Case Note & Summary
The appellant, M. Shobha, filed a Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 30.07.2012 passed by the Principal Senior Civil Judge and CJM, Mysore, in O.S.No.31/2003. The suit was filed by Shobha (plaintiff) against her brother M. Dinesh (first defendant) and mother Manorama (second defendant) seeking partition and separate possession of her share in the suit schedule properties, which were claimed to be the self-acquired properties of her father L. Mahadev, who died on 02.08.2000. The plaintiff contended that after her father's death, the defendants were attempting to alienate the properties and change khatha in their names, denying her share. The defendants opposed the suit, claiming that the properties were ancestral and that L. Mahadev had executed a Will bequeathing the properties to the son, Dinesh. The Trial Court partly decreed the suit, granting the plaintiff a share in item Nos.4 to 6 of the suit schedule properties but rejecting her claim in respect of item Nos.1 to 3, holding that those items were ancestral properties in which the plaintiff had no right. Aggrieved, the plaintiff filed the present appeal. The High Court framed the following issues: (1) Whether the suit schedule properties are self-acquired properties of L. Mahadev? (2) Whether the Will set up by the defendants is valid and genuine? (3) Whether the plaintiff is entitled to a share in all the suit properties? The appellant argued that the Trial Court erred in holding that item Nos.1 to 3 were ancestral properties, as there was no evidence of coparcenary or joint family nucleus. The respondents contended that the properties were ancestral and that the Will was validly executed. The High Court analyzed the evidence and found that the defendants failed to prove that the properties were ancestral; the documents showed that L. Mahadev had acquired the properties through sale deeds and other transactions in his individual name. The court also held that the Will set up by the defendants was not proved as per Section 68 of the Indian Evidence Act, 1872, as the attesting witnesses were not examined and there were suspicious circumstances. Consequently, the court held that the properties devolved by intestate succession under Section 8 of the Hindu Succession Act, 1956, and the plaintiff, being a Class I heir, was entitled to a share in all the suit schedule properties. The appeal was allowed, the judgment of the Trial Court was set aside, and the suit was decreed in full, granting the plaintiff a 1/3rd share in all the suit schedule properties. The court directed that a preliminary decree be drawn up accordingly.
Headnote
A) Hindu Succession Act - Self-Acquired Property - Daughter's Share - Section 8, Hindu Succession Act, 1956 - The court considered whether properties acquired by a father through his own efforts are self-acquired and devolve equally upon his legal heirs under intestate succession. Held that the plaintiff daughter is entitled to a share in the self-acquired properties of her father, along with the son and widow, as per Section 8 of the Hindu Succession Act, 1956 (Paras 10-15). B) Hindu Succession Act - Will - Validity - Section 30, Hindu Succession Act, 1956 - The court examined the validity of an alleged Will executed by L. Mahadev bequeathing properties to the son. Held that the Will was not proved as per law, as the attesting witnesses were not examined and the execution was shrouded in suspicion, and thus the properties devolved by intestate succession (Paras 16-20). C) Hindu Succession Act - Coparcenary Property - Burden of Proof - Section 6, Hindu Succession Act, 1956 - The court analyzed whether the suit properties were ancestral or self-acquired. Held that the burden to prove that properties are ancestral lies on the person asserting it, and in the absence of evidence, the properties are presumed to be self-acquired (Paras 21-25).
Issue of Consideration
Whether the suit schedule properties are self-acquired properties of L. Mahadev and whether the plaintiff daughter is entitled to a share therein along with the defendants?
Final Decision
The appeal is allowed. The judgment and decree dated 30.07.2012 passed by the Principal Senior Civil Judge and CJM, Mysore, in O.S.No.31/2003 is set aside. The suit is decreed in full, granting the plaintiff a 1/3rd share in all the suit schedule properties. A preliminary decree shall be drawn up accordingly.
Law Points
- Hindu Succession Act
- 1956
- Section 6
- Section 8
- Section 15
- Partition
- Self-acquired property
- Coparcenary property
- Burden of proof
- Will
- Testamentary succession
- Intestate succession
- Legal heir
- Daughter's right
- Son's right
- Widow's right
