacy of the Respondent, owing to the exclusive jurisdiction of the Family Court. 8|Page 3.16 Thus, aggrieved by this decision, the Appellant preferred the instant appeal. B. CONTENTIONS OF THE PARTIES 4. Mr. Romy Chacko, Learned Senior Advocate, appearing on behalf of the Appellant, contended that the High Court erred in its decision and adduced the following submissions: (a) Since the Respondent failed to prove non-access between the spouses when the Respondent was begotten, there is conclusive proof that the Respondent is the legitimate child of Mr. Raju Kurian. When legitimacy is established, the Respondent can claim maintenance only from his ‘legitimate’ father, not a third-party, whom he claims to be his biological father. Consequently, under such circumstances, the Appellant could not be ordered to undergo a DNA test. (b) The prayer in the Original Suit was for a declaration that the Appellant is the Respondent’s father, thus, making it a suit for determining paternity. Since this issue was decided concurrently by three courts, the question pertaining to paternity could not have been reopened under the guise of ‘maintenance’ by the Family Court. In any case, the condition permitting reopening had not been fulfilled. 5. Per contra, Mr. Shyam Padman, Learned Senior Advocate, appearing on behalf of the Respondent, put forth the following submissions: 9|Page  (a) It is well-settled that ‘paternity’ and ‘legitimacy’ are distinct concepts. While legitimacy can be determined through a legal presumption, paternity is a matter of science. Thus, a civil suit concerning the presumption of legitimacy under Section 112 would not have any bearing on the determination of ‘paternity.’ Further, it is in the best interests of the child that the Appellant undergoes a DNA test, as the child has the right to know his real parentage and accrue the rights emanating therefrom. (b) Paternity, as a concept, is intrinsically connected with maintenance; and maintenance can be claimed from the biological father even when the child is illegitimate. Since maintenance can only be decided by the Family Court, under explanation (f) of Section 7 of the Family Courts Act, 1984, it is well within its jurisdiction to also determine paternity when posed with the question of maintenance. (c) The Family Court was entitled to revive the Maintenance Petition because the condition for its revival was bad in law as legitimacy and paternity are different concepts, independent of each other. Thus, the revival of the Maintenance Petition concerning paternity, could not be determined based on a finding of legitimacy in a civil suit. C. ISSUES 6. Having given our thoughtful consideration to the submissions at length, the following issues arise for the consideration of this Court: 10 | P a g e  i. Whether the presumption of legitimacy, if not displaced, determines paternity in law? ii. Whether the Civil Court had the jurisdiction to entertain the Original Suit; and accordingly, whether the Family Court was entitled to reopen the Maintenance Petition? iii. Whether the second round of litigation, initiated by the Respondent, was barred by the principle of res judicata? D. ANALYSIS D.1 Issue No. 1: Displacing the presumption of legitimacy and permitting a DNA test 7. The issue herein is regarding the effect of the conclusive presumption of legitimacy, how it can be displaced, and under what circumstances a court may order a DNA test. To this end, the Appellant argued that the presumption of legitimacy is conclusive until it is rebutted by leading evidence reflecting non-access between the spouses when the child was begotten. Only when non-access is made out, the court may order a DNA test. The Appellant further argued that the result of such a DNA test may bastardize an innocent child and violate the right to privacy and dignity of the persons involved. An order for a DNA test, therefore, must be resorted to sparingly. In support of these contentions, the Appellant cited decisions such as Aparna Ajinkya Firodia v. Ajinkya Arun Firodia,3 3 Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, (2024) 7 SCC 773. 11 | P a g e  Ashok Kumar v. Raj Gupta,4 and Goutam Kundu v. State of W.B.,5 among others. 8. Per contra, the Respondent argued that even a positive finding by a Court regarding the legitimacy of a child would not be sufficient to prove paternity for the purpose of maintenance. Further, the Respondent argued that Courts have ordered DNA tests because it is within the best interests of the child to know their biological father. In support of their contentions, the Respondent cited decisions such as Dipanwita Roy v. Ronobroto Roy6 and Bhabani Prasad Jena v. Orissa State Commission for Women.7 9. We are of the considered view that this issue hinges on two primary prongs requiring detailed analysis: (i) the difference between legitimacy and paternity, and consequently, the circumstances under which the presumption of legitimacy is displaced to permit an enquiry into paternity; and (ii) the exercise of ‘balancing of interests’ and evaluating the eminent need for a DNA test. D.1.1 Displacing the notion of legitimacy 10. The Respondent has vehemently argued that ‘legitimacy’ and ‘paternity’ are different concepts—the former being rooted in law while the latter is rooted in science. The High Court upheld this view and thereby, 4 Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20. 5 Goutam Kundu v. State of W.B., 1993 (3) SCC 418. 6 Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365. 7 Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633. 12 | P a g e  permitted the revival of the maintenance proceedings as an enquiry into ‘paternity,’ not ‘legitimacy.’ 11. In this vein, we agree that scientifically and technically, a legitimate child, i.e. one born during the subsistence of a valid marriage between two persons, may not always be the biological child of the persons in the marriage. In our view, it would be possible and easy to contemplate such a situation arising, which leads us to the postulation that in a more technical sense, the terms ‘legitimacy’ and ‘paternity’ may indeed undertake different meanings. 12. The question that, however, arises is whether the law contemplates and accepts such a differentiation. To answer this, we deem it appropriate to investigate the law governing the presumption of ‘legitimacy’ and ‘paternity’ globally, followed by its analysis in India. D.1.1.1 Position in the UK 13. The presumption of legitimacy comes from the maxim, “pater est quem nuptiae demonstrant” which means, “he is the father whom the marriage indicates to be so.” Since time immemorial, English Courts upheld that where a husband and wife cohabited and no evidence of impotency was forthcoming, the child is conclusively presumed to be legitimate even though the wife is known to have been guilty of infidelity.8 To date, the presumption that a child born in wedlock is legitimate, has held the 8 Halsbury's Laws of England, Children, Volume 9, 2023; Halsbury's Laws of England, Children, Volume 10, 2023. 13 | P a g e  floor.9 Earlier, the courts held that evidence from the spouses to disprove legitimacy was inadmissible.10 Over time, this strict rule was relaxed and the parties were permitted to rebut this presumption by claiming non- access and leading evidence accordingly.11 14. Advances in science and social transformation led to the passing of the Family Law Reform Act, 1969.12 It was later replaced by the Family Law Reform Act, 1987.13 Initially, the presumption of legitimacy could only be rebutted by proof beyond reasonable doubt.14 However, by virtue of section 26 of the 1969 Act, the presumption could be rebutted on a simple balance of probabilities.15 This legislation also empowered the courts to conduct paternity tests to determine the biological father of the child,16 even without the guardian’s consent.17 15. Any person could apply to the High Court for a declaration as to whether that person is the parent of another person.18 The court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child. Despite this, the Family Court has continued to uphold the rule that ‘access’ must be 9 In re H. and Others (Minors) (Sexual Abuse: Standard of Proof), [1996] 2 WLR 8. 