Elevator Pitch
Op EdsOP. ED.

   

There was a time before the mobile phones when the only free time busy executive honchos had was in the elevator. This was the best time to get the undivided and uninterrupted attention of the honcho. If a subordinate wanted to pitch an idea, then they would get into the elevator with the honcho. In the journey from the ground floor till the place of business, they would communicate the just enough information to the honcho that would entice the honcho to give time for a detailed presentation. This is called the elevator pitch.

There was a time when the number of disputes were lesser, and Judges had a lot more time to understand and appreciate the contours of the dispute. The advocate could make a slow beginning and take their time to reach the essence of the dispute. Unfortunately, with docket explosion, an average cause list has more than 60 matters which a Judge has to go through. If an advocate takes a long time to reach the essence of the dispute, it becomes difficult for the Judges to hold their patience and many times, if the advocate does not frame the issue in the right manner, the Judges arrive at their own conclusions.

When we advocate study a file, we make a list of dates, legal propositions and keep all information handy to make the argument. We practice for a detailed argument. Many times, the lesser experienced advocates often do not prepare for the start of the submission. The Judge starts asking basic questions which take away the flow of our submissions. This is more the case at the appellate side than probably in the trial court.

Sometimes it may so be that the Judge wants basic information regarding the case before you start your submission on merits. The most basic thing to start off with is “this is the defendant-plaintiff's appeal against decree/dismissal of the suit. The suit is filed for eviction/specific performance/recovery of money/declaration/injunction. The trial court has held xyz.” What this does is it sets up the Judge to listen to whatever you have to say. If you do not start with this and go on into the facts of the case, the Judge is wondering what the matter is about. The Judge may not even want half the information you are providing. Sometimes it is enough to say, “I enjoyed an injunction throughout the suit.” The High Court will grant you the injunction solely on that ground given that admission of a regular appeal is a given. It may so happen that the Judge has read the papers and has come to the court or is perusing the papers as you are arguing. The information that you provide will give the perspective with which they can peruse the papers and appreciate your arguments.

In the trial court, reiteration of your case theory may help the Judge create a subconscious bias in the Judge's mind which may work to your favour. For example, in an eviction suit, the defendant counsel kept saying “this is a collusive suit for partition filed against a bona fide subsequent purchaser” every time the matter was called out. The cross-examination of plaintiff witness was focused on this point. The narrative was set towards this point alone. The judgment was replete with findings of how it was a collusive suit of partition and how the defendant was a bona fide purchaser.

In the High Court also, framing the right question during your arguments also helps the Judge understand your case better. If there is a central idea or theme to the arguments, it connects the dot to the Judge. Suppose in the same example, you were to say that “I can demonstrate that the entire basis of the trial court's conclusion is because one of the defendants did not file a written statement or lead evidence. The trial court failed to look into the fact that the property was sold at half the market value.” You have set a tone for the High Court to examine the matter. You build on this theory with the facts and the proposition of law.

In the Supreme Court, how you frame the question is all that matters. The difference between, “this appeal is against the concurrent finding of the High Court holding that it is a collusive suit for partition and that the bona fide purchaser cannot be held liable and my remedy is against the other defendants to receive the value of the share” versus “the Hindu Succession Act, 19561 has been turned upside down to evolve a proposition of law that I must recover the money from the other sharers if my right to property is taken away. What this means is that one family member can unauthorisedly sell the property without informing the others, pocket the entire sale proceeds and if 20 others in the family challenge the same, the courts will legitimise the sale by saying your remedy is against one person who sold the property. This will open floodgates for collusive sales and deprivation of joint family property.”

The first one explains the order of the trial court and the High Court. But if you frame the question in that way, a Judge is going to think that the order is right. You will need to explain the larger ramifications of the judgment and why the Supreme Court needs to entertain the SLP. If you do not explain it in the first two or three sentences, you may not even be able to get a fourth sentence in before the files get thrown down with the words, “Dismissed”.

The first two or three sentences that an advocate says when he starts to argue is the elevator pitch. If it is not thought out and framed in the right way, the Judges may lose interest or find it difficult to appreciate the point. Perhaps, it can be argued that an elevator pitch may not be the basis to win or lose a case before the High Court or the trial court. But it does help advocacy. It helps in the case of seeking interim orders. Advocacy is the art of seeking attention of the Judge to your case. You do not want any kind of prejudging, loss of attention or any other distraction. Hence, it is necessary to provide perspective. More often than not, we are preoccupied with what we want to convey than what the Judge would like to hear.

By preparing an elevator pitch, we can make both ends of the stick to meet. The best way to train for this is by explaining your case in 2 sentences, then expanding it to 10 sentences and then to 100 sentences. This trains the lawyer to connect the entire case to the first two sentences that they spoke at the beginning of the argument.

To create an elevator pitch, you need to:

(a) Know your basic facts — It is necessary to identify as to what are the basic facts of the case and your argument and what facts are against you.

(b) Identify your precedents — What is the standard approach of courts in matters of these kinds.

(c) Understand your Judge — Depending on the court you are before; you can identify what issue to highlight. You should be able to frame in your case in a manner in which the Judge will appreciate and not in the way in which you understand the case.

(d) Identify the central theme of the case on which you can win or lose — The best way to do this is by identifying all issues and making a list of their pros and cons, connecting the issues to the underlying central theme in some manner, letting go of certain issues.

