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Code of Civil Procedure (Act 5 of 1908), O.41, r. 1- Preliminary decree in partition suit-Death of some parties- Redistribution of shares-No fresh preliminary decree drawn up-Appeal without copy of preliminary decree-If maintainable. Practice-If court could pass more than one preliminary decree in a partition suit. Hindu law-Agarwala Jains–Share given to mother in partition suit-Right, whether absolute or limited. Will-Circumstances showing genuineness of. =The appellant filed a suit for partition against his father, mother, brother (the -respondent) and the adopted son of a predeceased brother. The parties were Agarwala Jains. A preliminary decree was passed specifying the shares of the parties, but before the final decree could be passed, the father died., and soon after, the mother also died. The respondent claimed the father’s share under a will executed by the father in his favour, and the appellant claimed the mother’s share under a sale deed executed by her in his favour. The appellant challenged the genuineness of the will, and the respondent contended that as she was only a limited owner, the mother was not entitled to sell her share. The trial Court held in favour of the appellant on both contentions, and passed an order redistributing the shares, but did not prepare a fresh preliminary decree. The respondent appealed to the High Court but was not in a position to file a copy of the decree with the appeal. Even when time was granted by the High Court and the respondent moved the trial Court for framing a formal decree, the trial Court refused to do so. The High Court disposed of the appeal holding that (i) the appeal was maintainable without a copy of the decree; (ii) the varying of the share,, by the trial Court, in the preliminary decree already passed by it was a decree in the circumstances of the present case, and the respondent could appeal from it; (iii) the mother was not entitled to sell her share and so the sale in favour of the appellant was invalid; and (iv) the will in favour of the respondent was genuine. In appeal to this Court. HELD:(i) Normally a copy of the decree must accompany the memorandum of appeal. But the defect in the filing of the appeal in the present case was not due to any fault of the respondent and it could not be held that be should be deprived of his right of appeal, simply because the trial Court did not do its duty. [157 D, H] Jagat Dhish Bhargava v. Jawahar Lal Bhargava, [1961] 2 S.C.R. 918, referred to. (ii) So far as partition suits are concerned, if an event happens after the preliminary decree and before a final decree is passed, and a change in the shares is necessitated, the trial court can and should pass a second Sup. C.1.167-11 154 preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the court deciding that dispute and making a variation in the shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. A partition suit is not finally disposed of till the final decree is passed and the court has jurisdiction to decide all disputes that may arise due to the death of some of the Parties after the preliminary decree and before the passing of the final decree. There is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree in a partition suit if circumstances justify it and if it is convenient and advantageous to do so. [158 E, F, H; 159 A, D-E] Kasi v. Ramanathan Chettiar, [1947] 2 M.L.J. 523, Raja Peary Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram v. Hirabai, A.I.R. 1957 Bom. 59, approved. Bharat Indu v. Yakub Hasan, (1913) I.L.R. 35 All. 159, Kedernath v. Pattu Lal, I.L.R. [1954] Luck, 557 and Joti Parshad v. Ganeshi Lal, A.I.R. 1961 Punj. 120, overruled. (iii)In the absence of a custom to the contrary a Jain widow takes a limited interest in her husband’s estate similar to the widow’s estate.A custom., however, to the contrary has been proved Agarwala Jains that the widow takes an absolute estate in the required property of her husband, with full powers of alienation. But there is no such custom entitling her to an absolute estate in ancestral property. [160 D-E] In the present case, the share allotted to the mother by the preliminary decree was out of ancestral property, and therefore, the appellant could not take advantage of the sale of that share by the mother, and it must descend equally to the three surviving parties namely, the appellant, the -respondent and the adopted son of the deceased brother. [160 E-F] Tulsiram Khirchand v. Chunnilal Panchamsao Parwar, A.I.R. 1938 Nag. 391, referred to. (iv) The will was duly executed by the father in favour of the respondent. It was genuine, and the testator was competent to will away not only his self-acquired properties, but also the share he got out of the joint family property by severance of status and specification of shares. [162 C-F] The will was executed after the partition suit had been filed and after a preliminary decree, by which shares were allotted to the members of the family, had been passed. Though the testator was 70 years old at the time of the execution of the will -and though the respondent took a prominent part in its execution, the testator lived for 7 years after its execution and he was mentally and physically competent at the time of its execution. Further, the will was registered. The will was also natural, because,, (a) the testator was disgusted with the conduct of the appellant; (b) he was pleased with that of the respondent; (c) he did not give any share to the adopted son of his deceased son, because, the adopted son was the natural son of the appellant; and (d) he did not provide for his wife for she had already been allotted one-fifth share by the trial Court’s preliminary decree. [161 C-H; 162 A] =1967 AIR 1470, 1967( 3 )SCR 153, , ,

PETITIONER:

High Court from Maidan Oval Mumbai

Image by amanderson2 via Flickr


PHOOLCHAND AND ANR.

