V ALLIAMMAI ACHI versus NAGAPPA CHETTIAR & ORS.

Citation: [1967] 2 S.C.R. 448 · Decided: 23-01-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

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

Judgment (excerpt)

V ALLIAMMAI ACHI 
A 
v. 
NAGAPPA CHE'ITIAR & ORS. 
January 23, 1967 
{K. N. WANCHOO, R. S. BACHAWAT AND J. M. SHELAT, JJ.] 
ll 
Hhrilll Law-Joint family property bequeathed by will-Effect on 
character of property. 
Indian Succession A.ct, (39 of 1925) s. lS~Scope of el!ction under. 
A Hindu died after making 4 will in respect of certain joint family 
properties and appointed bis son as the executor. The son obtllioed pro-
c 
balo of the will, provided for the legacies indicated therein and came into 
possessiOn of the residue of the property. 
Thereafter, be adopted the 
plaiotl1f. The adoptive father died after Ute Hindu Succession Act came 
iolo force and the plaintiff filed the suit claiming two-thirds share of the 
properties left by his father. The defendants (viz .. the widow and mother 
of ih~titr's adoptive father) contended that the conduct of the plain-
tiff's 
· ve father in obtaining the probate of the will and carrying out 
ill terms amounted to 1111 election and therefore the father became absolute 
D 
owner of the residue of the properties bequeathed ro him by the will, ar.d 
as the election to take under the will would bind the plaintiff also he could 
not claim half the property on the ground that it was joint family property 
of himself and his father. 
The trial Court decreed the suit, 
which in 
appeal was upheld by the High Court. The defendants appealed to this 
Coun. 
HELD: The appeal must be dismissed. 
E 
The character of the property did not change because of the will and 
it would still be joint family property in the hands of the plaintiff's father 
as far as his male issue was concerned. 
Further, as soon as the plaintiff 
was adopted be acquired interest in the joint family property in the bands 
of his adoptive father and this interest of his was independent of that of 
his father. 
In such circumstllnces even if his father could be said to have 
made an election there could be no question of the plaintiff being bound 
F 
by that election, for he was not claiming through his father. [453 C, E-Fl 
Election under s. 180 of the Indian Succession Ac~ would only arise 
where the legatee derives some benefit from the will to which be would not 
be entitled except for the will. 
In such a case he has to elect whether to 
confirm the will or dllsent from it. But where there is no question of the 
legatee deriving <1ny benefit from the will to which he would not be en-
titled except for the will 
the fact that be confirm5 the will and accepts 
G 
what the will provides would not amount to election, for he would have 
in any case got what the will gave him. Thus election only arises where 
the legatee has to choose between his own property which might have been 
testator and which the testator has given to the legatee by the will. 
[451 
H-452 C] 
CIVIL APPELlATE JURISDICTIO:'ol: Civil Appeal No. 806 of 1964. 
Appeal by special leave from the judgment and decree dated 
JulY 13, 1962, of the Madras High Court in Appeal No. 347 of 
1958. 
H 
A 
B 
c 
D 
F 
G 
H 
VALLIAMMAI r. NAGAPPA (Wanchoo, J.) 
449 
C. B. Agarwala, B. Dutta, T. S. Kris/111aswamy lyeng.tr, P. L. 
Meyyappan and J. B. Dadachanji, for the appellant. 
A. K. Sen and R. Ganapathy Iyer, for respondent No. I. 
K. R. Chaudhuri and K. Rajendra Chaudhury, for rc;po.ndent 
No. 2. 
The Judgment of the Court was delivered by 
Wattchoo, J. This is an appeal by special leave against t~e 
judgment of the Madras l;figh Court. The facts. are not now m 
dispute and may be bnefly narra.ted. A smt was brought 
by Nagappa Chettiar, respondent No. I (hereinafter referred 
to as the respondent) against Villiammi Achi appellant and 
Nachiammai Achi now dead and represented by her legal 
representative. 
The respondent claimed two-thirds share· of 
the properties left by his father, Pallaniappa and prayed for a decree 
for separate possession of that share after partition. The facts· on 
which this claim was based are not now in dispute and are these. 
The respondent is the adopted son of i>allaniappa having been 
adopted in 1941. The· appellant is the widow of Pallaniappa and 
Nachiammai Achi was Pallaniappa's mother. Pallaniappa's father 
also named Nagappa had considerable properties. This Nagappa 
made a will on June IO, 1934 by which after making certain dis-
positions in favour of certain persons including his own wife he gave 
the residue of his property absolutely to Pallaniappa and appointed 
him as the executor of the will. In one place the wil

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