Case: G.Sekar Vs. Geetha

The property in suit was owned by one Govinda Singh. He purported to have executed a Will in favour of his son, the appellant herein on 29.11.1995. His wife Sakunthala Bai predeceased him. The said Govinda Singh died on 9.01.1996 leaving behind the appellant (original defendant No. 1) and four daughters, viz., etha and Vijaya (plaintiffs) and Shanthi and Uma (original defendant Nos. 2 and 3).Indisputably, the parties to the suit were residing in the premises in suit. Govinda Singh was also a government contractor. He was running a business of transport. His daughters were also partners in the firm. Inter alia on the premise that Govinda Singh died intestate and as disputes and differences arose between the plaintiffs and the defendants as regards enjoyment of the property, a suit for partition was filed on 11.03.1996 (marked as C.S. No. 153 of 1996) in the High Court of Judicature at Madras. The suit property inter alia consisted of residential premises being No. 36, First Cross Street, West C.I.T. Nagar, Madras - 600 035 as also some movable properties.4. Defendant No. 4 Ramesh filed an application for impleadment in the said suit alleging that Govinda Singh had married one `Saroja who was, thus, his second wife and through her he had two daughters and one son, viz., Jothi, Maya and himself. It was on the aforementioned premise, Ramesh was impleaded as a party in the said suit.Appellant in his written statement inter alia contended:(i) In terms of the aforementioned Will dated 29.11.1995, the suit property, having been bequeathed in his favour, has vested in him absolutely.(ii) In any event, having regard to the provisions of Section 23 of the Act, the suit for partition was not maintainable.5. Defendant No. 4 also filed a written statement alleging that the Will was not a genuine one and was prepared subsequent to 10.12.1995.In the said suit, the following issues wereWhether the deceased Mr. M.K. Govinda Singh died intestate?(2) Whether the suit for partition by the daughters of the deceased M.K. Govinda Singh, who died intestate, is maintainable or not?(3) Whether the alleged will dated 29.11.1995 said to have been executed is genuine one and, if so, who are theOn or about 7.01.1999, an additional issue was framed, which reads as under:"Whether the D-4 is entitled to have any share in the schedule property? If so what is his share?7. Indisputably, the appellant also initiated a testamentary proceedings for grant of Letters of Administration with a copy of the Will annexed thereto, which was marked as O.P. NO. 329 of 1996. The plaintiffs of the suit No. 153 of 1996 entered caveat in the said proceeding; it was marked as T.O.S. No. 4 of 1998.The issue framed in the said testamentary proceedings was:"(1) Whether the Will of Late M.K. Govinda Singh is true, valid and genuine?"8. The learned Single Judge held that the appellant could not prove due execution of the Will as several suspicious circumstances surrounded the same.It was furthermore held that having regard to the omission of Section 23 of the Act and in view of the fact that even the Defendant No. 4 in his written statement asked for partition of the property, Section 23 of the Act would not stand in the way of plaintiffs suit for partition. It was directed:"28. In the result, T.O.S. No. 4 of 1998 is dismissed with cost of the defendants. In C.S. No. 153 of 1996, there shall be a preliminary decree for partition of the suit property into eight equal shares and allotment of two shares together to the plaintiffs. C.S. No. 153 of 1996 shall stand adjourned sine die."9. Two intra-court appeals were preferred against the said judgment and decree, which were marked as O.S.A. Nos. 196 and 197 of 2001. By reason of the impugned judgment, the said appeals have been dismissed.As regards the issue of the validity and/ or genuineness of the Will, the Division Bench held:"21. It is no doubt true that P.W.4 belongs to a noble profession and ordinarily great weight is to be attached to such evidence. However, apart from the fact that several contradictions are available from the evidence, P.W.4 cannot be characterized as an independent witness as it is she who had given the reply notice Ex. D-3 on behalf of the propounder of the Will. At the time when she gave the reply, there is no whisper in such reply that in fact she had drafted the will and attested the same. These are many of the aspects appearing from the evidence of P.Ws. 1 to 4 which create sufficient doubt regarding the due execution of the Will. It is of course true that many of the contradictions may appear to be innocuous in isolation. But, when all these contradictions are considered together along with the fact that thumb impression was given by the executant, even though he was obviously signing the document, and the fact that in the typed will line-spacing in different pages appear to be irregular, they create sufficient doubt regarding the due execution and genuineness of the will."As regards application of Section 23 of the Act, it was opined:"...It is no doubt true that such amendment has come into force during pendency of the appeal. However, even assuming that there was any embargo at the time of filing the suit or passing the judgment by the learned Single Judge as contemplated under Section 23 of the Act as it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after 9.9.2005. In other words, after 9.9.2005 any female heir can seek for partition even in respect of a dwelling house. This subsequent event arising out of change in law is obviously to be applied and, therefore, the question of applying bar under Section 23 of the Act no longer arises for consideration."

