Hindu law

This tag is associated with 15 posts

Hindu Women’s Right to Property Act as applied in the erstwhile State of Hyderabad agricultural lands not included = The appellants contended that under the Hindu Women’s Right to Property Act as applied in the erstwhile State of Hyderabad where the lands were situated, the Ist respondent being the widow of deceesed Ramshetti, was not entitled to a share in the joint family agricultural lands. Agricultural lands are excluded from the provisions of the Hindu Women’s Right to Property Act, 1937. This contention has been negatived by the High Court. Hence the present appeal has been filed by the heirs of Veerappa.= It was submitted that prior to the enactment of the Hyderabad Hindu Women’s Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu women’s Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women’s Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word ‘property’ is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to thee original Hindu Women’s Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women’s Right to Property act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply. There is, therefore, no substance in the contention that the subsequent Act of 1954 restricted the application of the Hindu Women’s Right to Property Act, 1937 brought into force by the earlier Hyderabad Act of 1952. As is pointed out by the High Court, the Act of 1954 was enacted by way of abundant caution, to make sure that the agricultural lands were not considered as excluded from the scope of the Hindu Women’s Right to Property Act as enacted in 1952. The second Act is, therefore, clarificatory. The High Court has dealt at length with various decisions of this Court and other Court on thee question of interpretation of the said statute. Since we are in agreement with the reasoning and conclusion arrived at by the High Court, we are not again examining the cases referred to by the High Court. We, therefore, affirm the reasoning and conclusion arrived at by the High Court and dismiss this appeal. There will, however, be no order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=12909 PETITIONER: VAIJANATH & ORS. Vs. RESPONDENT: GURAMMA & ANR. DATE OF JUDGMENT: 18/11/1998 BENCH: SUJATA V. MANOHAR, & G.B. PATTANAIK.   ACT:   HEADNOTE:   JUDGMENT: ORDER The application to bring on record Respondent No.2 also as legal representative of deceased Respondent No. 1 is allowed. The Ist respondent was the widow of … Continue reading

