Holding

The deed’s preliminary recital proves that the younger brother had clearly intimated his intention to sever the joint family status, effecting a partition; thus the lands were his separate property and passed to his daughter, and Section 92 does not bar extrinsic evidence for this purpose.

Summary

The dispute concerned lands that were part of a Desgat estate held by two brothers, Narayanarao (elder) and Ramachandrarao (younger). In 1902 Narayanarao executed a deed (Exhibit 39) granting certain lands to Ramachandrarao for his maintenance and that of his male descendants. The plaintiffs, descendants of Narayanarao, claimed the lands were impartible and that, after Ramachandrarao's death without male issue, they should revert to them. The appellant, Krishnabai, daughter of Ramachandrarao, argued that the deed reflected an earlier severance of the joint Hindu family, i.e., a partition, making the lands his separate property which passed to her. The Supreme Court held that the deed’s preliminary recital showed a clear intimation by Ramachandrarao to sever the joint family status, effecting a partition; consequently the lands were his exclusive property and passed to his daughter. The Court also held that Section 92 of the Evidence Act does not bar extrinsic evidence to interpret the recital. The appeal was allowed and the plaintiffs' suit dismissed.

Issues considered

The deed (Exhibit 39) indicates a partition or severance of the joint Hindu family status under Mitakshara law.
Whether Section 92 of the Evidence Act precludes extrinsic evidence to interpret the preliminary recital of the deed.
The effect of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 on the title to the lands.
Whether the re‑grant of the land under the 1950 Act benefits the whole family or only the grantee.

Legislation cited

Bombay Pargana and Kulkarni Watans (Abolition) Acts. 60
Indian Evidence Act, 1872s. 92
Indian Trust Acts. 90

Subjects

Hindu lawMitaksharajoint familypartitionseverancedeed interpretationSection 92 Evidence ActWatans abolitionmaintenance deedsuccessionprimogeniture

Judgment

161

KRISHNABAI DESHMUKH
v.
TULJERAMARAO NAMBIAR & ORS .
. •
• July 31, 1979
[R. S. SARKARIA AND D. A. DESAI, JJ.] B

Interpretation-Deed of Settlement-Intention-How could be gathered.

Evidence Act, s. 92-Wlien applicable.

Ilindu Law-Family partition-Intimation to live separately-Whether
should be explicit. C
The grandfather and great-grand-father of the respondents and the father
of the appellant were brothers. By a registered deed (Ext. 39) the elder
brother purportedly gave the younger brother (appellant's father) some lands
for separate living and maintenance of himself, and his male lineal descendants
for ever. The lands in dispute were a part of the lands covered by the deed.
D
In their suit, the plaintiffs alleged that the suit lands were part of Desgat
Watan estate which, by virtue of an immemorial family and territorial custom,
\Vas impartible and the junior members were given lands only for their main-
tenance, and that till his death, the appellant's father continued to be an un-
divided member of the joint family consisting of himself and the plaintiffs, and
that on the death of the appellant's father the lands should go to them.

The trial court held : (I) that the impartibility of tbe estate and the rule of
primogeniture had not been proved; (2) that there was severance of the joint
family in 1902 since when the brothers were living separately; (3) that on the
abolition of Watans by Bombay Act 60 of 1950, the suit lands which originally
were Watan lands, were re-granted in favour of ·the appellant's father and that
the plaintiffs tacitly assented to the regrant of the lands exclusively in his favour.
F
On appeal, the High Court affirmed the view of the trial court that the estate
was not impartible and that the onus of proving partition was on the defendant
(appellant herein). It was held that Ext. 39 did not establish that the brothers
were divided in 1902 and that the suit lands were allotted to the appellant's
father; that on the erroneous but honest belief that Desgat lands were impartible,
the elder brother granted the )ands to bis brother and his descendants in the
male line in lieu of their maintenance· and that the younger brother having died G
• without male issue, the tenure came to an end whereupon the plaintiffs who were
the surViving male members of the fan1ily, were entitled to resume the lands.
'flie High Court remitted the matter to the trial court with certain directions.

In appeal to this Court, the appellant contended: (i) that her father prior to
the execution of Ext. 39, had clearly intimated to his brother his intention to
divide the estate and to live separately after division, resulted in a severance of H
!he joint family status, and that such severance was evident from the recitals in
Ext 39 and the subsequent conduct of the members of the erstwhile family.
162 SUi'REME COURT REPORTS [!980] 1 s.c.R.

A Since the appellant's father after such division \Vas ho1ding, the suit lands as his
separate property, the same were inherited by the appellant to the exclusion of
the plaintiffs. (ii) Since the regrant of the suit Jands to the appellant's father
created ne\'/ rights exclusively in his favour, the regrant did not enure for the
b~nefit of the plaintiffs.
"
B Allo\ving the appeal and dismissing the plaintiff's suit
•

