Case: Ramesh Verma(D) Tr.Lrs Vs. Lajesh Saxena (D) By Lrs

of Section 6 stresses that the Act does not interfere with the special rights of those who are members of Mitakshara property except to the extent that it seeks to ensure the female heirs as specified in Class I of the Schedule, a share in the interest of a coparcener in the event of his death, by introducing the concept of a notional partition immediately before his death. Proviso to Section 6 operates where the deceased has left surviving him, a daughter, or any female as specified in Class I of the Schedule. In the case at hand, Jagan Verma has left the female heirs namely his wife Prabhavati and daughter Lajesh Saxena and, therefore, the devolution of the property of Jagan Verma was governed by the provisions of Hindu Succession Act and the High Court rightly increased the share of Jagan Vermas daughter Lajesh Saxena. 13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. 14. In Savithri v. Karthyayani Amma reported as 2007(4) R.C.R.(Civil) 749 : 2007(6) Recent Apex Judgments (R.A.J.) 35 : (2007) 11 SCC 621 at page 629, this Court has held as under:- A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine. 15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the Wills has to be proved in accordance with Section 68 of the Indian Evidence Act. 16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court. 17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court. 18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected. 19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court