Holding

The appellant could not claim any right, title, or interest in the property because the joint family status was not severed, and the appellate courts erred in reversing the trial court’s finding without cogent reasons.

Summary

The appellant, Chintamani Ammal, claimed a share in agricultural land that was part of a joint Hindu family after her father, Kesava Gounder, died in 1943. She alleged that her father had expressed an intention to sever his joint family status before death, relying on oral testimony of her aunt. The trial court held that the father died as a member of an undivided joint family, giving the appellant no right under the Hindu Women's Right to Property Act, 1937 or the Hindu Succession Act, 1956. The first appellate court reversed this finding on the basis of the aunt's statement, but the High Court reinstated the trial court’s decision. The Supreme Court dismissed the appeal, ruling that the oral evidence was insufficient to prove a severance, that the 1937 Act does not apply to agricultural land, and that the appellate courts erred in overturning the trial court’s factual findings without cogent reasons.

Issues considered

The father’s alleged intention to sever his joint family status is sufficient to deem him a divided member for succession purposes.
Whether the Hindu Women's Right to Property Act, 1937 applies to agricultural land.
Whether the appellate court can reverse the trial court’s factual findings on oral evidence without providing sufficient reasons.
The presumption of continuance of a joint family and the burden of proof on the party alleging partition.

Legislation cited

Subjects

joint familypartitionHindu Women's Right to Property Actagricultural landsuccessionoral evidencepresumption of joint familyappellate reviewCivil Procedure

Judgment

'r CHINTAMANI AMMAL A
v.
NANDAGOPAL GOUNDER AND ANR.

FEBRUARY 20, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Hindu Law:
-""
Hindu Woman's Right to Property Act, 1937/Hindu Succession Act,
1956; s.14/Code of Civil Procedure, 1908; s.100: c
Joint Hindu Family Property-Share of claimant, daughter of deceased
a member of the joint family-Entitlement to-Held: She could not claim any
right, title and interest in terms of 1937 Act, as a successor of a member of
joint family unless joint status severed-Moreover, suit property being
agricultural property, 1931 Act not applicable-Statement furnished by a
D
r relative of the claimant does not prove that father of claimant, before his
death, intended to separate himselffrom other members-Property in question
-'
continued to be possessed as joint family property-Having regard lo nature
of oral evidence adduced before it, trial Court came to the conclusion that
the claimant failed to prove her case-Such a finding of trial Court could E
not have been reversed by first appellate Court without assigning any
sufficient and cogent reasons therefor as rightly held by the High Court-
Joint family property-Presumption of partition-Discussed.

"t Respondent No. I and one 'K' were brothers and members of a Joint
;# Hindu family. 'K' was suffering from small pox, he died in the year 1943. F
Immediately prior to his death, he allegedly expressed his intention to severe
his status as a member of the joint family. The wife of the deceased, mother
of the present appellant and the appellant were admittedly looked after by the
respondents. However, she left the family in or about 1945 and married another
person. Appellant-daughter of the deceased was not only brought up by G
Respondent No. 1, her Uncle, she was also given in marriage. She allegedly
_.,.,,_ claimed a share in the property and possession of the respondents was sought
to be disturbed. Respondents filed a declaratory suit and injunction against
her in the Civil Court. Appellant's husband had also filed a suit claiming a

903 H
904 SUPREME COURT REPORTS [2007) 2 S.C.R. ~

A leasehold right in the said property. The Trial Court opined that 'K' died in ·1
the year 1943 as a member of undivided joint family and, thus, the appellant
had derived no right, title and interest in the said property by succession or
otherwise. An appeal preferred thereagainst by the appellant was allowed by
the first appellate Court holding that her father died as a divided member of
the joint family as a result whereof she became entitled to claim half share in
B the property, The second appeal preferred by the respondents was allowed by
the High Court. Hence the present appeal.

Appellant contended that although she at the time of her father's death >--
was only three years old, the factum of separation was proved by DW-2 - her
c aunt; and thatthe father of the appellant and Respondent no. 1 having separated
themselves, she succeeded to the share of her father.

