# LAKSHMI CHAND KHAJURIA & ORS v. SMT. ISHROO DEVI

- **Citation:** [1977] 3 S.C.R. 400
- **Court:** Supreme Court of India
- **Decided:** 1977-03-31
- **Case number:** C.A. No. 2330 of 1968
- **Bench:** A. C. Gupta, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakshmi-chand-khajuria-ors-v-smt-ishroo-devi-7139
- **Pages:** 8

## Headnote

Te1tan1e1!tary Will disposing of the ancestral property to a far
relation,
whether valid under s. 27 of the J'!mmu & Kashmir Hindu Succe.rsion
Act,
19~6-Scope o~ s. 27 and explanation thereto-Whether income of a hereditary
priest, !'l hereditary pr~perty-Mitakshara law as
applicable
to
Jammu
&
Ka.shm1r-Though a wife cannot demand a partition she is entitled to receive
a share equal to that of a son and to hold and en;oy that share .separately even
from her husband.
On the. stren~h of a Will dated 25th May 1959, executed in her favour by
one Purohxt 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 dispossed 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 men1bers and as the properties
were joint family properties, they cannot be disposed of by Will. It was further
aUeged that the Will was a forged one and is fictitious.
The trial court, accepting the evidence of PWl, 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 1 (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 1 (a) of the property but modified the order as
regards item 1 (b) and 2 by allowing the claim of the respondent to the extent
of t share since under s. 27 of the Jammu & Kashmir Hindu Succession Act
1'1ani Ram was entitled to dispose of his interest in the joint family property by
Will.
Jn 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 \Vhich caII)e
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
th~ 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 apnlicable 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 re.spec! of items l(b) and 2 of the schedule property as I/3rd. in favour of appellant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd 1n favour of respondent as entitled by the Will.
The Court,
HELD: (!) 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
•
L. c. KHAJURIA v. ISHROO DEVI (Kaifasam, J.)
40 I
on the day on which it purports to be is without any 15ubstance and against the
A
evidence on record. [403 H, 404 A]
(2) The contention that the Will is an unnatural one is also without substance. The

