In view of the provisions of Section 68 of the Evidence Act,
there is no need to examine the scribe of Will. What law
requires is examination of atleast on attesting witness.
30. In view of the aforesaid legal preposition there is no
need of examining scribe of the Will.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 222 of 1982
SONAJI RAGHALA CHAUDHARI Vs AKHA DIWALA CHAUDHARI
CORAM: DR. JUSTICE A. P. THAKER
Date : 02/07/2021
1. Being aggrieved and feeling dissatisfied with the
judgment and decree of the Appellate Court, Surat
passed in Regular Civil Appeal No. 33 of 1981 dated
17.11.1981, the original defendant has preferred this
Second Appeal under Section 100 of CPC. The
appellant is the original defendant- respondent and
the present respondent is the original plaintiffappellant.
It is contended that the respondent had
filed a Suit against present appellant being Suit No.
108/1978 for the partition alleging that the properties
are of the joint family properties and possession of
his 1/2 share in the suit property. According to him,
the trial Court, by its judgment and decree dated
31.12.1980, dismissed the suit of the plaintiff against
which the plaintiff has filed First Appeal No. 33/1981,
wherein the First Appellate Court allowed the Appeal
filed by the plaintiff.
2. For the brevity and convenience the parties are
referred to herein as plaintiff and defendant.
3. The defendant has challenged the judgment of the
First Appellate Court on the ground that the First
Appellat Court has erred in holding that the Diwala
Gausa was not in sound state of mind and he did not
understood the effect of the disposition he has made.
According to defendant, the learned Appellate Court
overlooked the fact that after marriage of the
plaintiff, the plaintiff has been residing at his Fatherin-
law's house at Ghantoli. It is also alleged that the
learned Appellate Court has not considered the
important fact that the defendant's father died
before 30 years so the deceased Diwala Gausa had
naturally more love and affection to his grand-son,
who lost the love of his father at the age of around
12 or 14 years forever. It is also contended that the
learned Appellate Court has misread the evidence on
record. It is also contended that the plaintiff in his
evidence admitted that his father Diwala Gausa died
at the age of was 65 years. This fact is not properly
considered by the learned Appellate court. It is also
contended that the learned Appellate Court has not
properly appreciated the evidence on record. That
the version of the defendant and his witnesses ought
to have been believed by the learned Appellate Court
and learned appellate Court ought not to have set
aside the well reasoned judgment and decree of the
learned trial Court. It is also contended that the
learned first appellate Court has mis-read the
evidence of the defendant’s witnesses and also the
documentary evidence i.e. “Will”. It is also contended
that the observation of the learned first appellate
Court that at the time of execution of the Will false
statement was made that no son of the deceased is
alive, is contrary to the documentary evidence on
record. The defendant has prayed to set aside the
impugned judgment of the first Appellate Court and
restore the judgment and decree of the trial Court
passed in Civil Suit No. 108/1978.
4. The defendant-appellant has raised almost 4
substantial questions of law. However, this Court has
raised the following questions of law.
(1) Whether on the facts and circumstances of the
case, the lower Court has committed error in
holding that the Will on which the appellant
relied on is a Will executed by the deceased
Diwala Gausa in sound state of mind on
11.1.1975?
(2) Whether after the appellate Court came to the
conclusion that the plaintiff does not prove that
the suit properties are undivided family
properties and erred to decree the suit of the
plaintiff for one half share in the Suit property?
5. Heard learned advocate Ms. Dhara Shah for the
appellant and Mr. Nagesh Sood, as amicus-curiae for
the respondent through video-conferencing at length.
6. The facts leading to the present Appeal are as under:
6.1 The plaintiff has filed the Suit for partition of the suitproperties
which consist of two agricultural lands
bearing Survey No. 55, admeasuring 2 Acres,
situated in the Sim of village – Talsada- Khurd and
the agricultural land bearing Survey No. 30
admeasuring Acre-3 and 8 Gunthas situated in the
Sim of village Umarkhadi, Taluka: Mandvi. The case
of the plaintiff is that the suit-properties are the joint
family properties of the deceased Diwala Gausa, the
plaintiff and the defendant. It is further case of the
plaintiff that deceased Diwala Gausa was the Karta of
the joint family and Diwala Gausa purchased the suit
properties with the aid of joint family funds under the
provisions of the Bombay Tenancy and Agricultural
Lands Act. Further, the case of the plaintiff is that the
deceased Diwala Gausa died on 13.1.1975.
According to the plaintiff, he has share in the suit
properties. He has also contended that Diwala Gausa
was physically and mentally infirm to execute a Will.
It is further case of plaintiff that Diwala Gausa has
not executed any Will and has not bequeathed the
Suit lands to the defendant. The plaintiff contended
that Diwala Gausa has no right to execute a Will.
According to him, yet the Suit lands were mutated in
the name of the defendant in the Revenue records on
the basis of the fabricated Will alleged to have been
executed by the plaintiff’s father Diwala Gausa. It is
alleged that the plaintiff had called upon the
defendant to partition the suit properties, but the
defendant refused to do so. The case of the plaintiff
is that he has 1/2 share in the suit properties. On the
basis of these averments, the plaintiff has filed the
Suit for partition of the suit-properties and for
possession thereof by metes and bounds and mesne
profits thereof.
