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1991 Supreme(HP) 137
High Court Of Himachal Pradesh
KAMLESH SHARMA
KARTARI DEVI - Appellant
Versus
TOTA RAM - Respondent
R. S. A. No. 107 of 1979
Decided On : 10/01/1991
Important Points
Subject
Property Law - SUCCESSION
Act Referred
Headnote
CUSTOMARY LAW - ABROGATION - HINDU SUCCESSION ACT, 1956 - SECTION 30 - WILL - COPARCENARY PROPERTY - ANCESTRAL PROPERTY - MALE HINDU - TESTAMENTARY SUCCESSION - CUSTOM PROHIBITING TESTAMENTARY SUCCESSION OF COPARCENARY PROPERTY ABROGATED - SECTION 30 READ WITH SECTION 4 OF THE ACT EMPOWERS MALE HINDU TO DISPOSE OF COPARCENARY/ANCESTRAL PROPERTY BY WILL.
Fact of the Case:
Narainu, a Hindu male governed by Mitakshara law, executed a will bequeathing his ancestral property to Lashkri and Udham Singh, the sons of his brother Surat Ram. After Narainu's death, his brother Gopala filed a suit challenging the will and claiming the property as his inheritance, alleging that the will was invalid and that the parties were governed by a custom prohibiting the alienation of ancestral property by will.
Finding of the Court:
The trial court and the lower appellate court held that the will was valid but that the parties were governed by a custom under which Narainu had no right to execute a will in respect of the ancestral property. On appeal to the High Court, it was held that the alleged custom was abrogated by section 30 read with section 4 of the Hindu Succession Act, 1956, which empowers a male Hindu to dispose of his interest in coparcenary/ancestral property by will, notwithstanding any custom to the contrary.
Issues: 1. Whether the alleged custom prohibiting testamentary succession of coparcenary property was abrogated by the Hindu Succession Act, 1956? 2. Whether a male Hindu governed by Mitakshara law is debarred from making a will in respect of coparcenary/ancestral property?
Ratio Decidendi: 1. Section 30 of the Hindu Succession Act, 1956, along with its explanation, provides that a male Hindu may dispose of his interest in a Mitakshara coparcenary property by way of a will, notwithstanding anything contained in the Act or any other law to the contrary. 2. Section 4 of the Act gives an overriding effect to the Act, abrogating all rules of law of succession applicable to Hindus before the coming into force of the Act, including customs and usages having the force of law. 3. Therefore, any custom prohibiting testamentary succession by way of will of a coparcenary property stands abrogated by section 30 read with section 4 of the Act.
Final Decision: The High Court set aside the decrees of the lower courts and dismissed the suit of the plaintiff, holding that the will executed by Narainu was valid and that the alleged custom prohibiting testamentary succession of coparcenary property was abrogated by the Hindu Succession Act, 1956.
For the appellant(s) :Sh. K. D. Sood, Advocate. For the respondent(s):Sh. Bhupender Gupta, Advocate.
Kamlesh Sharma, J,—This is a Regular Second Appeal against the decree and judgment dated 23rd June, 1979 passed by the Additional District Judge, Kangra at Dharamshala, whereby the decree and judgment dated 22nd June, 1978 of Senior Sub-Judge, Kangra at Dharamshala, was affirmed and the suit of respondent-plaintiff, Tota Ram, was decreed.
2. The facts of the matter are that one Kapura had three sons, namely. Narainu, Gopala and Surat Ram. Out of them, Narainu died on 6-6-1967 and did not leave behind either widow or any child. He bequeathed his property, which is subject matter of the present litigation, in favour of two of the sons of his brother Surat Ram, namely, Lashkri, the original defendant and Udham Singh, the present appellant-defendant No. 2. Lashkri had died in the lower Court and his legal representatives, Smt Kartari Devi and others, were brought on record, who are now appellants-defendants No. 1 and 3 to 6. The original plaintiff was Gopala who had also died in the trial Court and his legal representative, Tota Ram, was substituted in his place. The original plaintiff, Gopala, had filed a suit for possession of the land in dispute challenging the will executed by Narainu in favour of original defendant Lashkri and Udham Singh. His claim was that after the death of Narainu on 6-6-1967, he being his brother, had a right to inherit his property. According to him, the will dated 14-2-1966 was not a valid will binding on his rights. His case, further was that parties being agriculturist Rajputs wore governed by custom under which Narainu had no right to execute a will of the land which he had inherited from a common ancestor.
3. The suit was resisted by Kartari Devi and others and all the allegations made therein were denied. It was alleged that the will made in their favour was in lieu of services and was valid According to Ksirtari Devi and others, neither the parties were governed by custom as alleged by Tota Ram nor the land in dispute was ancestral. The trial Court held the will as valid will but decreed the suit holding that the parties were governed by custom under which Narainu had no right to execute the will in respect of the suit property which was ancestral. These findings were confirmed in appeal filed by Smt. Kartari Devi and others. Hence the present Regular Second Appeal.
4. I have beard the learned Counsel for the parties and gone through the record. The first point urged by Sh. K D. Sood, learned Counsel for Stnt. Kartari Devi and others, is that the alleged custom, that ancestral property could not be alienated by way of will, stands abrogated by section 30 read with section 4 of the Hindu Succession Act, 1956 (herein-after referred to as the Act)- According to him, if it is held so, then Smt. Kartari Devi and others will inherit the property of Narainu by way of will dated 14-2-1966 executed by him which has been held to be valid will by both the Courts below and these findings have not been challenged by Tota Ram. For appreciating this argument, sections 4 and 30 of the Act are required to be examined. Section 4 of the Act is as under:- "Overriding effect of Act—(I) Save as otherwise expressly provided in this Act,— (a) 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 ; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for ths prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." This section giv