HELD : 1. Unity of ownership and commonsality of enjoyn1ent arc
the essential attributes of an undivided Hindu family of Mitakshra concept. So
long as the fan1ily remains undivided no n1ernber can predicate a definite share
•
to himself. Cesser of this unity and comn1onsality means cesser or severance
of the joint family status, which in Hindu Law amounts to partition, irrespective
of whether it is accon1panied or followed by a division of the properties by metes
and bounds. Disruption of joint status covers both division of right and di vi-
sion of property. Division of joint status may be brought about by any adult
- n1cmber of the joint family by intimating the others his intention to separate and
enjoy his share in the family property in severalty. Such intimation may be an
explicit declaration (written or oral) or n1anifested by conduct of the members
of the family. [170A-BJ
D
(i) Jn the inStant case, Ext. 39 speaks of a division of the joint family status
and separation of interests. The trial judge translated the term "Vibhaktara-
have" in Marathi, as connoting division of status. But the High Court did
not agree \Vith the translation made by the trial judge, and preferred to rely on
the translation by the High Court translator. Except for the English transla-
tion of the word "Vibhaktarahave" there is no substantial difference between
E the two translations. [171 A-B]
The \'\lord "V'ibhaktarahave" is a compound of t\vo words viz., "Vibhakta••
and "llahave··. "Vibhakta" appears to have its roots in the Sanskrit word
"Vibhaga". "In the Mitakshra, Vijnanesvara, defines the word 'Vibhaga\
which is usually rendered into English by the word 'partition' as the adjustment
of diverse rights regarding the whole by distributing them in particular par·
tions of the aggregate''. "Rahave" means "living". Understood in its etymo-
F logical sense the \Vord "Vibhaktarahave" n1eans living separately after division.
[172HJ
(ii) None of the four features which, according to the High Court, militate
against the literal interpretation of the· word "Vibbaktarahave", viz., that the deed
was one for maintenance, that it was executed by the elder brother, that the
lands were given to the appellant's father and his descendants in the male line
G and that the appellant's father would not have remained contended with only a
small portion instead of claiming entire half-share detracts from the concla·
sion that in substance and reality the document evidence a division of joint
•
family status as a result of an intimation by the appe1lant's father to his b!"other
of his intention to live separately after division. [173D]

2. Section 92 of the Evidence Act prohibits only the varying of terms of a
H document, not the memorandum or recita1s of facts, bereft of dispositive
tcrn1s, particularly \Vhen the correctness of the whole or any part of the recital
is in question. [174E]
KRlSHNAEAI \'. T. NA1vlBJ,\R 163

In the instant case the preliminary recital does not fall under the dispositive A
or operative portion of the document. The bar under s. 92 against the admissi-
bility of extrinsic evidence for the purposes of showing that the insertion of the
_words ·for your maintenance' in the recital is wrong, is not attracted. [174G]
.•
• 3. (a) When there is a dispute in regard to the true character of a
writing evidence de hors the document can be led to shov.' that the writing
was not the Teal nature of the transaction but was only illusory which cloaked B
something else and that the apparent state of affairs \Vas not the real state
of affairs. [174H]

Clwndi Prasad Singh v. Piari Bidi, CA No. 75 of 1964, decided on 16~3·1966,
Bhagwan Dayal v. Reoti Dcri, [1962} 3 SCR 440; referred to.

(b) The preliminary recital in Ext. 39 raises an inference that sometime
prior to the date of the deed the younger brother had clearly intimated to his c
coparcener of his intention to sever the· joint fan1ily status and to enjoy the
joint f<imily property in severalty. Disruption ·of the joint family status ensu;;:d.
From that date onwards the brothers ceased to be coparceners. That is, at the
tim.e cf the execution Of the deed, joint family status did not exist. There is no
evidence that after the severance of the joint family status there was a re-union.
[175 E-F]
D
(c) It cannot be said that the preliminary recital furnished little or no evi-
dence that the younger brother intimated in clear terms his intention to sever
the joint family status. The document had been let in evidence more than 70
years after its execution. All those who might have given evidence were dead.
Jn such a situation it is permissible to draw reasonable inferences to fill the gap
of details obliterated by time. [17SH; 176A] •

Chintan1anibhatla T7 ankat Reddy v. Rani of Wadhawan; 47 I.A. 6 at p. 10; E
Sref' Sree lswar Gopal lien Thakur v. Pratapmal Begaria, [1951] SCR 332;
referred to.
(d) Once it is found that the division of joint status preceded the execution
of the deed, the elder brother bad no power to impose a condition that the land
was being given to his younger brother and male lineal descendants for their
maintenance. [176 E-F] F
(e) The expression 'Potgi' (maintenance)' or 'Nirwahkrit' used in the deed
could not be construed as conferring an estate with restricted rights of ownership
to the younger brother and his descendants. The deed evidences a permanent
transfer of land to be enjoyed from generation to generation. Moreover the
younger brother remained in full ownership of the land till his death. After the
•' abolition of Watans he alone applied for re-grant of this land in bis favour .
The plaintiffs \Vere a\vare of this position. [177A-B]
G

CIVIL (PPELLATE JURISDICTION : Civil Appeal No. 54 of 1969.
From the Judgment and Order dated 23-10-1968 of the Mysore
High Court in R.F.A. No. 25/63.
B. D. Dal, S. Bhandare, A. N. Karkhanis and Miss M. Palival for 8
the Appellant.
V. S. Desai and N. Nettar for the Respondent.
164 SUPREME COURT REPORTS [1980J l S.C.R.

