Civil Appeal No. 2535 of 2009 (Arising out of SLP (Civil) No. 9221 of 2007). Case: G. Sekar Vs Geetha and Ors.. Supreme Court (India)
| Case Number | Civil Appeal No. 2535 of 2009 (Arising out of SLP (Civil) No. 9221 of 2007) |
| Judges | S.B. Sinha and Mukundakam Sharma, JJ. |
| Issue | Hindu Succession Act, 1956 - Sections 4, 6, 6(1), 8, 9, 10, 13, 13(1), 13(2), 14, 23 and 25; Hindu Succession (Amendment) Act, 2005 - Section 3; Registration Act, 1908; General Clauses Act, 1897 - Sections 6 and 24; Employees' Provident Fund and Miscellaneous Provisions Act, 1952 - Section 16(1); Companies Act - Sections 645, 646 and 652; Delhi... |
| Citation | AIR 2009 SC 2649 , 2009 (3) AWC 2740 (SC) , 2009 (57) BLJR 2083 , 2009 (6) BomCR 413 , 2010 (I) OLR (SC) 452 , 2009 (5) SCALE 559 , (2009) 6 SCC 99 , 2009 (6) UJ 2774 (SC) |
| Judgement Date | April 15, 2009 |
| Court | Supreme Court (India) |
Judgment:
S.B. Sinha, J.
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Leave granted.
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Effect of the amendment in the Hindu Succession Act, 1956 (for short "the Act") by reason of the Hindu Succession (Amendment) Act, 2005 (for short "the 2005 Act") insofar as therein Section 23 has been omitted is the question involved herein.
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The said question arises in the following factual matrix.
The property in suit was owned by one Govinda Singh. He purported to have executed a Will in favour of his son, the appellant herein on 29.11.1995. His wife Sakunthala Bai predeceased him. The said Govinda Singh died on 9.01.1996 leaving behind the appellant (original defendant No. 1) and four daughters, viz., Geetha and Vijaya (plaintiffs) and Shanthi and Uma (original defendant Nos. 2 and 3).
Indisputably, the parties to the suit were residing in the premises in suit. Govinda Singh was also a government contractor. He was running a business of transport. His daughters were also partners in the firm. Inter alia on the premise that Govinda Singh died intestate and as disputes and differences arose between the plaintiffs and the defendants as regards enjoyment of the property, a suit for partition was filed on 11.03.1996 (marked as C.S. No. 153 of 1996) in the High Court of Judicature at Madras. The suit property inter alia consisted of residential premises being No. 36, First Cross Street, West C.I.T. Nagar, Madras - 600 035 as also some movable properties.
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Defendant No. 4 Ramesh filed an application for impleadment in the said suit alleging that Govinda Singh had married one `Saroja' who was, thus, his second wife and through her he had two daughters and one son, viz., Jothi, Maya and himself. It was on the aforementioned premise, Ramesh was impleaded as a party in the said suit.
Appellant in his written statement inter alia contended:
(i) In terms of the aforementioned Will dated 29.11.1995, the suit property, having been bequeathed in his favour, has vested in him absolutely.
(ii) In any event, having regard to the provisions of Section 23 of the Act, the suit for partition was not maintainable.
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Defendant No. 4 also filed a written statement alleging that the Will was not a genuine one and was prepared subsequent to 10.12.1995.
In the said suit, the following issues were framed:
(1) Whether the deceased Mr. M.K. Govinda Singh died intestate?
(2) Whether the suit for partition by the daughters of the deceased M.K. Govinda Singh, who died intestate, is maintainable or not?
(3) Whether the alleged will dated 29.11.1995 said to have been executed is genuine one and, if so, who are the beneficiaries?
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On or about 7.01.1999, an additional issue was framed, which reads as under:
Whether the D-4 is entitled to have any share in the schedule property? If so what is his share?
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Indisputably, the appellant also initiated a testamentary proceedings for grant of Letters of Administration with a copy of the Will annexed thereto, which was marked as O.P. No. 329 of 1996. The plaintiffs of the suit No. 153 of 1996 entered caveat in the said proceeding; it was marked as T.O.S. No. 4 of 1998.
The issue framed in the said testamentary proceedings was:
(1) Whether the Will of Late M.K. Govinda Singh is true, valid and genuine?
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The learned Single Judge held that the appellant could not prove due execution of the Will as several suspicious circumstances surrounded the same.
