judgement:
Appeal No. 1693 of 1967.
14 Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated September 21, 1967 of the Madhya Pradesh High Court in Election Petition No. 10 of 1967.
G. N. Dikshit and R. N. Dikshit, for the appellant.
C. B. Agarwala Uma Mehta, section K. Bagga and Shureshta Bagga, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal against the, judgment of the High Court of Madhya Pradesh at Jabalpur, dated September 21, 1967.
dismissing the election petition filed by the appellant on the preliminary ground that a proper copy of the election petition was not served upon the answering parties.
The facts of the case are as follows The appellant was a candidate for election to the Sagar Lok Sabha Scheduled Castes constituency No. 24.
The election took place on February 20, 1967.
There were three other contesting candidates of whom the first respondent secured the largest number of votes and was declared elected.
The appellant secured the second largest number of votes, her votes being less by just under 300 than the successful candidate 's votes.
An election petition was thereafter filed by the appellant on April 5, 1967.
In this ,election petition the appellant challenged the election of the first respondent on four grounds.
They were (a) wrongful acceptance . ,of his nomination paper, (b) corrupt practice inasmuch as .he appealed to religion through a pamphlet marked Annexure (c) undue influence, and (d) breaches of the.
Act and Rules.
The pamphlet to which reference is made was styled Bhayankar Vajraghat and was published by Sarvadaliya Goraksha Mahabhiyan Samiti, Deori Kalan Branch.
It charged the party of the appellant namely the Congress with encouraging cow slaughter and ,offending.
the Hindu Sentiment.
Details were given in it of the number of animals slaughtered every day in Madhya Pradesh land elsewhere and blamed the Congress with being a party to the practice.
In the body of the election petition a translation in English of the Hindi pamphlet was incorporated.
The original pamphlet was attached to the election petition and was marked Annexure 'A '.
The election petitioner proceeded to say in her petition "it forms part of the petition".
When parties appeared the first respondent filed his written statement in great.
detail.
He dealt with this pamphlet and answered the allegations of the election petitioner in relation thereto paragraph by paragraph.
As a result of these pleas a number of issues were raised on July 18, 1967.
No issue was raised in 15 regard to the service of a defective copy of the election petition upon the respondents in general and the first respondent in particular.
However, on August 3, 1967, a special objection was made by the first respondent claiming that the copy of the pamphlet had not been annexed to the copy of the election petition served upon him and therefore the election petition was liable to be dismissed in accordance with the provisions of section 86 of the Representation of the People Act.
A detailed reply to this objection was given by the election petitioner.
She stated that this was an after thought inasmuch as the translation of the pamphlet was incorporated in the election petition and the allegations regarding the pamphlet had been answered in detail by the answering respondent.
The Court thereupon framed an additional issue on August 4, 1967.
The issue ran as follows "Whether the election petition is liable to be dismissed for contravention of section 81 (3) of the Representation of the People Act, 1951 as copy of Annexure A to the petition was not given along with the petition for being served on the respondents".
Parties first filed a number of affidavits pro and con.
Later the Court ordered attendance of the deponents for crossexamination.
In this way the appellant and her counsel who had filed affidavits earlier were examined.
Their.
case was that the copies of the election petition had been properly, put together including in each copy an original pamphlet for service on the respondents.
On the other side the first respondent and two others filed affidavits stating that when the copy of the election petition was received it was not accompanied by the pamphlet.
In their examination in Court all maintained the same position, and were cross examined.
The learned Judge trying the case also ordered the attendance of the Reader of the Deputy Registrar of the High Court who had dealt with the election, petition and he ' was examined as Court witness No. 1.
He stated that the copies of the petition were complete except that the pamphlet was not annexed to each copy.
He stated that he had noted at the time this fact but had treated the pamphlet as a document and not as an Annexure to the election petition.
The learned Judge, on an appraisal of this material held that the copies of the election petition served upon the respondents were not accompanied by the pamphlet which was an Annexure to the election petition.
After examining the law on the subject the learned Judge came to the conclusion that the election petition should be dismissed under section 86 of the Representation of the People Act and he accordingly dismissed it with costs.
