Jharkhand High Court
Veena Verma vs Snigdha Sinha on 3 May, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F. A. No.103 of 2011
Veena Verma .... .. ... Appellant(s)
Versus
1.Snigdha Sinha
2.Smita Verma
3.Sugandha Sinha
4.Ram Kumar Verma
5.Arun Kumar Verma - .. ... ..Respondent(s)
With
F. A. No.188 of 2008
1.Smt. Veena Verma
2.Ashishh Kumar Verma
3.Ashu Verma. .... .. ... Appellant (s)
Versus
1.Krishna Kumar Verma
2.Ram Kumar Verma
3.Arun Kumar Verma
4.Kumari Archana Verma .. ... ..Respondent(s)
With
M. A. No.320 of 2008
1.Veena Verma
2.Ashishh Verma
3.Ashu Verma. .... .. ... Appellant (s)
Versus
1.Krishna Kumar Verma
2.Ram Kumar Verma
3.Arun Kumar Verma
4.Kumari Archana Verma .. ... ..Respondent(s)
...........
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Petitioner (s) : Mr. Rahul Kumar Gupta, Advocate
For the State : Mr. Manjul Prasad, Sr. Advocate
Mr. Baban Prasad, Advocate
......
C.A.V. ON 02.04.2024 PRONOUNCED ON 03.05.2024
Heard, learned counsel for the parties.
1. Respondents/Plaintiffs, the sons of Onkar Prasad Verma from his first wife,
filed Partition Suit No. 166 of 2000 for division of joint family properties of
Onkar Prasad Verma, impleading Smt. Veena Verma (appellant /Defendant
No.1) second wife of Onkar Prasad Verma.
2. Smt Veena Verma had earlier filed Probate Case no.156 of 1999, for probate
of 'WILL' executed by her husband Late Onkar Prasad Verma against her
three step sons. The probate application was contested and it was converted
into Title Suit No. 1 of 2003.
3. Partition Suit No.166 of 2000 and Title Suit No.01 of 2003 were heard
together and have been disposed of by common Judgment, wherein the
partition suit has been decreed, whereas the application for probate was
rejected.
4. Aggrieved by the Judgment and decree of partition, F.A. No.188 of 2008
has been filed and against dismissal of probate application, M.A. No. 320 of
2008 has been preferred by Smt. Veena Verma.
5. F.A. No.103 of 2011 has been filed against the final decree drawn in
partition suit no.166 of 2000 dated 24.05.2011 (decree signed on
19.07.2011) passed by learned Addl. Judicial Commissioner, Fast Track
Court VI, Ranchi in Partition Suit No.166 of 2000.
CASE OF THE PLAINTIFF(S)
6. Plaintiffs are the three sons of Onkar Prasad Verma from his first wife
[Yashoda Devi], whereas defendant No.1 is second wife and defendant Nos.
2 is the son, 3 and 4 are daughters of Onkar Prasad Verma. These facts are
not in dispute. It is also not in dispute that the schedule property as detailed
in the plaint were ancestral property of Onkar Prasad Verma as he acquired
the same by way of partition from his brother Triloki Prasad Verma.
7. It has however been pleaded on behalf of the defendants in Title Suit No. 1
of 2003/ Probate Case No. 156 of 1999 that schedule-I property comprising
of a building and vacant land standing within MS Plot No. 1367, Holding
no. 330 corresponding to new holding No. 1217 measuring 12 Kathas
situated at Shraddhanand Road, P.S. Kotwali, Ranchi had acquired character
of the self-acquired property by lapse of time.
CASE OF THE DEFENDANTS
8. The specific case of the defendants is that there was no unity of title and
possession over MS Plot No. 1367 at Ranchi. The main contention of the
defendant(s) is that with respect to the urban property which is situated at
Shraddhanand Road, Ranchi, detailed above, Onkar Prasad Verma had
executed a WILL on 27.11.1987 in favour of Veena Verma (defendant No.1)
and by virtue of said WILL, she had acquired right, title and interest over the
said property.
9. The factum of unity and title as well as possession with respect to other
schedule property has not been expressly denied in the written statement.