Dismissing the appeal, the Court

HELD: 1.1. The leg ii position that the appellant could not claim any right,
D title and interest whether in terms of the provisions of the Hindu Women's
Right to Property Act, 1937 or as a successor of her father, if the joint status i
was not severed, is not in dispute. !Para 12] 1908-8]
'-
1.2. The Hindu Women's Right to Property Act was not applicable in
relation to agricultural land. The State made an amendment in that behalf in
E the year 1947 whereafter, only a widow became entitled to claim limited
ownership in the sh~re of her husband. The mother of the appellant i.e. wife
of 'K', thus, did not derive any right, title and interest in the property of her
husband in the year 1943, when he expired. Furthermore, admittedly, she left
the family and married another person in the year 1945 and thus the question
F of her deriving any benefit in terms of the 1947 amendment also did not arise. t
[Para 12) [908-C-DI '
1.3. The first Appellate Court reversed the finding of the trial Court
relying only on or on the basis of the statement made by DW-2 - the aunt of
the appellant. The said statement by itself does not prove that 'K' made an
G unequivocal declaration that he intended to separate himself from his brother
or the same was duly communicated to the other co-sharers. DW-2 did not """'...--
say when such a declaration was made in presence of all coparceners. It was
not stated that at the time of making such purported declaration, the
respondents were present. If such a declaration had been made and the
H respondents accepted the same, ordinarily, not only the respondents would be
CHINTAMANI AMMAL r. NANDAGOPAL GOUNDER 905
asked to divide the property by partition by meets and bounds but also to look A
~- after the said property which fell in the share of the appellant. Allegedly,
Respondent No. I was requested to look after his family and not their property.
The property, admittedly, continued to be possessed as a joint property. It was
never partitioned by meets and bounds. Appellant never paid any rent
separately. No revenue record was prepared in her name. [Puas 14 and 15)
B
1.4. Even the husband of the appellant claimed the property as a lessee.
When the properties continued to be possessed jointly by the owners thereof,
a presumption in regard to the status of joint family both backward and forward
must be raised as no evidence was brought on records to establish unequivocal
declaration on the part of 'K'to separate himself from the joint family. If having c
regard to the nature of oral evidences adduced before it, the Trial Judge came
to the conclusion that the appeHant had failed to prove her case, the first
Appellate Court, as has rightly been held by the High Court, could not have
reversed the said finding without assigning sufficient and cogent reason
therefor. (Para 16) [909-B-C!
D
1.5. In law there exists a presumption in regard to the continuance of a
)- joint family. The party who raises a plea of partition is to prove the same.
Even separate possession of portion of the property by the co-sharers itself
would not lead to a presumption of partition. Several other factors are required
to be considered therefor. [Para 17] (909-D[
E
1.6. When the Trial Court arrived at a finding on the basis of
appreciation of oral evidence, the first Appellate Court could have reversed
the same only on assigning sufficient reasons therefor. Save and except the
said statement ofUW-2, the Court did not consider any other materials brought
t on records by the parties. [Para 18] [909-E] F
....
Mandholal v. Official Assistance of Bombay, AIR (1950) Federal Court
21; Madhusudan Das v. Narayanibai, AIR (1983) SC 114: [1983] 1 SCC 35
and Smt. Rajbir Kaur and Anr. v. S. Chokesiri and Co., [1989] I SCC 19;
Jagannath v. Arulappa and Anr, [2005.) 12 SCC 303 and H.K.N. Swamiv.
lrshad Basith (Dead) By LRs., [2005] IO SCC 243, relied on. G

- ;. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6198 of2000.

From the final Judgment and order dated 31. 7 .1998 of the High Court of

H
I\
.,,.
906 SUPREME COURT REPORTS [2007] 2 S.C.R.

A Judicature at Madras in S.A. No. 1899 of 1985.
··~
K. Ram Kumar for the Appellant.

K.K.' Mani and Mayur R. Shah for the Respondents.

B The Judgment of the Court was delivered by

S.B. SINHA, J. 1. This appeal is directed against a judgment and decree I'
dated 31.07 .1998 passed by a learned Single Judge of the High Court of
Judicature at Madras in Second Appeal No. 1899 of 1985 whereby and ';-
whereunder an appeal under Section I00 of the Code of Civil Procedure
c preferred by the respondents herein from a judgment and decree dated
11.09.1985 passed by the Subordinate Judge, Arni, North Arcot District in
Appeal Suit No. 68 of 1984 was allowed, in turn, allowing an appeal from a
judgment and decree dated 27 .07 .1984 passed by the Court of the Principal
District Munsif, Ami in Original Suit No. 1301 of 1979.

