Sir, I am Lakshmi, age 73,I have filed partition suit on my brother. My grandfather Gopal Rao died in 1928. In 1942 my father Hanumantha Rao and his 2 brothers partitioned Gopal Rao’s property and my father got 10 Acers land in partition. I was born in 1943 and my brother born in 1950 (before sec 8, of H.S.A.1956 came into force).My father expired in 1999 and my brother sold property in 2008 without my knowledge as I stay in other city (no News Paper notice). I came to know in 2011 and filed partition suit and cancellation of sale deeds. My brother with his written statement filed an unregistered, unprobated forgery Will of my father in his favor dated 1999, which is not mentioned in sale deeds. Two witnesses of Will and scribe of Will came to court and said that Will is genuine. My brother did not submit any other signatures except Will. I got one sale deed and one mortgage of 1984 (14 years old signatures) of my father from register office. My brother’s lawyer opposing old signatures as they are not contemporary signatures to send to handwriting expert opinion U/S 45 of I.E.A. Q1) How to send these old signatures to forensic lab. Any judgements which support old signatures for comparison. Q2) Is it Coparcenary property? ( As per SC judgements: Commissioner of Wealth vs Chander Sen, Sheela Devi vs Lal chand and Uttam vs Subagh Singh) . Q3) On 13-5-2015 Parliament have repealed 2005 Amendment made to H.S.A 1956 and merged into principal Act from 17-6-1956, then SC judgement on [deleted] that father and daughter should be alive on 9-9-2005 to make daughter coparcener becomes INVAID? Q4) Can I use “Karnataka high court judgement in Lokamani & others vs Mahadevamma & others on repeal of 2005 Amendment of H.S.A. ” in my case. Q5) Purchasers mutated property in their name after filing the partition suit, my father’s Will is not mentioned in their sale deeds but they say it is document writer’s mistake. Do they become bonafide purchasers? Please do answer each question in detail.
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1) you can on your own accord send the copy of will and other documents bearing his signature to hand writing expert . Rely upon his written opinion examine him as witness
2) it is not co parcener property
3) once partition has taken between your father and his brothers it would be his self acquired property
4) SC judgment is not applicable in present case as it relates to ancestral property
5) court should set aside sale deed as your brother was not absolute owner of property
There is no legal bar in age of signature for sending it for opinion of hand writing expert. 14 yeras old signature in no way put doubt on chance of variation in signature. So you should oress the petition for report of handwriting expert.
2. Since your father died without will the property he received on partition would be treated as self acquired property and liable for equal division among his children.
3. The decision doesn't apply to you as the property left by your father was not coparcenary property but it's his self acquired property.
4. Mutation doesn't create a title unless the buyer acquired a valid title which in your case the buyer got share of your brother only and not yours.
Sir, in my chief Affidavit and cross-examination i said that whole suit scheduled property as Ancestral property of my father. But again in re-examination i said it is Ancestral property and also some self acquired property of my father, because in 1965 my father sold 5 Acers of ancestral property which is faraway and purchased his brothers 5 Acers which is beside his farm land. But now my lawyer again recalled me(PW1) to filing that 1965 sale deed and to say again whole property as Ancestral property, as my father purchase property by selling ancestral property (joint family nucleus) . Does court again allows me to say whole property as Ancestral property. Should i submit any affidavit stating properly about history of property. (Now cross-examination of defendant is happening in my case).
I wonder what benefit you are getting by declaring the property as ancestral one.
I regret to inform that this has ruined your case beyond repair.
Proof of Will in India
Statutory Provisions-
It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it isto be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 68 of the Evidence Act and Section 63(c) of Indian Evidence Act are relevant for this purpose.
Sections 68 of the Evidence Act – “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908 ), unless its execution by the person by whom it purports to have been executed is specifically denied”
Section 63(c) of Indian Evidence Act- “The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”
Apart from these statutory provisions certain test has to be satisfied for proving the execution of a will in accordance with the Will. These are :
1) Has the testator signed the will?
2) Did he understand the nature and effect ofthe dispositions in the will?
3) Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s.63 of the Indian Succession Act.
Burden of Proof-
Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Suspicious circumstances-
As mentioned above that in proof of execution of will, a very heavy burden lies on the propounder to prove the due execution of will and to remove any suspicious circumstances surrounding the execution of particular will in question. Over the period of time judicial pronouncements provide a detail list of these suspicious circumsnatcs, not exhaustive though. These suspicious circumstances are:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
Other infirmities-
Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. In such circumstances “the test of the satisfaction of judicial conscience” becomes essential. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence
DOCUMENTS WILL SPEAK ABOUT THE NATURE OF PROPERTIES NNOT YOUR ORAL EVIDENCE
In 1942 My father Hanumantha Rao and his 2 brothers partitioned my grandfather Gopal Rao’s property and my father got 10 Acers land in partition. I was born in 1943 and my brother born in 1950 (before sec 8, of H.S.A.1956 came into force) Then old Hindu property law will apply which gives to son equal share in father's property. So 10 Acers which my father received in partition will become my father's separate property till birth of my brother, after his birth it became joint family property of my father and my brother. My brother born in 1950 became coparcener by birth.He will not become class-1 Legal heir, as sec 8 of Hindu succession Act 1956 came in to force after his birth and sec 8 Hindu succession Act 1956 is not restrospective. My lawyer said that it is Ancestral property and Will of my father is not valid. Is it right?
