& Ors. Vs. Leelamma N. & Ors.  INSC 1313 (29 July 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4818-4819
OF 2009 ARISING OUT OF S.L.P. (C) NO. 5964-5965 OF 2008 M. YOGENDRA & ORS.
..... APPELLANTS VERSUS
of the application of the provisions of Section 6 of the Hindu Succession Act,
1956[hereinafter called for the sake of brevity as `the Act'] vis-`-vis Section
6 thereof is in question in this appeal. It arises out of a judgment and order
dated 16.11.2007 passed by the High Court Karnataka at Bangalore in RFA No.
and 1404/2003 dismissing the appeals preferred by the appellants herein from a
judgment and order dated 14.07.2003 in O.S. No. 305/2000 and O.S. No. 567/2001
passed by the Principal Civil Judge, Senior Division, Mysore between both the
parties for a suit of partition. The two aforementioned suits for partition
were filed - one by the appellants herein and the other by respondent Nos.
1,2 and 4
herein. One K Doddananjundaiah indisputably is the predecessor- in-interest of
the plaintiffs of both the suits. He along with his own brothers rightly formed
a coparcenery. In or about 1941, a partition took place in terms whereof the
suit properties were allotted to him. He married twice. The name of his first
wife although does not appear from the records it is stated at Bar that her
name was Puttamma. He, however, married again in the year 1960, one Yashodamma.
Through his first wife three daughters were born to him - Parvathamma, Leelamma
and Kamalamma. Dinesh, the original respondent No. 4 is said to have been born
to K Doddananjundaiah through Yashodamma on or about 16.4.1961. K
Doddananjundaiah died on 11.09.1969.
herein filed a suit for partition against Leelamma, Kamalamma and Dinesh for
partition claiming 1/3rd share in the suit property. Inter alia, on the premise
that some of the joint family properties were not included therein Neelamma,
Kamalamma and Dinesh filed another suit for partition. Before the learned trial
court, where both the suits were heard together, the appellants herein raised a
contention that Yashodamma was not married to K Doddananjundaiah. A specific
issue was framed. The learned trial court, however, principally relying on or
on the basis of the admission made by Neelamma and Kamalamma that Dinesh was
their brother and marriage had taken place between their father and Yashodamma
and also some other documents including birth certificate and a settlement deed
came to the conclusion that Yashodamma was validly and legally married to K
alia, on the premise that K Doddananjundaiah and Dinesh formed a joint
coparcenery property, the learned trial judge opined that the appellants herein
being the heirs and legal representatives of N. Parvathamma who had expired on
15.09.1998 inherited 1/10th share of the properties left by K Doddananjundaiah.
appeals were preferred thereagainst by the appellants. The High Court by the
reason of the impugned judgment upheld the said judgment and decree passed by
the trial court.
us, Mr. G.V. Chandrashekhar, the learned counsel appearing on behalf of the
appellants raised two contentions:- (i) Yashodamma being not married to K
Doddananjundaiah and in any event not validly married, Dinesh did not inherit
any share in the properties.
any event, in view of the fact that he was born after coming into force of the Hindu Succession Act,
1956 he was not a coparcener. Section 8 of the Hindu
Succession Act shall apply and not Section 6 thereof.
the learned counsel appearing on behalf of the respondents on the other hand
contended:- (a) a concurrent finding of fact having been arrived at that
Yashodamam was validly married with K Doddananjundaiah particularly having
regard to the admission made by Neelamma and Kamalamma to the detriment of their
interest, no interference therewith is warranted by this Court in exercise of
its jurisdiction under Article 136 of the Constitution of India. The properties
at the hands of K Doddananjundaiah being a coparcenery property, Dinesh became
his birth his status continued to be that of a coparcener and the status being
that of a co parcener, Section 6 of the 1956 Act shall apply and not Section 8
the learned trial Judge, the appellants adduced voluminous documents in regard
to the factum of marriage by and between K Doddananjundaiah and Yashodamma. One
of the documents upon which reliance was placed by the trial judge was a
photograph taken at the time of death whereas P.W. 1 declined to identify the
persons in the photograph (Ex. D5) when he was confronted therewith. D.W.
Neelamma not only identified the persons in the photograph as that of her
father and Yashodamma as also Dinesh.
learned trial judge relied on the said documents for the purpose of arriving at
a conclusion that Yashodamma was married with K Doddananjundaiah. Another
important document upon which reliance was placed was a deed of settlement
dated 16.4.1971 executed by Yashodamma in respect of some of the properties by
K Doddananjundaiah in favour of Dinesh. It was a registered document.
