Testator had no power or authority to dispose of by will ancestral properties in his hand
Citation
CDJ 1980 SC 405
Kalyani vs Narayanan
Head note
Constitution of India, 1950 –Article 133 (1)(c) –Code of Civil Procedure, 1908 –Section 96 –Transfer of property Act –Validity of Will –Whether Will by deceased would be effective as will –
Court Held –When property is described as tarvad property in broad sense it is admitted to be joint family property – This also becomes clear from recital in Will that properties in A and B schedules are tarvad properties in C schedule are claimed by him as his self-acquired properties and they are to be kept joint and are not sought to be dealt with by Will –Will purports to dispose of ancestral properties by will it will be ineffective as will as testator had no power or authority to dispose of by will ancestral properties in his hand –And testator has not attempted to dispose of his undivided share in ancestral properties by Will –Will is not effective as will and Respondents did not affirm their rights under Will as if it is binding will – Appeal partly allowed.
(Paras 9)
Constitution of India, 1950 –Article 133 (1)(c) –Code of Civil Procedure, 1908 –Section 96 –Transfer of property Act –Will –Partition –Whether Will was effective as partition –
Court Held –Will itself specifies share of each member separately –There is evidence in form of some documents showing that first Defendant is described as Karnavaran of coparcenary of four sons of first wife of K and that property is enjoyed as joint family property –Plaintiff's claim to share in that properties set out in Schedules B and C annexed to plaint has been concurrently negatived by both the Courts on finding that they are properties of first Defendant and his wife and are not accretions to property which devolved from K – This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed –Plaintiff's suit with regard to share in B and C schedule properties has been rightly dismissed – Appeal partly allowed.
(Paras 29, 30, 31, 33)
Cases Referred:
Appovier v. Rama Subba Aiyan ((1986) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1)
Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar ((1979) 4 SCC 60, 68).
Girja Bai v. Sadashiv (43 IA 151 : AIR 1916 PC 104 : 18 Bom LR 621)).
Kandasami v. Doraisami Ayyar (ILR (1980) 2 Mad 317 : 5 Ind Jur 352),
Brijraj Singh v. Sheodan Singh (40 IA 161 : ILR 35 All 337 : 15 Bom LR 652)).
M. N. Aryamurthy v. M. D. Subbaraya Setty ((1972) 4 SCC 1).
Brijraj Singh case (40 IA 161 : ILR 35 All 337 : 15 Bom LR 652)
Lakshmi Chand v. Anandi (53 IA 123 : AIR 1926 PC 54 : 24 ALJ 609),
Raghavamma v. Chenchamma (AIR 1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593)).
Palani Ammal v. Muthuvenkatacharla Moniagar (52 IA 83 : AIR 1925 PC 49 : 23 ALJ 746).
Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1),
Bhagwan Dayal v. Mst. Reoti Devi ((1962) 3 SCR 440 : AIR 1962 SC 287 : (1962) 1 SCJ 348),
Palani Ammal case (52 IA 83 : AIR 1925 PC 49 : 23 ALJ 746).
Balabux v. Rukhmabai (ILR 30 IA 130 : ILR 30 Cal 725 : 15 Bom LR 469)
Sengoda v. Muthu (ILR 47 Mad 567 : AIR 1924 Mad 625 : 46 MLJ 404),
Palani Ammal case (52 IA 83 : AIR 1925 PC 49 : 23 ALJ 746)
Bhagwati Prasad Shah v. Dulhin Rameshwari Kuer (1951 SCR 603 : AIR 1952 SC 72 : 1952 SCJ 115),
Bhagwan Dayal case ((1962) 3 SCR 440 : AIR 1962 SC 287 : (1962) 1 SCJ 348)
Balkishen Das v. Ram Narain Sahu (30 IA 139 : ILR 30 Cal 738 : 5 Bom LR 461),
Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1)
Comparative Citations:
1980 AIR(SC) 1173, 1980 (S) SCC 298, 1980 (2) SCR 1130,
Court Held –When property is described as tarvad property in broad sense it is admitted to be joint family property – This also becomes clear from recital in Will that properties in A and B schedules are tarvad properties in C schedule are claimed by him as his self-acquired properties and they are to be kept joint and are not sought to be dealt with by Will –Will purports to dispose of ancestral properties by will it will be ineffective as will as testator had no power or authority to dispose of by will ancestral properties in his hand –And testator has not attempted to dispose of his undivided share in ancestral properties by Will –Will is not effective as will and Respondents did not affirm their rights under Will as if it is binding will – Appeal partly allowed.
(Paras 9)
Constitution of India, 1950 –Article 133 (1)(c) –Code of Civil Procedure, 1908 –Section 96 –Transfer of property Act –Will –Partition –Whether Will was effective as partition –
Court Held –Will itself specifies share of each member separately –There is evidence in form of some documents showing that first Defendant is described as Karnavaran of coparcenary of four sons of first wife of K and that property is enjoyed as joint family property –Plaintiff's claim to share in that properties set out in Schedules B and C annexed to plaint has been concurrently negatived by both the Courts on finding that they are properties of first Defendant and his wife and are not accretions to property which devolved from K – This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed –Plaintiff's suit with regard to share in B and C schedule properties has been rightly dismissed – Appeal partly allowed.
(Paras 29, 30, 31, 33)
Cases Referred:
Appovier v. Rama Subba Aiyan ((1986) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1)
Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar ((1979) 4 SCC 60, 68).
Girja Bai v. Sadashiv (43 IA 151 : AIR 1916 PC 104 : 18 Bom LR 621)).
Kandasami v. Doraisami Ayyar (ILR (1980) 2 Mad 317 : 5 Ind Jur 352),
Brijraj Singh v. Sheodan Singh (40 IA 161 : ILR 35 All 337 : 15 Bom LR 652)).
M. N. Aryamurthy v. M. D. Subbaraya Setty ((1972) 4 SCC 1).
Brijraj Singh case (40 IA 161 : ILR 35 All 337 : 15 Bom LR 652)
Lakshmi Chand v. Anandi (53 IA 123 : AIR 1926 PC 54 : 24 ALJ 609),
Raghavamma v. Chenchamma (AIR 1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593)).
Palani Ammal v. Muthuvenkatacharla Moniagar (52 IA 83 : AIR 1925 PC 49 : 23 ALJ 746).
Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1),
Bhagwan Dayal v. Mst. Reoti Devi ((1962) 3 SCR 440 : AIR 1962 SC 287 : (1962) 1 SCJ 348),
Palani Ammal case (52 IA 83 : AIR 1925 PC 49 : 23 ALJ 746).
Balabux v. Rukhmabai (ILR 30 IA 130 : ILR 30 Cal 725 : 15 Bom LR 469)
Sengoda v. Muthu (ILR 47 Mad 567 : AIR 1924 Mad 625 : 46 MLJ 404),
Palani Ammal case (52 IA 83 : AIR 1925 PC 49 : 23 ALJ 746)
Bhagwati Prasad Shah v. Dulhin Rameshwari Kuer (1951 SCR 603 : AIR 1952 SC 72 : 1952 SCJ 115),
Bhagwan Dayal case ((1962) 3 SCR 440 : AIR 1962 SC 287 : (1962) 1 SCJ 348)
Balkishen Das v. Ram Narain Sahu (30 IA 139 : ILR 30 Cal 738 : 5 Bom LR 461),
Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1)
Comparative Citations:
1980 AIR(SC) 1173, 1980 (S) SCC 298, 1980 (2) SCR 1130,
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