# PHOOLCHAND AND ANR v. GOPAL LAL

- **Citation:** [1967] 3 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 1967-03-10
- **Case number:** Civil Regular First Appeal No. 118 of 1961
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/phoolchand-and-anr-v-gopal-lal-4191
- **Pages:** 10

## Headnote

c
D
E
F
G
H
Code of Civil Procedure (Act 5 of 1908), 0.41, r. I-Preliminary
decree in partition
suit-Death
of
some
parties-Redistribution of
shares-No fresh preliminary decree drawn up-Appeal without copy
of preliminary decree-If maintainable.
Practice-If court could pass more than one preliminary decree in a
partition suit.
Hindu law-Agarwala Jains-Share given to
mother
in partition
suit-Right, whether absolute or limited.
Will--Circumstances showing genuineness of.
The appellant filed a suit for partition
against his father, mother,
brother (the ·respondent) and the. adopted son of a predeceased brother.
The parties were Agarwala Jains. A
pret:minary
decree was passed
specifying the shares of the parties, but before the final decree could be
pa'Ssed, the father died~, and soon afte·r, the mother also died.
The res~
pondent claimed the father's share under a will executed by the father
in his favour, and the appellant
claimed the
mo•her's share under a
sale deed executed by her in his favour.
The appellant challenged
the
genuineness of the will, and the respondent contended that as she was
only a limited owner, the mother was not entitled to sell her share. The
trial Court held in favour of'the appellant on both contentions, and passed
an order redistributing the shares, but did not prepare a fresh preliminary decree. The respondent appealed to the High Court but was not in
a position to file a copy of the decree with the appeal. Even when time
was granted by the High Court and the respondent moved the trial Court
for framing a formal decree, the trial Court refmed to do •o. The High
Court disposed of the appeal boldin~ that (i) the appeal was maintain·
able without a copy of the decree; (1i) the varying of the share., by the
trial Court, in the preliminary decree already passed by it was " decree
in the
ci'rcumstances
of the present case, and the respondent could
appeal from it; (iii) the mother was not entitled to sell her share and so
the •ale in favour of the
appellant was
invalid; and
(iv) the will in
favour of the respondent was genuine.
In appeal to this Court
HELD: (i) Normally a copy of the decree
must
accompany
~e
memorandum of appeal.
But the defect in the filing of the appeal
m
the present case was not due to any fault of the respondent and it could
not be held that he •hould be deprived of his righ• of appeal, simply became the trial Court did not do its duty. (157 D, HJ
!agat Dhish Bhargava v. Jawahar Lal Bhargava, (1961] 2 S.C.R. 918,
referred to.
(ii) So far as partition suits arc concerned, if an event happens after
the preliminary decree and before a final deccee is passed, and a change
in the shares is necessitated,· the trial court can and should pass a second
L 4 Sup. C.1./67-11
154
SUPREME COURT REPORTS
[1967] 3~.c:R.
preliminary decree correcting the shares; and, if there is a dispute
in
that behalf the order of the court deciding that dispute and making a
variation in the shares specified in the preliminary decree already passed
is a decree in itself which would be hable to appeal. A partition suit
is not finally disposed of till the final decree is passed and the court has
jurisdiction to decide all disputes that may arise due to the death of
some of the pa·rties after the preliminary decree and before the passing
· of the final decree. There is nothing in the Civil Procedure Code which
prohibits the passing of more than one preliminary decree in a partition
suit, if circumstances justify it and if it is convenient and advantageous
to do so. [158 E, F, H; 159 A, D-E]
Kasi v. Ramanathan
Chettiar,
[1947] 2 M.L.J. 523,
Raja Peary
Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram '"· Hira-
.bai, A.I.R. 1957 Born. 59, approved.
Bharat Indu v. Yakub Hasan, (1913) I.LR. 35 All. 159, Kedernath
v. Pattu Lal, I.L.R. [1954] Luck, 557 and loti Parshad v. Ganeshi Lal,
AI.R. 1961 Punj. 120, overruled.
(iii) In the absence of a custom to the contrary a Jain widow takes a
limited interest in her husband's esta

## Text

A
PHOOLCHAND AND ANR.
v.