Yashodamam was appointed as a guardian as Dinesh was minor. Therein also Dinesh
was described as son of K Doddananjundaiah. At that point of time, no challenge
was done to the execution of the said document. It is also of some significance
to notice that Kamalamma was a witness to the said deed at the time of
presentation thereof before the registering authority. In the signed portion of
the said documents also relation between the parties was clearly stated. It was
furthermore, recited therein that Kamalamma had been looking after Dinesh at
Bangalore and she had been fostering him. Leelamma had also been appointed as
guardian for minor Dinesh. The learned trial judge as also the High Court
furthermore, relied upon the evidence of Neelamma and Kamalamma in terms of the
provisions of Section 50 of the Evidence Act. Before the trial court two birth
certificates of Dinesh were filed showing the name of father of Dinesh which
was shown as Nanjundaiah and in the other which was produced by the respondents
as Dodammaiah. The trial court gave sufficient and cogent reasons to arrive at
a finding of fact that the death certificate produced by the respondent was the
correct one. Apart from it, various other documents were filed to show that
there in the names including the school records to show that the name of K
Doddananjundaiah appeared as father of Dinesh.
aforementioned finding of fact has not been disturbed by the High Court. The
High Court, however, with regard to the document which was marked as Exhibit
D-3 being a lagnapatrika opined as under:- "At the outset it is worth
observing that it is not in dispute that the schedule properties were the
ancestral properties of late K. Doddananjundaiah that Puttamma was the wife of
K. Doddananjundaiah and through her there were thre daughters by name N.
Parvatamma, N. Neelamma and N. Kamalamma.
important dispute in this case is whether there is valid marriage between K.
Doddananjundaiah and his second wie Yashodamma. Ex. D-3 lagna patrika is one of
the documents produced by the defendants to show that there is valid marriage
and Yashodamma. This document lagna patrika is not signed by the scribe, the
parties to it and the same is dated nil. In this document, the lagna patrika
the marriage date is specified as Monday, the 29th March, 1960. On comparison
with the calendar for the relevant year the marriage day, 29.03.1960 falls on
Tuesday and not on Monday. It is also an admitted fact that Hindus will not
celebrate auspicious events like marriage on an inauspicious day like Tuesday.
In this document, it is specified that Sunday the 28th February 1960 is the day
of performance of certain poojas like devatha karya and the day of marriage.
reasons, Ex. D-3 the lagna patrika creates a suspicion with regard to the
marriage between K. Doddananjundaiah and Yashodamma and the same cannot be
of Mr. Chandrashekhar is despite arriving at the said finding which clearly
proves that no marriage had taken place, the High Court committed a serious
illegality invoking the provisions of Section 50 of the Indian Evidence Act. It
was urged that Section 50 of the Evidence Act would be available to a party
when no direct evidence is available to prove or dispute the factum of
marriage. In any event, the presumption which may be raised in terms of Section
50 of the Evidence Act read with 114 thereof is a rebuttal presumption. The
learned counsel strongly relied upon, in this regard, a decision of this Court
in Badri Prasad v. Dy. Director of Consolidation & Ors. [AIR 1978 SC 1557]
Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434. In Badri Prasad's
case (supra) this Court held as under:- "For around 50 years, a man and a
woman as the facts in this case unfold, lived as husband wife. An adventurist
challenge to the factum of marriage between the two, by the petitioner in this
special leave petition, has been negatived by the High Court. A strong
presumption arises in favour of wedlock where the partners have lived together
for a long spell as husband and wife.
the presumption is rebuttable, a heavy burden lies on him who seeks to deprive
the relationship of legal origin. Law leans in favour of legitimacy and frowns
upon bastardy. In this view, the contention of Shri Garg for the petitioner,
that long after the alleged marriage evidence has not been produced to sustain
its ceremonial process by examining the priest or other witnesses, deserves no
consideration. If man and woman who live as husband and wife in society are
compelled to prove, half a century later, by eye-witness evidence that they
were validly married, few will succeed. The contention deserves to be negatived
and we do so without hesitation. The special leave petitions are
the same view has been taken by this Court in Tulsa's case (Supra) wherein it
This court in Gokalchand v. Parvin Kumari [AIR 1952 SC 231] observed that
continuous co- habitation of woman as husband and wife and their treatment as
such for a number of years may raise the presumption of marriage, but the
presumption ;which may be drawn from long co-habitation is rebuttable and if
there are circumstances which weaken and destroy that presumption, the Court
cannot ignore them."
however, are of the opinion that in this case in view of the concurrent
findings of fact arrived at by two courts, proof of marriage of K
Doddananjundaiah and Yashodamma has sufficiently been established.
the Court, evidence in different forms may be adduced. Information evidence may
be one of them. But the purpose of arriving at a conclusion as to whether a
valid marriage has been performed or not, the Court would be entitled to
consider the circumstances thereof. There may be a case where witnesses to the
marriage are not available. There may also be a case where documentary evidence
to prove marriage is not available. It is in the aforementioned situation, the
information of those persons who had the occasion to see the conduct of the
parties they may testify with regard to the information they form probably the
conduct of the persons concerned.
