LexPAVITRI DEVI AND ANR. versus DARBARI SINGH AND ORS.
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A B c D PAVITRI DEVI AND ANR. v. DARBARI SINGH AND ORS. SEPTEMBER 7, 1993 [KULDIP SINGH AND K. RAMASWAMY, JJ.] Hindu Succession Act, 1956: Section 3(}-Testamentary Succes- sion-Mitakshara Coparcenary-Suit for Partition-Held, deceased upon making a demand for partition stood divided from other members of copar- cenary and became entitled to dispose of his undivided share and interest by testamentary disposition-Testamentary disposition means disposition of the property which would take effect after the death instead of eo-instantine on execution of document-Gift by a coparcener of his undivided interest is in- valid. Section 6-Mitakshara Coparcenary-Devolution of interest-Suit for partition by coparcener--Plaintiff died pending litigation-Plaintiff's daughter being class-I heir succeeds to estate by intestate succession. Code of Civil Procedure, 1908: Order 22, Rule 3-Suit for partition of E Mitakshara Coparcenary-Plaintiff died pending litigation-Daughter of deceased being class I heir, entitled to represent the estate. Words & Phrases: "Testamentary disposition'Yfeaning of. The Appellant's father filed a suit for partition against. his brothers F and their legal heirs claiming his share in the co·parcenary properties. The suit was dismissed by the trial court. While the appeal was pending before the High Court the plaintiff died. The appellant claiming herself and her son to be the legal heirs of the plaintiff, filed an application for substitu- tion. She claimed herself to be the daughter of the deceased. It was also G claimed that her father, through a registrered gift deed, gave her the entire share that would accrue to him in the joint family property, and was put in possession. The appellant court directed the trial court to ascertain and submit a report in respect of the date of death of the plaintiff and the appellants' H entitlement to the proporty. The trial court found that the plaintiff died 162 I - PA VITRI v. DAR BARI 163 on May 6, 1981 and not on June 8, 1981 and hence the appeal stood abated. A It also found the appellant was not his daughter. On receiving the report, the High Court held that since the plaintiff died on June 8, 1981, the application for substitution was within limitation. However, it accepted the finding of the trial court that the appellant was not the heir of the deceased. The High Court also held that the gift deed B executed was doubtful, and dismissed the appeal. In the appeal by special leave, the appellants contended that under Section 30 of the Hindu Succession Act, 1956 the deceased had power to dispose of his undivided share in the joint family property by testamentary C disposition including by way of gift to his daughter; that the deceased could bequeath his interest in the property by way of a gift and, therefore, the appellant became the successor in interest by devolution under Order 22 Rule 10 of the Civil Procedure Code, 1908 and entitled to be brought on record as a legal representative of her father to continue the appeal; that the appellant being the daughter of the deceased plaintiff equally could be D brought on record as a daughter, being a class I heir under Order 22 Rule 3 of the Civil Procedure Code 1908. Setting aside the order of the High Court and remitting the case to it, this Court HELD : 1.1. The deceased upon making a demand for partition, laid a suit in that behalf claiming a specific share in the Mitakshara Copar- cenary. Hence he stood divided from other members of the coparcenary and even though partition by metes and bounds had not taken place on E the date of his death, he was a dividing member of the joint family. By F operation of Sectio~ 30 he was entitled to dispose of his undivided share and interest in the coparcenary by testamentary disposition. [168-D-E] Jalaja Shedthi v. Lakshmi Shedthi, [1973] 1 SCR 707, followed Phoolchand v. Gopal Lal, [1967) 3 SCR 153; Baba v. Thimma, (1884) G 7 Mad. 357; Soorjeemoney Dossee v. Deenobundo Mullick, (1857) 6 Moore's Indian Appeals 523 at 553; Tagore v. Tagore, (1872) Indian Appeals (Suppl.) 47 and Subbaramani v: Ramanamma, (1920) I.LR. 43 Mad. 420, referred to. • 1.2. Testametary disposition means disposition of the property which H 164 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R. A would take effect after the death, instead of eo-instantine on the execution of the document. [167-C] B c Webster : Comprehensive Dictionary, Int
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