Daughter's Coparcenary Rights | Retrospective Effect Of Hindu Succession Amendment Act : Kerala High Court

The Kerala High Court has delivered a significant judgment clarifying the retrospective application of Section 6 of the Hindu Succession (Amendment) Act, 2005. The Court held that while daughters are now coparceners by birth, this right does not invalidate testamentary dispositions made before 20 December 2004. The judgment also reinforces the evidentiary standards for proving the validity of a will under Section 68 of the Indian Evidence Act.

Background & Facts

The Dispute

The appellant, V.K. Rathnavalli, filed a suit for partition of four properties originally owned by her grandfather, Umbu Ezhuthachan. These properties were allotted to her father, Krishnan Ezhuthachan, under a partition deed dated 19 March 1958 (Ext.B2). Upon Krishnan’s death on 24 October 1988, the appellant claimed a share in the properties as a coparcener under the amended Section 6 of the Hindu Succession Act. The respondent, her brother V.K. Mohanakrishnan, resisted the claim, asserting sole ownership based on a will (Ext.B1) dated 16 February 1987 executed by their father.

Procedural History

The case progressed through the following stages:

• 2011: The appellant filed a partition suit (O.S. No. 249 of 2011) in the Sub Court, Tirur.
• 2015: The trial court dismissed the suit, upholding the validity of Ext.B1 Will and rejecting the appellant’s claim of coparcenary rights.
• 2016: The appellant filed a Regular First Appeal (RFA No. 104 of 2016) before the Kerala High Court.

Relief Sought

The appellant sought a declaration of her right to a 1/3rd share in the properties as a coparcener, arguing that the 2005 amendment conferred equal rights by birth. She also challenged the validity of Ext.B1 Will on the grounds of the testator’s alleged unsoundness of mind and improper attestation.

The Legal Issue

The Kerala High Court framed the following questions for determination:

1. Whether the appellant’s claim of coparcenary rights under Section 6 of the Hindu Succession (Amendment) Act, 2005 is sustainable, given that the will predates the amendment’s cut-off date.
2. Whether the respondent successfully proved the due execution and attestation of Ext.B1 Will under Section 68 of the Indian Evidence Act.
3. Whether the trial court’s decree warrants interference.

Arguments Presented

For the Appellant

The appellant’s counsel contended:

• The 2005 amendment to Section 6 conferred coparcenary rights on daughters by birth, entitling the appellant to a share in the properties.
• The will (Ext.B1) was not validly attested, as the evidence of DW1 (one of the attesting witnesses) did not establish that the other attestor, Velu, had witnessed the testator’s signature.
• The testator’s signature in Ext.B1 differed from his signature in Ext.B2 Partition Deed, raising doubts about its genuineness.
• The testator was not in a sound disposing state of mind when executing Ext.B1, as his wife had died by drowning shortly before.

For the Respondent

The respondent’s counsel argued:

• The proviso to Section 6(1) of the amended Act explicitly states that the amendment does not invalidate dispositions made before 20 December 2004. Since Ext.B1 Will was executed in 1987, the appellant’s claim under the amended Section 6 was unsustainable.
• The evidence of DW1 sufficiently proved the due execution and attestation of the will, as he deposed that the testator and both attestors were present together when the will was signed.
• The differences in the testator’s signature were minor and attributable to the passage of time (nearly 30 years between Ext.B2 and Ext.B1).
• The will provided valid reasons for excluding the appellant, including her prior receipt of assets and her financial independence.

The Court's Analysis

The High Court conducted a detailed analysis of the legal and factual aspects of the case:

Retrospective Application of Section 6

The Court examined the proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005, which states:

"Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004."

The Court held that the 2005 amendment does not confer retrospective rights to invalidate dispositions made before 20 December 2004. Since Ext.B1 Will was executed in 1987, the appellant’s claim as a coparcener could not override the will’s validity. The Court relied on the plain language of the proviso to conclude that the amendment’s intent was to preserve pre-existing dispositions.

Proof of Will Under Section 68 of the Evidence Act

The Court addressed the appellant’s challenge to the will’s attestation. It noted that Section 68 of the Indian Evidence Act requires the examination of at least one attesting witness to prove the execution and attestation of a will. The Court cited Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91, which held that the witness must depose to the compliance of all ingredients of attestation, including the presence of the other attestor.

The Court found that DW1’s evidence satisfied this requirement. DW1 deposed that the testator signed the will in his presence and that both attestors (including Velu) signed in the testator’s presence. The Court held that this was sufficient to prove due execution, even though DW1 did not explicitly state that Velu had seen the testator sign. The Court relied on Naresh Chandra v. Paresh Charan (AIR 1955 SC 363), which held that the sufficiency of attestation is a question of fact, not law.

Genuineness of the Testator’s Signature

The appellant argued that the testator’s signature in Ext.B1 differed from his signature in Ext.B2 Partition Deed. The Court observed that the differences were minor (the inclusion of the name "Krishnan" in Ext.B1) and that DW1 had deposed that the testator signed in both styles. The Court also noted that the appellant did not challenge the signature’s genuineness in the plaint, nor did she adduce any evidence to support her claim of the testator’s unsoundness of mind.

Soundness of Mind and Validity of Reasons

The Court rejected the appellant’s contention that the testator lacked a sound disposing state of mind at the time of executing Ext.B1. It noted the absence of any evidence, oral or documentary, to support this claim. The Court also upheld the validity of the reasons provided in the will for excluding the appellant, including her prior receipt of assets and her financial independence.

The Verdict

The Kerala High Court dismissed the appeal, upholding the trial court’s decree. The Court held:

1. The appellant’s claim under Section 6 of the Hindu Succession (Amendment) Act, 2005 was unsustainable because the will predated the amendment’s cut-off date of 20 December 2004.
2. The respondent successfully proved the due execution and attestation of Ext.B1 Will under Section 68 of the Indian Evidence Act.
3. The trial court’s findings on the will’s validity and the appellant’s lack of coparcenary rights were correct and warranted no interference.

What This Means For Similar Cases

The Amendment’s Retrospective Effect Is Limited

The judgment clarifies that the 2005 amendment to Section 6 of the Hindu Succession Act does not invalidate testamentary dispositions made before 20 December 2004. Practitioners should note:

• Daughters cannot claim coparcenary rights to override wills or partitions executed before the cut-off date.
• The proviso to Section 6(1) must be strictly construed to preserve pre-existing dispositions.

Evidentiary Standards for Proving Wills

The Court’s analysis reinforces the following principles for proving wills under Section 68 of the Indian Evidence Act:

• The examination of one attesting witness is sufficient, provided they depose to the presence of all parties during execution.
• The witness need not explicitly state that the other attestor saw the testator sign, as long as the totality of evidence establishes this fact.
• Minor variations in the testator’s signature do not invalidate the will if they are attributable to the passage of time or natural changes in handwriting.

Challenges to Testamentary Capacity Require Evidence

The judgment underscores that allegations of unsoundness of mind or lack of testamentary capacity must be supported by concrete evidence. Practitioners should:

• Ensure that such challenges are pleaded with specificity in the plaint.
• Adduce medical or other documentary evidence to substantiate claims of unsoundness of mind.
• Avoid relying solely on circumstantial evidence, such as the testator’s emotional state, without corroboration.