ARGUMENT OF APPELLANT
10. The judgment and decree passed in partition Suit No. 166 of 2000 as well as
in Probate Case No. 156 of 1999 / Title Suit No. 1 of 2003 is assailed mainly
on the ground that learned trial Court below misdirected itself by clubbing
both the title partition suit as well as probate title suit in one judgment. The
jurisdiction of a Probate court is limited to determine validity of WILL, and
not the title of the property which is sought to be disposed of by the said
WILL.
11. In support of the WILL, the defendant No.1/Probate applicant had adduced
into evidence, the registered WILL as well as one witness out of two
attesting witnesses namely Jitendra Nath (PW3). The learned court below
has not assigned any reason in the judgment to disbelieve the testimony of
the attesting witness. The only ground on which the probate application has
been dismissed is that the testator had no right to dispose of the ancestral
property.
12. In this regard, it is submitted that the learned court below has failed to take
into account the provisions of Section 30 of the Hindu Succession Act, under
which coparceners of the Joint Hindu Family have right, inter alia, for
testamentary dispossession of Joint Hindu Family property as per their share.
13. The second ground of challenge is that even otherwise the testator had right
to transfer his part of property in favour of defendant no. 1 which has not
been considered while allocating the share of the coparceners.
14. Apportionment of share has not been made as per Section 6 of the Hindu
Succession Act (2006 Amendment) which accords the status of coparcener
to a daughter in the Joint Family property with right to equal share. Onkar
Prasad Verma had two daughters and one son from second wife Veena
Verma (defendant no. 1). Daughters of Smt Veena Verma namely, Ashu
Verma and Archana Verma have not been allocated their due share although
they constituted the coparcenary at the time of the death of her father.
Reliance is placed on Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
ARGUMENT ON BEHALF OF RESPONDENT
15. It is submitted by learned counsel for the respondents that the WILL was
itself void document in view of the fact that property was ancestral and the
plaintiff's had right in it by birth and not through their father, who had no
right to alienate the said property by WILL in favour of his second wife.
Reliance is placed on AIR 1967 SC 1153.
16. It is argued by the learned senior counsel that the learned trial Court has
recorded a finding of fact with regard to Schedule I property, that it was
ancestral property and not self-acquired property. This finding has been
recorded on the basis of the documentary evidence that land was originally
acquired by the common ancestor Late Tilak Dhari Lal, who died in 1926-
27. After the said purchase, the land was recorded in the name of Ful Kuer
wife of Late Tilak Dhari Lal in the Municipal Survey of 1929. Ful Kuer is
none other than the mother of the testator Onkar Prasad Verma. It has also
come in evidence as noted by the learned trial Court that there existed a
Pucca structure over the said piece and parcel of land, as it evident from
Exhibit 3 which is Municipal Khesra and entries in the demand register of
Municipal Corporation for the year 1946-47, 1950-51, 1968-69. Even if it is
assumed for the sake of argument that Onkar Prasad Verma had contributed
to the remodelling of the said house, that will not make it a self-acquired
property. Reliance is placed on AIR 1970 SC 1722.
17. This is further re-enforced by the fact that WILL was executed on
21.11.1987 by the testator Onkar Prasad Verma whereas the family un-
registered partition deed dated 27.10.1989, was also executed by the family
members including the testator. This will go to establish that the property
was not the joint family property and was subject matter of partition.
ANALYSIS
18. Having considered the submissions advanced on behalf of both sides, the
subject matter of dispute lies in a narrow compass. The dispute between the
parties is mainly with regard to Item No.1 of the Schedule property and not
with regard to the schedule property detailed in item no.II in which
admittedly there was unity of title and possession.
19. Claim to the property as detailed in item no.1, is based on a 'WILL' the
probate of which has been rejected by the impugned order on the ground of
title.
20. Genealogy as set out in the plaint of the partition suit is not disputed. It has
been admitted in para 8 of the written statement that Onkar Prasad Verma
died leaving behind his fours sons, two daughter and the widow Smt Veena
Verma. In preliminary decree the daughters have not been allocated share
and final decree has been drawn accordingly.
21. After having considered the arguments raised at Bar, averments in the
pleadings and the materials on record, the following points for
determination is framed to be answered in this appeal :-
(a) Can the probate application be rejected on the ground that the subject
matter of the WILL was the ancestral property of the party(s)?