Vs.

RESPONDENT:
GOPAL LAL

DATE OF JUDGMENT:
10/03/1967

BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
BACHAWAT, R.S.
RAMASWAMI, V.

CITATION:
1967 AIR 1470 1967 SCR (3) 153
CITATOR INFO :
RF 1972 SC 414 (32)
ACT:
Code of Civil Procedure (Act 5 of 1908), O.41, r. 1-
Preliminary decree in partition suit-Death of some parties-
Redistribution of shares-No fresh preliminary decree drawn
up-Appeal without copy of preliminary decree-If
maintainable.
Practice-If court could pass more than one preliminary
decree in a partition suit.
Hindu law-Agarwala Jains–Share given to mother in partition
suit-Right, whether absolute or limited.
Will-Circumstances showing genuineness of.

HEADNOTE:
The appellant filed a suit for partition against his father,
mother, brother (the -respondent) and the adopted son of a
predeceased brother. The parties were Agarwala Jains. A
preliminary decree was passed specifying the shares of the
parties, but before the final decree could be passed, the
father died., and soon after, the mother also died. The
respondent claimed the father’s share under a will executed
by the father in his favour, and the appellant claimed the
mother’s share under a sale deed executed by her in his
favour. The appellant challenged the genuineness of the
will, and the respondent contended that as she was only a
limited owner, the mother was not entitled to sell her
share. The trial Court held in favour of the appellant on
both contentions, and passed an order redistributing the
shares, but did not prepare a fresh preliminary decree. The
respondent appealed to the High Court but was not in a
position to file a copy of the decree with the appeal. Even
when time was granted by the High Court and the respondent
moved the trial Court for framing a formal decree, the trial
Court refused to do so. The High Court disposed of the
appeal holding that (i) the appeal was maintainable without
a copy of the decree; (ii) the varying of the share,, by the
trial Court, in the preliminary decree already passed by it
was a decree in the circumstances of the present case, and
the respondent could appeal from it; (iii) the mother was
not entitled to sell her share and so the sale in favour of
the appellant was invalid; and (iv) the will in favour of
the respondent was genuine.
In appeal to this Court.
HELD:(i) Normally a copy of the decree must accompany the
memorandum of appeal. But the defect in the filing of the
appeal in the present case was not due to any fault of the
respondent and it could not be held that be should be
deprived of his right of appeal, simply because the trial
Court did not do its duty. [157 D, H]
Jagat Dhish Bhargava v. Jawahar Lal Bhargava, [1961] 2
S.C.R. 918, referred to.
(ii) So far as partition suits are concerned, if an event
happens after the preliminary decree and before a final
decree is passed, and a change in the shares is
necessitated, the trial court can and should pass a second
Sup. C.1.167-11
154
preliminary decree correcting the shares; and, if there is a
dispute in that behalf the order of the court deciding that
dispute and making a variation in the shares specified in
the preliminary decree already passed is a decree in itself
which would be liable to appeal. A partition suit is not
finally disposed of till the final decree is passed and the
court has jurisdiction to decide all disputes that may arise
due to the death of some of the Parties after the
preliminary decree and before the passing of the final
decree. There is nothing in the Civil Procedure Code which
prohibits the passing of more than one preliminary decree in
a partition suit if circumstances justify it and if it is
convenient and advantageous to do so. [158 E, F, H; 159 A,
D-E]
Kasi v. Ramanathan Chettiar, [1947] 2 M.L.J. 523, Raja Peary
Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram v.
Hirabai, A.I.R. 1957 Bom. 59, approved.
