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M.Yogendra & Ors. Vs. Leelamma N. & Ors. on 29 July, 2009

M.Yogendra & Ors. Vs. Leelamma N. & Ors. on 29 July, 2009
Bench: S.B. Sinha, Deepak Verma

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 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 conduct of the parties 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]

Badri Prasad v. Dy. Director of Consolidation & Ors. AIR 1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434, relied on.

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’. 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 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. 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

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 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 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 `D’ will take in equal shares being the relatives specified 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 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

(1986) 3 SCC 567 relied on para 16

2006 (10) SCALE 75 relied on para 17

2008 (2) SCALE 355 relied on para 17

AIR 1966 SC 1879 referred to para 18

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4818-4819 of 2009.

From the Judgment & Order dated 16.11.2007 of the High Court of Karnataka at Bangalore in RFA No. 1403 of 2003 C/w 1404 of 2003.

G.V. Chandrashekhar, N.K. Verma, Anjana Chandrashekar for the Appellants.

S.N. Bhat, B. Subrahmanya Prasad, Ajay Kumar, V.N. Raghupathy for the

Respondents.

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