Case: RADHAMMA Vs. H.N. MUDDUKRISHNA

The appellants/plaintiffs filed a suit on 16.1.1976 for 1/10 th share in the suit properties described in the schedule to the plaint as ‘A? to ‘H?. The learned trial Court decreed the suit declaring that the second plaintiff (since first plaintiff died on 7.7.1978 leaving behind daughter) Smt. Nagamma is entitled for 1/10 th share of joint family properties in the plaint which are scheduled properties ‘A? to ‘E? and the properties in the plaint scheduled ‘F? & ‘G? were held to be the self-acquired properties of the testator, and property ‘H? was declared as the exclusive property of the Smt. K.C. Saroja. The judgment and decree of the trial Court came to be challenged in the regular first appeal before the High Court by the present appellants in RFA No. 347/1998 and RFA No. 922/2001 was filed by the defendants-respondents against the self-same impugned judgment. The High Court after hearing the parties and on reappraisal of the evidence while affirming the finding of fact in reference to the registered Will Exhibit-D2 dated 16.6.1962 of the testator held that the respondents have established the due execution of the Will as required under Section 68 of the Evidence Act. But while answering the question in reference to the 1/10 th share of the plaintiff no.2 in the undivided share of the testator in the joint family properties schedule ‘A? to ‘E?, took note of Section 30 read with explanation of the Hindu Succession Act, 1956 and held that a coparcener derives a right to dispose of his undivided share in Mitakshara joint family property by ?Will? or any testamentary disposition i.e. by virtue of law and accordingly reversed the finding recorded by the learned trial Court holding 1/10 th share of the appellants/plaintiffs in the schedule of the properties referred in ‘A? to ‘E?.

Reasoning: 4. None appeared for the respondents despite service.5. We have heard the Counsel for the appellants and with his assistance perused the record and we find no error in the concurrent finding of fact as recorded by the learned trial Court and affirmed by the High Court holding the properties schedule ‘A? to ‘E? belong to joint family properties and property ‘F? & ‘G? are self-acquired properties of the testator and property schedule ‘H? was exclusively of Smt. K.C. Saroja. The suspicious circumstances highlighted by the appellants with reference to the Will Exhibit-D2 dated 16-6-1962, a concurrent finding of fact has been recorded holding that the defendants were able to establish due execution of the Will as required under Section 68 of the Evidence Act and we find no reason to disturb the same.6. The submission of the learned counsel in reference to 1/10 th share of the appellants/plaintiffs in the undivided share of the testator in joint family properties identified as schedule ‘A? to ‘E?, we are unable to accept the contention for the reason that the Will Exhibit D-2 was executed on 16.6.1962 and the testator died on 6.2.1965, subsequent to the coming into force of the Act, 1956. It is true that prior to coming into force of the Hindu Succession Act, no coparcener could dispose of whole or any portion of his undivided coparcenary interest by Will but by virtue of Section 30 of the Act read with explanation, a coparcener derives his right to dispose of his undivided share in Mitakshara joint family property by Will or any testamentary disposition i.e. by virtue of law.The submission of the learned counsel for the appellants in claiming independent share as a member of the family in the joint family properties is without substance for the reason that the appellants have no independent share in the joint family properties and their share could be devolved in the undivided share of the testator in the joint family properties and since the testator has bequeathed his share/his undivided coparcenary interest by Will dated 16.6.1962, no further independent share could be claimed by the appellants in the ancestral properties as a member of the family as prayed for.