The Scribe of the will need not be examined: Gujarat High Court

 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021IN THE HIGH COURT OF GUJARAT AT AHMEDABADR SECOND APPEAL NO. 2282 FOR APPROVAL AND SIGNATURE: HONOURABLE DR. JUSTICE A. P. THAKER ==========================================================1Whether Reporters of Local Papers may be allowedto see the judgment No2To be referred to the Reporter or not Yes3Whether their Lordships wish to see the fair copyof the judgment No4Whether this case involves a substantial questionof law as to the interpretation of the Constitutionof India or any order made thereunder No==========================================================SONAJI RAGHALA CHAUDHARI VersusAKHA DIWALA CHAUDHARI THR HEIRS ==========================================================Appearance:MR SHIVANG M SHAH(5916) for the Appellant(s) No. 1.1 1.2 1.3MS DHARA M SHAH for the Appellant(s) No. 1MS DHARA M SHAH(5546) for the Appellant(s) No. 1.1 1.2 1.3DELETED(20) for the Respondent(s) No. 1.7MR NAGESH C SOOD for the Respondent(s) No. 1.2 1.3 1.4 1.5MR NAGESH C SOOD(1928) for the Respondent(s) No. 1.1 1.6==========================================================CORAM: HONOURABLE DR. JUSTICE A. P. THAKER Date : 02 07 2021 ORAL JUDGMENT1.Being aggrieved and feeling dissatisfied with thejudgment and decree of the Appellate Court Suratpassed in Regular Civil Appeal No. 381 datedPage 1 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 202117.11.1981 the original defendant has preferred thisSecond Appeal under Section 100 of CPC. Theappellant is the original defendant respondent andthe present respondent is the original plaintiff appellant. It is contended that the respondent hadfiled a Suit against present appellant being Suit No.108 1978 for the partition alleging that the propertiesare of the joint family properties and possession ofhis 1 2 share in the suit property. According to him the trial Court by its judgment and decree dated31.12.1980 dismissed the suit of the plaintiff againstwhich the plaintiff has filed First Appeal No. 33 1981 wherein the First Appellate Court allowed the Appealfiled by the plaintiff.2.For the brevity and convenience the parties arereferred to herein as plaintiff and defendant.3.The defendant has challenged the judgment of theFirst Appellate Court on the ground that the FirstAppellat Court has erred in holding that the DiwalaGausa was not in sound state of mind and he did notPage 2 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021understood the effect of the disposition he has made.According to defendant the learned Appellate Courtoverlooked the fact that after marriage of theplaintiff the plaintiff has been residing at his Father in law s house at Ghantoli. It is also alleged that thelearned Appellate Court has not considered theimportant fact that the defendant s father diedbefore 30 years so the deceased Diwala Gausa hadnaturally more love and affection to his grand son who lost the love of his father at the age of around12 or 14 years forever. It is also contended that thelearned Appellate Court has misread the evidence onrecord. It is also contended that the plaintiff in hisevidence admitted that his father Diwala Gausa diedat the age of was 65 years. This fact is not properlyconsidered by the learned Appellate court. It is alsocontended that the learned Appellate Court has notproperly appreciated the evidence on record. Thatthe version of the defendant and his witnesses oughtto have been believed by the learned Appellate Courtand learned appellate Court ought not to have setPage 3 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021aside the well reasoned judgment and decree of thelearned trial Court. It is also contended that thelearned first appellate Court has mis read theevidence of the defendant’s witnesses and also thedocumentary evidence i.e. “Will”. It is also contendedthat the observation of the learned first appellateCourt that at the time of execution of the Will falsestatement was made that no son of the deceased isalive is contrary to the documentary evidence onrecord. The defendant has prayed to set aside theimpugned judgment of the first Appellate Court andrestore the judgment and decree of the trial Courtpassed in Civil Suit No. 108 1978.4.The defendant appellant has raised almost 4substantial questions of law. However this Court hasraised the following questions of law.dated 11.1.1975 isproved to have been executed by Diwala Gausa insound disposing state of mind 3.Whether the plaintiff proves that the suit properties are undivided joint family properties of theparties 4.What order 11.The First Appellate Court has decided the aforesaidpoints in negative and has ultimately passed theOrder to the effect that the plaintiff is entitled topartition with metes and bounds and also directedthe Collector Surat or any subordinate to theCollector deputed by him to make partition andseparation of the lands and has also passed order forPage 10 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021drawing the decree. This judgment and decree of thefirst Appellate Court has been challenged by thedefendant in this Second Appeal.12.Ms. Dhara Shah learned advocate for the appellanthas vehemently submitted that deceased DiwalaGausa has executed the Will whereby the propertieshave been bequeathed to the appellant herein. Shehas also submitted that the plaintiff has neverresided with the deceased and he was residing withhis wife at his father in law’s house. She alsosubmitted that the allegations made by the plaintiffregarding the properties being HUF is not proper asentire properties were self acquired properties of thedeceased. She has contended that the trial Courthas after considering the entire evidence on record dismissed the suit of the plaintiff and the judgmentand decree of the trial Court are tenable in the eyesof law. She has submitted that the plaintiffchallenged the same before the appellate Courtwherein the appellate Court has allowed the Appealby declaring that the plaintiff has got 1 2 share in thePage 11 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021properties and he is entitled for partition of the same.That the appellate Court also ordered to partition bymetes and bounds and held that the plaintiff shallrecover 1 2 share in the suit properties. According toher submissions the appellate Court has committedserious error of facts and law by setting aside thedecree of the trial Court. She has also submitted thatthe observations