Lakshmi Chand Khajuria & Ors Vs.
Smt. Ishroo Devi  INSC 100 (31 March 1977)
CITATION: 1977 AIR 1694 1977 SCR (3) 400 1977
SCC (2) 501
Testamentary Will disposing of the ancestral
property to a far relation, whether valid under s. 27 of the Jammu &
Kashmir Hindu Succession Act, 1956--Scope of s. 27 and explanation
thereto--Whether income of a hereditary priest, a hereditary
Property--Mitakshara law as applicable to Jammu & Kashmir--Though a wife
cannot demand a partition she is entitled to receive a share equal to that of a
son and to hold and enjoy that share separately even from her husband.
On the strength of a Will dated 25th May
1959, executed in her favour by one Purohit Mani Ram, the respondent Smt.
Ishroo Devi filed a suit for recovery of the
schedule property in the plaint. It was alleged in the plaint that the
appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram)
after the death of Purohit Mani Ram wrongfully disposed her after getting the
name of appellant No. 1 mutated in the records and that the three items of the
schedule property were the separate properties of the testator and that he was
entitled to dispose them under the Will.
The appellants averred in their written
statement that the properties belonged to the joint family of which the first
appellant and his father Purohit Mani Ram were members and as the properties
were joint family properties, they cannot he disposed of by Will. It was further
alleged that the Will was a forged one and is fictitious. The trial court,
accepting the evidence of PW1, an advocate, who advised in the preparation of
the Will and also an attesting witness, PW2 the scribe and PW3 who deposed the
fact that the properties were self-acquired ones of late Purohit Mani Ram,
decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed
the claim as regards items l(b) and 2 holding that they were ancestral ones. On
appeal, the High Court accepted the findings of the trial court and confirmed
the decree as regards item l(a) of the property but modified the order as
regards item l(b) and 2 by allowing the claim of the respondent to the extent
of 1/2 share since under s. 27 of the Jammu & Kashmir Hindu Succession Act
Mani Ram was entitled to dispose of his interest in the joint family property
In appeal by certificate to this Court, the
appellant contended: (i) The Will was not a valid one for the reasons, namely,
(a) it was ante dated in order to escape the prohibition against alienation
introduced by Ordinance which came into force in July 1959; (b) the signature
on the Will was forged; (c) the Will is a most unnatural one as it had not
provided for the son or the wife or any near relative but has provided to a
distant relative and (d) in a suit for partition filed by the son against Mani
Ram, the latter gave an undertaking in the court not to alienate his properties
which would improbalise the execution of the Will; (ii) The hereditary
profession of Mani Ram being that of a priest whatever he earned while
practising that profession and all his acquisitions should be held to be joint
family property. (iii) In view of the Mitakshara law applicable to the estate
when partition of the joint family property takes place during the father's
life time at the instance of the son, the mother also has a share equal to him.
The Court confirmed the decree in respect of
item 1 (a) of the property in favour of the respondent, modified the decretal
order of the High Court in respect of items 1(b) and 2 of the schedule property
as 1/3rd in favour of appellant No. 1, 1/3rd in favour of appellant No. 2 and
1/3rd in favour of respondent as entitled by the Will. The Court,
HELD: (1) The plea that the Will was executed
after July 1959 when there was a prohibition against the alienation and that it
was pre-dated and not executed 401 on the day on which it purports to be is
without any substance and against the evidence on record. [403 H, 404 A] (2)
The contention that the Will is an unnatural one is also without substance. The
non-disclosure of the execution of the Will is understandable because Mani Ram
did not want anyone, particularly his son, to know about his possessing of the
property by Will. [404 B, D] (3) The findings of the two lower courts that the
Will is a genuine one and was executed by Mani Ram by his own free will cannot
be assailed. In fact, there was no challenge to the gist of the Will noted by
PW2, the scribe, in one of his regularly kept record; there was no denial by
the first appellant, the son of Mani Ram that the signature found in the Will
was not that of his father and there is no reason why the cogent evidence of PW
1, a respectable advocate who spoke of his advising in the preparation of the
Will having seen the executant sign the Will in his presence be not accepted.
[405 A-C] (4) The income from the practice of a hereditary profession will not
be a joint family property. Item 1 (a) of the Property is the self-acquisition
of Mani Ram and the decree of the appellate court so far as item No. 1 (a) is
concerned must be confirmed. [406 A, D] Hanso Pathak v. Harmandil Pathak and
Anr., AIR 1934 Allahabad 851, approved.
Chalabhai Gaurishankar v. Hargowan Ramji
& Ors. I.L.R.
