Saturday, 26 January 2019

Whether members of joint family can claim interest in property if Hindu male has bequeathed it by execution of will ?

Section 30 of the Act, the extract of which has been
referred to above, permits the disposition by way of Will of a
male Hindu in a Mitakshara coparcenary property. The
significant fact which may be noticed is that while the
legislature was aware of the strict rule against alienation by
way of gift, it only relaxed the rule in favour of disposition by
way of a Will of a male Hindu in a Mitakshara coparcenary
property. Therefore, the law insofar as it applies to joint
family property governed by the Mitakshara school, prior to
the amendment of 2005, when a male Hindu dies after the
commencement of the Hindu Succession Act, 1956 leaving at
the time of his death an interest in Mitakshara coparcenary
property, his interest in the property will devolve by
survivorship upon the surviving members of the coparcenary.
An exception is contained in the explanation to Section 30 of
the Act making it clear that notwithstanding anything
contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property can be disposed of by him
by Will or any other testamentary disposition and in the given
facts and circumstances, the testator Patel Hanume Gowda
was indeed qualified to execute a Will bequeathing his

undivided share in the joint family properties by a Will
Exhibit D2
dated 16.6.1962.
8. The submission of the learned counsel for the appellants
in claiming independent share as a member of the family in
the joint family properties is without substance for the reason
that the appellants have no independent share in the joint
family properties and their share could be devolved in the
undivided share of the testator in the joint family properties
and since the testator has bequeathed his share/his
undivided coparcenary interest by Will dated 16.6.1962, no
further independent share could be claimed by the appellants
in the ancestral properties as a member of the family as
prayed for.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7092 OF 2010

RADHAMMA Vs H.N. MUDDUKRISHNA

Dated: January 23, 2019.

Rastogi, J.

1. The instant appeal is directed against the judgment of
the High Court of Karnataka dismissing RFA No. 347/1998
holding that the appellants are not entitled to claim any
share in the joint family properties. The appellants/plaintiffs
filed a suit on 16.1.1976 for 1/10th share in the suit
properties described in the schedule to the plaint as ‘A’ to ‘H’.
The learned trial Court decreed the suit declaring that the
second plaintiff (since first plaintiff died on 7.7.1978 leaving
behind daughter) Smt. Nagamma is entitled for 1/10th share
of joint family properties in the plaint which are scheduled
properties ‘A’ to ‘E’ and the properties in the plaint scheduled
‘F’ & ‘G’ were held to be the selfacquired
properties of the

testator, and property ‘H’ was declared as the exclusive
property of the Smt. K.C. Saroja. The judgment and decree of
the trial Court came to be challenged in the regular first
appeal before the High Court by the present appellants in
RFA No. 347/1998 and RFA No. 922/2001 was filed by the
defendantsrespondents
against the selfsame
impugned
judgment. The High Court after hearing the parties and on
reappraisal of the evidence while affirming the finding of fact
in reference to the registered Will ExhibitD2
dated 16.6.1962
of the testator held that the respondents have established the
due execution of the Will as required under Section 68 of the
Evidence Act. But while answering the question in reference
to the 1/10th share of the plaintiff no.2 in the undivided share
of the testator in the joint family properties schedule ‘A’ to ‘E’,
took note of Section 30 read with explanation of the Hindu
Succession Act, 1956 and held that a coparcener derives a
right to dispose of his undivided share in Mitakshara joint
family property by “Will” or any testamentary disposition i.e.
by virtue of law and accordingly reversed the finding recorded
by the learned trial Court holding 1/10th share of the

appellants/plaintiffs in the schedule of the properties referred
in ‘A’ to ‘E’.
2. Mr. Girish Ananthamurthy, learned counsel for the
appellants has tried to persuade this Court that the finding
which has been recorded in reference to execution of the Will
of the testator ExhibitD2
dated 16.6.1962 appears to be
suspicious for the reasons that the testator Patel Hanume
Gowda died on 6.2.1965 and the registered Will ExhibitD2
dated 16.6.1962 has not seen the light of the day until filing
of the suit by the present appellants/plaintiffs on 16.1.1976
and the testator was unwell during the period the ExhibitD2
was scribed and further submitted that there appears no
reason/justification for the testator to have a complete
exclusion of one branch of the family i.e. the daughter from
his second marriage from the schedule of properties of the
testator falling in schedule ‘A’ to ‘H’ which indisputedly was
either the joint family property or the selfacquired
property
of the testator.
3. Learned counsel for the appellants further submits that
even if the testator could have bequeathed his share in the
undivided joint family properties through a registered Will