made by the appellate Courtregarding the Will are not proper. She has alsosubmitted that the observation made by theappellate Court that the deceased Diwala Gausa diedintestate without making any Will is not based onevidence on record. According to her submissions there is ample evidence on record to suggest thatthe deceased Diwala Gausa has executed Will and therefore the observation of the Appellate Court isnot legal and valid.12.1She has also submitted that Will has been producedat Exh 49 and on the basis of the same the trialCourt has held that the properties are self acquiredPage 12 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021properties of the deceased. She has also submittedthat the plaintiff has not challenged the Will on theground of illness of the deceased and ofunsoundness of the mind of the deceased. She hasalso submitted that it was challenged only on theground that the properties were of HUF and theproperties were not self acquired properties of thedeceased. She has submitted that learned firstAppellate Court has committed serious error of factsand law in passing the impugned decree. She hasrelied on the decisions in case of Narinder SinghRao v. AVM Mahinder Singh Rao and Ors reported in AIR 2013 SC 1470.13.Per contra Mr. Nagesh Sood learned advocate as anamicus curiae has submitted that there are twoagricultural properties and the deceased was onlyKarta of HUF. He has also submitted that theproperties being agricultural lands and deceasedbeing Karta of the HUF the deceased had no right tobequeath the properties in favour of the defendant.He has also submitted that the deceased has notPage 13 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021executed any Will and the Will produced in thematter is a fabricated one. He has also submittedthat the properties are of joint family properties and therefore the plaintiff has 1 2 share in the same. Hehas also submitted that the trial Court has notframed any issues regarding the validity or executionof the “Will”. He has submitted that the suit was filedfor partition only which is legal and valid. He has alsosubmitted that the trial Court has not properlyconsidered the evidence on record and hascommitted error in framing issues and has ultimatelydismissed the suit of the plaintiff. He supported thejudgment and decree of the first appellate Court andhas submitted that the findings of the fact recordedby the first appellate Court is proper and valid andthis being Second Appeal this Court may not disturbthe findings of fact which has been recorded by thefirst appellate Court which is based on the oral anddocumentary evidence. He has also submitted thatthough the attesting witness to the Will has beenexamined but the scribe of the Will is not examinedPage 14 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021to substantiate that there was a legal Will executedby the deceased. He has submitted that the presentAppeal may be dismissed.14.In rejoinder Ms. Dhara Shah learned advocate forthe appellant has submitted that the plaintiff hasfailed to establish the fact that the properties were ofjoint family properties. She has also submitted thatthe plaintiff being Son was not residing with fatherand was residing with his wife at his Father in law’shouse since 1950. This fact according to her isrelevant which has not been considered by the FirstAppellate Court. She has also submitted that thesocietal approach of the deceased treating his Son asof non existence for all purposes is a relevant factor which is not properly considered by the FirstAppellate Court. She has submitted that there is nolegal need that there should be registration of theWill in every case. According to her submissions there is always no necessity of giving entiredescription of the properties of the deceased. Shehas further submitted that the first appellate CourtPage 15 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021has failed to consider the legal aspect regarding tothe Will and has committed serious error of factsand therefore this Court being second appellateCourt can re appreciate the evidence on record. Shehas prayed to allow the present Appeal.15.In the case of Narinder Singh Rao v. AVMMahinder Singh Rao and Orsthe ApexCourt has upheld the observations made by the HighCourt of Punjab & Haryana which is as follows:“7. It is pertinent to note as to how the High Court hasdecided the Second Appeal and for that purpose let uslook at the findings which are as under:The ultimate findings arrived at by the court below areto the effect that the writing executed by Rao GajrajSingh which stated that upon death of himself or hiswife the suit property would be inherited by thesurvivor was neither in the nature of a Will nor in thenature of transfer of the property because the saidwriting was neither registered as required under theprovisions of the Indian Registration Act 1908 nor wasattested by two witnesses as it should have been done had it been a Will. Thus the writing executed by RaoGajraj Singh in the eyes of law was only a piece ofpaper having no legal effect. Factually also the saidwriting was not a Will because it was not attested bytwo attesting witnesses as is required to be done forexecution of a valid Will. It is also a fact that the saidwriting had not been registered and by virtue of the saidwriting either complete ownership or share of Rao GajrajSingh was not transferred to Sumitra Devi thus theHigh Court in its impugned judgment rightly ignored thesaid writing executed by Rao Gajraj Singh”.Page 16 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 202115.1While rejecting the submissions made on behalf ofappellant regarding the mental capacity of thetestator to execute a Will the Apex Court hasobserved in Para 16 as under:“16. The submissions made with regard to the mentalcapacity of Sumitra Devi at the time of execution of theWill cannot also be looked into at this stage because themental capacity of the testator to execute a Will being aquestion of fact we would like to accept the findingsarrived at by the court below and all allegations withregard to soundness of mind of Sumitra Devi at the timeof execution of the Will or allegation with regard toundue influence of the present appellant with whomSumitra Devi was residing at the time of her deathcannot be looked into by this Court as they are theissues pertaining to fact. We therefore do not acceptthe submissions made with regard to validity of the Willexecuted by Sumitra Devi”.16.Prior to coming into