LexRAMESH VERMA (D) TR. LRS. versus LAJESH SAXENA (D) BY LRS & ANR.
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A B c D E F G H (2016] 11S.C.R.210 RAMESH VERMA (D) TR. LRS. v. LAJESH SAXENA (D) BY LRS & ANR. (Civil Appeal No. 8665-8668 of2010) NOVEMBER 24, 2016 [R. K. AGRAWAL AND R. BANUMATHI, JJ.] Hindu Succession Act, 1956: Applicability of - Suit for partition of property in dispute by respondent no.1-daughter (since deceased) - Trial court held the respondent no.l entitled to 1112'1' share - High Court increased 1he share of respondent 110.l to J!Jnl - Plea of appellant-son (since deceased) that property left behind by lhe father was governed by survivorship under the Hindu Mitakshara coparcenary !all' and not Hindu Succession Act, 1956- Held: The share received by appellants father after a notional partition in 1952 was his separate property and no lunger a Mitakshara property - Thus, after the enact111e111 of Hindu Succession Act, 1956 devolution of such property of appellants father would be only by succession and not by survivorship - Madhya Bharat Land Code - s.82. s. 6 and its Proviso - Operation of - Appellants plea that High Court was not right in holding that u!s.6, Hindu Succession Act, 1956 females have right to seek partition and divide the share - Held: s.6 deals with the question of a coparcener dying after coming into operation of the Act, without making any testamentary disposition of his undivided share in joint family property - The Act does not interfere with special rights of members of Mitakshara property except that it ensures to the female heirs, as specified in Class I of the Schedule, a share in the i111erest of a coparcener in the event of his death - Proviso to s.6 operates when the deceased leaves surviving him, a daughter, or any female as specified in Class I of the Schedule - In the case at hand, the deceased father left behind a son and 2 female heirs, namely his wife and daughter-respondent no.1- Therefore, High Court rightly increased the share of the respondent no.1-daughter to 1/Jn'. s.23 - Dwelling house - "wholly occupied" - Right of female 210 RAMESH VERMA (0) TR. LRS. v. LAJESH SAXENA (D) BY LRS & ANR. heirs to claim partition thereof - Held: The expression dwelling house "'wholly occupied" occurring in s.23 assumes importance - In !he present case, it is brought in evidence 1/Jat !he house property was not wholly occupied by the family members and thus High Courl was right in holding that the house property was also available for parlition and the respondent no. ]-daughter was entitled to her share. Evidence Act, 1872 - s.68 - Will - Proof of- Held: A will like any other document is to be proved iii terms of the provisions of s. 68 of Indian Succession Act and the Evidence Act - Indian Succession Act, 1925. Dismissing the appeals, the Court HELD: 1. The appellant's father received his share in a notional partition in 1952 after the death of his father (appellant's grand-father). On such partition the share that had fallen to him became his separate property. After the Hindu Succession Act, 1956 devolution of such property is only by succession and not by survivorship. The appellant submitted that Section 6 of the Hindu Succession Act, 1956 is not applicable for the devolution of property of appellant's father and that the High Court was not right in holding that under Section 6 females have right to seek partition and thus dividing the share among female heirs as well. This submission does not impress. Section 6 deals with the question of coparcener in a Mitllkslwra coparcener dying after coming into operation of the Hindu Succession Act, without making any testamentary disposition of his undivided !.hare in the joint family property. The initial part of Section 6 stresses that the Act does not interfere with the special rights of those who are members of Mitaks/1ltrll property except to the extent that it seeks to ensure the female heirs as specified in Class I of the Schedule, a share in the interest of a coparcener in the event of his death, by introducing the concept ofa notional partition immediately before his death. Proviso to S. 6 operates w!iere the deceased has left surviving him, a daughter, or any female as specified in Class I of the Schedule. In the case at hand, appellant's father had left the female heirs namely his wife and daughter- respondent no.1 and therefore, the devolution of his property, which he received in a notional partition in 1952 after the death of his father, was govern
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