Hindu Succession Act, 1956-ss. 4, 8 and 19-Property of father who dies intestate-Whether devolves on son, who separated by partition from his father, in individual capacity or Karta of his HUF. Wealth Tax Act, 1957-ss. 3 and 4-Property inherited under s 8 Hindu Succession Act, 1956-Whether HUF or individual property. Income Tax Act, 1961/Income Tax Act, 1922-Income from as sets inherited by son from father-Whether assessable as individual income. HEADNOTE: Rangi Lal and his son Chander Sen constituted a Hindu undivided family. They had some immovable property and the family business. By a partial partition the HUF business was divided between the two and thereafter it was carried on by a partnership consisting of the two. The house property of the family continued to remain joint. The firm was assessed to income-tax as a registered firm and the two partners were separately assessed in respect of their share of income. The mother and wife of Rangi Lal having pre-deceased him, when he died he left behind him his only son Chander Sen and his grandsons. On his death there was a credit balance of Rs.1,85,043 in his account in the books of the firm. In the wealth tax assessment for the assessment year 1966-67, Chander Sen, who constituted a joint family with his own sons, filed a return of his net-wealth by including the property of the family which u on the death of Rangi Lal passed on to him by survivorship and, also the assets of the business which devolved upon him on the death of his father. The sum of R.S.. l ,85,0 13 standing to the credit of Rangi Lal was, however, not included in the net-wealth of the assessee-family. Similarly, in the wealth tax assessment for the assessment year 1967-68 a sum of Rs.1,82,742 was not included, in the net wealth of the assessee family. It was contended that these amounts devolved on Chander Sen 255 in his individual capacity and were not the property of the assessee family. The Wealth-tax officer did not accept this contention and held that these sums also belonged to the assessee-family. A sum of Rs.23,330 was also credited to the account of late Rangi Lal on account of interest accruing on his credit balance. In the proceedings under the Income Tax Act for the assessment year 1367-68 this sum was claimed as deduction on the same ground. The Income-tax officer disallowed the claim on the ground that it was a payment made by Chander Sen to himself. On appeal, the Appellate Assistant Commissioner of Income-tax accepted the assessee’s claim in full and held that the capital in the name of Rangi Lal devolved on Chander Sen in his individual capacity and as such was not to be included in the wealth of the assessee family. The sum of Rs.23,330 on account of interest was also directed to be allowed as deduction. The Income-tax Appellate Tribunal dismissed the appeals filed by the Revenue and its orders were affirmed by the High Court. On the question: “Whether the income or asset which a son inherits from his father when separated by partition should be assessed as income of the Hindu Undivided Family consisting of his own branch including his sons or his individual income”, dismissing the appeals and Special Leave Petition of the Revenue, the Court, ^ HELD: 1. The sums standing to the credit of Rangi Lal belong to Chander Sen in his individual capacity and not the Joint Hindu Family. The interest of Rs.23,330 was an allowable deduction in respect of the income of the family from the business. [268C-D] 2.1 Under s. 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. Section 8 lays 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 an heir under class I of the Schedule, and, therefore, he could not get any right in the property of his grandfather under the provision. [265F-G] 256 2.2 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”. So construed, s. 8 of the 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 intestate after the coming into force of the Hindu Succession Act, 1356, did not constitute HUF property consisting of his own branch including his sons. [265G-H; 266A-C] 2.3 The Preamble to the Act states that it was an Act to amend and codify the law relating to intestate succession among Hindus. Therefore, it is not possible when the Schedule indicates heirs in class I and only includes son and does not include son’s son but does include son of a predeceased-son, to say that when son inherits the property in the situation contemplated by s. 8, he takes it as Karta of his own undivided family. [267C-D] 2.4 The Act makes it clear by s. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today that the property which devolved on a Hindu under s. X of the Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis sons and female heirs with respect to whom no such concept could be applied or contemplated. [267E-G] 2.5 Under the Hindu law, the property of a male Hindu devolved on his death on his sons and the grandsons as the grandsons also have an interest in the property. However, by reason of s. 8 of the Act, the son’s son gets excluded and the son alone inherits the properly to the exclusion of his son. As the effect of s. 8 was directly derogatory of the law established according to Hindu law, the statutory provisions must prevail in view of the unequivocal intention in the statute itself, expressed in s. 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu Law. [264G-H; 265A-B] 2.6 The intention to depart from the pre-existing Hindu law was again made clear by s. 19 of the Hindu Succession Act which stated that 257 if two or more heirs succeed together to the property of an intestate, they should take the property as tenants-in- common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father’s property took a joint tenants and not tenants-in-common. The Act, however, has chosen to provide expressly that they should take as tenants-in-common. Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under s. 8 constituted the absolute properties and his sons have no right by birth in such properties. [266F-H] Commissioner of Income-tax, U. P. v. Ram Rakshpal, Ashok Kumar, 67 I.T.R. 164; Additional Commissioner of Income-tax, Madras v. P.L. Karuppan Chettiar, 114 I.T.R. 523; Shrivallabhdas Modani v. Commissioner of Income-Tax, M.P-I., 138 I.T.R. 673 and Commissioner of Wealth-Tax A.P. II v. Mukundgirji 144 I.T.R. 18, approved. Commissioner of Income-tax, Gujarat-l v. Dr. Babubhai Mansukhbai (Deceased), 108 I.T.R. 417, overruled.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=8997 PETITIONER: COMMISSIONER OF WEALTH TAX. KANPUR ETC. ETC. Vs. RESPONDENT: CHANDER SEN ETC. DATE OF JUDGMENT16/07/1986 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S. CITATION: 1986 AIR 1753 1986 SCR (3) 254 1986 SCC (3) 567 1986 SCALE (2)75 CITATOR INFO : F 1987 SC 558 (10) RF 1991 SC1654 (27) … Continue reading

The subject premises are said to be residential premises. One of the essential conditions to be tenant after the tenant’s death in the case of residential building is that such person must be heir of the deceased tenant. = The parties are admittedly governed by Hindu law. The applicant’s father, who is respondent No. 2, is alive. In other words, the deceased tenant is survived by his son – Jitendra Kumar Gupta (respondent No. 2). Since the applicant (respondent No. 1) is not a son of pre-deceased son, he is not a heir of his deceased grand-father under Section 8 read with the Schedule of the Hindu Succession Act. The High Court clearly erred in not taking into consideration the first requirement of the definition of ‘tenant’ whether or not the applicant was the heir of the deceased tenant. As noted above, the applicant is not a heir of deceased tenant and, therefore, he cannot be held to be a joint tenant along with respondent No. 2 in the subject premises. 8. Appeal is allowed accordingly. The impugned order of the High Court dated May 11, 2011 is set aside and the order dated March 9, 2011 passed by the prescribed authority is restored. 9. The prescribed authority is requested to decide the eviction proceedings as expeditiously as may be possible. 10. No costs. ‘

‘     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3956 OF 2013 (arising out of S.L.P. (Civil) No. 20826 of 2011) SURAJ PRAKASH GULATI & ANR. Appellant(s) VERSUS PANKAJ GUPTA & ANR. Respondent(s) O R D E R Leave granted. 2. Respondent No. 1 – Pankaj Gupta – made … Continue reading

whether the suit was maintainable without seeking any consequential relief. Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession.”……It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.”= A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest.= “……a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.” In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs.