Bharat Indu v. Yakub Hasan, (1913) I.L.R. 35 All. 159,
Kedernath v. Pattu Lal, I.L.R. [1954] Luck, 557 and Joti
Parshad v. Ganeshi Lal, A.I.R. 1961 Punj. 120, overruled.
(iii)In the absence of a custom to the contrary a Jain widow
takes a limited interest in her husband’s estate similar to
the widow’s estate.A custom., however, to the contrary has
been proved Agarwala Jains that the widow takes an absolute
estate in the required property of her husband, with full
powers of alienation. But there is no such custom entitling
her to an absolute estate in ancestral property. [160 D-E]
In the present case, the share allotted to the mother by the
preliminary decree was out of ancestral property, and
therefore, the appellant could not take advantage of the
sale of that share by the mother, and it must descend
equally to the three surviving parties namely, the
appellant, the -respondent and the adopted son of the
deceased brother. [160 E-F]
Tulsiram Khirchand v. Chunnilal Panchamsao Parwar, A.I.R.
1938 Nag. 391, referred to.
(iv) The will was duly executed by the father in favour of
the respondent. It was genuine, and the testator was
competent to will away not only his self-acquired
properties, but also the share he got out of the joint
family property by severance of status and specification of
shares. [162 C-F]
The will was executed after the partition suit had been
filed and after a preliminary decree, by which shares were
allotted to the members of the family, had been passed.
Though the testator was 70 years old at the time of the
execution of the will -and though the respondent took a
prominent part in its execution, the testator lived for 7
years after its execution and he was mentally and physically
competent at the time of its execution. Further, the will
was registered. The will was also natural, because,, (a)
the testator was disgusted with the conduct of the
appellant; (b) he was pleased with that of the respondent;
(c) he did not give any share to the adopted son of his
deceased son, because, the adopted son was the natural son
of the appellant; and (d) he did not provide for his wife
for she had already been allotted one-fifth share by the
trial Court’s preliminary decree. [161 C-H; 162 A]

JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1313 of
1966.
155
Appeal from the judgment and decree dated April 29, 1964 of
the Rajasthan High Court in D. B. Civil Regular First Appeal
No. 118 of 1961.
J. P. Goyal and B. P. Jha, for the appellants.
B. P. Maheshwari for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal on a certificate granted by
the Rajasthan High Court and arises in the following
circumstances’ Phool Chand appellant had filed a suit in
1937 for partition of his one-fifth share in certain
properties mentioned in the schedule to the plaint. The
defendants to the suit were Sohanlal, father of the
appellant, Gopal Lal, brother of the appellant, and Rajmal,
minor adopted son of Gokalchand (deceased) who was another
brother of the appellant and Smt. Gulab Bai, mother of the
appellant. There were two other defendants with whom we are
not concerned now. The suit was resisted by the defendants
and a large number of pleas were raised with which we are
also not concerned now. That suit was fought right upto the
Mahkma Khas (Privy Council) of the former State of Jaipur
and a preliminary decree for partition was passed specifying
the shares of the appellant and the four defendants
mentioned above on August 1, 1942. Before, however, a final
decree could be passed on the report of the Commissioner in
terms of the preliminary decree, Sohan Lal died on May 13,
1947 and soon after his widow, Smt. Gulab Bai also died on
November 22, 1947. Disputes seem to have arisen about the
shares allotted to these two persons. It appears that Gopal
Lal claimed that his father Sohan Lal had made a will in his
favour on June 2, 1940, according to which he bequeathed all
his property to Gopal Lal. Phool Chand challenged the
genuineness of the will. As to the share of Smt. Gulab Bai
Phool Chand claimed that she had executed a sale deed dated
October 19, 1947 and registered on January 10, 1948 by which
she sold all her share in movable and immovable properties
which came to her by the decree of August 1, 1942 to Phool
Chand. Gopal Lal, however, contended that Smt. Gulab Bai
was not entitled to sell the share which she got in the
ancestral property as she was a limited owner and therefore
her share must be held to have devolved on Gopal La], Phool
Chand and Rajmal. These disputes were brought before the
court soon after the deaths of Sohan Lal and Smt. Gulab
Bai, but nothing seems to have been done for many years. It
was only on July 12, 1961 that the trial court decided the
disputes with respect to the shares of Sohan Lal and Smt.