force of the Hindu SuccessionAct no coparcener could dispose of whole or anyportion of his undivided coparcenary interest by Will.But by virtue of Section 30 of the Act read withexplanation a coparcener derives his right to disposeof his undivided share in Mitakshara joint familyproperty by Will or any testamentary disposition i.e.by virtue of law. The said provision reads thus:Section 30: Testamentary succession : Any Hindu maydispose of by Will or other testamentary disposition anyproperty which is capable of being so disposed of byhim or by her in accordance with the provisions of thePage 17 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021Indian Succession Act 1925or any otherlaw for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in aMitakshara coparcenary property or the interest of amember of a tarwad tavazhi illom kutumba or kavaruin the property of the tarwad tavazhi illom kutumba orkavaru shall notwithstanding anything contained in thisAct or in any other law for the time being in force bedeemed to be property capable of being disposed of byhim or by her within the meaning of this section.17.In the case of Radhamma and Ors v.H.N.Muddukrishna and Ors reported in AIR2019 SC 643 the Apex Court has dealt wiht Section30 on the Hindu Succession Act and especially inPara 7 has observed as under:“7. Section 30 of the Act the extract of which has beenreferred to above permits the disposition by way of Willof a male Hindu in a Mitakshara coparcenary property.The significant fact which may be noticed is that whilethe legislature was aware of the strict rule againstalienation by way of gift it only relaxed the rule infavour of disposition by way of a Will of a male Hindu ina Mitakshara coparcenary property. Therefore the lawinsofar as it applies to joint family property governed bythe Mitakshara school prior to the amendment of 2005 when a male Hindu dies after the commencement of theHindu Succession Act 1956 leaving at the time of hisdeath an interest in Mitakshara coparcenary property his interest in the property will devolve by survivorshipupon the surviving members of the coparcenary. Anexception is contained in the explanation to Section 30of the Act making it clear that notwithstanding anythingcontained in the Act the interest of a male Hindu inMitakshara coparcenary property can be disposed of byhim by Will or any other testamentary disposition ...”.18.It is pertinent to note that Section 6 and 19 of theHindu Succession Act 1956 deals with devolution ofPage 18 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021interest in coparcenary property as well as mode ofsuccession of two or more heads respectively. Boththese provisions provide as under: Section 6:Devolution of interest in coparcenary property. —(1) On and from the commencement of the HinduSuccessionAct 2005 in a Joint Hindufamily governed by the Mitakshara law the daughter ofa coparcener shall —(a) by birth become a coparcener in her own right in thesame manner as the sonhave the same rights in the coparcenary property asshe would have had if she had been a sonbe subject to the same liabilities in respect of thesaid coparcenary property as that of a son and anyreference to a Hindu Mitakshara coparcener shall bedeemed to include a reference to a daughter of acoparcener: Provided that nothing contained in this sub section shall affect or invalidate any disposition oralienation including any partition or testamentarydisposition of property which had taken place before the20th day of December 2004.(2) Any property to which a female Hindu becomesentitled by virtue of sub sectionshall be held by herwith the incidents of coparcenary ownership and shallbe regarded notwithstanding anything contained in thisAct or any other law for the time being in force in asproperty capable of being disposed of by her bytestamentary disposition.(3) Where a Hindu dies after the commencement of thePage 19 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021Hindu SuccessionAct 2005 his interestin the property of a Joint Hindu family governed by theMitakshara law shall devolve by testamentary orintestate succession as the case may be under this Actand not by survivorship and the coparcenary propertyshall be deemed to have been divided as if a partitionhad taken place and —(a) the daughter is allotted the same share as is allottedto a sonthe share of the pre deceased son or a pre deceaseddaughter as they would have got had they been alive atthe time of partition shall be allotted to the survivingchild of such pre deceased son or of such pre deceaseddaughter and(c) the share of the pre deceased child of a pre deceased son or of a pre deceased daughter as suchchild would have got had he or she been alive at thetime of the partition shall be allotted to the child ofsuch pre deceased child of the pre deceased son or apre deceased daughter as the case may be.Explanation. —For the purposes of this sub section theinterest of a Hindu Mitakshara coparcener shall bedeemed to be the share in the property that would havebeen allotted to him if a partition of the property hadtaken place immediately before his death irrespectiveof whether he was entitled to claim partition or not.(4) After the commencement of the Hindu Succession(Amendment) Act 2005 no court shall recognise anyright to proceed against a son grandson or great grandson for the recovery of any debt due from hisfather grandfather or great grandfather solely on theground of the pious obligation under the Hindu law ofPage 20 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021such son grandson or great grandson to discharge anysuch debt: Provided that in the case of any debtcontracted before the commencement of the HinduSuccessionAct 2005 nothing containedin this sub section shall affect—(a) the right of any creditor to proceed against the son grandson or great grandson as the case may be or(b) any alienation made in respect of or in satisfactionof any such debt and any such right or alienation shallbe enforceable under the rule of pious obligation in thesame manner and to the same extent as it would havebeen enforceable as if the Hindu Succession(Amendment) Act 2005 had not been enacted.Explanation. —For the purposes of clausetheexpression “son” “grandson” or “great grandson” shallbe deemed to refer to the son grandson or great grandson as the case may be who was born or adoptedprior to the commencement of the Hindu Succession(Amendment) Act 2005 .