7. It appears from the record that the defendant has
filed his Written Statement at Exh-8 before the trial
Court wherein, he has denied that the suit-properties
are undivided joint family properties. He has also
denied that Diwala Gausa was Karta of the joint
family. He has denied the contention of the plaintiff
that the Suit lands were purchased by Diwala Gausa
with the aid of joint family funds. According to the
defendant, the suit lands were self-acquired
properties of Diwala Gausa and he had right to make
Will and to bequeath the said properties. According
to him, the plaintiff had separated from Diwala Gausa
before many years and he was residing at village
Ghantoli at his father-in-law’s house since last 30
years. It is also contended that since that time i.e.
separation of the plaintiff from the deceased Diwala
Gausa, the deceased has purchased the lands, which
are self-acquired properties of the deceased. It is
also contended that the deceased Diwala Gausa has
acquired the suit lands under the provisions of the
Bombay Tenancy and Agricultural Lands Act and,
therefore, the concerned Court has no jurisdiction to
entertain the Suit.
8. On the basis of the pleadings fo the parties, the trial
Court has framed following issues at Exh-10.
(1) Does the plaintiff proves that the deceased
Diwala Gausha had no authority to execute a Will in
respect of suit-property?
(2) Does the plaintiff proves that the suit-property
is of the H.U.F. of the parties?
3. Does the plaintiff proves that he has got 1/2
share in the suit-property?
4. Does the plaintiff proves that he is entitled to
partition, separate possession and mesne-profit?
5. Has this Court has jurisdiction to hear and
decide the suit?
6. Is this suit-property valued for Court-fees and
jurisdiction?
7. To what relief, if any, is the plaintiff entitled?
8. What order and decree?
9. Whether the plaintiff is a joint tenant with the
deceased Diwala in respect of the suit-land?
9. After considering the evidence on record, the trial
Court held that the suit properties were the selfacquired
properties of the deceased Diwala Gausa.
The trial Court has also held that the plaintiff has
failed to prove that the Suit properties were
undivided family properties of the parties. The trial
Court further held that Diwala Gausa had executed
Will in respect of the suit properties and the
deceased Diwala Gausa had executed the Will at
Exh-49 in sound disposing state of mind and had
bequeathed the suit properties in favour of the
defendant. It has also held that the plaintiff has no
right and interest in the suit lands and ultimately
dismissed the Suit of the plaintiff.
10. Being aggrieved with the judgment and decree of the
trial Court, the plaintiff has preferred First Appeal
being Regular Civil Appeal No. 33 of 1981 before the
Appellant Court, Surat which has been decided by
the Assistant Judge, Surat vide judgment and decree
dated 17.11.1981, whereby the Appellate Court has
framed the following Points:
1. Whether the defendant proves that the testator
Diwala Gausa was in sound disposing state of mind
on 11.1.1975?
2. Whether the Will (Exh.49) dated 11.1.1975 is
proved to have been executed by Diwala Gausa in
sound disposing state of mind?
3. Whether the plaintiff proves that the suitproperties
are undivided joint family properties of the
parties?
4. What order?
11. The First Appellate Court has decided the aforesaid
points in negative and has ultimately passed the
Order to the effect that the plaintiff is entitled to
partition with metes and bounds and also directed
the Collector, Surat or any subordinate to the
Collector deputed by him, to make partition and
separation of the lands and has also passed order for
drawing the decree. This judgment and decree of the
first Appellate Court has been challenged by the
defendant in this Second Appeal.
12. Ms. Dhara Shah, learned advocate for the appellant
has vehemently submitted that deceased Diwala
Gausa has executed the Will whereby the properties
have been bequeathed to the appellant herein. She
has also submitted that the plaintiff has never
resided with the deceased and he was residing with
his wife at his father-in-law’s house. She also
submitted that the allegations made by the plaintiff
regarding the properties being HUF, is not proper as
entire properties were self-acquired properties of the
deceased. She has contended that the trial Court
has, after considering the entire evidence on record,
dismissed the suit of the plaintiff and the judgment
and decree of the trial Court are tenable in the eyes
of law. She has submitted that the plaintiff
challenged the same before the appellate Court
wherein the appellate Court has allowed the Appeal
by declaring that the plaintiff has got 1/2 share in the
properties and he is entitled for partition of the same.
That the appellate Court also ordered to partition by
metes and bounds and held that the plaintiff shall
recover 1/2 share in the suit properties. According to
her submissions, the appellate Court has committed
serious error of facts and law by setting aside the
decree of the trial Court. She has also submitted that
the observations made by the appellate Court
regarding the Will are not proper. She has also
submitted that the observation made by the
appellate Court that the deceased Diwala Gausa died
intestate without making any Will is not based on
evidence on record. According to her submissions,
there is ample evidence on record to suggest that
the deceased Diwala Gausa has executed Will and,
therefore, the observation of the Appellate Court is
not legal and valid.
12.1 She has also submitted that Will has been produced
at Exh-49 and on the basis of the same, the trial
Court has held that the properties are self-acquired
properties of the deceased. She has also submitted
that the plaintiff has not challenged the Will on the
ground of illness of the deceased and of
unsoundness of the mind of the deceased. She has
also submitted that it was challenged only on the
ground that the properties were of HUF and the
properties were not self-acquired properties of the
deceased. She has submitted that learned first
Appellate Court has committed serious error of facts
and law in passing the impugned decree. She has
relied on the decisions in case of Narinder Singh
Rao v. AVM Mahinder Singh Rao and Ors,
reported in AIR 2013 SC 1470.