36 Born. 94, over-ruled.
(5) Under the Mitakshara law excepting
Madras, in the other states referred to in the decisions cited when there is a
partition between the son and his father the mother is entitled to a share
equal to that of the son. In the instant case the case of the first appellant
was that the joint family consisted of himself and his father alone, though in
the earlier partition suit filed by him he claimed 1/3rd share conceding that
his father and mother are entitled to the other 2/3rd share. As no decision in
respect of the interest of the male Hindu in Jammu & Kashmir was cited the
question is remitted to the High Court for decision as to what is the extent of
the interest as regards items I(b) & 2 of the plaint Schedule properties.
[406 E-F, 407 B-E] Dular Koeri v. Dwarkanath Misser ILR 32 Cal. 234; Sumrun
Thakoor v. Chunder Mun Misser & Ors., ILR 8 Cal. 17; Hosbanna Devanna Naik
v. Devanna Sannappa Naik and Ors. ILR 48 Bom. 468 and Pratap Singh v. Dalip
Singh ILR 52 All. 596, approved.
(6) In view of s. 27 of the Jammu &
Kashmir Hindu Succession Act, 1956 which provides that any Hindu male may
dispose of by Will any property which capable of being disposed of by him in
law and also explanation to that section which makes it clear that the interest
of a male Hindu in a Mitakahara coparcenary property be deemed to be property
capable of being disposed of by him within the meaning of the subsection, in
the instant case Mani Ram can dispose of his share under a Will. Admittedly the
respondent, will be entitled to 1/3rd share in respect of item l(b) and 2 of
the plaint schedule in addition to the decree in her favour in respect of item
1 (a). [406 D-E, 407 E-F] [The Court remitted the case back for the
determination of the interest which Mani Ram had in the joint family property
at the time of his death which he could dispose of by his Will and grant a
CIVIL APPELLATE JURISDICTION: C.A. No. 2330
of 1968 (From the Judgment and Order dated the 12th March, 1968 of the Jammu
& Kashmir High Court in Civil First Appeal No. 9 of 1966.) G.B. Pai, S.K.
Bagga and Mrs. S. Bagga; for the appellants.
402 O. P. Malhotra, K.J. John and Shri Narain
for the respondent.
The Judgment of the Court was delivered by
KAILASAM, J.---This appeal is preferred by the defendant in the suit on a
certificate of fitness granted by the High Court of Jammu & Kashmir under Article
133 of the Constitution.
The respondent, Ishroo Devi, filed a suit for
a decree for possession of all the three items of property mentioned in the
plaint and for future mesne profits. It was alleged that the three items of
property mentioned in the'plaint were the self-acquired properties of one
Purohit Mani Ram. He executed a will on 25th May, 1959, out of his own free
will in favour of the respondent. The original will was attached to the plaint.
Purohit Mani Ram died on 24th March, 1960, at Jammu and the respondent claimed
to be the sole owner of the properties.
The first appellant is the son, the second
appellant is the wife and the third appellant is the grand-daughter of Purohit
Mani Ram. In the plaint it is alleged that the first appellant after the death
of Purohit Mani Ram got rent deed executed in his favour and also recorded
mutations in his name and dispossessed the respondent. The respondent also
claimed that the three items of property were the separate properties of
Purohit Mani Ram and that he was entitled to dispose of them under a will. In
the written statement the appellants averred that the properties belonged to
the joint family of which the first appellant and his father, Purohit Mani Ram,
were members and as the properties were joint family properties, they cannot be
disposed of by will. It was further alleged that the will was a forged one and
The respondent examined Janak Lal Sehgal, an
advocate of the Supreme Court, and the scribe of the will one Bodh Raj. P.W. 1,
the advocate, stated that Mani Ram executed the will on 25th May, 1959, in
favour of the respondent.
He saw Mani Ram affix his signature on the
will the words (in vernacular) under which Janak Lal had signed as witness,
were under the words (in vernacular) where Purohit Mani Ram had signed. Janak
Lal had given the date with his own hand where he had signed as witness. The
witness also testified that the mental condition of Purohit Mani Ram was good
and he executed the will of his own free will and no pressure or fraud was
played on him. P.W. 2 Bodh Raj, is the scribe of the will. He stated that he
wrote the will at the instance of Mani Ram and after reading the. will and
explaining it to the testator, the testator affixed his signature and admitted
it to be correct. According to the witness the will was executed on 25th May,
1959, and on the same date the signature of the testator and those of the
witnesses were affixed. At the time of the examination the witness stated that
the physical and the mental condition of the testator was good and he read out
the will at the house of Janak Lal Sehgal and obtained the signatures of Mani
Ram and that of P.W. 1, the advocate. P.W. 3, Lodra Mani, stated that Mani Ram
was the A.D.C. of Maharaja Pratap Singh and was in service for Maharaja's Puja,
and that the Maharaja was giving 403 lot of money to Purohit Mani Ram as
present. The witness also stated that item 1 of the properties was constructed
by Mani Ram with his own income.
