Hindu Law. Member of a joint Hindu family can bring separation only by a definite and unequivocal declaration of his intention communicated to other members. Uncommunicated intention does not bring severance of joint family. Supreme Court

Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136. Civil Appeal No. 165 of 1961, decided on 9 April 1963. Justice K Subba Rao, Justice Raghubar Dayal and Justice  R Mudholkar. Judgment Link: https://main.sci.gov.in/jonew/judis/3543.pdf 

Relevant paragraphs: 24. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality. 

27. The main question of law that arises is whether a member of a joint Hindu family becomes seperated from the other members of the family by mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family. In this context a reference to Hindu law texts would be appropriate, for they are the sources from which Courts evolved the doctrine by a pragmatic approach to problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) communication of it to others affected thereby. On the first part the following texts would throw considerable light. They are collated and translated by Viswanatha Sastri, J., who has a deed and abiding knowledge of the sources of Hindu law in Adiyalath Katheesumma v. Adiyalath Beechu [ILR 1930 Mad 502] ; and we accept his translations as correct and indeed learned counsel on both sides proceeded on that basis. Yajnavalkya, Chapter II, Section 121. “In land, corrody (annuity, etc.), or wealth received from the grandfather, the ownership of the father and the son is only equal”. Vijnaneswara commenting on the said sloka says:

“…And thus though the mother is having 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.” (Setlur's Mitakshara, pp. 646-48).

Saraswati Vilase, placitum 28. “From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just as an appointed daughter is constituted by mere intention without speech.”

Viramitrodaya of Hitra Misra (Chapter II, Pl. 23).

“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: (Chapter IV, Section iii-I).

“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).”

The Sanskrit expressions “sankalpa” (resolution) in Saraswati Vilas, “akechchaya” (will of single coparcener) in Viramitrodaya “budhivisesha” (particular state or condition of the mind) in Vyavahara Mayukha, bring out the idea that the severance of joint status is a matter of individual direction. The Hindu law texts, therefore, support the proposition that severance in status is brought about by unilateral exercise of discretion.

28. Though in the beginning there appeared to be a conflict of views, the later decisions correctly interpreted the Hindu law texts. This aspect has been considered and the law pertaining thereto precisely laid down by the Privy Council in a series of decisions: see Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] ; Giria Bai v. Sadashiv Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] ; Kawal Narain v. Budh Singh [(1917) ILR 39 All 496 (PC)] ; and Bamalinga Annavi v. Naravana Annavi [(1922) ILR 45 Mad 489 (PC)] . In Syed Kasam v. Jorawar Singh [(1922) ILR 50 Cal 84 (PC)] the Judicial Committee, after reviewing its earlier decision laid the settled law on the subject thus:

“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….”

So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is a necessary condition for constituting a division in status. Hindu law texts do not directly help us much in this regard, except that the pregnant expressions used therein suggest a line of thought which was pursued by Courts to evolve concepts to meet the requirements of a changing society. The following statement in Vyavahara Mayukha is helpful in this context:

“…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).”

One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. “Others” must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. This idea was expressed by learned Judges by adopting different terminology, but they presumably found it as implicit in the concept of declaration. Sadasiva Iyer, J., in Soun-dararaian v. Arunachalam Chetty [(1915) ILR 39 Mad 159 (PC)] said that the expression “clearly expressed” used by the Privy Council in Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] meant “clearly expressed to the definite knowledge of the other coparceners”. In Girja Bai v. Sadashive Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] the Judicial Committee observed that the manifested intention must be “clearly intimated” to the other coparceners. Sir George Lownles in Bal Krishna v. Ram Ksishna [(1931) ILR 53 All 300 (PC)] took it as settled law that a separation may be effected by clear and unequivocal declaration on the part of one member of a joint Hindu family to his coparceners of his desire to separate himself from the joint family. Sir John Wallis in Babu Ramasray Prasad Choudhary v. Radhika Devi [(1935) 43 LW 172 (PC)] again accepted as settled law the proposition that “a member of a joint Hindu family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declaration of a fixed intention to become separate.…” Sir John Wallis, C.J., and Kumaraswami Sastri, J. in Kamepalli Avilamma v. Mannem Venkataswamy [(1913) 33 MLJ (746)] were emphatic when they stated that if a coparcener did not communicate, during his life time, his intention to become divided to the other coparceners, the mere declaration of his intention, though expressed or manifested, did not effect a severance in status. These decisions authoritatively laid down the proposition that the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member's severance from the family.

