V. KALYANASWAMY (D) BY LRS. & ANR. versus L. BAKTHAVATSALAM (D) BY LRS. & ORS.

Citation: [2020] 9 S.C.R. 619 · Decided: 17-07-2020 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

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Judgment (excerpt)

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V. KALYANASWAMY (D) BY LRS. & ANR.
v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
(Civil Appeal Nos.1021-1026 of 2013)
JULY 17, 2020
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Hindu Succession Act, 1956 – Death before enactment of –
Effect of – One ‘RVN’ had two sons (‘LN’ and ‘RN’) and five
daughters – ‘LN’ had four sons – ‘RN’ was married to ‘RK’, they
did not have any issue – ‘RN’ passed away on 01.06.1955 –
Litigation ensued between the parties (in five stages) inter alia
through various suits – Present appeals arise out of two civil suits
(fifth stage/the present litigation), one filed by ‘LN’s’ branch
(respondents) and the other by one of the four legatees (appellants-
nephews of ‘LN’ and ‘RN’) under a Will (dtd.10.05.55) allegedly
executed by ‘RN’ – Appellants claimed severance of the Joint Hindu
Family alleging oral partition between ‘RN’ and ‘LN’ in 1932 –
Aforesaid Will was alleged to have been executed by ‘RN’ appointing
‘RK’s’ nephew as executor – Divided status was declared by way of
notice allegedly dated.10.05.1955 in a newspaper, on which reply
dated.11.05.1955 was sent by ‘LN’ – Respondents denied appellants’
case – Trial court decreed respondents’ suit – First Appellate Court
allowed the appeals filed by the appellants – High Court inter alia
found that the Will could not be relied upon, as the requirement
u/s.68, 1872 Act was not fulfilled and restored the decree of trial
court – Held: s.69, 1872 Act manifests a departure from the
requirement embodied in s.68 – In the present case, requirement of
proof of Will u/s.69 are fulfilled – Respondents failed to prove that
the Will is vitiated – Will was indeed executed by ‘RN’ and was his
last will – However, the notice is dated.12.05.1955 in which case
the reply being sent on 11.05.1955, becomes impossible – If there is
no reply sent on 11.05.1955, then, it will not be possible to attribute
communication of the notice to separate to ‘LN’ – Thus, though
there was a publication made, knowledge of the same cannot be
attributed to ‘LN’, before the death of his brother – Therefore, since
there was no division brought about by ‘RN’ before his death, the
Will would be invalid and end of the road for appellants – Further,
[2020] 9 S.C.R. 619
619
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SUPREME COURT REPORTS
[2020] 9 S.C.R.
‘RN’ died on 01.06.1955, i.e. before the enactment of 1956 Act –
Thus, when he died, he left behind an interest in the Hindu joint
family – When succession opened to his estate, s.3(2), 1937 Act
would apply – A limited estate sprung in favour of his widow, ‘RK’
which bloomed u/s.14 (1), 1925 Act into an absolute estate – When
she compromised in O.S No.71 of 1958 giving up her rights over
the property including the plaint scheduled property in these cases,
it conferred absolute rights in favour of ‘LN’s’ branch – Code of
Civil Procedure, 1908 – Or.II, r.2 – – Transfer of Property Act, 1882
– s.19 – Evidence Act, 1872 – ss.3, 33, 40-43, 68, 69, 71 – Hindu
Women’s Right to Property Act, 1937 – ss.2, 3, 5 – Code of Criminal
Procedure, 1898 – s.145 – Estoppel/Waiver/Acquiescence – Indian
Succession Act, 1925 – ss.57, 59, 63, 119, 211 – Hindu Succession
(Amendment) Act, 2005 – s.6 – Doctrine of Relating Back – Doctrine
of Survivorship – Hindu Wills Act, 1870 – Indian Succession Act,
1865 – Probate and Administration Act, 1881.
Code of Civil Procedure, 1908 – Or.II, r.2 – Scope of –
Discussed.
Code of Civil Procedure, 1908 – Or.II, rr.2, 3 – Held: Be it
the omission or intentional relinquishment of a claim arising out of
a cause of action under Or. II, r.2(2) or not seeking a relief under
Or. II, r.2(3), the fatal consequences they pose, will arise only if the
cause of action is the same.
Transfer of Property Act, 1882 – s.19 – Commonality between
s.19 and s.119, 1925 Act – Discussed – Indian Succession Act, 1925
– s.119.
Evidence Act, 1872 – s.33 – Applicability of – Held:
Applicability of s.33 does not depend upon the nature of the decision
which is rendered in the earlier proceeding.
Evidence Act, 1872 – s.33 – Held: Requirements u/s.33 are
not to be confused with the ingredients to be fulfilled even in a case
u/s.11, CPC – Code of Civil Procedure, 1908 – s.11.
Evidence Act, 1872 – First proviso to s.33 – ‘representative
in interest’ – Interpretation of – Held: ‘representative in interest’, is
to be understood liberally and not confined to cases where there is
privity of estate and succession of title.
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Evidence Act, 1872 – s.68 vis-à-v

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