(e) Frame your pitch in two or three sentences — This is the most critical part. What to say and what to avoid saying. It is always advisable to practise the first two sentences before entering the court.

Due to increasing pressures and docket explosion, written advocacy is going to assume a lot of importance with very little time being given for oral advocacy. A complaint that is often made is that oral arguments consume a lot of time and Supreme Court has made observations on imposing time limits for oral arguments. If such time limit is imposed in the future, the emphasis will be on communicating the most important and critical information in the shortest possible time. The only way to tie up the arguments is by preparing an elevator pitch. This will help us do our job better, make the Judge's job easier and aid in increased access to justice.


† Practicing Advocate in Bengaluru and Delhi. Author can be reached at <ajay@pragatilaw.in>.

1. Hindu Succession Act, 1956.

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Bela M. Trivedi*, JJ has held that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.

The Court, in the case at hand, was concerned with the claim of one Bhonri Devi of having become the full owner in respect of the suit property on the ground that she was in settled legal possession of the suit property before and after the commencement of the Act, in lieu of her pre-existing right of maintenance, and such limited ownership right had fructified into full ownership by virtue of Section 14(1) of the 1956 Act.

Dhannalalji, the husband of Bhonri Devi expired in 1936, Ganeshnarayanji, the father-in-law of Bhonri Devi expired in 1938 and Harinarayanji, the brother of Ganeshnarayanji died on 11.11.1953. Daulalji was adopted by Sri Bakshji in the year 1916. Harinarayanji, Ganeshnarayanji and Sri Bakshji had common ancestor Gopalji. The suit property was an ancestral property in the hands of Harinarayanji and Ganeshnarayanji. Bhonri Devi was staying in the suit property before the death of Harinarayanji, and after his death she was in possession and in charge of the said property, and was maintaining herself by collecting rent from the tenants who were occupying part of the suit property.

The Rajasthan High Court while discussing about the right of a Hindu widow to the property, observed that the Hindu Women’s Right to Property Act, 1937 was in force in the year 1937 when Ganeshnarayanji, father-in-law of Bhonri Devi expired in 1938, and that even prior to the said Act of 1937, the right of Hindu widow was recognised as per the old shastric customs prevalent in the area.

From the plain reading of Section 14(1) along with the Explanation thereto, the Court explained that in order to become a full owner and not a limited owner, of a property by virtue of Section 14(1), a female Hindu, before or after the commencement of Act of 1956, must be in possession of the property, and it must have been acquired by her by inheritance or devise, or at a partition, or in lieu of maintenance, or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage or by her own skill or exertion or by purchase or by prescription, or in any other manner whatsoever, or any such property must have been held by her as stridhana immediately before the commencement of the Act.

The Supreme Court was of the opinion that the Hindu Women’s Rights to Property Act, 1937 conferred right on Hindu widow to the property of her husband, who died after the commencement of the said Act of 1937 and not prior thereto. Bhonri Devi’s husband Dhannalalji having expired in 1936, the said Act of 1937 would not be applicable to facts of the case. However, prior to the said Act of 1937, the right to maintenance of Hindu widow was recognised in Shastric law.

“There remains no shadow of doubt that a Hindu woman’s right to maintenance was not and is not an empty formality or an illusory claim being conceded as a matter of grace and generosity. It is a tangible right against the property, which flows from the spiritual relationship between the husband and the wife.”

The said right was recognised and enjoined by pure Shastric Hindu Law, which existed even before the passing of the 1937 or the 1946 Acts. Those Acts merely gave statutory backing recognising the position as was existing under the Shastric Hindu Law.

“Where a Hindu widow is in possession of the property of her husband or of the husband’s HUF, she has a right to be maintained out of the said property. She is entitled to retain the possession of that property in lieu of her right to maintenance. Section 14(1) and the Explanation thereto envisages liberal construction in favour of the females, with the object of advancing and promoting the socio-economic ends sought to be achieved by the said legislation.”

It was further explained that the Hindu woman’s right to maintenance is a tangible right against the property which flows from the spiritual relationship between the husband and the wife. Such right was recognized and enjoined under the Shastric Hindu Law, long before the passing of the 1937 and the 1946 Acts. Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving co-parcener did not earmark any alternative property for recognizing her pre-existing right of maintenance.

The Court, further, explained that the words “possessed by” used in Section 14(1) are of the widest possible amplitude and include the state of owning a property, even though the Hindu woman is not in actual or physical possession of the same. Of course, it is equally well settled that the possession of the widow, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.

The Court held that Bhonri devi’s pre-existing right to maintenance, coupled with her settled legal possession of the property, would be sufficient to create a presumption that she had a vestige of right or claim in the property, though no document was executed or specific charge was created in her favour recognizing her right to maintenance in the property.

[Munni Devi v. Rajendra, 2022 SCC OnLine SC 643, decided on 18.05.2022]


*Judgment by: Justice Bela M. Trivedi


Counsels

For appellants: Advocate Puneet Jain

For respondents: Senior Advocate Pallav Shishodia

Madras High Court
Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters.

Plaintiff had sought for relief of partition and for allotment of 1/5th share in the suit property and also sought for declaration of the sale deed executed by the 1st defendant in favour of the 5th defendant as null and void.

Plaintiff’s case was that the suit property formed part of a larger extent of property which was ancestral in nature. It was claimed that 1st defendant father and defendants 2 to 4 who were the sisters of the plaintiff were each entitled 1/5th share in the suit property.