13. Per contra, Mr. Nagesh Sood, learned advocate as an
amicus curiae, has submitted that there are two
agricultural properties and the deceased was only
Karta of HUF. He has also submitted that the
properties being agricultural lands and deceased
being Karta of the HUF, the deceased had no right to
bequeath the properties in favour of the defendant.
He has also submitted that the deceased has not
executed any Will and the Will produced in the
matter is a fabricated one. He has also submitted
that the properties are of joint family properties and,
therefore, the plaintiff has 1/2 share in the same. He
has also submitted that the trial Court has not
framed any issues regarding the validity or execution
of the “Will”. He has submitted that the suit was filed
for partition only which is legal and valid. He has also
submitted that the trial Court has not properly
considered the evidence on record and has
committed error in framing issues and has ultimately
dismissed the suit of the plaintiff. He supported the
judgment and decree of the first appellate Court and
has submitted that the findings of the fact recorded
by the first appellate Court is proper and valid and
this being Second Appeal, this Court may not disturb
the findings of fact, which has been recorded by the
first appellate Court, which is based on the oral and
documentary evidence. He has also submitted that
though the attesting witness to the Will has been
examined but the scribe of the Will is not examined
to substantiate that there was a legal Will executed
by the deceased. He has submitted that the present
Appeal may be dismissed.
14. In rejoinder, Ms. Dhara Shah, learned advocate for
the appellant has submitted that the plaintiff has
failed to establish the fact that the properties were of
joint family properties. She has also submitted that
the plaintiff being Son was not residing with father
and was residing with his wife at his Father-in-law’s
house since 1950. This fact, according to her, is
relevant which has not been considered by the First
Appellate Court. She has also submitted that the
societal approach of the deceased treating his Son as
of non-existence for all purposes is a relevant factor,
which is not properly considered by the First
Appellate Court. She has submitted that there is no
legal need that there should be registration of the
Will in every case. According to her submissions,
there is always no necessity of giving entire
description of the properties of the deceased. She
has further submitted that the first appellate Court
has failed to consider the legal aspect regarding to
the Will and has committed serious error of facts
and, therefore, this Court being second appellate
Court, can re-appreciate the evidence on record. She
has prayed to allow the present Appeal.
15. In the case of Narinder Singh Rao v. AVM
Mahinder Singh Rao and Ors (Supra), the Apex
Court has upheld the observations made by the High
Court of Punjab & Haryana, which is as follows:
“7. It is pertinent to note as to how the High Court has
decided the Second Appeal and for that purpose let us
look at the findings, which are as under:
The ultimate findings arrived at by the court below are
to the effect that the writing executed by Rao Gajraj
Singh, which stated that upon death of himself or his
wife, the suit property would be inherited by the
survivor, was neither in the nature of a Will nor in the
nature of transfer of the property because the said
writing was neither registered as required under the
provisions of the Indian Registration Act, 1908 nor was
attested by two witnesses as it should have been done,
had it been a Will. Thus, the writing executed by Rao
Gajraj Singh, in the eyes of law, was only a piece of
paper, having no legal effect. Factually also, the said
writing was not a Will because it was not attested by
two attesting witnesses as is required to be done for
execution of a valid Will. It is also a fact that the said
writing had not been registered and by virtue of the said
writing either complete ownership or share of Rao Gajraj
Singh was not transferred to Sumitra Devi, thus, the
High Court in its impugned judgment rightly ignored the
said writing executed by Rao Gajraj Singh”.
15.1 While rejecting the submissions made on behalf of
appellant regarding the mental capacity of the
testator to execute a Will, the Apex Court has
observed in Para-16 as under:
“16. The submissions made with regard to the mental
capacity of Sumitra Devi at the time of execution of the
Will cannot also be looked into at this stage because the
mental capacity of the testator to execute a Will being a
question of fact, we would like to accept the findings
arrived at by the court below and all allegations with
regard to soundness of mind of Sumitra Devi at the time
of execution of the Will or allegation with regard to
undue influence of the present appellant with whom
Sumitra Devi was residing at the time of her death
cannot be looked into by this Court as they are the
issues pertaining to fact. We, therefore, do not accept
the submissions made with regard to validity of the Will
executed by Sumitra Devi”.
16. Prior to coming into force of the Hindu Succession
Act, no coparcener could dispose of whole or any
portion of his undivided coparcenary interest by Will.
But by virtue of Section 30 of the Act read with
explanation, a coparcener derives his right to dispose
of his undivided share in Mitakshara joint family
property by Will or any testamentary disposition i.e.
by virtue of law. The said provision reads thus:
Section 30: Testamentary succession : Any Hindu may
dispose of by Will or other testamentary disposition any
property, which is capable of being so disposed of by
him or by her, in accordance with the provisions of the
Indian Succession Act, 1925 (39 of 1925), or any other
law for the time being in force and applicable to Hindus.
Explanation.— The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru
in the property of the tarwad, tavazhi, illom, kutumba or
kavaru shall notwithstanding anything contained in this
Act or in any other law for the time being in force, be
deemed to be property capable of being disposed of by
him or by her within the meaning of this section.
