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2002 DIGILAW 245 (MP)

Krishna Murarimangal v. Prakash Narain

2002-03-04

R.B.DIXIT, S.S.JHA

body2002
JUDGMENT S.S. Jha, J. 1. This appeal is by appellant Krishna Murari Mangal. Cross-objection is filed by respondent Prakash Narain. Krishna Murari Mangal has filed a suit for partition and separate possession of 1/3rd share in the joint family property. The plaint was filed. 2. Appellant in the suit has claimed that plaintiff, defendant No. 1 and his three sons, defendants No. 2 and 3 were the members of Joint Hindu Family till 12-2-1969. Defendant No. 1 Pannalal son of Onkarlal, who is the father of plaintiff and defendants No. 2 and 3, was the KARTA of the Joint Hindu Family. Two sons of defendant No. 1, namely, Ghanshyamdas and Shyam Sunder separated from the joint family on 12-2-1969 after taking their share from the joint hindu family. The said partition was registered on 12-2-1969. On 12-2-1969 plaintiff and defendant No. 3 were minor and were in the guardianship of defendant No. 1. From 12-2-1969 onwards plaintiff and defendants No. 1 to 3 constituted a Joint Hindu Family and defendant No. 1 was KARTA of the family. Suit is filed by plaintiff against his father and two brothers claiming partition of the property left after two brothers had separated. During pendency of the suit, plaintiff No. 1 died. Thereafter, plaintiff claimed that he has 1/3rd share in the Joint Hindu Family property. Similarly, defendants No. 2 and 3 have 1/3rd share each in the property. Plaintiff has also claimed that he has also right in the movable property. Claim was denied by the defendants and written statement was filed. In the written statement it was amended that defendant No. 1 Pannalal died on 12-4-1988. Pannalal had executed a Will of his share in favour of defendant Gopalkrishna vide registered Will dated 12-6-1984, therefore, Gopalkrishna alone, has right to get the share of Pannalal. After the death of Pannalal, defendant Ghanshyamdas and children of Shyam Sunder were impleaded as party as legal representatives of said Pannalal. Trial Court on appreciation of evidence has held that the plaintiff has 1/5th share in the property and has 1/5th right in the goodwill of the joint family firm and has held that plaintiff is entitled for 1/8th share in the "STRIDHAN" of Saraswatibai, mother of plaintiff. Appellate Court has affirmed the decree. Learned Single Judge in First Appeal has affirmed the decree. 3. Appellate Court has affirmed the decree. Learned Single Judge in First Appeal has affirmed the decree. 3. Counsel for appellant submitted that both the Courts below have misread the plaint and have not considered the effect of partition and separation of Ghanshyamdas and Shyam Sunder Agarwal during the lifetime of Pannalal. Both the Courts below have ignored the separation of two brothers from the joint family property and granted decree of partition for 1/5th share, whereas it should be 1/3rd share. Gopalkrishan/respondent has filed cross objection and submitted that he has succeeded to entire estate of Pannalal after Will was executed by Pannalal. He submitted that Pannalal and his three sons constituted a joint hindu family, therefore, in partition each coparcener was entitled to 1/4th share and after the death of Pannalal, his 1/4th share shall fall in his favour. Thus, Gopalkrishan is entitled to 1/2 share in the property and remaining brothers are entitled to 1/4th share each. Both the counsel agreed that separate brothers, namely, Ghanshyamdas and Shyam Sunder have no share in the property. Counsel for appellant submitted that at the most Ghanshyamdas and Shyam Sunder will be entitled for a share in the property of deceased Pannalal. Both the counsel agreed that both the Courts below have committed an error in granting decree of 1/5th share. 4. Counsel for appellant submitted that Pannalal had no right to execute the Will. Learned counsel for the appellant invited attention to Section 30 of Hindu Succession Act (hereinafter, referred to as the 'Act') and submitted that under Section 30 of the Act 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. Counsel for appellant submitted that under Section 30 of the Act by general rule a Hindu may dispose of by Will any property which it is within his power to bequeath by any testamentary disposition. Counsel for appellant submitted that under Section 30 of the Act by general rule a Hindu may dispose of by Will any property which it is within his power to bequeath by any testamentary disposition. The explanation of Section 30 is vital and most important part of the section, which provides that 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. 5. First contention of counsel for the appellant is that Pannalal had no right to execute the Will. He invited attention to Section 30 of the Act, Section 57 of Indian Succession Act and Schedule III of Indian Succession Act, and submitted that Pannalal had no right to execute the Will. He further submitted that the Will so produced has not been proved by the attesting witnesses. Counsel for appellant submitted that in proof of Will, Ex.D/4, Gopalswaroop was examined. He has deposed that he recognises the signatures of his father. 