Karnataka High Court
Dulachandra Malakar vs Ranjith Khabiraj S/O Gurupado Khabiraj on 3 July, 2024
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RSA No. 7098 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7098 OF 2013 (DEC/INJ)
BETWEEN:
DULALCHANDRA MALAKAR
S/O MUKKUNDO MALAKAR,
AGE: 45 YEARS, OCC. AGRI.,
R/O. R. H. COLONY NO.2,
POST: BURMA CAMP, TQ. SINDHANUR
DIST. RAICHUR-584101.
...APPELLANT
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
Digitally signed
by SWETA RANJITH KHABIRAJ
KULKARNI S/O GURUPADO KHABIRAJ
Location: HIGH AGED ABOUT: 65 YEARS, OCC: AGRI.,
COURT OF
KARNATAKA R/O. R. H. COLONY NO.2
POST: BURMA CMAP, TQ. SINDHANUR
DIST. RAICHUR-584101.
...RESPONDENT
(BY SRI RAMCHANDRA K., ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO
ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND
DECREE PASSED BY THE PRINCIPAL DISTRICT JUDGE RAICHUR
DATED 15.12.2012 IN R.A. NO.108/2009 AND AFFIRM THE
TRIAL COURT JUDGMENT AND DECREE DATED 17.09.2009
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RSA No. 7098 of 2013
PASSED IN O.S. NO.216/2006 BY LEARNED SENIOR CIVIL
JUDGE, LINGASUGUR.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Assailing the judgment and decree in
R.A.No.108/2009 dated 15.12.2012 on the file of the
Principal District Judge, Raichur [for short, 'the first
appellate Court'], reversing the judgment and decree in
O.S.No.216/2006 dated 17.09.2009 on the file of the
Senior Civil Judge Court at Lingasugur [for short, 'the Trial
Court'], the plaintiff is before this Court in the Regular
Second Appeal.
2. This Court, while admitting the appeal on
03.11.2020, has framed the following substantial
questions of law:
"1) Whether first appellate court finding that, the
testator has no capacity as required under law to
dispose off the suit property by way of will is illegal,
capricious and needs interference?
2) Whether the finding of the first appellate court
that, the defendant is the grand son of the deceased
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testator based on the documentary evidence Ex.D.1
and Ex.D.3 is contrary to the evidence on record."
3. Heard Sri Harshavardhan R. Malipatil, learned
counsel for the appellant. The respondent is being
represented by the counsel but there is no appearance on
behalf of the respondent.
4. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
5. Suit seeking declaration of title to declare that
the plaintiff is the absolute owner and possessor of the suit
'A & B' schedule properties and for permanent injunction
and in the alternative sought for prayer of possession, in
the event, the defendant is found to be in possession of
the suit property.
6. Plaintiff claims title over the suit property on
the basis of the registered Will dated 30.10.1989 executed
by Pagal Biswas and registered Will dated 18.12.2000
executed by Pachi Biswas W/o Pagal Biswas.
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7. On notice, defendant appeared and filed his
written statement, inter alia, denying the execution of the
Will by either Pagal Biswas or Pachi Biswas. The
defendant contended that the Will deeds were created,
fabricated and further the testator had no absolute right to
execute the Will deeds as the properties were granted by
the Government under the Rehabilitation Project Scheme
to the family members of Pagal Biswas and the testators
had no right to bequeath the properties.
8. Based on the pleadings, the Trial Court framed
the following issues:
"ISSUES
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ªÀiÁ°PÀ£ÁVgÀÄvÉÛÃ£É JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄÃ?
2. ªÁ¢ zÁªÁ C£ÀĸÀÆa ¸ÀévÀÄÛUÀ¼À°è ¸Áé¢üãÀ C£ÀĨsÀªÀ
ºÉÆA¢gÀÄvÉÛÃ£É JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄÃ?
3. ªÁ¢ ¥ÀæwªÁ¢¬ÄAzÀ GAmÁzÀ ºÀ¸ÀÛPÉëÃ¥ÀªÀ£ÀÄß
¸Á©ÃvÀÄ¥Àr¹gÀÄvÁÛ£ÉAiÉÄÃ?
4. ªÁ¢ F zÁªÉAiÀÄ°è PÉýzÀAvÉ ¥ÀjºÁgÀ ¥ÀqÉzÀÄPÉƼÀî®Ä CºÀð£É?
5. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?"
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9. In order to substantiate their claim, plaintiff
examined himself as PW-1 and three witnesses as PW-2 to
PW-4, marked documents at Ex.P-1 to P-9. Defendant, on
the other hand, examined himself as DW-1 and one
witness as DW-2, marked documents as Exs.D-1 to D-4.
10. The Trial Court, on the basis of the pleadings,
oral and documentary evidence, decreed the suit of the
plaintiff holding that the plaintiff is the absolute owner of
the suit properties. Aggrieved, the defendant preferred an
appeal before the first appellate Court. The first appellate
Court, by the judgment and decree, reversed the finding
recorded by the Trial Court and dismissed the suit. The
first appellate Court held that Exs.P-1 to P-3 - Will Deeds
are not valid and are executed by deceased Pagal Biswas
and Pachi Biswas, who had no testamentary capacity as
they had no absolute right to execute the Will with respect
to the suit schedule properties, as they were not the self
acquired properties. Aggrieved, the plaintiff is before this
Court.
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11. Learned counsel for the appellant submits that
Pagal Biswas and Pachi Biswas have executed registered
Will as per Exs.P.1 to P.3 in respect of their share in the
suit schedule properties and the reasoning accorded by the
first appellate Court that the suit schedule properties are
not the absolute properties of the testators and they had
no absolute right to execute the Will in respect of the
properties is totally erroneous, as the first appellate Court
lost sight of the provisions of Section 30 of the Hindu
Succession Act, 1956, ('the Act' for short) which clearly
reserves right to the testator to dispose of his undivided
share in the joint family property by Will or any
testamentary disposition i.e., by virtue of law.
12. The undisputed facts are that, Pagal Biswas and
Pachi Biswas were refugees from Bangladesh and the
Government of Karnataka granted 05 acres 01 gunta of
land in Sy.No.510 of Sindhanur and also plot No.87 to
Pagal Biswas as per Ex.D.4. Ex.D.3 is the extract copy
register maintained by the Rehabilitation Project Officer,
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Sindhnur, indicating the name of Pagal Biswas, Pachi
Biswas, Ranjit Kabiraj (defendant), Subodh Kabiraj and
Anjali W/o Ranjit. They are shown as one family and head
of the family is Pagal Biswas, the relationship of the
defendant with Pagal Biswas is stated to be "grand-son".
The suit properties were granted to Pagal Biswas and his
family members.
13. Ex.P-1 is the registered Will dated 18.12.2000
executed by Pachi Biswas W/o Pagal Biswas in respect of
landed property of Schedule 'A' property. Ex.P-2 is the
registered Will deed dated 13.04.1999 executed by Pachi
Biswas in respect of the Schedule 'B' property. Ex.P-3 is
the registered Will deed executed by Pagal Biswas on
30.01.1989. Exs.P-1 to P-3 are executed in favour of the
plaintiff. The burden is on the propounder of the Will to
prove the execution of the Will in accordance with Section
63(c) of the Indian Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. In order to prove the
execution, the plaintiff examined the witnesses to the Will
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deed as PW-2 and PW-3. During the lifetime of Pagal
Biswas there were mutation proceedings initiated by the
plaintiff. Exs.P-8 and P-9 are the revenue proceedings
wherein the plaintiff, based on the registered Will executed
by Pagal Biswas on 30.01.1989, made an application to
enter his name in the revenue records and accordingly,
plaintiff's name came to be mutated. Ranjit Kabiraj and
Subodh Kabiraj preferred appeal before the Assistant
Commissioner stating that the plaintiff had no right over
the property and that during the lifetime of Pagal Biswas
no right could be conferred on the plaintiff. In the
proceedings before the Assistant Commissioner which is at
Ex.P-9, enquiry was conducted and on enquiry, it was
found that Pagal Biswas was alive and statement was
recorded by the Assistant Commissioner that Pagal Biswas
has stated that he has executed the Will deed in favour of
the plaintiff as the appellants therein were not looking
after him for past many years and as the plaintiff was
taking care of him he has bequeathed his share to the
plaintiff. The relevant portion of the order of the Assistant
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Commissioner dated 23.07.1990, at an undisputed point of
time during the lifetime of Pagal Biswas, reads as under:
"The respondent is the grand son of the brother of
Pagal Biswas. I have enquired with Pagal Biswas and
found that he executed a will deed in favour of the
respondent as the appellants were not looking after
him for the past many years. He stated that
respondent is taking care of him. It is also found
from the local inquiry that at present the respondent
is enjoying about 2 acres 20 guntas of the said land,
the rest of the land is in possession of the appellants
and they are cultivating the same. Pagal Biswas had
no objections to the appellants and the respondent
cultivating his land. However, the mutation executed
on the basis of the will deed is procedurally and
legally incorrect. The executant of the will deed is
alive and hence, there could be no transfer of rights
during his life time, on the basis of the will deed."