A The Judgment of the Court was delivered by
SARKARIA, J. This appeal by the. defendant, on certificate, is I
directed against a judgment, dated October 23, 1968, whereby in First
Appeal, the High Court of Mysore set aside the judgment and decree
passed by the joint Civil Judge, Senior Division, Belgaum.
The pedigree of the family given below will be helpful in under-
•
B
standing the facts leading to this appeal:
Ravalojirao
(died before 1900)
I
I
Narayanarao
I
Ramachandrarao
(died in 1924) (<lied on 20-1-1955)
c . I
TuIJeramarao K. I b.
nshna a1
(died in 1944) (Defendc.nt-appellant)
]~~~~~~~~~~~~~~~~!
I I
Appasaheb Nanasaheb
(Pltf.J.) (Pltf.2.)
Sou. Vasundhararaje (Pltf. 3.)
D I
I
[ Ashok Kumar Pushbendra Virdndra Indlajit RavalogiJao Naraylnarao
! (Pltf.3) Singh Singh Singh (Pltf.9) (Pltf.10)
(Pltf.6) (Pltf. 7) (Pltf.8)
By a registered document, dated July 25, 1902 (Ex. 39), execut-
ed by Narayanarao, six Desgat lands situated illJ villages Nanandi, Uma-
E rani and Nandikurli totalling about 120 acres, were received by
Ramachandrarao, for separate living and maintenance of himself and
his male lineal descendants. Out of the lands covered by the said
deed, three lands comprised in Survey Nos. 114 (26 acres-30 gunthas),
115 (9 acres-38 gunthas) and 116 (26 acres-34 gunthas), totalling
about 63 acres and 22 gunthas, situate in the area of village Umarani,
F Taluka Chikodi, are the subject-matter of the suit, out of which this
appeal has arisen.
The respondents herein, who are the grand-sons and great grand-
sons of Narayanarao, on July 24, 1960, instituted Suit No. 26/60
in the Court of Civil Judge, Belgaum against Smt. Krishnabai, appel-
G lant, for possession of the said lands and for recovery of past and
future mesne profits, with these allegations: (i) that the suit lands were
Desgat Watan lands and were part of the Desgat Watan estate of
Nanandi, (ii) that by virtue of an ancient and immemorial family and
territorial custom, the Desgat estate of Nanandi was im- /.
•
partible and descended from generation to generation to the senior-
H most member by the rule of primogeniture, while the junior members
of the family were only given some lands for their maintenance by
the ho)der of the Desgat for the ffme being; (iii) that till his death,
KRISHNABAI v. T. NAMBIAR (Sarkaria, !.) 165

the appellant's father continued to be an undivided member of the A
Joint family consisting of himself and the plaintiffs; and (iv) that on
July 31, 1956, a partition by metes and bounds has taken place bet-
·' ween the plaintiffs inter se under a partition deed.
The suit was resisted by the defendant-appellant. She denied
the alleged ancient, family and territorial custom of primogeniture. B
She denied that the property formed part of the Desgat Watan estate
of Nanandi. She further denied that her father, Ramachandrarao,
came into possession of the suit land for his maintenance. She fur-
ther pleaded that Ramachandrarao and his brother Narayanarao had
separated during their life-time arnj the suit lands and some other
lands were given to Ramachandrarao in the partition between the
c
two brothers towards a part of his share, and it was agreed that the
share of Raachandrarao in other family properties would be separated
and settled at some future convenient time. She further stated that
since 1902, Ramachandrarao was in separate passession and enjoy-
ment of the suit lands till his death on January 20, 1955, and that at D
the time of his death he was not an undivided member of the joint
family of himself and the plaintiffs. She further pleaded that on her
father"s death she succeeded to the suit lands, which were his separate
property. She further relied on the Bombay Pargana and Kulkarni
Wantans (Abolition) Act, 1950 (Bombay Act No. 60 of 1950),
(for short, called the Act), and the re-grant of the land made in E
favour of her father, under that Act.
The learned trial judge by his judgment, dated September 29,
1962, dismissed the respondents' suit with these findings :
(a) that the alleged custom of impartibility and devolution of
property by the rule of primogeniture had not been proved; F
(b) that there was a severance of the joint family consisting of
the two brothers, in 1902, when they had agreed to separate, that
since then for about 53 years till bis death in 1955, Ramacbandrarao
was Jiving separately and enjoying the suit land as his separate pro-
perty; 1 G

(c) that the suit lands were originally Watan lands, but they
were not so at the date of the suit because the Bombay Act 60 of
1950, which came into force on May 1, 1951, bad abolished Watans
and thereafter the suit lands were, on the application of its holder,
Ramachandrarao, regranted in his favour; that the plaintiffs were H
aware of Ramachandrarao's application for the regrant and they had
tacitly assented to the regrant in his
favour.
166 SL1PREME COURT REPORTS [198ll] l S.C.I<.
',.-,-:I
A
Aggrieved, the plaintiffs preferred an appeal in the High Court of
I
Mysore. The High Court affirmed the finding of the trial court, that
the custom pleaded by the plaintiffs with regard to the impartibility
of the property had not been established. It observed that "the onus "
of proving partition is on the defendant, "but the only evidence in •
B support of her case that Ramachandrarao was divided, is Exhibit No.
,.•
39". The High Court construed the deed (Ex. 39) with the aid
¥
of its translations into English, one made by the trial judge and the
other by the High Court Translator. It then took note of these fea-
tures in support of the 'theory of partition' :
"(a) Permanency of the arrangement. The de-ed pro-
c vides that Ramachandrarao and his descendants in the male
line shall enjoy the property from generation to generation
without interference from the grantor.
(b) Cesser of commonsality. The deed says that
Ramachandrarao desired to Jive separately and therefore
D the lands were granted to him. The evidence is that Rama-
chandrarao Jived separate from 1902. There is no evidence
to the contrary."
It then listed these features to negative the 'theory of partition'
"(a) The nomenclature of the deed. It is styled as a
deed of maintenance.
E
(b) It was executed by one of the parties only. If
it was intended to be a partition deed it would have been
executed by both the parties each relinquishing his rights
in the properties not allotted to him.
II
(c) The deed says that the lands were given to the
grantee and his descendants in the male line for mainte-

