Supreme Court of India
M. YOGENDRA & ORS.versusLEELAMMA N. & ORS
- Citation
- 2009 INSC 962
- Decided
- 29 July 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Dinesh is not a coparcener; Section 8 of the Hindu Succession Act applies and the appellants are entitled to a one‑third share.
Summary
K. Doddananjundaiah, a coparcener, had three daughters by his first wife and a son Dinesh by a second wife Yashodamma. After K's death, the daughters (appellants) claimed a one‑third share of the partitioned property, contending that the second marriage was void and that Dinesh, born after the Hindu Succession Act 1956, could not be a coparcener. The trial court and High Court held the second marriage valid, treated Dinesh as a coparcener under Section 6 of the Hindu Succession Act, and awarded the appellants only a one‑tenth share. On appeal, the Supreme Court accepted the evidence under Section 50 of the Evidence Act to confirm the marriage, but held that the marriage was void under Section 5 of the Hindu Marriage Act, making Dinesh a legitimate heir but not a coparcener. Consequently, Section 8, not Section 6, governs the succession, and the appellants are entitled to a one‑third share. The appeal was allowed.
Issues considered
- The validity of the marriage between K. Doddananjundaiah and Yashodamma under the Hindu Marriage Act.
- Whether Dinesh is a coparcener of K.'s property.
- Whether Section 6 or Section 8 of the Hindu Succession Act, 1956 applies to the succession of K.'s property.
- The admissibility of evidence under Section 50 of the Indian Evidence Act to prove the marriage.
Legislation cited
- Hindu Marriage Act, 1955s. 16, s. 5
- Hindu Succession Act, 1956s. 6, s. 8
- Indian Evidence Act, 1872s. 35, s. 50
Subjects
Hindu Succession ActcoparcenarySection 6Section 8Hindu Marriage ActbigamylegitimacySection 50 Evidence Actpartitioninheritanceseparate property
Judgment
(2009] 12 S.C.R. 38
A M. YOGENDRA & ORS.
v.
LEELAMMA N. & ORS.
(Civil Appeal Nos. 4818-4819 of 2009)
JULY 29, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]
HINDU SUCCESSION ACT, 1956:
c ss. 6 and 8 - Coparcenery property in the hands of sole
coparcener - On his death, shares claimed by his daughters,
children of deceased daughter and the son born out of the
second marriage - Held: The son would inherit the properties
not as coparcener - Therefore, s. 8 would apply and not s. 6
- Hindu Marriage Act, 1955 - ss.5 and 16 - Evidence Act,
D
..
1872 - s.50
Evidence Act, 1872 - s. 50 - Opinion of relationship - ..
Factum of marriage - Held: Evidence of relatives was
admissible not only from the point of view that they were the
E persons who could depose about the conduct of parties but
they were also witnesses to various documents executed by
the wife.
~
, The predecessor-in-interest of the parties, namely,
F 'K', a coparcener along with his brother, on a partition
which took place in 1941, was allotted the suit property.
He married twice. From the first wife, namely, 'P', he had
--
three daughters, and from the second wife, namely, 'Y',
whom he was stated to have married in 1960, he had a
son by name 'D'. 'K' died in the year 1969. In the year 1998
G
one of his daughters from the first wife also died. Two
partition suits were filed - one by the children of K's
deceased daughter, the appellants, claiming 113rd share
and denying the second marriage of 'K', and the other suit
H 38
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 39
was filed by the two surviving daughters from the first A
... wife and the son 'D' from second wife. The trial court held
that mother of 'D' was validly and legally married to 'K'
and on that premise held that 'K' and 'D' formed a
coparcenery and the appellants being the heirs and legal
-- representatives of the daughter of 'K' inherited 1/10th
share in the properties left by him. The High Court upheld
B
the judgment.
