KRISHNA MURARI MANGAL Vs. PRAKASH NARAIN

JUDGEMENT

(1.) THIS appeal is by appellant Krishna Murari Mangal. Cross -objection is filed by respondent Prakash Narain. Krishna Murari Mangal has filed a suit for partition and separate possession of 1/3rd share in the joint family property. The plaint was filed.

(2.) APPELLANT in the suit has claimed that plaintiff, defendant No. 1 and his three sons, defendants No. 2 and 3 were the members of Joint Hindu Family till 12 -2 -1969. Defendant No. 1 Pannalal son of Onkarlal, who is the father of plaintiff and defendants No. 2 and 3, was the KARTA of the Joint Hindu Family. Two sons of defendant No. 1, namely, Ghanshyamdas and Shyam Sunder separated from the joint family on 12 -2 -1969 after taking their share from the joint hindu family. The said partition was registered on 12 -2 -1969. On 12 -2 -1969 plaintiff and defendant No. 3 were minor and were in the guardianship of defendant No. 1. From 12 -2 -1969 onwards plaintiff and defendants No. 1 to 3 constituted a Joint Hindu Family and defendant No. 1 was KARTA of the family. Suit is filed by plaintiff against his father and two brothers claiming partition of the property left after two brothers had separated. During pendency of the suit, plaintiff No. 1 died. Thereafter, plaintiff claimed that he has 1/3rd share in the Joint Hindu Family property. Similarly, defendants No. 2 and 3 have 1/3rd share each in the property. Plaintiff has also claimed that he has also right in the movable property. Claim was denied by the defendants and written statement was filed. In the written statement it was amended that defendant No. 1 Pannalal died on 12 -4 -1988. Pannalal had executed a Will of his share in favour of defendant Gopalkrishna vide registered Will dated 12 -6 -1984, therefore, Gopalkrishna alone, has right to get the share of Pannalal. After the death of Pannalal, defendant Ghanshyamdas and children of Shyam Sunder were impleaded as party as legal representatives of said Pannalal. Trial Court on appreciation of evidence has held that the plaintiff has 1/5th share in the property and has 1/5th right in the goodwill of the joint family firm and has held that plaintiff is entitled for 1/8th share in the "STRIDHAN" of Saraswatibai, mother of plaintiff. Appellate Court has affirmed the decree. Learned Single Judge in First Appeal has affirmed the decree.

(3.) COUNSEL for appellant submitted that Pannalal had no right to execute the Will. Learned counsel for the appellant invited attention to Section 30 of Hindu Succession Act (hereinafter, referred to as the 'Act') and submitted that under Section 30 of the Act 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. Counsel for appellant submitted that under Section 30 of the Act by general rule a Hindu may dispose of by Will any property which it is within his power to bequeath by any testamentary disposition. The explanation of Section 30 is vital and most important part of the section, which provides that the interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi illom, kutumba or kavaru in the property of the tarwad, tavazhi illom, kutumba or kavaru 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.