10 Russell v. Russell, (1924) AC 687. 11 In re Guardianship of Infants Acts, 1886 and 1925, AND In re S. B. An Infant., [1949] Ch. 108. 12 United Kingdom Family Law Reform Act, 1969. 13 United Kingdom Family Law Reform Act, 1987. 14 Preston-Jones v. Preston-Jones [1951] A.C. 391. 15 In re H. and Others, supra note 9. 16 1987 Act, supra note 13, Section 23. 17 Re Le, [1968] 1 All ER 20. 18 1987 Act, supra note 13, Section 55A. 14 | P a g e  proved with cogent evidence, and that it is insufficient to merely show that opportunities for sexual intercourse existed.19 16. Thus, in England, the presumption of legitimacy exists to date. As illustrated, it can be rebutted by claiming non-access and leading evidence to prove so by a simple balance of probabilities. Additionally, the claims of infidelity or adultery, in and of itself, would be insufficient to rebut the presumption of legitimacy. D.1.1.2 Position in the United States of America 17. In the United States, State laws presume that a child born in wedlock is the natural, legitimate child of the mother's husband. However, the rules concerning the presumption of legitimacy and the evidence necessary to rebut it vary from State to State. As a result, the US Supreme Court has had few opportunities to discuss the ‘marital presumption.’ For instance, the US Supreme Court dealt with a case where the respondent claimed to be the biological father of the children, though they were conceived during the subsistence of a valid marriage between the appellants. Despite the Californian Evidence Code permitting the results of DNA tests to be admitted into evidence to determine paternity, the US Supreme Court noted that the law retained a strong bias against ruling the children of married women illegitimate.20 18. In response to the need for new legislation eliminating the legal differentiation between ‘legitimate’ and ‘illegitimate’ children, the 19 MS v. RS and Others, [2021] Fam. 1. 20 Michael H. and Victoria D. v. Gerald D., 1989 SCC OnLine US SC 116. 15 | P a g e  Uniform Parentage Act, 197321 was promulgated. This Act was later amended in 2002 and 2017. The aforementioned Act incorporates the presumption of paternity in circumstances such as:22 (i) where there is a marriage between the presumed father and the mother at the time of the child's birth; (ii) where the marriage was terminated no more than 300 days prior to the child's birth; and (iii) where the presumed father and the mother got married after the child's birth. Only one father, however, may trigger the marital presumption. 19. All States continue to recognize at least a rebuttable presumption that a child born within marriage is the child of the husband,23 but continue to limit the circumstances in which it may be rebutted.24 Several States grant the biological father a right to rebut the presumption and establish a relationship with the child.25 Courts in other States apply the marital presumption based on a ‘best interest’ analysis, i.e. they will not allow the presumption to be rebutted unless it is in the child’s interests. These rulings often result in decisions upholding the marital presumption.26 20. The courts in USA and England thus, seem to maintain a strong bias towards the presumption of legitimacy. Nonetheless, both jurisdictions have enacted specific provisions governing the procedure to order DNA tests when the legitimacy of a child comes under challenge. However, this 21 Uniform Parentage Act, 1973. 22 Id., Section 4. 23 Leslie J. Harris, June Carbone, and Lee R. Teitelbaum, Family Law, 4th Edition, 2010. 24 Vargo v. Schwartz, 940A2d 459, 463 (Pa Super 2007). 25 Callender v. Skiles, 591 NW2d 182, 190 (Iowa 1999); In the Interest of JWT, 872 SW2d 189 (Tex. 1994). on 26 Hardy v. Hardy, 2011 Ark. 82; Kamp v. Dep’t of Human Services, 410 Md. 645, 980 A.2d 448 (2009); and Williamson v. Williamson, 690 SE2d 257 (Ga App 2010). 16 | P a g e  presumption is moulded as the foundation for these provisions and cannot be displaced by mere allegations or suspicion. The court can order a DNA test only after cogent and reliable evidence is led to prove illegitimacy and if the test is in the ‘best interests’ of the child. D.1.1.3 Position in Malaysia 21. We also find it fruitful to look into the position regarding the presumption of legitimacy in Malaysia as they have extensively borrowed the language of Section 112 of the Indian Evidence Act, 1872. To compare the progress between the two jurisdictions, it would prove beneficial to look into Malaysia’s Evidence Act, 1950. 22. In Malaysia, the court presumes the child to be legitimate if: (i) a valid marriage existed between the presumed parents; and (ii) the child was born during the subsistence of a valid marriage or within 280 days of its dissolution. This presumption can be rebutted by proving non-access when the child could have been conceived. 23. The courts generally refuse to order DNA testing when the child is born during a valid marriage between the parties, and especially when the applicant fails to prove a lack of sexual access between them.27 However, if the parties undergo a DNA test voluntarily, the results of such a test can be admitted into evidence to determine paternity.28 27 Ng Chian Perng v. Ng Ho Peng, [1998] 2 CLJ Supp 227. 28 Alesiah Jumil & Chua Kin Han v. Julas Joenol, [2013] 1 LNS 1213. 17 | P a g e 24. Here, we notice a consonance between the laws in all three jurisdictions. While the courts have the authority to direct the parties to undergo a DNA test if a case for non-access is made out, the courts may also utilize the results of a voluntarily-conducted DNA test to displace the presumption. However, the standard of proof required in Malaysia seems to be higher than a mere balance of probabilities. D.1.1.4 Position in India 25. The above analysis makes it clear that courts around the globe have recognized the theoretical difference in ‘paternity’ and ‘legitimacy’ to the extent that in the Venn diagram of paternity and legitimacy, legitimacy is not an independent circle, but is entombed within paternity. After adverting to the position of ‘paternity’ and ‘legitimacy’ in various foreign jurisdictions, it is imperative to evaluate the position in India in light of the unique factual matrix of the instant appeal. 26. The advent of scientific testing has made it much easier to prove that a child is not a particular person’s offspring. To this end, Indian courts have sanctioned the use of DNA testing, but sparingly. 27. Before delving into the analysis, it is pertinent to elucidate Section 112 of the Indian Evidence Act, 1872: “112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” 18 | P a g e 28. The language of the provision makes it abundantly clear that there exists a strong presumption that the husband is the father of the child borne by his wife during the subsistence of their marriage. This section provides that conclusive proof of legitimacy is equivalent to paternity.29 The object of this principle is to prevent any unwarranted enquiry into the parentage of a child. Since the presumption is in favour of legitimacy, the burden is cast upon the person who asserts ‘illegitimacy’ to prove it only through ‘non-access.’ 