On behalf of the appellants a handwriting
expert, Philip Hardless, and three witnesses were examined in addition to the
The trial court accepted the evidence of P.W.
1, the advocate, and P.W. 2, the scribe and held that the will was proved.
Holding that items 1 (b) and 2 of the plaint schedule properties were ancestral
properties found that Mani Ram had no authority to dispose of these two items
of properties by will. Therefore while decreeing the suit as regards item No.
(1)(a) of the plaint schedule properties dismissed the claim as regards items 1
On appeal by the appellants a Bench of the
Jammu & Kashmir High Court agreeing with the finding of the trial court and
accepting the testimony of P.W. 1, the advocate, and P.W. 2, the scribe of the
will, found it to be genuine and executed by Mani Ram. The appellate court also
confirmed the finding of the trial court that the item l(a) of the property is
self-acquired property of Mani Ram while items l(b) and 2 are the ancestral
properties. While confirming the decree of the trial court as regards item l(a)
it allowed the respondent's claim regarding items 1 (b) and 2 to the extent of
one.half share holding that under section 27 of the Jammu & Kashmir Hindu
Succession Act, Mani Ram was entitled to dispose of his interest in the joint
family property by will. Aggrieved by the decision of the Bench of the Jammu
& Kashmir High Court the appellants have preferred this appeal.
Though the Concurrent finding of both the
courts below is that the will was a valid one and was executed by Mani Ram of
his own free will and when possessed of all his faculties Mr. Pai, the Counsel
for the appellants, strenously contended that the finding should not be
accepted. He submitted that a look at the signature of Mani Ram in the will and
his signatures in admitted documents would prove that the signature in the will
is not that of Mani Ram. He next contended that the will was antedated in order
to escape the prohibition against alienation introduced by an Ordinance which
came into force in July, 1959, Thirdly, he submitted that the will is a most
unnatural one as it had not provided for the son, or the wife' or near
relatives but had given the entire property to a distant relation.
Fourthly, he submitted that in a suit which
was filed by the son for partition against Mani Ram, the latter gave an
undertaking not to alienate his properties and taking into account the
proceedings it is most unlikely that he would have executed the will at time
which it purports to be as he would have mentioned about his execution of the
will in the proceedings. We have examined all these points very carefully and
we find that there is no substance in any one of them.
The plea that the will was executed after
July, 1959, when there was a prohibition against the alienation and it was
pre-dated is without any substance. The will is dated 25th May, 1959, and a
contemporaneous record of the substance of the will is made by P.W. 2 404 in
one of his regularly kept books. We see no need for predating of the will and
the basis of the argument that the will was not executed on the day on which it
purports to be is without substance.
Regarding the next contention that the will
is an unnatural one it has to be seen that the son had filed a suit for
partition and in the written statement the father had gone so far as to disown
his paternity. It is common ground that the relationship between Mani Ram and
his son was greatly strained and it is not surprising that he has disowned him,
in unmistakable terms in the will. The submission that the will would not have
been executed in mid 1959 is based on the plea that he had made a statement in
December, 1959, that he had not alienated any property. The son in the suit
prayed for an order against Mani Ram restraining him from alienating the joint
family properties except with the permission of the court. A consent order was
passed directing Mani Ram not to alienate joint family properties.
There was no need for Mani Ram to mention
about the will for it is not an alienation and in any event the will according
to Mani Ram did not relate to joint family properties. The nondisclosure of the
execution of the will is understandable because Mani Ram did not want anyone
particularly his son to know about his dispossessing of the property by will.
This ground also is without substance.
The main ground of attack was that on the
face of it, it is apparent that the signature is not that of Mani Ram.
The appellate court has found that Mani Ram
was an illiterate person and that he had no standard signature. His signature
is not well formed, but his signature in the Vakalatnama and in the will bear
striking, resemblance as found by the Bench of the High Court. Though there are
certain dissimilarities between the signature in the will and in those of
admitted documents we are unable to say that the signature in the will is not
that of Mani Ram. In this connection we have examined the evidence of the handwriting
expert who gave evidence on behalf of the appellants. We feel that his
qualifications are not such as to accept him as a handwriting expert. He has
hardly done any work as an expert after 1950 and we find in his deposition that
he has exceeded the limits as an expert and supported the appellants in matters
which were not within his province.