(b) Can application of probate of WILL be granted in the circumstance that
testator entered into a memorandum of partition after execution of the
WILL?
(c) Whether daughters of the Onkar Prasad Verma from his second wife
Smt. Veena Verma could have been excluded from getting share on
partition of their joint family property?
22. At the outset it may be noted that a probate court is limited to determination
that the will executed by the testator was his last will. Whether he had right
and title over the subject matter of the will is beyond the range of its
consideration. Role of probate Court is limited to examining whether the
instrument propounded is the last will of the deceased or not, and whether
it is the product of the free and sound disposing mind. Law is settled that
probate Court is not required to look into the title of the property sought to
be bequeathed by the testator. Probate Court does not decide any question of
title of the property itself. Learned Court below was in error to have entered
into the issue of title of the property and dismiss it on that ground. ( Refer to
the decision of Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4
SCC 300).
23. The proof of a WILL and the title of the property it seeks to convey, are
two distinct things. Even if it is accepted that the WILL had been duly
executed, it shall not perforce lead to the conclusion that there will be a
disposition of the property as per the terms of the WILL. It will depend on
the title of the testator and his interest that he will transfer the property by
the said WILL as noted in explanation to Section 30 of the Hindu
Succession Act. What is permissible in view of the explanation, is that the
coparcenary interest can be transferred by the testator in the joint family
property.
24. In the present case the grant of probate has been contested and the probate
proceeding has been converted into a testamentary suit, and has been heard
and decided with the partition suit by a common judgment.
25. The term of the 'WILL' inter alia provided, after his death his wife, Smt.
Veena Verma and minor dependent children will be the sole owner of the
property and they would be responsible for the payment of the loan amount
standing in the name of the testator to the Bihar state housing Board, Patna.
Further, testator along with his wife and minor dependent children will have
one fourth (1/4th), out of the total land and house situated at Shradananda
Road Ranchi and rest three shares will go to his sons Dr K..K. Verma, R.K.
Verma and Dr A.K.Verma . It further provided that the share of the testator
in the joint family property shall devolve on Smt Veena Verma and her
minor children.
26. The 'WILL' was registered and all together nine witnesses each have been
examined on behalf of the applicant for probate as well as on behalf of the
defendants in probate Title Suit no.1/2003.
27. Kishore Prasad Verma a clerk of Registry office, Ranchi(AW-1) has
deposed that Onkar Prsad Verma had executed the WILL in favour his sons
Dr Krishna Kumar Verma, Ram Kumar Verma, Dr Arun Kumar Verma,
wife Smt Veena Verma, minor son Ashish Verma and minor daughters
Kumari Ashu Verma and Kumari Archana Verma. The extract of the will is
entered in page no.67 to73 of the register. The number of the register is 32.
28. AW-2 is Gagan Kumar Sahu serving as clerk in the officer of sub-registrar.
He produced the original WILL no.32 dated 21.11.1987 executed by Onkar
Prasad Verma and filed before the Court.
29. Attesting witness of the WILL, AW-3 Jitendar Nath has deposed that Onkar
Prasad Verma happened to be his uncle and cousin brother of his father. In
para 8 of the examination-in-chief he has deposed that the draft of the
WILL had been typed by Sri N.Mishra typist and thereafter it had been
signed by Onkar Prasad Verma in his presence and in the presence of
Mahavir Lal. He has identified the signatures on the WILL. It has been
further deposed that attesting witness Mahavir Lal is no more alive, and
Onkar Prasad Verma died on 29th October 1998. In para-8, he deposed that
draft of the WILL was prepared by O.P.Verma.
30. Having regard to the provisions of Section 68 of the Evidence Act and
Section 63 of the Succession Act, a will to be valid should be attested by
two or more witnesses in the manner provided therein and the propounder
thereof should examine one attesting witness to prove the will. In the
present case 'WILL' was registered and its original copy has been produced
and proved. One of the attesting witness has been examined and the other
had died during the pendency of the suit. In view of the testimony of
witnesses, there can be little doubt over the veracity of the WILL, executed
by Onkar Prasad Verma. Testator executed the will in sound state of mind
and survived for about a decade after the execution of the said deed. There
could not have been any impediment in issuing the probate of the 'WILL',
except for the fact that after the execution of the 'WILL', the testator
entered into a family arrangement disposing of the entire property including
the property which was the subject matter of the 'WILL'.