GOPAL LAL
March 10, 1967
B
(K. N. WANCHOO, R. S. BACHAWAT AND V. RAMASWAMI, JJ.]
c
D
E
F
G
H
Code of Civil Procedure (Act 5 of 1908), 0.41, r. I-Preliminary
decree in partition
suit-Death
of
some
parties-Redistribution of
shares-No fresh preliminary decree drawn up-Appeal without copy
of preliminary decree-If maintainable.
Practice-If court could pass more than one preliminary decree in a
partition suit.
Hindu law-Agarwala Jains-Share given to
mother
in partition
suit-Right, whether absolute or limited.
Will--Circumstances showing genuineness of.
The appellant filed a suit for partition
against his father, mother,
brother (the ·respondent) and the. adopted son of a predeceased brother.
The parties were Agarwala Jains. A
pret:minary
decree was passed
specifying the shares of the parties, but before the final decree could be
pa'Ssed, the father died~, and soon afte·r, the mother also died.
The res~
pondent claimed the father's share under a will executed by the father
in his favour, and the appellant
claimed the
mo•her's share under a
sale deed executed by her in his favour.
The appellant challenged
the
genuineness of the will, and the respondent contended that as she was
only a limited owner, the mother was not entitled to sell her share. The
trial Court held in favour of'the appellant on both contentions, and passed
an order redistributing the shares, but did not prepare a fresh preliminary decree. The respondent appealed to the High Court but was not in
a position to file a copy of the decree with the appeal. Even when time
was granted by the High Court and the respondent moved the trial Court
for framing a formal decree, the trial Court refmed to do •o. The High
Court disposed of the appeal boldin~ that (i) the appeal was maintain·
able without a copy of the decree; (1i) the varying of the share., by the
trial Court, in the preliminary decree already passed by it was " decree
in the
ci'rcumstances
of the present case, and the respondent could
appeal from it; (iii) the mother was not entitled to sell her share and so
the •ale in favour of the
appellant was
invalid; and
(iv) the will in
favour of the respondent was genuine.
In appeal to this Court
HELD: (i) Normally a copy of the decree
must
accompany
~e
memorandum of appeal.
But the defect in the filing of the appeal
m
the present case was not due to any fault of the respondent and it could
not be held that he •hould be deprived of his righ• of appeal, simply became the trial Court did not do its duty. (157 D, HJ
!agat Dhish Bhargava v. Jawahar Lal Bhargava, (1961] 2 S.C.R. 918,
referred to.
(ii) So far as partition suits arc concerned, if an event happens after
the preliminary decree and before a final deccee is passed, and a change
in the shares is necessitated,· the trial court can and should pass a second
L 4 Sup. C.1./67-11
154
SUPREME COURT REPORTS
[1967] 3~.c:R.
preliminary decree correcting the shares; and, if there is a dispute
in
that behalf the order of the court deciding that dispute and making a
variation in the shares specified in the preliminary decree already passed
is a decree in itself which would be hable to appeal. A partition suit
is not finally disposed of till the final decree is passed and the court has
jurisdiction to decide all disputes that may arise due to the death of
some of the pa·rties after the preliminary decree and before the passing
· of the final decree. There is nothing in the Civil Procedure Code which
prohibits the passing of more than one preliminary decree in a partition
suit, if circumstances justify it and if it is convenient and advantageous
to do so. [158 E, F, H; 159 A, D-E]
Kasi v. Ramanathan
Chettiar,
[1947] 2 M.L.J. 523,
Raja Peary
Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram '"· Hira-
.bai, A.I.R. 1957 Born. 59, approved.
Bharat Indu v. Yakub Hasan, (1913) I.LR. 35 All. 159, Kedernath
v. Pattu Lal, I.L.R. [1954] Luck, 557 and loti Parshad v. Ganeshi Lal,
AI.R. 1961 Punj. 120, overruled.
(iii) In the absence of a custom to the contrary a Jain widow takes a
limited interest in her husband's estate similar to the widow's estate. A
custom .. however, to the contrary has been proved among Agarwala Jains
that the widow takes an absolute estate in the self-acquired property of
her husband, with full powers of
alienation. But there is no such
custom entitling her to an absolute estate
in ancestral property. [160
D-El
In the present ca'Se, the share allotted t6 the mother by the preliminary decree was out of ancestral property, and therefore, the appellant
could not take advantage of the sale of that share by the mother, and
it must descend equally to the three
surviving
parties, namely,
the
appellant, the respondent and· the adopted son of the deceased brother.
[160 B-F]
Tulsiram Khirchand v. Chunnilal Panchamsao Parwar, A.I.R. 1938
Nag. 391, referred to.
A
B
c
D
E
(iv) The will was duly executed by the father in favour of the respondent. It was genuine, and the testator was competent to will away
not only his self-acquired properties, but also the share he got out 0f
F
the joint family property by severance of status
and specification of
shares. [162 C-F]
The will was executed after the partition suit had been filed and
after a preliminary decree, by which shares were allotted to the ment·
hers of the family, had been passed. Though the testator was 70 years
old at the time of the execution of the will and though the respondent
took a prominent part in its execution, the testator lived for 7 years
G
after its execution and he was mentally and physically competent at
the time of its execution.
Further, the will was registered. The w'll
was also natural, because., (a) the testator was disgusted with the con-
.duct of the appellant; (b) he was pleased with that of the respondent;
(c) ·he did not give any share to the adopted son of his decea.ed son,
because, the adopted son was the natural son of the appellant; and ( d)
•
he did not provide for his wife for she had already been allo'ted onefifth share by the trial Court's preliminary decree.
[161 C-H; 162 Al
H
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1313 of
1Q66.
A
B
c
D
E
F
H
PHOOL CHAND v. GOPAL LAL (Wanchoo, 1.)
155
Appeal from the judgment and decree dated April 29, 1964
of the Rajasthan High Court in D. B. Civil Regular First Appeal
No. 118 of 1961.
1. P. Goyal and B. P. lha, for the appellants.
B. P. Maheshwari, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal on a certificate granted by the
Rajasthan High Court and arises in the following circumstances.
Phool Chand appellant had filed a suit in 1937 for partition of his
one-fifth share in certain properties mentioned in the schedule to
the plaint. The defendants to the suit were Sohanlal, father of the
appellant, Gopal Lal, brother of the appellant, and Rajmal, minor
adopted son of Gokalchand (deceased) who was another brother
of the appellant and· Smt. Guiab Ba~ mother of the appellant.
There were two other defendants with whom we are not concerned
now. The suit was resisted by the defendants and a large number
of pleas were raised with which we are also not concerned now.
That suit was fought right upto the Mahkma Khas (Privy Council)
of the former State of Jaipur and a preliminary decree for partition
was passed specifying the shares of the appellant and the four defendants mentioned above on August 1, 1942. Before, however,
a final decree could be passed on the report of the Commissioner
in terms of the preliminary decree, Sohan Lal died on May 13,
1947 and soon after his widow, Smt. Guiab Bai also died on
.November 22, 1947.
Disputes seem to have arisen about the
shares allotted to these two persons. It appears that Gopa l Lal
claimed that his father Sohan Lal had made a will in his favour
on June 2, 1940, according to which he bequeathed all his property to Gopal Lal. Phool Chand challenged the genuineness of
the will. As to the share of Smt. Guiab Bai, Phool Chand claimed
that she had executed a sale deed dated October 19, 1947 and
registered on January 10, 1948 by which she sold all her share
in movable and immovable properties which came to her by the
decree of August l, 1942 to Phool Chand. Gopal Lal, however
contended that Smt. Guiab Bai was not entitled to sell the shar~
which she got in the ancestral property as she was a limited owner
and therefore her share must be held to have devolved on Gopal
Lal, Phool Chand and Rajmal. These disputes were brought before
the court. soon after the deaths of Sohan Lal and Smt. Guiab Bai,
but nothing seems to have been done for many years.
It was
only on July 12, 1961 that the trial court decided the disputes with
respect to the shares of Sohan Lal and Smt. Guiab Bai. It came
to the conclusion that the will had not been proved. It also upheld
the saJe deed in favour of Phool Chand appellant. In consequence
the tnal court redistributed the shares indicated in the preliminary
1.56
SUPREME COURTS REPORTS
[1967) 3 S.C.R.
decree of August l, 1942. By this re-distribution, the share of
Phool Chand was increased from one-fifth to one-half; the share
of Gopal Lal was increased from one-fifth to one-fourth, and the
share of Rajmal was increased from one-fifth to one-fourth. The
trial court however did not prepare another formal preliminary
decree on the basis of this re-distribution of shares.
Thereupon Gopal Lal went in appeal to the High Court and
wanted stay of proceedings relating to preparation of final decree.
In these proceedings Phool Chand objected that the appeal was
not maintainable as no decree had been prepared by the trial court
and no copy of the decree had been filed along with the memorandum of appeal. The High Court thereupon passed an order
adjourning the matter to enable Gopal Lal to move the trial court
to draw up a formal decree. Gopal Lal thereafter moved the trial
court for amending the preliminary decree. But that application
was rejected in September 1962. Thus the appeal of Gopal Lal
in the High Court proceeded without a copy of the decree being on
the record.
A preliminary objection was raised in the High Court on behalf
of Phool Chand appellant on the date of hearing that as no copy
of the decree had been filed along with the memorandum of appeal, the appeal was not maintainable. It was also objected that
in any case there could be no second preliminary decree and that
the order of the trial court varying the shares in the preliminary
decree could be appealed from, if at all, after the final decree had
been prepared. The High Court repelled both these contentions
and held that the order of July 12, 1961 varying specification of
shares in the preliminary decree passed on August l , 1942 was
a decree in the facts and circumstances of this case and Gopal Lal
could appeal from it.
The High Court further held that as the
trial court had refused to frame a formal decree on the basis of
tl)is variation of shares it was not possible for Gopal Lal to file a
copy thereof with the memorandum of appeal, but that would not
take away the right of Gopal Lal to appeal.
The next point raised in the High Court was that the trial
court was wrong in holding that under the Jain custom a widow
had the same right as a male co-parcener in ancestral property
coming to her share on partition. It. was therefore contended that
the sale deed by Smt. Guiab Bai in favour of PhooI Chand appel·
!ant was in··alid and her one-fifth share descended on the remaining th·,~e derendants to the suit, namely, Phool Chand, Gopal Lal
and Rajmal. The High Court accepted the contention and held
that Smt. Guiab Bai beirig a limited owner could not sell the property.
The third contention raised before the High Court was
that the will of Sohan Lal in favour of Gopal Lal was genuine and
the trial court's finding that it was not proved was not correct, TheB
c
D
E
F
H
,
PHOOL CHAND v. GOPAL LAL (Wanchoo, J.)
157
A.
High Court accepted this contention also.
The result was that
the High Court redistributed the shares and declared that Phool
Chand was entitled to four-fifteenths share of the property, Gopal
Lal to seven-fifteenths share and Rajmal to four-fifteenths share.
The High Court decree being one of variance, it granted certificate
to Phool Chand to appeal to this Court.
8
c
D
E
F
;Learned counsel for Phool Chand appellant has attacked the
findings of the High Court on all the three points. He first contends that as a copy of the decree was not filed along with the
memorandum of appeal the appeal was incompetent and relies in
this connection on the decision of this Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava('). In that case it was observed that
every memorandum of appeal has to be accompanied by a copy of
the decree appealed from, that this requirement of 0. XLI r. 1 of
the Code of Civil Procedure is mandatory and in the absence of
a copy of the decre.e the filing of the appeal would be incomplete,
defective and incompetent. That no doubt is the correct position
in law; but as was pointed out in that case, there may be circumstances where an appeal may be competent even though a. copy
of the decree may not have been filed along with the memorandum
of appeal.
One such exceptional case was dealt with in Jagat
Dhish Bhargava's case('). We consider that the present case is
another exceptional case where in the absence of the copy of decree
the appeal could be maintained. We have already indicated that
the trial court did not frame a formal decree when it varied the
shares and naturally Gopal Lal was not in a position to file a
copy of the decree when he presented the memorandum of appeal
to the High Court. Even when time was granted by the High
Court and Gopal Lal moved the trial court for framing a formal
decree, the trial court refused to do so. In those circumstances
it was impossible for Gopal Lal to file a copy of the formal decree.
It is unfortunate that when the matter was brought to the knowledge of the High Court it did not order the trial court to frame a
formal decree; if it had done so, the appellant could have obtained
a copy of the formal decree and filed it and the defect would have
been cured. We do not think it was necessary for Gopal Lal to
file a revision against the order of the trial court refusing to frame
G
.a formal decree, for Gopal Lal's appeal was pending in the High
Court and the High Court should and could have directed the trial
~ourt in that appeal to frame a d~cree to enable Gopal Lal to file
1t and -cure the defect. In such c1rcumstances we fail to see what
more Gopal Lal could have done in the matter of filing a copy of
the decree. The fact that the trial court refused to frame a formal
decree ~annot in law deprive Gopal Lal of his right to appeal. The
defect ID the filing of the appeal in the circumstances was not due
to any fault of Gopal Lal and it cannot be held that he should be
H
(1) (1961] ·2 S.C.R. 918.
158
SUPREME COURT REPORTS
[1967] 3 S.C.R.
deprived of the right to appeal, if he had it, simply because the
A
court did not do its duty. We therefore agree with the High Court
that in the circumstances the absence of the copy of decree would
not deprive Gopal Lal of his right to appeal.
The next contention is that there cannot be two preliminary
decrees and therefore when the trial court varied the shares as
indicated in the preliminary decree of August 1, 1942 there was
no fresh preliminary decree passed by the trial court. It is not
disputed that in a partition suit the court has jurisdiction to amend
the shares suitably even if the preliminary decree has been passed
if some member of the family to whom an allotment was made in
the preliminary decree dies thereafter : (see Parshuram v. Hirabai'").
So the trial court was justified in amending the shares
on the deaths of Sohan Lal and Smt. Guiab Bai. The only questi©n then is whether this amendment amounted to a fresh decree.
The Allahabad High Court in Bharat Indo v. Yakub Hassan('),
the Oudh Chief Court in Kedernath v. Pattu La/(8 ), and the
Punjab High Court in Joti Parshad v. Ganeshi Lal(') seem to take
the view that there can be only one preliminary decree and one
final decree thereafter. The Madras, Bombay anq Calcutta High
Courts seem to take the view that there can be more than one
preliminary decree : (see Kasi v. V. Ramanathan
Chettiar(•)
Raja Peary Mohan v. Manohar( 6), and Parshuram v. Hirabai.
We are of opinion that there is nothing in the Code of Civil
Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be
necessary to do so particularly in partition suits when after the
preliminary decree some parties die and shares of other parties are
thereby augmented. We have already said that it is not disputed
that in partition suits the court can do so even after the preliminary
decree is passed. lt would in our opinion be convenient to the
court and advantageous to the parties, specially in partition suits, to
have disputed rights finally settled and specification of shares in
the preliminary decree varied before a final decree is prepared. If
this is done, there is a clear determination of the rights of parties
to the suit on the question in dispute and we see no difficulty in
holding that in such cases there is a decree deciding these disputed
rights: if so, there is no reason why a second preliminary decree
correcting the shares in a partition suit cannot be passed by the
court.
So far therefore as partition suits are concerned we have
no doubt that if an event transpires after the preliminary decree
which necessitates a change in shares, the court can and should
(1) A.1.R. 1957 Born. 59.
(3) (1945) l.L.R. 2·l Luck. 557.
(5) [19471 II Mad. L.J. 523.
(2) (1913) I.L.R. 35 All. 159.
(4) A.I.R. 1961 Punj, 120.
(6) [1923] 27 Cal. W.N. 989.
B
c
D
E
F
G
H
•
A
B
c
D
E
F
G
H
PHOOL CHAND v. GOPAL LAL (Wanchoo, /.)
159
do so; and if there is a dispute in that behalf, the order of the court
decidin§,!!t dispute and making variation in shares specified in
the pre · · ary decree already passed is a decrel'. in itself. which
would be liable to appeal. We should however like to pomt out
that what we are saying must be confined to partition suits, for we
are not concerned in the present appeal with other kinds of suits in
which also preliminary and final decrees are passed. There is no
prohibition in the Code of Civil Procedure against passing a second
preliminary decree in such circumstances and we do not see why
we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does
not contemplate such a possibility. In any case if two views are
possible--and obviously this is so because the High Courts have
differed on the question-we would prefer the view taken by the
High Courts which hold that a second preliminary decree can be
passed, particularly in partition suits where parties have died after
the preliminary decree and shares specified in the preliminary
decree have to be adjusted. We see no reason why in such a case
if there is dispute, it should not be decided by the court which
passed the preliminary decree, for it must not be forgotten that
the suit is not over till the final decree is passed and the court has
jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some
of the parties. Whether there can be mme than one final decree
does not arise in the present appeal and on that we express no
opinion. We therefore hold that in the circumstances of this case
it was open to the court to draw up a fresh preliminary decree
as two of the parties had died after the preliminary decree and
before the final decree was passed. Further as there was dispute
between the surviving parties as to devolution of the shares of the
parties who were dead and that dispute was decided by the trial
court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and
was liable to appeal. We therefore agree with the view taken 'by
the High Court that in such circumstances a second preliminary
decree can be passed in partition suits by which the shares allotted
in the preliminary decree already passed can be amended and if
there is dispute between surviving parties in that behalf and that
dispute is decided the decision amounts to a decree. We should
however like to make it clear that this can only be done so long
as the final decree has not been passed. We therefore reject this
contention of the appellant.
. This brings us to the question whether the appellant was entitled. to the share of Smt. Guiab Bai by virtue of the sale deed
dated October 19, 1947 in his favour.
Now it must be remembered that we are concerned in the present case with only the sale
of the share allotted to Smt. Guiab Bai out of the ancestral property
SUPltl!ME COURT REPORTS
[1967] 3 S.C.R.
by the preliminary decree passed on August 1, 1942. The trial
court held that High Courts had recognised the custom amongst
Jain.Agarwals that the rights of Jain widows were absolute and
not in the nature of a limited owner.
It relied on Tulsiram Khl'rchand v. Chunnilal Panchamsao Parwar('). The High Court however held otherwise and we are of opinion that the High Court was
right. It is true that in Tulsiram's case('), the Nagpur High Court
stated that "the widow takes an absolute estate among Jains in
general and not merely in some particular sub-sects".
The two
~ases relied on in Tulsiram's case(') were cases of non-ancestral
property, namely, (i) Mt. Sano v. Puran Singh(') and (ii) Trimbakdas v. Mt. Mathabal( 8 ). It is not clear whether the property in
Tulslram's case(') was ancestral or non-ancestral. In any case we
cannot read Tulslram's case(') as laying down that a Jain widow
has absolute rights even in the share she gets on partition out of
ancestral property.
We may in this connection refer to Mulla's
Hindu Law, 13th Edn. p. 585, para 616 where it is stated that
"in the absence of custom to the contrary, a Jain widow takes a
limited interest in her husband's estate similar to the widow's estate.
A custom, .however, to the contrary has been proved in several
cases that amongst Agarwala Jains the widow takes an absolute
<:state in the self-acquired property of her husband and that she
has full power of alienation in respect of such property. But there
is no custom which entitled her to an absolute estate in ancestral
property left by her husband. In the latter case she takes only a
widow's estate". This appears to us to be a correct statement of
the law. We are concerned in the present appeal with the share
which Smt. Guiab Bai got out of the ancestral property by the
preliminary decree of August l, 1942; she obviously had only
a limited estate or a widow's estate in that share and not an absolute
estate.
Therefore she could not sell it in the manner in which
she sold to the appellant. The High Court therefore was right in
holding that the appellant could not take advantage of the sale of
the share of the widow and it must descend on the remaining three
surviving parties equally, namely, Phool Chand, Gopal Lal and
Raimal.
The contention therefore on this head also fails.
Then we come to the question whether the will by Sohan Lal
in favour of Gopal Lal was genuine. We have already indicated
that the trial court held that it was not, while the High Court was
-0f opinion that it was genuine. The trial court based its finding
mainly on some inconsistency in the statements made by Laxmichand, an attesting witness, on two different occasions. It seems
that in this suit Laxmichand duly proved the will but on an earlier
occasion he had stated that he had not attested the will. There was
(I) A.1.R. 1938 Nag. 391.
(2l A.LR. 1925 Na•. 174.
(3) A.I.R. 1930 Nr,g. 225.
A
B
c
D
E
F
G
H
A
B
c
D
r
g
H
PHOOL CHAND v. GO'PAL LAL (Wanchoo, J.)
161
another attesting witness· who also was produced, namely, Chhotey
'Lal, whose evidence did not suffer from any infirmity. Besides
that Basanti Lal, the scribe of the will, was also produced, though
he was not present at the time of the execution of the will. His
evidence is that he prepared the draft of the will on the instruction
of Sohan Lal and handed over the written document either to Gopal
Lal or to Sohan Lal. Finally there was the statement of Gopal
Lal to prove due execution of the will for he was present when it
was executed though he was not an attesting witness. Thus except
for the inc.onsistency in the two statements of Laxmichand the evidence of the due execution of the will was over-whelming.
B\lt it is urged that Gopal Lal in whose favour the will was
made had taken a prominent part in its execution and Sohan Lal
was an old man of about 70 years when the will was executed and
therefore we should require strict proof of the due execution of the
will. There are several circumstances which in our opinion clearly
show that the will was duly executed by Sohan Lal in favour of
Gopal Lal.
Firstly, Phool Chand was obviously a thorn in the side of the
father and had dragged him into litigation. The will says that Phool
Chand separated from the father Jong before and picked up quarrels with him. It further says that Phool Chand had no regard
for his duty as a son and had been behaving with the testator in a
most improper and shameful way. It goes on to say that the testator was fed up with the improper behaviour of Phool Chand. The
testator then says in the wili that contrary to it, Gopal Lal lived
with him, served him and was obedient to him and he was impressed with the services of Gopal Lal. He therefore wanted his
property to go to Gopal Lal and was making the will in order
that Gopal Lal may not be put to any trouble after his death and
might live. c~mfortab~y. The will therefore appears to be a very
natural will m the circumstances. Sohan Lal obviously did not
provide for his wife for she had been allotted one-fifth share in
the ·properly already by the trial court's preliminary decree
As
for Rajmal minor, it appears that he was the natural s~n of
Phool Chand and there was dispute whether he had been adopted
~y Gokalchand's. wido\\'., though the dispute was eventually settled
m favour of Raimal mmor by the court. Jn these circum>tances
w~ woul.d not expect Sohan Lal to make any provision for Rajmal
~or e.ither who had got one-fifth share on'"the basis. of adophon. The will therefore appears to us to be very natural and the
fact that Gopal Lal took part in the execution has under the circumstances no significance. It is true that Sohan Lal was about
70 years old when the will was executed.
But he lived almost
seven years a~ter the execution of the will and it is no one's case
that he was m any way mentally or physically incompetent to
162
SUPREME COURT REPORTS
[1967] 3. S.C.ll.
make the will when he did so in 1940. It may be added that the
will was later registered also, though the Registrar has not been
examined as a witness. Finally there is the circumstance that the
appellant knew about the will as far back as March 1941 but he
never seems to have talked to his father Sohan Lal about it. In
these circumstances we agree with the High Court that the due
execution of the will has been proved.
The last point that had been urged on behalf of the appellant is
that Gopal Lal was not entitled to any movable or immovable
ancestral property by virtue of the will, as a Hindu cannot will
away joint family property.
We are of opinion that there is
nothing in this contention.
The present suit had already been
filed by the appellant in 1937 and immediately on the filing of
the suit there was severance of status among the members of the
joint Hindu family, even if Phool Chand had not separated earlier
as stated by Sohan Lal in the will. Further a preliminary decree
had also been passed by the trial court in April 193 8 by which
various shares were allotted to various members of the family.
In these circumstances Sohan Lal was perfectly competent to will
away the share he got out of the joint family property and that is
what he did. He has stated in the will that Gopal Lal would be
the rightful owner of his self-acquired immovable property. He
further stated that Gopal Lal would be the rightful owner of. his
share in the ancestral property and finally he stated that Gopal
Lal would be the rightful owner of all of his articles, i.e., jewellery,
ornaments, clothes, utensils and other domestic articles. The last
clause relating to movable property clearly refers both to the share
that Sohan Lal got in the movable property by severance of status
and specification of shares in the preliminary decree and to any
self-acquired movable property.
There is therefore no force in
this contention.
The appeal therefore fails and is hereby dismissed with costs.
V. P. S.
Appeal dismissed
A
B
c
D
E