14. However, the Assistant Commissioner held that
the mutation entry entered based on the Will deed during
the lifetime of Pagal Biswas is procedurally and legally
incorrect and hence, the name of Pagal Biswas was
directed to be continued in record of rights for the entire
extent of 5 acres 01 gunta. What could be gathered from
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the material on record is that Pagal Biswas has executed
registered Will by bequeathing his share of the property to
the plaintiff and the perusal of the order of the Assistant
Commissioner indicates that Pagal Biswas had voluntarily
stated about execution of a Will deed in favour of the
plaintiff. Usually the Will will come into existence only
after the death of the testator. The material on record,
more particularly, Ex.P-9 indicates that Pagal Biswas was
alive and he had executed the Will in favour of the
plaintiff. The reasoning of the first appellate Court that
the death of Pagal Biswas creates doubt is totally
erroneous.
15. The other ground raised by the defendant is
that the testator had no capacity as required under law to
dispose of the suit properties by way of Will and that is the
reasoning of the first appellate Court in dismissing the suit
of the plaintiff.
16. Prior to the Act, a Hindu could execute the Will
bequeathing his separate and self acquired property, as
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regards his authority to execute a Will concerning his
interest in the property of the joint family of which he is a
coparcener, the law did not permit such an exercise. The
Apex Court in the case of V. Kalyanaswamy (D) by Lrs. &
Anr. vs L. Bakthavatsalam (D) by Lrs. & Ors. in Civil
Appeal Nos.1021-1026 of 2013 and connected matters
dated 17.07.2020, noted four situations before
commencement of the Act, where a Hindu was granted a
power and at the same time restrictions were imposed on
his power pertaining to bequeathing his property by way
of a Will. The said situations read as under:
"1. A member of a Joint Hindu family who also has
his separate property, then the member had a right
to bequeath his separate property.
2. In the next situation, the family remains joint
and the member or the coparcener would have an
interest. In this case, the interest in such joint
family property cannot form a part of the will prior
to the concerned Act.
3. The next situation pertains to the disruption in
the title or a division in status. This severance
means the separation in the joint family status
caused due to unequivocal declaration by a
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coparcener which is in turn, communicated to the
joint family. Such communication can be by way of
words or by way of conduct including the filing of a
suit by the concerned coparcener. Now, when such
disruption in the status takes place, the share of
the coparcener in the joint family property becomes
a reality and takes concrete shape and thus, the
share of the members of the joint family becomes
definite in nature. This may or may not be
accompanied by the metes and bounds partition.
Under this scenario, the right based on the principle
of survivorship perishes and the share of a
coparcener becomes undeniable. This would
indicate to a situation that after the death of the
coparcener the share of the Joint family property
would devolve to the legal heirs of the deceased
and not to other coparceners.
4. The last situation pertains to the partition of
property by metes and bounds along with the
severance of the status and title in the family
according to the share. The property obtained as a
share on a partition by a coparcener who has no
male issues is treated as his separate property. This
has persisted even prior to the enactment of the
Hindu Succession Act.
17. Therefore, prior to the Act being in force, the
concept of Will prevailed, if a person has a separate
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property he could bequeath the same. As far as the Joint
Hindu family property is concerned, without there being a
severance in the status regarding the share of the
property to be held or partition by metes and bounds, a
coparcener was not permitted to bequeath his undivided
share by way of a Will.
18. In the case of Valliammai Achi v. Nagappa
Chettiar and another , the Apex Court held that the
property of a joint family is not entitled to be given away
by way of a Will and by merely devolving a Mitakshara
coparcenary property through a Will no difference to the
title of the property will be changed. It was further
observed that no coparcener can turn a joint family
property into an absolute property as it is well settled that
the share which a co-sharer obtains on partition of an
ancestral property is ancestral property as regards his
male issues.