D 2. Plaintiffs in the suit are the respondents before us. The said suit was
filed for declaration and injunction against the appellant herein.
~
3. Kesava Gounder and Respondent No. I were brothers. They admittedly
were members of a joint family. Kesava Gounder was suffering from small pox.
He died in 1943. Immediately prior to his death, he allegedly expressed his
E intention to severe his status as a member of the joint family.

4. The wife of the said Kesava Gounder (mother of the appellant herein)
and the appellant were admittedly looked after by the respondents. However,
the mother of the appellant left the family in or about 1945 and married another
F person. Appellant was not only brought up by Respondent No. 1, she was f
also given in marriage. She allegedly claimed a share in the property. Possession ....
of the respondents was sought to be disturbed. Respondents filed a suit for
declara~ion and injunction against her in the Court of Munsif. The principal
issue wh-ich arose for consideration in the said suit was as to whether the said
Kesava Gounder had expressed his intention to separate as a result whereof
G the joint family severed although no partition by meets and bounds took
place.

5: The contention of the respondents was that the property being a
joint family property on the death ofKesava Gounder in 1943, they succeeded
-
thereto by survivorship and had been enjoying the same ever since and only
H
CHINTAMANI AMMAL v. NANDAGOPAL GOUNDER [S.B. SINHA, J.] 907

at a much later date the appellant made an attempt to disturb their possession. A
6. Appellant's husband had also filed a suit claiming a leasehold right
in the said property.

7. Both the suits were heard together. The Trial Court by its judgment
and order dated 27.07.1984 opined that the said Kesava Gounder died in the B
year 1943 as a member of undivided joint family and, thus, the appellant had
. ·• derived no right, title and interest in the said property by succession or
4'
_, otherwise. An appeal preferred thereagainst by the appellant, however, was
allowed by the Subordinate Judge holding that the father of the appellant died
as a rlivided member of the joint family as a result whereof she became entitled
to claim half share. The second appeal preferred by the respondents herein c
from the said judgment and decree passed by the first appellate court has
./
been allowed by reason of the impugned judgment.
--'(

8. Mr. B. Sridhar, learned counsel appearing in support of the appellant,
would submit that although the appellant at the time of her father's death was
D
only three years old, the factum of separation was proved by DW-2 - her aunt,
who in her deposition stated:
~
'
..J "The father of this defendant while he was unwell became divided in
status. At that prevailing situation out and out partition was not
possible. The first plaintiff gave his word to take care of this defendant E
and her mother."

9. The learned counsel would contend that in view of the decision of
this Court in A. Raghavamma and anr v. A. Chenchamma and anr, AIR ( 1964)
SC 136, the father of the appellant and Respondent No. I herein having
i'" separated themselves, she succeeded to the share of her father. F
\,. ....
10. The learned counsel appearing on behalf of the respondents, on the
other hand, would support the judgment.

11. Although, before us, the appellant has made a claim of deriving
right, title and interest by way of succession to the interest of late Kesava G
~
Gounder, in the written statement filed by her before the learned Trial Judge,
only a limited right was claimed, which, allegedly, culminated into an absolute
----'
title in terms of Section 14(1) of the Hindu Succession Act, 1956. The High
Court in its judgment held that the property in suit being agricultural property,
the Hindu Women's Right to Property Act, 1937 being not applicable in
H
• -..;_ .
I

908 SUPREME COURT REPORTS (2007] 2 S.C.R.

A relation thereto in the year 1943, the mother of the appellant or for that matter,
she herself could not have succeeded to her father's interest in the property ··1
which was a joint family property. It was further held that the plea that the
a
said Kesava Gounder died as divided member was put forth 36 years after
his death, was wholly improbable.