29. It is well-established that access and non-access under Section 112 do not require a party to prove beyond reasonable doubt that they had or did not have sexual intercourse at the time the child could have been begotten. ‘Access’ merely refers to the possibility of an opportunity for marital relations.30 To put it more simply, in such a scenario, while parties may be on non-speaking terms, engaging in extra-marital affairs, or residing in different houses in the same village, it does not necessarily preclude the possibility of the spouses having an opportunity to engage in marital relations.31 Non-access means the impossibility, not merely inability, of the spouses to have marital relations with each other. 32 For a person to rebut the presumption of legitimacy, they must first assert non-access which, in turn, must be substantiated by evidence. 29 Aparna Ajinkya Firodia, supra note 3. 30 Mir Muzafaruddin Khan v. Syed Arifuddin Khan, (1971) 3 SCC 810, para 6; Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, (1953) 2 SCC 627, para 4. 31 Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449; Kamti Devi, supra note 2. 32 Aparna Ajinkya Firodia, supra note 3; Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454. 19 | P a g e 30. It is only when such an assertion is made, that the court can consider the question of ordering a DNA test to establish paternity. In Goutam Kundu v. State of W.B. (supra), this Court laid down the following parameters to decide whether a court can order a DNA test for the purposes of Section 112: “(1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis.” 31. These parameters have been subsequently followed by this Court in Sharda v. Dharmpal (supra) and Bhabani Prasad Jena v. Orissa State Commission for Women (supra). In these cases, it was held that DNA tests may be ordered, only if a strong prima facie case of non-access is made out, with sufficient material placed before the court to arrive at a decision. 32. In the case at hand, it is an admitted fact that when the Respondent was begotten in 2001, his mother and Mr. Raju Kurian were married. In fact, they had been married since 1989 and neither had ever questioned the validity of the marriage. They were, admittedly, living under the same roof from 1989 till 2003, when they decided to separate. It is, but 20 | P a g e  obvious, that the Respondent’s mother and Mr. Raju Kurian had access to each other throughout their marriage. This conclusion has been arrived at through concurrent findings of all the courts involved, at multiple stages of litigation. Even if it is assumed that the Respondent’s mother had relations with the Appellant during her marriage and especially when the Respondent was begotten, such a fact per se, would not be sufficient to displace the presumption of legitimacy. The only thing that such an allegation sheds light on is the fact that there seems to have been simultaneous access with the Respondent’s mother, by the Appellant and Mr. Raju Kurian. What, however, needs to be clarified is that an ‘additional’ access or ‘multiple’ access does not automatically negate the access between the spouses and prove non-access thereof. Consequently, there is a statutory mandate that the Respondent must be presumed to be the son of Mr. Raju Kurian. 33. In our considered opinion, the challenge raised before the High Court that ‘paternity’ and ‘legitimacy’ are distinct or independent concepts is a misdirected notion and is liable to be rejected. The High Court’s view that ‘paternity’ can be determined independent of the concurrent findings regarding the legitimacy of the child thus, cannot be sustained. D.1.2 Balancing of interests and the ‘eminent need’ for a DNA test 34. The Respondent argued that it was in his best interests that the Appellant undergo a DNA test, as he has the right to know his true parentage and accrue rights emanating therefrom, such as maintenance. The High Court upheld this view and noted that though it is not in the 21 | P a g e  interest of society to brand a child as ‘illegitimate,’ the interest of the child to know his biological father and claim maintenance from him is overwhelming in comparison. 35. In the peculiar circumstances of this case, this Court must undertake an exercise to ‘balance the interests’ of the parties involved and decide whether there is an ‘eminent need’ for a DNA test.33 This pertains not simply to the interests of the child, i.e. the Respondent, but also to the interests of the Appellant. 36. On one hand, courts must protect the parties’ rights to privacy and dignity by evaluating whether the social stigma from one of them being declared ‘illegitimate’ would cause them disproportionate harm. On the other hand, courts must assess the child’s legitimate interest in knowing his biological father and whether there is an eminent need for a DNA test. D.1.2.1 Right to privacy and right to dignity 37. Having recognized the diverging pathways in the present analysis, it is pertinent to first address the aspect of the right to privacy. At the outset, a cursory reference to the decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India,34 reveals that privacy is concomitant to the right of the individual to exercise control over his or her personality. Privacy includes, at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation. Privacy also connotes a right to be left alone, as a corollary to the 33 Sharda, supra note 1. 34 K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1. 22 | P a g e  safeguarding of individual autonomy and the ability of an individual to control vital aspects of his life. Elaborating further, this Court held that: “325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” 38. In this context, while permitting an enquiry into a person’s paternity vide a DNA test, we must be mindful of the collateral infringement of privacy. For this, the court must satisfy itself that the threshold for the above- mentioned three conditions is satisfied. If even one of these conditions fails, it is considered an unwarranted invasion of privacy and consequently, of life and personal liberty as embodied in Article 21 of the Constitution. 39. Similarly, when dealing with the right to dignity, this Court, in X2 v. State (NCT of Delhi),35 held that the right to dignity encapsulates the right of every individual to be treated as a self-governing entity having intrinsic value. It means that every human being possesses dignity merely by being a human, and can make self-defining and self- determining choices. Further, this Court held that the right to dignity is 35 X2 v. State (NCT of Delhi), (2023) 9 SCC 433. 23 | P a g e  intertwined with the right to privacy. This means that a person can exercise his right to privacy in order to protect his right to dignity and vice-versa. Together, these rights protect an individual’s ability to make the most intimate decisions regarding his life, including sexual activity, 36 whether inside or outside the confines of marriage. 40. Forcefully undergoing a DNA test would subject an individual’s private life to scrutiny from the outside world. That scrutiny, particularly when concerning matters of infidelity, can be harsh and can eviscerate a person’s reputation and standing in society. It can irreversibly affect a person’s social and professional life, along with his mental health. On account of this, he has the right to undertake certain actions to protect his dignity and privacy, including refusing to undergo a DNA test. 41. Usually in cases concerning legitimacy, it is the child’s dignity and privacy that have to be protected, as they primarily come under the line of fire. Though in this instance, the child is a major and is voluntarily submitting himself to this test, he is not the only stakeholder bearing personal interest in the results, whatever they may be. The effects of social stigma surrounding an illegitimate child make their way into the parents’ lives as there may be undue scrutiny owing to the alleged infidelity. It is in this backdrop that the Appellant’s right to privacy and dignity have to be considered. 