Page 1

Reportable IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.8665-8668/2010

RAMESH VERMA(D) TR.LRS.                            Appellant(s)                                 VERSUS LAJESH SAXENA (D) BY LRS & ANR.                    Respondent(s)

J U D G M E N T R. BANUMATHI, J.

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                                        1

Page 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.

Civil Appeal Nos.8665-8668 of 2010                                        2

Page 3

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

Civil Appeal Nos.8665-8668 of 2010                                        3

Page 4

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

Civil Appeal Nos.8665-8668 of 2010                                        4

Page 5

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

Civil Appeal Nos.8665-8668 of 2010                                        5

Page 6

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

Civil Appeal Nos.8665-8668 of 2010                                        6

Page 7

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

Civil Appeal Nos.8665-8668 of 2010                                        7

Page 8

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.

Civil Appeal Nos.8665-8668 of 2010                                        8

Page 9

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.

Civil Appeal Nos.8665-8668 of 2010                                        9