The grievance of the plaintiff was that the 1st defendant went ahead and sold an extent of 36 cents in favour of the 5th defendant through a sale deed and according to the plaintiff, this sale deed was null and void and not binding on the other sharers. Further, the 1stdefendnat was not coming forward to allot the shares to the other legal heirs and hence, the suit came to be filed seeking for the reliefs.

1st defendant submitted that he was the absolute owner of the property during his life time and plaintiff cannot claim any share in the property.

Analysis, Law and Decision

High Court noted that the source of the property was admitted to be ancestral.

Main Issue

Nature of inheritance made by the three sons of Thalaivirichan Reddy.

The Bench expressed that, even after the Joint Family properties are partitioned and allotted to each sharer, the same can be held to be the individual property of the sharer only till a son and/or daughter are born. Once a son and/or daughter is born, they will get a right and share over the property by birth. As rightly held in the above judgment, the 1956 Act has not put to an end the co-parcenary rights and infact, it continues to be reiterated after the coming into force of the 2005 amendment Act.

Further, the Court expressed that,

Even if there was a family arrangement between the three sons of Kathavaraya Reddy and by virtue of the same, the 1st defendant had allotted 1.07 acres, the moment the plaintiff and defendants 2 to 4 were born, they will also be entitled for a share in the property.

In High Court’s opinion, lower Courts had lost the sight of law governing the property and had erroneously concluded that the property in the hands of 1st defendant was his exclusive property and that daughters will not be entitled to claim a share in the property.

It is nobody’s case that the 1st defendant had sold the property and had utilized the money for illegal purposes. Therefore, the assumption should be that it was utilized by the 1st defendant for the family.

“…this Court must also safeguard the rights of the plaintiff and defendants 2 to 4 to the extent possible and ensure that they get a reasonable share in the suit property. This is the only way to balance the rights of the daughters and the father in the suit property.”

Court added that,

The manner in which the property is going to be distributed by balancing the equities can be decided by the Trial Court at the time of passing the final decree.

Hence, the second appeal was partly allowed granting 1/4th share to the plaintiff and defendants 2 to 4 in the property that remained after the extent that had already been sold in favor of 5th respondent. [S. Sampoomam v. C.K. Shanmugam, 2022 SCC OnLine Mad 1594, decided on 5-4-2022]


Advocates before the Court:

For Appellant: Mr.A.Gouthaman

For Respondents: Mr.R.Rajarajan for R1 to R5

Case BriefsSupreme Court

Supreme Court: In a half a century old case relating to a Will, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the objective of Section 14(1) of the Hindu Succession Act, 1956[1] is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of.

“If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator.”

Factual Background

The case relates to the testamentary disposition by a Will dated 15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969.

The Will aforesaid bequeathed the testator’s estate to his son, the appellant herein, and his second wife Ram Devi (the first wife being deceased whose progeny is the appellant). Land measuring 175 kanals and 9 marla, a residential house and a Bara was bequeathed half and half to the appellant and Ram Devi.

However, the nature of bequeath was different for the two. The appellant was given absolute ownership rights to the extent of his share of land and property whereas Ram Devi was given a limited ownership for her enjoyment during her lifetime with respect to her share of the land with a specific provision that she could not alienate, transfer or create third party rights over the same. Thereafter the property was to vest absolutely in the appellant after her lifetime.

Ram Devi, However, entered into sale deed for her share of the property. This was challenged by the appellant as he claimed that Ram Devi only had a limited right in the share.

Analysis of the Provision

Sub-Section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner.

The Explanation to sub-Section (1) of Section 14 of the said Act defines the meaning of “property” in this sub-section to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana.

Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a ‘non-obstante clause’. Thus, it says that “nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court….” etc. where a restricted estate in such property is prescribed.

The objective of sub-Section (2) is that there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said Act

Further, the word “possessed” was held to be used in a wide sense not requiring a Hindu woman to be an actual or physical possession of the property and it would suffice if she has a right in the property. The intention of the Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions, viz., a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of the Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act.

The Court observed that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. Holding so would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective.

Ruling on facts

Taking note of the terms of the Will, the Court observed that the testator was clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half and half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant.

The Court noticed:

  • The Will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself.
  • The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property.
  • Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the Will was executed one of the daughters was unmarried and the Will also provided that in case for performing the marriage Ram Devi needs money she will have the right to mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage.

The Court, hence, observed that the testator in the present case had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime.

Hence, it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. Therefore, the sale deeds in favour of the respondents cannot be sustained.

[Jogi Ram v. Suresh Kumar, 2022 SCC OnLine SC 127, decided on 01.02.2022]


*Judgment by: Justice Sanjay Kishan Kaul


[1] 14. Property of a female Hindu to be her absolute property.— (1) Any property possessed by a female Hindu, whether 9 AIR 2016 SC 1213 10 acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Case BriefsSupreme Court

Supreme Court: The bench of SA Nazeer and Krishna Murari*, JJ has held that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Scheme of the Hindu Succession Act, 1956 and the relevant provisions

The main scheme of the Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion.

Section 15 lays down the general rules of succession in the case of female Hindus. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death.