-
nance only and they should enjoy the lands continuously.
(d) The total extent of the Desgat lands was over
eight thous'and acres; if partition was intended, Rama-
chandrarao who was entitled to a one-half share would not
""·
G have been contented with 90 acres valued at Rs. 3,400/-."
After cataloguing these pros and cons the High Court concluded :
"In our judgment, Exhibit 39 considered along with the
~··
circumstances in which it was executed, does not establish
the defendant's case that Ramachandrarao was divided frC\lll
H Narayanarao in 1902 and that the suit lands, among others.
were allotted to Ramachandrarao's share. We are of the
view that on the erronc9us but honest belief that Des-
KRISHNABAI v. T. NAMBIAR (Sarkaria, J.) 167

gat was an impartiblc estate, Narayanarao granted the lands
to Ramachandrarao and his descendants in the male line in
lieu of their maintenance. When Ramachandrarao died
without male issue, the interest granted ceased or the tenure
came to an end. The plaintiffs who are the surviving mem-
bers of the family are entitled to resume the lands."
B
Although no such plea was taken by the plaintiffs in the plaint,
the High Court hcld that in view of Section 90 of the Indian Trust
Act, the regrant made, after the abolition of Watans, under the Act
in favour of Ramachandrarao must ensure for the benefit of the family
of the Watandars including the plaintiffs, because Ramachandrarao at
the time of his death was holding the suit. land as an undivided mem- C
ber of the joint family, for his own benefit and that of the other
members of the undivided family.
Since there was no evidence as to the occupancy price paid by
Ramachandrarao to obtain the regrant, the High Court, after allowing
the appeal and setting aside the decree of the Trial Court, remanded D
the matter to the court below, with a direction that it should ascer-
tain the amount of occupancy price paid by Ramachandrarao, and
then pass a decree for possession in favour of the plaintiffs subject
to the repayment of the said amount.
Hence this appeal by the defendant on the basis of a certificate
granted by the High Court under Article 133(1) (e) and (c) of the E
Constitution.
Shri B. A. Bal, learned counsel for the appellant, has, in the
course of his arguments, sought to make out two main points :
1. (a) Sometime prior to the execution of the deed. (Ex. 39)
dated July 25, 1902, there was a severance of the joint Hindu family F
as a result of an intimation by Ramachandrarao of his intention to
separate and Narayanarao's acceptance of the same. Such severance
tan be clearly inferred from:
(i) the recitals in the deed (Ex. 39), the permanent allocation
of the suit land along with some other land, to Ramachandrarao and
• his descendants, and (ii) the subsequent conduct of the members of
the erstwhile joint family.
G

(b) Since the deed (Ex. 39) (it is argued) is more than 75 years
old and Narayanarao, Ramachandrarao and others who might have
given evidence with regard to the circumstances resulting in this trans-
action are all deed and gone, the recitals, in the deed coupled with H
the subsequent conduct of the parties, and supplemented by reason-
able inferences, were more than sufficient to discharge the initial
12-475SC!/79
HIS SUPREME COURT REPORTS [1980] I S.C.R.

A onus, if any, on the defendant to show severance of the joint family ' 1
since 1902 or thereabout and the same continued till Ramachandra-
rao's death in 1955. Reference in this connection has been made to
BhagWari Dayal v. Mst. Reoti Devi.(')
•
(c) Since at the time of his death in 1955, Ramachandrarao was •
• not a membe;r of an undivided Hindu family and the suit land was
his separate property, his danghter the defendant would, even accord-
"
ing to traditional Hindu Law, inherit his estate to the exclusion of the
plaintiff-collaterals.
(2) Section 4 of the Bombay act 60 of 1950 ab):ished Watons
c with effect from May 1, 1951. Section 5 of the same Act abrogated
the rule of primogeniture and also every law or custom by virtue of
which females were postponed to males in the matter of succession.
After the abolition of the Watons Ramachandrarao alone, to the
knowledge of the plaintiff-respondents, obtained a regrant of the suit
land from the Government in his favour. Similarly, the plaintiffs
D applied for regrant of the other Ex-watan lands measuring about
8000 acres, to the exclusion of Ramachandrarao. The regrant of the
suit land in favour of Ramachandrarao created new rights exclusively
in his favour. Since on May 1, 1951 he was holding the suit land
separately as a divided member of the family, the regrant did not
ensure for benefit of the plaintiffs.
£
As against this, Shri V. S. Desai submits that since it was the
admitted case of the parties that sometime before the execution of
the deed (Ex. 39) dated July 25, 1902. Narayanarao and Rama-
chandrarao constituted a joint Hindu family governed by Mitakshra,
and the presumption of jointness in case of brothers is stronger, the
F burden was on the defendant to prove by cogent and convincing evi-
dence that the joint family had disrupted and Ramachandrarao had
separated in 1902 and the suit land was his separate property which
fell to his share in partition. It is maintained that the recitals in the
deed, Ex. 39, do not furnish any evidence that Ramacha'ndrarao had
communicated an unambiguous dlld clear intention to separate from
G
••
hL~ brother in estate and thenceforth hold it in defined shares.
It is urged that the transaction evidenced by the deed
should be construed by the Court, not according to its own sense of
right and wrong, but according to the notions and beliefs prevailing
among orthodox Hindus iri 1902, of a strata of society to which
H Narayanarao and Ramachandrarao belonged. In 1902, proceeds the
argument, to cause disruption of a joint Hindu family of Watandars
- (I) [1962) 3 SCR 440.
•