17. In the case of Radhamma and Ors v.
H.N.Muddukrishna and Ors, reported in AIR
2019 SC 643, the Apex Court has dealt wiht Section
30 on the Hindu Succession Act and especially in
Para-7 has observed as under:
“7. Section 30 of the Act, the extract of which has been
referred to above, permits the disposition by way of Will
of a male Hindu in a Mitakshara coparcenary property.
The significant fact which may be noticed is that while
the legislature was aware of the strict rule against
alienation by way of gift, it only relaxed the rule in
favour of disposition by way of a Will of a male Hindu in
a Mitakshara coparcenary property. Therefore, the law
insofar as it applies to joint family property governed by
the Mitakshara school, prior to the amendment of 2005,
when a male Hindu dies after the commencement of the
Hindu Succession Act, 1956 leaving at the time of his
death an interest in Mitakshara coparcenary property,
his interest in the property will devolve by survivorship
upon the surviving members of the coparcenary. An
exception is contained in the explanation to Section 30
of the Act making it clear that notwithstanding anything
contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property can be disposed of by
him by Will or any other testamentary disposition ...”.
18. It is pertinent to note that Section 6 and 19 of the
Hindu Succession Act, 1956 deals with devolution of
interest in coparcenary property as well as mode of
succession of two or more heads respectively. Both
these provisions provide as under:
Section 6: Devolution of interest in coparcenary property. —
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a Joint Hindu
family governed by the Mitakshara law, the daughter of
a coparcener shall,—
(a) by birth become a coparcener in her own right in the
same manner as the son;
(b) have the same rights in the coparcenary property as
she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the
said coparcenary property as that of a son, and any
reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a
coparcener: Provided that nothing contained in this subsection
shall affect or invalidate any disposition or
alienation including any partition or testamentary
disposition of property which had taken place before the
20th day of December, 2004.
(2) Any property to which a female Hindu becomes
entitled by virtue of sub-section (1) shall be held by her
with the incidents of coparcenary ownership and shall
be regarded, notwithstanding anything contained in this
Act or any other law for the time being in force in, as
property capable of being disposed of by her by
testamentary disposition.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005, his interest
in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or
intestate succession, as the case may be, under this Act
and not by survivorship, and the coparcenary property
shall be deemed to have been divided as if a partition
had taken place and,—
(a) the daughter is allotted the same share as is allotted
to a son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at
the time of partition, shall be allotted to the surviving
child of such pre-deceased son or of such pre-deceased
daughter; and
(c) the share of the pre-deceased child of a predeceased
son or of a pre-deceased daughter, as such
child would have got had he or she been alive at the
time of the partition, shall be allotted to the child of
such pre-deceased child of the pre-deceased son or a
pre-deceased daughter, as the case may be.
Explanation. —For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have
been allotted to him if a partition of the property had
taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognise any
right to proceed against a son, grandson or greatgrandson
for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the
ground of the pious obligation under the Hindu law, of
such son, grandson or great-grandson to discharge any
such debt: Provided that in the case of any debt
contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained
in this sub-section shall affect—
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction
of, any such debt, and any such right or alienation shall
be enforceable under the rule of pious obligation in the
same manner and to the same extent as it would have
been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of clause (a), the
expression “son”, “grandson” or “great-grandson” shall
be deemed to refer to the son, grandson or greatgrandson,
as the case may be, who was born or adopted
prior to the commencement of the Hindu Succession
(Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day
of December, 2004. Explanation. —For the purposes of
this section “partition” means any partition made by
execution of a deed of partition duly registered under
the Registration Act, 1908 (16 of 1908) or partition
effected by a decree of a court.] Statement of Objects
and Reasons [The Hindu Succession (Amendment) Act,
2005] Section 6 of the Act deals with devolution of
interest of a male Hindu in coparcenary property and
recognises the rule of devolution by survivorship among
the members of the coparcenary. The retention of the
Mitakshara coparcenary property without including the
females in it means that the females cannot inherit in
ancestral property as their male counterparts do. The
law by excluding the daughter from participating in the
coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led
to oppression and negation of her fundamental right of
equality guaranteed by the Constitution having regard
to the need to render social justice to women, the States
of Andhra Pradesh, Tamil Nadu, Karnataka and
Maharashtra have made necessary changes in the law
giving equal right to daughters in Hindu Mitakshara
coparcenary property. The Kerala Legislature has
enacted the Kerala Joint Hindu Family System (Abolition)
Act, 1975. It is proposed to remove the discrimination as
contained in section 6 of the Hindu Succession Act, 1956
by giving equal rights to daughters in the Hindu
Mitakshara coparcenary property as the sons have.
