Rajasthan High Court - Jaipur
Smt Shyama Devi vs Smt Manju Shukla And Others on 8 April, 2020
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 700/2012
Smt. Shyama Devi (since deceased) Through Legal
Representatives-
1/1 Deepak Tiwari son of late Shri Jamna Prasad Tiwari resident
of Purander Je Ka Bagh, Moti Doongari Road, Jaipur.
----Appellant
Versus
1. Smt. Manju Shukla W/o Dr. Anand Shukla, R/o 7th Floor,
Vaibhav Apartment Infront Of Heera Panna Apartment, Moti
Doongari Road, Jaipur 302 004
2. Deepak Tiwari S/o Late Jamana Prasad Tiwari, R/o
Purandarji Ka Bagh, Moti Doongari Road, Jaipur
3. Raju Tiwari S/o Late Jamana Prasad Tiwari, R/o Purandarji
Ka Bagh, Moti Doongari Road, Jaipur, Dhruv Marg, Tilak
Nagar, Through Guardian Deepak Tiwari Respondent No. 2
4. Miss. Reeta Tiwari D/o Late Jamana Prasad Tiwari, R/o Purandarji Ka Bagh, Moti Doongari Road, Jaipur
5. Smt. Neena Joshi W/o Dr. Anil Joshi, R/o Gali No. 6, Raja Park, Jaipur
6. Smt. Indra Shukla W/o Shri Kailash Narain Shukla, R/o Vivekanand Marg, Behind Mahila Mandal, Bikaner Rajasthan
7. Ganga Prasad Tiwari S/o Late Bhagwan Deenji Tiwari (died during the pendency of suit on 15.8.2006) R/o Purandarji Ka Bagh, Moti Doongari Road, Jaipur
----Respondents For Appellant(s) : Shri R.K. Agarwal, Sr. Adv. with Shri Mamoon Khalid For Respondent(s) : Shri Rajendra Prasad, Sr. Adv. with Shri Deepak Sharma, Shri Rohan Tibrewal & Shri Ritwick Dave HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment Judgement Reserved on :: 19/02/2020 Judgement Pronounced on :: ______08/04/2020
1. This first appeal has been preferred against the judgement and decree dated 7.9.2012 passed by learned Additional Sessions Judge (Fast Track) No.2, Jaipur Metropolitan, Jaipur whereby, the (Downloaded on 08/04/2020 at 08:28:13 PM) (2 of 20) [CFA-700/2012] civil suit filed by the appellant-plaintiff (for brevity-`the appellant') against the respondents-defendants (for brevity-`the respondents') for declaration and permanent injunction, has been dismissed.
2. The relevant facts in brief are that Shri Dhanpat Rai filed a suit no.21/73 for partition of ancestral properties belonging to late Purindar Ram; the propositus. Late Jamuna Prasad, husband of the appellant and father of the respondents no.1 to 6, was one of the defendants in the suit. Preliminary decree was passed on 24.1.1975. In the first appeal filed by Jamuna Prasad along with his brother Ganga Prasad against the preliminary decree, a compromise dated 5.5.1980 was arrived at between the parties agreeing therein that each branch comprising of descendants of three sons of late Pd. Purindar Ram shall be entitled for 1/3 rd share each. In the first appeal, the application filed by the respondent no.1 herein, Smt. Manju Shukla, seeking her impleadment as one of the respondents raising objection against the compromise, was rejected. The first appeal was disposed of by this Court vide its judgement dated 1.9.1986 in terms of compromise dated 5.5.1980. Shri Jamuna Prasad died on 7.1.1987 and his legal representatives were brought on record. During the course of preparation of final decree, the respondent no.1 moved an application seeking a direction for the Commissioner to divide her 1/7th share out of the 1/3 rd share of late Ganga Prasad and late Jamuna Prasad which came to be allowed by the learned trial court vide its order dated 13.7.1990 rejecting the plea of present appellant to have acquired ownership (Downloaded on 08/04/2020 at 08:28:13 PM) (3 of 20) [CFA-700/2012] over all the properties left behind by Jamuna Prasad on the strength of will in her favour. This Court, vide its order dated 28.5.1991, set aside the order dated 13.7.1990 in the revision petitions filed thereagainst. The Hon'ble Apex Court, vide its order dated 3.3.1992, while allowing the appeal filed by the respondent no.1 against the order dated 28.05.1991, granted the appellant i.e. Smt. Shyama Devi liberty to file a separate suit claiming title in the property in dispute on the basis of the will. Thereafter, the present suit was filed with the averments that late Jamuna Prasad had executed a registered will dated 7.3.1986 in her favour whereby she was given absolute ownership over his entire properties. Thus, it was prayed that the appellant be declared to be sole successor and owner of all the properties falling in share of late Jamuna Prasad as described in Schedule 'Ka' alongwith the decree of permanent injunction.
