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HIGH COURT OF HIMACHAL PRADESH

KARTARI DEVI AND ORS

V/S
TOTA RAM

Date of Decision: 01 October 1991

Citation: 1991 LawSuit(HP) 174

Hon'ble Judges: Kamlesh Sharma

Eq. Citations: 1992 (1) ShimLC 402

Case Type: Regular Second Appeal

Case No: 107 of 1979

Subject: Civil, Family, Family

Acts Referred:
Hindu Succession Act, 1956 Sec 30, Sec 4

Advocates: Bhupender Gupta, K D Sood

Reference Cases:
Cases Cited in (+): 1
Cases Referred in (+): 5

Judgement Text:-

Kamlesh Sharma, J

[1] This is a Regular Second Appeal against the decree and judgment dated 23rd June,
1979 passed by the Additional District Judge, Kangra at Dharamshala, whereby the
decree and judgment dated 22nd June, 1978 of Senior Sub-Judge. Kangra at
Dharamshala, was affirmed and the suit of Respondent-plaintiff, Tota Ram, was
decreed.

[2] The facts of the matter are that one Kapura had three sons, namely. Narainu,
Gopala and Surat Ram. Out of them, Narainu died on 6-6-1967 and did not leave
behind either widow or any child. He bequeathed his property, which is subject matter of
the present litigation, in favour of two of the sons of his brother Surat Ram, namely,
Lashkri, the original defendant and Udham Singh, the present Appellant-defendant No.
2. Lashkri had died in the lower Court and his legal representatives, Smt Kartari Devi
and Ors. , were brought on record, who are now Appellants-defendants No.1 and 3 to 6.
The original Plaintiff was Gopala who had also died in the trial Court and his legal
representative, Tota Ram, was substituted in his place. The original plaintiff, Gopala.
Had filed a suit for possession of the land in dispute challenging the will executed by
Narainu in favour of original defendant Lashkri and Udham Singh. His claim was that
after the death of Narainu on 6-6-1967, he being his brother, had a right to inherit his
property. According to him, the will dated 14-2-1966 was not a valid will binding on his
rights His case, further was that parties being agriculturist Rajputs were governed by
custom under which Narainu had no right to execute a will of the land which he had
inherited from a common ancestor.

[3] The suit was resisted by Kartari Devi and Ors. and all the allegations made therein
were denied. It was alleged that the will made in their favour was in lieu of services and
was valid. According to Kartari Devi and Ors. , neither the parties were governed by
custom as alleged by Tota Ram nor the land in dispute was ancestral. The trial Court
held the will as valid will but decreed the suit holding that the parties were governed by
custom under which Narainu had no right to execute the will in respect of the suit
property which was ancestral. These findings were confirmed in appeal filed by Smt.
Kartari Devi and Ors. . Hence the present Regular Second Appeal.

[4] I have heard the learned Counsel for the parties and gone through the record. The
first point urged by Sh. K.D. Sood, learned Counsel for Smt. Kartari Devi and Ors. , is
that the alleged custom, that ancestral property could not be alienated by way of will,
stands abrogated by Section 30 read with Section 4 of the Hindu Succession Act, 1956
(hereinafter referred to as 'the Act'). According to him, if it is held so, then Smt. Kartari
Devi and Ors. will inherit the property of Narainu by way of will dated 14-2-1966
executed by him which has been held to be valid will by both the Courts below and
these findings have not been challenged by Tota Ram. For appreciating this argument,
sections 4 and 30 of the Act are required to be examined.

Section 4 of the Act is as under:

Overriding effect of Act.--

(1) Save as otherwise expressly provided in this Act,--

(a) any text, rule or interpretation of Hindu law or any custom or usage as
part of that law in force immediately before the commencenent of this Act
shall cease to have effect with respect to any matter for which provision is
made in this Act;

(b) any other law in force immediately before the commencement of this Act
shall cease to apply to Hindus in so far as it is inconsistent with any of the
provisions contained in this Act.