B 12. The legal position that the appellant herein could not claim any
right, title and interest whether in terms of the provisions of the Hindu
Women's Right to Property Act, 1937 or as a successor of the said Kesava i:
Gounder, if the joint status was not severed, is not in dispute. The Hindu
Women's Right to Property Act was not applicable in relation to agricultural r
c land. The State of Madras made an amendment in that behalf in the year 1947
whereafter, only a widow became entitled to claim limited ownership in the
share of her husband. The mother of the appellant i.e. wife of the said Kesava
,__
Gounder, thus, did not derive any right, title and interest in the property of
her husband in the year 1943, when he expired. Furthermore, admittedly, she ..
>.

left the family and married another person in the year 1945 and thus the
D question of her deriving any benefit in terms of the 1947 amendment also did
not arise.
~
13. Before the learned Trial Judge, the parties adduced their respective
evidences. The learned Trial Judge had an occasion to look to the demeanour
of the witnesses. He came to the conclusion that the properties in suit had
E all along been held as a joint family property opining that the father of the
appellant did not have any divided status as alleged or at all.
I-
14. The first Appellate Court reversed the said finding relying only on
or on the basis of the statement made by DW-2 - the aunt of the appellant
which has been noticed by us hereinbefore. The said statement by itself does
F not prove that the said Kesava Gounder made an unequivocal declaration that ~

he intended to separate himself from his brother or the same was duly
,4
communicated to the other co-sharers. DW-2 did not say when such a
declaration was made in presence of all coparceners. It was not stated that
at the time of making such purported declaration, the respondents were
G present.

15. If such a declaration had been made and the respondents herein
....
., ___
accepted the same, ordinarily, not only the respondents would be asked to
divide the property by partition by metes and bounds but also to look after
the said property which fell in the share of the appellant. Allegedly, Respondent
H
'·
CHINTAMANI AMMAL v. NANDAGOPAL GOUNDER [S.B. SINHA, J.] 909
No. I was requested to look after his family and not their property. The A
property, admittedly, continued to be possessed as a joint property. It was
never partitioned by metes and bounds. Appellant never paid any rent
separately. No revenue record was prepared in her name.

16. Even the husband of the appellant claimed the property as a lessee.
When the properties continued to be possessed jointly by the owners thereof, B
a presumption in regard to the status of joint family both backward and
forward must be raised as no evidence was brought on records to establish
unequivocal declaration on the part of Kesava Gounder to separate himself
from the joint family. If having regard to the nature of oral evidences adduced
before it, the learned Trial Judge came to the conclusion that the appellant C
had failed to prove her case, the first Appellate Court, in our opinion, as has
rightly been held by the High Court, could not have reversed the said finding
without assigning sufficient and cogent reason therefor.

17. In law there exists a presumption in regard to the continuance of a
joint family. The party who raises a plea of partition is to prove the same. Even D
separate possession of portion of the property by the co-sharers itself would
not lead to a presumption of partition. Several other factors are required to
be considered therefor.

18. Furthermore, when the learned Trial Judge arrived at a finding on the
basis of appreciation of oral evidence, the first Appellate Court could have E
reversed the same only on assigning sufficient reasons therefor. Save and
except the said statement of DW-2, the learned Judge did not consider any
other materials brought on records by the parties.

19. In Mandholal v. Official Assistance of Bombay AIR (1950) Federal
T Court 21, it was observed: F
"It is true that a Judge of first instance can never be treated as
infalliable in determining on which side the truth lies and like other
tribunals he may go wrong on question of fact but on such matters
if the evidence as a whole can reasonably be regarded as justifying G
the conclusion arrived at, the appeal ccmrt should not lightly interfere
with the judgment."

See also Madhusudan Das v. Narayanibai - AIR (1983) SC 114 : [1983]
1sec35,
H
910 SUPREME COURT REPORTS [2007] 2 S.C.R.

A ,20. In Smt. Rajbir Kaur and Anr v. S. Chokesiri and Co. [1989] I SCC
19, this Court observed:

"48. Reference on the point could also usefully be made to A.L.
Goodharts article in which, the learned author points out :

B "A judge sitting without a jury must perform dual function. The first
function consists in the establishment of the particular facts. This
may be described as the perceptive function. It is what you actually
1
perceive by the five senses. It is a datum of experience as distinct
1 from a conclusion.