KRISHNABAI v. T. NAMBIAR (Sarkaria, J.) 169

was considered to be a sin. According to Shri Desai, if the document,
A
Ex. 39, is coi1sidered from that view-point it would appear that the
arrangement devised thereby was consistent with the continuance and
• preservation of the jointness of the family and its estate, rather than
its division and disruption. It is pointed out that the area of Watan
Land held by t)1e joint Hindu family in 1902 was about eight thous- B
• and acres, and if the intention of the brothers wa,; to sever the joint
family status, there was no difficulty in declaring that thenceforth the
two brothers would hold the entire estate in equal, defined shares. It
is emphasised, though Ramchandrarao, died in 1955, he never asked
for partition and possession of his one-half share in the remaining
seven or eight thousand acres held by N arayanarao and his descen- c
dants, but remained contented with a mere 118 or 120 acres given
to him for maintenance under Ex. 39 in 1902. It is further submit-
ted that the Court cannot construe the deed Ex. 39, as a deed of
partition, but only as a· deed of maintenance, as it, expressly purports
to be, because in view of Section 92 of the Evidence Act no extrin-
sic evidence is admissible to contradict or vary its terms. D

In support of his arguments Shri Desai has referred to Paragraph
448 of Mayne's Hindu Law (1953 Edn.). ·

Learned counsel further submits that in view of the paucity of
evidence produced by the defendant-appellant to show division of the E
joint-family, the High Court was right in holding that Ramchandra-
rao died as an undivided member of the joint Hindu family consisting
&If himself and the plaintiffs. It is submitted, in that xiew of the
matter, the second point urged by Shri Bal does not survive for deci-
sion. Nevertheless, Shri Desai took us through the relevant provi-
sions of the &mbay Act LX of 1950 and the Watan Act of 1874, F
to show that there is nothing in those provisions which militates
against the finding of the High Court to the effect, that if Ramchand-
rarao died as an undivided member of the joint family, the regrant
would enure for the benefit of all the members of the family.
G
We will take Point No. 1 canvassed by Shri Bal. The primary
question that falls to be considered is, whether in 1902 or shortly
prior to it, there was a partition between the two brothers-Narayana-
:\. rao and Ramchandrarao-in a manner known to law. In this con-
nection, it is necessary, at the outset, to notice the fundamental prin-
ciples of Hindu Law bearing on the point. The parties are admit- H
tedly governed by Mitakshrru School of Hindu Law. In an undivid~.d
Hindu family of Mitakshra concept, no member can say that he is
170 5UPREME COURT REPORTS [1980) 1 S.C.R.

A the owner of one-half, one-third ·or one-fourth share in the family
property, there being unity of ownership and commonsality of enjoy-
ment while the family remains undivided. Such unity and common-
sality or the essential attributes of the concept of joint family status.
Cesser of this unity and commonsality means cesser or severance of the
•
B joint family status, or, which under Hindu Law is 'partition' irres·
pective of whether it is accompanied or followed by a divisfon of the
properties by metes and bounds. Disruption of joint status, itself, ,_ ...
as Lord Westbury put it in Appovier v. Rama Subha Aivan., (') in
effect, "covers both a division of right and division of property."
Reiterating the same position, in Giria Bai v. Sadashiv,(') the Judi-
c cial Committee explained that division of the joint status, or partition
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."
The divi~ion of the joint status may be brought about by any
D adult member of the joint family by intimating, indicating or repre-
senting to the other members in clear and unambiguous terms, his
intention to separate and enjoy his share in the family property, in
severality. Such intimation, indication or representation may take
diverse forms. Sometimes it is evidenced by an explicit declaration
(written or oral); sometimes, it is manifested by conduct of the mem- ,
E bers of the family in dealing separately with the former family pro-
perties. Service! of notice or institution of a suit by one member/
coparcener against the other members/coparceners for partition and
separate possession may be sufficient to cause disruption of the
joint status.
We will now deal with the first proposition propounded by Shri
F
Bal, in the light of these principles. The primary question that arises
for consideration is, whether Ramchandrarao had brought about a
division of the joint family status or partition by intimating to his
brother in clear terms, sometime in 1902 or shortly prior thereto, his
intention to separate and enjoy his share in severality. Answer to this
G question depends on inferences which may, reasonably be drawn from
the contents of the deed (Ex. 39) and the subsequent conduct of the •
parties.
The orginal deed, Ex.39 is in Marathi. It was rendered into English
by the trial judge himself, who concededly had adequate knowledge of
H Marathi. According to him, the deed (Ex.39) speaks of a division of
(l) [1886] II MIA. 75
(2) [1916] 43 I.A. 151.
KRlSHNABAI v. T. NAMBIAR (Sarkaria, I.) 1 71