(5) Nothing contained in this section shall apply to apartition which has been effected before the 20th dayof December 2004. Explanation. —For the purposes ofthis section “partition” means any partition made byexecution of a deed of partition duly registered underthe Registration Act 1908or partitioneffected by a decree of a court.] Statement of Objectsand ReasonsAct 2005] Section 6 of the Act deals with devolution ofinterest of a male Hindu in coparcenary property andrecognises the rule of devolution by survivorship amongthe members of the coparcenary. The retention of theMitakshara coparcenary property without including thePage 21 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021females in it means that the females cannot inherit inancestral property as their male counterparts do. Thelaw by excluding the daughter from participating in thecoparcenary ownership not only contributes to herdiscrimination on the ground of gender but also has ledto oppression and negation of her fundamental right ofequality guaranteed by the Constitution having regardto the need to render social justice to women the Statesof Andhra Pradesh Tamil Nadu Karnataka andMaharashtra have made necessary changes in the lawgiving equal right to daughters in Hindu Mitaksharacoparcenary property. The Kerala Legislature hasenacted the Kerala Joint Hindu Family Systemin a joint Hindu family governed by Mitakshara law the daughter of a co parcener shall by birth become aco parcener in her own right in the same manner as theson and have the same rights in the co parcenaryproperty as she would have had if she had been a soninclusive of the right to claim by survivorship and shallbe subject to the same liabilities and disabilities inrespect thereto as the sonat a partition in such a joint Hindu family the co parcenary property shall be so divided as to allot to aPage 22 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021daughter the same share as is allotable to a son:Provided that the share which a predeceased son or apredeceased daughter would have got at the partition ifhe or she had been alive at the time of the partition shall be allotted to the surviving child of suchpredeceased son or of such predeceased daughter:Provided further that the share allotable to thepredeceased child of a predeceased son or of apredeceased daughter if such child had been alive atthe time of the partition shall be allotted to the child ofsuch predeceased child of the predeceased son or ofsuch predeceased daughter as the case may beany property to which a female Hindu becomesentitled by virtue of the provisions of clauseshall beheld by her with the incidents of co parcenaryownership and shall be regarded notwithstandinganything contained in this Act or any other law for thetime being in force as property capable of beingdisposed of by her by will or other testamentarydispositionnothing in clauseshall apply to a daughtermarried prior to or to a partition which had beeneffected before the commencement of Hindu Succession(Karnataka Amendment) Act 1990.6B Interest to devolve by survivorship on death. —When a female Hindu dies after the commencement ofthe Hindu SuccessionAct 1990 having at the time of her death an interest in aMitakshara co parcenary property her interest in theproperty shall devolve by survivorship upon thesurviving members of the co parcenary and not inaccordance with this Act: Provided that if the deceasedPage 23 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021had left any child or child of a pre deceased child theinterest of the deceased in the Mitakshara co parcenaryproperty shall devolve by testamentary or intestatesuccession as the case may be under this Act and not bysurvivorship.(Explanations) —For the purposes of this section theinterest of female Hindu Mitakshara co parcenary shallbe deemed to be the share in the property that wouldhave been allotted to her if a partition of the propertyhad taken place immediately before her death irrespective of whether she was entitled to claimpartition or not.(2) Nothing contained in the proviso to this section shallbe construed as enabling a person who before thedeath of the deceased had separated himself or herselffrom the co parcenary or any of his or her heirs to claimon intestacy a share in the interest referred to therein.6C Preferential right to acquire property in certaincases. —(1) Where after the commencement of HinduSuccessionAct 1990 aninterest in any immovable property of an intestate or inany business carried by him or her whether solely or inconjunction with others devolves under sections 6A or6B upon two or more heirs and any one of such heirsproposes to transfer his or her interest in the property orbusiness the other heirs shall have a preferential rightto acquire the interest proposed to be transferred.(2) The consideration for which any interest in theproperty of the deceased may be transferred under sub sectionshall in the absence of any agreementbetween the parties be determined by the court onPage 24 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021application being made to it in this behalf and if anyperson proposing to acquire the interest is not willing toacquire it for the consideration so determined suchperson shall be liable to pay all costs of or incidental tothe application.(3) If there are two or more heirs proposing to acquireany interest under this section that heir who offers thehighest consideration for the transfer shall be preferred.Explanation.— In this section court means the courtwithin the limits of whose jurisdiction the immovableproperty is situate or the business is carried on andincludes any other court which the State Governmentmay by notification in the Official Gazette specify in thisbehalf.The contention of the petitioners that there wasautomatic partition amongst the heirs of the deceasedKarta on his death has been negatived because it is onlywhen the deceased had left his surviving female heirs asprovided in proviso to section 6 of the Act a notionalpartition is deemed to have taken place in the jointfamily property for the purpose of ascertaining the shareof the deceased in the joint family properties whichcomes to the share of the female heirs. If there are maleheirs there is no automatic partition ShivgondaBalgonda Patil v. Director of Resettlement AIR 1992Bom 72.