Supreme Court of India M.Yogendra & Ors vs Leelamma N. & Ors on 29 July, 2009Author: Sinha Bench: S.B. Sinha, Deepak Verma

REPORTABLE

IN THE 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

LEELAMMA N. & ORS. ….. RESPONDENTS

JUDGMENT

SINHA J.

Leave granted.

Interpretation 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.

1403/2003 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.

Appellants 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

Doddanandjundaiah.

Inter 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.

Two 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.

Before 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.

(ii) In 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.

Mr. Bhat, 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 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 Section 8 thereof.

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 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.

1 – Neelamma not only identified the persons in the photograph as

that of her father and Yashodamma as also Dinesh.

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 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.

The 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. The 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 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, 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. For these 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 relied on.”

Submission 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. Although 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 dismissed.”

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 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.”

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 sufficiently

been established.

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 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.

Section 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.

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 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.

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 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. 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 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, 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.”

By reason of the said provision a legal fiction has been created as it

then stood.

We, 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 Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) if 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.

Dinesh was admittedly born after the coming into force of the Hindu

Succession Act, 1956.

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 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.

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 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.”

It was furthermore held :

“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 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 the provision. The right 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.” The 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 :

“22. 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, 1956.”

[See also 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:

“(5) 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.”

For the 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.

These appeals are allowed but in the circumstances with no

costs.

…………………..J

[S.B. SINHA]

…………………..J

[DEEPAK VERMA]

NEW DELHI

JULY 29, 2009.