LAKSHMI CHAND KHAJURIA & ORS. versus SMT. ISHROO DEVI

Citation: [1977] 3 S.C.R. 400 · Decided: 31-03-1977 · Supreme Court of India · Bench: A.C. GUPTA · Disposal: Disposed off

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Judgment (excerpt)

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B 
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400 
LAKSHMI CHAND KHAJURIA & ORS. 
v. 
SMT. ISHROO DEVI 
March 31, 1977 
[A. C. GUPTA AND P. S. KAILASAM, JJ.] 
Te1tan1e1!tary Will disposing of the ancestral property to a far 
relation, 
whether valid under s. 27 of the J'!mmu & Kashmir Hindu Succe.rsion 
Act, 
19~6-Scope o~ s. 27 and explanation thereto-Whether income of a hereditary 
priest, !'l hereditary pr~perty-Mitakshara law as 
applicable 
to 
Jammu 
& 
Ka.shm1r-Though a wife cannot demand a partition she is entitled to receive 
a share equal to that of a son and to hold and en;oy that share .separately even 
from her husband. 
On the. stren~h of a Will dated 25th May 1959, executed in her favour by 
one Purohxt Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery 
of the schedule property in the plaint. It was alleged in the plaint that the 
appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram) 
after the death of Purohit Mani Ram wrongfully dispossed her after getting the 
name of appellant No. 1 mutated in the records and that the three items of the 
schedule property were the separate properties of the testator and that he was 
entitled to dispose them under the Will. 
The appellants averred in their written 
statement that the properties belonged to the joint family of which the first 
appellant and his father Purohit Mani Ram were men1bers and as the properties 
were joint family properties, they cannot be disposed of by Will. It was further 
aUeged that the Will was a forged one and is fictitious. 
The trial court, accept-
ing the evidence of PWl, an advocate, who advised in the preparation of the 
Will and also an attesting witness, PW2 the scribe and PW3 who deposed 
the fact that the properties were self-acquired ones of late Purohit Mani Ram. 
decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed 
the claim as regards items 1 (b) and 2 holding that they were ancestral ones. 
On appeal, the High Court accepted the findings of the trial court and confirmed 
the decree as regards item 1 (a) of the property but modified the order as 
regards item 1 (b) and 2 by allowing the claim of the respondent to the extent 
of t share since under s. 27 of the Jammu & Kashmir Hindu Succession Act 
1'1ani Ram was entitled to dispose of his interest in the joint family property by 
Will. 
Jn appeal by certificate to this Court, the appellant contended : (i) The Will 
was not a valid one for the reasons, namely, (a) it was ante dated in order to 
escape the prohibition against alienation introduced by Ordinance \Vhich caII)e 
into force in July 1959; (b) the signature on the Will was forged; (c) the Will 
is a most unnatural one as it had not provided for the son or the wife or any 
near relative but has provided to a distant relative and (d) in a suit for parti-
tion filed by the son against Mani Ram, the latter gave an undertaking in the 
court not to alienate his properties which would improbalise the execution of 
th~ Will. 
(ii) The hereditary profession of Mani Ram being that of a priest 
whatever he earned while practising that profession and all his acquisitions should 
be held to be joint family property. 
(iii) In view of the Mitakshara law apnli-
cable to the estate when partition of the joint family property takes place during 
the father's life time at the instance of the son, the mother also has 
a share 
equal to him. 
The Court confirmed the decree in respect of item 1 (a) of the property in 
favour of the respondent, modified the decretal order of the High Court in re.s-
pec! of items l(b) and 2 of the schedule property as I/3rd. in favour of appel-
lant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd 1n favour of respon-
dent as entitled by the Will. 
The Court, 
HELD: (!) The plea that the Will was executed after July 1959 when there 
was a prohibition against the alienation and that it was pre-dated and not executed 
• 
L. c. KHAJURIA v. ISHROO DEVI (Kaifasam, J.) 
40 I 
on the day on which it purports to be is without any 15ubstance and against the 
A 
evidence on record. [403 H, 404 A] 
(2) The contention that the Will is an unnatural one is also without subs-
tance. The non-disclosure of the execution of the Will is understandable because 
Mani Ram did not want anyone, particularly his son, to know about rus iis-
possessing of the property by Will. [404 B, DJ 
(3) The findings of the two lower courts that the Will is a genuine one and 
was executed by

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