the joint family status and separation of interests. For this construct-
ion, the trial judge drew much on the word "Vibhaktarahave" which,
according to him, connotes division of status. The learned Judges of the
High Court however, did not accept this interpretation. They preferred
to rely on the English translator of this deed made by the High Court
Translator. Since there is some variation between the two transla- B
tions, it will be worthwhile to extract the same here for facility of
comparison and reference.
The translation effected by the trial judge, reads as under :
"You (Ramchandra Rao) are my younger brother. We
were living jointly till today. Recently you have desired to c
take some property for maintenance (Nirwah Kurat) and
live seJl'arate after division (Vibhaktarahave).
Since I have deemed it proper to give you some property
for your maintenance as befits our Sansthan, I have given
you the following properties for your maintenance. (Then
follows the description of the properties). All these lands
have been given to you along with the appurtenances for
meeting the livelihood of you and your family membero.
I---Icnce, you and your successors i.e., your natural born n1ale
descendants should enjoy the properties from ge'neration to
generation and live happily. The Sansthan will not inter-
fere with the lands any longer. Only you and your natural
male descendants should enjoy the property. You shall also
pay the Joodi to the Governme'nt hereafter."
(The disputed words have now been underlined).
111e translation made by the High Court Translator reads as F
below: •I
'
"You are my younger brother and you have been residing
with me only in jointness up till now. As you have been
recently thi'nking of residing separately yourself by receiving
some properties for your maintenance, I found it proper to
•' give you some property for your maintenance as befits our
G
Sansthan and have given you for your maintenance the
'Desgat' lands of our Khata situate in the below mentioned
-\ villages in Taluka Chikodi Sub-District, Belgaum District.
-Particulars thereof are as under : Lands situate at Village
Nanadi. (1) Bagayat Land of No. bearing Survey No. 189 B ·1
measuring 14 acres 23 guntas assessed at Rs. 20-0-0. The
land together with a well valued at Rs. 1000/-. (2) The land
172 SUPREME COURT REPORTS [1980] l S.C.R.

A measuring 9 acres 30 guntas assessed at Rs. 41-8-0 out of
Survey No. 187 is bounded on the east by a land in our I
possession out of the same No. on the west by the village
limits, on the south by the la'nd No. 196 and on the north
•
by the land bearing Survey No. 198. In the land enclosed
within the aforesaid boundary there is a well. This well '
B has two "Veravantas" i.e. one on the Eastern side and ano-
ther on the Southern side. It has 10 'motes'. Out of
the 'motes' of that well we are to get water with 3 'motes'
and you are to get water with 2 'motes'. Repairs to the
said well also are to be carried, in that portion only and the
c expenses required to remove the mud etc., are also to be
borne in the same proportion itself.
Value Rs. 1000/- Lands situate at the Village Umarani.
Rs. No. Acres Assessment
3 99 26-30 14-0-0 The said 3 lands are
4 100 9-38 9-0-0 entire No. and are val-
5 IOI 26-34 17--0-0 ued at Rs. 1000/-toge-
D ther with the appurt-
enant thereof.
Land situate at Majare Kenpatte in'.the Vilkge Nandikurli.
6 120 24-18 9--0-0
This land of entire No. together with the appurtenances thereof is
valued at Rs. 400/-.
E The lands as mentioned above are given to you for your
maintenance and the maintenance of your descendants.
Hence, you and your descendants, i.e., natural male descen-
dants should enjoy the said lands continuously and Jive
happily. In respect of the said lands given to you, you will
not be put to any trouble from the state (Sahsthan) in any
manner but, the said lands are to be continued with you and
your natural male descendants. You should go on paying
the joodi payable by you to the Government in respect of the
said lands in our possession are given to your possession
today. To the above effect the deed of maintenance is duly
exetuted."
G
A comparative study of the above extracts would show that
except for the English rendering of the word "Vibhaktarahave" by
the learned trial judge, there is no substantial difference between Ike
two translations. The Marathi word "Vibhaktarahave", according )'_
to my learned Brother on this Bench, who has working knowledge
H of Marathi, is a compound of two words, namely, "Vibhakta" and
"Rahave". "Vibhakta" appears to have its root in the Sanskrit word
"Vibhaga". "In the Mitakshra, Vijnanesvara defines the word
KRISHNABAI v. T. NAMBIAR (Sarkaria, J.) 173

"Vibhaga" which is usually rendered into English by the word "parti-
tion" as the adjustment of diverse rights regarding the whole, by distri-
buting them in particular portions of the aggregate." (See Para 448
• of Mayne's Hindu Law, 11th Edition.) 'Rahave' means "living".
In view of this etymological analysis, it cannot be said that the learn-
ed trial judge's interpretation of the word "Vibhaktarahave" as equi- B
valent to "live separately after division" was literally wrong. Even
the learned Judges of the High Court (who did not claim to know
Marathi), have not held in categoric terms that this translation of
"Vibhaktarahave" made by the trial judge is grammatically wrong.
What the learned Judges appear to say is that the context in which
the word "Vibhaktarahave" has been used, gives it a meaning different c
from its grammatical sense, so that it cannot be understood as signify-
ing an intention to divide, but connotes only a desire to live separately.
The learned Judges have sorted out four features from the context of
the deed, Ex. 39, which, according to them, militate against the literal
interpretation of the word "Vibhaktarahave"' and negative the theory
of division of status. Those features-it will bear repetition are : D
(i) The deed is styled as one for maintenance, (ii) It was executed
by Narayanarao only, (iii) The lands under the deed were given to
Ramchandrarao and his descendants in the male line for maintenance
only, (iv) The total extent of 'Desgat' lands was over 8000 acres.
Ramchandrarao should have claimed half of the entire 'Desgat' area
and not remained contented with about 90 acres given to him under E
the deed Ex. 39).