No other 16 issue which was struck between the parties was gone into because the election petition failed at the very threshold.
In this appeal it is contended that the learned Judge was in error in thinking that the pamphlet ought to have accompanied the copies of the election petition or that the law required that it should have been annexed to the copy of the election petition served on the respondents.
In this connection our attention was drawn to the provisions of the Representation of the People Act to which we shall refer presently.
On the other side it was contended that whatever the meaning of the expressions "the election petition", "annexures" or "schedules" in the Act, the election petitioner by her own conduct had made this document a part Of the election petition and therefore it was incumbent upon her to have served the whole of the election petition and not only a part of it as she did and therefore the order now appealed against was correct.
Before we come to these rival contentions we find it necessary to refer first to the relevant provisions on the subject Section 81 of the Representation of the People Act occurs in Chapter 11 which is headed "Presentation of Election Petitions to Election Commission".
It provides as follows: "Presentation of Petitions (1) An election petition calling in question any election may be presented on one or more of the , rounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
Explanation : In this subsection, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(3) Every election petition shall be accompanied by as many copies thereto as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." 17 The first respondent draws pointed attention to the third sub section which says that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
The dispute therefore is whether the pamphlet could be described in this case as, a part of the election petition.
The answering respondent says that it is so and was considered to be so by the election petitioner herself when she stated that it was to be read as a part of the election petition.
The matter, in our opinion, is not to be resolved on how the election petitioner viewed the matter but from the point of view of the requirement of the law on the subject.
For this purpose we have to turn to section 83 of the Representation of the People Act which provides what the contents of the election petition shall be.
It reads as follows (1) An election petition (a) shall contain a concise statement of the material facts on which,the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings.
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the The answering respondent herein again draws pointed attention to the fact that the schedules and the annexures to the petition are mentioned and they have to be signed and verified in the same manner as the petition meaning thereby that as the election petitioner had made the pamphlet a part of the election petition she was required to sign and verify the pamphlet and also to serve a 18 copy of it as required by sub section
(3) of section 81 when the election petition was served. 'He then relies upon section 86 which provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117.
An argument was raised in this case as to whether section 86(1) is mandatory or merely directory.
We need not go into this aspect of the case.
In our opinion the present matter can be resolved on an examination of the relevant facts and the contents of the election petition as detailed in section 83 reproduced above.
It may be pointed out here that the trial of election petition has to follow as.
far as may be ,the provisions of the Code of Civil Procedure.
We are therefore of opinion that it is permissible to look into the Code of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition.
Under the Code of Civil Procedure, a suit is commenced by a plaint.
This is provided by O.IV, r. 1 which says that every suit shall be instituted by presenting a plaint to the Court.
After the plaint, is received O.V provides the summoning of the defendants in the case and r. 2 of that order says that every summons shall be accompanied by a copy of the plaint, and if so permitted, by a concise.
statement.
We then turn to the provisions of O.VII Which.
deals with the contents of a plaint.
The first rule mentions the particulars which must be in a plaint.
It is not necessary to refer to them '.
The plaint has to be signed and verified.
Rule 9 then provides that the plaintiff shall endorse on the plaint and annex thereto a list of documents, if any, which he has produced along with it and, if the plaint is admitted, shall present as many .copies on plain paper of the plaint as there are defendants unless the Court by reason of the length of the plaint or the number of defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claims made,.
It will be noticed here that what is required to be provided are copies of the plaint itself or the concise statement according to the number of defendants.
There is no mention here of any, other documents of which a copy is needed to be presented to the Court for service to the defendants.
Then we come to r. 14 which states that where a plaintiff sues upon a document in his possession or power he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to.
be filed with the plaint.
It will be noticed that he is required to file only one copy of the document and not as many copies as there are defendants in the case.
It would therefore follow that a copy of the document is not expected to be delivered with the copy of the plaint to the answering defendants when summons is served on them.
In the schedules to the Code of Civil Procedure we have got Appendix B which 19 prescribes the forms for summons to the defendants.
There is only one form of summons in Appendix B, (Form No. 4) in which the copy of the negotiable instrument is to accompany the copy of The plaint.
