IMPORTANT POINTS
Section 6 operates where the deceased is survived by a daughter, or any female as specified in Class I of the Schedule.
Will has to be proved by the propounder in accordance with Section 68 even if its execution is not denied by anybody.

JUDGMENT

R. BANUMATHI, J.

1. These appeals arise out of the common judgment of the High Court of Madhya Pradesh in First Appeal Nos.29, 30 & 31 of 1991 dated 31.07.1997.

2. The parties are related as under:-     

3. The deceased first respondent herein/plaintiff had filed the suit for partition on 26.02.1970 claiming 1/8th of the share in the family properties. The trial Court by the judgment dated 31.01.1991 passed the preliminary decree for partition being Civil Original Suit No.71A/1984 and held that :-

“(i) Plaintiff Smt. Lajesh Saxena is entitled to get 1/12th share in the joint Hindu family property;

(ii) Defendant No.1 Ramesh Verma is entitled to get 1/3rd share in the property of Bhagwanprasad and 1/12th share in the property of Jagan Verma totalling

(iii) Defendant No.3 Rajiv Verma and defendant No.4 Rajat Verma are entitled to get jointly 1/12th share in the property of Prabhavati and 1/12th share in the property of Jaydevi i.e. total ½ share in the joint Hindu family property.”

4. By holding so, the trial court accepted the execution of the Wills being Exhibit D/2 dated 07.12.1969 executed by Jaydevi in favour of Rajiv Verma and Rajat Verma and also Exhibit D/1 dated 23.10.1977 executed by Prabhavati in favour of Rajiv Verma and Rajat Verma.

5. Being aggrieved by the judgment and decree of the trial Court, deceased Ramesh Verma preferred an appeal before the High Court of Madhya Pradesh (FA No.29/1991). Sanjeev Kumar, son of plaintiff Lajesh Saxena as also the plaintiff-Lajesh Saxena filed appeals before the High Court in FA No.30/91 and FA No.31/1999, respectively.

6. After hearing the parties, the High Court vide its judgment dated 31.07.1991, allowed the appeal FA No.31/91 filed by Lajesh Saxena holding that plaintiff is entitled to 1/3rd share in stead of 1/12th share in the Joint Hindu Property. Consequently, FA No.29/91 and FA No.30/91 filed by Ramesh Verma and Sanjeev, respectively, were disposed of. The High Court held that the execution of the Will Exhibit D/1 (dated 23.10.1977), Exhibit D/2 Will (dated 07.12.1969) and Exhibit D/1/C (dated 22.05.1984 executed by Prabhavati) were not proved in accordance with Section 68 of the Indian Evidence Act and disbelieved the genuineness of all the three Wills.

7. Being aggrieved, Ramesh Verma (since deceased) through his legal heirs preferred these appeals.

8. We have heard learned counsel for the parties at considerable length.

9. Learned Senior Counsel for the appellants submitted that after the death of Jagan Verma 1/3rd share of the property devolved upon Ramesh Verma and the same will be governed by survivorship under the Hindu Mitakshara coparcenary law and the High Court was not right in holding that under Section 6 of the Hindu Succession Act females have right to seek partition and dividing the share in property among Jaydevi, Prabhavati and his son and daughter, namely, Ramesh Verma and Lajesh Saxena. It was further submitted that the High Court has not appreciated the findings recorded by the trial Court in accepting the genuineness of the Wills Exhibits D/1 and D/2 and the High Court erred in disbelieving the genuineness of those two Wills. Learned Senior Counsel has taken us at length through Exhibits D/1 and D/2. It was further submitted that, in any event, if a dwelling house is occupied by the members of the family, then the right of any female heir to claim partition is suspended till the time the male heirs choose to divide their respective shares in terms of Section 2