(ii) The heirs will get his or her share in the interestwhich the deceased had in the coparcenary property atthe time of his death in addition to the share which heor she received or must be deemed to have received inthe notional partition Gurupad v. Hirabai AIR 1978 SC1239.Page 25 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021(iii) The fiction in the explanation of section 6 of the Actshould be carried to a narrow extent only with a newpoint to implement the purpose for which it wasintroduced. When there were only two coparceners andone of them died then if any person other then thecoparcener is entitled to a share as a result of severanceof the share of the deceased coparcener the share ofsuch other person will become fixed Shushilabai v.Naraynarao AIR 1975 Bom 257.(iv) The deceased coparcener s share gets fixed on thedate of his death subsequent fluctuations in thefortunes of the coparceners do not affect it Karuppa v.Palaniammal AIR 1963 Mad 254.19. Mode of succession of two or more heirs.—If two ormore heirs succeed together to the property of anintestate they shall take the property —(a) save as otherwise expressly provided in this Act percapita and not per stirpes and(b) as tenants in common and not as joint tenants.19.In the case of M. Arumugam Vs. Ammaniammaland Ors. reported in11 SCC 103 theApex Court in Para 10 has observed as under:“10. When we read Section 6 of the Succession Act theopening portion indicates that on the death of a maleHindu his interest in the coparcenary property shalldevolve by survivorship upon the surviving members ofthe coparcenary and not in accordance with the Act.That would mean that only the brothers would get theproperty. However the Proviso makes it clear that if thedeceased leaves behind a female heir specified in Class I of the Schedule the interest of the deceased in thecoparcenary property shall devolve either byPage 26 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021testamentary or by intestate succession under theSuccession Act and not by survivorship. The openingportion of Section 6 as it stood at the relevant time clearly indicates that if male descendants were the onlysurvivors then they would automatically have the rightsor interest in the coparcenary property. Females had noright in the coparcenary property at that time. It was toprotect the rights of the women that the proviso clearlystated that if there is a Class I female heir the interestof the deceased would devolve as per the provisions ofthe Act and not by survivorship. The first Explanation toSection 6 makes it absolutely clear that the interest ofthe Hindu coparcener shall be deemed to be his share inthe property which would have been allotted to him ifpartition had taken place immediately before his death”.20.The Supreme Court has referred to the case ofGurupad Khandappa Magdum v. HirabaiKhandappa Magdum and Ors reported in(1978) 3 SCC 383 wherein it was held in Para 11that the partition which was a deemed partitioncannot be limited to the time immediately prior to thedeath of the deceased coparcenary but “all theconsequences which flow from a real partition haveto be logically worked out which means that theshare of the heirs must be ascertained on the basisthat they had separated from one another and hadreceived a share in the partition which had takenplace during the life time of the deceased.: This Courtfurther held that the partition has to be treated andPage 27 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021accepted as a concrete reality something thatcannot be recalled at a later stage.”21.The Supreme Court has also referred to the judgmentof Appropriate Authorityand Ors v.Arifulla and Ors. reported in10 SCC 342wherein the issue arose was whether the propertyinherited in terms of Sections 6 and 8 of theSuccession Act was to be treated as the property ofco owners or as joint family property. The Court hasheld as follows:“3. … This Court has held in CWT vs. Chander Sen that aproperty devolving under Section 8 of the HinduSuccession Act is the individual property of the personwho inherits the same and not that of the HUF. In fact in the special leave petition it is admitted thatrespondents 2 to 5 inherited the property in questionfrom the said T.M. Doraiswami. Hence they held it astenants in common and not as joint tenants.”22.Regarding the status of the Karta as a Manager of thejoint family property the Supreme Court in Para 17 in theaforesaid case of M. Arumugam Vs. Ammaniammal andOrs.(Supra) has observed as under:“17. A Karta is the manager of the joint family property.He is not the guardian of the minor members of the jointfamily. What Section 6 of the Act provides is that thenatural guardian of a minor Hindu shall be his guardianfor all intents and purposes except so far as thePage 28 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021undivided interest of the minor in the joint familyproperty is concerned. This would mean that the naturalguardian cannot dispose of the share of the minor in thejoint family property. The reason is that the Karta of thejoint family property is the manager of the property.However this principle would not apply when a familysettlement is taking place between the members of thejoint family. When such dissolution takes place andsome of the members relinquish their share in favour ofthe Karta it is obvious that the Karta cannot act as theguardian of that minor whose share is beingrelinquished in favour of the Karta. There would be aconflict of interest. In such an eventuality it would bethe mother alone who would be the natural guardianand therefore the document executed by her cannotbe said to be a void document. At best it was a voidabledocument in terms of Section 8 of the Act and shouldhave been challenged within three years of the plaintiffattaining majority”.23.Having considered the contentions made by learnedadvocate for both the sides coupled with aforesaidlegal aspects and facts of the case and on perusal ofthe judgment of the trial Court along with thejudgment of first appellate Court it is crystal clearthat there is concurrent findings of fact that the suitproperties were self acquired properties of thedeceased Diwala Gausa. This concurrent finding offacts based on the evidence on record and thisbeing Second Appeal this Court has limitedjurisdiction to interfere with the findings of fact inabsence of any material illegality or mis appreciationPage 29 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021of evidence on record of the Court below. Therefore the question of the suit properties being self acquiredproperties by the deceased Diwala Gausa is wellestablished. On perusal of both the judgment it isclear that the stand taken by the original