In our opinion, none of these features, if appreciated in the right
perspective, detracts from the conclusion that there was a division of
joint family status as a result of an intimation to Narayanarao by
F
Ramchandrarao, of his intention to separate, followed by allotment to
Ramchandrarao in furtherance of that division, the lands mentioned in
Ex. 39. The four features listed above rested o·n erroneous assump-
tions. Even according to the High Court, both the brothers were,
at the time of execution of the document Ex. 39, labouring under an
•• erroneous belief that the 'Desgat' lands were impartible and held by G
th~ eldest member of the family in the male line, while the junior
members were entitled only to maintenance. The High Court has
expressly upheld the fi"nding of the trial Court that no custom was
established according to which, the 'Desgat' lands of the family were
impartible and vested only in the eldest male member of the family
to the exclusion of the junior members. The High Court has H
further not disagreed with the trial courts finding that no custom of
primogeniture in this family has been established.
174 SUPREME COURT REPORTS [198')] 1 S.C.R.

Once it is held that this two-fold assumption or belief about the
impartibility of the estate and its devolution in the male line by rule
of primogeniture was fallacious, the said four features stemming there-
from, lose their signillcancc. These features which purport to give •
the transaction (Ex. 39) the colour of a mere maintenance arrange-
ment as distinguished from an absolute transfer or allotment, have
B
to be credited with ho more substance than phantoms conjured out of
phantasy, probably by the sole executant of the deed with a self-serv-
in.~ motive. In any case, they are words of vain, show or form lack-
ing reality. We have therefore, to peal aside this jejune and illusory
cover, to reach at the kernel and concentrate on the crucial features
c of the document Ex. 39.

We are unable to accept Shri Desai's argument that the process
adopted by us would involve contravention of Section 92 of the Evi-
dence Act.

Firstly, in this process, which is essentially one of construction ot
D
the deed, Ex. 39, no question of contradicting, varying, adding to
or subtracting any term of the disposition is involved. The deed,
Ex. 39, falls into two distinct parts : The first of them comprises the
'preamble or the preliminary recital of a past fact. This part does
not contain any term of disposition of property. Such terms arc
E confined only to the second part. Section 92 prohibits only the vary-
ing of terms of the documents, not the memoranda or recitals of facts,
bereft of dispositive terms, particularly when the correctness of the
whole or any part of the recital is in question. We are primarily con-
cerned with this preliminary recital which does not fall nuder the dis-
positive or operative portion of the document. The question is,
F whether or not this recital of a past oral intimation by Ramchandrarao
to Narayanarao had caused severance of joint family status. It is
settled law that a clear intimation by a coparcener to the other copar-
ceher of his intention to sever the joint status need not be in writing.
For these two-fold reasons, the bar in section 92 against the admissi-
bility of extrinsic evidence for the purpose of showing that the inser-
G tion of the words "for your maintenance" in the recital is wrong, un-
real, unmeaning and the coinage of the executant's own brain, is not
•
attracted.

Secondly, there is ample authority for the proposition that when
there is a dispute in regard to the true character of a writing evidence
e de hors the document can be led to show that the writing was not the
real n_ature of the transaction, but was only an illusory, fictitious and
colourable device which cloaked something else, and that the appa-
KRISHNABAI v. T. NAMBIAR (Sarkaria, J.) J 75

A
rent state of affairs was not the real state of affairs. [See Chandi Prnsad
' Singh v. Piari Bidi C.A. No. 75 of 1964, decided on 16-3-1966, and
BhJgwm1 Dayal v. Mst. Reoti Devi (supra) ].

This preliminary recital in the deed, Ex. 39 (as translated by the
learned trial judge), with due emphasis on the words 'recently' and B
'Vibhaktarabave':" coupled with the surrounding circumstances and
natural probabilities of the case, definitdy raises the inference that
sometime in the recent past, prior to the date of the deed, Ex. 39,
Ramchandrarao had clearly and persistently intimated to his copar-
cener, Narayanarao, bis intention to sever the joint family status and
to hold and enjoy his 'hare of the joint family property in severalty. c
The immediate and inexorable consequence of this intimation was
disruption or division of the joint status, which, in the eye of Hindu
Law, amounted to 'partition'. From that date onwards, which preced-
ed the date Df the deed, Ex. 39 Narayanaraa and Ramchandrarao
ceased to be coparccners and held the former coparcenary property as
tenants-in-common. Thus, at the time of execution of the deed D
Ex. 39, the joint family status did not exist; it had already been put
an end 'to by Ramchandrarao's intimation to Naraya'narao, of his in-
tention to divide and separate.
..
If that be the true position, it was not open even to Ramchandra-
E
rao, much less to Narayanarao, to nullify the effect of the communica-
tion of the former's intention which had resulted in severance of the
joint status, by revoking or withdrawing that communication. Ram-
chandrarao could not get back to the old position by mere revocation
.of the intention. A coparcenary is purely a creature of Hindu Law;
it cannot be created, or recreated after disruption, by the act of par- F
ties, save in so far that by adoption a stranger may be introduced as a
member thereof or in the case of reunion. [See paragraphs 214 and
325 of Mulla's Hindn Law and this Court's decision in Puttorcmgamma,
v. Ranganna( 1); Bhagwan Dayal v. Mst. Reoti Devi (supra).] There
is 'not evidence that after the severance of the joint family status, there
t
I was a reunion. G

As before the High Court, here also, an argument was raised that
A
-\ the preliminary recital in the deed, Ex. 39, being qualified, furnishes
little or no evidence for a finding that Ramchandrarao had declared
and intimated in clear and unambiguous terms his intention to sever
the joint family status. B

(1) A.l.R. 1968 S.C. 1019.
176 SUPREME COURT REPORTS (1980] l S.C.R.