36 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. 24 | P a g e 42. Moreover, the Respondent is already declared to be the legitimate son of Mr. Raju Kurian. The fishing enquiry, which he wants through the judicial process is seemingly, not meant to bring ‘certainty’ to an uncertain event. Rather, it is predominantly targeted to harm the Appellant’s reputation. The Respondent knows well who is his ‘father’ as per the law. 43. That apart, the courts must also remain abreast with the effects such a probe would have on other relevant stakeholders, especially women. Casting aspersions on a married woman’s fidelity would ruin her reputation, status, and dignity; such that she would be castigated in society. Though in this case, the Respondent’s mother is actively associated in propagating this vexatious litigation, one can only imagine the repercussions in other cases where a child, in utter disregard to the sentiments and self-respect of their mother, initiates proceedings seeking a declaration of paternity? The conferment of

Shayara Bano vs Union Of India And Ors. Ministry Of Women ... on 22 August, 2017

Court 1

[Cites 225, Cited by 2604] Supreme Court of India Shayara Bano vs Union Of India And Ors. Ministry Of Women ... on 22 August, 2017 Equivalent citations: AIR 2017 SUPREME COURT 4609, AIR 2018 SC (CIVIL) 1169, (2017) 179 ALLINDCAS 104 (SC), (2017) 179 ALLINDCAS 104, (2017) 2 MARRILJ 247, 2017 (3) CRIMES 281 LN, (2017) 3 CURCC 82, 2017 (3) KCCR SN 254 (SC), (2017) 3 KER LJ 16, 2017 (3) KLT SN 87 (SC), (2017) 4 CAL HN 60, (2017) 4 JCR 69 (SC), (2017) 5 ALL WC 4353, (2017) 5 BOM CR 481, (2017) 6 MAD LJ 378, 2017 (9) ADJ 1 NOC, (2017) 9 SCALE 178, 2017 (9) SCC 1, (2018) 1 JCR 108 (SC), 242 (2017) DLT 1 (CN)(SC), AIR 2018 SC (CIV) 1169 Author: Jagdish Singh Khehar Bench: S. Abdul Nazeer, Uday Umesh Lalit, Rohinton Fali Nariman, Kurian Joseph, Jagdish Singh Khehar Reportable IN THE SUPREME COURT OF INDIA Original Civil Jurisdiction Writ Petition (C) No. 118 of 2016 Shayara Bano … Petitioner versus Union of India and others … Respondents with Suo Motu Writ (C) No. 2 of 2015 In Re: Muslim Women’s Quest For Equality versus Jamiat Ulma-I-Hind Writ Petition(C) No. 288 of 2016 Aafreen Rehman … Petitioner versus Union of India and others … Respondents Writ Petition(C) No. 327 of 2016 Gulshan Parveen … Petitioner versus Union of India and others … Respondents Writ Petition(C) No. 665 of 2016 Ishrat Jahan … Petitioner versus Union of India and others … Respondents Writ Petition(C) No. 43 of 2017 Atiya Sabri Signature Not Verified … Petitioner Digitally signed by SARITA PUROHIT versus Date: 2017.08.23 13:12:55 IST Reason: Union of India and others … Respondents J U DG M E N T Jagdish Singh Khehar, CJI. 2  Index Sl. Divisions Contents Para-grap No. hs 1. Part-1 The petitioner’s marital discord, and the 1- 10 petitioner’s prayers 2. Part-2 The practiced modes of ‘talaq’ amongst 11- 16 Muslims 3. Part-3 The Holy Quran – with reference to ‘talaq’ 17- 21 4. Part-4 Legislation in India, in the field of Muslim 22- 27 ‘personal law’ 5. Part-5 Abrogation of the practice of ‘talaq-e-biddat’ by 28- 29 legislation, the world over, in Islamic, as well as, non-Islamic States A. Laws of Arab States (i) – (xiii) B. Laws of Southeast Asian States (i) – (iii) C. Laws of Sub-continental States (i) – (ii) 6. Part-6 Judicial pronouncements, on the subject of 30 - 34 ‘talaq-e-biddat’ 7. Part-7 The petitioner’s and the interveners’ 35 – 78 contentions: 8. Part-8 The rebuttal of the petitioners’ contentions 79 - 111 9. Part-9 Consideration of the rival contentions, and our 112- 114 conclusions I. Does the judgment of the Privy Council in the 115-120 Rashid Ahmad case, upholding ‘talaq-e-biddat’, require a relook? II. Has ‘talaq-e-biddat’, which is concededly 121-127 sinful, sanction of law? III. Is the practice of ‘talaq-e-biddat’, 128-139 approved/disapproved by “hadiths”? IV. Is the practice of ‘talaq-e-biddat’, a matter of 140-145 faith for Muslims? If yes, whether it is a constituent of their ‘personal law’? V. Did the Muslim Personal Law (Shariat) 146-157 Application Act, 1937 confer statutory status to the subjects regulated by the said legislation? VI. Does ‘talaq-e-biddat’, violate the parameters 158-165 expressed in Article 25 of the Constitution? VII. Constitutional morality and ‘talaq-e-biddat’. 166-174 3  VIII. Reforms to ‘personal law’ in India. 175-182 IX. Impact of international conventions and 183-189 declarations on ‘talaq-e-biddat’. X. Conclusions emerging out of the above 190-190 consideration 10. Part-10 The declaration 191-201 Part-1. The petitioner’s marital discord, and the petitioner’s prayers: 1. The petitioner-Shayara Bano, has approached this Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed “…in the presence of witnesses saying that I gave ‘talak, talak, talak’, hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. From today I am ‘haraam’, and I have become ‘naamharram’. In future you are free for using your life …”. The aforesaid divorce was pronounced before Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) – the two witnesses. The petitioner has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio. It is also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared 4 unconstitutional. During the course of hearing, it was submitted, that the ‘talaq-e-biddat’ (-triple talaq), pronounced by her husband is not valid, as it is not a part of ‘Shariat’ (Muslim ‘personal law’). It is also the petitioner’s case, that divorce of the instant nature, cannot be treated as “rule of decision” under the Shariat Act. It was also submitted, that the practice of ‘talaq-e-biddat’ is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution. It is also the petitioner’s case, that the practice of ‘talaq-e-biddat’ cannot be protected under the rights granted to religious denominations (-or any sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was submitted, that the practice of ‘talaq-e-biddat’ is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of ‘talaq-e-biddat’, and as such, the same cannot be considered sacrosanctal to the tenets of the Muslim religion. 2. The counter affidavit filed by respondent no.5 – the petitioner’s husband – Rizwan Ahmad, discloses, that the ‘nikah’ (marriage) between the petitioner and the respondent was solemnized on 11.04.2001, as per ‘Shariat’, at Allahabad. It was submitted, that the petitioner – Shayara Bano, performed her matrimonial duties intermittently, coming and leaving the matrimonial home from time to time. The 5 matrimonial relationship between the parties resulted in the births of two children, a son – Mohammed Irfan (presently about 13 years old) studying in the 7 th standard, and a daughter – Umaira Naaz (presently about 11 years old) studying in the 4th standard, both at Allahabad. 3. It is the case of the respondent–husband, that the petitioner-wife, left her matrimonial home on 9.4.2015 in the company of her father – Iqbal Ahmad and maternal uncle – Raees Ahmed, as well as children – Mohammed Irfan and Umaira Naaz, to live in her parental home. The respondent claims, that he continued to visit the petitioner, for giving her maintenance, and for enquiring about her well being. When the husband met the wife at her parental home in May and June 2015, she refused to accompany him, and therefore, refused to return to the matrimonial home. On 03.07.2015, Rizwan Ahmad, asked the father of Shayara Bano to send her back to her matrimonial home. He was informed by her father, after a few days, that the petitioner was not inclined to live with the respondent. 