In the instant appeals it was contended for the
.. appellants that 'Y' not being validly married to 'K', her son
'D' did not inherit any share in the property; and that
c
since 'D' was born after coming into force of the Hindu
Succession Act, 1956, he was not a coparcener and,
therefore, s.8 of the Act would apply and not s.6.
Allowing the appeals, the Court D
HELD: 1.1. Evidence in different forms may be
-"
'- adduced before the court; information evidence may be
one of them. But for the purpose of arriving at a
conclusion as to whether a valid marriage has been
E
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 such a situation, those
·~·
who had the occasion to see the con'duct of the parties F
may testify with regard to the information they have, from
probably the conduct of the persons concerned. Section
50 of the Evidence Act in that sense is an exception to
the other provisions of the Act. [Para 10 and 11] [47-D-G]
G
Badri Prasad v. Dy. Director of Consolidation & Ors. AIR
1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1
SCALE 434, relied on.
H
40 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 1.2. In the instant case, the evidences of two
daughters of 'K' were admissible evidence not only from
the point of view that they were the persons who could ·
depose about the conduct of 'K' and 'Y', but they were
also witnesses to various documents executed by 'Y'.
B The High Court has itself noticed the applicability of s.50
of the Evidence Act. In that view of the matter, the finding
that 'K' married 'Y' need not be interfered with. [Para 11
-
and 12] [47-G-H; 48-A, D]
2.1. It is now well-settled that the property in the
c 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. [Para 16) [50-B]
Commissioner of Wealth Tax, Kanpur And Others v.
D Chander Sen And Others (1986) 3 SCC 567; Sheela Devi &
Ors. V. Lal Chand & Anr. 2006 (10) SCALE 75; Bhanwar
Singh v. Puran & Ors. 2008 (2) SCALE 355, relied on
Eramma vs. Veerupana & Ors. AIR 1966 SC 1879, -
,
referred to
E
2.2. 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' and 'Y' took place in 1960 and, as such, the said
F marriage was clearly hit by s. 5 of the Hindu Marriage Act. ,.
'D', therefore, would inherit the properties not as a
coparcener. [Para 13] [48-E-G]
2.3. 'D' was admittedly born after the coming into
G . force of the Hindu Succession Act. However, the Hindu
Marriage Act, carved out an exception to the matter of
inheritance of children of such marriages by creating a
legal fiction u/s 16 of the Hindu Marriage Act. Therefore,
as on the date of death of 'K' all his daughters as also
H
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 41
'D' will take in equal shares being the relatives specified A
in Class I of the Schedule appended to the Hindu
Succession Act. Therefore, the trial court as also the High
Court were not correct in opining that 'D' would be a
coparcener and the appellants would inherit only 1/10th
share in- the said properties . The share of the appellants B
would be 1/3rd. [Para 13-15 and 19] [49-G-H; 53-D; 48-G]
Case Law Reference:
AIR 1978 SC 1557 relied on para 9
(2008) 1 SCALE 434 relied on para 9
c
(1986) 3 sec 567 relied on para 16
2006 (10) SCALE 75 relied on para 17
2008 (2) SCALE 355 relied on para 17 D
AIR 1966 SC 1879 referred to para 18
- CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4818-4819 of 2009.
E
From the Judgment & Order dated 16.11.2007 of the High
Court of Karnataka at Bangalore in RFA No. 14Q3 of 2003
C/w 1404 of 2003.
G.V. Chandrashekhar, N.K. Verma, Anjana F
Chandrashekar for the Appellants.
S.N. Bhat, B. Subrahmanya Prasad, Ajay Kumar, V.N.
Raghupathy for the Respondents.
The Judgment of the Court was delivered by G
S.B. SINHA, J. 1. Leave granted.
2. Interpretation of the application of the provisions of
Section 6 of the Hindu Succession Act, 1956 [hereinafter called .