50 of the Evidence Act in that sense is an exception to the other provisions of
the Act. Once it is held that the evidence of Neelamma and Kamalamma were
admissible evidence not only from the point of view that they were the persons
who could depose about the conduct of Dodananjundaiah and Yashodamma. So far as
their status is concerned without keeping in view the close relationship were
also witnesses to various documents executed by Yashodamma.
evidence in this behalf in our opinion is admissible. The learned trial judge
has noticed and relied upon a large number of documents.
not been contended before us by Mr. Chandrashekhar that those documents were
not admissible in evidence. Some of the documents being registered documents
would rest their own presumption of correctness. School records could be
admissible in evidence in terms of Section 35 of the Indian Evidence Act.
because the High Court could find out certain discrepancies in the lagnapatrika
the same in our opinion was not a conclusive proof to reverse the finding of
the learned trial court. The High Court has itself noticed that the
applicability of the covenants of Section 50 of the Indian Evidence Act having
regard to the evidence have been brought on record. In that view of the matter,
we are of the opinion that the finding that K Doddannanjundaiah married
Yashodamma need not be interefered with.
which now survives for our consideration is the provisions of Sections 6 and 8
of the Hindu
Succession Act. The said Act was enacted to amend and
codify the law to inherent succession among Hindus. Section 5 of the Hindu
Marriage Act, 1955 prohibits a marriage where either
party thereto has a spouse living at the time of marriage. Marriage between K
Doddananjundaiah and Yashodamma as noticed from the findings arrived at by the
courts below took place sometime in April 1960. If that be so, the said
marriage was clearly hit by section 5 of the Hindu Marriage Act.
therefore, would inherit the properties not as a coparcener.
The Hindu Marriage Act, however, carved out an exception to the matter of
inheritance of illegitimate children stating:- "16. Legitimacy of children
of void and voidable marriages - (1) Notwithstanding that a marriage is null
and void under section 11, any child of such marriage who would have been
legitimate if the marriage had been valid, shall be legitimate, whether such
child is born before or after the commencement of the Marriage Laws (Amendment)
Act, 1976, and whether or not a decree of nullity is granted in respect of that
marriage under this Act and whether or not the marriage is held to be void otherwise
than on a petition under this Act."
of the said provision a legal fiction has been created as it then stood.
therefore, agree with the submission of Shri Chandrashekhar that Dinesh would
not be a coparcener with K Doddananjundaiah. Even, otherwise, the provisions of
the Hindu Succession Act provides about an easy change from the old Hindu Law.
The provisions of the 1956 Act shall prevail over the Hindu Law which were
existing prior thereto. Section 8 of the Hindu Succession Act provides for
general rules of succession in the case of males. It reads as under:- "8.
General rules of succession in the case of males - The property of a male Hindu
dying intestate shall devolve according to the provisions of this Chapter:- (a)
firstly, upon the heirs, being the relatives specified in class I of the
secondly, if there is no heir of class I, then upon the heirs, being the
relatives specified in class II of the Schedule;
there is no agnate, then upon the cognates of the deceased."
As on the
date of death of K Doddananjundaiah through all his daughters as also Dinesh
they will take in equal shares being the relatives specified in Clause (i) of
the Scheduled appended to the Act.
was admittedly born after the coming into force of the Hindu Succession Act,
however, would contend that the properties at the hands of K Doddananjundaiah
which were allotted to him in partition which took place between him and his
brother in the year 1948 would constitute coparcenary properties at his hands,
with respect we cannot persuade ourselves to agree with the said view which has
been accepted by the courts below. It is now well-settled in view of several
decisions of this Court that the property in the hands of sole coparcener
allotted to him in partition shall be his separate property for the same shall
revive only when a son is born to him. It is one thing to say that the property
remains a coparcenery property but it is another thing to say that it revives.
distinction between the two is absolutely clear and unambiguous.
case of former any sale or alienation which has been done by the sole survivor
coparcener shall be valid whereas in the case of a coparcener any alienation
made by the karta would be valid. This aspect of the matter has been considered
by this Court in Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen
And Others (1986) 3 SCC 567. This Court upon noticing the provisions of the Hindu Succession Act opined as under:- "It is clear that under the Hindu
law, the moment a son is born, he gets a share in the father's property and
becomes part of the coparcenary. His right accrues to him not on the death of
the father or inheritance from the father but with the very fact of his birth.
