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Hindu Succession Act 1956

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Will-Propounder taking prominent part, in execution of and receiving benefit under-Principles regarding scrutiny of evidence of execution and sound disposing state of mind of testator. HEADNOTE: One V lost his father when he was only 10 years old and. thereafter lived along with his mother, in the- house of the first defendant who was his maternal uncle. The first defendant had considerable influence over V as he was slow witted and below the average level of intelligence and, understanding. V died when he was 24 years old. A few. days before his death he executed a will by which he bequeathed his entire property to the first defendant absolutely with a direction that his mother should be maintained, and that, even if his mother lived separately from the first defendant, she was to have only a life interest in certain items which were also to be taken absolutely by the first defendant after her death. At the time of the execution of the -will V was physically in a weak condition. The first defendant took a prominent part in summoning the attesting witnesses and the scribe and in Procuring, writing materials for the execution of the will. Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of the will and also subsequent to that date, V was in a normal condition on the date of the execution of the will. On the question of the validity of the will, HELD : The will was not executed in a sound disposing state of mind and was therefore not legally valid. [480,A-B] In a case in which a will is prepared under circumstance which raise the suspicion of the court that it does not express the mind of the testator it is for those who -propound the will to remove that suspicion. What are suspicious circumstances must be judged on the facts and circumstances of each particular case. If, however, the Propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in -such a case the court should proceed in a vigilant and cautious, manner. [477 R; 478 A-B] Barry v. Butlin, (1838) 2 Moo. P.C. 480, 482, Fulton v. Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v. Painton, (1894) P. 151, 157, 159 and Sarat Kumari Bibi v. Sakhi Chand & Ors., 56 I.A. 62, applied.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=2120 PETITIONER: GORANTLA THATAIAH Vs. RESPONDENT: THOTAKURA VENKATA SUBBAIAH & ORS. DATE OF JUDGMENT: 19/03/1968 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. MITTER, G.K. CITATION: 1968 AIR 1332 1968 SCR (3) 473 ACT: Will-Propounder taking prominent part, in execution of and receiving benefit under-Principles regarding scrutiny of evidence of execution and sound … Continue reading

Though the property may have partaken the character of self acquired property during the life time of Venkatarao, after his death, it is available for partition among the class-I heirs. = whether the said matter is covered by Section 6 or Section 8 of the Act. = Section 6: Devolution of interest of coparcenary property: When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.- For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. Section 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) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and d) lastly, if there is no agnate, then upon the cognates of the deceased. Section 6 gets attracted whenever a Hindu male, who was a member of coparcenary dies before any partition in the family has taken place. In such an event, his interest in the coparcenary property would devolve by survivorship and not by succession. In other words, if there existed four members in a coparcenary, each one of them would be entitled to 1/4th share in the event of any partition taking place; and if one of the coparcener’s dies before the partition has taken place, his interest in the coparcenary would result in change of shares meaning thereby; that the shares of the remaining three members would become 1/3rd each. Exception carved out under the proviso is that, if such coparcener is survived by a class-I female heir, his interest would devolve upon such class-I heir, or any male person claiming through her by succession. This can be exemplified by taking the instance of a son, who is a member of the coparcenary predeceasing his mother. In such an event, his share which would have been determined, had a partition taken place when he was alive would devolve upon his mother. However, it is only the male successors of the mother of the deceased, that would entitle to claim the said property through her. Section 8 operates in cases where a Hindu male, not being a member of coparcenary but holding property in his own right, dies. In such an event, the devolution would be through succession in favour of this class-I heirs, and in their absence to class-II heirs, and so on. A typical transformation of the character and nature of property takes place, in the event of death of a Hindu male, who held property in his own right. Take for instance; a Hindu male acquired property in different ways i.e., a) through his own efforts, i.e., self-acquisition or b) through partition in a joint family or c) through gift/settlement or other kinds of transfers from his kin or d) through succession. If during his life time any of his children demands partition of the said properties, he can resist the same by pleading that the properties, except those that have devolved through succession i.e., ancestral properties are his self acquisitions; and not available for partition. However, if he dies intestate, leaving behind the properties held by him, whether through succession, or in partition or through self-acquisition, or through transfer from his kin would become available for being shared by his class-I heirs. The properties, which, till his death were his self acquisitions would assume a different character and would be available for partition, among the class-I heirs of the deceased. In the instant case, Venkatarao died holding the suit properties in the form of self-acquisitions. Had any demand been made by his daughters for partition, during his life time, he could have effectively resisted the same by pleading that his self acquired properties are not available for partition. On his death, a substantial change takes place be it as regards the persons who can claim the share in it, or the nature of the property. The class-I heirs include not only his daughters i.e., second appellant and second respondent but also his mother and wife, first respondent and first appellant respectively, whereas the coparceners could have been his daughters alone. The property loses its character of self-acquisition and would be available for partition.

