Wednesday, 1 February 2017

How concept of notional partition ensures female heir's share in interest of coparcener?

We are not impressed with the submission that Section 6 of
the Hindu Succession Act, 1956 is not applicable for the
devolution of property of Jagan Verma. Section 6 deals with
the question of coparcener in a Mitakshara coparcener dying
after coming into operation of the Hindu Succession Act,
without making any testamentary disposition of his undivided
share in the joint family property. The initial part of
Section 6 stresses that the Act does not interfere with the
special rights of those who are members of Mitakshara property
except to the extent that it seeks to ensure the female heirs
as specified in Class I of the Schedule, a share in the
interest of a coparcener in the event of his death, by
introducing the concept of a notional partition immediately
before his death. Proviso to Section 6 operates where the
deceased has left surviving him, a daughter, or any female as
specified in Class I of the Schedule. In the case at hand,
Jagan Verma has left the female heirs namely his wife
Prabhavati and daughter Lajesh Saxena and, therefore, the

devolution of the property of Jagan Verma was governed by the
provisions of Hindu Succession Act and the High Court rightly
increased the share of Jagan Verma’s daughter Lajesh Saxena.
Reportable
IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8665-8668/2010
RAMESH VERMA(D) TR.LRS
 V
LAJESH SAXENA (D) BY LRS & ANR. 
Dated:November 24, 2016.
Citation: (2017) 1 SCC257

1. These appeals arise out of the common judgment of the High
Court of Madhya Pradesh in First Appeal Nos.29, 30 & 31 of 1991
dated 31.07.1997.
2. The parties are related as under:-
“Bhagwan Prasad Das Smt. Jaydevi
(Died in 1952) (Widow died in 1972)
Shri Jagan Verma Prabhavati
(Died in 1967) (Widow died in 1984)
Ramesh Verma Lajesh Saxena
 (Def. NO.1 died on 10/10/2003) (Plaintiff)
Shyam Kishori Verma Rajat Verma Rajiv Verma Meena Saxena
 Sanjeev Kumar
 (Respondent No.5)
3. The deceased first respondent herein/plaintiff had filed
the suit for partition on 26.02.1970 claiming 1/8th of the share
Civil Appeal Nos.8665-8668 of 2010 1Page 2
in the family properties. The trial Court by the judgment dated
31.01.1991 passed the preliminary decree for partition being
Civil Original Suit No.71A/1984 and held that :-
“(i) Plaintiff Smt. Lajesh Saxena is entitled to
get 1/12th share in the joint Hindu family property;
(ii) Defendant No.1 Ramesh Verma is entitled to
get 1/3rd share in the property of Bhagwanprasad and
1/12th share in the property of Jagan Verma totalling
5/12th of the whole;
(iii) Defendant No.3 Rajiv Verma and defendant
No.4 Rajat Verma are entitled to get jointly 1/12th
share in the property of Prabhavati and 1/12th share
in the property of Jaydevi i.e. total ½ share in the
joint Hindu family property.”
4. By holding so, the trial court accepted the execution of
the Wills being Exhibit D/2 dated 07.12.1969 executed by
Jaydevi in favour of Rajiv Verma and Rajat Verma and also
Exhibit D/1 dated 23.10.1977 executed by Prabhavati in favour
of Rajiv Verma and Rajat Verma.
5. Being aggrieved by the judgment and decree of the trial
Court, deceased Ramesh Verma preferred an appeal before the
High Court of Madhya Pradesh (FA No.29/1991). Sanjeev Kumar,
son of plaintiff Lajesh Saxena as also the plaintiff-Lajesh
Saxena filed appeals before the High Court in FA No.30/91 and
FA No.31/1999, respectively.
6. After hearing the parties, the High Court vide its judgment
dated 31.07.1991, allowed the appeal FA No.31/91 filed by
Lajesh Saxena holding that plaintiff is entitled to 1/3rd share
in stead of 1/12th share in the Joint Hindu Property.