‘     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 7605-7606 of 2004 Venkataraja & Ors. … Appellants Versus Vidyane Doureradjaperumal (D) Thr.Lrs. & Ors … Respondents J U D G M E N T Dr.B.S.Chauhan, J. 1. These appeals have been preferred against the impugned judgment and order … Continue reading

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband’s petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-“Court of competent jurisdiction”-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud’-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression “Certified copy of a foreign judgment”-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-“Competent court”-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases “Residence-Meaning of”. = The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] =, 1991( 2 )SCR 821, 1991( 3 )SCC 451, 1991( 2 )SCALE1 , 1991( 3 )JT 33

PETITIONER: Y. NARASIMHA RAO AND ORS. Vs. RESPONDENT: Y. VENKATA LAKSHMI AND ANR. DATE OF JUDGMENT09/07/1991 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) CITATION: 1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1 ACT: Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should … Continue reading

Indian Registration Act (16 of 1908),s. 17 (1) (b)-Partition of Property in specific shares-Deed not registered- Admissibility. Pleadings-Plea of acquiescence-Not raised in pleadings- Cannot be allowed to be set up subsequently. Hindu Law–Agharia caste-Custom of Jethansi allowing larger share of family property to eldest son–Outmoded custom loses legal force. Indian Evidence Act (1 of 1872), s. 91-Bar on oral evidence. =D died in 1940 leaving certain agricultural land as well as house property. He had two children by his first wife the elder of whom was respondent no.. 1. By his second wife, appellant no. 2, he had a son, appellant no’. 1. The family belonged to the Agharia caste and was governed by the Benares School of Hindu Law. In 1956 Appellants 1 and 2 filed a suit in the Court of the Civil Judge Raigarh (now in Madhya Pradesh) claiming that they were entitled to 1/4 th share each in D’s estate and that there should be a partition by metes and bounds of joint family property. According to their pleadings Ex.D-4 dated December 27, 1943 by which appellant no. 2 accepted a lesser share of the properties than was due to her and her son was executed as a result of coercion by respondent no. 1. The latter along with other respondents contested the suit, relying on Ex.D- 4. The trial court, the first appellate court, as well as the High Court decided against the appellants who by special leave came to this Court. The questions that fell for consideration were : (i) whether Ex.D-4 was admissible in evidence without having been registered; (ii) whether Appellant No. 2 was precluded from demanding her share because her signing of Ex. D-4 showed acquiescence on her part; (iii) whether a higher share for respondent no. 1 was justified because of the custom of Jethansi in the Agharia caste according to which the eldest son was entitled to a larger -share than others; (iv) whether it was open to the respondents to give oral evidence of actual partition subse- quent to the execution of Ex.D-4. HELD: (i) The recitals in Ex.D-4 showed that there was allotment of specific properties to individual co-parceners and the document therefore fell within the mischief of s. 17(1) (b) of the Registration Act. It followed that Ex.D-4 was not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property had ceased to be joint -property. The document was only admissible to prove an intention on the part of the co-parceners to become divided in status. [643 F-H] Nanni Bai v. Gita Bai, [1959] S.C.R. 479, relied on. (ii) There was no pleading on behalf of the respondents and no issue framed to the effect that by signing Ex.D-4 appellant no. 2 had acquiesced in the division of properties among her sons without claiming the share to which she was entitled under the Mitakshara Law of the Benares 640 School. The respondents therefore could not be allowed to set up the plea of acquiescence by appellant no. 2 [L644 E] (iii) The doctrine of “Jethansi” or “Jeshtbhagam” is now obsolete and unenforceable. The principle of Hindu Law is equality of division and the exceptions to that rule, have almost, if not altogether disappeared. As between brothers or other relations absolute equality is now the invariable rule in all the States, unless, perhaps, where some special family Custom to the contrary is made out. The respondents had failed to prove that such a custom was prevalent in the caste of Agharias to which the parties belonged. [644 F-G; 645 F-G; 646 A-F] M. Y. A. A. Nachiappa Chettiar v. M. Y. A. A. Muthu Karuppan Chettiar, A.I.R. 1946 Mad. 398 and Hur- Purshad v. Sheo Dyal, 3 I.A. 259 at p. 285, referred to. (iv) The evidence showed that document Ex.D-4 was intended by the parties to be the sole evidence of partition and since it had been held that Ex.D.4 was not admissible in evidence on account of non-registration to establish when the property was so partitioned, it was manifest that no oral evidence was admissible to prove any subsequent partition having regard to the provisions of s. 91 of the Evidence Act. [L 646 G-647 A] =1968 AIR 1299, 1968( 3 )SCR 639, , ,