That is so, because of the special law applying to the negotiable instruments and the time limit within which pleas to that document have to be raised and this is only in summary suits.
No other form makes any mention of any document accompanying the summons with the, copy.
of the plaint.
We need not go into more details,.
It is clear that the documents which are filed with the plaint have to be accompanied by one copy of those documents.
This is because the copy is compared with the original and the copy is endorsed by the clerk of court and the document is sometimes returned to the party to be produced into Court later. 'the copy takes the place of the document concerned and is not to be sent out to the parties with the plaint.
We may now see whether the election law provides anything different.
The only provision to which our attention has been drawn is sub section
(3) of section 81 and sub section
(2) of section 83.
The first .provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the ;petition and that every such copy shall be an authenticated true copy.
The words.
used here are only "the election petition".
There is no mention of any document accompanying the election petition.
If the matter stood with only this sub section there would ;be no doubt that what was intended to be served is only a copy of the election petition proper.
Assistance is however taken from the provisions of sub section
(2) of section 83 which provides that.
any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition it is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents.
in this way, non compliance with the provisions of section 86(1) is made Out.
In our opinion, this is too strict a reading of the provisions.
We have already pointed.
out that section 81(3) speaks only of the election petition.
Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original.
Even if this be not the case, we are quite clear that subs.
(2) of section 83 has reference not to.
a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in he accompanying schedules or annexures.
We can 20 give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures.
For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law.
Similarly, details of the averments too compendious for being included in the election petition may be set.
out in the schedules or annexures to the election petition.
The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with.
But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity ,and to lend force to the petition are not kept back but produced or filed with the election petitions.
They are in no, sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof.
The pamphlet therefor must be treated as a document and not as a part of the election petition in so far as averments are concerned.
When ,the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the document in time.
She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose.
It would be stretching the words of sub section
(2) of section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper.
In this particular case we do not think that the pamphlet could be so treated.
We are, therefore, of the opinion that whether or not section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election or the service of the copies thereof and the order under appeal was therefore erroneous.
We accordingly set aside the order and remand the case for trial from this stage.
The costs of the appellant will be costs in the cause.
The respondent will bear his own costs.
Y. P. Appeal allowed and case remanded.

summary/full:
The appellant filed an election petition with a pamphlet as annexure thereto.
A translation in English of the pamphlet was incorporated in the body of the election petition, and it was stated in the petition that it formed part of the petition.
The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and therefore, the election petition was liable to be dismissed under section 86 of the Representation of the People Act.
The High Court accepted the objection and dismissed the election petition.
In appeal, this Court, HELD : The order of the High Court must be set aside.
The words used in section 81(3) are only "the election petition".
There is no mention of any document accompanying the election petition.
Since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition, and therefore the pamphlet was served upon the respondents although in a translation and not in original.
[19 E H] Even if this be not the case, it is quit,. clear that section 83 (2) has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.
Details of averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition.
The law then requires that even though they are outside the election petition, they must be signed and verified.
The annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of election petition is to be wholly complied with.
But this does not apply to documents which are merely evidence In the case but for reasons of clarity and to lend force to the petition are not kept back but produced or filed with election petitions.
They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof.
[19 H 20 D] The pamphlet, therefore.
must be treated as a document and not as a part of the election petition in so far as averments are concerned.
When the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be though that she had .not produced the document in time.
She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose.
[20 D E]


judgement:
Appeal No. 322 of 1965.
Appeal from the judgment and decree dated December 5, 1960 of the Mysore High Court in Regular Appeal No. 81 of 1956.
A. K. Sen and R. Gopalakrishnan, for the appellants.
H. R. Gokhale, K. R. Chaudhuri and K. Rajendra Chaudhri for respondent No. 1.
The Judgment of the Court was delivered by Ramaswami, J.
This, appeal is brought by certificate from the judgment of the Mysore High Court dated December 5, 1960 in R. A. No. 81 of 1956.
120 The appellants and respondent No. 4 are the daughters and legal representatives of Savoy Ranganna who was the plaintiff in O.S. 34 of 1950 51 instituted in the court of the District Judge, Mysore.
