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Hindu Succession Act, 1956 – Death before enactment of –Effect of – One ‘RVN’ had two sons (‘LN’ and ‘RN’) and fivedaughters – ‘LN’ had four sons – ‘RN’ was married to ‘RK’, theydid not have any issue – ‘RN’ passed away on 01.06.1955 –Litigation ensued between the parties (in five stages) inter aliathrough various suits – Present appeals arise out of two civil suits(fifth stage/the present litigation), one filed by ‘LN’s’ branch(respondents) and the other by one of the four legatees (appellants-nephews of ‘LN’ and ‘RN’) under a Will (dtd.10.05.55) allegedlyexecuted by ‘RN’ – Appellants claimed severance of the Joint HinduFamily alleging oral partition between ‘RN’ and ‘LN’ in 1932 –Aforesaid Will was alleged to have been executed by ‘RN’ appointing‘RK’s’ nephew as executor – Divided status was declared by way ofnotice allegedly dated.10.05.1955 in a newspaper, on which replydated.11.05.1955 was sent by ‘LN’ – Respondents denied appellants’case – Trial court decreed respondents’ suit – First Appellate Courtallowed the appeals filed by the appellants – High Court inter aliafound that the Will could not be relied upon, as the requirementu/s.68, 1872 Act was not fulfilled and restored the decree of trialcourt – Held: s.69, 1872 Act manifests a departure from therequirement embodied in s.68 – In the present case, requirement ofproof of Will u/s.69 are fulfilled – Respondents failed to prove thatthe Will is vitiated – Will was indeed executed by ‘RN’ and was hislast will – However, the notice is dated.12.05.1955 in which casethe reply being sent on 11.05.1955, becomes impossible – If there isno reply sent on 11.05.1955, then, it will not be possible to attributecommunication of the notice to separate to ‘LN’ – Thus, thoughthere was a publication made, knowledge of the same cannot beattributed to ‘LN’, before the death of his brother – Therefore, sincethere was no division brought about by ‘RN’ before his death, theWill would be invalid and end of the road for appellants – Further,‘RN’ died on 01.06.1955, i.e. before the enactment of 1956 Act –Thus, when he died, he left behind an interest in the Hindu jointfamily – When succession opened to his estate, s.3(2), 1937 Actwould apply – A limited estate sprung in favour of his widow, ‘RK’which bloomed u/s.14 (1), 1925 Act into an absolute estate – Whenshe compromised in O.S No.71 of 1958 giving up her rights overthe property including the plaint scheduled property in these cases,it conferred absolute rights in favour of ‘LN’s’ branch – Code ofCivil Procedure, 1908 – Or.II, r.2 – – Transfer of Property Act, 1882– s.19 – Evidence Act, 1872 – ss.3, 33, 40-43, 68, 69, 71 – HinduWomen’s Right to Property Act, 1937 – ss.2, 3, 5 – Code of CriminalProcedure, 1898 – s.145 – Estoppel/Waiver/Acquiescence – IndianSuccession Act, 1925 – ss.57, 59, 63, 119, 211 – Hindu Succession(Amendment) Act, 2005 – s.6 – Doctrine of Relating Back – Doctrineof Survivorship – Hindu Wills Act, 1870 – Indian Succession Act,1865 – Probate and Administration Act, 1881.Code of Civil Procedure, 1908 – Or.II, r.2 – Scope of –Discussed.Code of Civil Procedure, 1908 – Or.II, rr.2, 3 – Held: Be itthe omission or intentional relinquishment of a claim arising out ofa cause of action under Or. II, r.2(2) or not seeking a relief underOr. II, r.2(3), the fatal consequences they pose, will arise only if thecause of action is the same.Transfer of Property Act, 1882 – s.19 – Commonality betweens.19 and s.119, 1925 Act – Discussed – Indian Succession Act, 1925– s.119.Evidence Act, 1872 – s.33 – Applicability of – Held:Applicability of s.33 does not depend upon the nature of the decisionwhich is rendered in the earlier proceeding.Evidence Act, 1872 – s.33 – Held: Requirements u/s.33 arenot to be confused with the ingredients to be fulfilled even in a caseu/s.11, CPC – Code of Civil Procedure, 1908 – s.11.Evidence Act, 1872 – First proviso to s.33 – ‘representativein interest’ – Interpretation of – Held: ‘representative in interest’, isto be understood liberally and not confined to