Point of Law:Hindu Law – property given to wife - Property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fell within the ambit of subsection (2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate.

JUDGMENT :

Sreenivas Harish Kumar, J.

The Prl. Sr. Civil Judge, Ballari, by her judgment dated 29.04.2014, partly decreed the suit O.S. No. 404/2007, granting 1/3rd share to the plaintiff in ‘A’ schedule property while dismissing it in respect of ‘B’ and ‘C’ schedule properties. The first defendant is in appeal as he is aggrieved by the decree in respect of ‘A’ schedule property.

2. The material facts are:

The plaintiff, the first defendant and one Sukh Raj, the deceased, are all sons of Bhaktawarmal, who executed a Will on 03.04.1982 giving life interest to his wife, Sundar Bai in ‘A’ schedule property which is a residential building bearing Nos.148(1), (2), (3) and (4) situate in Ward No.3, T.S. No. 53, 54, 55 and 56 of block no.1, Tank Bund Road, Ballari. The will directed that after the death of Sundar Bai, Bhaktawarmal’s three sons should enjoy the property in equal rights till their lifetime and thereafter, the entire property should go to the grandchildren. On 03.04.1982, Bhatawarmal executed another will in favour of defendant no.1 in respect of a property bearing door no. 10/3 in Car Street. Bhaktawarmal died on 13.03.1983. Sundar Bai enjoyed ‘A’ schedule property till her death on 09.06.1995. Thereafter the three sons of Bhaktawarmal succeeded to the property as per the recitals of the will. First defendant was collecting rents from some portions of the property that had been let out, and giving 1/3rd share in the rents to the plaintiff until March, 2004. When defendant No.1 stopped paying rents to him, he made an enquiry to ascertain the reason for stoppage of rent and came to know that Sundar Bai had executed a will dated 19.05.1995 in favour of the first defendant in respect of ‘A’ schedule property. According to the plaintiff, Sundar Bai had no testamentary capacity as she just had life interest in the property, the first defendant did not derive any interest or title by virtue of the will made by Sundar Bai. The plaintiff therefore, demanded the first defendant to effect partition; when he did not heed, he got issued a legal notice. Then he brought a suit for partition in respect of ‘A’ and ‘B’ schedule properties. ‘B’ schedule property consists of household articles and jewellery.

3. The first defendant, in his written statement admitted the relationship and life interest being given to his mother Sundar Bai in the will dated 03.04.1982 made by Bhaktawarmal. His main contention is that the life interest given to the mother was in lieu of maintenance and therefore by virtue of Sec.14(1) of the Hindu Succession Act (for short ‘Act’), the mother became the absolute owner and thus derived testamentary capacity to make a will in his favour on 19.05.1995. The plaintiff or the second defendant had no right to claim partition. He stated that he was not in possession ‘B’ schedule property and that the plaintiff cannot claim partition in respect of household items that he purchased from his self earnings. He further contended that since the will made by Bhaktawarmal recited that the grandchildren of Bhaktawarmal would ultimately take the property, all the grandchildren should have been made parties to the suit and thereby the suit was bad for non joinder of necessary parties. Another contention of the first defendant is that plaintiff was given another property bearing no.10/1, Car Street, Ballari towards his share and this property should have been included in the suit.

4. The second defendant, admitting the will made by his grandfather, contended that the plaintiff could not claim 1/3rd share in ‘A’ schedule property as he and other grandchildren of Bhaktawarmal were given absolute estate as per the will 03.04.1982. He also disputed testamentary capacity of his grandmother Sundar Bai to make a will in favour of the first defendant. However, he too claimed 1/3rd share in all the properties.

5. The trial Court struck in all eight issues and one additional issue. The plaintiff, while adducing oral evidence as PW1, produced both