The suit was filed by the deceased plaintiff for partition of his share in the properties mentioned in the schedule to the plaint and for granting him separate possession of the same.
Respondent No., 1 is the brother 's son of the Plaintiff.
The rela tionship of the parties would appear from the following pedigree: Savoy Ranganna (Sr) Rangamma Savoy Ranganna Chikka Ranganna (Died 45 Alamma (plaintiff) (Died in 1947 years ago (Deft. 2) Dodda Rangamma M. section R. Ranganna, 3 (Deft. 2 (a) (Deft. 1) Lakkamma Kenchanna (suppl, (D. W. 10) Def).
Chikka Rangamma PuttaRangamma Rangathayamma Chinnathayyamma (Deft. 3) (1st L. R. of (2nd L. R. of (3rd I R. Of plaintiff) plaintiff) plaintiff) The case of the plaintiff was that he and the defendants lived together as members of a Joint Hindu family till January 7, 1951, Plaintiff being the karta.
The plaintiff had no male issue but had only four daughters, Chikka Rangamma, Putta Rangamma, Rangathayamma and Chinnathayamma.
The first 2 daughters were widows.
The fourth daughter Chinnathayamma was living with her husband.
Except Chinnathayamma, the other daughters with their families had been living with the joint family.
The plaintiff became ill and entered 'Sharda Nursing Home for treatment as an in patient on January 4, 1951.
In order to safeguard the interests of his daughters the plaintiff, Savoy Ranganna issued a notice on January 8, 1951 to the defendants declaring his unequivocal intention to separate from them.
After the notices were registered at the post office certain well wishers of the family intervened and wanted to bring about a settlement.
On their advice and request the plaintiff notified to the post office that he intended to withdraw the registered notices.
But as no agreement could be subsequently reached between 'the parties the plaintiff.instituted the present suit on January 13 The 951 'for partition 'of his share of the joint family properties.
The suit was contested mainly by 121 respondent No. 1 who alleged that there was.
no separation of status either because of the notice of January 8, 1951 or because of the institution of the, suit on January 13, 1951.
The case (if respondent No. 1 was that Savoy Ranganna was 85 years of age and in a weak state of health and was not in a position to understand the contents of the plaint or to affix his signature or thumb impression thereon as well as on the Vakalatnama.
As regards the notice of January 8,1951, respondent No. 1 asserted that there was no communication of any such notice to him and, in any case, the notices were withdrawn by Savoy Ranganna unconditionally from the post office.
It was therefore contended that there was no disruption of the joint family at the time of the death of Savoy Ranganna and the appellants were not entitled to a decree for partition as legal representatives of Savoy Ranganna.
Upon the examination of the evidence adduced in the case the trial court held that Savoy Ranganna had properly affixed his thumb impression on the plaint and the Vakalatnama and the presentation of the plaint was valid.
The trial court found that Savoy Ranganna was not dead by the time the plaint was presented.
On the question whether Savoy Ranganna was separate in status the trial court held that the notices dated January 8, 1951 were a clear and unequivocal declaration of the intention of Savoy Ranganna to become divided in status and there was sufficient communication of that intention to respondent No. 1 and other members of the family.
The trial court was also of the opinion that at the time of the issue of the notices dated January 8, 1951 and at the time of execution of the plaint and the Vakalatnama dated January 13, 1951 Savoy Ranganna was in a sound state of mind and conscious of the consequences of the action he 'Was taking.
The trial court accordingly granted a decree in favour of the appellants.
Respondent no took the matter in appeal to the Mysore High Court which by its judgment dated December 5, 1960 reversed the decree of the trial court and allowed the appeal.
Hegde, J. one of the members of the Bench held that the suit could not be said to have been instituted by Savoy Ranganna as it was not proved that Savoy Ranganna executed the plaint.
As regards the validity of the notice exhibit
A, and as to whether it caused any disruption in the, joint family status, Hegde, J. did not think it necessary to express any opinion.
The other member of the Bench, Mir.
lqbal Husain, J., held that the joint family of which the deceased Savoy Ranganna was a member had not been disrupted by the issue of the notice dated January 8, 1951.