3. The respondent no.1 in her written statement submitted that the suit filed by Dhanpat Rai was for the division of self acquired property and not for ancestral property. It was denied that late Jamuna Prasad had ever executed any will dated 7.3.1986; rather, his signature on it was claimed to be forged. It was averred that at that time he was seriously ill and was not in a fit mental state to execute the will which was executed under the undue influence of respondent no.2 Shri Deepak Tiwari and his wife Smt. Shashi Tiwari. It was stated that final decree in the suit no.21/73 with regard to her 1/7th share having already been passed and she being in possession of property falling in her share as its absolute owner, the suit was not maintainable. It was, therefore, prayed that the suit filed by the appellant be dismissed. (Downloaded on 08/04/2020 at 08:28:13 PM)
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4. The respondent no.3 in his written statement admitted division of properties amongst three branches as per the compromise between the parties during pendency of the first appeal; but, denied execution of any will in favour of the appellant by late Jamuna Prasad. The respondents no.2 to 6 in their joint written statement admitted the averments made by the plaintiff in her plaint.
5. On the basis of pleadings of the parties, the learned trial court framed five issues including the relief. Oral and documentary evidence was led on behalf of the appellant as well as respondent no.1. The learned trial court has, vide its judgement and decree dated 7.9.2012 impugned herein, dismissed the suit filed by the appellant.
6. Assailing findings of the learned trial court, it was contended by learned senior counsel for the appellant that once it was held by the learned trial court that the signature of the testator on the will was genuine and it was attested by the witnesses also, there was no reason for it to have held the same to be invalid. He argued that minor contradictions in the statements of the plaintiff's witnesses with regard to place of its execution and presence of the persons at the time of its execution, were required to be ignored in the light of advance age of the plaintiff and the lapse of time in between the date of its execution and deposition before the learned trial court. Relying on the judgement of the Hon'ble Apex Court in Ganesan (D) through L.Rs. vs. Kalanjiam & Ors.-AIR 2019 SC 5682, it was contended that once the appellant was able to prove the execution of the will by the testator and its attestation by the independent witnesses, the (Downloaded on 08/04/2020 at 08:28:13 PM) (5 of 20) [CFA-700/2012] onus on her was discharged as to prove all the essential facts for a valid will.
7. Relying on the judgement of Hon'ble Supreme Court in Grasim Industries Ltd. & Anr. Vs. Agarwal Steel-(2010) 1 SCC 83, Shri Agarwal contended that once a person signs a document, there is a presumption, in absence of any proof of force/forgery, that he has read the document properly and understood it and thereafter only, he has affixed his signature thereon.
8. Shri Agarwal further contended that the will being registered, there was a presumption as to its genuineness especially when it contained specific endorsement by the Sub-Registrar that the testator has admitted its execution after reading and understanding the same. In this regard, he relied upon the judgements of the Hon'ble Apex Court in Rabindra Nath Mukherjee & Anr. Vs. Panchanan Banerjee (Dead) by L.Rs. & Ors.-(1995) 4 SCC 459 and Raja Ram vs. Jai Prakash Singh & Ors.-(2019) 8 SCC 701.
