1994 Supreme(Bom) 189

IN THE HIGH COURT OF BOMBAY
(Nagpur bench)
H.W. Dhabe B.U. Wahane, JJ.
Devisingh s/o Balaramsingh Raghuwanshi and others.... Appellants.
Versus
Smt. Shailabai wd/o Rajendrasingh Raghuwanshi and others.... Respondents.
First Appeal No. 348 of 1989 with F.A. No. 212 of 1990, decided on 24-4-1994.
Advocates appeared :
B.N. Mohta, for Appellants, in F.A. No. 348 of 1989 for respondent 1 and 5 in F.A. No. 212 of 1990.
V.C. Daga, for respondent No. 1, in F.A. No. 348 of 1989 for appellants 1 to 5 F.A. No. 212 of 1990, J.D. Uttamani for Appellant, in F.A. 212 of 1990.

Headnote:Sections 3, 59 and 61-See Hindu Succession Act, 1956-Section 30.

       Sections 3, 59 and 60-See Hindu Succession Act, 1956-Sectlon 30.

       Sections 3 and 101-Indian Succession Act, 1925, Section 63-Ancestral property of coparcener-If can be dispose of by Will ?

       R the husband of the plaintiff had interest in the coparcenaries property allotted to his share in the family partition dated 1.10.1952 to the extent of 1/3rd share in the same only, after the death of his son which alone he could dispose of by will or other testamentary disposition as provided in Section 30 of Hindu Succession Act, 1956. Since the explanation to the said section makes it clear that the interest of a male Hindu in Mitakshara Coparcenary property is property capable of being disposed of by him by Will or other testamentary disposition. His Will (Ex. 265) to the extent of the 2/3rd share of the plaintiff in the suit property i.e., the coparcenary property allotted to him in the family partition effected on 1.10.1952 is thus clearly invalid. The question whether the said Will (Ex. 265) can be maintained as valid disposition of his 1/3rd share in the said property will be considered when the High Court considers the general question of the legality or the validity of the said Will.

       Turning to the Principal question about the legality or validity of the will alleged to be executed by the deceased R on 10.10.1979, it may be seen that the law relating to the same is well-settled.

       It is not enough for the propounder of the Will to prove its valid execution but it is also necessary for him to prove that it is the last Will of the testator and that when suspicious circumstances exist, initial onus is heavier upon him to remove all legitimate suspicious before the documents can be accepted as the last testamentary disposition of the testator.

       HINDU SUCCESSION ACT, 1956

       Sections 6 and 30-Indian Succession Act, 1925-Section 23-Hindu Law-Male Coparcener under-Entitled to share in ancestral property-At time of partition he born or born subsequently-Devolution of Interest taking place at coparceners death by national partition as if it took place immediately before his death-Widow deemed to acquire share as also share of her predeceased son.

       Section 23-Bar under-Applicability of.

       The property described in the plaint is of three types. There is a description of agricultural lands. Thereafter, there is a description of house property and thereafter movable property is described. All these descriptions of different properties have been stated in the plaint para I, without giving distinct sub-paras. However, so far as the present case is concerned, the High Court concerned with the house property i.e., three-storeyed house -25 hands in length and 25 hands in breadth as per the boundaries shown in the suit. No doubt, this property being sole house property must have been used as a dwelling house by the appellants who are male members. It is admitted position that the plaintiff/respondent is only class I heir entitled to 1/4th share of her father. However, Section 23 of Hindu Succession Act, 1956 makes it clear that-where Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of a dwelling house shall not arise until the male heir choose to divide their respective shares therein, but the female heir shall be entitled to a right of residence therein provided that where such female heir is a daughter she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