published in http://164.100.12.10/hcorders/orders/2011/sa/sa_1198_2011.html *HON’BLE SRI JUSTICE L.NARASIMHA REDDY +S.A. No.1198 of 2011 %15.12.2011 # Sadhineni Rajani and another. ….. APPELLANTS AND Sadhineni Hymavathi and others.   …..RESPONDENTS ! Counsel for the appellants:   SRI C.Panduranga Rao ^ Counsel for the respondents: SRI G. Pedda Babu. < Gist: > Head Note: ? Cases referred:    [1] AIR 1953 Supreme Court 495 … Continue reading

Both suits are remanded due to contradictory recordings for clubbing and disposal = We may have remanded the matter to the High Court for fresh disposal of the appeals filed by the appellant and respondent No. 2 but keeping in view the fact that 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. In the result, the appeals are allowed. The impugned judgment is set aside. The judgments of the trial Court in O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside and the matter is remitted to the trial Court for fresh disposal of the suits. With a view to avoid the possibility of conflicting findings regarding Item No.5 of Schedule `B’ properties specified in the plaint of O.S. No.4528 of 1980, we direct the trial Court to club the two suits and dispose of 3 the same by one judgment. The parties shall be free to file applications for additional evidence and bring on record the orders passed by the Land Tribunal and the High Court in relation to Item Nos. 1 to 4 of Schedule `B’ appended to the plaint of O.S. No.4528 of 1980.

published in       http://judis.nic.in/supremecourt/helddis.aspx NON REPORTABLE   IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NOS. 6714-6715 OF 2002 Y. Nagaraj ……..Appellant   Versus   Smt. Jalajakshi and others …….Respondents     J U D G M E N T   G. S. Singhvi, J.   1. These appeals … Continue reading

Hindu succession Act – scope of sec. 6 and sec. 8 = a suit for declaration that sale deed dated 19.6.1993 executed by respondent No.2 in favour of respondent No.1 is illegal, void, without jurisdiction and inoperative on the rights of the appellant with consequential relief of possession and permanent prohibitory injunction. = 1. Whether in the facts and circumstances of the case the property in dispute has devolved upon the heirs of Baba Surinder Singh Bedi under proviso to Section 6 of the Hindu Succession Act. 2. Whether in view of the proviso of Section 6 of the Hindu Succession Act the succession of property of Baba Surinder Singh Bedi on his heirs under Section 8 of the Hindu Succession Act will change the nature and nomenclature of property from ancestral/coparcenary property to that of self acquired property. = “6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left his surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I. – For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.” The interest of Nanak Chand shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. In view of Explanation I of Sec. 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7, that is, 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim. When the question of determination of share among the heirs crops up before the Court, the Court has to see that every heir gets his due. Shri Itorora appearing for the respondents could not successfully meet the point raised on behalf of the appellant.” = The bare perusal of Section 6 of the Act makes it clear that in this situation the estate of Baba Surinder Singh would devolve under Section 8 and not under Section 6 of the Act. In view of law laid down by the Supreme Court in the aforesaid judgments, respondent No.2 would inherit his share in the estate of late Baba Surinder Singh in his individual capacity and not alongwith his son appellant. Once this is the position then the appellant has no right to assail the sale dated 19.6.1993 made by respondent No.2 in favour of respondent No.1.