C ft is obvious that, in almost all cases tried by a judge without a jury,
an appellate court, which has not had an opportunity of seeing the
witnesses, must accept his conclusions offact because it cannot tell
on what grounds he reached them and what impression the various
witnesses made on him. "(emphasis supplied)

·D 49. The following is the statement of the same principle in "The
Supreme Court Practice:"

Great weight is due to the decision of a judge of first instance whenever,
in a conflict of testimony, the demeanour and manner of witnesses
who have been seen and heard by him are material elements in the
E consideration of the truthfulness of these statements. But the parties
to the cause are nevertheless entitled as well on questions of fact as
1

on questions of law to demand the decision of the Court of Appeal,
and that court cannot excuse itself from the task of weighing conflicting
evidence, and drawing its own conclusions, though it should always
bear in mind that it has neither seen nor heard the witnesses and
F should make due allowance in this respect.(pp. 854-55)

...Not to have seen witnesses puts appellate judges in a pennanent
position of disadvantage against the trial judge, and unless it can be
'shown that he has failed to use or has palpably misused his advantage
. for example has failed to observe inconsistencies or indisputable fact
G or material probabilities [ibid. and Yuill (1945) p. 15; Watt v. Thomas]
the higher court ought not take the responsibility of reversing
·conclusions so arrived at merely as the result of their own comparisons
and criticisms of the witnesses, and of their view of the probabilities
of the case .... (p. 855)
H
-+
CHINTAMANI AMMAL" NANDAGOPAL GOUNDER [S.B. SINHA, J.] 911
... But while the Court of Appeal is always reluctant to reject a finding A
by a judge of the specific or primary facts deposed to by the witnesses,
especially when the finding is based on the credibility or bearing of
a witness, it is willing to form an independent opinion upon the proper
inference to be drawn from it.... (p. 855)

50. A consideration of this aspect would be incomplete without a B
reference to the observations of B.K. Mukherjea, J., in Sarju Pershad
Ramdeo Sahu v. Raja Jwa/eshwari Pratap Narain Singh which as a
succinct statement of the rule, cannot indeed be bettered :

"The question for our consideration is undoubtedly one of fact, the
decision of which depends upon the appreciation of the oral evidence C
adduced in the case. In such cases, the appellate court has got to bear
in mind that it has not the advantage which the trial Judge had in
having the witnesses before him and of observing the manner in
which they deposed in court. This certainly does not mean that when
an appeal lies on facts, the appellate court is not competent to reverse D
a finding of fact arrived at by the trial Judge. The rule is and it is
nothing more than a rule of practice that when there is conflict of oral
evidence of the parties on any matter in issue and the decision hinges
upon the credibility of the witnesses, then unless there is some
special feature about the evidence of a particular witness which has
escaped the trial Judges notice or there is a sufficient balance of E
improbability to displace his opinion as to where the credibility lies,
the appellate court should not interfere with the finding of the trial
Judge on a question of fact.

51. The area in which the question lies in the present case is the area

.. of the perceptive functions of the trial Judge where the possibility of F
errors of inference does not play a significant role. The question
whether the statement of the witnesses in regard to what was amenable
to perception by sensual experience as to what they saw and heard
is acceptable or not is the area in which the well-known limitation on
the powers of the appellate court to reappreciate the evidence falls. G
The appellate court, if it seeks to reverse those findings of fact, must
give cogent reasons to demonstrate how the trial court fell into an
.... _._ -"#'~
obvious error.

52. With respect to the High Court, we think, that, what the High
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SUPREME COURT REPORTS [2007] 2 S.C.R.

A Court did was what perhaps even an appellate court, with full fledged
appellate jurisdiction would, in the circumstances of the present case,
have felt compelled to abstain from and reluctant to do. Contention
(c) would also require to be upheld."

.21. In Jagannath v. Aru/appa and Anr., [2005] 12 SCC 303, this Court
B while considering the scope of Section 96 of the Code of Civil Procedure
opined that it would be wholly improper to allow first appeal without adverting
to the specific findings of the Trial Court.

22. In H.K.N. Swamiv. lrshad Basith (Dead) By LRs., [2005] IO SCC 243,
this Court opined that the appellate court is required to address all the issues
C and determine the appeal upon assignment of cogent reasons.

_23. In this view of the matter, it is not necessary for us to consider the
submjssion of Mr. Sridharin regard to the effect of the severance of the joint
status, as adumbrated by this Court in A. Raghavamma (supra).

D 24. For the reasons aforementioned, there is no merit in this appeal,
which is accordingly dismissed. However, in the facts and circumstances of
this case, there shall be no order as to costs.

S.K.S .. Appeal dismissed.

r

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