PAVITRI DEVI Vs. DARBARI SINGH

JUDGEMENT

(1.) One Brahmadeo Singh son of Tuso Singh filed partition Title Suit No. 13 of 1963 against his brothers and their heirs claiming l/6th share in the coparcenary properties mentioned in schedules attached to the plaint. The trial court dismissed the suit. While the F. A. No. 582 of 1968 was pending in the High court of Patna, he died on 8/06/1981. The appellant, Pavitri Devi, filed an application for substitution of her and her son as legal representatives. Her claim has been founded on two grounds, namely as the daughter of Brahmadeo Singh as well as the registered gift deed Ex. 2 dated 5/08/1980 executed by her father giving his entire share in the joint family property and putting them in possession of 9.96 acres of land. When the factum of the date of death and her entitlement as an heir were put in issue by the contesting respondents before the appellate court, the trial court was directed to record the evidence and to submit its report thereon. The trial court on recording voluminous evidence found that Brahmadeo Singh died on 6/05/1981 and not on 8/06/1981, and consequently the appeal stood abated. The trial court also found that the appellant is not his daughter. The High court held that "from the evidence it is clear that Brahmadeo Singh diedon 8/06/1981" and the application for substitution was within limitation. However, it held that the appellant is not his heir and the gift deed executed by Brahmadeo Singh was doubtful. Accordingly the appeal was dismissed by decree and judgment dated 11/02/1984. Thus this appeal by special leave.

(2.) Though the respondents have been served before and after the grant of special leave, none has appeared either in person or through counsel. Shri Ranjit Kumar, learned counsel for the appellants placing reliance on section 30 of the Hindu Succession Act, 1956 for short 'the Act', contended that Brahmadeo Singh had power to dispose of his undivided share in the joint family property by testamentary disposition including by way of gift to his daughter. The interest held by him in the coparcenary property could be bequeathed by the gift deed. Thereby the appellant became successor-in-interest of Brahmadeo Singh, her father, by devolution under Order 22 Rule 10 of Code of Civil Procedure, 1908. Undoubtedly, Order 22 Rule 10 is applicable to an assignee or a person acquiring, during pendency of the suit, the interest in the suit property by devolution. So she would be entitled to be brought on record as her father's legal representative to continue the appeal. Equally as a daughter, being Class I heir, she could be brought on record under Order 22 Rule 3 civil Procedure Code. The question is whether the gift over of the interest in the coparcenary property by Brahmadeo Singh is valid in law. Section 30 (1 of the Act provides that "any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian succession Act, 1925, or any other law for the time being in force and applicable to Hindus". The Explanation thereto provides that the interest of a male Hindu in a Mitakshara coparcenary property. . shall notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section. Section 6 of the act provides that when a male Hindu dies, after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. If the deceased had left behind him a surviving female relative specified in class I of the Schedule, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship.

(3.) Webster in Comprehensive Dictionary, International Edn. at p. 1298, stated the meaning of the word 'testamentary' thus: (i) derived from, bequeathed by, or set forth in a will; (ii) appointed or provided by, or done in accordance with, a will; (iii) pertaining to a will, or to the administration or settlement of a will, testamental. In the Law Lexicon byp. Ramanatha Aiyar, (Reprint Edn. , 1987 at p. 1271 testamentary instrument was defined to mean a 'testamentary instrument' is one which declares the present will of the maker as to the disposal of his property after death, without attempting to declare or create any rights therein prior to such event. Black's Law Dictionary (6th Edn. , 1991 defines 'testamentary disposition' at page 1475 thus - "the passing of property to another upon the death of the owner. A disposition of property by way of a gift, will or deed which is not to take effect unless the grantor dies or until that event. " Section 123 of the Transfer of Property Act provides disposition by a gift which takes effect even during the lifetime of the donor and effective as soon as it is registered and normally possession is given of the property therein. Section 30 of the Act is merely declaratory of the law not only as it stood before the Act, but as it now stands modified by the provisions of the Act. It declares that any Hindu may dispose of by a will or other testamentary disposition his property or interest in coparcenary which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to the Hindus. Its explanation is really material. The testamentary disposition, therefore, would mean disposition of the property which would take effect after the death, instead of eo instanti on the execution of the document. A testamentary disposition is generally effected by a will or by a codicil which means an instrument made in relation to a will extending, altering or adding to its disposition and is to be deemed to form part of the will. Will as defined in Section 2 (h) of the Indian Succession Act, 1925 means legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his demise. It limits alienation intra vivos. While the gift being a disposition in praesenti, it becomes effective on due execution and registration and generally delivery of the possession. Section 30 makes it clear that testamentary disposition under the Act would be dealt with in accordance with the Indian Succession Act. Section 57 and Schedule III of the said act prescribes procedure for effecting succession amongst Hindus by testamentary succession by will or codicil. Section 30 employs non- obstante clause and excludes the operation of pre-existing or any other law applicable to coparcenary property governed by Mitakshara law and introduced a fiction in its Explanation and empowers the Hindu male or female to dispose of his or her interest by a will or any other testamentary disposition known to law which would be effective after the demise. It would, therefore, be difficult to envisage that disposition by gift partakes the character of testamentary succession under Section 30 of the Act.