PETITIONER: SHIROMANI & ORS. Vs. RESPONDENT: HEM KUMAR & ORS. DATE OF JUDGMENT: 04/04/1968 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. CITATION: 1968 AIR 1299 1968 SCR (3) 639 CITATOR INFO : RF 1981 SC 178 (106) ACT: Indian Registration Act (16 of 1908),s. 17 (1) (b)-Partition of Property in specific shares-Deed not registered- … Continue reading

Hindu law–Illegitimate son of Sudra–Right to demand partition of separate property of father. =Under Hindu law, though an illegitimate son of a Sudra cannot enforce partition during his father’s lifetime, he can enforce partition after his father’s death if the father was separate from his collaterals and has left separate property and legitimate sons. =1952 AIR 225, 1952SCR 869, , ,

PETITIONER: GUR NARAIN DAS AND ANOTHER Vs. RESPONDENT: GUR TAHAL DAS AND OTHERS DATE OF JUDGMENT: 16/05/1952 BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN CITATION: 1952 AIR 225 1952 SCR 869 CITATOR INFO : R 1965 SC1970 (3) ACT: Hindu law—Illegitimate son of Sudra–Right to demand partition of separate property of father. … Continue reading

Hindu Law–Marriage between Hindu and former Christian–Proof of conversion to Hinduism–No formal purification ceremony necessary–Bona fide intention accompanied by unequivocal conduct sufficient. Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949- Act applicable only to those domiciled in Madras. Indian Evidence Act 1 of 1872, s. 112–Presumption as to legitimacy of child. =One Perumal Nadar, a Hindu, married Annapazham, daughter of an Indian Christian, on November 29, 1950 at Kannimadam in the State of Travancore-Cochin according to Hindu rites. Of the two children born of the marriage one died. The younger child, a son born in 1958, acting through his mother, the afoResaid Annapazham, as his guardian, filed an action in the Court of the Subordinate Judge, Tirunelveli, for separate possession of a half share in the properties of the joint family held by his father Perumal. The ‘suit was defended by Perumal. The trial court decreed the suit and the High Court confirmed the decree. In appeal to this Court by certificate Perumal, the appellant, contended : (i) that Annapazham was an Indian Christian and a marriage between a Hindu and an Indian Christian must be regarded as void; (ii) that the marriage was invalid because the appellant was already married .before he married Annapazham and bigamous marriages were prohibited by Madras Act 6 of 1949; (iii) that the appellant and Annapazham were living apart for a long time before the birth of the plaintiff and on that account the plaintiff could not be regarded as a legitimate child of the appellant. HELD : (i) The question whether marriage between a Hindu male and a Christian female is valid or not did not arise for consideration in the present case because the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal was amply supported by evidence. [52 D-E] A person may be a Hindu by birth or conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona,fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiration is necessary to effectuate conversion. [52 E-F] Muthusami Mudaliar v. Musilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342 and Goona Durgaprasada Rao v. Goona Sudarasanaswami, I.L.R. (1940) Mad. 653, referred to. The evidence in the present case established that the parents of Annapazham arranged the marriage. The marriage was performed 50 according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith; and the plaintiff was also treated as a Hindu. On the evidence there could be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies would not be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that the appellant chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicated that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed. [53 C-E] (ii) On the facts and pleadings the High Court was right in holding that it was not proved that the appellant was domiciled in the State of Madras at the date of his marriage with Annapazham. He could not therefore rely upon the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. [54 F] (iii) There was a concurrent finding by the courts below that there was no evidence to establish that the appellant living in the same village as Annapazham had no access to her during the time when the plaintiff could have been begotten. Therefore, in view of s. 112 of the Indian Evidence Act it could not be held that the plaintiff was an illegitimate child. [55 A-B] Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, [1954] S.C.R. 425, Karapaya v. Mayandi, I.L.R. 12 Rang. 243 (P.C) and Ammathayee v. Kumaresain, [1967] 1 S.C.R. 363, applied. =1971 AIR 2352, 1971( 1 )SCR 49, , ,

