KARPAGATHACID AND ORS. versus NAGARATHINATHACID

Citation: [1965] 3 S.C.R. 335 · Decided: 10-03-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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B 
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D 
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KARPAGATHACID AND ORS. 
v. 
NAGARATHINATHACID 
March 10, 1965 
385 
[K. SUBBA RAO, J.C. SHAH AND R. S. BACHAWAT, JJ.] 
Hindu Law-Partition between co-widows-Whether right of 
survivorship can be relinquished-If repugnant to Transfer of Pro• 
perty Act, 1882 (4 of 1882) s. 6(a)-Onus. 
Two co-widows divided their husband's property and each entered 
into separate possession of her share. On the death of one of the 
widows her daughter the respondent took possession of her mother's 
share. The appellant the surviving widow filed a suit against '.he 
respondent claiming possEssion of that share. The Trial Court decreed 
the suit, which on appeal was set aside by the High Court. In appeal 
by certificate: 
HELD: (i) Under the Hindu Law the widows were competent 
to partition the properties and allot separate portions each, and inci-
dental to such allotment each could agree to relinquish her right of 
survivorship in the portion allotted to the other. Such an arrange-
ment was not repugnant to s. 6(a) of the Transfer of Property Act, 
1882. [337 C-D]. 
Case law referred to. 
(ii) Mere partition of the estate between the two widows does 
not destroy the right of survivorship of each to the properties allot-
ted to the other. The party who asserts that there was an arrangement 
by which the widows agreed to relinquish the right of survivorship 
must establish this arrangement by clear and cogent evidence. 
[338 B]. 
The respondent, in the instant case, had failed to discharge this 
onus. [338 B-C]. 
CIVIL APPELLATE JURISDICTION: Civil 
Appeal No. 998 
of 
F 
1963. 
Appeal from the judgment and 
decree dated January 12. 
1962 of the Madras High Court in Appeal Suit No. 292 of 1958. 
A. V. Viswanatlza Sastri, V. S. Ramaswami Iyengar and 
R. Thiagarajan, for the appellants. 
G 
S. V. Gupte, Solicitor General, and R. Ganapathy Iyer, 
for 
the respondent. 
The Judgment of the Court was delivered by-
Bachawat, J. One Sivasubramania Pillai died in the year 
1924 leaving him surv;ving his mother, two widows, Thialaiachi 
H 
and Karpagathachi, and a daughter. Nagarathinathachi (respon-
dent herein) born of Thialaiachi. The two widows 
inherited the 
properties left by Sivasubramania. In July 1927. they divided the 
bltlk of the properties and each entered into separate pos,ession 
and enjoyment of the properties allotted to her. The partition is 
evidenced by two partition lists called parti.tion deeds. Exs A-~ I 
and B-45 dated July 14. 1927 and signed by both of them. Under 
this partition, two ve/is of land were set apart for the maintcnanC'· 
SUPREME COURT REPORTS 
[1965] 3 s.c,ii. 
~f Sivasubramania's mother, to be enjoyed by her during her life. 
A 
tune, and on her death, to be taken and enjoyed by the two widows 
in separate portions as mentioned in the partition lists. On August 
26, 1954, Thialaiachi died, and upon her death, the respondent 
took possession of the properties allotted to Thialaiachi under the 
partition of July, 1927. On December 8, 1954, Karpagathachi in· 
stituted against the respondent the suit, out of which this appeal 
B 
arises, claiming possession of the suit propert'es. The respondent 
resisted the suit claiming that under the partition each widow gave 
up her right of survivorship in respect of the properties allotted to 
the other, and consequently on the death of Th'alaiachi, the res-
pondent as her daughter was entitle\! to take her share as her heir 
and to en joy the same during the life of Karpagathachi. By his 
C 
judgment dated AJgust 18, 1958, the District Judge, East Than-
javur, ·rejected the defendant's contention. and held that the divi-
sion between the two w'dows was for convenience of enjoyment 
only, and decreed the suit in respect of the properties held by 
Thialaiachi under the partition of July, 
1927. 
On appeal, the 
Madras High Court by its judgment dated January, 12, 1962 held 
D 
that under the partition each widow gave up her life interest in the 
properties allotted to the other and 'consequently Karpagathachi 
was not entitled to recover possession of the properties allotted to 
Thialaiachi, set aside the decree of the District Judge, and dismis-
sed the suit. Karpagathachi and several other persons impleaded as 
party respondents in the appeal before the High Court now appeal 
E 
under a certificate granted by the High Court to .this court under 
Art. 133 of the Constitution. 
Mr. Viswanatha Sastry appearing on behalf of the appellants 
contends that: (!)

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