Back
IN THE HIGH COURT OF ORISSA
A. Misra, J.
PUNA BEWA - APPELLANT
Versus
BABAN SAHU AND OTHERS - RESPONDENT
First Appeal No. 40 of 1966
Decided On : 03-01-1972
WILL - TESTAMENTARY DISPOSITION - JOINT FAMILY PROPERTY - HINDU SUCCESSION ACT, 1956, SECTION 30 - VALIDITY OF WILL EXECUTED BY MEMBER OF JOINT FAMILY - INTERPRETATION OF SECTION 30 - EFFECT OF INSTITUTION OF PARTITION SUIT ON JOINT STATUS - SCOPE OF SECTION 30 - PROOF OF WILL - SUSPICIOUS CIRCUMSTANCES - ONUS OF PROOF - DUE ATTESTATION - REQUIREMENTS UNDER SECTION 63(C) OF THE INDIAN SUCCESSION ACT.
Fact of the Case:
A suit for grant of letters of administration in favor of Respondents 1 and 2 was filed, with the Appellant being Defendant No. 1. The Plaintiffs, sons of the deceased Hari Sahu, claimed that Hari executed a will devising his interest in the joint family property in their favor. Defendant No. 1, Hari's widow, contested the suit, arguing that the will was invalid, Hari lacked sound disposing state of mind, the partition suit filed by her disrupted the joint family, and the execution of the will was fraudulent and not properly executed.
Finding of the Court:
The trial court decreed the Plaintiffs' suit, finding that Hari executed the will in a sound disposing state of mind, it was duly executed and attested, and Hari had the right to dispose of his interest in the joint family properties. The Appellant challenged this decision on appeal.
Issues: 1. Whether a member of a joint family can validly bequeath his undivided interest in the joint family property through a will. 2. Whether the institution of a partition suit by a member of a joint family disrupts the joint status and allows for testamentary disposition of individual interests. 3. Whether suspicious circumstances surrounding the execution of a will shift the onus of proof to the propounder. 4. Whether the requirements for due attestation of a will under Section 63(c) of the Indian Succession Act were met.
Ratio Decidendi: 1. Prior to the Hindu Succession Act, 1956, a member of a joint family could not bequeath his undivided interest in the joint family property through a will. However, Section 30 of the Act, along with its Explanation, abrogated this rule and allowed for such testamentary disposition. 2. Institution of a partition suit by a member of a joint family is an unequivocal intimation of their intention to separate, resulting in a severance of their joint status from the date of institution. This disruption of the joint family allows for testamentary disposition of individual interests. 3. In the absence of suspicious circumstances, the onus of proving a will lies on the propounder. However, if suspicious circumstances arise, the propounder must explain them to the satisfaction of the court before the will can be accepted as genuine. 4. Due attestation of a will, as required under Section 63(c) of the Indian Succession Act, involves the testator signing or affixing their mark in the presence of two or more witnesses, who then sign the will in the presence of the testator.
Final Decision: The court dismissed the appeal, upholding the trial court's decision. It found that Hari had the capacity to bequeath his interest in the joint family property through the will, the institution of the partition suit by Defendant No. 1 disrupted the joint status, there were no suspicious circumstances surrounding the execution of the will that would shift the onus of proof, and the requirements for due attestation were met.
JUDGMENT :
A. Misra, J. - Defendant No. 1 in a suit for grant of letters of administration in favour of Respondent Nos. 1 and 2 is the Appellant.
2. Plaintiff Nos. 1 and 2 are the Bons, Defendant Nos. 3 to 5 are daughters and Defendant No. 1 is the widow of Narasingh, the predecased son of one. Hari Sahu. Defendant. No. 2 is the widow of Hari. Hari along with his sons constituted a joint family. He executed and registered a will on 6-10-1963 devising his interest in the joint family property in favour of his two surviving sons (Plaintiffs). On these allegations, the Plaintiffs prayed for grant of letters of administration in their favour.
3. Defendant Nos. 2 to 5 did not enter contest. Defendant No. 1 resisted the suit on the following grounds: (1) The will purporting to convey the undivided interest of Hari in the joint family property is invalid; (2) Hari was not in a sound disposing state of mind at the date of execution of the Will, and as such, it was not executed with his free consent; (3) prior to the date of execution of the alleged Will, she had filed a partition suit in which Hari was a party and during the pendency of the suit had no right to convey his interest by Will; (4) the execution of the Will was fraudulently brought about by the Plaintiffs taking advantage of their relationship with deceased Hari and (5) the Will has not been properly executed and attested.
4. The trial Court decreed the Plaintiffs' suit on the following findings: (1) Hari executed and registered the Will (Ext. 1) in a sound disposing state of body and mind out of his free will; (2) Ex. 1 was duly executed and attested and (3) Hari had the right to dispose of his interest in the joint family properties.
5. Learned Counsel for Appellant assails the judgment and decree of the trial Court on the following grounds:
(1) Hari having no power of testamentary disposition in respect of his undivided interest in the joint family property, Ext. 1 is invalid;
(2) the propounders having taken active interest in execution of Ex. 1 whereby substantial benefits were conferred on them and in view of the other suspicious circumstances relating to execution of Ext. 1, the trial Court should have refused to grant letters of administration and
(3) the trial Court should have rejected Ext. 1 on the ground of failure of proof of due and valid attestation.
6. Point No. 1: It is contended by learned Counsel for Appellant that Hari as a member of the joint family consisting of himself, his two sons and his predeceased son's widow possessed no definable interest in the joint family properties, and as such, Ext. 1 conveying such undefinable interest in the joint family property is invalid in law. In support of this contention, reliance is placed on a decision of the Supreme Court reported in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, where in paragraph 25 of the judgment, it has been observed:
A member of an undivided coparcenary has the legal capacity to execute a will; but he cannot validly bequeath his undivided interest in the joint family property. If he died as an undivided member of the family his interest survives to the other members of the family and therefore the will cannot operate on the interest of the joint family property. But if he was separated from the family before his death the bequest would take effect.
This contention is met by learned Counsel for Respondent Nos. 1 and 2 on two grounds. Firstly, it is argued by him that when admittedly Defendant No. 1 had filed the partition suit T.S. No. 57 of 1963 in which summons had been served on an the other members of the family before execution of Ext. 1, there was disruption of the family, and as such, Hari had at the time of execution of Ext. 1 a definable interest. Secondly, it is urged that even if the family is held to have been joint at the time of execution of Ext. 1, in view of the provision contained in Section 30 of the Hindu Succession Act, 1956 Hari was competent to bequeath hi
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