plaintiff thatthe suit properties were ancestral properties whichwere purchased after the sale of the joint familywhich was situated in another village is not believedby both the Courts below. Further there is no cogentevidence on record to suggest that the suit propertieswere purchased from the sale price of the ancestralproperties. It is clear from the documentary evidencethat the deceased Diwala Gausa has purchased thesame under the Bombay Tenancy and AgriculturalLands Act and there is entry to that effect in thegovernment record. This concurrent findings of facthas not been challenged by the original plaintiff byfiling any objection or any Appeal herein.24.Now the controversy is regarding as to whether thedeceased Diwala Gausa had any authority to executeany Will of the suit properties in favour of thePage 30 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021defendant herein. It is held by the trial Court that thesuit property being self acquired properties of thedeceased he has authority to execute the Will. Thisfindings of the fact has not been interfered with bythe first appellate Court however the controversy inthe matter is regarding the genuineness of the Will atExh 49 alleged to be executed by the deceasedDiwala Gausa on 11.1.1975.25.On perusal of the judgment of the first appellateCourt it is found that the first appellate Court hasinterfered with the decision of the trial Courtregarding the execution of the Will by the deceasedon the following grounds:1.There is no description of the properties in theWill.2.There is recital in the Will that the deceased hasonly one son whereas he had two sons.3.There is discrepancy of the oral evidence of theimportant witnesses of the defendant regardingthe colour of the thumb impression i.e. blue orblack of the deceased. Page 31 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 20214.There is contradictory version of the defendantwitness regarding purchase of the stamp.5.There is contradictory evidence of thedefendant’s witness as to whether the draftingof the Will was done while they were sittingeither on the Otta of the house of the scribe orin the interior room of the scribe namelyGemalsinh.6.Non examination of the scribe i.e. Gemalsinh ofthe Will.7.That the deceased was suffering from Paralysisand he was not in a position to execute Will ashe was ill before the time of his death.8.The registration of the Will after the death of thedeceased.26.On the aforesaid ground the first appellate Court hasdoubted the execution of the Will and has observedthat the Will at Exh 49 alleged to be executed by thedeceased Diwala Gausa is suspicious one and itcannot be relied on for the facts of the bequeath ofPage 32 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021the properties in the name of the defendant who isgrand son of the deceased.27.It is pertinent to note that in support of the executionof the alleged Will the defendant has examinedhimself at Exh 47 and his witnesses namely JethabhaiKeshavbhaiatExh 48 Chhaganbhai Lakhabhai at Exh 53 RavjibhaiBhimjibhaiat Exh 56 Dalpatbhai Nadabhai Chaudhari at Exh 58 whereasthe plaintiff has examined himself namely AkhaDiwala at Exh 23 and his witnesses namely AkhabhaiMichhlabhai at Exh 43 and has also produceddocumentary evidence which consist of entries of therevenue record.28.As regards the capacity to execute or make a Will aswell as construction of Will the provisions containedin the Indian Succession Act 1925 needs to be takeninto consideration. Section 59 and Section 82 of theIndian Succession Act respectively provide as under:Page 33 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021“Section 59. Person capable of making wills.—Every person of sound mind not being a minor maydispose of his property by will. Explanation 1.—A married woman may dispose by will ofany property which she could alienate by her own actduring her life. Explanation 2.—Persons who are deaf or dumb or blindare not thereby incapacitated for making a will if theyare able to know what they do by it. Explanation 3.—A person who is ordinarily insane maymake a will during interval in which he is of sound mind.Explanation 4.—No person can make a will while he is insuch a state of mind whether arising from intoxicationor from illness or from any other cause that he does notknow what he is doing.Section 82. Meaning or clause to be collectedfrom entire Will.—The meaning of any clause in a Willis to be collected from the entire instrument and all itsparts are to be construed with reference to each other.28.1In view of the aforesaid provision even a person whoare deaf or dumb or blind can make a Will if they areable to do what they do by it. Not only that even aperson who is insane may make a Will during intervalif he is of sound mind. Therefore under Section 59 only rider for non capability of making Will is of beingminor who is prohibited to dispose of his property byWill. Except minor as provided in explanation underSection 59 other persons as referred to above canexecute Will.Page 34 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 202128.2For consideration of a Will as provided under Section82 as referred to hereinabove the meaning of anyclause in the Will is to be collected from the entireinstrument and all its parts are to be construed withreference to each other. There cannot be a piecemealreading of a Will.29.Further a Will is an instrument of testamentarydisposition of property being a legally acknowledgedmode of bequeathing a testator’s acquisitions duringhis life time to be acted upon only on his herdemise it is no longer res integra that it carries withit an overwhelming element of sanctity. A Will needsto be attested by the witnesses. Section 68 of theEvidence Act deals with the proof of execution ofdocument required by law to be attested. Theprovision thereof runs as under:“Section 68: Proof of execution of document requied bylaw to be attested. If a document is required by law tobe attested it shall not be used as evidence until oneattesting witness at least has been called for thepurpose of proving its execution if there be an attestingwitness alive and subject to the process of the Courtand capable of giving evidence:unless its executionby the person by whom it purports to have beenexecuted is specifically denied.] 