AIR 1967 SC 1153
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19. In another case of Sundara Adapa v. Girija2,
the Apex Court recognized the practice of not devolving
the property through a Will when the status of the
Mitakshara property has not been severed. The Court
stated reasons that by the time the Will of the coparcener
took effect his interest in the undivided family would have
been taken by survivorship by the other coparceners.
20. Further, in the case of M.N. Aryamurthy v. M.D.
Subbaraya Setty the Court reiterated the principle that a
coparcener cannot dispose of a Joint Hindu family property
or any part thereof, by way of a Will. The Court further
stated, "a coparcener cannot devise joint family property
by will, because, on the date of his death when the will
takes effect, there is nothing for the will to operate on, as,
at the moment of his death, his interest passes by
survivorship to the other coparceners."
21. The statutory recognition to bequeathing a
property through a Will came in the year 1956 with the
LAWS (KAR)-1961-11-13
AIR 1972 SC 1279
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enactment of the Act. Section 30 of the Act deals with the
position of testamentary succession, which reads as
under:
"30. Testamentary succession.-- Any Hindu may
dispose of by will or other testamentary disposition
any property, which is capable of being so disposed
of by him or by her, in accordance with the
provisions of the Indian Succession Act, 1925 (39 of
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 section."
22. The Section empowers any Hindu may dispose
of any property capable of being disposed of by him, by
way of a Will or through testamentary disposition in
accordance with the Indian Succession Act. Further, as per
the Explanation stipulated under the concerned Section,
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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 be deemed to be
property capable of being disposed of by them.
23. After interpreting this Section it is certain even
without any partition or for that matter without any
severance of status in the sense of a declaration to be
made by a coparcener to other coparceners, it is open to a
Hindu to bequeath his interest in the Joint Hindu family
property. Thus, the words, "interest in coparcenary
property", can be interpreted to mean the interest of a
coparcener while the joint family is indeed intact in status
and not when there is a partition in the sense of there
being a disruption in status in the family. Thus, the
interest of a coparcener in the joint Hindu family property
remains in place and after the division of status, it takes
the form of a definite share. Later, through the partition
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by metes and bounds the share translates into absolute
rights qua specific properties.
24. In a recent decision in the case of Radhamma
and others v. H.N. Muddukrishna & others4, the Apex
Court observed that the undivided interest of a Hindu in a
joint family property can be disposed of by Will as per
Section 30 of the Act. The Court observed that when a
Hindu dies after the commencement of the Act, leaving
behind the interest in the Mitakshara coparcenary
property, that interest will devolve according to the rules
governed by survivorship upon the surviving coparceners.
However, there is an exception to this rule stipulated
under the Explanation under Section 30, which clarifies
that the interest of a male Hindu in Mitakshara
coparcenary property can be disposed of by him by Will or
any other testamentary disposition. This means that the
law makers intended that for all intents and purposes, the
interest of a male Hindu in Mitakshara coparcenary was to
be virtually like his self acquired property.
AIR 2019 SC 643
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25. The two situations, that is, before and after the
enactment of the Act, can be contrasted on solely one
ground. Before the commencement of the Act, without the
division of the status in the sense of there being a
disruption in the share of the coparceners, the coparcener
was not allowed to devolve the property by way of a will or
testament. However, after the initiation of the Act and the
inclusion of Section 30 within its provisions, even without
there being a partition by way of a declaration being
communicated by one coparcener to another to bring
about the division, it is open to a Hindu to bequeath his
interest in the joint family. The first appellate Court fell in
error in holding that the testator had no capacity to
dispose of the suit property by way of Will. The
substantial question of law No.(1) framed by this Court is
answered in favour of the appellant.
26. Insofar as second substantial question of law,
Exs.D-1 and D-3 indicate that the defendant is the
grandson of deceased testator and to establish contrary,
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no material is forthcoming. The interference by this Court
is only to the capacity of the testator to dispose of his
interest over the suit property. The findings regarding the
defendant being the grandson is not interfered.
Accordingly, substantial question of law No.(2) is
answered against the appellant and this Court pass the
following:
ORDER
(i) The Regular Second Appeal is hereby
allowed in part.
(ii) The judgment and decree of the first
appellate Court is set aside and the
judgment and decree of the Trial Court
stands confirmed.
Sd/-
JUDGE
Swk
CT:VD
