NON­REPORTABLE     

IN THE SUPREME COURT OF INDIA           CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7092 OF 2010        

RADHAMMA & ORS.         ...APPELLANT(S)

VERSUS

H.N. MUDDUKRISHNA & ORS. ...RESPONDENT(S)

  J U D G M E N T

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 1

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

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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

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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

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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.”  

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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

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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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