4. On 07.07.2015 the father of the petitioner, brought the two children – Mohammed Irfan and Umaira Naaz to Allahabad. The husband submits, that both the children have thereafter been in his care and custody, at Allahabad. It is the assertion of the husband, that the petitioner’s father had given 6 him the impression, that the petitioner would be inclined to return to Allahabad, consequent upon the husband’s care and custody of both children, at the matrimonial home. 5. It is claimed by the respondent-husband, that he made another attempt to bring back the petitioner-wife from her parental home on 09.08.2015, but Shayara Bano refused to accompany him. It is submitted, that Rizwan Ahmad was opposed in the above endeavour, both by the petitioner’s father and her maternal uncle. 6. Finding himself in the above predicament, Rizwan Ahmad approached the Court of the Principal Judge, Family Court at Allahabad, Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a prayer for restitution of conjugal rights. The petitioner-Shayara Bano, preferred Transfer Petition (C) No. 1796 of 2015, under Section 25 of the Code of Civil Procedure, 1908, read with Order XXXVI-B of the Supreme Court Rules, 1966, for the transfer of Matrimonial Case No.1144 of 2015, filed by the respondent-husband (seeking restitution of conjugal rights) pending at Allahabad, Uttar Pradesh, to the Principal Judge, Family Court, Kashipur, Uttarakhand. In the above transfer petition, the wife inter alia asserted as under: ““2.3 The Petitioner who hails from Kashipur, Uttarakhand is unemployed and her father is a government employee. The only source of income is the Petitioner’s father who has a low income and despite 7  this the Petitioner during the time of marriage had made arrangements beyond their capacity. But soon after the marriage the Respondent husband started demanding for additional dowry and made unreasonable demands for a car and cash. 2.4 The Petitioner who rightfully denied the demands of the Respondent was tortured and physically abused by the Respondent and his family. She was often beaten and kept hungry in a closed room for days. The family of the Respondent administered her with medicines that caused her memory to fade. Due to the medicines she remained unconscious for long hours. Xxx xxx xxx 2.6 On 09.04.2015, the Respondent attempted to kill the Petitioner by administering medicines. These medicines on inspection by a doctor on a later date were revealed to cause loss of mental balance after regular consumption. The Respondent brought the Petitioner to Moradabad in a critical near-death condition with the intention of abandoning her if his dowry demands were not fulfilled. 2.7. Thereafter on 10.04.2015 the Respondent called the parents of the Petitioner to Moradabad to take their daughter. The parents of the Petitioner requested him to come to Kashipur to meet and settle the issue. He refused to go to Kashipur and said that they should come and take their daughter or fulfil his demands for more dowry. He demanded Rs.5,00,000/- (Rupees Five Lakh Only). 2.8. Due to the unreasonable demands and the torturous behaviour of the Respondent husband, the Petitioner’s parents came to Moradabad to take her and she was forced to stay with her parents after 10.04.2015. xxx xxx xxx 2.13 The Respondent has filed for restitution despite the fact that he himself had asked the Petitioner wife’s father to either fulfil his dowry demands or to take the Petitioner back to her maternal home and in pursuance of the same had drugged the Petitioner and had left her in Moradabad.” 7. It is the case of the respondent-Rizwan Ahmad, that in view of the above averments of the petitioner-Shayara Bano, he felt that his wife was not ready for reconciliation, and therefore, 8 he withdrew the suit (-for restitution of conjugal rights), preferred by him at Allahabad, and divorced the petitioner-Shayara Bano, by serving upon her a ‘talaq-nama’ (deed of divorce) dated 10.10.2015. The text of the ‘talak-nama’, is reproduced below: “Deed of Divorce Dated 10.10.2015 Madam, Shayra Bano D/o Iqbal Ahmad. Be it clear that I Rizwan Ahmed married with you without any dowry to spend a peaceful and happy marital life. After marriage you came in my marital tie. From the relation between you and me two issues namely Irfan Ahmad aged about 13 years and Kumari Humaira Naz @ Muskan aged about 11 years were born who are receiving education living under my guardianship. With a great sorrow it is being written that you, just after 6 months of marriage, with your unreasonable and against Sharia acts started to pressurize me to live separately from my parents. I, in order to keep you happy and as per your wish started to live at a rented house at Mohalla Ghausnagar and while working as a clerk under a builder tried my level best to spend peaceful marital life with you and children. However, you, in an unreasonable manner and against Shriah continued to create problem and quarrel in house on regular basis. When you were asked the reason in a very affectionate manner about two years ago, you had put a condition that now when your other relatives are not with you in such situation come with me to my parents’ house and live further life there. I being a person from a self-respecting family refused to live as ‘son in law living at in-laws house’. Then you, under the influence of your parents, continued to fake various mental and physical pains and continued to behave life a mental patient. When tried to know the reason then you after much difficulty told that you had 9 med with a serious accident before marriage. I for the sake of my children and you tolerated that. I became despondent from your persistent demand of living at your parental house and your being of stubborn nature, your giving threat of implicating in false case and threat of inflicting injury to yourself and of consuming poison and implicating me in false case on that count given on daily basis and complained about the same to your paternal uncle but your father replied that whenever you do such acts sleeping pills be given to you. I found this very baffling, upon asking your father told that since the time before your marriage you had been under treatment for mental ailment. I ignored such a big incident and the information received about you. Resultantly you became audacious in your behavior. When reported all these things to your father, your father told me that this is the time of children’s holidays you be sent to your parents’ house with children. You take them back after the atmosphere is changed and summer vacations are over. Acting on the words of your father I left you at your parents’ place along with children and while going, you took away gold jewelry given by me including a gold neck set of two Tolas, gold bangles of one and a half Tola, two gold rings of half Tola and cash Rs.15,000/-. I continued to visit you enquiring your wellbeing and giving you expenses from time to time. That in the month of May and June when I tried to bring you then you gave excuses and pleas. I continued to make repeated attempts between May to July to bring you back but ultimately on 03.07.2015 you clearly refused to return and on 07.07.2015 you father brought both the children at Allahabad Railway Station and left them there informing me