Applicability of the law on the case at hand

Suit for partition was filed by Thangammal, daughter of one Ramasamy Gounder, claiming 1/5th share in the suit property. The said Ramasamy Gounder had an elder brother by the name of Marappa Gounder. Ramasamy Gounder, predeceased his brother Marappa Gounder who died on 14.04.1957 leaving behind the sole daughter by the name of Kuppayee Ammal who also died issueless in 1967. Further case set up by the plaintiff/appellant was that after the death of Marappa Gounder, his property was inherited by Kuppayee Ammal and upon her death in 1967, all the five children of Ramasamy Gounder are heirs in equal of Kuppayee and entitled to 1/5th share each.

Noticeably Kupayee Ammal, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956, which has amended and codified the Hindu Law relating to intestate succession among Hindus.

Since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.

Further, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.

[Arunachala Gounder v. Ponnusamy, 2022 SCC OnLine SC 72, decided on 20.01.2022]


*Judgment by: Justice Krishna Murari


Counsels

For appellant: Advocate P.V. Yogeswaran

For respondent: Advocate K.K. Mani

Case BriefsHigh Courts

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., dismissed the second appeal and held that the first appellate Court is absolutely justified in granting the appeal.

The facts of the case are such that the suit property was originally held by Sugriv who died leaving 4 sons namely Mohan, Abhiram, Goverdhan and Jeeverdhan. Mohan died issueless and Abhiram had a son Ghasi who died and is now left with wife and daughter being defendant 1 and 2 respectively. The third son Goverdhan has a son Loknath who filed a plaint on the ground that since Ghasi died in the year 1942 and his wife defendant 1 entered into second marriage in the year 1954-55 in chudi form, therefore, she ceases to have any interest in the suit property and therefore, defendants 1 & 2 have no right and title over the suit property.

The trial Court after appreciating oral and documentary evidence available on record partly decreed the suit holding that clause 29 of the Raigarh State Wajib-ul-arz applies in the present case and defendant 1 had already entered into second marriage in 1954-55 and as such, she would only be entitled for 5 khandi of land for maintenance. In the appeal preferred by defendant 2 questioning the judgment and decree of the trial Court, the first appellate Court allowed the appeal of defendant 2 and held that in the light of Section 14(1) of the Hindu Succession Act, 1956, Kiya Bai – defendant 1, had become full owner of the suit property on coming into force of the Hindu Succession Act, 1956 and therefore the plaintiff is not entitled for any decree and set aside the judgment and decree of the trial Court, feeling aggrieved against which this second appeal has been preferred by the plaintiff. The defendants 3 to 6 are sons and daughter of Jeeverdhan (4th son).

Counsel for the appellants Mr. Neelkanth Malaviya submitted that, the first appellate Court has clearly erred in holding that Section 14(1) of the Hindu Succession Act, 1956 would apply and defendant 1 & defendant 2 have become full owners of the suit property as they remained in possession thereof on the date of coming into force of the Hindu Succession Act, 1956, and further erred in holding that clause 29 of the Raigarh State Wajib-ul-arz would not apply. It was further submitted that the finding recorded by the first appellate Court that Defendant 1 (wife) has not entered into second marriage in 1954-55 is erroneous finding being contrary to record and it is against the admission made by defendant 2 (daughter) and therefore the judgment of the first appellate Court deserves to be set aside.

No one was present for respondent 1 i.e. Defendant 2.

There is overwhelming evidence available on record to state that the fact remains that defendant No. 1 remained in physical position of the suit land even after coming into force of the Hindu Succession Act, 1956 and her limited right, if any, has ripened into absolute title by virtue of Section 14(1) of the Hindu Succession Act, 1956 (for short, ‘the Act of 1956’).

The Court observed that on a careful perusal of Section 14 (1) of Hindu Succession Act, 1956 it is quite vivid that under Section 14(1) of the Act of 1956, to get attracted, the property must be possessed by the female Hindu on coming into force of the Act of 1956. The object of this provision is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by woman on the date of commencement of the Act as a limited owner, into an absolute estate.

The Court relied on judgment Shyam Narayan Singh v. Rama Kant Singh, 2017 SCC OnLine SC 1985 wherein it was held as under

“5. On an analysis of Section 14(1) of the Hindu Succession Act of 1956, it is evident that the Legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner. Section 14(1) would come into operation if the property at the point of time when she has an occasion to claim or assert a title thereto. Or, in other words, at the point of time when her right to the said property is called into question. The legal effect of Section 14(1) would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner. (We are for the moment not concerned with the fact that Sub-section (2) of Section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a Civil Court or award provided the very document creating title unto her confers a restricted estate on her). There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act. The expression ‘possessed’ has been used in the sense of having a right to the property or control over the property. The expression ‘any property possessed by a Hindu female whether acquired before or after the commencement of the Act’ on an analysis yields to the following interpretation:

(1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.

(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner.”

 The Court reverting to the facts and relied judgment, observed that Ghasi died in the year 1942 by which his widow Kiya Bai – defendant 1 became the limited owner of his share by virtue of the provisions contained in Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and after coming into force of the Act of 1956 and by operation of Section 14(1) of the Act of 1956 with effect from 17-6-1956, her limited right in the suit property would blossom into absolute estate as contemplated by Section 14(1) of the Act of 1956 and she would become the absolute owner of the suit property as on date. Defendant 1 had already became limited owner before the coming into force of the Act of 1956 and thereafter, her limited right has became ripened into absolute right.

The objection regarding remarriage of Defendant 1 was rejected as there is neither adequate pleading with regard to the remarriage of Kiya Bai defendant 1 with any person nor there is admissible evidence on record to hold that Kiya Bai had remarried and lost her right to the property as required under Section 6 of the Act of 1856.