Gulab Bai. It came to the conclusion that the will had not
been proved. It also upheld, the sale deed in favour of
Phool Chand appellant. In consequence the trial court
redistributed the shares indicated in the preliminary
156
decree of August 1, 1942. By this re-distribution, the
share of Phool Chand was increased from one-fifth to one-
half; the share of Gopal Lal was increased from one-fifth to
one-fourth, and the share of Rajmal was increased from one-
fifth to one-fourth. The trial court however did not
prepare another formal ‘preliminary decree on the basis of
this re-distribution of shares.
Thereupon Gopal Lal went in appeal to the High Court and
wanted stay of proceedings relating to preparation of final
decree. In these proceedings Phool Chand objected that the
appeal was not maintainable as no decree had been prepared
by the trial court and no copy of the decree had been filed
along with the memorandum of appeal. The High Court
thereupon passed an order adjourning the matter to enable
Gopal Lal to move the trial court to draw up a formal
decree. Gopal Lal thereafter moved the trial court for
amending the preliminary decree. But that application was
rejected in September 1962. Thus the appeal of Gopal Lal in
the High Court proceeded without a copy of the decree being
on the record.
A preliminary objection was raised in the High Court on
behalf of Phool Chand appellant on the date of hearing that
as no copy of the decree had been filed along with the
memorandum of appeal, the appeal was not maintainable. It
was also objected that in any case there could be no second
preliminary decree and that the order of the trial court
varying the shares in the preliminary decree could be
appealed from, if at all, after the final decree had been
prepared. The High Court repelled both these contentions
and held that the order of July 12, 1961 varying
specification of shares in the preliminary decree passed on
August 1, 1942 was a decree in the facts and circumstances
of this case and Gopal Lal could appeal from it. The High
Court further held that as the trial court had refused to
frame a formal decree on the basis of this variation of
shares it was not possible for Gopal Lal to file a copy
thereof with the memorandum of appeal, but that would not
take away the right of Gopal Lal to appeal.
The next point raised in the High Court was that the trial
court was wrong in holding that under the Jain custom a
widow had the same right as a male co-parcener in ancestral
property coming to her share on partition. It was therefore
contended that the sale deed by Smt. Gulab Bai in favour of
Phool Chand appellant was invalid and her one-fifth share
descended on the remaining three defendants to the suit,
namely, Phool Chand, Gopal Lal and Rajmal. The High Court
accepted the contention and held that Smt. Gulab Bai being
a limited owner could not sell the property. The third
contention raised before the High Court was that the will of
Sohan Lal in favour of Gopal Lal was genuine and the trial
court’s finding that it was not proved was. not correct.
The
157
High Court accepted this contention also. The result was
that the High Court redistributed the shares and declared
that Phool Chand was entitled to four-fifteenths share of
the property, Gopal Lal to seven-fifteenths share and Rajmal
to four-fifteenths share. The High Court decree being one
of variance, it (,ranted certificate to Phool Chand to
appeal to this Court.
Learned counsel for Phool Chand appellant has attacked the
findings of the High Court on all the three points. He
first contends that as a copy of the decree was not filed
along with the memorandum of appeal the appeal was
incompetent and relies in this connection on the decision of
this Court in Jagat Dhish Bhargava v. Jawahar Lal
Bhargava(1). In that case it was observed that every
memorandum of appeal has to be accompanied by a copy of the
decree appealed from, that this requirement of O. XLI r. 1
of the Code of Civil Procedure is mandatory and in the
absence of a copy of the decree the filing of the appeal
would be incomplete, defective and incompetent. That no
doubt is the correct position in law; but as was pointed out
in that case, there may be circumstances where an appeal may
be competent even though a copy of the decree may not have
been filed along with the memorandum of appeal. One such
exceptional case was dealt with in Jagat Dhish Bhargava’s
case(1). We consider that the present case is another
exceptional case where in the absence of the copy of decree
the appeal could be maintained. We have already indicated
that the trial court did not frame a formal decree when it
varied the shares and naturally Gopal Lal was not in a
position to -file a copy of the decree when he presented the
memorandum of appeal to the High Court. Even when time was
granted by the High Court and Gopal Lal moved the trial
court for framing a formal decree, the trial court refused
to do so. In those circumstances it was impossible for
Gopal Lal to file a copy of the formal decree. It is
unfortunate that when the matter was brought to the know-
ledge of the High Court it did not order the trial court to
frame a formal decree; if it had done so, the appellant
could have obtained a copy of the formal decree and filed it
and the defect would have been cured. We do not think it
was necessary for Gopal La] to file a revision against the
order of the trial court refusing to frame a formal decree,
for Gopal Lal’s appeal was pending in the High Court and the
High Court should and could have directed the trial court in
that appeal to frame a decree to enable Gopal Lal to file it
and cure the defect. In such circumstances we fail to see
what more Gopal Lal could have done in the matter of filing
a copy of the decree. The fact that the trial court refused
to frame a formal decree cannot in law deprive Gopal Lal of
his right to appeal. The defect in the filing of the appeal
in the circumstances was not due to any fault of Gopal Lal
and it cannot be held that he should be
(1) [1961] 2 S.C.R. 918.