       Therefore, even though the plaintiff/respondent is having 1/4th share in the house property described in plaint, the said house cannot be partitioned unless partition of the said house is effected by male heirs. However, it is interesting to note that the High Court considering a case of a succession to the property of deceased who has expired while joint with his brothers and the right of partition of a female heir viz., daughter of deceased. It is clear and also admitted that the deceased father of the respondent has not left any male class Court heir after his death and only class Court heir is respondent/plaintiff who is a daughter. It is pertinent to note that Section 23 has specifically laid down that where Hindu intestate has left class Court heirs and the property of the intestate includes a dwelling house, wholly occupied by members of intestates family, then right of a female heir to claim partition of a dwelling house shall not arise till the male heir of the intestate do not choose to divide their respective shares. It is pertinent to note that the house in question, which has been occupied by the members of intestates family and the occupants of the said house after the death of intestate shall be a male heir of the intestate so as to stop any female heirs of the intestate from claiming partition of the dwelling house. Held; that a male heir on whose desire the right of the female heir to claim partition depends must be or shall be a male heir of the deceased intestate. If the dwelling house is possessed by male persons wherein the deceased was a coparcener but those male persons are not the heirs of the deceased intestate then in that circumstance the female heirs are entitled to claim partition of the dwelling house and the bar or embargo provided in Section 23 of Hindu Succession Act, 1956 will not apply. It can be demonstrated by the fact in the present case that the plaintiff/respondent is a daughter of G who had left no male heir. Therefore, amongst the group of heirs of class I, the plaintiff is the only female heir and there is no male heir of deceased G. The appellants, even though were the coparceners of deceased are not class I male heirs of deceased and, therefore, even though they are residing jointly in the dwelling house described in the plaint the said joint residence or undivided residence of the appellants cannot be said to be joint residence and/or occupation by the members of the family of deceased and more clearly a jointenss by male heirs of deceased so as to prohibit the plaintiff/respondent to claim partition till the appellants choose to divide their respective shares. The thrust of law is on the words, until the male heirs choose to divide their respective shares, and, therefore, on analysis it follows that it is the only male heir or heirs of deceased who succeed the dwelling house along with female heirs can prohibit partition of dwelling house till such male heirs choose to divide their respective shares in the dwelling house. There is no male members who can be said to be the heir of deceased and who could have exercised the prohibition provided in Section 23 and, therefore, the appellants are not entitled to claim the benefit of Section 23. Court would like to observe that the scheme of the Act is to the effect that as a result of introduction of female heirs the share of deceased intestate stands nationally partitioned from the rest of the male coparceners. Therefore, the net result of introduction of female heir of deceased intestate who expires in a joint family is destruction of coparcener and severance of statutes takes place which in the result is a partition in the eye of law and, therefore, the subsequent provisions deal with the rights of heir of the deceased. In this view of the mailer Section 23 has been drafted by the Legislature. The other section which can be equally pointed out is Section 22 creating a preferential right to acquire interest of Class I heirs inter se is available to class Court heirs only. In the result, there is no bar of Section 23 for claiming share and partition by the respondent/plaintiff in the facts and circumstances and the law discussed.

       [Fulsing Ramsingh Rajput and another v. Durgabai w/o Shivsingh Rajput, 1996(2) Mah U 770 at pp. 772, 773, 774.]

       Press of his son J which alone he could dispose of by Will or other testamentary disposition as provided in Section 30 of Hindu Succession Act, 1956. Since the explanation to the said section makes it clear that the interest of a male Hindu in Mitakshara Coparcenary property is property capable of being disposed of by him by Will or other testamentary disposition. His Will (Ex. 265) to the extent of the 2/3rd share of the plaintiff in the suit property i.e., the coparcenary property allotted to him in the family partition effected on 1.10.1952 is thus, clearly invalid. The question whether the said Will (Ex. 265) can be maintained as valid disposition of his 1/3rd share in the said property will be considered when the High Court considers the general question of the legality for the validity of the said Will.

       Turning to the Principal question about the legality or validity of the Will alleged to be executed by the deceased Ron 10.10.1979, it may be seen that the law relating to the same is well-settled.

       It is not enough for the propounder of the Will to prove its valid execution but is also necessary for him to prove that it is the last Will of the testator and that when suspicious circumstances exist, initial onus is heavier upon him to remove all legitimate suspicions before the documents can be accepted as the last testamentary disposition of the testator.

       Section 30-Evldence Act, 1872-Sections 3, 59 and 61-Indian Succession Act, 1925-Section 63-WlII-Genulneness of-Prominent role of father of beneficiary Will creating suspicion about genuineness of Will-Unless proof of being voluntary without fraud, coercion or undue influence given, It cannot be said that disposal and maintenance arrangements can be made only.

       INDIAN SUCCESSION ACT, 1925

       Section 23-See Hindu Succession Act, 1956-Sections 6 and 30.

       Section 30-Indian Succession Act, 1925, Section 63-Evidence Act, 1872, Sections 3, 59 and 60-Coparcener-Ancestral property of-His disposing capacity-Entire share disposed of by testator by Will without leaving any thing for wife-Within three days of execution of Will deceased died-It shows that his physical and mental condition not sound at that time.

       Section 63-Will-Genulneness of-Prominent role of father of beneficiary Will creating suspicion about genuineness of Will-Unless proof of being voluntary without fraud, coercion or undue Influence given. It cannot be said that disposal and maintenance arrangements can be made only.

       Section 63-See Hindu Succession Act, 1956-Section 30.