9. Attacking the findings recorded by the learned trial court vide issue no.1, the learned senior counsel submitted that mere absence of description of the property in the will does not render it invalid and it was sufficient that under the will, the appellant was conferred absolute ownership over all the properties left by the testator. Relying on Section 74 of the Indian Succession Act, 1925 (for brevity-`the Act of 1925'), Shri Agarwal contended that the will does not require to be cast in any specific term; but, the wording must reflect the intention of the testator clearly. (Downloaded on 08/04/2020 at 08:28:13 PM)
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10. With regard to allegation of the will being executed by late Jamuna Prasad under the undue influence of his son; the respondent no.2 Shri Deepak Tiwari and his wife, learned senior counsel submitted that the pleadings in this regard by the respondent no.1 in her written statement were bereft of any details with regard to the nature, manner or kind of undue influence exercised by the respondent no.2 or his wife over the testator and mere bald allegation could not raise any suspicion as the sole idea behind the execution of the will is to interfere with normal line of succession. He, therefore, prayed that the impugned judgement and decree passed by the learned trial court be set aside and suit filed by her be decreed.
11. Per contra, Shri Rajendra Prasad, learned senior counsel appearing for the respondent no.1 supporting the findings recorded by the learned trial court, submitted that the learned trial court has committed no error in holding the will having been executed under suspicious circumstances. He submitted that there were discrepancies in the statements of the plaintiff's witnesses with regard to material aspects touching the genuineness of the will such as where and in whose presence the will was executed. He submitted that while the plaintiff in her deposition as PW-1 stated that the will was executed in presence of herself as well as his son Deepak and somebody brought the type writer; whereas, as per the statement of other plaintiff witnesses, the attesting witnesses were also present besides the plaintiff, her son at the time of its execution and it was typed by Shri Ambe Charan, the Deed Writer at the Collectorate, Jaipur.
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12. The learned senior counsel submitted that law postulates the will to stand on a different and special footing so far as its proof is concerned as it impeaches upon normal rule of succession and therefore, it has to be proved to the hilt beyond all doubts. He submitted that neither the registering authority nor, the advocate who identified the testator before the registering authority, has been examined by the plaintiff to lend credentials to the will. Relying upon the judgements of the Hon'ble Apex Court in Leela Rajgopal & Ors. Vs. Kamala Menon Cocharan & Ors.-(2014) 15 SCC 570, Jaswant Kaur vs. Amrit Kaur & Ors.-(1977) 1 SCC 369 and Purnima Devi & Ors. Vs. Kumar Khagendra Narayan Dev & Ors.-AIR 1962 SC 567, Shri Rajendra Prasad contended that even in absence of specific allegation/evidence to the contrary, it is obligatory upon the Court examining a will's validity to take into consideration all the unusual/unnatural and suspicious circumstances surrounding its execution and it is part of the initial onus of the propounder to remove all reasonable doubts in this regard. He further contended that since the family settlement, the basis of the properties falling in the share of Jamuna Prasad and the subject matter of the will in question, had already been set aside while finally decreeing the suit for partition, the will was rendered void. He submitted that in these circumstances, none of the properties of Schedule `Ka', was identifiable as property of late Jamuna Prasad and therefore, the learned trial court has rightly rejected the will in absence of any property specified therein. Referring the order dated 11.7.1995 passed by the learned trial court, he argued that it has already rejected the suit qua certain properties described in Schedule `Ka' (Downloaded on 08/04/2020 at 08:28:14 PM) (8 of 20) [CFA-700/2012] and the appellant could not establish that rest of the properties fell in share of Jamuna Prasad so as to entitled him to execute the will in question.
13. Relying upon the judgements of Hon'ble Supreme Court in Doddamuniyappa (Dead) through L.Rs. vs. Muniswamy & Ors.-MANU/SC/0855/2019 and Valliammai Achi vs. Nagappa Chettiar & Anr.-AIR 1967 SC 1153, learned senior counsel for the respondent submitted that the property falling in the share of late Shri Jamuna Prasad on partition of ancestral property, retained its character as ancestral property qua the male issues and could not have been reckoned as his self acquired property entitling him to execute the will in respect thereof. He submitted that since Jamuna Prasad was survived by his two sons, the joint hindu family continued without change of nature of the properties and no will could have been executed by Jamuna Prasad.