published in http://164.100.138.36/casest/generatenew.php?path=data/judgment/2013old/&fname=RSA4822000.pdf&smflag=N IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 482 of 2000. Judgment reserved on : 6.5.2010 Date of decision : 14.6. 2010. Capt. Arminder Singh Bedi (Amninder Singh Bedi) ..Appellant. Versus Guru Nanak Dev University and another . ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 … 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

HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses.= Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna AND OTHERS (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose AND OTHERS AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India AND ANOTHER (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni AND OTHERS AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab AND OTHERS v. Bhajan Kaur AND OTHERS 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma AND ANOTHER (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah AND ANOTHER 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector AND Etio AND OTHERS (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram AND Co. AND OTHERS etc. v. Union of India AND OTHERS (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. AND ANOTHER v. Union of India AND OTHERS (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi AND OTHERS v. Lal Chand AND ANOTHER (2006) 8 SCC 581, held inapplicable. Shyam Sunder AND OTHERS v. Ram Kumar AND ANOTHER (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg AND OTHERS v. Hotel Association of India AND OTHERS AIR 2008 SC 663, referred to. Bhe AND OTHERS v. The Magistrate, Khayelisha AND OTHERS (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment AND Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents J U D G M E N T S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the … 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

“Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a “life interest”, through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios. Section 14(2) carves out an exception to rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a “life interest”, it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title.” ; so far as the court of first instance is concerned, and that the respondent was not the party before the said court. Permitting an application under Order IX Rule 13 CPC by a non-party, would amount to adding a party to the case, which is provided for under Order I Rule 10 CPC, or setting aside the ex-parte judgment and decree, i.e. seeking a declaration that the decree is null and void for any reason, which can be sought independently by such a party. In the instant case, as the fraud, if any, as alleged, has been committed upon a party, and not upon the court, the same is not a case where Section 151 CPC could be resorted to by the court, to rectify a mistake, if any was made.; See also: Kothamasu Kanakarathamma & Ors. v. State of Andhra Pradesh & Ors., AIR 1965 SC304) It is evident from the above, that a person who has not made an application before the Land Acquisition Collector, for making a reference under Section 18 or 30 of the Act, 1894, cannot get himself impleaded directly before the Reference Court.; In view of the above, the legal issues involved herein, can be summarised as under:- (i) An application under Order IX Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings; (ii) Inherent powers under Section 151 CPC can be exercised by the Court to redress only such a grievance, for which no remedy is provided for under the CPC; (iii) In the event that an order has been obtained from the Court by playing fraud upon it, it is always open to the Court to recall the said order on the application of the person aggrieved, and such power can also be exercised by the appellate court; (iv) Where the fraud has been committed upon a party, the court cannot investigate such a factual issue, and in such an eventuality, a 33Page 34 party has the right to get the said judgment or order set aside, by filing an independent suit. (v) A person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the Act, 1894, but cannot make an application for impleadment or apportionment before the Reference Court. 21. The instant case has been examined in light of the aforesaid legal propositions. We are of the considered opinion that the impugned judgment and order of the High Court cannot be sustained in the eyes of law, and is hence liable to be set aside. In view of the above, the appeals succeed and are allowed. The judgment and order impugned herein are set aside. The respondents are at liberty to seek appropriate remedy, by resorting to appropriate proceedings, as permissible in law.

Page 1REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO.629 of 2004Ramji Gupta & Anr. … AppellantsVersusGopi Krishan Agrawal (D) & Ors. … RespondentsWith CIVIL APPEAL NO. 630 of 2004J U D G M E N TDr. B.S. Chauhan, J.C.A. No.629 of 20041. This appeal has been preferred against the judgment and orderdated 6.9.2002, passed … Continue reading

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.

NON REPORTABLE   IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NOS. 6714-6715 OF 2002 Y. Nagaraj ……..Appellant   Versus   Smt. Jalajakshi and others …….Respondents     J U D G M E N T   G. S. Singhvi, J.   1. These appeals filed against judgment dated 22.2.1999 … Continue reading

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.

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 … Continue reading

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