H
42 SUPREME COURT REPORTS [2009] 12 S.C.R.
A for the sake of brevity as 'the Act'] vis-a-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. 1403/2003 and 1404/2003 dismissing
B
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
appell.ants herein and the other by respondent Nos. 1,2 and 4
c 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
0
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
E No. 4 is said to have been born to K Ooddananjundaiah through
Yashodamma on or about 16.4.1961. K Doddananjundaiah
died on 11.09.1969.
3. Appellants herein filed a suit for partition against
Leelamma, Kamalamma and Dinesh for partition claiming 1/
F 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 ....
G 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 Oinesh was their brother and
marriage had taken place between their father and
H Yashodamma and also some other documents including birth
/
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 43
[S.B. SINHA, J.]
certificate and a settlement deed came to the conclusion that A
Yashodamma was validly and legally married to K
Doddanandjundaiah. ·
4. Inter alia, on the premise that K Doddananjundaiah and
Dinesh formed a joint coparcenery property, the learned trial B
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. Two appeals were preferred thereagainst
by the appellants. The High Court by the reason of the
impugned judgment upheld the said judgment and decree C
passed by the trial court.
5. Before us, Mr. G.V. Chandrashekhar, the learned
counsel appearing on behalf of the appellants raised two
contentions:- D
(i) Yashodamma being not married to K
Doddananjundaiah and in any event not validly
married, Dinesh did not inherit any share in the
properties.
E
(ii) In any event, in view of the fact that he was born after
i coming into force of the Hindu Succession Act,
I
' 1956 he was not a coparcener. Section 8 of the
-
. Hindu Succession Act shall apply and not Section
6 thereof.
6. Mr. Bhat, the learned counsel appearing on behalf of the
F
respondents on the other hand contended:-
(a) a concurrent finding of fact having been arrived at that G
Yashodamam was validly married with K
1- 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 H
44 SUPREME COURT REPORTS [2009] 12 S.C.R.
A the hands of K Doddananjundaiah being a coparcenery
property, Dinesh became a coparcener.
(b) on 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 Sectior1 8
B
thereof.
7. Before 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 f- r
c the documents upon which reliance was placed by the trial judge
\i'.1'8S a photograph taken at the time of death whereas P.W. 1
declined to identify the persons in the photograph (Ex. 05) when
he was confronted therewith. D.W. 1 - Neelamma not only
identified the persons in the photograph as that of her father ;
D and Yashodamma as also Dinesh.
8. The 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
E
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 }
F
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
- •
G
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
H of Neelamma and Kamalamma in terms of the provisions of
•'
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS 45
(S.S. SINHA, J.]
Section 50 of the Evidence Act. Before the trial court two birth A
--J
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 B
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. The aforementioned finding of
fact has not been disturbed by the High Court. The High Court, c
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 D
the wife of K. Doddananjundaiah and through her there
were three daughters by name N. Parvatamma, N.
Neelamma and N. Kamalamma. The important dispute in
this case is whether there is valid marriage between K.
Doddananjundaiah and his second wife Yashodamma. Ex. E
D-3 lagna patrika is one of the documents produced by
the defendants to show that there is valid marriag
between K. Doddananjundaiah 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, F
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 G
f.. 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. For these reasons,
Ex. D-3 the lagna patrika creates a suspicion with regard H
46 SUPREME COURT REPORTS [2009] 12 S.C.R.
A to the marriage between K. Doddananjundaiah and
Yashodamma and the same cannot be relied on."
9. Submission of Mr. Chandrashekhar is despite arriving
at the said finding which clearly proves that no marriage had
8 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
C 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 Pras,ad v. ·Dy. Director of
Consoiidation & Ors. [AIR 1978 SC 1557] Tulsa & Ors. v.
Durghatiya & Ors. (2008) 1 SCALE 434. In Badri Prasad's
D 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
E 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. Although the
presumption is rebuttable, a heavy burden lies on him who
F 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.