The Court thus held “the finding recorded by the first appellate Court that the suit property fell in the share of Ghasi and after death of Ghasi, defendant No.1 remained in physical possession of the suit land and by virtue of Section 3(2) of the Hindu Women’s Rights to Property Act, 1937, defendant No.1 Kiya Bai became the limited owner of the property during her lifetime till the coming into force of the Act of 1956 and after coming into force of the Act of 1956, she became the absolute of the suit property, is correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record.”

[Shribachahh Kumar Bhoi v. Sindhu, Second Appeal No.356 of 2001, decided on 28-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: G. Jaya Chandran, J., expressed that the individual property can blend with the ancestral property or with the joint family property but not vice versa.

Factual Matrix

In the present matter, it has been stated that the parties engaged in the dispute were descendants of K.N.T Manickam Chettiar. During the lifetime of K.N. Thandavaraya Chettiar, he and his 6 sons entered into a partition deed and got the same registered. Ancestral Properties and the properties accrued through joint family members exertion were divided into 7 lots put under schedule “A” to “G”.

Further, it was added that Schedule “A” was left to parents Thandavaraya Chettiar and his wife Unnamalaiammal, and later after their death to be divided among the 6 sons after clearing the parent’s debts if any.

Manickam Chettiar was allotted properties under “F” schedule and later the said properties were divided into 8 lots under schedule “A” to “H”. Properties listed under ‘A’ schedule was allotted to K.N.T Manickam Chettiar and the ‘B’ Schedule properties were allotted to his son M. Sivasubramaniam. On the demise of K.N.T Manickam Chettiar, properties left by him were divided amongst his children, after which M. Sivasubramaniam was allotted properties listed under Schedule ‘A’.

Sivasubramaniam after getting married had a son named ‘Saravanan’ and a daughter ‘Dhanuja Murali’. Later Sivasubramaniam re-married and from his second marriage he had a son ‘Manikandan’ and two daughters Kavitha and Vidya.

Present Suit by Saravanan for Partition

Sivasubramanian, Mnaikandan, Dhanuja Murali, Kavitha Senthil  and Vidhya Venkataragavan are the defendants. Saravanan contended that ‘A’ and ‘B’ schedule properties are properties in the name first defendant are ancestral properties. ‘C’ Schedule property purchased in the name of First Defendant Sivasubramanian is from out of joint family income.

Trial Court had dismissed the suit holding that the suit properties were not joint family properties and against the said dismissal, the present appeal was filed.

Point for Consideration

Whether the suit properties are ancestral properties to devolve upon the plaintiff by survivorship or it is a self-acquired property acquired by the 1st defendant to dispose of it as self -acquired?

Analysis, Law and Decision

The three categories of properties stood in the name of Sivasubramanian and one property not included stands in the name of Saravanan, who is the plaintiff.

First Category Property: It is the one that devolved upon Sivasubramanian when his father and others divided the ancestral and joint family property. This property is shown under Schedule ‘A’.

Second Category Property: It is the one devolved upon Sivasubramanian under the petition deed between him and his siblings.

Third Category Property: It is the property purchased in the name of Sivasubramanian in the year 2004 upon which, he had constructed a house and the property purchased in the name of Saravanan and construction put upon it.

Property in the name of Sivasubramanian alone is the subject matter of the present suit. Plaintiff excluded the property which stood in his own name and wanted to retain it as his self-acquired individual property and had contended that, it does not form part of the joint family property. Sivasubramanian’s daughters contended that the ‘C’ schedule property in the suit was their father’s self-acquired property and the property in the name of Saravanan was the joint family property purchased in Saravanan’s name.

Controversy:

The controversy is in respect to the property purchased and improved in the name of Saravanan (plaintiff) and Sivasubramanian (1st defendant) – Whether it is the self-acquired property of the individual or joint family property?

If any person says property has been purchased in the name of family members from out of joint contribution of the family members, then, the person who asserts the fact, should prove it.

In the present matter, both plaintiff as well as the 1st defendant were able to show their independent source of income for purchasing the property in their respective names.

Bench opined that since the ‘C’ schedule property stood exclusively in the name of 1st defendant and he had shown his independent source of income for purchasing the said property and improving it, the plaintiff cannot have right or share in the said property.

Trial Court miserably failed to note the ancestral nature of the property and other properties getting blended with the ancestral property.

Further to elaborate on the point of devolution of Hindu Male Mitakshara Property, Bench referred to the Supreme Court decision in: M. Arumugam v. Ammaniammal, (2020) 5 CTC 680.

While concluding, High Court held that an ancestral property is always an ancestral property, unless it gets divided among the existing coparceners. Even then, on the birth of a son and after 2005 amendments also daughter the coparcenary opens to them. Hence, Trial Court erred in the way in which it dealt with ‘A’ and ‘B’ schedule properties.

Hence partly allowing the appeal, Court decided that ‘A’ and ‘B’ schedule property are declared as ancestral property and available for partition, defendant’s 1 to 5 are entitled to share schedule ‘A’ and ‘B’ property equally. As far as ‘C’ schedule property, the plaintiff failed to prove that the said property as purchased from out of the income derived from the ancestral property. [P. Saravanan v. M. Sivasubramanian, 2021 SCC OnLine Mad 927, decided on 04-03-2021]


Advocates before the Court:

For the appellants: R. Subramanian, Senior Counsel for Gupta and Ravi

For R1 to R5: V. Lakshminarayanan, for R. Jayaprakash.