29.1Attested in relation to an instrument means andshall be deemed always to have meant attested bytwo or more witnesses each of whom has seen theexecutant sign or affix his mark to the instrument orhas seen some other person sign the instrument inthe presence and by the direction of the executant or has received from the executant a personalacknowledgment of his signature or mark or of thesignature of such other person and each of whomhas signed the instrument in the presence of theexecutant but it shall not be necessary that morethan one such witness shall have been present at thesame time and no particular form of attestation shallbe necessary.29.2The Supreme Court in Beni Chand v. Kamala Kunwar reported in AIR 1977 SC 63 held that by attestation ismeant the signing of a document to signify that theattestor is a witness to the execution of thePage 36 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021document and by Section 63(c) of the IndianSuccession Act 1925 an attesting witness to a Will isone who signs the document in the presence of theexecutant after seeing the execution of thedocument or after receiving a personalacknowledgment from the executant as regards theexecution of the document.29.3In order to assess as to whether the Will has beenvalidly executed and is a genuine document thepropounder has to show that the Will was signed bythe testator and that he had put his signatures to thetestament of his own free will that he was at therelevant time in a sound disposing state of mind andunderstood the nature and effect of the dispositionsand the testator had signed in the presence of twowitnesses who attested it in his presence and thepresence of each other. Requirement of Section 68of the Evidence Act in proving the Will is to produceat least one of the attesting witnesses. In view of theprovisions of Section 68 of the Evidence Act there isPage 37 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021no need to examine the scribe of Wil. What lawrequires is examination of atleast on attestingwitness.30.In view of the aforesaid legal preposition there is noneed of examining scribe of the Will. The only legalrequirement is examination of one attesting witness.Nows in this case the defendant side has examinedboth the attesting witnesses viz.Shri JethabhaiKeshavbhaiandShri RavjibhaiBhimjibhaiwherein they have categoricallystated that the deceased has executed Will in theirpresence and deceased has put his thumbimpression on the Will at Exh 49 and at that time thedeceased was in sound state of mind. However thelearned appellate Court has heavily relied on the factthat the scribe of the Will has not been examined bythe defendant. This reasoning and observation of thelearned first Appellate Court is not in consonancewith the legal requirement for the proof of the Will.31.It is pertinent to note that the first Appellate CourtPage 38 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021has also heavily relied on the fact that the testator inhis Will has mentioned that he has only one son andhas doubted the genuineness of the Will. On thisground it is well settled principles of law that whileinterpreting the Will the entire Will has to be readand construed. There cannot be reading of the Willpiece meal. Now on reading of alleged Will at Exh 49 there is clear averment that deceased has otherson namely Akho who is plaintiff is residing with hisfather in law and has left him and he has never takencare of the testator and due to that he is notreserving any right in favour of him in deceased’sproperties. It is also averred in the Will that hisgrand son is maintaining him since his Son Akho lefthim to reside with his father in law. This fact clearlysuggests that the testator has knowledge regardinghis second Son Akho and due to his not taking care ofhim during his entire life he has left out fromproperties. This recital has not been taken intoconsideration by the first Appellate Court. Sinceplaintiff has not maintained his deceased fatherPage 39 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021Diwala Gausa it is natural for the deceased DiwalaGause to exclude his own son from getting any sharein the self acquired properties and there is nothingwrong in bequeathing the entire properties to hisgrand son who has maintained the deceased.Therefore the observation and the reasoning on thepart of the first Appellate Court regarding suspiciouscondition as to execution of the Will is not inconsonance with the facts on record and is also notlegally tenable.32.Further there is consistent stand of the witnesses ofthe defendant appellant that all of them have went tothe scribe’s home at Mandvi along with deceasedand the Will was written by Shri Gebalsinh. Of course there is some discrepancy regarding the colour of theink used for thumb impression of the testator andwitnesses thereof but that fact has no relevance ason perusal of the Will along with the statementrecorded therein by the Sub Registrar Mandvi it isfound that there are some thumb impression inPage 40 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021black. Therefore it is possible for the witnessess ofthe defendant that they may have committed somemistake regarding the same. 33.it also reveals from the execution of Will at Exh 49that after his death the same has been got registeredand it has been registered by the Sub Registrar. Thisfact of Registration after the death of the deceasedhas some relevance for doubting the execution ofWill. But the action on the part of the concernedSub Registrar Mandvi in registering the Will after thedeath of the deceased Diwala Gausa is an act doneby Official for which the beneficiary of the Willcannot be blamed. It was for the concerned Sub Registrar not to register the Will after the death ofDiwala Gausa. Mistake as well as erroneous action onthe part of the Sub Registrar Mandvi cannot affectthe right of the person in whose favour the deceasedhas bequeathed his self acquired properties.34.On perusal of the entire evidence on record it clearlyPage 41 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021appears that all the legal requirements of proving theWill has been satisfied and the factum of excludingthe plaintiff Akha from the properties by the testatoris reflected in the Will itself are sufficiently proved.Of course there is no description of the entireproperties in the Will. However there is specificaverment of bequeathing all his properties which areavailable at the time of his death to his grandson inthe Will. Therefore there is no question of non specification of properties in the Will. Theobservation made by the first Appellate Court in thisregard is also not in consonance with the facts andcircumstances of the case as well as on legalaspects.35.In view of the legal provisions as discussedhereinabove questions of law referred to above areanswered as under:(1)It is properly held by the trial Court that the Willwas executed in the sound state of mind by thedeceased Diwala Gausa.Page 42 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021(2)Since the properties were held to be self acquired properties of the deceased and ‘Will’ isfound to be valid the First Appellate Court hascommitted serious error of facts and law inpassing decree in favour of plaintiff for 1 2 sharein the suit properties. 