PETITIONER: PERUMAL NADAR (DEAD) BY L.R.S. Vs. RESPONDENT: PONNUSWAMI DATE OF JUDGMENT: 17/03/1970 BENCH: SHAH, J.C. BENCH: SHAH, J.C. HEGDE, K.S. GROVER, A.N. CITATION: 1971 AIR 2352 1971 SCR (1) 49 ACT: Hindu Law–Marriage between Hindu and former Christian–Proof of conversion to Hinduism–No formal purification ceremony necessary–Bona fide intention accompanied by unequivocal conduct sufficient. Madras … Continue reading

Hindu Succession Act, 1956: s.6, Explanation 1-Devolution of interest in coparcenary property-Father and his adopted son constituting Mitakshara coparcenary-Father having two daughters also-On the death of father, daughters claiming 2/3 share in property-Held, in view of s.6 and Explanation 1 thereto, notional partition of the suit properties between father and his adopted son has to be assumed immediately before the death of the father and that being so his undivided interest in suit property, which was half, devolved on his death upon his three children, i.e. the adopted son and the two daughters in equal proportion-Adopted son would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession-Thus, each of the two daughters was entitled to one-sixth share in the property and the remaining properties would go to the adopted son-Hindu Law-Mitakshara coparcenary-Devolution of interest-Interpretation of statutes-Statutory fiction-Interpretation of. State of Bombay v. Pandurang Vinayak Chaphalkar & Ors., [1953] 4 SCR 773 and Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR (1978) SC 1239, relied on. East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) Appeal Cases 109, referred to. Mulla, Principles on Hindu Law, referred to. =Sushil Kumar Jain, Puneet Jain, Sarad Singhania, Rani Masheshwari and Pratibha Jain for the Appellants. Aruneshwar Gupta, Gen. Naveen Kumar Singh, Mukul Sood, Kumar Kartikay, Shiva Pujan Singh, Ved Pal Shastri and Siddharth Singh for the Respondents.

CASE NO.: Appeal (civil) 4171 of 2006 PETITIONER: Anar Devi and Ors RESPONDENT: Parmeshwari Devi and Ors DATE OF JUDGMENT: 18/09/2006 BENCH: B.N. AGRAWAL & P.P. NAOLEKAR JUDGMENT: JUDGMENT O R D E R (ARISING OUT OF S.L.P. (C) NO. 15677 OF 2004) WITH CIVIL APPEAL NO. 4172 OF 2006 (ARISING OUT OF S.L.P. (C) … Continue reading

Hindu Law–Widow–Surrender–Release in favour of daugh- ter and son-in-law–Validity–Suit by reversioner–Right to mesne profits. = Where a Hindu widow who had inherited her husband’s estate executed a deed, described as a deed of release, in favour of her daughter who was the next reversioner and the daughter’s husband jointly: Held, that though under the Hindu Law it is open to a widow to surrender the estate to the next reversioner even though the latter is a female heir, a widow cannot validly surrender in favour of the next female heir and a stranger jointly. Such a transaction cannot be treated as a surren- der in favour of the female heir and a transfer by the latter to the stranger, and is not binding upon the ultimate reversioners. Jagrani v. Gaya (A.I.R. 1933 All. 8561 approved. Nobo Kishore v. Harinath (I.L.R. 10 Cal. 1102) commented upon. Vytla Sitanna v. Marivada (L R. 61 I.A. 200), Rangasa- mi Goundan v. Nachiappa Goundan (41 I.A. 72) and Debi Prosad v. Gola Bhagat (I.L.R. 40 Cal. 721) referred to. In a suit by the reversioner to set aside an alienation made by a Hindu widow mesne profits can be awarded to the reversioner from the date of the widow’s death even though such an alienation is not void. Even in cases where the decree for possession in favour of the reversioner is conditional on his depositing the amount which has been found to have been used for the bene- fit of the estate, mesne profits can be awarded to the reversioner if he is ordered to pay interest on the amount payable to the alienee. Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48)and Satgur Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to. Banwarilal v. Mahesh (I.L.R. 41 All. 63) distinguished.


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