Case BriefsHigh Courts

Bombay High Court: R.D. Dhanuka, J., held that relinquishment of properties held by the legal heirs of a person whose properties were self-acquired properties would enure only for those persons in whose favour such deed of relinquishment was executed.

The First Appeal was filed under Section 96 of the Code of Civil Procedure, 1908.

Respondents (original plaintiffs) case was that the suit properties were the self-acquired properties of Late Shripad Pandit who was the grandfather of the respondents. The said properties were purchased in the name of Late Smt. Usha was the wife of Shripad Pandit and the grandmother of the respondents.

Appellants (original defendants) are the uncles of the respondents (original plaintiffs). Father of the respondents expired and after his death, the mother of the respondents who were defendant 4 got re-married.

Respondents stated that the deceased Usha Pandit and Shripad Pandit had four sons and four daughters. After their demise, each son and daughter had 1/8th share therein. Sisters of appellant1 to 3 relinquished their undivided share in the suit property by a registered release deed and thus had no right, title and interest of any nature in the suit property.

Trial Judge declared that the appellants and respondents 1 to 3 were having 1/4th share each in units/apartments reserved for their joint family. It was further held that respondents 1 to 3 (original plaintiffs) are entitled for partition, separate possession of their 1/4th share in the suit property. Court restrained the appellants permanently from creating third party interest to the extent of 1/4th share of respondents 1 to 3 in the suit property and directed that partition of 1/4th share of respondents 1 to 3 effected by appointing Court Commissioner and separate possession of their share be given to them.

In view of being affected with the trial court judgment, appellants filed the present appeal.

Analysis and Decision

A perusal of the judgment and decree passed by the Trial Court indicates that the trial Court though had rendered a finding that the suit properties were inherited by the parties had rendered perverse finding that the suit properties were co-parcenary properties and release deed executed by the sisters of the appellants were for the benefit of all the members of the family and not only the appellants.

Trial Judge strongly placed reliance on the judgment of the Andhra Pradesh High Court in the case of M. Krishna Rao v. M. L. Narasikha Rao, 2003 SCC OnLine AP 526 & L. Sundaram and Ravichandran v. Lakshmanana (died)2003 (1) Mh. LJ. 195, held that relinquishment of the right and interest by the daughters of Shri Shripad Pandit and Usha was in favour of the entire family and not in favour of the appellants only.

Co-Parcenary & Not Self Acquired | Erroneous

Trial Judge erroneously proceeded on the premise that the Deed of Release by four daughters of Shripad Pandit in favour of the appellants were co-parcenary properties and not his self-acquired properties.

Bench relied on the decision of the Supreme Court in Kishore Tulshiram Mantrim v. Dilip Jank Mantri,  Second Appeal No. 374 of 2018 decided on 14-8-2018 and opined that the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The daughters of the said deceased thus were free to relinquish their undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

 In the present matter, Trial Judge erroneously applied the principles applicable to the relinquishment of undivided share by a coparcener in favour of another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.

A perusal of the release deed which was produced on record in evidence executed by the four daughters of the said deceased i.e. Pushpalata, Bharti, Hemlata and Varsha clearly show that they had released all their undivided share right, title and interest in the suit property in favour of the appellant exclusively. Hence respondents 1 to 3 would be entitled to only 1/8th share in the suit property and not 1/4th share. [Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 2020 SCC OnLine Bom 309, decided on 25-02-2020]


Advocates before the Court:

Girish R. Agrawal for the appellants.

Jaydeep Deo for the respondents 1 to 3

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has held that consent decree recognising pre-existing rights created by oral family settlement does not require registration under section 17 of  Registration Act, 1908.

Background

In the present case, Shri Sher Singh, husband of Jagno had half share in the agricultural land situate in village Garhi Bajidpur, which was suit property. Sher Singh died in 1953. Jagno after enforcement of the Hindu Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property.

She had succeeded to half share in the agricultural land and she was the absolute owner when she entered into family settlement with her nephews i.e. sons of her brother.

On 19.08.1991, the trial court passed the consent decree in favour of the plaintiffs declaring the plaintiffs owners in possession of the half share in the land.

The descendants of brother of husband of Jagno filed a Civil Suit praying for declaration that the decree dated 19.08.1991 is illegal, invalid and without legal necessity. They also claimed decree of declaration in their favour declaring them owners in possession of land in question.

Analysis 

The Court took note of the judgment in Som Dev v. Rati Ram, (2006) 10 SCC 788 wherein decree was based on an admission recognising pre-existing rights under family arrangement. It was held that the decree did not require registration under Section 17(1)(b).

In in K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102, the Court interpreted Section 17 and held,

“… a property which is not the subject-matter of the suit or a proceeding would come within the purview of exception contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a compromise is entered into in respect of an immovable property, comprising other than that which was the subject-matter of the suit or the proceeding, the same would require registration.”

The recent judgment in in Mohammade Yusuf v. Rajkumar, (2020) 10 SCC 264 was also taken note of wherein it was held that if decree which was sought to be exhibited was with regard to the property which was subject matter of suit, hence, was not covered by exclusionary clause of Section 17(2) (vi) and decree did not require registration. (Justice Ashok Bhushan, the author of the present judgment had also penned the said judgment.)

Hence, in the present case, the Court held that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause.

[Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128, decided on 22.02.2021]


*Judgment by: Justice Ashok Bhushan 

Appearances before the Court by:

For appellant – Advocate Ranbir Singh Yadav

For respondent – Senior Advocate Manoj Swarup

ALSO READ 

Married woman’s heirs on paternal side are not strangers; she can enter in family settlement with such heirs: Supreme Court

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has held that when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.

Factual Summary and arguments 

In the present case, Shri Sher Singh, husband of Jagno had half share in the agricultural land situate in village Garhi Bajidpur, which was suit property. Sher Singh died in 1953. Jagno after enforcement of the Hindu Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property.

She had succeeded to half share in the agricultural land and she was the absolute owner when she entered into family settlement with her nephews i.e. sons of her brother.

It was contended by the appellants that no family settlement could have been entered by Jagno in favour of defendant Nos.1 to 3, they being strangers to the family. A Hindu widow cannot constitute a Joint Hindu Family with the descendants of her brother, i.e., her parental side. Family settlement can take place only between members, who have antecedent title or pre-existing right in the property proposed to be settled. Smt. Jagno could have transferred her absolute share in favour of the respondents or to any stranger only in accordance with law by complying with the provisions of the Transfer of Property Act, 1882, the Indian Registration Act, 1908 and the Indian Stamp Act, 7 1899.

Respondents, on the hand, argued that the defendants being brother’s sons of Jagno, they were not strangers to Jagno and family settlement could have been very well entered by Jagno with them. Also, the expression “family” for the purpose of family settlement is not to be given any narrow meaning; it should be given a wide meaning to cover the members, who are by any means related.

Analysis

In Kale. v. Deputy Director of Consolidation, (1976) 3 SCC 119, the Court had elaborately considered all contours of the family settlement. This Court laid down that term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis. In the said case, Kale, with whom the two sisters of his mother entered into family settlement was not a legal heir within meaning of U.P. Tenancy Act, 1939 but the family settlement entered with Kale was upheld by the Supreme Court.

Hindu Succession Act, 1956, Section 15, deals with the general rules of succession in the case of female Hindus for properties inherited by female Hindus, which are devolved in according to Sections 15 and 16.

“15. General rules of succession in the case of female Hindus.—

(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

 (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.”

Hence, Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed and when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.

The Court, hence, held that  Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. Therefore, there is no merit in the submission that the defendants-respondents were strangers to the family.

[Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128, decided on 22.02.2021]


*Judgment by: Justice Ashok Bhushan 

Appearances before the Court by:

For appellant – Advocate Ranbir Singh Yadav

For respondent – Senior Advocate Manoj Swarup

ALSO READ

Consent decree recognising pre-existing rights created by oral family settlement does not require registration under section 17 of Registration Act, 1908: Supreme Court

Case BriefsHigh Courts

Madras High Court: R. Subramanian, J., dismissed the second appeal filed in regard to suit for partition and granting possession of share to a daughter as coparcener on finding no substantial question of law.

In the instant second appeal, plaintiffs are aggrieved by the dismissal of their suit for partition and separate possession of their 1/3rd share.

What did the plaintiffs contend?

Plaintiffs stated that the suit properties belonged to Rasappa Gounder who died in the year 1980 leaving behind one son and two daughters. One of the daughters is the wife of the first plaintiff and mother of the second plaintiff, died on 20-04-1987.

Plaintiffs claimed that as the daughter she would become a coparcener upon enactment of Hindu Succession (Amendment Act 39 of 2005) Act, the plaintiff’s would seek a 1/3rd share in the estate of Rasappa Gounder.

Defendants Contention

Defendants contended that the predecessor in interest viz., Rasappa Gounder died in the year 1980 and after his death, there was an arrangement under which the daughters and the second defendant Subbayal relinquished their share in Rasappa Gounder’s estate upon receipt of Rs 25,000.

It was also stated that defendant 1 was in possession of the property as an absolute owner and sold a portion of the properties to the knowledge of Poornam, plaintiffs and second defendant.

Therefore, it was contended that the plaintiffs were effectively ousted from the enjoyment of the property by the first defendant.

Second defendant supported the above contentions and stated that she and her sister had received a sum of Rs 25,000 in full quit of their share and have no claim over the properties of the deceased.

Trial Court

Trial Court had held that since Rasappa Gounder died in 1981, the succession having opened on the death of Rasappa Gounder, Poornam would not become a coparcener.

Vineeta Sharma v. Rakesh Sharma, (2020) SCC Online 641

Change in law brought by the above-cited decision of the Supreme Court would not have helped the plaintiff, since the daughter herself had died in 1987 even prior to the enactment of the Hindu Succession (Amendment Act 39 of 2005) Act.

Hence, the claim that the daughter becomes a coparcener was rejected by the trial court.

In view of the above, a second appeal was filed.

Counsel A. Thiyagarajan appeared for the appellants.

Decision

Bench stated that if the claim of the plaintiffs was to be restricted to Section 8 of the Hindu Succession Act, then the devolution of the estate happened on the death of Rasappa Gounder in the year 1981. The instant suit has been filed 30 years thereafter in the year 2011.

Hence the Court stated that it is a stale claim which is sought to be resurrected for some other reason.

Therefore, Court found no substantial question of law and dismissed the second appeal. [C.P. Subramaniam v. Deivasigamami,  2020 SCC OnLine Mad 5206, decided on 16-10-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ has held that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

BACKGROUND OF THE CASE

The Court was dealing with a reference relating to the interpretation of section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 in view of the conflicting verdicts rendered in two Division Bench judgments in Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma v. Amar, (2018) 3 SCC 343.