## Text

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400
LAKSHMI CHAND KHAJURIA & ORS.
v.
SMT. ISHROO DEVI
March 31, 1977
[A. C. GUPTA AND P. S. KAILASAM, JJ.]
Te1tan1e1!tary Will disposing of the ancestral property to a far
relation,
whether valid under s. 27 of the J'!mmu & Kashmir Hindu Succe.rsion
Act,
19~6-Scope o~ s. 27 and explanation thereto-Whether income of a hereditary
priest, !'l hereditary pr~perty-Mitakshara law as
applicable
to
Jammu
&
Ka.shm1r-Though a wife cannot demand a partition she is entitled to receive
a share equal to that of a son and to hold and en;oy that share .separately even
from her husband.
On the. stren~h of a Will dated 25th May 1959, executed in her favour by
one Purohxt 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 dispossed 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 men1bers and as the properties
were joint family properties, they cannot be disposed of by Will. It was further
aUeged that the Will was a forged one and is fictitious.
The trial court, accepting the evidence of PWl, 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 1 (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 1 (a) of the property but modified the order as
regards item 1 (b) and 2 by allowing the claim of the respondent to the extent
of t share since under s. 27 of the Jammu & Kashmir Hindu Succession Act
1'1ani Ram was entitled to dispose of his interest in the joint family property by
Will.
Jn 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 \Vhich caII)e
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
th~ 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 apnlicable 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 re.spec! of items l(b) and 2 of the schedule property as I/3rd. in favour of appellant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd 1n favour of respondent as entitled by the Will.
The Court,
HELD: (!) 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
•
L. c. KHAJURIA v. ISHROO DEVI (Kaifasam, J.)
40 I
on the day on which it purports to be is without any 15ubstance and against the
A
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 rus iispossessing of the property by Will. [404 B, DJ
(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,
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there was no challenge to the gist of the Will noted by PW2, the scribe, in one
of his tegularly 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 bis advising in the preparation of the Will having seen the execu·
tant sign the Will in his presence be not accepted.
[405 A-Cl
( 4) The income from the practice of a hereditary profession will not be a
joint family property. Item I (a) of the Property is the self-acquisition of Mani
C
Ram and the decree of the appe1late court so far as item No. ·1 (a) is concerned
must be confirmed.
[406 A, DJ
Hanso Pathak v. Harmandil Pathak and Anr., AIR 1934 Allahabad 851,
approved.
Chalab!iai Gaurishankat v. Hargowan Rantji & Ors. I.L.R.
36 Born. 94,
over· ruled.
(5) Under the Mitaksbara Jaw 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 iru;tant 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 be
claimed
1 /3rd share conceding that his father and mother are entitled to the other 2/jrd
share.
As no decision in respect of the interest of the male Hindu in Jammn
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& Kashmir was cited the question is remitted to the High Court for decision as
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to what is the extent of the interest as regards items 1 (b) & 2 of the
plaint
Schedule properties. [406 E-F, 407 B-E]
Dular Koeri v. Dwarkanatl1 Misser ILR 32 Cal. 234; Sumrun Thakoor v.
Chunder Mun Misser & Ors., ILR 8 Cal. 17; Hosbanna
D·evanna
Naik v.
Devanna Sannappa Naik and Ors. JLR 48 Born. 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
F
is capable of being disposed of by him in law and also explanation to that sec·
tion which makes it clear that the interest of a male Hindu in
a Mitakshara
coparcenary property be deemed to be property capable of being di5posed of l:>y
him within the meaning of the sub-section, in the instant case Mani Ram can
dispose of his share μoder a Will. Admittedly the respondent, will be entitled
to 1 /3rd share in respect of item 1 (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
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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 decree accordingly.]
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
H
1966.)
G. B. Pai, S. K. Bagga and Mrs. S. Bagga, for the appellants.
402
SUPREME COURT REPORTS
[1977] 3 s.c.R.
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0. P. Malhotra, K. J. John and Shri Narain for the respondent.
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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 Conrt 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 resoondent claimed to be the sole
owner of the properties.
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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 tjmt 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 is fictitions.
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 sigF
nature 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
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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
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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
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L. c. KHAJURIA v. ISHROO DEVI (Kailasam, J.)
403
lot of money to Purohit Mani Ram as present.
The witness also
A
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 first appellant.
The trial court accepted the evidence of P. W. 1, the advocate,
and P.\V. 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 (b) and 2.
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
1 (a) of the property is self-acquired property of Mani Ram while
items 1 (b) and 2 are the ancestral properties.
While confirming
the decree of the trial court as regards item 1 (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 aU 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 wonld 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.
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SUPREME COURT REPORTS
( 1977] 3 S.C.R.
A in one of his regularly keet 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
B 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
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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 execntion of the will is understandable because Mani
D 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
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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
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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 comG
ment 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.
Jn this connection a discrepancy in the evidence of the scribe, P.W. 2,
as to where actually the date was moted whether it was in his house
or that of the lawyer's was made much of.
We do not think that
this discrcpncy 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
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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 publid register
and on examination we find there is nothing suspicious about it.
It
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1. c. KHAJURIA v. ISHROO DEVI (Kai/asam, J.)
405
may also be noted that the first appellant, the son of Mani Ram, has
not stated that the signaure found in the will is not that of his father.
Apart from all these circumstances we find the evidence of P.W. l
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 bas 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 selfacquired 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 jQint family property.
The evidence
is
that Mani 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 Mabaraja and the Maharaja
used to give presents to him.
It is in e;idence that the Mabaraja
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. Hargowa11 Ramjl & Others('),
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
ns 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 eiher 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
I. I.LR. 36 Born. 94.
2. A.LR. 1934. All. 351.
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406
SUPREME COURT REPORTS
[1977] 3 S.C.R.
Ghelabhai Gavrishankar v. Hargowan Ramji & 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 self-acquisition.
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 anything 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, bu if a parti.tion 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 gradmother 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 sbe has no ~pre-exis
ting right in the estate except a right of maintenance." Reference
L. c. KHAJURIA v. ISHROO DEVI (Kai/asam, J.)
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 life.-
time 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
to have the share separately allotted, and to enjoy that share when so
allotted.
In Sumrun Thakoor v. Chunder Mun Misser & Others, (')
it was held that under the Mitakshara law where a paration takes place
between a father and a son, the wife of the lather is entitled to a share.
In Hosbanna Devanna Naik v. Devenna Sannappa Naik and Others('),
it was held that a step-mother is entitled to a share on partition
beween 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, tl1ough 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.-ln 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, of
first appellant was that the joint family consisted of himself and his
father alone, though in the partition suit filed by him he claimed one.-
third share conceding that his father and mother are entitled to the
other two-third share.
Though the question was not rnised 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 I (a) one-third share in items 1 (b) and 2 of
the plaint schudule 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.
(I) I.L.R. 31 Cal. 234.
(2) I.L.R. 8 Cal. 17.
(3) I.L.R. 48 Bom. 468.
(4) I.L.R. 52 All. 596.
Decree granted.
A
B
c
D
E
F
G