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High Court Of Madhya Pradesh
TEJ SHANKAR
RAMESH VERMA - Appellant
Versus
LAJESH SAXENA - Respondents
First Appeal 31 Of 1991
Decided On : 07/31/1997
PARTITION SUIT - SHARE OF PLAINTIFF - WILLS - PROOF - HINDU SUCCESSION ACT, 1956 - SECTION 6, 14, 15, 16, 23 - M. P. LAND REVENUE AND TENANCY ACT, 1950 - SECTION 82 - M. P. LAND REVENUE CODE, 1959 - SECTION 15, 16 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 3 - INDIAN SUCCESSION ACT, 1925 - SECTION 59, 62, 63, 68 - INDIAN EVIDENCE ACT, 1872 - SECTION 68 - PRINCIPLES OF HINDU LAW BY D. F. MULLA - ARTICLE 212 TO 216, 43 - INTERPRETATION - APPLICABILITY - RELEVANCE - THREE WILLS ALLEGED TO HAVE BEEN EXECUTED BY SMT. JAYDEVI, SMT. PRABHAVATI AND SMT. LAJESH SAXENA - PROOF OF EXECUTION - REQUIREMENTS - ATTESTATION - WITNESSES - SIGNATURE - REQUIREMENTS - SUFFICIENCY - CIRCUMSTANCES SURROUNDING EXECUTION - SUSPICIOUS CIRCUMSTANCES - EFFECT - SUCCESSION - HINDU SUCCESSION ACT, 1956 - SECTION 6 - APPLICABILITY - EXCEPTION - PROVISO - SHARE OF PLAINTIFF IN AGRICULTURAL LAND AND HOUSE PROPERTY - DETERMINATION - HINDU SUCCESSION ACT, 1956 - SECTION 23 - APPLICABILITY - INTERPRETATION - WHOLLY OCCUPIED DWELLING HOUSE - MEANING - RENTED PORTION - EFFECT - RIGHT OF PARTITION - FEMALE HEIR - ENTITLEMENT.
Fact of the Case:
Plaintiff, Smt. Lajesh Saxena, filed a suit for partition and separate possession of her 1/8th share in the property in dispute. She also prayed for mesne profits according to her share in the usufruct of her property. The admitted pedigree is as follows: Bhagwan Prasad died in 1952 leaving his widow Smt. Jaydevi and a son Jagan Verma. Jagan Verma died in 1967 leaving his son Ramesh Verma, defendant No. 1, widow Smt. Prabhavati, defendant no. 2 and mother Jaydevi as his L. R. The plaintiff alleged that after the death of Bhagwan Prasad the name of his son Jagan Verma and widow Jaydevi was entered in village record as Pakka tenant in accordance with the provisions of Madhya Bharat Land Revenue and Tenancy Act, 1950 (hereinafter referred to as the M. B. L. R. T. Act ). After the enforcement of M. P. Land Revenue Code, 1959, they became Bhumiswami. She claimed that she had 1/4 share in 1/2 share of Jagan Verma i. e. she had 1/8th share. After the death of Bhagwan Prasad the property was not partitioned. She did not want to keep her share joint and as such she wanted that the property be separated by metes and bounds. Jagan Verma had sold municipal no. 189/24 situated in Mohalla Marimata, Gwalior, by means of a sale-deed and had also executed a deed in that regard. Except the said municipal No. 189/24 the rest of the property was joint. As the defendants were not separating her share the suit was filed. Smt. Jaydevi, defendant no. 3, died during the pendency of the suit without leaving any will. Thus, her share became 1/3.
Finding of the Court:
1. The three wills alleged to have been executed by Smt. Jaydevi on 7-12-69, Smt. Prabhavati on 23-10-75 and Smt. Lajesh Saxena on 22-5-84 have not been proved in accordance with law and are surrounded by suspicious circumstances. 2. The succession has to be governed as an intestate succession. 3. The plaintiff is entitled to 1/3 share in the agricultural land and house property in dispute. 4. The plaintiff is entitled to a decree for partition and separate possession of her 1/3 share in addition to the other relief claimed.