cases where there isprivity of estate and succession of title.Evidence Act, 1872 – s.68 vis-à-vis s.69 – Held: s.69 manifestsa departure from the requirement embodied in s.68 – In a casecovered u/s.69, the requirement pertinent to s.68 that the attestationby both the witnesses is to be proved by examining at least oneattesting witness, is dispensed with. Evidence Act, 1872 – s.69 – Evidence conforming to therequirements under – Duty of Court – Held: In a case, where thereis evidence appearing to conform to the requirement u/s.69, theCourt is not relieved of its burden to apply its mind to the evidenceand find whether the requirements of s.69 are proved – Reliabilityof the evidence or the credibility of the witnesses is a matter for theCourt to still ponder over. Hindu Law – Will – Capacity to make – Held: Requirement ofsound disposing capacity is not to be confused with physical well-being – A person who is having a physical ailment may not thereforebe robbed of his sound disposing capacity – The fact that a personis afflicted with a physical illness or that he is in excruciating painwill not deprive him of his capacity to make a will.Hindu Law – Will – Burden to prove – Held: Burden to provethe Will and to satisfy the conscience of the court that there are nosuspicious circumstances or if there are any to explain them is onthe propounder of the Will – Burden to prove that the Will is procuredby coercion, undue influence or fraud is on the one alleging thesame.Hindu Law – Joint Hindu Family – Partition – Meaning ofand its implications – Discussed – Hindu Succession Act, 1956 –ss.6 and 30.Hindu Law – Property of the joint family – Right of thecoparcener – Held:In the case of property of the joint family aslong as the property is joint, the right of the coparcener can bedescribed as an interest – As long as the family remains joint, acoparcener or even a person who is entitled to share when there isa partition cannot predicate or describe his right in terms of hisshare – The share remains shrouded and emerges only with divisionin title or status in the joint family – Once there is a division theshare of a coparcener is laid bare.Hindu Law – Right of a Hindu to make a Will, before andafter 1956 Act – Discussed – Hindu Succession Act, 1956 – s.30.Hindu Women’s Right to Property Act, 1937 – s.3 – Applicationof – Held: s.3 of the 1937 Act applies when a Hindu dies intestate.Hindu Women’s Right to Property Act, 1937 – Contrastbetween ss.3(1) & (2)– Discussed.Hindu Succession Act, 1956 – Explanation to s.30 – Held:Under Explanation to s.30, it is open to a Hindu to even bequeathhis interest in the Hindu Joint Family property.Hindu Women’s Right to Property Act, 1937 – Effect of demandfor partition by a widow, on coparcener’s claim based on doctrineof survivorship – Held: With the passing of the 1937 Act, in areasto which it applied, an intrusion was indeed made upon acoparceners right to set-up a claim to the property of a deceasedcoparcener based on the Doctrine of Survivorship but the Act didnot annihilate the said right – Right to claim by Survivorship cameto be suspended but not extinguished – Widow, though not acoparcener, was like a coparcener in most respects – She was alsoconferred with the right to claim partition – Doctrine of Survivorship.Practice & Procedure – Principle of no evidence, if nopleading – When not applicable – Discussed.Evidence Act, 1872 – ss.40-42 – When not applicable –Discussed.Hindu Law – Joint Hindu Family – Separation from – Noticeto other coparceners – When complete – Held: Notice in a newspaperserves as a notice by a coparcener to effect division – However,merely causing a notice to be published, without there being evidenceto show that the intended recipient became aware of it, may notsuffice – There cannot be a presumption that a person has read aparticular newspaper, and even more importantly, that he has readthe notice.Hindu Succession Act, 1956 –s.14(1), (2) – Applicability of –Discussed.Words & Expressions– ‘Interest’, of a coparcener in a jointHindu family property – Meaning of – Discussed. |