State Amendment Sections 6A to 6C Karnataka: After
section 6 the following sections shall be inserted,
namely:— "6A. Equal rights to daugher in co-parcenary
property.— Notwithstanding anything contained in
section 6 of this Act-
(a) in a joint Hindu family governed by Mitakshara law,
the daughter of a co-parcener shall by birth become a
co-parcener in her own right in the same manner as the
son and have the same rights in the co-parcenary
property as she would have had if she had been a son
inclusive of the right to claim by survivorship and shall
be subject to the same liabilities and disabilities in
respect thereto as the son;
(b) at a partition in such a joint Hindu family the coparcenary
property shall be so divided as to allot to a
daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a
predeceased daughter would have got at the partition if
he or she had been alive at the time of the partition,
shall be allotted to the surviving child of such
predeceased son or of such predeceased daughter:
Provided further that the share allotable to the
predeceased child of a predeceased son or of a
predeceased daughter, if such child had been alive at
the time of the partition, shall be allotted to the child of
such predeceased child of the predeceased son or of
such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes
entitled by virtue of the provisions of clause (a) shall be
held by her with the incidents of co-parcenary
ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the
time being in force, as property capable of being
disposed of by her by will or other testamentary
disposition;
(d) nothing in clause (b) shall apply to a daughter
married prior to or to a partition which had been
effected before the commencement of Hindu Succession
(Karnataka Amendment) Act, 1990.
6B Interest to devolve by survivorship on death. —
When a female Hindu dies after the commencement of
the Hindu Succession (Karnataka Amendment) Act,
1990, having at the time of her death an interest in a
Mitakshara co-parcenary property, her interest in the
property shall devolve by survivorship upon the
surviving members of the co-parcenary and not in
accordance with this Act: Provided that if the deceased
had left any child or child of a pre-deceased child, the
interest of the deceased in the Mitakshara co-parcenary
property shall devolve by testamentary or intestate
succession as the case may be under this Act and not by
survivorship.
(Explanations) — (1) For the purposes of this section the
interest of female Hindu Mitakshara co-parcenary shall
be deemed to be the share in the property that would
have been allotted to her if a partition of the property
had taken place immediately before her death,
irrespective of whether she was entitled to claim
partition or not.
(2) Nothing contained in the proviso to this section shall
be construed as enabling a person who, before the
death of the deceased had separated himself or herself
from the co-parcenary, or any of his or her heirs to claim
on intestacy a share in the interest referred to therein.
6C Preferential right to acquire property in certain
cases. —
(1) Where, after the commencement of Hindu
Succession (Karnataka Amendment) Act, 1990 an
interest in any immovable property of an intestate or in
any business carried by him or her, whether solely or in
conjunction with others devolves under sections 6A or
6B upon two or more heirs and any one of such heirs
proposes to transfer his or her interest in the property or
business, the other heirs shall have a preferential right
to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the
property of the deceased may be transferred under subsection
(1) shall in the absence of any agreement
between the parties, be determined by the court, on
application, being made to it in this behalf, and if any
person proposing to acquire the interest is not willing to
acquire it for the consideration so determined, such
person shall be liable to pay all costs of or incidental to
the application.
(3) If there are two or more heirs proposing to acquire
any interest under this section, that heir who offers the
highest consideration for the transfer shall be preferred.
Explanation.— In this section 'court' means the court
within the limits of whose jurisdiction the immovable
property is situate or the business is carried on, and
includes any other court which the State Government
may by notification in the Official Gazette specify in this
behalf. [ Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f.
30-7-1994).]
(i) The contention of the petitioners that there was
automatic partition amongst the heirs of the deceased
Karta on his death has been negatived because it is only
when the deceased had left his surviving female heirs as
provided in proviso to section 6 of the Act, a notional
partition is deemed to have taken place in the joint
family property for the purpose of ascertaining the share
of the deceased in the joint family properties which
comes to the share of the female heirs. If there are male
heirs there is no automatic partition; Shivgonda
Balgonda Patil v. Director of Resettlement, AIR 1992
Bom 72.
(ii) The heirs will get his or her share in the interest
which the deceased had in the coparcenary property at
the time of his death in addition to the share which he
or she received or must be deemed to have received in
the notional partition; Gurupad v. Hirabai, AIR 1978 SC
1239.
(iii) The fiction in the explanation of section 6 of the Act
should be carried to a narrow extent only with a new
point to implement the purpose for which it was
introduced. When there were only two coparceners and
one of them died, then if any person other then the
coparcener is entitled to a share as a result of severance
of the share of the deceased coparcener, the share of
such other person will become fixed; Shushilabai v.
Naraynarao, AIR 1975 Bom 257.
(iv) The deceased coparcener's share gets fixed on the
date of his death, subsequent fluctuations in the
fortunes of the coparceners do not affect it; Karuppa v.
Palaniammal; AIR 1963 Mad 254.
19. Mode of succession of two or more heirs.—If two or
more heirs succeed together to the property of an
intestate, they shall take the property,—
(a) save as otherwise expressly provided in this Act, per
capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
19. In the case of M. Arumugam Vs. Ammaniammal
and Ors., reported in (2020) 11 SCC 103, the
Apex Court in Para-10 has observed as under:
“10. When we read Section 6 of the Succession Act the
opening portion indicates that on the death of a male
Hindu, his interest in the coparcenary property shall
devolve by survivorship upon the surviving members of
the coparcenary and not in accordance with the Act.