But it is said that two decisions of the Madras High Court registered a departure from the said rule. The first of them is the decision of Madhavan Nair, J. in Rama Ayyar v. Meenakshi Ammal [(1930) 33 LW 384] . There, the learned Judge held that severance of status related back to the date when the communication was sent. The learned Judge deduced this proposition from the accepted principle that the other coparceners had no choice or option in the matter. But the important circumstance in that case was that the testator lived till after the date of the service of the notice. If that was so, that decision on the facts was correct. We shall deal with the doctrine of relating back at a later stage. The second decision is that of a Division Bench of the Madras High Court, consisting of Varadachariar and King, JJ., in Narayana Rao v. Purushotama Rao [ILR 1938 Mad 315, 318] . There, a testator executed a will disposing of his share in the joint family property in favour of a stranger and died on August 5, 1926. The notice sent by the testator to his son on August 3, 1926 was in fact received by the latter on August 9, 1926. It was contended that the division in status was effected only on August 9, 1926, when the son received the notice and as the testator had died on August 5, 1926 and the estate had passed by survivorship to the son on that date the receipt of the notice on August 9, 1926 could not divest the son of the estate so vested in him and the will was, therefore, not valid. Varadachariar, J., delivering the judgment of the Bench observed thus:

“It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners.”

After pointing out the various anomalies that might arise in accepting the contention advanced before them, the learned Judge proceeded to state:

“It may be that if the law is authoritatively settled, it is not open to us to refuse to give effect to it merely on the ground that it may lead to anomalous consequences; but when the law has not been so stated in any decision of authority and such a view is not necessitated or justified by the reason of the rules, we see no reason to interpret the reference to ‘communication’ in the various cases as implying that the severance does not arise until notice has actually been received by the addressee or addressees.”

We regret our inability to accept this view. Firstly, because, as we have pointed out earlier, the law has been well settled by the decisions of the Judicial Committee that the manifested intention should be made known to the other members of the family affected thereby; secondly, because there would be anomalies on the acceptation of either of the views. Thirdly, it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby.

29. There is yet another decision of the Madras High Court, which is of Rajamannor, C.J., and Venkataramma Ayyar, J., in Indira v. Sivaprasada Rao [ILR 1953 Mad 245, 256] . There, the testator despatched a telegram addressed to his undivided brother on August 4, evening. In the ordinary course it must have been delivered on August 5. The testator died on August 6 morning. Learned counsel appearing for the brother contended that it had not been established that the telegram reached his client before the testator died and, therefore, the will did not operate on the testator's interest in the joint family property. The learned Judges rejected that contention on the basis of the judgment of Varadachariar and King, JJ., in Narayana Rao v. Purushothama Rao [ILR 1938 Mad 315, 318] . As a Division Bench they were bound by the decision of another Division Bench; but the real basis of the decision is found at p. 256:

“In the case before us, the telegram was dispatched on the 4th evening and in the ordinary course it must have been delivered on the 5th and the testator died only on the 6th morning.”

It appears that in the circumstances of the case the learned Judges presume that the telegram must have reached the testator's brother before the testator died. The conclusion arrived at by the learned Judges would certainly be rigid on the said facts. But we cannot agree with the view insofar as they agreed with that expressed by Varadachariar and King, JJ.

30. Viswanatha Sastri, J., in Adiyalath Katheesumma v. Adiyalath Beechu elaborately and exhaustively considered the question that is now posed before us. There, a member of a tarwad served a notice of his unambiguous intention to separate from the other members of the family on the Karnavan of the tarwad. The question was whether the communication of his intention to the Karnavan was sufficient. The appeal first came up before Satyanarayana Rao and Panchapagesa Sastri, JJ. Satyanarayana Rao, J., held that the notice was not sufficient to constitute a severance, as it was not served on all the other members of the tarwad; and Panchapagesa Sastri, J., held that the service on the Karnavan or the manager of the joint family was sufficient as he was a representative of the family. As there was difference of view between the learned Judges, the matter was placed before Viswanatha Sastri J., and learned Judge agreed with Panchapagesa Sastri J. But in the course of the judgment the learned Judge went further and held that a unilateral declaration of an intention to become divided on the part of a member of a joint Hindu family effects severance in status and therefore the despatch to, or receipt by, the other members of the family of the communication or notices announcing the intention to divide on the part of one member of the family is not essential or its absence fatal to a severance in status. The conclusions of the learned Judge on the question now raised before us are expressed in two places and they are at pp. 543 and 549:

“The only reasonable rule that can be deduced from the texts and several decisions of the Judicial Committee is that the declaration of intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested, or published in such a manner as is appropriate in the circumstances of the case One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family.”

At p. 549 it is stated:

“There must be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute. What form that manifestation, expression, or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or rigid formula. The despatch to or receipt by the other members of the family of a communication or notice announcing the intention to divide on the part of one member of the family is not essential nor its absence fatal to a severance in status.”

31. We agree with the learned Judge insofar as he held that there should be an intimation, indication or expression of the intention to become divided and that what form that manifestation should take would depend upon the circumstances of each case. But if the learned Judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression “declaration” that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.

32. It is, therefore, clear that Hindu law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach that, such a declaration to be effective should reach the person or person affected by one process or other appropriate to a given situation.