158
deprived of the right to appeal, if he had it, simply
because the court did not do its duty. We therefore agree
with the High Court that in the circumstances the absence of
the copy of decree would not deprive Gopal Lal of his right
to appeal.
The next contention is that there cannot be two preliminary
decrees and therefore when the trial court varied the shares
as indicated in the preliminary decree of August 1, 1942
there was no fresh preliminary decree passed by the trial
court. It is not disputed that in a partition suit the
court has jurisdiction to amend the shares suitably even if
the preliminary decree has been passed if some member of the
family to whom an allotment was made in the preliminary
decree dies thereafter : (see Parshuram v. Hirabai”1′). So
the trial court was justified in amending the shares on the
deaths of Sohan Lal and Smt. Gulab Bai. The only question
then is whether this amendment amounted to a fresh decree.
The Allahabad High Court in Bharat Indo v. Yakub Hassan ( 2
) the Oudh Chief Court in Kedemath v. Pattu Lal ( 3 ) , and
the Punjab High Court in Joti Parshad v. Ganeshi Lal ( 4 )
seem to take the view that there can be only one preliminary
decree and one final decree thereafter. The Madras, Bombay
and Calcutta High Courts seem to take the view that there
can be more than one preliminary decree : (see Kasi v. V.
Ramanathan Chettiar(5) Raja Peary Mohan v. Manohar(6), and
Parshuram v. Hirabai.
We are of opinion that there is nothing in the Code of Civil
Procedure which prohibits the passing of more than one
preliminary decree if circumstances justify the same and
that it may be necessary to do so particularly in partition
suits when after the preliminary decree some parties die and
shares of other parties are thereby augmented. We have
already said that it is not disputed that in partition suits
the court can do so even after the preliminary decree is
passed. It would in our opinion be convenient to the court
and advantageous to the parties, specially in partition
suits, to have disputed rights finally settled and
specification of shares in the preliminary decree varied
before a final decree is prepared. If this is done, there
is a clear determination of the rights of parties to the
suit on the question in dispute and we see no difficulty in
holding that in such cases there is a decree deciding these
disputed rights; if so, there is no reason why a second
preliminary decree correcting the shares in a partition suit
cannot be passed by the court. So far therefore as
partition suits are concerned we have no doubt that if an
event transpires after the preliminary decree which
necessitates a change in shares, the court can and should
(1) A.I.R. 1957 Bom. 59.
(3) (1945) I.L.R. 29 Luck, 557.
(5) [1947] II Mad. L.J. 523.
(2) (1913) I.L.R. 35 All. 159.
(4) A.I.R. 1961 Puni. 120.
(6) [1923] 27 Cal. W.N. 989.