G
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
H
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 47
[S.B. SINHA, J.]
dismissed." A
.../
Almost the same view has been taken by this Court in
Tulsa's case (Supra) wherein it is stated:
"14. This court in Gokalchand v. Parvin Kumari [AIR 1952
SC 231] observed that continuous co-habitation of woman B
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 c
cannot ignore them."
We, 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 D
sufficiently been established.
... 10. Before 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 E
entitled to consider the circumstances thereof. There may be
a case where witnesses to the marriage are not available.
1 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 F
occasion to see the conduct of the parties they may testify with
regard to the information they form probably the conduct ofthe
persons concerned.
11. Section 50 of the Evidence Act in that sense is an G
!- 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 H
48 SUPREME COURT REPORTS [2009] 12 S.C.R.
A concerned without keeping in view the close relationship were
also witnesses to various documents executed by
Yashodamma. The evidence in this behalf in our opinion is
admissible. The learned trial judge has noticed and relied upon
a large number of documents. It has not been contended before
B 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.
c 12. Only 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
D 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.
E 13. The question 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
F 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. Dinesh,
G 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
H void under section 11, any child of such marriage who
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 49
[S.S. SINHA, J.]
would have been legitimate if the marriage had been valid, A
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 8
otherwise than on a petition under this Act."
By reason of the said provision a legal fiction ha.s been
created as it then stood.
~
14. We, therefore, agree with the submission of Shri c
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 D
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
E
devolve according to the provisions of this Chapter:-
(a) firstly, upon the heirs, being the relatives specified in
class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the F
heirs, being the relatives specified in class II of the
Schedule;
(c) if there is no agnate, then upon the cognates of the
deceased."
G
15. As on the date of death of K Doddananjundaiah
f- 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. Dinesh was admittedly born
after the coming into force of the Hindu-Succession Act, 1956. H
50 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 16. Mr. Bhat, 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
B 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
C the property remains a coparcenery property but it is another ~
thing to say that it revives. The distinction between the two is
absolutely clear and unambiguous. In the 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
0
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:-
..
E "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 r
F 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 wUI become part of the joint Hindu family of his
son and grandson and other members who form joint Hindu
G 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 --1
heirs in respect of certain property and Class I of the heirs
includes the son but not the grandson. It includes, however,
H the son of the predeceased son. It is this position which
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 51
[S.B. SINHA, J.]
has mainly induced the Allahabad High court in the two A
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 B
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."
It was furthermore held :
c
"18 ........ 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 D
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
c--.\ property of his grandfather under the provision. The right
0 of a son's son in his grandfather's property during the
lifetime of his father which existed under the Hindu law as
,--. I in force before the Act, was not saved expressly by the Act,
E
'-'\ 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 F
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 G.
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. H
52 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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."
17. The question yet again came up before this Court in
8
Sheela Devi & Ors. V. Lal Chand & Anr. 2006 (10) SCALE
75 wherein it was clearly held :
"22. The Act indisputably would prevail over the Hindu Law.
We maynotice that the Parliament, with a view to confer
c right upon the female heirs, even in relation to the joint ..
family property, enacted Hindu Succession Act, 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
D 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 t°'Sub-section (1) of
Section 6 of the Act creates an exception. First son of
E Babu Lal, viz., Lal Chand, was, thus, I 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
F 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, 1956."
G
[See also Bhanwar Singh v. Puran & Ors. 2008 (2)
SCALE 355] -
18. 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
H no retrospective effect. However, in the fact of that case Section
M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 53
[S.B. SINHA, J.]
8 of this Act was held to be not applicable as therein the male A
_,, died before the Act came into force. As would appear from the
following:
"(5) It is clear from the express language of the section
that it applies only to coparcenary property of the male
B
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
c
opened before the Act. S.8 of the Act will have no
application."
19. For the aforementioned reasons, we are of the opinion
that the learned trial judge as also of the High Court were not D
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.
20. These appeals are allowed but in the circumstances
E
with no costs.
RP. Appeals allowed.
4
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Hindu Succession Act"Sign in to search