14. Shri R.K. Agarwal, learned senior counsel for the appellant submitted in rejoinder that the Hon'ble Apex Court has, in the dispute arising between the parties reported in (1994) 6 SCC 347 (Manju Shukla (Smt.) vs. Shyama Devi & Ors.), held the appellant entitled to file a separate suit claiming title on the basis of will and the allotment of the share of Jamuna Prasad amongst his legal representatives under the preliminary decree of partition was made subject to decision of such suit. He submitted that submission of the learned senior counsel for the respondent that since Jamuna Prasad was survived by two sons, the purpose of notional partition as stipulated under Section 6 of the Hindu Succession Act, 1956 was to ascertain his share only and it did not (Downloaded on 08/04/2020 at 08:28:14 PM) (9 of 20) [CFA-700/2012] amount to bring the HUF to an end, is liable to be rejected. Relying on Section 6 of the Act of 1956, he submitted that since Jamuna Prasad was survived by female relatives specified in Class-I of the Schedule, his interest would devolve by testamentary and not by survivorship. He submitted that to ascertain the interest of late Jamuna Prasad in the coparcenary property, the notional partition was to be effected just before his death. He submitted that this issue is no more res integra in view of the judgement of the Larger Bench of the Hon'ble Supreme Court in the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum & Ors.-(1978) 3 SCC 383 and judgements of Supreme Court in Pavitri Devi & Anr. Vs. Darbari Singh & Ors.-(1993) 4 SCC 392 and Hardeo Rai vs. Sakuntala Devi & Ors.-(2008) 7 SCC 46. He submitted that the Hon'ble Apex Court has, in the litigation between the parties, in the case of Shyama Devi (Smt.) & Ors. Vs. Manju Shukla (Mrs.) & Anr.-(1994) 6 SCC 342 held that interest of Jamuna Prasad in the coparcenary property has to devolve in accordance with Section 6 of the Act of 1956. He contended that the reliance placed by learned senior counsel for the respondent in the case of Doddamuniyappa (supra) and Valliammai Achi (supra) is misplaced as those cases did not involve application of proviso read with Explanation 1 to Section 6 of the Act of 1956.
15. Heard learned counsel for the parties and perused the record.
16. While deciding the issue no.1, the learned trial court has, rejecting contention of the respondent no.1 that the will did not bear signature of Jamuna Prasad, held the will (Ex.1) to be (Downloaded on 08/04/2020 at 08:28:14 PM) (10 of 20) [CFA-700/2012] doubtful for the reasons inter alia that there were contradictions in the statement of the plaintiff's witnesses with regard to where it was executed and who has accompanied the testator to the Collectorate. The learned trial court has, while raising doubt with regard to place of execution, in the same breath observed that it was doubtful as to who has accompanied Jamuna Prasad to Collectorate meaning thereby, it was satisfied that it was executed at Collectorate and the evidence on record also reflects so. Barring the plaintiff herself as PW1, rests other plaintiff witnesses i.e. PW2, Deepak Tiwari, PW3 Laxman Khubani and PW4 Ambe Charan Srivastava have said in unison that the will was executed at Collectorate, Jaipur in presence of the plaintiff, Deepak Tiwari and two attesting witnesses, namely; Laxman Khubani and Deshraj. So far as contradictions contained in the statement of plaintiff as PW1 vis-a-vis her witnesses are concerned, the same being trifle and keeping in view of her advance age (65 years) and lapse of time (about 12 and ½ years) from the date of execution of the will till she deposed before the learned trial court, are liable to be ignored specially the will being registered with specific endorsement by the Sub-Registrar that it was admitted to have been executed by the testator after reading and understanding its contents.