We have no hesitation in agreeing with the
High Court and rejecting his testimony. A comment was made on the fact that the
date and endorsement in the will is in a different ink and probably was not
written at the same time. In this connection a discrepancy in the evidence of
the scribe, P.W.
2, as to where actually the date was noted
whether it was in his house or that of the lawyer's was made much of. We do not
think that this discrepancy would affect the. truth of the matter. It is seen
that P.W. 2 in his record entered summary of the will on the same day. It is
significant that in the cross examination no question was asked challenging the
genuineness. The entry with regard to the will was made by P.W. 2 in the
Register which is a public register and on examination we find there is nothing
suspicious about it. It 405 may also be noted that the first appellant, the son
of Mani Ram, has not stated that the signature found in the will is not that of
his father. Apart from all these circumstances we find the evidence of P.W. 1 a
respectable advocate, who speaks of his advising in the preparation of the
will, his seeing the executant sign the will in his presence can be safely
accepted. Excepting that a statement which he made as a witness was rebutted by
a District Judge nothing else has been suggested against him. We have no
hesitation in accepting the evidence of these two witnesses, as the two lower
courts have done. There is no ground at all for rejecting the evidence of P.W.
2, the scribe, whose evidence has been accepted by both the courts. The scribe
had immediately noted the gist of the will in one of his regularly kept records
which has not been challenged. We have, therefore, no hesitation in accepting
the finding of the two lower courts that the will is a genuine one. and was
executed by Mani Ram of his own free will.
Mr. Pai, counsel for the appellants,
submitted that the High Court was in error in holding that item 1 (a) of the
properties is the self acquired property of Mani Ram.
According to the learned counsel the
hereditary profession of Mani Ram was that of a priest and whatever he earned
while practising that profession and all his acquisisions should be held to be
joint family property. The evidence is that Main Ram was not only a priest but
worked in three posts. He was a priest and at the same time was in the private
office of the Maharaja and was also an A.D.C. of the Maharaja and the Maharaja
used to give presents to him. It is in evidence that the Maharaja had given.
the land and himself constructed the Kothi before giving it to Mani Ram. In
support of the contention that the income derived from practice of a hereditary
profession should be construed as ancestral property, the learned counsel referred
us to two decisions in Ghelabhai Gavrishankar v.
Hargowan Ramit & Others(1), and Hanso
Pathak v. Harmandil Pathak and Another.(2). Neither of the cases support the
contention of the learned counsel. In the first case the question that arose
for consideration was about the nature of the office of a hereditary priest. It
was held that the hereditary right of the priest is immovable property.
Chandavarkar J. pointed out that hereditary
priesthood vested in particular families is regarded as vritti or immoveable
property but we do not find any support for the contention that the income of
the hereditary priest will also be hereditary property. In fact in Hanso Pathak
v. Harmandil Pathak and Anr. (supra) it has been made clear that in the United
Provinces the income received as amounts paid by Yajamans at their discretion
either by way of charity or by way of remuneration for personal services
rendered by the priest, cannot be claimed as of right, and cannot amount to a
family property. Chief Justice Sulaiman expressed his view that the income
received as amounts paid by people at their discretion either by way of charity
or by way of remuneration for personal services rendered cannot be claimed as
of right amount to family property. Mukerji, J.in a concurring judgment after
distinguishing 1. I.L.R. 36 Bom. 94.
2. A.I.R. 1934. All. 351.
406 Ghelabhai Gavrishankar v. Hargowan RamIi
& Others (supra) held that the income is "Vidyadhana" which is
the same thing as "gains of science" or what has been acquired by
exercise of learning cannot be divided by partition. We agree with the view
thus expressed by the Allahabad High Court and find that the income from the
practice of a hereditary profession will not be joint family property.
Mani Ram was getting Rs. 100 as A.D.C. and
was in addition drawing a salary of Rs. 140 a month as an employee in the
private Department of the Maharaja. Thus he had ample means to acquire item 1
(a) of the property from his selfacquisition. On the other hand there is hardly
any evidence to prove that he had any ancestral nucleus. It is stated that the
family had some jewels and cash which were kept in the safe of the Maharaja and
there is nothing to indicate that any thing out of the cash or jewellery was
used in purchasing item 1 (a) of the property. I was also contended that the
property that belonged to Mani Ram was only the house and not the land attached
to the house.