(2) For the removal of doubts it is hereby declared that nothing contained in
this Act shall be deemed to affect the provisions of any law for the time being
in force providing for the prevention of fragmentation of agricultural holdings
or for the fixation of ceilings or for the devolution of tenancy rights in respect
of such holdings.

This section gives an overriding effect to the Act. According to Section

4(1)(a), all the rules of law of succession applicable to Hindus before coming
into force of the Act, whether by virtue of any text or rule of Hindu Law or any
custom or usage, having the force of law, stand abrogated in respect of all
matters for which provision is made in the Act. Further, under Sub-section
(1)(b) of the Act, any other law contained in any Central or State legislation
in force immediately before this Act came into being, was also superseded in
so far as such legislation is inconsistent with the provisions contained in the
Act.
 Section 30 of the Act is as under:

Testamentary succession.--Any Hindu may dispose of by will or other

testamentary disposition any property, which is capable of being so disposed
of by him, in accordance with the provisions of the Indian Succession Act,
1925 (39 of 1925), or any other law for the time being in force and applicable
to Hindus.

Explanation,--The interest of a male Hindu in a Mitakshara coparcenary

property or the interest of a member of tarvad, tavazhi, illom, kutumba or
kavaru in the property of the tarvad. tavazhi, illom, kutumba or kavaru shall,
notwithstanding anything contained in this Act or in any other law for the time
being in force, be deemed to be property capable of being disposed of by
him or by her within the meaning of this section.

Section 30 is the sole section included in Chapter III which provides for
testamentary succession The other provisions from Section 5 to Section 29
included in Chapter II of the Act pertain to intestate succession with which
we are not concerned in the present case In fact, as is apparent from the
preamble of the Act, the object of the Act was to "amend and codify the law
relating to intestate succession among Hindus " Yet, in their wisdom, the
legislature has added Section 30 and provided for testamentary succession.

[5] Now, it is to be seen how far Section 30 of the Act has made inroads into the Hindu
Law The Mitakshara system of Hindu law recognises two modes of devolution of
property, namely, survivorship and succession. The rule of survivorship applies to Joint
Hindu Family property whereas the rule of succession applies to separate property of
the members of Joint Hindu Family. Further, under the Mitakshara system, every
member of Joint Hindu Family has only one undivided interest in the joint property. The
Joint Hindu Family consists of all persons lenially descendant from a common ancestor
including their wives and unmarried daughters. But a coparcenaries is a much narrower
body and it includes only those persons who acquire, by birth, an interest in the joint or
coparcenaries property and they are the sons, grand sons and great grand sons of the
holder of joint property, in other words, the three generations next to the holder in
unbroken male descent. No female can become coparcener under the Mitakshara law.
Similarly, the ancestral property is the property inherited by a male Hindu from his
father, father's father or father's father's father. The essential featurss of ancestral
property, according to the Mitakshara system, are that the sons, grand sons and great
grand sons of the person who inherits it acquire an interest in it by birth and their rights
attach to it at the moment of their birth. As such, coparcenaries property under the
Hindu law includes ancestral property.

[6] The Act has neither abolished the Joint Hindu Family nor the Joint Hindu Family
property nor it has interfered with the special rights of those who are members of
Mitakshara coparcenary body except in the manner and to the extent mentioned in
sections 6 and 30 of the Act. In the present case, we are concerned with Section 30,
which, alongwith its explanation, provides that a male Hindu may dispose of his interest
in a Mitakshara coparcenary property by way of a will. By the explanation, the interest of
a male Hindu in a Mitakshara coparcener property has been held to be the property
capable of being disposed of in accordance with the provisions of the Indian Succession
Act or any other law for the time being in force and applicable to Hindus. As the Indian
Succession Act provides for testamentary succession by way of a will, it follows that the
interest of a male Hindu in Mitakshara coparcenary property is capable of being
disposed of by way of a will or other testamentary disposition. By using a non-obstante
clause, that is, "notwithstanding anything contaiued in this Act or any other law for the
time being in force", the explanation to Section 30 has been given an overriding effect.
Even if there is anything contrary in the Act or any other law, which includes custom
also, the interest of a male Hindu in Mitakshara coparcenary property is capable of
being disposed of by way of will. In other words, the bar created by way of custom that
the coparcenary property is not capable of being alienated by executing a will by one of
the coparceners is taken away and rule of survivorship is finished to a limited extent. But
it continues to apply in the case of gift and other alienations which are inter vivos.

