In the Supreme Court of India
Civil Appellate Jurisdiction
Civil Appeal No.7092 Of 2010
Appellant
Radhamma & Ors.
Respondent
H.N. Muddukrishna & Ors.
Date of Judgement
23 January, 2019
Bench
Hon’ble Justice Rastogi
Background of the case:
In this case Smt. Hanumakka (Plaintiff 1) is the second wife and Plaintiff 2 is a daughter of late Patel Hanume Gowda.
Mr. Patel Hanume Gowda was owning several moveable and immoveable properties which were joint family properties. The first defendant Mr.Narasimhaiah, is the only son and Mr.Patel did not have any male heir. He had one daughter from his second marriage and two daughters from his first marriage. After the death of Mr.Patel, Narasimhaiah became the Karta of the joint family. In May 1962 Mr.Patel suffered from paralytic stroke and under unconscious condition Mr. Narasimhaiah played undue influence and fraudulently got a Will dated 16-6-1962 executed, favoring himself. The first plaintiff, after the demise of her husband, started living along with the first defendant and in her old age, he sent her away. She was forced to live alone with her daughter. Later, they demanded their legitimate share in the joint family which was denied by the first defendant.
On 7-7-1978, the first plaintiff died, and all the ceremonies were done by the second plaintiff. The item described as “H” schedule was purchased in the name of wife of Muddukrishna out of the joint family funds and second plaintiff had also a right in the said property. They declared the Will dated 16-6-1962 and codicil dated 18-7-1962 as null and void.
The contentions made by the defendant that plaintiffs were well informed about the fact that late Patel Hanumegowda bequeathed the entire property in favor of the first defendant tinder a registered Will dated 16-6-1962. And he never ill-treated the first plaintiff. Also, late Patel Hanume Gowda was not in a disposition state of mind at the time of the Will is also incorrect. The firm M/s Parijatha is the exclusive business of the persons running it and none of the funds are derived from the income of joint family properties as alleged. In his WS defendant said that
Facts of the case:
A suit was filed by the appellants pertaining to 1/10th share in the disputed properties wherein by a decree, the Trial Court declared that the second plaintiff had the entitlement of 1/10th share in the properties of the joint family that are scheduled as ‘E’ while the properties that are scheduled as ‘F’ & ‘G’ were the self-acquired properties that belonged to the testator, and ‘H’ being the exclusive property of K.C. Saroja.
An appeal was made against the Trial Court’s judgment and decree in the High Court by the appellants while another was filed by the defendants–respondents contending the judgment. It was held by the High Court that the respondents had been able in establishing the due execution of the Will according to Section 68 of the Evidence Act.
However, while referring to the 1/10th share of the plaintiff no.2 upon the undivided share of the testator in properties belonging to the joint family, the High Court held the right of disposing his undivided share by a coparcener is derived in a Mitakshara joint family property through a “Will”/testamentary disposition while reversing the Trial Court’s findings and upholding the 1/10th share of the appellants in the schedule of the properties.
Issues Raised:
1. Whether the Will of the testator dated 16.06.1962is valid?
2. Whether the Will dated 16.06.1962 suspicious and signed by the testator under undue influence of defendant?
3. Whether the judgment of the High Court for reversing the order of the Trial Court for giving 1/10th share of joint family properties in favour of plaintiff is valid?
Arguments Advanced:
1. The learned counsel Mr. Girish Ananthamurthy, for appellant, contended that the testator was unwell during the period and there is no reason for the testator to have a complete exclusion of one branch of the family, hence the Will of the testator dated 16.6.1962 appears to be suspicious.
2. He further submitted that an error has been committed by the High Court in giving the judgment, as plaintiff had an independent share in the properties of joint family.
Decision held by Supreme Court:
1. The plaintiff challenged the validity of the Will dated 16.06.1962, claiming that the defendants exercised undue influence on Mr.Patel as he was suffering from paralytic stock and as a result of which he bequeathed the Will in their favour. But, a concurrent finding of the facts has been recorded holding that the defendants were able to establish due execution of the Will as required under Section 68 of the Evidence Act and we find no reason to disturb the same.
2. In the appeal against the judgment of the Karnataka High Court, which reversed the order of Trial Court in reference to 1/10th share of the appellants in the undivided share of the testator in joint family properties, the Hon’ble Supreme Court said that 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.
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.
3. Hence, the Supreme Court dismissed appeal for a partition suit and held that undivided interest in a Hindu joint family can be disposed of by Will as per section 30 of the Hindu succession Act, 1956, and held that the High Court had not performed any error in giving the judgment.
Relevant Provisions:
Section 30 of The Hindu Succession Act,1956– ‘Testamentary succession’.
(1)Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 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 subsection.
(2)For the removal of doubts it is hereby declared that nothing contained in subsection (1) shall affect the right to maintenance of any heir specified in the Schedule by reason only of the fact that under a will or other testamentary disposition made by the deceased the heir has been deprived of a share in the property to which he or she would have been entitled under this Act if the deceased had died intestate.”
Section 68 of The Indian Evidence Act, 1872– ‘Proof of execution of document required by law to be attested’.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