Consequently, FA No.29/91 and FA No.30/91 filed by Ramesh Verma
and Sanjeev, respectively, were disposed of. The High Court
held that the execution of the Will Exhibit D/1 (dated
23.10.1977), Exhibit D/2 Will (dated 07.12.1969) and Exhibit
D/1/C (dated 22.05.1984 executed by Prabhavati) were not proved
in accordance with Section 68 of the Indian Evidence Act and
disbelieved the genuineness of all the three Wills.
7. Being aggrieved, Ramesh Verma (since deceased) through his
legal heirs preferred these appeals.
8. We have heard learned counsel for the parties at
considerable length.
9. Learned Senior Counsel for the appellants submitted that
after the death of Jagan Verma 1/3rd share of the property
devolved upon Ramesh Verma and the same will be governed by
survivorship under the Hindu Mitakshara coparcenary law and the
High Court was not right in holding that under Section 6 of the
Hindu Succession Act females have right to seek partition and
dividing the share in property among Jaydevi, Prabhavati and
his son and daughter, namely, Ramesh Verma and Lajesh Saxena.
It was further submitted that the High Court has not
appreciated the findings recorded by the trial Court in
accepting the genuineness of the Wills Exhibits D/1 and D/2 and
the High Court erred in disbelieving the genuineness of those
two Wills. Learned Senior Counsel has taken us at length
through Exhibits D/1 and D/2. It was further submitted that,
in any event, if a dwelling house is occupied by the members of

the family, then the right of any female heir to claim
partition is suspended till the time the male heirs choose to
divide their respective shares in terms of Section 23 of the
Hindu Succession Act and the first respondent being a married
daughter of the house is not entitled to claim her share and
this aspect was not properly appreciated by the High Court.
10. Per contra, learned Senior Counsel appearing for the
respondents has taken us through the judgment of the High Court
and submitted that in the light of the contradictory statements
of the attestors and scribes to the Will, the High Court
rightly held that the Wills Exhibits D/1 and D/2 were not
proved in accordance with Section 68 of the Indian Evidence
Act. It was further submitted that since Jagan Verma died in
the year 1967 i.e. after the enactment of Hindu Succession Act,
the succession of Jagan Verma would be governed by Section 6 of
the Hindu Succession Act and the High Court has rightly held
that plaintiff-Lajesh Saxena would be entitled to 1/3rd share in
the house property. Taking us through the relevant portion of
the judgment of the High Court, learned Senior Counsel
submitted that the High Court has recorded a clear finding that
the house property is not “wholly occupied” by the family
members and hence rightly held that the house property is also
partable and that the respondent-plaintiff is entitled to 1/3rd
share in the house property and the judgment of the High Court
does not warrant interference.
11. On the death of Bhagwan Das in 1952, a notional partition

has taken place and as per Section 82 of Madhya Bharat Land
Code, his son Jagan Verma, grandson-Ramesh Verma and
wife-Jaydevi are each entitled to get 1/3rd share in the
property of Bhagwan Das. On such partition when a share has
fallen to Jagan Verma, it became his separate property and no
longer a Mitakshara property. After the Hindu Succession Act,
1956 devolution of Jagan Verma’s property is only by succession
and not by survivorship.
12. We are not impressed with the submission that Section 6 of
the Hindu Succession Act, 1956 is not applicable for the
devolution of property of Jagan Verma. Section 6 deals with
the question of coparcener in a Mitakshara coparcener dying
after coming into operation of the Hindu Succession Act,
without making any testamentary disposition of his undivided
share in the joint family property. The initial part of
Section 6 stresses that the Act does not interfere with the
special rights of those who are members of Mitakshara property
except to the extent that it seeks to ensure the female heirs
as specified in Class I of the Schedule, a share in the
interest of a coparcener in the event of his death, by
introducing the concept of a notional partition immediately
before his death. Proviso to Section 6 operates where the
deceased has left surviving him, a daughter, or any female as
specified in Class I of the Schedule. In the case at hand,
Jagan Verma has left the female heirs namely his wife
Prabhavati and daughter Lajesh Saxena and, therefore, the