159
do so; and if there is a dispute in that behalf, the order
of the court deciding that dispute and making variation in
shares specified in the preliminary decree already passed is
a decree in itself which would be liable to appeal. We
should however like to point out that what we are saying
must be confined to partition suits, for we are not
concerned in the present appeal with other kinds of suits in
which also preliminary and final decrees are passed. There
is no prohibition in the Code of Civil Procedure against
passing a second preliminary decree in such circumstances
and we do not see why we should rule out a second
preliminary decree in such circumstances only on the ground
that the Code of Civil Procedure does not contemplate such a
possibility. In any case if two views are possible-and
obviously this is so because the High Courts have differed
on the question-we would prefer the view taken by the High
Courts which hold that a second preliminary decree can be
passed, particularly in partition suits where parties have
died after the preliminary decree and shares specified in
the preliminary decree have to be adjusted. We see no
reason why in such a case if there is dispute, it should not
be decided by the court which passed the preliminary decree,
for it must not be forgotten that the suit is not over till
the final decree is passed and the court has jurisdiction to
decide all disputes that may arise after the preliminary
decree, particularly in a partition suit due to deaths of
some of the parties. Whether there can be more than one
final decree does not arise in the present appeal and on
that we express no opinion. We therefore hold that in the
circumstances of this case it was open to the court to draw
up a fresh preliminary decree as two of the parties had died
after the preliminary decree and before the final decree was
passed. Further as there was dispute between the surviving
parties as to devolution of the shares of the parties who
were dead and that dispute was decided by the trial court in
the present case and thereafter the preliminary decree al-
ready passed was amended, the decision amounted to a decree
and was liable to appeal. We therefore agree with the view
taken by the High Court that in such circumstances a second
preliminary decree can be passed in partition suits by which
the shares allotted in the preliminary decree already passed
can be amended and if there is dispute between surviving
parties in that behalf and that dispute is decided the
decision amounts to a decree. We should however like to
make it clear that this can only be done so long as the
final decree has not been passed. We therefore reject this
contention of the appellant.
This brings us to the question whether the appellant was en-
titled to the share of Smt. Gulab Bai by virtue of the sale
deed dated October 19, 1947 in his favour. Now it must be
remembered that we are concerned in the present case with
only the sale of the share allotted to Smt. Gulab Bai out
of the ancestral property
160
by the preliminary decree passed on August 1, 1942. The
trial :-court held that High Courts had recognised the
custom amongst Jain-Agarwals that the rights of Jain widows
were absolute and ,not in the nature of a limited owner. It
relied on Tulsiram Khirchand v. Chunnilal Panchamsao
Parwar(1). The High Court however held otherwise and we are
of opinion that the High Court was right. It is true that
in Tulsiram’s case(1), the Nagpur High Court stated that
“the widow takes an absolute estate among Jains in general
and not merely in some particular sub-sects”. The two cases
relied on in Tulsiram’s case(1) were cases of non-ancestral
‘property, namely, (i) Mt. Sano v. Puran Singh(2) and (ii)
Trimbakdas v. Mt. Mathabai(3). It is not clear whether the
property in Tulsiram’s case(1) was ancestral or non-
ancestral. In any case we cannot read Tulsiram’s case(1) as
laying down that a Jain widow has absolute rights even in
the share she gets on partition out of ancestral property.
We may in this connection refer to Mulla’s Hindu Law, 13th
Edn. p. 585, para 616 where it is stated that “in the
absence of custom to the contrary, a Jain widow takes a
limited interest in her husband’s estate similar to the
widow’s estate. A custom however, to the contrary has been
proved in several ,cases that amongst Agarwala Jains the
widow takes an absolute estate in the self-acquired property
of her husband and that she has full power of alienation in
respect of such property. But there is no custom which
entitled her to an absolute estate in ancestral property
left by her husband. In the latter case she takes only a
widow’s estate”. This appears to us to be a correct
statement of the law. We are concerned in the present
appeal with the share which Smt. Gulab Bai got out of the
ancestral property by the preliminary decree of August 1,
1942; she obviously had only a limited estate or a widow’s
estate in that share and not an absolute estate. Therefore
she could not sell it in the manner in which she sold to the
appellant. The High Court therefore was right in holding
that the appellant could not take advantage of the sale of
the share of the widow and it must descend on the remaining
three surviving parties equally, namely, Phool Chand, Gopal
Lal and Rajmal. The contention therefore on this head also
fails.
Then we come to the question whether the will by Sohan Lal
in favour of Gopal La] was genuine. We have already
indicated that the trial court held that it was not, while
the High Court was of opinion that it was genuine. The
trial court based its finding mainly on some inconsistency
in the statements made by Laxmichand, an attesting witness,
on two different occasions. It Seems that in this suit
Laxmichand duly proved the will but on an earlier occasion
he had stated that he had not attested the will. There was
(1) A.I.R. 1938 Nag. 391. (2) A.I.R. 1925 Nag..174.
