1963 (4) TMI 67 - SC - Indian Laws

Whether the adoption of Venkayya was true and valid? Whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff? Held that - We cannot therefore hold that there is any such clear and unambiguous declaration of intention made by Chimpirayya to divide himself from Venkayya. 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. In this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death of Chimpirayya. In present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayya died. Appeal dismissed.

Issues Involved:
1. Validity of the adoption of Venkayya.
2. Existence of partition between Pitchayya and Chimpirayya.
3. Effect of the will executed by Chimpirayya on the severance of status.
4. Scope of the appeal based on the certificate issued by the High Court.

Detailed Analysis:

1. Validity of the Adoption of Venkayya:
The primary issue was whether Venkayya was validly adopted by Pitchayya. The appellant alleged that Pitchayya adopted Venkayya before his death. The first defendant denied this, stating that Venkayya was never adopted and remained the son of Chimpirayya. The Subordinate Judge and the High Court both found that the plaintiff failed to establish the factum of adoption. The evidence presented by the plaintiff, including testimonies from P.W.1 and P.W.2, was deemed unreliable and contradictory. The lack of formal documentation and the improbability of an only son being adopted further weakened the plaintiff's case. The Supreme Court upheld the concurrent findings of the lower courts, concluding that the adoption was not proven.

2. Existence of Partition Between Pitchayya and Chimpirayya:
The second issue was whether there was a partition between Pitchayya and Chimpirayya. The plaintiff claimed that a partition occurred in 1895, dividing the family property. The first defendant contended that no such partition took place, and the family remained joint. The Subordinate Judge and the High Court found that the plaintiff failed to prove the partition. The evidence, including oral testimonies and documentary evidence, did not support the claim of partition. The Supreme Court, after reviewing the evidence, agreed with the lower courts' findings that there was no partition between Pitchayya and Chimpirayya.

3. Effect of the Will Executed by Chimpirayya on the Severance of Status:
The third issue was whether the will executed by Chimpirayya indicated a severance of status from the joint family. The appellant argued that the will contained an unambiguous declaration of Chimpirayya's intention to divide, which should be considered as a severance in status. The High Court rejected this argument, stating that the will did not contain any such declaration and that the plaintiff should have claimed a division of the entire family property. The Supreme Court held that a member of a joint Hindu family could bring about a separation in status by a clear and unequivocal declaration of intention, but such a declaration must be communicated to the other members affected. In this case, there was no evidence that Subbarao or his guardian had knowledge of the will's contents before Chimpirayya's death. Consequently, the will could not operate on Chimpirayya's interest in the family property.

4. Scope of the Appeal Based on the Certificate Issued by the High Court:
A preliminary objection was raised regarding the scope of the appeal, arguing that the certificate issued by the High Court was limited to specific questions and did not include issues of adoption or partition. The Supreme Court clarified that once a proper certificate is granted under Article 133 of the Constitution, the scope of the appeal is not confined to the terms of the certificate. The Court has the power to review the decision appealed against on all aspects, including questions of fact and law. The objection was therefore rejected.

Conclusion:
The Supreme Court dismissed the appeal, upholding the findings of the lower courts that the adoption of Venkayya was not proven, there was no partition between Pitchayya and Chimpirayya, and the will executed by Chimpirayya did not effect a severance in status. The Court also clarified the scope of appeals under Article 133, allowing for a comprehensive review of the lower courts' decisions.

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