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

J U D G M E N T  

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-à-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.