Granddaughters’ Will-Based Claim To Grandfather’s Land Limited To His 1/6 Share As Chhattisgarh HC Finds It Ancestral

Kenaram Bairagi’s registered Will dated 25 January 2003 purported to bequeath his properties to his son, Sanjay. After Kenaram’s death, his daughters and Sanjay disputed succession to agricultural land at Village Nawagaon.

Sanjay died in 2011, and his five minor daughters sued for declaration of title and permanent injunction, claiming through him under the Will.

The trial court held the land to be Kenaram’s self-acquired property and decreed the suit. Kenaram’s daughters appealed, contending, among other things, that the land was acquired from ancestral-property proceeds and was not wholly available for bequest.

Section 63 of the Indian Succession Act, 1925 requires due execution and attestation of an unprivileged Will; under Section 68 of the Indian Evidence Act, 1872, at least one available and competent attesting witness must be called to prove a Will.

Registration alone does not prove due execution, though it may support genuineness.

The person alleging forgery or fraud bears the burden of proving that allegation (Daulat Ram v. Sodha, (2005) 1 SCC 40).

A Will must be construed as a whole, with the testator’s intention paramount (Gnambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103; Sadaram Suryanarayana v. Kalla Surya Kantham, (2010) 13 SCC 147).

Section 6 of the Hindu Succession Act, 1956, as amended in 2005, gives daughters coparcenary rights equal to sons; a coparcener may bequeath only the share available to that coparcener.

The Court upheld proof of the Will because an attesting witness testified to its execution and a daughter of the testator admitted that he had the Will prepared; the forgery allegation was unsupported. Reading the Will as a whole, the Court found that its general bequest covered the suit property despite the absence of an individual description.

However, the plaintiffs’ own evidence and Sanjay’s statement in the revenue proceedings supported the conclusion that the land was acquired from proceeds traceable to ancestral property; the plaintiffs had not established that it was Kenaram’s self-acquired property.

Applying amended Section 6, the Court treated Kenaram, Sanjay and Kenaram’s four daughters as each having a one-sixth share on notional partition. It therefore held that the Will could transfer only Kenaram’s one-sixth share.

The judgment’s reasoning also states that Sanjay’s own share plus the bequest gave him a one-third share, but its final order limits the declaration based on the Will to Kenaram’s one-sixth share.

The parties were ordered to bear their own costs.