That would mean that only the brothers would get the
property. However, the Proviso makes it clear that if the
deceased leaves behind a female heir specified in Class-
I of the Schedule, the interest of the deceased in the
coparcenary property shall devolve either by
testamentary or by intestate succession under the
Succession Act and not by survivorship. The opening
portion of Section 6, as it stood at the relevant time,
clearly indicates that if male descendants were the only
survivors then they would automatically have the rights
or interest in the coparcenary property. Females had no
right in the coparcenary property at that time. It was to
protect the rights of the women that the proviso clearly
stated that if there is a Class-I female heir, the interest
of the deceased would devolve as per the provisions of
the Act and not by survivorship. The first Explanation to
Section 6 makes it absolutely clear that the interest of
the Hindu coparcener shall be deemed to be his share in
the property which would have been allotted to him if
partition had taken place immediately before his death”.
20. The Supreme Court has referred to the case of
Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum and Ors, reported in
(1978) 3 SCC 383, wherein it was held in Para-11
that the partition which was a deemed partition
cannot be limited to the time immediately prior to the
death of the deceased coparcenary but “all the
consequences which flow from a real partition have
to be logically worked out, which means that the
share of the heirs must be ascertained on the basis
that they had separated from one another and had
received a share in the partition which had taken
place during the life time of the deceased.: This Court
further held that the partition has to be treated and
accepted as a concrete reality, something that
cannot be recalled at a later stage.”
21. The Supreme Court has also referred to the judgment
of Appropriate Authority (IT Deptt.) and Ors v.
Arifulla and Ors., reported in (2002) 10 SCC 342
wherein the issue arose was whether the property
inherited in terms of Sections 6 and 8 of the
Succession Act was to be treated as the property of
co-owners or as joint family property. The Court has
held as follows:
“3. … This Court has held in CWT vs. Chander Sen that a
property devolving under Section 8 of the Hindu
Succession Act, is the individual property of the person
who inherits the same and not that of the HUF. In fact,
in the special leave petition, it is admitted that
respondents 2 to 5 inherited the property in question
from the said T.M. Doraiswami. Hence, they held it as
tenants-in-common and not as joint tenants.”
22. Regarding the status of the Karta as a Manager of the
joint family property, the Supreme Court in Para-17, in the
aforesaid case of M. Arumugam Vs. Ammaniammal and
Ors.(Supra), has observed as under:
“17. A Karta is the manager of the joint family property.
He is not the guardian of the minor members of the joint
family. What Section 6 of the Act provides is that the
natural guardian of a minor Hindu shall be his guardian
for all intents and purposes except so far as the
undivided interest of the minor in the joint family
property is concerned. This would mean that the natural
guardian cannot dispose of the share of the minor in the
joint family property. The reason is that the Karta of the
joint family property is the manager of the property.
However, this principle would not apply when a family
settlement is taking place between the members of the
joint family. When such dissolution takes place and
some of the members relinquish their share in favour of
the Karta, it is obvious that the Karta cannot act as the
guardian of that minor whose share is being
relinquished in favour of the Karta. There would be a
conflict of interest. In such an eventuality it would be
the mother alone who would be the natural guardian
and, therefore, the document executed by her cannot
be said to be a void document. At best, it was a voidable
document in terms of Section 8 of the Act and should
have been challenged within three years of the plaintiff
attaining majority”.
23. Having considered the contentions made by learned
advocate for both the sides coupled with aforesaid
legal aspects and facts of the case, and on perusal of
the judgment of the trial Court along with the
judgment of first appellate Court, it is crystal clear
that there is concurrent findings of fact that the suit
properties were self-acquired properties of the
deceased Diwala Gausa. This concurrent finding of
facts, based on the evidence on record, and this
being Second Appeal, this Court has limited
jurisdiction to interfere with the findings of fact in
absence of any material illegality or mis-appreciation
of evidence on record of the Court below. Therefore,
the question of the suit properties being self-acquired
properties by the deceased Diwala Gausa is well
established. On perusal of both the judgment, it is
clear that the stand taken by the original plaintiff that
the suit properties were ancestral properties which
were purchased after the sale of the joint family
which was situated in another village is not believed
by both the Courts below. Further, there is no cogent
evidence on record to suggest that the suit properties
were purchased from the sale price of the ancestral
properties. It is clear from the documentary evidence
that the deceased Diwala Gausa has purchased the
same under the Bombay Tenancy and Agricultural
Lands Act and there is entry to that effect in the
government record. This concurrent findings of fact
has not been challenged by the original plaintiff by
filing any objection or any Appeal herein.
24. Now, the controversy is regarding as to whether the
deceased Diwala Gausa had any authority to execute
any Will of the suit properties in favour of the
defendant herein. It is held by the trial Court that the
suit property being self-acquired properties of the
deceased, he has authority to execute the Will. This
findings of the fact has not been interfered with by
the first appellate Court however, the controversy in
the matter is regarding the genuineness of the Will at
Exh-49 alleged to be executed by the deceased
Diwala Gausa on 11.1.1975.
25. On perusal of the judgment of the first appellate
Court, it is found that the first appellate Court has
interfered with the decision of the trial Court
regarding the execution of the Will by the deceased
on the following grounds:
1. There is no description of the properties in the
Will.
2. There is recital in the Will that the deceased has
only one son, whereas he had two sons.
3. There is discrepancy of the oral evidence of the
important witnesses of the defendant regarding
the colour of the thumb impression i.e. blue or
black of the deceased.
4. There is contradictory version of the defendant
witness regarding purchase of the stamp.