31. In the peculiarity of the facts of the present case, testator after execution of
the WILL entered into a family arrangement which was reduced to a
memorandum of partition. WILL is not an instrument of transfer inter
vivos, but one which though executed in the life time of the testator, only
operates on his death. In order that the WILL can be acted upon, the
property of the testator which is the subject matter of the WILL should be
his property at the time of his death. After the execution of WILL, if the
testator transfers the said property before his death, WILL cannot be acted
upon.
32. As per evidence, after the execution of the WILL on 21.11.1987 (Ext-3), the
testator Onkar Prasad Verma entered into a family arrangement, a memo
recording it was drawn out on 27.10.1989 (Ext-8 of Partition suit). Family
arrangement superseded the disposition of property by way of WILL as it
was executed after the execution of the WILL. Consequent to the family
arrangement, the testator ceased to have exclusive interest in the property
which was subject matter of his WILL. He lived for nine years thereafter
and when he died on 29.10.1998, this property did not form part of his
estate at the time of his death. There was nothing for the WILL to operate
over. The WILL cannot be called last WILL of the testator disposing of the
said property in view of the subsequent family arrangement entered into by
the testator.
33. Furthermore, when the testamentary suit and partition suit have been heard
together, the issue of title cannot be wholly beyond the consideration of the
Court which is disposing both the matters by a common judgment. As
discussed above since the property was the ancestral property of the testator
and not his self acquired property, therefore he had no exclusive right of
testamentary disposition of the property. Interest in such property can
devolve by inheritance and partition, and not by a WILL.
34. For these reasons the probate application cannot be allowed with respect to
the WILL and consequently Probate application fails. Point for
determination is answered accordingly in favour of the respondents.
Miscellaneous Appeal No.320/08, accordingly, stands dismissed.
35. With regard to the partition suit, as discussed above, there is no express
denial regarding the status of unity of title and possession with respect to
Item No. II of the schedule property. The sole basis of claiming partition of
item No. I property was the 'WILL', which having failed, it can be
presumed that there was unity of title and possession with respect to it.
36. Further, specific averments have been made in the plaint at para 3-8 of the
plaint, that property as detailed in item No. I was acquired by Tilakdhari Lal
in or about 1926-27 and after his death was recorded in the name of his
widow Mostt. Ful Kuer who had two sons namely Tribeni Prasad and Onkar
Prasad Verma. Tribeni Prasad died living behind his son Triloki Prasad.
There was an amicable partition between Onkar Prasad Verma and Triloki
Prasad Verma in the year 1961. As per the terms of partition both Triloki
Prasad Verma and Onkar Prasad got their rent separated and new holding
no.1217/A was recorded in the name of Triloki Prasad. These facts have not
been disputed in the written statement in para-9 and 10 and can be regarded
as admissions in pleading.
37. Under the circumstance in the absence of admission in pleading and any
convincing evidence of partition, I do not see any reason to differ with the
concurrent finding of fact recorded by the learned trial Court that both item
Nos.I & II were joint family properties acquired by the common ancestor
Tilakdhari Lal and there was unity of title and possession with respect to
them.
38. Under Section 6 of the Hindu Succession Act,1956, on and from the
commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall,--
(a) by birth become a coparcener in her own right in the same
manner as the son;
(b) have the same rights in the coparcenary property as she would
have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary
property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or
invalidated any disposition or alienation including any partition or
testamentary disposition of property which had taken place before the
20th day of December, 2004.
(2) *****
(3) Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005, his interest in the property of a Joint
Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act
and not by survivorship, and the coparcenary property shall be deemed
to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) *****
(d)*****
Explanation.--For the purposes of this sub-section, the interest of a
Hindu Mitakshara coparcener shall be deemed to be the share in the
property that would have been allotted to him if a partition of the property
had taken place immediately before his death, irrespective of whether he was
entitled to claim partition or not.
