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1999 Supreme(MP) 365
IN THE HIGH COURT OF MADHYA PRADESH
V.K. Agarwal, J.
Rambharos and others
Vs.
Deo Prasad @ Nanki
S.A. No. 191 of 1989
Decided On: 11.05.1999
For Appellant/Petitioner/Plaintiff: A.K. Pandey
For Respondents/Defendant: R.S. Jaiswal
A coparcener cannot dispose of his undivided interest in coparcenary property by gift, but he can dispose of it by will, provided the will is duly executed and proved.
Headnote:
HINDU LAW - COPARCENARY PROPERTY - GIFT AND WILL - VALIDITY - ANCESTRAL PROPERTY - PARTITION - UNDIVIDED SHARE - CONSENT OF COPARCENERS - PROOF OF WILL - MENTAL CAPACITY.
Fact of the Case:
Plaintiff claimed ownership of 1/3rd share of suit lands by virtue of a gift deed and will executed by Budga, his grandfather. Defendants resisted the suit, claiming the property was ancestral and Budga could not dispose of it by gift or will.
Finding of the Court:
The trial court held the suit property was ancestral and Budga could gift the land at Dhimani to the plaintiff. The lower appellate court affirmed this finding but held Budga could dispose of his 1/3rd share in the property. The High Court found the trial court's finding on partition was misconceived and the lower appellate court erred in holding Budga had a 1/3rd share.
Issues: 1. Whether Budga could dispose of the property by gift deed or will. 2. Whether the gift deed and will were duly executed and proved.
Ratio Decidendi: 1. A coparcener cannot dispose of his undivided interest in coparcenary property by gift, as it would deprive other coparceners of their right to the property. 2. A coparcener can dispose of his undivided interest by will, but the will must be duly executed and proved. 3. In the instant case, the gift deed was void as it was not made with the consent of other coparceners. The will was not duly executed and proved, and there was evidence Budga was not in proper mental and physical condition when it was allegedly executed.
Final Decision: The High Court allowed the appeal, declaring the plaintiff and defendants had equal shares in the suit property, modifying the impugned judgment and decree accordingly.
V.K. Agarwal, J.
1. This appeal is directed against the judgment and decree dated 16-2-1989 in Civil Appeal No. 21-A/89 by Fifth Additional District Judge, Bilaspur, whereby the plaintiff/respondent has been declared to be the owner of 1/3rd share of the suit lands, which are situate at Village Adbhar and Dhimani of Tahsli Sakti, District Bilaspur and directing that he is entitled to partition and possession thereof.
2. The relevant facts necessary for disposal of this appeal are that out of the suit lands bearing Khasra Nos. 31, 33, 68 and 112 total area 7.12 acres situate at Village Adbhar, while land bearing Khasra No. 367 area 3.47 acres is situate at Village Dhimani.
3. Undisputably the suit lands as above were the property of Budga. The said Budga had two sons namely Malik Ram and appellant No. 6 Bisahu Ram. Plaintiff/respondent Deo Prasad is son of Bisahu Ram and is thus the grandson of Budga. Appellants No. 1 to 6 are the L.R.S of Malik Ram, the other son of Budga. Budga died on 19-8-1975.
4. The case of the plaintiff/respondent was that the suit property was the self acquired property of Budga. It was also averred that Budga during his life time executed a gift deed (Ex. P-1) dated 22-6-1971 in plaintiffs favour and thereby gifted the land of Dhimani to him. On 25-3-1975 he executed a will (Ex. P-2) in favour of plaintiff/respondent, bequeathing the land, situate at Village Adbhar. The plaintiff/respondent therefore claimed title to the suit lands by virtue of above documents i-e. gift-deed (Ex. P-1) and will (Ex. P-2) of Budga.
5. The defendants resisted the suit. According to them the property was not the self acquired property of Budga, but was his ancestral property. Budga could not dispose of the suit property by gift and could not have bequeathed it. It was averred that the gift deed (EX. P-1) and the will (Ex. P-2) are void abinitio, and would not affect the rights of the defendants in the suit land.
6. The learned trial Court partly allowed the claim of plaintiff/respondent and held that the suit property was the ancestral property of Budga. It was further held that there was partition of suit lands between Budga and his two sons Bisahu Ram and Malik Ram; in which land at Dhimani area 3.47 acres fell in the share of Budga, while lands at Adbhar feel in the share of his sons. It was therefore held that the suit land bearing Khasar No. 367 area 3.47 acres situate at village Dhimani could be validly gifted in favour of plaintiff/respondent. The claim of the plaintiff/respondent regarding the said land was therefore upheld and he was declared to be entitled to possession thereof. However, claim of plaintiff/respondent, regarding suit lands situate at Village Adbhar, which was allegedly bequeathed by Budga toy his will (Ex. P-2) was disallowed.
7. Appeal was preferred in the lower appellate Court by the appellants/defendants. The respondent/plaintiff filed a cross-objection. The learned lower appellate Court affirmed the finding of the trial Court that the suit property was ancestral property in the hands of Budga. It was further held that actual partition of suit lands did not take place between Budga and his two sons. The lower appellate Court held that the gift deed and will have been proved to have been duly executed by Budga. It was further held that Budga was entitled to one third share of the suit property at the time of his death and therefore he could dispose of his property to the extent of his 1/3rd share therein. Accordingly, the plaintiff/respondent was declared to be entitled to the suit property to the extent of 1/3rd share of Budga. It was further directed that the appellants/defendants were entitled to get the suit property partitioned and obtain possession of their share as above.
8. This appeal has been admitted on the following substantial question of law:
Whether execution of Gift Deed and will by late Bishahooram in favour of respondent Deo Prasad his son, is valid when the property was found a