Even if you say it is ancestral property it is for court to determine whether property is ancestral or not after considering evidence on record
It is not ancestral property
2) property received by father on partition is self acquired property of father
3) father died in 1999 and on his demise property would devolve on beneficiaries as per father will
1. You may file an application in the court to send the document to FSL for its report.
2. On the execution of partition deed the specific share in the property which a signatory to the deed gets, becomes his separate property. The property is not ancestral unless it has remained undivided for four generations.
3. The SC judgment has no application to your case.
4. Your brother had no competence to sell the property as his title was not absolute.
When the property is clearly not ancestral then for you to seek the indulgence of the court by claiming it as ancestral will deprive you of the lawful share that actually devolved on you pursuant to the intestate demise of your father. You should rather have sought your share through succession.
The property is not ancestral. Now let the court decide your claim as evidence has already started and the pleadings cannot be amended.
Please contact me in person with the permission of administrators of this website to root out all your doubts.
1. Forensic experts can identify a forged signature even from a ol;d signature. The procedure in brief is that there are around 39 steps or curves in some one's hand writing and if the nos. of such curves mismatch then the forgery can be concluded. if it is not possible to detect forgery in signature from old signature then the forensic experts will inform accordingly. You shall have to pray for sending the signatures for forensic report.
2. It is Coparcenary property but not ancestral property.
3.No. The daughter becomes coparcener if the father dies after 09.9.2005.
4. You simply pursue the Partition Suit already filed by you challenging the will purported to be executed by your father with the prayer of cancelling the sale deed registered by your brother.
5.If the will is proved to be false and manufactured, all subsequent deed and application based on the said forged will shall be treated as invalid, hence illegal.
1. Is it a fact that your father had purchased his said property by selling his ancestral property? Ancestral property is defined as the property flow of title of which has not been interrupted for 4 generations, i.e. from great grandfather to great grandchild, without being affected by sale/settlement/gift deed or will. The said property does not appear to be an ancestral property.
2. If cross examination has already started, then the Court might not allow you to change your statement to reopen the examination and cross examination.
3.
1. To my understanding, it is not an ancestral property as explained in my earlier post.
2. The so called will of your father is not valid since it contains his false signature.
Q1) How to send these old signatures to forensic lab. Any judgements which support old signatures for comparison.
Handwriting opinion about the signatures in comparison can be sent for under section 45 of Indian evidence act.
Q2) Is it Coparcenary property? ( As per SC judgements:
Commissioner of Wealth vs Chander Sen,
Sheela Devi vs Lal chand and Uttam vs Subagh Singh) .
This is not ancestral property and there id no question of coparceners between you and your brother in this situation.
You are one of the legal heirs of your deceased father.
Q3) On 13-5-2015 Parliament have repealed 2005 Amendment made to H.S.A 1956 and merged into principal Act from 17-6-1956, then SC judgement on [deleted] that father and daughter should be alive on 9-9-2005 to make daughter coparcener becomes INVAID?
Your case do not fall under the latest amendment enacted in the year 2005.
You are entitled to an equal share in the property left behind by your father at par with your brother if your father is reported to have died intestate.
Q4) Can I use “Karnataka high court judgement in Lokamani & others vs Mahadevamma & others on repeal of 2005 Amendment of H.S.A. ” in my case.
You dont have to be worried about the judgments in this regard since position of law is very clear in your case.
Q5) Purchasers mutated property in their name after filing the partition suit, my father’s Will is not mentioned in their sale deeds but they say it is document writer’s mistake. Do they become bonafide purchasers?
It is the problem of the purchaser for not taking a legal opinion at the time of purchase.
You concentrate in your case alone and do not step into their shoes.
My brother born in 1950 became coparcener by birth.He will not become class-1 Legal heir, as sec 8 of Hindu succession Act 1956 came in to force after his birth and sec 8 Hindu succession Act 1956 is not restrospective. My lawyer said that it is Ancestral property and Will of my father is not valid. Is it right?
You have been misinformed about the correct position of law.
This will not fall into the category of ancestral property.
This is your father's absolute and own property since he inherited the same from his father by a partition deed with his brother.
There is no coparcenary rights for your brother in this.
The Hindu Succession act enacted in the year 1956 is having retrospective effect.
Since your father died in the year 1999, ther is no question of operation of HSA becasue as on the date of your father's death it is effective.
Thus as per the Hindu Succession Act, 1956, you as a daughter to your father is entitled to an equal share in the property at par with your brother provided it is proved that your father died intestate.
you try to disprove the Will which is the only way you can get your share in the property or else the Will shall prevail and you will be deprived with the rights for a share in the property.
But now my lawyer again recalled me(PW1) to filing that 1965 sale deed and to say again whole property as Ancestral property, as my father purchase property by selling ancestral property (joint family nucleus) . Does court again allows me to say whole property as Ancestral property. Should i submit any affidavit stating properly about history of property. (Now cross-examination of defendant is happening in my case).
In my opinion, your lawyer has taken an incorrect or wrong stand to prove this as ancestral property.
This will not fall under the category of ancestral property.
It is neither HUF property.
If it is proved that this is not ancestral property then the Will produced by your brother shall prevail and he may hav a cake walk in this case and the same may be decided in his favor.
In my opinion you should have fought for partition alone on the basis of father's property and a legitimate share as a legal heir to your deceased father.
Probably your lawyer has made a mess out of it by pleading irrelevant facts in the case.