Case Note & Summary
The appellant/plaintiff, Karthikeyan, filed a suit for partition seeking a ½ share in the suit properties, claiming they were ancestral coparcenary properties of himself, his father Gurusamy (first defendant, since deceased), and his sister Santhakumari (second defendant/respondent). The father had executed two registered Wills on 13.02.2004, bequeathing items 1 and 2 of the suit properties to the plaintiff and items 3 and 4 to the second defendant. The plaintiff contended that since the properties were ancestral, the father had only a limited share and could not defeat the plaintiff's right by birth through a Will. The defendants admitted the properties were ancestral but argued that the Will was valid and the plaintiff, being an attestor, had knowledge and consented. The trial court dismissed the suit as not maintainable, holding that the Will had taken effect after the father's death and the plaintiff could not seek partition. The High Court, in appeal under Section 96 of CPC, examined the legal position regarding ancestral coparcenary property and the right by birth. It held that under Hindu law, a son acquires a right by birth in ancestral coparcenary property, and a coparcener cannot bequeath such property by Will to the exclusion of other coparceners. The Will is void to the extent of the son's share. The Court set aside the trial court's decree and remanded the suit for fresh disposal on merits, directing the trial court to decide the shares of the parties in accordance with law. The appeal was allowed with costs.
Headnote
A) Hindu Law - Partition - Right by Birth - Ancestral Property - Will - The core issue was whether a father could execute a Will over ancestral coparcenary property to exclude his son from his share by birth. The Court held that a coparcener cannot bequeath ancestral property by Will as the son acquires a right by birth, and such a Will is void to the extent of the son's share. The trial court's dismissal of the partition suit as not maintainable was set aside. (Paras 1-19) B) Hindu Succession Act, 1956 - Section 6 - Coparcenary Property - Will - The Court interpreted Section 6 of the Hindu Succession Act, 1956, and held that the son's right by birth in ancestral coparcenary property cannot be defeated by a Will executed by the father. The Will operates only to the extent of the father's share in the coparcenary property. (Paras 10-15) C) Civil Procedure Code, 1908 - Section 96 - Appeal - Maintainability of Suit - The trial court had dismissed the suit as not maintainable on the ground that the father had executed a Will. The High Court held that the suit for partition is maintainable as the Will cannot affect the son's right by birth in ancestral property. The appeal was allowed and the suit was remanded for trial on merits. (Paras 16-19)
Issue of Consideration
Whether a father can execute a Will over ancestral coparcenary property to defeat the son's right by birth, and whether a suit for partition is maintainable when the father has bequeathed the properties by Will.
Final Decision
Appeal allowed. Judgment and decree of trial court dated 12.12.2012 in O.S.No.203 of 2012 set aside. Suit remanded to trial court for fresh disposal on merits in accordance with law. Parties to bear their own costs. Connected miscellaneous petitions closed.
Law Points
- Right by birth in ancestral property
- Coparcenary property cannot be bequeathed by Will
- Hindu Succession Act 1956 Section 6
- Partition suit maintainability
- Will over ancestral property void