5. There is contradictory evidence of the
defendant’s witness as to whether the drafting
of the Will was done while they were sitting
either on the Otta of the house of the scribe or
in the interior room of the scribe namely
Gemalsinh.
6. Non-examination of the scribe i.e. Gemalsinh of
the Will.
7. That the deceased was suffering from Paralysis
and he was not in a position to execute Will as
he was ill before the time of his death.
8. The registration of the Will after the death of the
deceased.
26. On the aforesaid ground, the first appellate Court has
doubted the execution of the Will and has observed
that the Will at Exh-49 alleged to be executed by the
deceased Diwala Gausa is suspicious one and it
cannot be relied on for the facts of the bequeath of
the properties in the name of the defendant who is
grand-son of the deceased.
27. It is pertinent to note that in support of the execution
of the alleged Will, the defendant has examined
himself at Exh-47 and his witnesses namely Jethabhai
Keshavbhai (who is attesting witness of the Will) at
Exh-48, Chhaganbhai Lakhabhai at Exh-53, Ravjibhai
Bhimjibhai (attesting witness of the Will) at Exh-56,
Dalpatbhai Nadabhai Chaudhari at Exh-58 whereas
the plaintiff has examined himself namely Akha
Diwala at Exh-23 and his witnesses namely Akhabhai
Michhlabhai at Exh-43 and has also produced
documentary evidence which consist of entries of the
revenue record.
28. As regards the capacity to execute or make a Will as
well as construction of Will, the provisions contained
in the Indian Succession Act, 1925 needs to be taken
into consideration. Section 59 and Section 82 of the
Indian Succession Act respectively provide as under:
“Section 59. Person capable of making wills.—
Every person of sound mind not being a minor may
dispose of his property by will.
Explanation 1.—A married woman may dispose by will of
any property which she could alienate by her own act
during her life.
Explanation 2.—Persons who are deaf or dumb or blind
are not thereby incapacitated for making a will if they
are able to know what they do by it.
Explanation 3.—A person who is ordinarily insane may
make a will during interval in which he is of sound mind.
Explanation 4.—No person can make a will while he is in
such a state of mind, whether arising from intoxication
or from illness or from any other cause, that he does not
know what he is doing.
Section 82. Meaning or clause to be collected
from entire Will.—The meaning of any clause in a Will
is to be collected from the entire instrument, and all its
parts are to be construed with reference to each other.
28.1 In view of the aforesaid provision, even a person who
are deaf or dumb or blind can make a Will if they are
able to do what they do by it. Not only that, even a
person who is insane may make a Will during interval
if he is of sound mind. Therefore, under Section 59,
only rider for non-capability of making Will is of being
minor who is prohibited to dispose of his property by
Will. Except minor, as provided in explanation under
Section 59, other persons, as referred to above, can
execute Will.
28.2 For consideration of a Will, as provided under Section
82, as referred to hereinabove, the meaning of any
clause in the Will is to be collected from the entire
instrument and all its parts are to be construed with
reference to each other. There cannot be a piecemeal
reading of a Will.
29. Further, a Will is an instrument of testamentary
disposition of property being a legally acknowledged
mode of bequeathing a testator’s acquisitions during
his life time, to be acted upon only on his/ her
demise, it is no longer res integra, that it carries with
it an overwhelming element of sanctity. A Will needs
to be attested by the witnesses. Section 68 of the
Evidence Act deals with the proof of execution of
document required by law to be attested. The
provision thereof runs as under:
“Section 68: Proof of execution of document requied by
law to be attested. - If a document is required by law to
be attested, it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the Court
and capable of giving evidence:
[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a will, which has been registered in
accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been
executed is specifically denied.]
29.1 Attested in relation to an instrument, means and
shall be deemed always to have meant, attested by
two or more witnesses each of whom has seen the
executant sign or affix his mark to the instrument, or
has seen some other person sign the instrument, in
the presence, and by the direction, of the executant,
or has received from the executant a personal
acknowledgment of his signature or mark, or of the
signature of such other person and each of whom
has signed the instrument in the presence of the
executant; but it shall not be necessary that more
than one such witness shall have been present at the
same time and no particular form of attestation shall
be necessary.
29.2 The Supreme Court in Beni Chand v. Kamala Kunwar,
reported in AIR 1977 SC 63 held that by attestation is
meant the signing of a document to signify that the
attestor is a witness to the execution of the
document; and by Section 63(c) of the Indian
Succession Act, 1925, an attesting witness to a Will is
one who signs the document in the presence of the
executant, after seeing the execution of the
document, or after receiving a personal
acknowledgment from the executant as regards the
execution of the document.
29.3 In order to assess as to whether the Will has been
validly executed and is a genuine document, the
propounder has to show that the Will was signed by
the testator and that he had put his signatures to the
testament of his own free will; that he was at the
relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions
and the testator had signed in the presence of two
witnesses who attested it in his presence and the
presence of each other. Requirement of Section 68
of the Evidence Act in proving the Will is to produce
at least one of the attesting witnesses. In view of the
provisions of Section 68 of the Evidence Act, there is
no need to examine the scribe of Will. What law
requires is examination of atleast on attesting
witness.
30. In view of the aforesaid legal preposition there is no
need of examining scribe of the Will. The only legal
requirement is examination of one attesting witness.