The view taken by Mir lqbal Husain, J. was that there was no proof that the notice was communicated either to respondent No. 1 or other members of the family and, in any event, the notice had been withdrawn by Savoy Ranganna and so there was no severance of joint status from the date of the notice.
L4Sup.
C.1/68 9 122 The first question to be considered in this appeal is whether Savoy Ranganna died as a divided member of the joint family as alleged in the plaint.
It is admitted that Savoy Ranganna was very old, about 85 years of age and was ailing of chronic diarrhoea.
He was living in the family house till January 4, 1951 when he was removed to the Sharda Nursing Home where he died on January 13, 1951 at 3 p.m According to the case of respondent No. 1 Savoy Ranganna had a paralytic stroke in 1950 and was completely bed ridden thereafter and his eyesight was bad for 5 to 6 years prior to his death.
It was alleged in the written statement that Savoy Ranganna was unconscious for some days prior to his death.
The case of respondent No. 1 on this point is dis proved by the evidence of D.W. 6, Dr. Venkata Rao who was in charge of the Sharda Nursing Home on the material dates.
This witness admitted that the complaint of Savoy Ranganna was that he was suffering from chronic diarrhoea for over five months.
He was anaemic but he was not suffering from any attack of paralysis.
As regards the condition of Savoy Ranganna on January 8, 1951, the evidence of P.W. 1, Dr. Subbaramiah is important.
This witness is the owner of the Sharda Nursing Home and he has testified that the notice exhibit A was read over to Savoy Ranganna and after getting it read the latter affixed his thumb mark thereon.
The witness asked Savoy Ranganna whether he was able to understand the contents of the notice and the latter replied in the affirmative.
The witness has certified on the notice, exhibit A 1 that Savoy Ranganna was conscious when he affixed his left thumb mark, to the notice in his presence.
No reason was suggested on behalf of the respondents why the evidence of this witness should be disbelieved.
The trial court was highly impressed by the evidence of this witness and we see no reason for taking a different view.
The case of the appellants is that respondent No. 1 had knowledge of the notice, exhibit A because he was present in the Nursing Home on January 8, 1951 and he tried to snatch away the notice from the hands of P.W. 1 but he was prevented from.
so doing.
P.W. 5, Chinnanna stated in the course of the evidence that after P.W. 1 had signed the certificate in all the three copies, respondent No. 1 and one Halappa came to the ward and tried to snatch away the notices.
The first respondent tried to snatch away the copy exhibit A 1 that was in the hands of Dr. Subbaramiah and attempted to tear it.
Dr. Subbaramiah somehow prevented respondent No. 1 from taking away exhibit A and handed it over to P.W. 5.
The evidence of P.W. 5 with regard to the "snatching incident" is corroborated by Dr. Subbaramiah who stated that after Savoy Ranganna had executed the notices and he had signed the certificates, one or two persons came and tried to snatch the document.
P.W. 1 is unable to identify the first respondent as one of the persons who had taken part in the "snatching incident".
The circumstance that P.W. 1 was unable to identify respondent No. 1 123 is not very material, because the incident took place about three years before he gave evidence in the court, but his evidence with regard to the "snatching incident ' strongly corroborates the allegation of P.W. 5 that it was respondent No. 1 who bad come into the Nursing Home and attempted to snatch the notice.
There is also another circumstance which supports the case of the appellants that respondent No. 1 had knowledge of the contents of exhibit A and of the unequivocal intention of Savoy Ranganna to become divided in status from the joint family.
According to P.W. 5 res pondent No. 1 and his wife and mother visited Savoy Ranganna in the Nursing Home later on and pressed him to withdraw the notices promising that the matter will be amicably settled.
Sowcar T. Thammanna also intervened on their behalf.
Thereafter the deceased plaintiff instructed his grandson P.W. 5 to withdraw the notice.
Accordingly P.W. 5 prepared two applications for the withdrawal and presented them to the postal authorities.
The notice, exhibit A meant for the first respondent and exhibit E meant for the original second defendant were withheld by the postal autho rities.
These notices were produced in court by the postal authorities during the hearing of the case.