'A' to 'A' portion of Will, Ex.D/3, is signed by his father. DW. 2 Vilas Tikhe has been examined to prove the Will. This witness has deposed that Pannalal has executed the Will in favour of his son Gopalswaroop. He has signed the Will as a witness. Will was also signed by Manoj as a witness. Will was registered. This witness has further deposed that Pannalal has read the Will and signed it. Pannalal himself took the Will for registration in the Office of Registrar. This witness admitted his signatures at 'C' to 'C' over Ex. D/3. Counsel for appellant submitted that this witness has not deposed anything about other witness Manoj. In the cross- examination it is stated that second witness Manoj met him in the Court and he accompanied him for registration of Will. In the cross-examination he states that he has signed the Will in the Office of Registrar after he read over the Will to Pannalal and Pannalal has signed the Will. He has deposed that when he signed the Will, Manoj Kumar was present. In the cross-examination he states that he has signed the Will in the Office of Registrar after he read over the Will to Pannalal and Pannalal has signed the Will. He has deposed that when he signed the Will, Manoj Kumar was present. Counsel for appellant submitted that this witness has not stated that after the Will was signed by Pannalal, he and Manoj Kumar have also signed the Will as attesting witness of the execution of the Will. 6. Counsel for the appellant submitted that in view of the aforesaid deposition, Will is not proved. Appellant placed reliance upon the judgment in the case of Girja Datt Singh vs. Gangotri Datt Singh, reported in AIR 1955 SC 346 , and submitted that it is held that in order to prove the due attestation of the Will the propounder of Will has to prove that the two witnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator. Counsel for appellant submitted that since both the witnesses have not signed the Will in presence of testator, the Will cannot be relied upon. Counsel for appellant submitted that witness Vilas Tikhe has not stated that both the witnesses have signed after testator of Will has signed the Will and they have signed in presence of testator of the Will. In para 14 of the judgment it is held that no reliance can be placed upon a Will which has not been proved in accordance with law. 7. Counsel for the appellant referred to the judgment in the case of Valliammai Achi vs. Nagappa Chettiar and another, reported in AIR 1967 SC 1153 , and submitted that father in Mitakashara family has very limited right to execute the Will. The property shall continue to be joint family property as far as his sons are concerned, therefore, he has no right to execute the Will of entire property. Legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the Will. Legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the Will. Where a testator by his Will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B. In such circumstances, B is not allowed to take the full benefit given to him by the Will unless he is prepared to carry into effect the whole of the testator's disposition. He is accordingly put to his election to take either under the instrument or against it. If he elects to take against the Will and to keep his own property, and so disappoints A, then he cannot take any benefits under the Will without compensating A out of such benefits to the extent of the value of the property of which A is disappointed. 8. In the case of M. N. Aryamurthi and another vs. M. L. Subbaraya Setty (dead) by his legal representatives and others reported in AIR 1972 SC 1279 , it is held that a coparcener including the father cannot devise by Will joint family property or any part thereof because the property passes by survivorship to other co-parceners on his death when the Will takes effect and there is nothing left upon which it can operate. It is further held that a Will executed by father about the joint family property though is inoperative as a Will may operate as a valid family arrangement provided the requisite essential arrangement for it is established. 9. Counsel for appellant submitted that when the two sons have separated from the joint family property during the life time of Pannalal, the Courts below have committed grave error in awarding them share in the joint family property. In fact, they have no right in the joint family property. Counsel for appellant referred to the judgment in the case of Kalyani (dead) by L.Rs. vs. Narayanan and others, reported in AIR 1980 SC 1173 . While considering the word "partition", it is held as under:- 10. The next stage in the unfolding of the case is whether Ext. P-l is effective as a partition. Partition is a word of technical import in Hindu Law. vs. Narayanan and others, reported in AIR 1980 SC 1173 . While considering the word "partition", it is held as under:- 10. The next stage in the unfolding of the case is whether Ext. P-l is effective as a partition. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption and joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier vs. Rama Subba Aiyan, (1886) 11 M Ind App 76 (PC) quoted with approval in Smt. Krishnabai Ganpatrao vs. Appasaheb Tuljarammarao (1979) 4 SCC 60 , 68 : AIR 1979 SC 1880 ). A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (See Girja Bai vs. Sadashiv, 43 Ind App 151 : AIR 1916 PC 104). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense. In para 26 of the aforesaid judgment, it is held that five sons of Karappan each constituted a branch, obviously after one son as a branch separated unless a reunion is pleaded, other four sons cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together. In para 26 of the aforesaid judgment, it is held that five sons of Karappan each constituted a branch, obviously after one son as a branch separated unless a reunion is pleaded, other four sons cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together. Once disruption of joint family status takes place, it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties. 10. In the case of Mt. Bhiwra w/o Bajirao and others vs. Mt. Renuka w/o Bajirao and others reported in 1949 NLJ 428 : AIR 1952 Nag 215, the effect of death of father during pendency of suit has been considered and it is held that his share on the date of filing of suit shall be considered for devolution upon legal representatives. 11. Counsel for respondents referred to Section 4 of the Act and submitted that Section 4 provides for overriding effect of the Act and any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. Counsel for respondents submitted that in view of Section 4, provisions of Indian Succession Act will not apply. He further submitted that father has a right to execute the Will of his share and Will has been proved before the Courts below. In support of his contention, counsel for respondents referred to the judgment in the case of Pavitri Devi and another vs. Darbari Singh and others, reported in (1993) 4 SCC 392 . While considering the scope of explanation of Section 30 of the Act, question has been determined in the judgment in para 5. Para 5 of the judgment is reproduced below:- 5. Having made demand for partition and laid the suit in that behalf claiming a specific share in the Mitakshara Coparcenary, Brahmadeo Singh stood divided in status from other members of the coparcenary, though partition by metes and bounds had not taken place, on the date of his death; he was a dividing member of the joint family. Having made demand for partition and laid the suit in that behalf claiming a specific share in the Mitakshara Coparcenary, Brahmadeo Singh stood divided in status from other members of the coparcenary, though partition by metes and bounds had not taken place, on the date of his death; he was a dividing member of the joint family. By operation of Section 30 he was entitled to dispose of his undivided share and the interest in the coparcenary by testamentary disposition. Learned counsel for respondents submitted that by operation of Section 30 of the Act the deceased was entitled to dispose of undivided share and interest in coparcenary by testamentary disposition. It is held that once a demand for partition is made and suit is filed in that behalf claiming specific share in the Mitakshara Coparcenary, coparcener stood divided in status from other members of the coparcenary, though partition by metes and bounds had not taken place on the date of his death. 12. In the case of Jamunabai and two others vs. Surendrakumar and another, reported in 1996 MPLJ 113 : AIR 1995 MP 274 , it is held that legal declaration of deceased, evident from document, that he wanted his property to be dealt with in particular manner after his death, the document is Will. It is further held that deceased putting his signature and executing Will in presence of witnesses; witnesses putting their signatures in presence of deceased; Advocate drafting Will putting his signature after seeing that executant and other two witnesses have put their signatures on Will in presence of each other, it was held that the Will was properly executed and attested. While considering the scope of Section 30 of the Act it is held in para 21 of the judgment that the disability of a coparcener in disposing of his undivided interest in the property by Will or other testamentary document under the old Hindu Law is removed by Section 30. According to Section 4 any custom inconsistent with any provision of this enactment is abrogated. In the expression 'any other law for the time being in force', the 'law' will include any statutory law or textual law or customary law. It would, therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after coming into force of Section 30 of the Act. 13. In the expression 'any other law for the time being in force', the 'law' will include any statutory law or textual law or customary law. It would, therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after coming into force of Section 30 of the Act. 13. Counsel for respondents then referred to the judgment in the case of Illyas and others vs. Badshah alias Kamla, reported in AIR 1990 MP 334 , wherein it is held that at least one attesting witness should be examined and he should speak not only about testator's signature but also that each of witnesses has signed Will in presence of the testator. It is further submitted that since execution of Will is not challenged seriously then Will cannot be questioned. 