36.Having considered all these facts and circumstancesof the case it clearly transpires that the firstAppellate Court has committed serious error of lawand facts in setting aside the decree passed by thetrial Court and therefore the decree passed by thefirst Appellate Court requires to be set aside Whereas the decree of dismissing the Suit as passedby the learned trial Court is required to be restored. 37.In view of the aforesaid discussion the presentAppeal is allowed. The Judgment and decree dated17.11.1981 passed by the First Appellate Court Surati.e. Assistant Judge Surat in Regular Civil Appeal No.33 1981 are hereby quashed and set aside. ThePage 43 of 44 on : Thu Jul 29 12:15:44 IST 2021 C SA 222 1982 JUDGMENT DATED: 02 07 2021judgment and decree dated 31.12.1980 passed bythe learned trial Court i.e. Civil JudgeMandvi inCivil Suit No. 108 78 are hereby restored. The suitfiled by the Respondent herein original plaintiffstands dismissed.37.1Considering the facts and circumstances of the case there will be no order as to costs.37.2Necessary decree to be drawn in this Second Appeal.37.3 Alongwith copy of this judgment and decree R&P tobe sent back to the learned trial Court.(DR. A. P. THAKER J) SAJ GEORGEPage 44 of 44 

Summary: While examining the Genuity of the will, the only legal requirement is examination of one attesting witness and there is no need to examine the scribe of the will. This was held by the Hon’ble Justice Shri A.P. Thaker in the case of Sonaji Raghala Chaudhari vs. Akha Diwala Chaudhari Thr’Heirs [R/SECOND APPEAL NO. 222 of 1982] on the 02nd of July before the Hon’ble High Court of Gujarat at Ahmedabad. The brief facts of the case are, the respondent is the son of Diwala Gausa (deceased). He got married and shifted to his father-in-law’s home and has not maintained his own father. The appellant is the grandson of the deceased and had lost his father when he was 12 years old and since then has been under the care of the deceased. The deceased in his will had allotted his full property to the grandson and had not allotted anything to the respondent. Aggrieved by this, the defendant filed a case against the appellant. the respondent had filed a Suit against present appellant being Suit No. 108/1978 for the partition alleging that the properties are of the joint family properties and possession of his 1/2 share in the suit property. According to him, the trial Court, by its judgment and decree dated 31.12.1980, dismissed the suit of the plaintiff against which the plaintiff has filed First Appeal No. 33/1981, wherein the First Appellate Court allowed the Appeal filed by the plaintiff. Being aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court, Surat passed in Regular Civil Appeal No. 33 of 1981 dated 17.11.1981, the appellant has preferred this Second Appeal under Section 100 of CPC. The counsel for the appellant submitted that, deceased Diwala Gausa has executed the Will whereby the properties have been bequeathed to the appellant herein. She has also submitted that the plaintiff has never resided with the deceased and he was residing with his wife at his father-in-law’s house. It was also submitted that the allegations made by the plaintiff regarding the properties being HUF, is not proper as entire properties were self-acquired properties of the deceased. They contended that the trial Court has, after considering the entire evidence on record, dismissed the suit of the plaintiff and the judgment and decree of the trial Court are tenable in the eyes of law. Furthermore, the plaintiff challenged the same before the appellate Court wherein the appellate Court has allowed the Appeal by declaring that the plaintiff has got 1/2 share in the properties and he is entitled for partition of the same. That the appellate Court also ordered to partition by metes and bounds and held that the plaintiff shall recover 1/2 share in the suit properties. The counsel for the respondent submitted that hat there are two agricultural properties and the deceased was only Karta of HUF. He has also submitted that the properties being agricultural lands and deceased being Karta of the HUF, the deceased had no right to bequeath the properties in favour of the defendant. He has also submitted that the deceased has not executed any Will and the Will produced in the matter is a fabricated one. He has also submitted that the properties are of joint family properties and, therefore, the plaintiff has 1/2 share in the same. He has also submitted that the trial Court has not framed any issues regarding the validity or execution of the “Will”. He has submitted that the suit was filed for partition only which is legal and valid. He has also submitted that the trial Court has not properly considered the evidence on record and has committed error in framing issues and has ultimately dismissed the suit of the plaintiff. the controversy in the matter is regarding the genuineness of the Will at Exh-49 alleged to be executed by the deceased Diwala Gausa on 11.1.1975. The learned court heard the submissions of both the parties and observed that the property in question was self-acquired. In answering the question of the Genuity of the will, the court relied on the judgment in Beni Chand v. Kamala Kunwar, reported in AIR 1977 SC 63, wherein, it was held that, “In order to assess as to whether the Will has been validly executed and is a genuine document, the propounded has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and the testator had signed in the presence of two witnesses who attested it in his presence and the presence of each other. Requirement of Section 68 of the Evidence Act in proving the Will is to produce at least one of the attesting witnesses. In view of the provisions of Section 68 of the Evidence Act, there is no need to examine the scribe of Wil. What law requires is examination of at least on attesting witness.”