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Ramesh Verma (D) Tr. LRs. v. Lajesh Saxena (D) by LRs

Civil Appeal · Neutral citation not assigned (Civil Appeal Nos. 8665-8668 of 2010)Decided 24 Nov 2016
Civil Appeal Nos. 8665-8668 of 2010
Justice R. Banumathi · Justice R.K. Agrawal

Background

This was a family partition dispute over joint Hindu family property, where the plaintiff (Lajesh Saxena, daughter of Jagan Verma) sued in 1970 for her share, and the family's other branch (Ramesh Verma and others) relied on two Wills purportedly executed by two deceased family matriarchs (Jaydevi and Prabhavati) in their favour. The trial court accepted the Wills as genuine and gave the plaintiff only a 1/12th share, but the Madhya Pradesh High Court disbelieved both Wills (finding them not properly proved under Section 68 of the Evidence Act) and increased the plaintiff's share to 1/3rd, also holding that a partly-rented family house was available for partition. Ramesh Verma's legal heirs appealed to the Supreme Court against this enhanced share and the rejection of the Wills.

Decision Breakdown

The Supreme Court held that since Jagan Verma (whose property devolved to his heirs) died in 1967, after the Hindu Succession Act, 1956 came into force, his share was governed by Section 6 of that Act, which protects a female heir's entitlement via a notional partition, and the High Court was right to increase daughter Lajesh Saxena's share accordingly, rejecting the argument that survivorship under old Mitakshara law alone should apply. On the Wills, the Court reaffirmed that execution of a Will must be strictly proved under Section 68 of the Evidence Act (including examination of an attesting witness and proof of sound disposing mind), and found no reason to disturb the High Court's factual findings that both Wills were tainted by interested/unreliable witnesses and could not be accepted as genuine. On the family dwelling-house question, since evidence showed the house was not "wholly occupied" by family members (part of it was being rented out for events), Section 23 of the Hindu Succession Act (which can suspend a female heir's right to demand partition of a wholly-occupied family dwelling) did not apply, so the house was also rightly held partible. The appeals were accordingly dismissed, with each party bearing its own costs.

Lesson Learnt

A Will is never self-proving, even where its execution is unchallenged in pleadings, the person relying on it must still call an attesting witness and prove the testator's sound mind and free will; and a family dwelling house loses its special protection from partition under Section 23 of the Hindu Succession Act once it is no longer "wholly occupied" by the family (e.g., once part of it is rented out commercially).

Official source (sci.gov.in)View Judgment (PDF)

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