(3) A.I.R. 1930 Nag. 225.
161
another attesting witness who also was produced, namely,
Chhotey Lal, whose evidence did not suffer from any
infirmity. Besides that Basanti Lal, the scribe of the
will, was also produced, though he was not present at the
time of the execution of the will. His evidence is that he
prepared the draft of the will on the instruction of Sohan
Lal and handed over the written document either to Gopal Lal
or to Sohan Lal. Finally there was the statement of Gopal
Lal to prove due execution of the will for he was present
when it was executed though he was not an attesting witness.
Thus except for the inconsistency in the two statements of
Laxmichand the evidence of the due execution of the will was
over-whelming.
But it is urged that Gopal Lal in whose favour the will was
made had taken a prominent part in its execution and Sohan
Lal was an old man of about 70 years when the will was
executed and therefore we should require strict proof of the
due execution of the will. There are several circumstances
which in our opinion clearly show that the will was duly
executed by Sohan Lal in favour of Gopal Lal.
Firstly, Phool Chand was obviously a thorn in the side of
the father and had dragged him into litigation. The will
says that Phool Chand separated from the father long before
and picked up quarrels with him. It further says that Phool
Chand had no regard for his duty as a son and had been
behaving with the testator in a most improper and shameful
way. It goes on to say that the testator was fed up with
the improper behaviour of Phool Chand. The testator then
says in the will that contrary to it, Gopal Lal lived with
him, served him and was obedient to him and he was impressed
with the services of Gopal Lal. He therefore wanted his
property to go to Gopal Lal and was making the will in order
that Gopal Lal may not be put to any trouble after his death
and might live comfortably. The will therefore appears to
be a very natural will in the circumstances. Sohan Lal
obviously did not provide for his wife for she had been
allotted one-fifth share in the -property already by the
trial court’s preliminary decree. As for Rajmal minor, it
appears that he was the natural son of Phool Chand and there
was dispute whether he had been adopted by Gokalchand’s
widow, though the dispute was eventually settled in favour
of Rajmal minor by the court. In these circumstances we
would not expect Sohan Lal to make any provision for Rajmal
minor either who had got one-fifth share on the basis of
adoption. The will therefore appears to us to be very
natural and the fact that Gopal La] took part in the
execution has under the circumstances no significance. It
is true that Sohan Lal was about 70 years old when the will
was executed. But he lived almost seven years after the
execution of the will and it is no one’s case that he was in
any way mentally or physically incompetent to
162
make the will when he did so in 1940. It may be added that
the will was later registered also, though the Registrar has
not been examined as a witness. Finally there is the
circumstance that the appellant knew about the will as far
back as March 1941 but he never seems to have talked to his
father Sohan Lal about it. In these circumstances we agree
with the High Court that the due execution of the will has
been proved.
The last point that had been urged on behalf of the
appellant is that Gopal Lal was not entitled to any movable
or immovable ancestral property by virtue of the will, as a
Hindu cannot will away joint family property. We are of
opinion that there is nothing in this contention. The
present suit had already been filed by the appellant in 1937
and immediately on the filing of the suit there was
severance of status among the members of the joint Hindu
family, even if Phool Chand had not separated earlier as
stated by Sohan Lal in the will. Further a preliminary
decree had also been passed by the trial court in April 1938
by which various shares were allotted to various members of
the family. In these circumstances Sohan Lal was perfectly
competent to will away the share he got out of the joint
family property and that is what he did. He has stated in
the will that Gopal Lal would be the rightful owner of his
self-acquired immovable property. He further stated that
Gopal Lal would be the rightful owner of his share in the
ancestral property and finally he stated that Gopal Lal
would be the rightful owner of all of his articles, i.e.,
jewellery, ornaments, clothes, utensils and other domestic
articles. The last clause relating to movable property
clearly refers both to the share that Sohan Lal got in the
movable property by severance of status and specification of
shares in the preliminary decree and to any self-acquired
movable property. There is therefore no force in this
contention.
The appeal therefore fails and is hereby dismissed with
costs.
V. P. S. Appeal dismissed
163

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