Reasoning:
26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring in nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause.Mr. Viswanathan also placed strong reliance upon a decision of this Court in Narashimaha Murthy v. Susheelabai (Smt) and Others [(1996) 3 SCC 644] . The principal question which arose for consideration therein was as to whether the premises which are tenanted ones would come within the definition of `dwelling house so as to attract the rigours of Section 23 of the Act. This Court clearly held that the succession cannot be postponed and Section 23 has been engrafted "respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration by dividing it by metes and bounds". It was furthermore held that "the prohibition gets lifted when male heirs have chosen to partition it".28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible.29. Another aspect of the matter must also be borne in mind.In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime.It is of some significance to notice that the South African Constitutional Court in Bhe & Ors. v. The Magistrate, Khayelisha & Ors. [(2004) 18 BHRC 52] declared the Black Administration Act, 1927 (South Africa) and the Regulations of the Administration and Distribution of the Estates of Deceased Blacks (South Africa) ultra vires as in terms whereof the customary law of succession where principle of male primogeniture was central to customary law of succession was provided for.It was held by the majority that the rule of male primogeniture as it applied in customary law to the inheritance of property was inconsistent with the constitution and invalid to the extent that it excluded or hindered women andchildren from inheriting property. The rules of succession in customary law had not been given the space to adapt and to keep pace with changing societal conditions and values. Instead, they had over time become increasingly out of step with the real values and circumstances of the societies they were meant to serve. The application of the customary law rules of succession in circumstances vastly different from their traditional setting caused much hardship. Thus the official rules of customary law of succession were no longer universally observed. The exclusion of women from inheritance on the grounds of gender was a clear violation of the constitutional prohibition against unfair discrimination. The said view of the Constitutional Court of South Africa has been noticed by this Court in Anuj Garg & Ors. v. Hotel Association of India & ors. [AIR 2008 SC 663 ].Even otherwise, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition.30. The question as to whether the Will was validly executed or not is essentially a question of fact. Both the learned Single Judge as also the Division Bench pointed out a large number of prevailing suspicious circumstances to opine that the same had not been validly executed. Let us now briefly consider the question as to whether the execution of the Will has duly been proved.Appellant stated in his evidence that one Ms. Radhai, Advocateprepared the Will and that the testator gave instructions in the morning of 29.11.1995 therefor. He further stated that at the time his father gave instructions for preparation of the Will, their neighbour Vishwanathanand Mrs. Radhai, Advocate were present. He further stated:"I do not know where exactly the Will was typewritten".However, in Ex.it has not been mentioned that Ms. Radhai prepared the Will and had attested the same.Vishwanathan deposed that "at the instance of Govinda Singh, Radhai brought the typedwritten Will". However, in cross examination, he stated: "I do now know where the Will was typed". He furthermore stated:"I was present when Govinda Singh gave instructions to Mrs. Radhai for preparation of the Will. None else were present. Govinda Singh gave instructions to Mrs. Radhai by 10.00 A.M. She brought the typed Will by 2.00 P.M., I was not present throughout in theMs. Radhai in her examination in chief stated:"On 29.11.1995 at 10.00 a.m. I went to Devaki Hospital. I met Govinda Singh,were present in the hospital.going here and there in the hospital. The testator gave instructions to me to draft the Will. I noted the instructions in a piece of paper, came to High Court and got the Will typed. The Will was typed by a typist who was available in the corridors. The typist was s. Teresa. At about 2.00 P.M. I went to the hospital on the same day, read the contents of the Will to the testator, then he affixed his left thumb impression...then I signed the Will. Thereaftersigned the Will."However, in theshe stated:"On 29.11.95 at about 8.00 a.m. in the morning Vishwanathan came to my house and told that the testator wanted me to meet him...I do not know theof the testator. I did not retain the note of instructions given by the testator for drafting the Will. Teresa was the regular typist. Because the testator used to talk to me in Tamil, I drafted the Will in Tamil. The testator had not instructed me that the Will should be in Tamil only. I was not by the side of Teresa when she typed the Will. I only gave instructions to her. Teresa had not drafted the Will. I drafted the Will in writing and gave it to her for typing. I do not have the manuscript. I did not compare the typed Will with the manuscript."Appellant filed an affidavit in support of his case, which was attested and drafted byMs. Radhai in English. Appellant did not speak of this affidavit.Vishwanathan in theadmitted:"I do not know whether Govinda Singh signed any other paper apart from Ex.Ms. Radhai in thestated:"I have notarized the affidavit of Govinda Singh few days after attesting the Will."However, she admitted:"I do not remember whether the testator signed any other affidavit on 29.11.95 apart from the Will."On furthershe deposed:"Ex. P.2 is an affidavit which I have attested on 29.11.95. I have attestedin my office. I have drafted the affidavit. I supplied the stamp paper for drafting the affidavit. Because the attestator wanted an affidavit to confirm the Will, Ex. P.2 was drafted. I purchased the stamp papers for drafting the affidavit."However, it has been brought to our notice that the stamp paper had been purchased byon 11.10.1995 in the name of M.K. Govinda Singh from a place called Thiriuviyaru in Thanjore District which is 200 miles away from Chennai. She further deposed:"I do not remember where I purchased the stamp papers for drafting Ex. P.2. There is no particular reason as to why the affidavit was drafted in English".31. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. We do not find any reason to differ therewith.