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Kikiben & Ors vs Balvantlal Shivlal (Dead) By Lrs. on 15 September, 1999

Kikiben & Ors vs Balvantlal Shivlal (Dead) By Lrs. on 15 September, 1999
Equivalent citations: 2000 (1) SCALE 357
Bench: K Venkataswami, D Wadhwa

ORDER

1. Application for substitution is allowed.

2. These appeals are preferred against the common judgment and order of the Gujarat High Court in First Appeal Nos. 387/77 and 388/77 dated 12.10.1984. The appellants are the defendants in the original suit. The respondents-plaintiffs preferred spl. civil suits 131/74 & 132/74 for enforcement of a testamentary term in their favour and against the appellants (defendants) herein. The suits were decreed on 31.1.1977.

3. The case of the appellants (defendants) was that the property in dispute belonged to their father one Harkishandas who became the sole owner of the property in the year 1946. The said Harkishandas executed a will on 30.11.1954 giving life interest to his wife and absolute interest in favour of his brother. Harkishandas died on 11.2.1959. It is stated that after the death of Harkishandas the will was probated jointly by the widow of Harkishandas (mother of the appellants) and brother of Harkishandas as Executors under the will. After the death of the widow in the year 1967 disputes have arisen.

4. The appellants herein who are daughters of Harkishandas claimed absolute right in the suit properties. The trial court however decreed the suits of the respondents and denied the rights in the suit properties to the defendants. On appeal, the High Court confirmed the judgment and decree of the trial court holding that Section 14(2) of the Hindu Succession Act, 1956 will apply to the facts of this case and therefore widow of Harkishandas will get only limited interests. These appeals are against the judgment of the High Court.

5. Learned Senior Counsel Mr. Dholkia for the appellants brought to our notice a judgment of this Court in Ram Kali v. Choudhri Ajit Shankar , wherein, more or less under the similar

circumstances, this Court has held that Section 14(1) will apply and not 14(2) of the Hindu Succession Act, 1956 (hereinafter called the ‘Act’). This position is not disputed by the learned Senior Counsel appearing for respondents. That being the position the widow of Testator (mother of the appellants) got her limited estate enlarged into absolute one under Section 14(1) of the Act.

6. The learned Senior Counsel for the respondents cannot and fairly did not raise any objection so far as the proposition of Saw as stated above applicable to the facts of this case. However, he contents that inasmuch as the widow (mother of the appellants) had participated in the probate proceedings, it must be deemed that she had alienated her interest in the property in favour of respondents and therefore the daughters cannot have any claim or right in the suit properties as legal heirs of the deceased mother. Once it is conceded that the mother of the appellants got the properties absolutely notwithstanding a limited interest under the will, as per Section 14(1) of the Act, then in the light of the judgment of this Court referred to earlier the argument that she, having participated in the probate proceedings, must be deemed to have alienated her right in the said property, cannot be accepted. Because in the probate proceedings the right, title or interest in immovable properties cannot be decided Only the right to administer the properties is settled in probate proceedings. The view taken by the High Court that on the facts of this case Section 14(2) will apply, is not correct and is contrary to the decision of this Court as noticed above. This position is also not disputed.

7. In the circumstances, we are of the view that the High Court was not right in dismissing the appeals by confirming the decree of the trial court. The appeals are allowed. Suits filed by the respondents stand dismissed. However, there will be no order as to costs. The interim applications are accordingly disposed of.

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