In our opinion, the evidence of P.W. 5 must be accepted as true, because it is corroborated by the circumstance that the two notices, Exs.
A and E were intercepted in the post office and did not reach their destination.
This circumstance also indicates that though there was no formal.
communication of the notice, exhibit A to the first respondent, he had sufficient knowledge of the contents of that notice and was fully aware of the clear and unequivocal intention of Savoy Ranganna to become separate from other members of the joint family.
It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can being about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty.
It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status.
It is immaterial in such a case whether the other coparceners give their assent to the separation or not.
The jural basis of this doctrine has been expounded by the early writers of Hindu Law.
The relevant portion of the commentary of Vijnaneswara states as follows [And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather 's wealth does take place]" 124 Saraswathi Vilasa, placitum 28 states [From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention without speech.]" Viramitrodaya of Mitra Misra (Ch. 11.
23) is to the following effect: [Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener)].
" Vyavahara Mayukha of Nilakantabhatta also states [Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration 'I am separate from thee ' because severance is a. particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).]" (Ch.
IV, section iii I).
Emphasis is laid on the "budhi visesha" (particular state or condition of the mind) as the decisive factor in producing a severance in status and the declaration is stated to be merely "abhivyanjika" or manifestation which might vary according to circumstances.
In Suraj Narain vs Iqbal Narain(1) the Judicial Committee made the following categorical statement of the legal position : "A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation.
But to have that effect the intention must be unequivocal and clearly expressed. .
Suraj Narain alleged that he separated a few months later; there is, however, no (1) I.L.R. 35 All. 80.
(P.C.) 125 .lm15 writing in support of his allegation, nothing to show that at that time he gave expression to an unambiguous intention on his part to cut himself off from the joint undivided family.
" In a later case Girja Bai vs Sadashiv Dhundiraj(1) the Judicial Committee examined the relevant texts of Hindu Law and referred to the well marked distinction that exists in Hindu law between a severance in status so far as the separating member is concerned and a de facto division into specific shares of the property held until then jointly, and laid down the law as follows : "One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division.
and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that, by the intervention of the Court.
Once the decision has been unequivocally expressed and clearly intimated to his co sharers, his right to his right to have his share allocated separately from has a title is unimpeachable; neither the co sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well founded or sufficient; the Court has s imply to give effect to his right to have his share allocated separately from the others.
In Syed Kasam vs Jorawar Singh (2), Viscount Cave, in delivering the judgment of the Judicial Committee, observed "It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place : and the commencement of a suit for partition has been held to be sufficient.to _effect a severance in interest even before decree." These authorities were quoted with approval by this Court in Addagada Raghavamma vs Addagada Chenchamma(3), and it was held that a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to other members of his family from whom he seeks to separate.
The (1) I.L.R. (2) I.L.R. (3) ; 126 correct legal position therefore is that in a case of a joint Hindu family subject to Mitakshara law, severance of status is effected by an unequivocal declaration on the part of one of the jointholders of his intention to hold the share separately.
It is, how.ever, necessary that the member of the joint Hindu family seeking to separate himself must make known his intention to other member of the family from whom he seeks to separate.
The process of communication may, however, vary in the circumstances of each particular case.
It is not necessary that there ' should be a formal despatch to or receipt.
by other members Of the family of the communication announcing the intention to divide on the part of one member of the joint family.
The proof of such a despatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status.
It is, of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case.
Applying this principle to the facts found in the present case, we are of opinion that there was a definite and unequivocal declaration of his intention to separate on the part of Savoy Ranganna and that intention was conveyed to respondent No. 1 and other members of the joint family and respondent No. 1 had full knowledge of the intention of Savoy Ranganna.
It follows therefore that there was a division of status of Savoy Ranganna from the joint Hindu family with effect from January 8, 1951 which was the date of the notice.
It was, however, maintained on behalf of the respondents that on January 10, 1951 Savoy Ranganna had decided to withdraw the two notices, Exs.
A & E and he instructed the postal authorities not to forward the notices to respondent No. 1 and other members of the joint family.
It was contended that there could be no severance of the joint family after Savoy Ranganna had decided to withdraw the notices.