Normally therefore whenever the father gets a property from whatever source
from the grandfather or from any other source, be it separated property or not,
his son should have a share in that and it will become part of the joint Hindu
family of his son and grandson and other members who form joint Hindu family
with him. But the question is: is the position affected by Section 8 of the
Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8
indicates the heirs in respect of certain property and Class I of the heirs
includes the son but not the grandson. It includes, however, the son of the
predeceased son. It is this position which has mainly induced the Allahabad
High court in the two judgments, we have noticed, to take the view that the
income from the assets inherited by son from his father from whom he has
separated by partition can be assessed as income of the son individually. Under
Section 8 of the Hindu Succession Act, 1956
the property of the father who dies intestate devolves on his son in his
individual capacity and not as karta of his own family. On the other hand, the
Gujarat High Court has taken the contrary view."
furthermore held :
....... Section 8 of the Hindu Succession Act, 1956 as noted before, laid down
the scheme of succession to the property of a Hindu dying intestate. The
Schedule classified the heirs on whom such property should devolve. Those
specified in Class I took simultaneously to the exclusion of all other heirs. A
son's son was not mentioned as a heir under Class I of the Schedule, and,
therefore, he could not get any right in the property of his grandfather under
of a son's son in his grandfather's property during the lifetime of his father
which existed under the Hindu law as in force before the Act, was not saved
expressly by the Act, and therefore, the earlier interpretation of Hindu law
giving a right by birth in such property "ceased to have effect". The
Court further observed that in construing a Codification Act, the law which was
in a force earlier should be ignored and the construction should be confined t
the language used in the new Act. The High Court felt that so construed,
Section 8 of the Hindu Succession Act should be taken as a self-contained
provision laying down the scheme of devolution of the property of a Hindu dying
intestate. Therefore, the property which devolved on a Hindu on the death of
his father intestated after the coming into force of the Hindu Succession Act,
1956, did not constitute HUF property consisting of
his own branch including his sons. It followed the Full Bench decision of the
Madras High Court as well as the view of the Allahabad High Court in the two
cases noted above including the judgment under appeal."
question yet again came up before this Court in Sheela Devi & Ors. V. Lal
Chand & Anr. 2006 (10) SCALE 75 wherein it was clearly held :
The Act indisputably would prevail over the Hindu Law. We maynotice that the
Parliament, with a view to confer right upon the female heirs, even in relation
to the joint family property, enacted Hindu SuccessionAct, 2005. Such a
provision was enacted as far back in 1987 by the State of Andhra Pradesh. The
succession having opened in 1989, evidently, the provisions of Amendment Act,
2005 would have no application. Sub-section (1) of Section 6 of the Act governs
the law relating to succession on the death of a coparcener in the event the
heirs are only male descendants. But, proviso appended to Sub-section (1) of
Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal
Chand, was, thus,l a coparcener. Section 6 is exception to the general rules.
It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show
that apart from Lal Chand, Sohan Lal will also derive the benefit thereof.
So far as
the Second son Sohan Lal is concerned, no evidence has been brought on records
to show that he was born prior to coming into force of Hindu Succession Act,
Bhanwar Singh v. Puran & Ors. 2008 (2) SCALE 355] Mr. Bhat, however, placed
reliance upon the decision of this Court in Eramma v Veerupana And Ors.
reported in AIR 1966 SC 1879 therein Ramaswami J. speaking for the Bench held
that Section 8 of the Hindu
Succession Act will have no retrospective effect.
However, in the fact of that case Section 8 of this Act was held to be not
applicable as therein the male died before the Act came into force. As would
appear from the following:
It is clear from the express language of the section that it applies only to
coparcenary property of the male Hindu holder who dies after the commencement o
the Act. It is manifest that the language of S. 8 must be construed in the
context of S.
6 of the
Act. WE accordingly hold that the provisions of S.8 of the Hindu Succession Act are ;not retrospective in operation and where a male Hindu
died before the Act came into force i.e. where succession opened before the
Act. S.8 of the Act will have no application."
aforementioned reasons, we are of the opinion that the learned trial judge as
also of the High Court were not correct in opining that Dinesh would be a
coparcener and the appellants would inherit only 1/10th share in the said
properties. The shares of the plaintiffs would be 1/3rd therein.
appeals are allowed but in the circumstances with no costs.
.......................J [S.B. SINHA]
.......................J [DEEPAK VERMA]
JULY 29, 2009.
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