14. Counsel for the respondents then further submitted that relief of accounts has not been claimed by the plaintiff, therefore, he has no right in movable properties. Counsel for respondents referred to the judgment in the case of Kalusingh and another vs. Gulabchand and another, reported in 1956 NLJ 610 : AIR 1957 Nag 12, and submitted that the a co-sharer or his alienee can claim their share of profits or compensation only if it is proved that they were ousted or excluded from possession or that they had constituted the co-sharer defendant as their bailiff. 15. Reference was made to judgment in the case of Anil Kumar Mitra and others, vs. Ganendra Nath Mitra and other, reported in AIR 1997 SC 3767 , and it is submitted that once it is pleaded that two brothers had separated then unless reunion is pleaded presumption is that each person is separated and there is no joint hindu family property. Learned Counsel submitted that it must be pleaded as a fact and proved that remaining brothers were united and treated and enjoyed the property as in the character of Joint Family property. In the absence of such plea of proof it cannot be held that joint family continues to exist in the absence of which the question of partition does not arise. 16. From the arguments of the parties, three questions arise for determination:- (i) Share of parties to the suit; (ii) Devolution of share of deceased father; and, (iii) Right of deceased Pannalal to execute the Will. 17. 16. From the arguments of the parties, three questions arise for determination:- (i) Share of parties to the suit; (ii) Devolution of share of deceased father; and, (iii) Right of deceased Pannalal to execute the Will. 17. In the suit, it is pleaded that two brothers have separated and they have received their share. The share of other coparceners was not carved out. Though their status may not be as a member of joint family but each sharer has a right in the property unless their share is carved out. Since father and three sons remained joint, therefore, each coparcener will have 1/4th share in remaining Joint Hindu Family Property after two brothers had separated. Separate brother will have no right in the property. Thus, Pannalal and his three sons had 1/4th share in the property. 18. On the death of Pannalal it is to be determined that how the share of Pannalal will devolve upon his legal representatives. Normally, on the death of father the property will go in succession under Section 8 of the Act. His undivided share will be divided equally amongst the class-1 heirs, i.e., sons and daughters. Deceased had 8 children; 5 sons and 3 daughters. Therefore, his share will be divided in 8 parts and each of his legal representatives will receive 1/32th share in the Joint Hindu Family property. 19. Effect of Will is to be considered whether Will was property executed and Pannalal has right to execute the Will. Considering the scope of Section 30 of the Act, it is apparent from the explanation that under the Mitakshara School of Hindu Law Will can be executed by coparcener for his undivided share. In the present case, after separation of two brothers and filing of suit for partition there is a severance of Joint Hindu Family Property. In such set of facts, Pannalal had right to execute the Will of his undivided share. 20. Now we have to examine whether Will executed by Pannalal is duly proved before the Court? 21. On minute scrutiny of evidence of DW. 2 Vilas Tikhe, it is apparent that the testator of the Will and this witness have signed the Will. This witness does not say that any other attesting witness had signed the Will before him. On perusal of evidence of DW. 21. On minute scrutiny of evidence of DW. 2 Vilas Tikhe, it is apparent that the testator of the Will and this witness have signed the Will. This witness does not say that any other attesting witness had signed the Will before him. On perusal of evidence of DW. 2 it is clear that he is unable to depose about the signature of another attesting witness Manoj. This witness has nowhere stated in his deposition that after Pannalal has signed the Will before him and other witness, both the witnesses had appended their signatures over the Will as witnesses. This witness has not deposed that Pannalal has signed the Will in presence of Manoj and thereafter Manoj has also signed the Will as a witness. In the light of judgments in the cases of Girja Datt Singh (supra) and Illyas (supra), Will has not been proved, therefore, Pannalal's 1/4th share shall vest upon his children. 22. In the result, appellant/plaintiff and defendants No. 2 and 3 will get 1/4th plus 1/32th share, i.e., 9/32th share each in the Joint family property whereas the branch of Ghanshyamdas and Shyam Sunder and daughters, namely, Shardabai, Seema and Sapna are entitled for 1/32th share each in the property. 23. Plaintiff has also claimed that he is entitled for partition of the movable property and accounts in business though there is no pleading. However, it is established that business was carried out by the joint family firm with the funds of joint family, therefore, plaintiff and his two brothers, who continued to remain joint with their father after Ghanshyamdas and Shyam Sunder have separated, will have a right of accounts in the property. In the absence of pleading movable properties are to be divided by awarding 9/32th share each to the branch of Ghanshyamdas and Shyam Sunder and three sisters of plaintiff. 24. In the result, appeal succeeds in part and judgment and decree of First Appellate Court is modified. There shall be no order as to costs.