(4) *****
39. For the applicability of Section 6 of Hindu Succession Act, it is not
necessary that the male coparcener must be alive on the date of
commencement of the 2005, amendment Act. Under Section 6 when a male
Hindu dies after the commencement of the Act, having at the time of his
death share in a Mitakshra coparcenary property, his interest in the property
shall not devolve by survivorship upon the surviving members of the
coparcenary if the deceased had left him surviving a female relative
specified in class I of the Schedule or a male relative specified in that class
who claims to such female relative, the interest of the deceased shall
devolve by testamentary or intestate succession, as the Case may be, under
this Act. The substituted Section 6 is not confined to cases where the male
coparcener dies after the commencement of the Amending Act. The law on
Section 6 of the HSA, 1956 as substituted can be summarised below:
a. Sub-section (1) of the substituted Section 6 recognises a joint Hindu
family governed by Mitakshara law.
b. The coparcenary must exist on 9.9.2005 that is the date of
commencement of the 2005 Amendment Act.
c. The daughter has been recognised and is a coparcener by birth, with
equal rights and liabilities as that of a son. The equal share given to
the daughter of a coparcener governed by Hindu Mitakshara law
along with brothers is by way of a substantive right. Though the
substantive right is created on and from 9.9.2005 it relates back to the
incidence of birth of the daughter.
d. It is not necessary that a coparcener whose daughter is conferred with
the right is alive or not, on the date of commencement of 2005
Amendment Act. The daughter would step into the coparcenary as
that of a son by birth.
e. The substantive right would not be available only if the coparcenary
property is disposed of or alienated including by any partition or
testamentary disposition of property before 20.12.2004. The daughter
born before the commencement of the 2005 Amendment Act can
claim coparcenary right only with effect from the date of the
amendment i.e 09.09.2005.
f. If there is disposition of the coparcenary property by any partition,
such partition must be executed by a deed of partition duly registered
or effected by a decree of Court.
[Refer to (2023) 9 SCC 641 ]
40. In the present case common ancestor Onkar Prasad Verma died on
29.10.1998 leaving behind coparcenary comprising of his widow mosst.
Veena Verma , her three children Ashish Verma, Ashu Verma, Archana
Verma and Dr Krishna Kumar Verma, Ram Kumar Verma and Dr Arun
Kumar Verma all seven in numbers. All of them are class I heirs as per the
schedule to the Hindu Succession Act, 1956 therefore they will inherit one
share each in the Schedule property to the plaint and will take it
simultaneously and in exclusion of the other heirs in terms of Section 9 of
the HSA,1956. Each of them will be entitled to 1/7th share of the Schedule
property.
41. Principle of notional partition to ascertain the individual share of Onkar
Prasad Verma will not be required in the present case for two reasons.
Firstly, Onkar Prasad Verma was the head of the joint family property at the
time of his death, and his share had been ascertained by previous partition
from his agnates. It is an admitted position that he got a definite share by
partition from Triloki Prasad Verma in the year 1961 and the said property
is the schedule property.
Secondly, before 2005 amendment Act notional determination of his
share would have been necessary, because at that time daughters were not
coparceners but could have inherited the father's share. For determination of
what share the daughter's could have inherited before 2005 amendment,
notional partition was necessary. After 2005 amendment since daughters are
getting equal share in the joint family property of Onkar Prasad Verma,
therefore there is no requirement for determination of his notional share at
the time of his death.
42. Under the circumstance, plaintiff's suit is decreed on contest and Smt.
Veena Verma, Ashish Verma, Ashu Verma, Archana Verma and Dr Krishna
Kumar Verma, Ram Kumar Verma and Dr Arun Kumar Verma each will
get 1/7th share in item no.1 and 2 of the Schedule property. Both the first
appeals being F.A 103 of 2011 and F.A.188 of 2008, are disposed of in
terms of the modification of the preliminary decree as stated above. Learned
trial Court is directed to draw final decree and proceed as per the guidelines
laid down by Hon'ble Supreme Court in Kattukandi Edathil Krishnan
and another v. Kattukand Edathil Valson and others, 2022 SCC
OnLine SC 737 and Shub Karan Bubna v. Sita Saran Bubna and
others, (2009) 9 SCC 689.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 3rd May, 2024.
AFR /Sandeep