and gave threat on phone that either you will come here and live or shall perform the role of father and mother of both the children. In this regard when I enquired from you then you also refused to return in clear words and said to the extent that you raise the children and forget me or separate from me to bring another mother for the children. On this also I could not satisfy myself, whereupon I filed a suit for bringing you back. After receiving notice, out of the blues you threatened me on phone that I will soon file a case and will tell you how a son in law is kept at the in-laws house. Being fed up with your unreasonable conduct and against Sharaih acts I found it better to separate from you, therefore, I on 8.10.2015 applied for dismissal of the suit for bringing you back and now I, in my full senses and in 10  the presence of marginal witnesses, release you from my marriage in the light of Shariah through tripel talaq by uttering ‘I give talaq’, ‘I give talaq’, ‘I give talaq’. From today the relation of husband and wife forever ends between you and me. After today you are unlawful for me and I have become unlawful for you. You are free to spend your life the way you want. Note: So far is the question of your dower (Mehr) and expenses of waiting period (iddat) that I am paying through demand draft no.096976 dated 06.10.2015 drawn at Allahabad Bank, Karaili, Allahabad Branch, which comprises a sum of Rs.10,151 towards payment of dower and Rs.5,500/- towards the expenses of waiting period which I am sending along with this written deed of divorce, you kindly take paid to accept the same. Dated 10.10.2015 Witnesses:- 1. Mohd. Yaseen, s/o Abdul Majid, R/o J.K. Colony, Ghaus Nagar, Karaili, Allahabad; 2. Ayaz Ahmed S/o Imtiyaz Hussain R/o G.T.B. Nagar, Karaili Scheme, Allahabad Sd/ Hindi Rizwan Ahmed (Rizwan Ahmed) S/o Iqbal Ahmed Ghaus Nagar, Karaili, Allahabad” 8. Based on the above, the case of the respondent-husband is, that he had pronounced ‘talaq’ in consonance with the prevalent and valid mode of dissolution of Muslim marriages. It was submitted, that the pronouncement of divorce by him, fulfils all the requirements of a valid divorce, under the Hanafi sect of Sunni Muslims, and is in consonance with ‘Shariat’ (Muslim ‘personal law’). 9. It is also the submission of the respondent-husband, that the present writ petition filed by the petitioner-wife under 11 Article 32 of the Constitution of India, is not maintainable, as the questions raised in the petition are not justiciable under Article 32 of the Constitution. 10. Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case (and, in the other connected cases), at the very outset, it was decided to limit the instant consideration, to ‘talaq-e-biddat’ – triple talaq. Other questions raised in the connected writ petitions, such as, polygamy and ‘halala’ (-and other allied matters), would be dealt with separately. The determination of the present controversy, may however, coincidentally render an answer even to the connected issues. Part-2. The practiced modes of ‘talaq’ amongst Muslims: 11. Since the issue under consideration is the dissolution of marriage by ‘talaq’, under the Islamic law of divorce, it is imperative, to understand the concept of ‘talaq’. In this behalf, it is relevant to mention, that under the Islamic law, divorce is classified into three categories. Talaq understood simply, is a means of divorce, at the instance of the husband. ‘Khula’, is another mode of divorce, this divorce is at the instance of the wife. The third category of divorce is ‘mubaraat’ – divorce by mutual consent. 12 12. ‘Talaq’, namely, divorce at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’. The petitioner’s contention before this Court is, that ‘talaq-e-ahsan’, and ‘talaq-e-hasan’ are both approved by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is considered as the ‘most reasonable’ form of divorce, whereas, ‘talaq-e-hasan’ is also considered as ‘reasonable’. It was submitted, that ‘talaq-e-biddat’ is neither recognized by the ‘Quran’ nor by ‘hadith’, and as such, is to be considered as sacrosanctal to Muslim religion. The controversy which has arisen for consideration before this Court, is with referenc to ‘talaq-e-biddat’. 13. It is necessary for the determination of the present controversy, to understand the parameters, and the nature of the different kinds of ‘talaq’. ‘Talaq-e-ahsan’ is a single pronouncement of ‘talaq’ by the husband, followed by a period of abstinence. The period of abstinence is described as ‘iddat’. The duration of the ‘iddat’ is ninety days or three menstrual cycles (in case, where the wife is menstruating). Alternatively, the period of ‘iddat’ is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. Conversely, if there is no 13 resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the expiry of the ‘iddat’ period. It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh ‘nikah’ (-marriage), with a fresh ‘mahr’. ‘Mahr’ is a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom’s father, to the bride, at the time of marriage, which legally becomes her property. However, on the third pronouncement of such a ‘talaq’, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through ‘talaq’ - divorce, or death), can the couple remarry. Amongst Muslims, ‘talaq-e-ahsan’ is regarded as – ‘the most proper’ form of divorce. 14. ‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again. After the second pronouncement 14 of ‘talaq’, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified). And after the third ‘iddat’, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry. The distinction between ‘talaq-e-ashan’ and ‘talaq-e-hasan’ is, that in the former there is a single pronouncement of ‘talaq’ followed by abstinence during the period of ‘iddat’, whereas, in the latter there are three pronouncements of ‘talaq’, interspersed with abstinence. As 15 against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’ form of divorce, Muslims regard ‘talaq-e-hasan’ only as ‘the proper form of divorce’. 15. The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is considered irregular. 16. According to the petitioner, there is no mention of ‘talaq-e-biddat’ in the Quran. It was however acknowledged, that the practice of ‘talaq-e-biddat’ can be traced to the second century, after the advent of Islam. It was submitted, that ‘talaq-e-biddat’ is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. It was however emphasized, that even those schools that recognized ‘talaq-e-biddat’ described it, “as a sinful form of divorce”. It is acknowledged, that this form of divorce, has been described as “bad in theology, but good in law”. We have recorded the instant position at this juncture, because learned counsel for the rival parties, uniformly acknowledge the same. Part-3. 16 The Holy Quran – with reference to ‘talaq’: 17. Muslims believe that the Quran was revealed by God to the Prophet Muhammad over a period of about 23 years, beginning from 22.12.609, when Muhammad was 40 years old. The revelation continued upto the year 632 – the year of his death. Shortly after Muhammad’s death, the Quran was completed by his companions, who had either written it down, or had memorized parts of it. These compilations had differences of perception. Therefore, Caliph Usman - the third, in the line of caliphs recorded a standard version of the Quran, now known as Usman’s codex. This codex is generally treated, as the original rendering of the Quran. 