In our opinion, there is no warrant for this argument.
As we have already stated, there was a unilateral declaration of an intention by Savoy Ranganna to divide from the joint family and there was sufficient communication of this intention to the other coparceners and therefore in law there was in consequence a disruption or division of the status of the joint family with effect from January 8, 1951.
When once a communication of the intention is made which has resulted in the severance of the joint family status it was not thereafter open to Savoy Ranganna to nullify its effect so as to restore the family to its original joint status.
If the intention of Savoy Ranganna had stood alone without giving rise to any legal effect, it could, of course, be withdrawn by Savoy Ranganna, but having communicated the intention, the divided status of the Hindu joint family had already come into existence and the legal consequences had taken effect.
It was not, therefore, possible for Savoy Ranganna to get back 127 to the old position by mere revocation of the intention.
It is, of course, possible for the members of the family by a subsequent agreement to reunite, but the mere withdrawal of the unilateral declaration of the intention to separate which already had resulted in the division in status cannot amount to an agreement to reunite.
It should also be stated that the question whether there was a subsequent agreement between the members to reunite is a question of fact to be proved as such.
In the present case, there is no allegation in the written statement nor is there any evidence on the part of the respondents that there was any such agreement to reunite after January.8, 1951.
The view that we have expressed is borne out by the decision of the Madras High Court in Kurapati Radhakrishna vs Kurapati Satyanarayana(1) in which there was a suit for declaration that the sales in respect of certain family properties did not bind the plaintiff and for partition of his share and possession thereof and the plaint referred to an earlier suit.
for partition instituted by the 2nd defendant in the later suit.
It was alleged in that suit that 'the plaintiff being unwilling to remain with the defendants has decided to become divided and he has filed this suit for separation of his one fifth share in the assets remaining after discharging the family debts separated and for recovery of possession of the same '.
All the defendants in that suit were served with the summons and on the death of the 1st defendant therein after the settlement of issues, the plaintiff in that action made the following endorsement on the plaint : "As the 1st defendant has died and as the plaintiff had to manage the family, the plaintiff hereby revokes the intention to divide expressed in the plaint and agreeing to remain as a joint family member, he withdraws the suit. ' It was held by the Madras High Court that a division in status had already been brought about by the plaint in the suit and it was not open to the plaintiff to revoke or withdraw the unambiguous intention to separate contained in the plaint so as to restore the joint status and as such the members should be treated as divided members for the purpose of working Out their respective rights.
We proceed, to consider the next question arising in this appeal whether the plaint filed on January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb impression thereon after understanding its contents.
The case of the appellants is that Sri M. section Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about 9 30 or 10 a.m. on January 13, 1951.
Sri Ranganathan wrote out the plaint which was in English and translated it to Savoy Ranganna who approved the same.
P.W. 2, the clerk of Sri Ranganathan has deposed to this effect.
He took the ink pad and affixed the left thumb impression of Savoy Ranganna on the plaint and also on the Vakalatnama.
There is the attestation of Sri M. section Ranganathan on the (1) (1948)2M.L.J.331.
128 plaint and on the Vakalatnama.
The papers were handed over to P.W. 2 who after purchasing the necessary court fee stamps filed the plaint and the Vakalatnama in the court at about 11.30, a.m. or 12 noon on the same day.
The evidence of P.W. 2 is corroborated by P.W. 5 Chinnanna.
Counsel on behalf of the respondents.
, however, criticised the evidence of P.W. 2 on the ground that the doctor, D.W. 6 had said that the mental condition of the patient was bad and he was not able to understand things when he examined him on the morning of January 13, 1951.
D.W. 6 deposed that he examined Savoy Ranganna during his usual rounds on January 13, 1951 between 8 and 9 a.m. and found "his pulse imperceptible and the sounds of the heart feeble".
On the question as to whether Savoy Ranganna was sufficiently conscious to execute the plaint and the Vakalatnama, the trial court has accepted the evidence of P.W. 2, Keshavaiah in preference to that of D.W. 6.
We see no reason for differing from the estimate of the trial court with regard to the evidence of P.W. 2.