devolution of the property of Jagan Verma was governed by the
provisions of Hindu Succession Act and the High Court rightly
increased the share of Jagan Verma’s daughter Lajesh Saxena.
13. A Will like any other document is to be proved in terms of
the provisions of Section 68 of the Indian Succession Act and
the Evidence Act. The propounder of the Will is called upon to
show by satisfactory evidence that the Will was signed by the
testator, that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the nature and
effect of the disposition and put his signature to the document
on his own free will and the document shall not be used as
evidence until one attesting witness at least has been called
for the purpose of proving its execution. This is the mandate
of Section 68 of the Evidence Act and the position remains the
same even in a case where the opposite party does not
specifically deny the execution of the document in the written
statement.
14. In Savithri v. Karthyayani Amma reported as (2007) 11 SCC
621 at page 629, this Court has held as under:-
“A Will like any other document is to be proved in
terms of the provisions of the Succession Act and the
Evidence Act. The onus of proving the Will is on the
propounder. The testamentary capacity of the testator
must also be established. Execution of the Will by
the testator has to be proved. At least one
attesting witness is required to be examined for the
purpose of proving the execution of the Will. It is
required to be shown that the Will has been signed by
the testator with his free will and that at the
relevant time he was in sound disposing state of mind
and understood the nature and effect of the
disposition. It is also required to be established
that he has signed the Will in the presence of two

witnesses who attested his signature in his presence
or in the presence of each other. Only when there
exists suspicious circumstances, the onus would be on
the propounder to explain them to the satisfaction of
the Court before it can be accepted as genuine.”
15. It is not necessary for us to delve at length to the facts
of the matter as also the evidence adduced by the parties
before the High Court. Suffice it to note that the execution of
the Wills has to be proved in accordance with Section 68 of the
Indian Evidence Act.
16. Insofar as the execution of the first Will dated 07.12.1969
is concerned, the witnesses Shyam Mohan Bhatnagar and scribe
Mahesh Narayan have stated that the testator Jaydevi executed
the Will and witnesses Shyam Mohan and R.P. Johri have signed.
Witness Johri was the brother-in-law of Ramesh Verma and thus
interested witness. Scribe Mahesh Narayan is known to
mother-in-law of Ramesh Verma. After referring to their
evidence, High Court held that execution of the Will has not
been proved. Further, the High Court in its judgment has
pointed out the contradictions in their evidences and recorded
the factual finding that the Will could not have been executed
in the manner as alleged by the witnesses. We do not find any
reason to interference with the factual findings recorded by
the High Court.
17. Likewise, insofar as the findings recorded by the High
Court regarding Will Exhibit D/1-Will dated 23.10.1977, the
same was said to have been notarized by the neighbour of Ramesh
Verma, namely, Bhagwati Prasad Singhal and said to have been

attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1
also, after referring to the evidence that Ramesh Verma told
that there is a Will and hence witnesses and Prabhavati signed
the Will, the High Court has recorded factual finding that
Ramesh has manouvred the Will and the execution of Exhibit D/1
Will is not acceptable. We do not find any reason to interfere
with the factual findings arrived at by the High Court.
18. Insofar as the submissions of the learned Senior Counsel
regarding the dwelling house property are concerned, the High
Court in its judgment in paragraphs 17 and 18 has pointed out
that a portion of the house property has been let out. After
referring to the evidence of Ramesh Verma, it has been pointed
out by the High Court that presently the bungalow (Kothi) is
now let out for marriage purposes and at the time of his giving
evidence rent of Rs.400 per day was collected.
19. As rightly submitted by learned Senior Counsel for the
respondents the expression dwelling house “wholly occupied”
occurring in Section 23 of the Hindu Succession Act assumes
importance. When it is brought in evidence that the house
property is not wholly occupied by the family members and the
High Court was right in holding that the house property is also
available for partition and the deceased plaintiff Lajesh Saxena
is entitled to 1/3rd share. The findings recorded by the High
Court are based upon facts and evidence and are unimpeachable
and we do not find any reason to interfere with the conclusion
arrived at by the High Court.

20. Accordingly, the appeals are liable to be dismissed and
they are dismissed. Parties are to bear their respective costs.
….................J
[R.K. AGRAWAL]
…...............J.
 [R. BANUMATHI]
November 24, 2016;
New Delhi.

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