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Showing posts with label HINDU SUCCESSION ACT. Show all posts
Showing posts with label HINDU SUCCESSION ACT. Show all posts
Friday, February 15, 2013

the question of anyone acquiring any interest in any part of the said estate through adverse possession never arose inasmuch as the property in question remained in the custody of the guardian all throughout and through the custody of the guardian the property was in fact custodia legis. Having regard to the fact that Bal Kishun was, admittedly, appointed as a guardian of the person and the property of Sukai and, admittedly, there being no order of discharge, in law, it must be held that the properties of Sukai remained custodia legis all throughout and, accordingly, there was no question of anyone acquiring the same by adverse possession. Bal Kishun, as the guardian of the person and property of Sukai, was holding the same for the benefit of Sukai during his lifetime and upon his death for and on behalf of the person who was entitled to inherit the property of Sukai in accordance with the laws of inheritance. Inasmuch as the properties in question were not coparcenary properties, the widow was entitled to inherit before the daughter, but on the civil death of the widow, the properties vested in the daughter, i.e. the plaintiff. Thus, Bal Kishun, during his lifetime, was holding the properties in question initially 1Page 15 for the benefit of Sukai and upon his death for the benefit of his widow and upon her civil death for the benefit of the plaintiff. Inasmuch as the court did not authorise dealing of any part of the estate of Sukai in any manner whatsoever, neither Sukai, during his liefetime, nor Bal Kishun in his life time and at the same time not even the widow of Sukai, namely, Parbatia or the plaintiff, upon the civil death of Parbatia, could deal with the said properties in any manner whatsoever. As a result, the conclusion would be that Bal Kishun remained accountable in respect of the properties in question to the true owner thereof until his death, when in fact he stood discharged in law from the guardianship of the properties of Sukai,although by reason of death of Sukai, Bal Kishun stood discharged of the guardianship of the person of Sukai from the date of the death of Sukai. In those circumstances, the one and the only logical conclusion that could be arrived at one the basis of the evidence on record that Bal Kishun continued to be in the helm of the affairs pertaining to the properties of Sukai for the sole benefit of the plaintiff after the civil death of Parbatia and, accordingly, the suit ought to have been decreed in favour of the plaintiff directing discharge of Bal Kishun with a further direction to furnish accounts pertaining to the properties in question.”

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Page 1 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1012 OF 2013 (Arising out of Special L...
Thursday, January 5, 2012

PARTITION SUITS = the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2.

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NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION ...
Monday, December 19, 2011

HINDU SUCCESSION ACT, 1956: 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, 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 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, `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 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 1/3rd share and denying the second marriage of `K', and the other suit was filed by the two surviving daughters from the first 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 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 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 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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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ...