Supreme Court: Coparcener had no right to execute a Will in respect of Joint Family Property prior to Hindu Succession Act

The SC on July 17, 2020 {V. KALYANASWAMY(D) BY LRS. & ANR. vs L. BAKTHAVATSALAM(D) BY LRS. & ORS.} held that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. It was held that in the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. It was held that he must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. It was held that this is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. It was held that the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness. 

It was held by the Bench, comprising of Justice K.M. Joseph & Justice Sanjay Kishan Kaul, that in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. It was held that the language of the Section is clear and unambiguous. It was held that Section 68 of the Evidence Act, as interpreted by the Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

It was also held that the Will must be proved under the Evidence Act and not with reference to plea of estoppel. It was held that while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. It was held that the evidence of PW1 would show that the respondents have failed to prove that the will is vitiated in this regard . Therefore, it was held that the will was indeed executed by R. Naidu and was his last will.

Order II Rule 2 CPC

The SC held that be it the omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), the fatal consequences they pose, will arise only if the cause of action is the same.

Joint Family Property & Coparcener

It was also held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. It was held that by a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.

The SC held that even under the law prior to Hindu Succession Act there could be four situations. In regard to a member of a joint Hindu family who also has his separate property he could bequeath his separate property. It was held that as far as joint family property is concerned, there could be three situations. The first situation is where the family remains joint in which case the coparcener would have an interest. It was held that as far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act. The second situation is in a case where there is a disruption in title or a division in status. What the SC means is there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. It was held that when such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. It was held that this may or may not be accompanied simultaneously with a metes and bounds partition. It was further held that in such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. It was held that the share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It was held that it also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. It was held that this power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act. The third scenario would be a situation where following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It was held that it cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act. In fact, it was held that the property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. 

It was held by the SC, however, merely  causing a Notice to be published, without there being evidence to show that the intended recipient became aware of it, may not suffice. It was held that though a Notice in a newspaper is purported to serve as Notice to the general public, what is required is Notice to the concerned coparcener. It was held that there cannot be a presumption that a person has read a particular newspaper, and even more importantly, that he has read the Notice.

The SC held that in present case as there was no division brought about by V. Rangaswami Naidu before his death, the Will would be invalid and therefore it would be the end of the road for the appellants. It was held that it is to be remembered that Rangaswami Naidu died on 1.6.1955, which was before the enactment of Hindu Succession Act, 1956. Thus, it was held that when he died, he left behind an interest in the Hindu joint family. It was held that when succession opened to his estate, it is therefore, the provisions of Section 3(2) of the Hindu Women’s Right to Property Act, 1937 which apply. It was held that a limited estate in other words sprung into being in favour of R. Krishnammal, his widow. It was held that this estate would bloom under Section 14 (1) of the H.S.A. into an absolute estate. It was held that when she compromised in giving up her rights over the property which included the plaint scheduled property in these cases, it conferred absolute rights in favour of the Lakshmiah Naidu branch. It was held that the effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into force to be that it would deprive persons of rights available in respect of a Hindu who dies intestate after the Act came into force.

It was also held that the relevant date on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of S.14(1) arises. It was held that if, on that date, when the provisions of this Section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. It was held that such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death.

The SC concluded that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree by which she had given-up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. Accordingly, the appeal stood dismissed by the SC.