A We are unable to accept this argument. It has to he borne in
mind that this document has been let in evidence more than 70 years
after its execution. Narayanarao and Ramchandrarao and all others
who might have given evidence with regard to the circumstances of
this recital in particular, and the deed in general, are long deed and
gone. There is no dearth of authority for the proposition that in such
B
a situation, rt is permissible to draw reasonable infer!nces to fill the '
gaps o.r details obliterated by time. [See Chintamanibhatla Vankat
Reddy v. Rani of Wadhawan('); Sree Sree lswar Gopal lien Thakur v.
Prutapmal Bagaria(2) .]

c The preliminary recital in the deed, therefore, assumes importance.
Read in the light of the surrounding circumstances and in the penspec·
tive that the 'Desgat' land was partible coparcenary property of the
two brothers, each of whom had an equal interest therein and an equal
right to get his share divided and thereafter enjoy it in severalty, this
D recital establishes with a preponderance of probability, that sometime
before the execution of the deed, Ex. 39, Ramachandrarao had com-
municated to his brother, in clear, unmistakable terms his intention
not only to separate in residence and user and put an end to common-
sality, bnt also to sever the unity of ownership and enjoy his share
in severalty. Th~ result was division of the joint status.
E
Once it is found that the division of the joint status preceded the
~xecution of the deed, Ex. 39, then the disposition made thereunder
could only be a step towards the implementation of that division and
in recognition of Ramchandrarao's right to have his share, wholly
or partly demarcated and specified for separate enjoyment as an
F absolute and exclusive owner thereof. While giving the land measuring
118 or 120 acres to Ramchandrarao in recognition of the latter's equal
right in the Desgat, Narayanarao had no power to impose the futile
condition that the land was being given to Ramchandrarao and his
male lineal descendants for maintenance. As already discussed, this
insertion by the executant from an ulterior self-serving motive was l
G devoid of substance; it could not be attached any greater importance •
and realty than the phantasmic assumption, from which it was con-
jured up : a fortiori, when in the deed, Ex. 39, there is no stipulation
that in the event of Ramchandrarao's male line becoming extinct, the
land would revert to the 'Desgat', and Narayanarao or his descendants
would have a right of re-entry.
H
(l) 47 I.A. 6. at page 10.
(2) [1951] S.C.R. 332.
KRISHNABAI v. T. NAMBIAR (Sarkaria, !.) l 77

We are in agreement with the trial court that the expressions A.
"Potgi" (maintenance) or "Nirwahkrit" in the deed cannot be constru-
ed as conferring a'n estate with restricted rights of 'ownership', limited
to the lifetime of Ramchandrarao and his linear male descendants. The
deed evidence a permanent transfer or allotment of about 118 or 120
acres of land to Ramchandrarao to be enjoyed from generation to
B
generation to the entire exclusion of Narayanarao and bis descendants.
In terms, Narayanarao did not reserve any right of reversion in favour
of himself and his branch in any circumstances. Irrig~tion rights
also with regard to the land transferred or allotted under this deed,
were divided. It was further provided that from the date of the deed,
payment of Joodi to the Government in respect of this land, shall also c
be the exclusive liability of Ramchandrarao and his descendants.

The inference that this land, measuring about 118 acres was given
to Ramchandrarao hi partial implementation of division of joint family
statns or partition, receives further confirmation from the following
circumstances : (a) From the date of the deed, Ex. 39, till Ramchan- D
drarao's death in 1955, for a period of about 53 years, the lands dis-
posed of by the deed, throughout remained in the full, exclusive and
uninterrupted enjoyment of Ramchandrarao. The relevant entries
in the revenue records during this period, also, stand exclusively in
his name as owner-in-possession thereof. (b) After the abolition of
Watans in 1951, Ramchandrarao alone applied for regrant of this land E
•y
in his favour, under the Watan Abolition Act. The plaintiffs were at
all material times, admittedly aware that Ramchandrarao had applied
for the regrant of this land exclusively in his favour, but they never
objected, and tacitly assented to the same. On the other hand, the
plaintiffs applied and obtained regarnt of the 'Desgat' lands (other
F
than those which were the subject 0£ the deed, Ex. 39), in their favour
to the exclusion of Ramcbandrarao.

In the light of the above discussion, we are of op1rnon (i) that
there was partition or division of the joint family status sometime
prior to the execution of deed, Ex. 39, and (ii) that the disposition G
l
of about 118 or 120 acres made under that deed was, in substance
' an absolute allotment of that land to Ramchandrarao, towards imple-
mentation of that division or partition in recognition of the latter's
right to have his share demarcated by metes and bounds to be enjoyed
exclusively in severalty.
H
Poi'nt No. 1 is thus found in favour of the appellant. In view
of the above finding that the suit property was the separate, , divided
178 [1980] l S.C.R.

A property of Ramchandrarao at the date of his death, and under the
traditional Hindu Law, would go by succession to his daughter, the r
appellant herein, to the exclusion of the plaintiff-collaterals, it is not
necessary to _<;!ecide Point No. 2 canvassed by the appellant. •
Tu the result, for all the reasons afore.aid, we allow this appeal •
I and dismiss the plaintiffs' •uit with costs throughout.

P.B.R. Appeal allowed.

I
'