dated 16.6.1962 still the independent share of the
appellants/plaintiffs as a member of the family in the joint
family properties could not have been divested and that is an
apparent error which has been committed by the High Court
and needs interference of this Court.
4. None appeared for the respondents despite service.
5. We have heard the Counsel for the appellants and with
his assistance perused the record and we find no error in the
concurrent finding of fact as recorded by the learned trial
Court and affirmed by the High Court holding the properties
schedule ‘A’ to ‘E’ belong to joint family properties and
property ‘F’ & ‘G’ are selfacquired
properties of the testator
and property schedule ‘H’ was exclusively of Smt. K.C. Saroja.
The suspicious circumstances highlighted by the appellants
with reference to the Will ExhibitD2
dated 1661962,
a
concurrent finding of fact has been recorded holding that the
defendants were able to establish due execution of the Will as
required under Section 68 of the Evidence Act and we find no
reason to disturb the same.
6. The submission of the learned counsel in reference to
1/10th share of the appellants/plaintiffs in the undivided

share of the testator in joint family properties identified as
schedule ‘A’ to ‘E’, we are unable to accept the contention for
the reason that the Will Exhibit D2
was executed on
16.6.1962 and the testator died on 6.2.1965, subsequent to
the coming into force of the Act, 1956. It is true that prior to
coming into force of the Hindu Succession Act, no coparcener
could dispose of whole or any portion of his undivided
coparcenary interest by Will but by virtue of Section 30 of the
Act read with explanation, a coparcener derives his right to
dispose of his undivided share in Mitakshara joint family
property by Will or any testamentary disposition i.e. by virtue
of law. The said provision reads thus:“
Testamentary succession
30.(1) Any Hindu may dispose of by will or other
testamentary disposition any property, which is capable of
being so disposed of by him, in accordance with the
provisions of the Indian Succession Act, 1925, or any other
law for the time being in force and applicable to Hindus.
Explanation: The interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a
tarwad, tavazhi, illom, kutumba or kavaru in the property of
the tarwad, tavazhi, illom, kutumba or kavaru shall,
notwithstanding anything contained in this Act or in any
other law for the time being in force, be deemed to be
property capable of being disposed of by him or by her
within the meaning of this subsection.
(2) For the removal of doubts it is hereby declared that
nothing contained in subsection
(1) shall affect the right to
maintenance of any heir specified in the Schedule by reason
only of the fact that under a will or other testamentary
disposition made by the deceased the heir has been
deprived of a share in the property to which he or she would
have been entitled under this Act if the deceased had died
intestate.”

7. Section 30 of the Act, the extract of which has been
referred to above, permits the disposition by way of Will of a
male Hindu in a Mitakshara coparcenary property. The
significant fact which may be noticed is that while the
legislature was aware of the strict rule against alienation by
way of gift, it only relaxed the rule in favour of disposition by
way of a Will of a male Hindu in a Mitakshara coparcenary
property. Therefore, the law insofar as it applies to joint
family property governed by the Mitakshara school, prior to
the amendment of 2005, when a male Hindu dies after the
commencement of the Hindu Succession Act, 1956 leaving at
the time of his death an interest in Mitakshara coparcenary
property, his interest in the property will devolve by
survivorship upon the surviving members of the coparcenary.
An exception is contained in the explanation to Section 30 of
the Act making it clear that notwithstanding anything
contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property can be disposed of by him
by Will or any other testamentary disposition and in the given
facts and circumstances, the testator Patel Hanume Gowda
was indeed qualified to execute a Will bequeathing his

undivided share in the joint family properties by a Will
Exhibit D2
dated 16.6.1962.
8. The submission of the learned counsel for the appellants
in claiming independent share as a member of the family in
the joint family properties is without substance for the reason
that the appellants have no independent share in the joint
family properties and their share could be devolved in the
undivided share of the testator in the joint family properties
and since the testator has bequeathed his share/his
undivided coparcenary interest by Will dated 16.6.1962, no
further independent share could be claimed by the appellants
in the ancestral properties as a member of the family as
prayed for.
9. We find no error in the judgment of the High Court
which may call for interference, consequently the appeal fails
and is hereby dismissed. No costs.
10. Pending application(s), if any, stand disposed of.
……………………………..J.
(A.M. KHANWILKAR)
……………………………..J.
(AJAY RASTOGI)
NEW DELHI
January 23, 2019.

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