17. The Hon'ble Apex Court in the case of Grasim Industries Ltd. & Anr. (supra) held in para 6 as under:
"6. In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted." (Downloaded on 08/04/2020 at 08:28:14 PM)
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18. Recently, the Hon'ble Apex Court in the case of Raja Ram vs. Jai Prakash Singh & Ors. (supra) reiterated the settled law that there is a presumption of genuineness in favour of a registered document.
19. The Hon'ble Apex Court in the case of Rabindra Nath Mukherjee & Anr. (supra) held that where a will is registered and the Sub Registrar certifies that the same had been read over to the executor who, on doing so admitted the contents, the fact that the witnesses to the document are interested, loses significance. In the present case also, the learned trial court has recorded a finding that the will bears signature of the testator as well as of two attesting witnesses; out of which one has deposed before the learned trial court and it is registered one. In these circumstances, this Court has no hesitation in holding that the appellant has been able to discharge onus upon her as to validity of the will and it is the respondent no.1 who could not establish the suspicious circumstances to render the will invalid.
20. Insofar submission of the learned senior counsel for the respondent that the will was executed by Jamuna Prasad under the undue influence of his son Deepak Tiwari and his wife Smt. Shashi Tiwari, is concerned, the same does not merit acceptance in view of bald statement in the written statement by the respondent no.1 in absence of any specific details or averments in this regard. The respondent has also failed to lead any evidence to support her allegation. In the case of Ganesan (D) through L.Rs. (supra), the Hon'ble Apex Court has held as under: (Downloaded on 08/04/2020 at 08:28:14 PM)
(12 of 20) [CFA-700/2012] "5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgment may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgment on part of the testator. Where a testator asks a person to attest his will, it is a reasonable inference that he was admitting that the will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed will, read it out to them after which they attested the will.
6. In H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443, it was observed :
".......Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
21. In the case of Raja Ram vs. Jai Prakash Singh & Ors. (supra), the Supreme Court held, dealing with the question of undue influence, that in every caste, creed, relative, and civilized society, looking after the elders of the society is considered a sacred and pious duty. It was held that-
"We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence (Downloaded on 08/04/2020 at 08:28:14 PM) (13 of 20) [CFA-700/2012] merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day."
22. The Hon'ble Apex Court in the case of Rabindra Nath Mukherjee & Anr. (supra) held, while deciding the issue of suspicious circumstances as to deprivation of the only heir by the testatrix, that this could not raise any suspicion; because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially.
Thus, this Court does not find substance in the allegation of the respondent no.1 that the will in question came to be executed by Jamuna Prasad under the undue influence of the respondent no.2 and his wife.
23. This Court is in respectful agreement with the law laid down by the Hon'ble Apex Court in the case of Jagdish Chand Sharma vs. Narain Singh Saini (Dead) through L.Rs. & Ors.-(2015) (Downloaded on 08/04/2020 at 08:28:14 PM) (14 of 20) [CFA-700/2012] 8 SCC 615 which mandates proof of will strictly in consonance with Section 68 of the Evidence Act, 1872 as well as law laid down in the cases of Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors.-(2014) 15 SCC 570, Jaswant Kaur (supra) and Poornima Devi & Ors. (supra) to the effect that even in the absence of specific allegation as to the will being surrounded by suspicious circumstances, it is bounden duty of the Court to adjudge its validity taking into consideration all the unusual / unnatural features and suspicious circumstances; but, in the present case, in considered view of the Court, the appellant has been able to prove execution of the will by Jamuna Prasad in her favour free from all suspicion.
24. The learned trial court has erred in disbelieving and discarding the will on the premise of absence of description of any specific property in it. The law does not require description of any/every property left behind by the testator an essential element of a will. Section 74 of the Act of 1925 reads as under:
"74. Wording of will- It is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom."
Thus, the statute does not require a will to be couched in any technical or specific term. The law with regard to construction of a will is very clear; the intention of the testator has to be gathered and endeavour of the courts should be to give effect to every disposition contained therein. A perusal of the will (Ex.1) reveals that it categorically provides that after death of testator, the appellant; his wife, would be the absolute owner of all the (Downloaded on 08/04/2020 at 08:28:14 PM) (15 of 20) [CFA-700/2012] properties left behind by him. This Court does not find that the will suffers from any infirmity on account of absence of description of specific properties left behind by Shri Jamuna Prasad and cannot subscribe the view of the learned trial court that the will was rendered invalid on account of absence of description of specific properties left behind by its testator.