We have no hesitation in rejecting this desperate
plea. The result is we confirm the findings of the courts below that item 1 (a)
of the property is the self-acquisition and the decree of the appellate court
so far as item 1 (a) is concerned is confirmed.
Regarding items 1 (b) and 2 the appellate
court has found that they are joint family properties. It is admitted by both
the parties that under section 27 of the Jammu & Kashmir Hindu Succession
Act, 1956, the interest of the coparacener in a joint Hindu family property can
be disposed of by will. Section 27 provides that any Hindu may dispose of by
will any property which is capable of being disposed by him in law. The Explanation
to the section makes it clear that the interest of a male Hindu in a Mitakshara
coparacenary property be deemed to be property capable of being disposed of by
him within the meaning of the sub-section. As the joint family consisted of
Mani Ram and his son, the first appellant, the appellate court gave a decree in
favour of the respondent so far as one-half share of items 1 (b) and 2 of the
properties are concerned. The counsel for the appellant submitted that the
appellate court was in error in determining the interest of the testator as
one-half share in the two items of joint family property.
He submitted that according to Mitakshara law
except in Madras when there is a partition between the son and his father,
mother is entitled to a share equal to that of the son. In support of his
contention the learned counsel referred to Mulla's Hindu Law, 14th Ed., p.403,
paragraph 315, where it is stated that while the wife cannot demand a
partition, but if a partition does take place between her husband and his sons,
she is entitled to receive a share equal to that of a son and to hold and enjoy
that share separately even from her husband. To the same effect is the passage
in Mayne's Hindu Law, 11th Ed., p. 534, paragraph 434, where it is stated
"According to the Mitakshara law, the mother or the. grandmother is
entitled to a share when sons or grandsons divide the family estate between
themselves, but she cannot be recognised as the owner of such share until the
division is actually made, as she has no pre-existing right in the estate
except a right of maintenance." Reference 407 was also made to the
decisions reported in Dular Koeri v. Dwarkanath Misser(1), where it was held
that under the Mitakshara law when partition of joint family property takes
place during the father's lifetime at the,instance of the son, the mother of
the son is entitled to a share equal to that of her husband and her son and she
is entitled o have the share separately allotted and to enjoy that share when
so allotted. In Sumrun Thakoor v. Chunder Mun Misser & Others ,(2) it was
held that under the Mitakshara law where a paration takes place between a
father and a son, the wife of the father is entitled to a share. In Hosbanna
Devanna Naik v. Devenna Sannappa Naik and Others(3), it was held that a
step-mother is entitled to a share on partition between the father and his
sons. In Partap Singh v. Dalip Singh, (4) in a partition between a Hindu father
and his son it was held that the wife of the .father has a right to a share
equal to that of the father or the sons. In Madras, though Mitakshara law is
applicable it has been held that on a partition between the sons and the
father, the mother is not entitled to any share. (Mulla's Hindu Law, 14th Ed.,
p.403--"Madras State.--In Southern India the practice of allotting shares upon
partition to females has long since become obsolete."). So far as Jammu
& Kashmir is concerned there is no decisions regarding the interest of a
male Hindu in property. This question as. to what is the interest of Mani Ram
in the joint family property at the time of his death was not, raised before
the High Court. In fact, the case first appellant was that the joint family
consisted of himself and his father alone, though in the partition suit filed
by him he claimed onethird share conceding that his father and mother are
entitled to the other two-third share. Though the question was not raised in
any of the courts below, we feel that being a pure question of law, interests
of justice require that the question be decided. The High Court will decide the
interest which Mani Ram had in the joint family property at the time of his
death which he could dispose of by his will. In remitting this question to the
High Court, we decree he suit of the respondent in respect of item 1 (a)
one-third share in items 1 (b) and 2 of the plaint schedule properties as to
that extent her share is not questioned. The question as to what is the extent
of the interest as regards items 1 (b) and 2 of the plaint schedule properties
which can be bequeathed by Mani Ram in favour of the respondent is remitted to
the High Court for its determination. If the High Court finds that the
respondent is entitled to one-third share it will decide accordingly. If it
comes to the conclusion that Mani Ram was entitled to bequeath a greater share
it will grant a decree accordingly. There will be no order as to costs--appeal
disposed of accordingly.
S.R. Decree granted.
(1) I.L.R. 32 Cal. 234.
(2)I.L.R. 8 Cal. 17.
(3) I.L.R. 48 Bom. 468.
(4)I.L.R. 52 All. 596.