Nows, in this case, the defendant side has examined
both the attesting witnesses, viz. (i) Shri Jethabhai
Keshavbhai (Exh-48) and (ii) Shri Ravjibhai
Bhimjibhai (Exh-56) wherein they have categorically
stated that the deceased has executed Will in their
presence, and deceased has put his thumb
impression on the Will at Exh-49 and at that time the
deceased was in sound state of mind. However, the
learned appellate Court has heavily relied on the fact
that the scribe of the Will has not been examined by
the defendant. This reasoning and observation of the
learned first Appellate Court is not in consonance
with the legal requirement for the proof of the Will.
31. It is pertinent to note that the first Appellate Court
has also heavily relied on the fact that the testator in
his Will has mentioned that he has only one son and
has doubted the genuineness of the Will. On this
ground, it is well settled principles of law that while
interpreting the Will, the entire Will has to be read
and construed. There cannot be reading of the Will
piece-meal. Now, on reading of alleged Will at Exh-
49, there is clear averment that deceased has other
son namely Akho, who is plaintiff, is residing with his
father-in-law and has left him and he has never taken
care of the testator and due to that, he is not
reserving any right in favour of him in deceased’s
properties. It is also averred in the Will that his
grand-son is maintaining him since his Son Akho left
him to reside with his father-in-law. This fact clearly
suggests that the testator has knowledge regarding
his second Son Akho and due to his not taking care of
him during his entire life, he has left out from
properties. This recital has not been taken into
consideration by the first Appellate Court. Since
plaintiff has not maintained his deceased father
Diwala Gausa, it is natural for the deceased Diwala
Gause to exclude his own son from getting any share
in the self-acquired properties and there is nothing
wrong in bequeathing the entire properties to his
grand-son who has maintained the deceased.
Therefore, the observation and the reasoning on the
part of the first Appellate Court regarding suspicious
condition as to execution of the Will, is not in
consonance with the facts on record and is also not
legally tenable.
32. Further, there is consistent stand of the witnesses of
the defendant appellant that all of them have went to
the scribe’s home at Mandvi along with deceased
and the Will was written by Shri Gebalsinh. Of course,
there is some discrepancy regarding the colour of the
ink used for thumb impression of the testator and
witnesses thereof, but, that fact has no relevance as
on perusal of the Will along with the statement
recorded therein by the Sub-Registrar, Mandvi it is
found that there are some thumb impression in
black. Therefore, it is possible for the witnessess of
the defendant that they may have committed some
mistake regarding the same.
33. it also reveals from the execution of Will at Exh-49
that after his death the same has been got registered
and it has been registered by the Sub-Registrar. This
fact of Registration after the death of the deceased
has some relevance for doubting the execution of
Will. But, the action on the part of the concerned
Sub-Registrar Mandvi in registering the Will after the
death of the deceased Diwala Gausa is an act done
by Official, for which the beneficiary of the Will
cannot be blamed. It was for the concerned Sub-
Registrar not to register the Will after the death of
Diwala Gausa. Mistake as well as erroneous action on
the part of the Sub-Registrar, Mandvi cannot affect
the right of the person in whose favour the deceased
has bequeathed his self-acquired properties.
34. On perusal of the entire evidence on record, it clearly
appears that all the legal requirements of proving the
Will has been satisfied and the factum of excluding
the plaintiff Akha from the properties by the testator
is reflected in the Will itself, are sufficiently proved.
Of course, there is no description of the entire
properties in the Will. However, there is specific
averment of bequeathing all his properties which are
available at the time of his death to his grandson in
the Will. Therefore, there is no question of nonspecification
of properties in the Will. The
observation made by the first Appellate Court in this
regard is also not in consonance with the facts and
circumstances of the case as well as on legal
aspects.
35. In view of the legal provisions as discussed
hereinabove, questions of law referred to above are
answered as under:
(1) It is properly held by the trial Court that the Will
was executed in the sound state of mind by the
deceased Diwala Gausa.
(2) Since the properties were held to be selfacquired
properties of the deceased and ‘Will’ is
found to be valid, the First Appellate Court has
committed serious error of facts and law in
passing decree in favour of plaintiff for 1/2 share
in the suit properties.
36. Having considered all these facts and circumstances
of the case, it clearly transpires that the first
Appellate Court has committed serious error of law
and facts in setting aside the decree passed by the
trial Court and therefore, the decree passed by the
first Appellate Court requires to be set-aside,
Whereas the decree of dismissing the Suit, as passed
by the learned trial Court is required to be restored.
37. In view of the aforesaid discussion, the present
Appeal is allowed. The Judgment and decree dated
17.11.1981 passed by the First Appellate Court, Surat
i.e. Assistant Judge, Surat in Regular Civil Appeal No.
33/1981 are hereby quashed and set-aside. The
judgment and decree dated 31.12.1980 passed by
the learned trial Court i.e. Civil Judge (J.D.) Mandvi in
Civil Suit No. 108/78 are hereby restored. The suit
filed by the Respondent herein- original plaintiff
stands dismissed.
37.1 Considering the facts and circumstances of the case,
there will be no order as to costs.
37.2 Necessary decree to be drawn in this Second Appeal.
37.3 Alongwith copy of this judgment and decree, R&P to
be sent back to the learned trial Court.
(DR. A. P. THAKER, J)
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