Issues: None
Ratio Decidendi: 1. The essential requirement of the proof of attestation as well as the fact that the will was executed on the instructions of executant Jaydevi and was signed by her before witnesses and the witnesses had signed before Jaydevi has not been proved at all by the attesting witnesses. 2. The scribe too has not stated that the executant had signed before the witnesses and the witnesses signed before Jaydevi. 3. The statement of witnesses Kailash Narayan Shrivastava, Vijay Kumar Saxena and Rakesh Kumar Darbari does not show the requirements of law. There is nothing to show that Prabhavati had put her thumb impression before the witnesses and the witnesses had put their signatures before Prabhavati. 4. The persons relying upon the will must remove all the suspicious circumstances. 5. The share of the plaintiff in the agricultural land became 1/3 and that of Ramesh 2/3. 6. The share of Lajesh Verma comes to 1/3 and that of Ramesh Verma to 2/3 in the entire property in dispute. 7. The house was not wholly occupied for residence purposes by family or family members in order to negate the claim of partition by a female heir.
Final Decision: The appeal filed by the plaintiff is allowed and the two other appeals are disposed of accordingly. It is directed that a preliminary decree be drawn for partition and separate possession of 1/3 share of the plaintiff and for mesne profits to the extent of plaintiff's share which has to be calculated from the date of the suit till the delivery of possession. Costs of all the appeals shall be borne by the parties under the circumstances. All the three appeals are decided accordingly.
( 1 ) THESE three first appeals (F. A. No. 29, 30 and 31 of 1991) arise out of Judgment and decree dated 31-1-91 passed by the Fifth Additional Judge to the Court of District Judge, Gwalior. As all the appeals arise out of the same judgment they have been heard together and are being disposed of by this common judgment.
( 2 ) SMT. Lajesh Saxena filed a suit for partition and separate possession of her 1/8 share in the property in dispute. She also prayed for mesne profits according to her share in the usufruct of her property. The admitted pedigree is as follows :there is also no dispute between the parties that the property detailed in para 2 belonged to Bhagwan Prasad. Bhagwan Prasad died in 1952 leaving his widow Smt. Jaydevi and a son Jagan Verma. Jagan Verma died in 1967 leaving his son Ramesh Verma, defendant No. 1, widow Smt. Prabhavati, defendant no. 2 and mother Jaydevi as his L. R. The plaintiff alleged that after the death of Bhagwan Prasad the name of his son Jagan Verma and widow Jaydevi was entered in village record as Pakka tenant in accordance with the provisions of Madhya Bharat Land Revenue and Tenancy Act, 1950 (hereinafter referred to as the M. B. L. R. T. Act ). After the enforcement of M. P. Land Revenue Code, 1959, they became Bhumiswami. She claimed that she had 1/4 share in 1/2 share of Jagan Verma i. e. she had 1/8 share. After the death of Bhagwan Prasad the property was not partitioned. She did not want to keep her share joint and as such she wanted that the property be separated by metes and bounds. Jagan Verma had sold municipal no. 189/24 situated in Mohalla Marimata, Gwalior, by means of a sale-deed and had also executed a deed in that regard. Except the said municipal No. 189/24 the rest of the property was joint. As the defendants were not separating her share the suit was filed. Smt. Jaydevi, defendant no. 3, died during the pendency of the suit without leaving any will. Thus, her share became 1/3.
( 3 ) DEFENDANTS no. 1 and 2, namely, Ramesh Verma and Smt. Prabhavati, filed a joint written statement contesting the plaintiff's claim. They alleged that the plaintiff had no right in the disputed property as such she had also no right to get any share separated. The allegation that Jagan Verma executed any sale in favour of Smt. Prabhavati is incorrect. It was collusive allegation. In reality the property was mortgaged. The plaintiff is the daughter-in-law of Prabhavati. There was no question of execution of any sale-deed. A case was pending in the Court in that regard. Jaydevi had executed a will in favour of defendant no. 3 and 4 on 7-12-69 and as such the claim that the plaintiff got any right after the death of Jaydevi is incorrect. The plaintiff had no right to claim mesne profits from the Karta of the family. It was a joint Hindu family and joint family consisted of widow, two minor sons and a minor daughter. Arrangements for the education and maintenance of these children had to be made which may cost about Rs. 2,00,000/ -. There was a charge over joint family property with respect to loan incurred in connection with the plaintiff's marriage. So long as it was not paid up the plaintiff had no right to claim partition in case she is found to have any share. As defendants' father died in 1967 and at that time there was joint Hindu family he had 1/6 share only and thus the plaintiff could get 1/10 share out of 1/6 share i. e. a total share of 1/60. That share too could not be partitioned so long as the other members of the joint family did not demand partition. Defendant no. 3 and 4 in their separate written statement more or less supported the factual averments made by aforesaid defendants no. 1 and 2. They alleged that the plaintiff had knowledge of the will executed by Jaydevi in their favour on 7-12-69. The plaintiff had separated from the joint family. she had no right in the co-parcenery property. The plaintiff was also liable to the liabilities which exist with respect
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