Prakash v. Phulvati ruling

section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. The provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect.

Danamma v. Amar Ruling

The amended provisions of section 6 confer full rights upon the daughter coparcener. Any   coparcener, including a daughter, can claim a partition in the coparcenary property. The father, in the said case, died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece.

DETAILED EXPLANATION OF LAW IN REFERENCE

On the law on Coparcenary and Joint Hindu Family

Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption.

“As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise.”

On unobstructed and obstructed heritage

Unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death.Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6.

On effect of death of father before the Amendment Act, 2005 came into force

Rejecting the argument that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. It said,

“It is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6.”

On possibility of uncertainty if daughter is given the right to be a coparcener by birth

The Court also rejected the contention that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused.

It said that no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005.

“There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also.”

By applying section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original section 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary.

KEY TAKEAWAYS

  • The provisions of section 6 have been held to be prospective. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
  • The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
  • Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
  • The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
  • In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

[Vineeta Sharma v. Rakesh Sharma, 2020 SCC OnLine SC 641, decided on 11.08.2020]


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Case BriefsSupreme Court

Supreme Court: Explaining the requirement under Section 69 of the Evidence Act pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, the bench of SK Kaul and KM Joseph, JJ has held if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting.

The Court was deciding the following questions:

  • Is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved?
  • Or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?

Writing a detailed judgment running into over 270 pages, the Court said that in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It explained

“It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act.”

In short, the Court held that, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness.

“This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.”

It was further added:

  • in a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. The reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over.
  • making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will.
  • the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding.
  • while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

On the limits on power of a Hindu to execute a will and effect of Section 30 of the Hindu Succession Act, 1956 thereon

The Court explained that under Mitkashara Law, a Hindu could bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. A Hindu being a member of the joint family could also possess his separate property which are of various kinds. They include obstructed heritage which is property inherited by a Hindu from another who is a person other than his father, father’s father or great grandfather, Government grant, income of separate property, all acquisitions by means of learning. A Hindu could execute a will bequeathing his separate and selfacquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise.

The Court further stated n the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest.

“as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare.”

Further, after the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family.

“In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.”

On the impact of the Hindu Women’s Right to Property Act, 1937

The Court explained that Section 3(2) of the 1937 Act contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply.

“… a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.”

[V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584 , decided on 17.07.2020]

Case BriefsSupreme Court

Supreme Court: In a case where a widow claimed possession of a property mutated in her name on the basis of the oral gift from her husband before the enforcement of the Hindu Succession Act, 1956, the bench of AM Khanwilkar and Ajay Rastogi, JJ said,

“Section 14(1) of the Act, 1956 clearly envisage that the possession of the widow, however, must be under some vestige of a claim, right or title or under any of the devise which has been purported under the law.”

The Court also explained the concept of mutation and said.

“the mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession.”

The Court, hence, held that in the instant case, the widow although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre­existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law.

[Ajit Kaur v. Darshan Singh, 2019 SCC OnLine SC 470, decided on 04.04.2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Dr. Shalini Phansalkar-Joshi, J. heard a petition filed against the husband (respondent) of deceased Sundarabai who died intestate.

The petitioners contended that the suit property was received by the deceased from her parents and that the husband’s children were not her children as they were born to the respondent’s second wife. Therefore, there was no cause of action to the suit for declaration, partition and injunction filed by the respondent (as original plaintiff) since neither the respondent husband nor his children had any shares to the said properties.

The trial court partially allowed the application by rejecting the claims of the children and accepting the husband’s claim. Relying on Section 15 of the Hindu Succession Act which states that in cases where a female dies intestate then the property she had inherited from her father or mother does not devolve upon the husband or his issues but upon the heirs of the deceased’s father, the High Court held that the trial court should have rejected the plaint in respect of the husband and not just his children. Further, it was held that the respondent had no cause of action to file the suit for partition of the deceased’s property. [Tarabai Dagdu Nitanware v. Narayan Keru Nitanware, 2018 SCC OnLine Bom 91, decided on 15-01-2018]

Case BriefsHigh Courts

Delhi High Court: A Bench comprising of Valmiki J. Mehta, J. dismissed the appeal filed by the appellant for revocation of the succession certificate granted to the legal heirs in a case filed by the sister of the deceased.

The appellant was the real sister of the deceased and she challenged the succession certificate granted to the daughter and the husband of the deceased, on the ground that they remained separated from the deceased before 35 years prior to her death, and the appellant is the nominee in the government records.

The Court took recourse to Section 15(1)(a) of the Hindu Succession Act, 1956, and affirmed the conclusion of the lower court that the respondents being the daughter and husband of the deceased, are her legal heirs, and they are entitled to the succession certificate. The Court followed the Supreme Court judgment in Sarbati Devi v. Usha Devi, (1984) 1 SCC 424 and stated that nomination is not a will in law, thus rejecting the plea of the appellant that there is a nomination in her favour in the government records. The High Court dismissed the appeal by holding that in the absence of any will of the deceased in favour of the appellant, only those persons who are the legal heirs of the deceased under the Hindu Succession Act, can inherit her properties. [Rampali v.  State Govt. of NCT of Delhi , 2017 SCC OnLine Del 7999, decided on 24-04-2017]