[7] Therefore, in view of Section 30 of the Act, which specifically provides that interest of
a male Hindu in Mitakshara coparcenary property is capable of being disposed of by
way of will irrespective of any provision in the Act or any other law to the contrary, read
with Section 4 of the Act, I hold without any hesitation that any custom prohibiting
testamentary succession by way of will of a coparcenary property stands abrogated. In
view of Section 30 read with Section 4 of the Act, a male Hindu governed by Mitakshara
system is not debarred from making a will in respect of coparcenary/ancestral property.
[8] For taking this view, I have taken support frorn Full Bench Judgment of Calcutta
High Court in Commisiioner of Wealth Tax, West Bengal, III Calcutta v. Sampatral
Bhutoria and Sons, 1982 137 ITR 868, wherein in para 17 it has been held as under:

Again, Section 30 of the Act makes provision for a male governed by

Mitakshara Law to dispose of by a testament his interest in the coparcenary
property, in such a case the provisions of sections 6 and 8 would not be
applicable. The general law of Mitakshara branch is now repealed by
Explanation to Section 30 which lays down that such interest of a Hindu
male under Mitakshara is to be deemed to be the property capable of being
disposed of by will....

[9] A similar view was taken by a Division Bench of Madras High Court in S.V.
Sundaresan v. Assistant Controller of Estate Duty Combater, 1983 144 ITR 916. In Para
16 it has been observed:

...According to the original Mitakshara law, no coparcener, not even a father

could dispose of by will his undivided coparcenary interest even if the other
coparceners consent to the disposition. This is because the moment the
coparcener died his undivided interest devolved by survivorship on the other
coparceners. The title by survivorship was considered to take precedence to
the exclusion of that by devise. This rule of Mitakshara law has now been
abrogated by Section 30 and the Explanation thereto Section 30 read with
the explanation only empowers a coparcener to dispose of his property by
will in accordance with the provisions of the Indian Succession Act, 1925 or
any other law for the time being in force. The section is confined only to
testamentary disposition and does not cover disposition by way of gift inter
vivos....

[10] The learned Counsel for the respondent, Sh. Bhupender Gupta, has relied upon
Kaur Singh Gajjan Singh v. Jaggar Singh Kehar Singh, 1961 AIR(P&H) 489; Sundara
Adapa and Ors. v. Girija and Ors., 1962 AIR(Mys) 72and Joginder Singh Kundha Singh
v. Kehar Singh Dasaundha Singh and Anr., 1965 AIR(P&H) 407, which are not
applicable to the present case as the interpretation of Section 30 read with Section 4 of
the Act was not directly involved therein.
[11] In the result, Smt. Kartari Devi and Ors. must succeed on the ground that the will
dated 14-2-1966 executed by Nara nu in their favour was a valid will and not hit by
custom as held by both the Courts below. In view of the interpretation of Section 30 read
with Section 4 given hereinabove, it is held that the alleged custom, that Narainu had no
right to bequeath his property by way of a will, which was ancestral property, stood
abrogated.

[12] In view of this finding, I need not consider the other points raised in the appeal.

[13] I, therefore, set aside the decree and judgment dated 23rd June, 1979 passed by
the Additional District Judge, Kangra at Dharamshala, and the decree and judgment
dated 22nd June, 1978 passed by the Senior Sub-Judge, Kangra at Dharamshala, and
dismissed the suit of Tota Ram. In view of the facts and circumstances of this case, the
parties are left to bear their own costs.