25. Another circumstance relied upon by the learned trial court to dent the validity of the will has been that the respondent no.1 was already given share in the properties described in Schedule `Ka' and could not have been its subject matter. In this regard, the learned trial court did not appreciate that the Hon'ble Apex Court has, vide its judgement dated 3.3.1992 in the litigation between the parties arising out of the civil suit no.21/73 viz. Manju Shukla (supra), held as under:
"The appeal is, therefore, allowed and the trial Court is directed to allot the shares of each legal representatives separately in respect of the share of Jamuna Prasad as per Hindu Law without reference to any will alleged to have been executed by Jamuna Prasad. However, we make it clear that this will not preclude the widow of Jamuna Prasad to file a separate suit claiming title on the basis of the will. We further make it clear that on the ground that she has filed or is going to file any such suit the final decree proceedings should not be held up. The result of leaving open the truth and validity of the will in question to a separate suit is that the allotment of the shares of Jamuna Prasad among the legal representatives would confer title on the legal representatives only subject to any defeasance at a later stage in case the will was found to be true, genuine and valid."
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26. In view of the aforesaid, it was not open for the learned trial court to cast a shadow on the validity of the will on account of share already been given to the respondent no.1 in the suit for partition.
27. From the aforesaid analysis of the evidence on record in the light of legal principles, the finding recorded by the learned trial court vide issue no.1 cannot be sustained in the eye of law and are set aside. The will dated 7.3.1989 is held to be valid and genuine.
28. The learned trial court has decided issue no.2 against the plaintiff on the strength of findings recorded vide issue no.1. Since, the findings of the learned trial court vide issue no.1 already stands set aside, the findings of the learned trial court vide issue no.2 are also liable to be quashed and set aside. However, relying upon the judgement of the Hon'ble Apex Court in the case of Doddamuniyappa (Dead) through L.Rs. (supra) and Valliammai Achi (supra), it has been contended by the learned senior counsel for respondent no.1 that since Jamuna Prasad was survived by his two sons, the property would retain its character of coparcenary property even after notional partition effected on account of death of Jamuna Prasad and Jamuna Prasad had no authority to execute the will with regard to the ancestral properties.
29. While making this contention, learned senior counsel ignored that the Hon'ble Apex Court has, in the case of Shyama Devi (Smt.) & Ors. (supra), held as under:
"7. The relevant part of Section 6 of the Act is as follows:(Downloaded on 08/04/2020 at 08:28:14 PM)
(17 of 20) [CFA-700/2012] "6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this 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 this death, irrespective of whether he was entitled to claim partition or not."
In view of the direction given by this Court on 3-3-1992, we have to proceed on the assumption that Jamuna Prasad at the time of his death had an interest in Mitakshara coparcenary property and as such the pre-conditions of Section 6 are satisfied. Under the main provision of Section 6, the interest of Jamuna Prasad in the coparcenary property would have devolved by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But in the facts and circumstances of the case, the proviso to Section 6 along with the Explanation 1 is attracted since the widow and daughters are amongst the female relatives specified in Class 1 of the Schedule to the Act. Proviso to Section 6 comes into operation, if the deceased leaves behind any female relative specified in Class 1 of the Schedule of the Act or a male relative, specified in (Downloaded on 08/04/2020 at 08:28:14 PM) (18 of 20) [CFA-700/2012] that Class, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property. Then in that event, it shall devolve by intestate succession under the provisions of the Act and not by survivorship. As Jamuna Prasad died leaving behind his widow the appellant and four daughters, who shall be deemed to be the family relatives specified in Class 1 of the Schedule to the Act, the proviso to Section 6 shall come into play and the interest of Jamuna Prasad shall devolve according to the said proviso by way of intestate succession under the Act. The claim of the execution of a will made by the appellant is not to be taken into account at this stage in view of the earlier order dated 3-3-1992 passed by this Court. The Explanation 1 contains the formula for determining the share of the deceased and for that purpose a statutory fiction has been introduced saying that interest of the person dying intestate shall be deemed to be share in the property that would have been allotted to him, if the partition of the property had taken place immediately before his death. As such one has to imagine for purpose of ascertaining the interest of Jamuna Prasad in the coparcenary at the time of his death that a partition of the property had been effected a little prior to his death. The scope of Section 6 of the Act along with proviso and Explanation 1 has been examined in detail by this Court in the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum-(1978) 3 SCC 383.