It was furthermore held that having regard to the omission of Section 23 of the Act and in view of the fact that even the Defendant No. 4 in his written statement asked for partition of the property, Section 23 of the Act would not stand in the way of plaintiffs' suit for partition. It was directed:
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In the result, T.O.S. No. 4 of 1998 is dismissed with cost of the defendants. In C.S. No. 153 of 1996, there shall be a preliminary decree for partition of the suit property into eight equal shares and allotment of two shares together to the plaintiffs. C.S. No. 153 of 1996 shall stand adjourned sine die.
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Two intra-court appeals were preferred against the said judgment and decree, which were marked as O.S.A. Nos. 196 and 197 of 2001. By reason of the impugned judgment, the said appeals have been dismissed.
As regards the issue of the validity and/ or genuineness of the Will, the Division Bench held:
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It is no doubt true that P.W.4 belongs to a noble profession and ordinarily great weight is to be attached to such evidence. However, apart from the fact that several contradictions are available from the evidence, P.W.4 cannot be characterized as an independent witness as it is she who had given the reply notice Ex. D-3 on behalf of the propounder of the Will. At the time when she gave the reply, there is no whisper in such reply that in fact she had drafted the will and attested the same. These are many of the aspects appearing from the evidence of P.Ws. 1 to 4 which create sufficient doubt regarding the due execution of the Will. It is of course true that many of the contradictions may appear to be innocuous in isolation. But, when all these contradictions are considered together along with the fact that thumb impression was given by the executant, even though he was obviously signing the document, and the fact that in the typed will line-spacing in different pages appear to be irregular, they create sufficient doubt regarding the due execution and genuineness of the will.
As regards application of Section 23 of the Act, it was opined:
...It is no doubt true that such amendment has come into force during pendency of the appeal. However, even assuming that there was any embargo at the time of filing the suit or passing the judgment by the learned Single Judge as contemplated under Section 23 of the Act as it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after 9.9.2005. In other words, after 9.9.2005 any female heir can seek for partition even in respect of a dwelling house. This subsequent event arising out of change in law is obviously to be applied and, therefore, the question of applying bar under Section 23 of the Act no longer arises for consideration.
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Mr. K.V. Viswanathan, learned Counsel would, in support of the appeal, raise the following contentions:
(i) The High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that the amendment carried out in the Act by reason of the 2005 Act is only prospective in nature, as would be evident from the report of the Law Commission as also the Statement of Objects and Reasons thereof and, thus, the impugned judgment is liable to be set aside.
(ii) The 2005 Act, on a plain reading, cannot be held to have retrospective effect and, thus, rights and obligations of the parties should have been determined as were obtaining on the date of institution of the suit.
(iii) If Section 23 of the Act is given retrospective effect, Section 6 of the Act will also stand amended with retrospective effect.
(iv) In view of the fact that execution of the said Will had been proved and all purported suspicious circumstances had been explained, the High Court committed a serious error in opining that the Will dated 25.11.1995 had not duly been proved.
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Mr. K. Ramamoorthy, learned senior counsel appearing on behalf of the respondents, on the other hand, would support the impugned judgment.
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Before adverting to the rival contentions raised herein, we may place on record that the High Court by reason of the impugned judgment has set aside that part of the order of the learned single judge whereby Govinda Singh was held to have married Saroja and had begotten Ramesh and two other daughters, viz., Jothi and Maya. Ramesh has accepted the said finding as no appeal has been preferred therefrom.
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The Act brought about revolutionary changes in the old Hindu Law. It was enacted to amend and codify the law relating to intestate succession amongst Hindus. By reason of the Act, all female heirs were conferred equal right in the matter of succession and inheritance with that of the male heirs.
Section 8 of the Act reads as under:
8 - General rules of succession in the case of males
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.
The Schedule appended to the Act specifies the persons who would be the relations of Class I, viz.:
Class I: Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre- deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre- deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre- deceased son...
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By reason of Section 14 of the Act, a woman who had limited interest in the property but was possessed of the same was to become absolute owner. Section 6 of the Act, however, makes an exception to the aforementioned rule by providing the manner in which the interest in the coparcenary property shall devolve upon the heirs stating that the rule of survivorship would operate in respect thereof. The right, title and interest of an heir, whether male or female, thus, are governed by the provisions of the Act.
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The property in the hands of Govinda Singh was not a coparcenary property. It was his self-acquired property. The parties hereto, therefore, obtained equal shares being the relatives specified in Class-I of the Schedule. Plaintiffs - Respondents, therefore, became owners to the extent of 1/5th share of the said property...
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