KRISHNABAI DESHMUKH versus TULJERAMARAO NAMBIAR & ORS .

Citation: [1980] 1 S.C.R. 161 · Decided: 31-07-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

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• 
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. 
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. 
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 
D 
F 
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 
!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. 
H 
A 
162 
SUi'REME COURT REPORTS 
[!980] 1 s.c.R. 
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 
D 
E 
F 
G 
H 
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 
(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 

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