8. Mr Gopal Subramaniam, Senior Advocate, appearing on behalf of the respondents, took a stand that Section 6 is attracted only when the dispute is in respect of interest in Mitakshara coparcenary property. As in the present case there was a partition, out of which the present dispute has arisen, it shall be deemed that there was no Mitakshara coparcenary property in existence when Jamuna Prasad died. It is an admitted position that the partition suit which had been filed in the year 1965 in which preliminary decree was (Downloaded on 08/04/2020 at 08:28:14 PM) (19 of 20) [CFA-700/2012] passed on 24-1- 1975, the partition sought for was by Dhanpat Rai, representing one of the three branches. It is nobody's case that at that stage or any time later there was inter se partition between Jamuna Prasad and his sons, who were members of coparcenary. As such it has to be assumed that on the date of death, Jamuna Prasad was a member of coparcenary, and Section 6 as well as Explanation 1 to the said section was applicable to the interest of Jamuna Prasad in the coparcenary properties at the time of his death."
30. It is apt to observe that the aforesaid dispute arose from the partition suit no.21/73 in which both the appellant and the respondent no.1 herein were parties as legal heirs of deceased Jamuna Prasad. Even otherwise also, it is settled law that when a male Hindu dies leaving surviving female relative specified in Class-1 of the Schedule, his interest in the coparcenary property has to devolve by testamentary or intestate succession and not by survivorship and to carry out this object, the concept of notional partition has been employed under Explanation-1. This Court finds support from a Larger Bench judgement of Hon'ble Apex Court in the case of Gurupad Khandappa Magdum (supra) and Division Bench judgements in Pavitri Devi & Anr. (supra) and Hardeo Rai (supra). The ratio of the judgements of Hon'ble Apex Court in the cases of Doddamuniyappa (Dead) through L.Rs. (supra) and Valliammai Achi (supra) are of no help to the respondent having been given under entirely different facts and circumstances wherein proviso to Section 6 alongwith its explanation 1 of the Act of 1956, had no applicability. The provisions of Section 30 of the Act of 1956 also entitle interest of a male Hindu in mitakshara coparcenery property capable of being disposed of by him by (Downloaded on 08/04/2020 at 08:28:14 PM) (20 of 20) [CFA-700/2012] testamentary succession. In these circumstances, submission of learned senior counsel for the respondent deserves to be rejected.
31. Although, none of the counsels had raised arguments qua the issue no.4 but, this Court finds that findings of the learned trial court in this regard are not based on proper appreciation of the evidence on record. During the course of arguments, it has come to the notice of the Court that a Civil First Appeal No.51/1996, Tiwari Ganga Prasad vs. Smt. Manju Shukla, arising out of the final decree for partition between the parties amongst others, is sub-judice in which specific properties falling in the share of late Jamuna Prasad are yet to be determined. In these circumstances, this Court deems it just and proper to hold that once the issue as to specific properties falling in the share of late Shri Jamuna Prasad is decided finally, the learned trial court shall assess the Court fee leviable on the basis of their valuation and decree of declaration, as sought by the appellant, shall be prepared on payment of deficit court fee.
31. In the aforesaid circumstances, the civil first appeal is allowed. The judgement and decree dated 7.9.2012 passed by the learned Additional Sessions Judge (Fast Track) No.2, Jaipur Metropolitan are set aside and the suit filed by the appellant for declaration is decreed in the aforesaid terms.
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