18. During the course of hearing, references to the Quran were made from ‘The Holy Quran: Text Translation and Commentary’ by Abdullah Yusuf Ali, (published by Kitab Bhawan, New Delhi, 14th edition, 2016). Learned counsel representing the rival parties commended, that the text and translation in this book, being the most reliable, could safely be relied upon. The text and the inferences are therefore drawn from the above publication. (i) The Quran is divided into ‘suras’ (chapters). Each ‘sura’ contains ‘verses’, which are arranged in sections. Since our determination is limited to the validity of ‘talaq-e-biddat’, within the framework of the Muslim ‘personal law’ – ‘Shariat’, 17 we shall only make a reference to such ‘verses’ from the Quran, as would be relevant for our above determination. In this behalf, reference may first be made to ‘verses’ 222 and 223 contained in ‘section’ 28 of ‘sura’ II. The same are reproduced below: “222. They ask thee Concerning women’s courses. Say : They are A hurt and a pollution : So keep away from women In their courses, and do not Approach them until They are clean. But when they have Purified themselves, Ye may approach them In any manner, time, or place Ordained for you by God. For God loves those Who turn to Him constantly And he loves those Who keep themselves pure and clean. 223.Your wives are As a tilth unto you ; So approach your tilth When or how ye will ; But do some good act For your souls beforehand ; And fear God, And know that ye are To meet Him (in the Hereafter), And give (these) good tidlings To those who believe.” TThe above ‘verses’ have been extracted by us for the reason, that the Quran mandates respectability at the hands of men – towards women. ‘Verse’ 222 has been interpreted to mean, that matters of physical cleanliness and purity should be 18 looked at, not only from a man’s point of view, but also from the woman’s point of view. The ‘verse’ mandates, that if there is danger of hurt to the woman, she should have every consideration. The Quran records, that the action, of men towards women are often worse. It mandates, that the same should be better with reference to the woman’s health, both mental and spiritual. ‘Verse’ 223 postulates, that sex is as solemn, as any other aspect of life. It is compared to a husband-man’s tilth, to illustratively depict, that in the same manner as a husband-man sows his fields, in order to reap a harvest, by choosing his own time and mode of cultivation, by ensuring that he does not sow out of season, or cultivate in a manner which will injure or exhaust the soil. So also, in the relationship towards a wife, ‘verse’ 223 exalts the husband, to be wise and considerate towards her, and treat her in such manner as will neither injure nor exhaust her. ‘Verses’ 222 and 223 exhort the husband, to extend every kind of mutual consideration, as is required towards a wife. (ii) Reference is also necessary to ‘verses’ 224 to 228 contained in section 28 of ‘sura’ II of the Quran. The same are extracted below: “224. And make not God’s (name) an excuse In your oaths against Doing good, or acting rightly, Or making peace Between persons; 19 For God is one Who heareth and knoweth All things. 225. God will not Call you to account For thoughtlessness In your oaths, But for the intention In your hearts; And He is Oft-forgiving Most Forbearing. 226. For those who take An oath for abstention From their wives, A waiting for four months Is ordained; If then they return, God is Oft-forgiving, Most Merciful. 227. But if their intention Is firm for divorce, God heareth And knoweth all things. 228. Divorced women Shall wait concerning themselves For three monthly periods. Nor is it lawful for them To hide what God Hath created in their wombs, If they have faith In God and the Last Day. And their husbands Have the better right To take them back In that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them, according To what is equitable; But men have a degree (Of advantage) over them And God is Exalted in Power Wise.” 20 ‘Verse’ 224, has a reference to many special kinds of oaths practised amongst Arabs. Some of the oaths even related to matters concerning sex. These oaths caused misunderstanding, alienation, division or separation between husbands and wives. ‘Verses’ 224 to 227 are pointed references to such oaths. Through ‘verse’ 224, the Quran ordains in general terms, that no one should make an oath – in the name of God, as an excuse for not doing the right thing, or for refraining from doing something which will bring people together. The text relied upon suggests, that ‘verses’ 225 to 227 should be read together with ‘verse’ 224. ‘Verse’ 224 is general and leads up to the next three ‘verses’. These ‘verses’ are in the context of existing customs, which were very unfair to married women. Illustratively, it was sought to be explained, that in a fit of anger or caprice, sometimes a husband would take an oath – in the name of God, not to approach his wife. This act of the husband, it was sought to be explained, deprives the wife of her conjugal rights, and yet, keeps her tied to the husand indefinitely, inasmuch as, she has no right to remarry. Even if this act of the husband, was protested by the wife, the explanation provided is, that the husband was bound – by the oath in the name of God. Through the above verses, the Quran disapproves thoughtless oaths, and at the same time, insists on a proper solemn and 21 conscious/purposeful oath, being scrupulously observed. The above ‘verses’ caution husbands to understand, that an oath in the name of God was not a valid excuse – since God looks at intention, and not mere thoughtless words. It is in these circumstances, that ‘verses’ 226 and 227 postulate, that the husband and wife in a difficult relationship, are allowed a period of four months, to determine whether an adjustment is possible. Even though reconciliation is recommended, but if the couple is against reconciliation, the Quran ordains, that it is unfair to keep the wife tied to her husband indefinitely. The Quran accordingly suggests, that in such a situation, divorce is the only fair and equitable course. All the same it is recognized, that divorce is the most hateful action, in the sight of the God. (iii) ‘Verses’ 229 to 231 contained in ‘section’ 29 of ‘sura’ II, and ‘verses’ 232 and 233 included in ‘section’ 30 of ‘sura’ II, as also ‘verse’ 237 contained in ‘section’ 31 in ‘sura’ II, are relevant on the issue of divorce. The same are extracted below: “229. A divorce is only Permissible twice: after that, The parties should either hold Together on equitable terms, Or separate with kindness. It is not lawful for you, (Men), to take back Any of your gifts (from your wives), Except when both parties Fear that they would be Unable to keep the limits Ordained by God. 22 If ye (judges) do indeed Fear that they would be Unable to keep the limits Ordained by God, There is no blame on either Of them if she give Something for her freedom. These are the limits Ordained by God; So do not transgress them If any do transgress The limits ordained by God, Such persons wrong (Themselves as well as others) 230.So if a husband Divorces his wife (irrevocably), He cannot, after that, Re-marry her until After she has married Another husband and He has divorced her. In that case there is No blame on either of them If they re-unite, provided They feel that they Can keep the limits Ordained by God. Such are the limits Ordained by God, Which He makes plain To those who understand. 