The trial court has pointed out that it is difficult to accept the evidence of D.W 6 that Savoy Ranganna was not conscious on the morning of January 13, 1951.
In cross examination D.W. 6 admitted that on the night of January 12, 1951 Savoy Ranganna was conscious.
He further admitted that on January 13, 1951 he prescribed the same medicines to Savoy Ranganna as he had prescribed on January 12, 1951.
There is no note of the necessary data in the case sheet, exhibit I to suggest that Savoy Ranganna was not conscious an January 13, 1951.
It is therefore not unreasonable assume that the condition of Savoy Ranganna was the same on January 13 ', 1951 as on January 12, 1951 and there was no perceptible change noticeable in his condition between the two dates.
In these circumstances it is not possible to accept the evidence of D.W. 6 that Savoy Ranganna was unconscious on the morning of January 13, 1951.
It was pointed out on behalf of the respondents that D.W. 7, Miss Arnold has also given evidence that the condition of Savoy Ranganna became worse day by day and on the last day his condition was very bad and he could not understand much, nor could he respond to her calls.
The trial court was not.
impressed with the evidence of this witness.
In our opinion, her evidence suffers from the same infirmity as of D.W. 6, because the case sheet, exhibit I does not corroborate her evidence.
It is also difficult to believe that D.W. 7 could remember the details of Savoy Ranganna 'section case after a lapse of three years without the help of any written case sheet There is also an important discrepancy in the evidence of D.W. 7.
She said that on January 13, 1951 she called D.W. 6 at 12 noon since the condition of the patient was very bad, but D.W. 6 has said that he did not visit Savoy Ranganna after 8 or 9 a.m. on that date.
Comment was made by Counsel on behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had prepared 129 the plaint and Savoy Ranganna had affixed his thumb impression in his presence.
In our opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate.
It would have been proper conduct on his.
part if he had returned the brief of the appellants and given evidence in the case as to the execution of the plaint and the Vakalatnama.
But in spite of this circumstance we consider that the, evidence of the appellants or, this aspect of the case must be accepted as true.
It is necessary to notice that the plaint and the Vakalatnama are both counter signed by Sri Ranganathan a responsible Advocate and it is not likely that he would subscribe his signatures to these documents if they had been executed by a person who was unable to understand the contents thereof.
As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and that he was conscious and was in full possession of his mental faculties at the time of the execution of these two documents.
It follows therefore that the, appellants and respondent No. 4 who are the daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted by the District Judge of Mysore.
For the reasons expressed, we hold that this appeal should be allowed, the judgment of the Mysore High Court dated December5, 1960 in R.A. No. 81 of 1956 should be set aside and that of ' the District Judge, Mysore dated October 31, 1955 in O.S. No. 34 of 1950 51 should be restored.
The appeal is accordingly allowed with costs.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The karta of a joint Hindu family fell ill.
He had no male issue arid in order to safeguard the interests of the appellant and fourth respondent, who were his daughters, he issued registered notices to the other members of the joint family declaring his unequivocal intention to separate from them.
Later, he decided to withdraw the notices and instructed the postal authorities not to forward them, but, the unequivocal declaration of his intention to separate was conveyed to the other members, of the joint family and they had full knowledge of such intention.
A few days thereafter he instituted a suit for partition and possession of his share of the Property.
The plaint was prepared by a responsible advocate, who explained the contents to the plaintiff (the karta), who was conscious and in full possession of his mental faculties, had his thumb impression affixed on the plaint and Vakalatnama, signed them both and had them filed in court.
After the suit was filed on the same day, the plaintiff died.
The trial court decreed (the suit, but the High Court, in appeal, reversed the decree.
In appeal to this Court, HELD: The mere withdrawal of the Plaintiffs unilateral declaration of intention to separate, which already had resulted in his division in status because of the communication of the intention to the other members, did not nullify its effect so as to restore the family to its original joint status, or amount to an agreement to reunite; and (the appellant and the fourth respondent, as the legal representatives of the plaintiff, were entitled to the decree.
[126 G H; 127 A B; 129 D] Radhakrishna vs Satyanarayana, , approved.