231.When ye divorce Women, and they fulfil The term of their (‘Iddat’) Either taken them back On equitable terms Or set them free On equitable terms; But do not take them back To injure them, (or) to take Undue advantage; If any one does that, He wrongs his own soul. Do not treat God’s Signs As a jest, But solemnly rehearse God’s favours on you, And the fact that He 23  Send down to you The Book And Wisdom, For your instruction. And fear God, And know that God Is well acquainted With all things.” A perusal of the aforesaid ‘verses’ reveals, that divorce for the reason of mutual incompatibility is allowed. There is however a recorded word of caution – that the parties could act in haste and then repent, and thereafter again reunite, and yet again, separate. To prevent erratic and fitful repeated separations and reunions, a limit of two divorces is prescribed. In other words, reconciliation after two divorces is allowed. After the second divorce, the parties must definitely make up their mind, either to dissolve their ties permanently, or to live together honourably, in mutual love and forbearance – to hold together on equitable terms. However, if separation is inevitable even on reunion after the second divorce, easy reunion is not permitted. The husband and wife are forbidden from casting aspersions on one another. They are mandated to recognize, what is right and honourable, on a collective consideration of all circumstances. After the divorce, a husband cannot seek the return of gifts or properties, he may have given to his wife. Such retention by the wife is permitted, only in recognition that the wife is economically weaker. An exception has been carved 24 out in the second part of ‘verse’ 229, that in situations where the freedom of the wife could suffer on account of the husband refusing to dissolve the marriage, and perhaps, also treat her with cruelty. It is permissible for the wife, in such a situation, to extend some material consideration to the husband. Separation of this kind, at the instance of the wife, is called ‘khula’. ‘Verse’ 230 is in continuation of the first part of ‘verse’ 229. The instant ‘verse’ recognizes the permissibility of reunion after two divorces. When divorce is pronounced for the third time, between the same parties, it becomes irreversible, until the woman marries some other man and he divorces her (or is otherwise released from the matrimonial tie, on account of his death). The Quranic expectation in ‘verse’ 230, requires the husband to restrain himself, from dissolving the matrimonial tie, on a sudden gust of temper or anger. ‘Verse’ 231 provides, that a man who takes back his wife after two divorces, must not put pressure on her, to prejudice her rights in any way. Remarriage must only be on equitable terms, whereupon, the husband and wife are expected to lead a clean and honourable life, respecting each other’s personalities. The Quranic message is, that the husband should either take back the wife on equitable terms, or should set her free with kindness. 25 (iv) The ‘verses’ referred to above need to be understood along with ‘verses’ 232 and 233, contained in ‘section’ 20 of ‘sura’ II, of the Quran. The above two ‘verses’ are extracted below: “232. When ye divorce Women, and they fulfil The term of their (‘Iddat’), Do not prevent them From marrying Their (former) husbands, If they mutually agree On equitable terms. This instruction Is for all amongst you, Who believe in God And the Last Day. That is (the course Making for) more virtue And purity amongst you, And God knows, And ye know not. 233. The mothers shall give suck To their offspring For two whole years, If the father desires To complete the term. But he shall bear the cost Of their food and clothing On equitable terms. No soul shall have A burden laid on it Greater than it can bear. No mother shall be Treated unfairly On account of his child, An heir shall be chargeable In the same way. If they both decide On weaning, By mutual consent, And after due consultation, There is no blame on them. If ye decide On a foster-mother For your offspring, 26  There is no blame on you, Provided ye pay (the mother) What ye offered, On equitable terms. But fear God and know That God sees well What ye do.” A perusal of the above ‘verses’ reveals, that the termination of the contract of marriage, is treated as a serious matter for family and social life. And as such, every lawful advice, which can bring back those who had lived together earlier, provided there is mutual love and they can live with each other on honourable terms, is commended. After following the above parameters, the Quran ordains, that it is not right for outsiders to prevent the reunion of the husband and wife. ‘Verse’ 233 is in the midst of the regulations on divorce. It applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of divorce, probably be on good terms, and the interest of children must be safeguarded. Since the language of ‘verse’ 233 is general, the edict contained therein is interpreted, as applying equally to the father and mother, inasmuch as, each must fulfil his or her part, in the fostering of children. (v) The last relevant ‘verse’ in ‘sura’ II of the Quran, is contained in ‘section’ 31, namely, ‘verse’ 237. The same is reproduced below: “237. And if ye divorce them Before consummation, 27  But after the fixation Of a dower for them, Then the half of the dower (Is due to them), unless They remit it Or (the man’s half) is remitted By him in whose hands IIs the marriage tie; And the remission (Of the man’s half) Is the nearest to righteousness. And do not forget Liberality between yourselves. For God sees well All that ye do.” In case of divorce before consummation of marriage, it is recognized, that only half the dower fixed needed to be refunded to the wife. It is however open to the wife, to remit the half due to her. And likewise, it is open to the husband to remit the half which he is entitled to deduct (and thus pay the whole dower amount). 19. Reference is also necessary to ‘verses’ 34 and 35, contained in ‘section’ 6, as well as, ‘verse’ 128 contained in ‘section’ 19, of ‘sura’ IV. All the above verses are extracted below: “34. Men are the protectors And maintainers of women, Because God has given The one more (strength) Than the other, and because They support them From their means. Therefore the righteous women Are devoutly obedient, and guard In (the husband’s) absence What God would have them guard. 28  As to those women On whose part ye fear Disloyalty and ill-conduct, Admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); But if they return to obedience, Seek not against them Means (of annoyance): For God is Most High, Great (above you all). 3. If ye fear a breach Between them twain, Appoint (two) arbiters, One from his family, And the other from hers; If they wish for peace, God will cause Their reconciliation: For God hath full knowledge, And is acquainted With all things.” Section 19, Sura IV “128.If a wife fears Cruelty or desertion On her husband’s part, There is no blame on them, If they arrange An amicable settlement Between themselves; And such settlement is best; Even though men’s souls Are swayed by greed. But if ye do good And practice self-restraint God is well-acquainted With all that ye do.” The Quran declares men as protectors, and casts a duty on them to maintain their women. In order to be entitled to the husband’s support, the Quran ordains the women to be righteous, and to be devoutly obedient to the husband, even in his absence. ‘Verse’ 34, extends to the husband the right to 29 admonish his wife who is either disloyal, or ill-conducts herself. Such admonition can be by refusing to share her bed, and as a last resort, even to beat her lightly. Thereafter, if the woman does not return to obedience, the husband is advised not to use means of annoyance against her. ‘Verse’ 35, sets out the course of settlement of family disputes. It postulates the appointment of two arbitrators – one representing the family of the husband, and