TMI Blog2009 (7) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Nos. 1,2 and 4 herein. One K Doddananjundaiah indisputably is the predecessor- in-interest of the plaintiffs of both the suits. He along with his own brothers rightly formed a coparcenery. In or about 1941, a partition took place in terms whereof the suit properties were allotted to him. He married twice. The name of his first wife although does not appear from the records it is stated at Bar that her name was Puttamma. He, however, married again in the year 1960, one Yashodamma. Through his first wife three daughters were born to him Parvathamma, Leelamma and Kamalamma. Dinesh, the original respondent No. 4 is said to have been born to K Doddananjundaiah through Yashodamma on or about 16.4.1961. K Doddananjundaiah died on 11.09.1969. Appellants herein filed a suit for partition against Leelamma, Kamalamma and Dinesh for partition claiming 1/3rd share in the suit property. Inter alia, on the premise that some of the joint family properties were not included therein Neelamma, Kamalamma and Dinesh filed another suit for partition. Before the learned trial court, where both the suits were heard together, the appellants herein raised a contention that Yashodamma was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the trial judge was a photograph taken at the time of death whereas P.W. 1 declined to identify the persons in the photograph (Ex. D5) when he was confronted therewith. D.W. 1 - Neelamma not only identified the persons in the photograph as that of her father and Yashodamma as also Dinesh. The learned trial judge relied on the said documents for the purpose of arriving at a conclusion that Yashodamma was married with K Doddananjundaiah. Another important document upon which reliance was placed was a deed of settlement dated 16.4.1971 executed by Yashodamma in respect of some of the properties by K Doddananjundaiah in favour of Dinesh. It was a registered document. Yashodamam was appointed as a guardian as Dinesh was minor. Therein also Dinesh was described as son of K Doddananjundaiah. At that point of time, no challenge was done to the execution of the said document. It is also of some significance to notice that Kamalamma was a witness to the said deed at the time of presentation thereof before the registering authority. In the signed portion of the said documents also relation between the parties was clearly stated. It was furthermore, recited therein that Kamalamma had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on. Submission of Mr. Chandrashekhar is despite arriving at the said finding which clearly proves that no marriage had taken place, the High Court committed a serious illegality invoking the provisions of Section 50 of the Indian Evidence Act. It was urged that Section 50 of the Evidence Act would be available to a party when no direct evidence is available to prove or dispute the factum of marriage. In any event, the presumption which may be raised in terms of Section 50 of the Evidence Act read with 114 thereof is a rebuttal presumption. The learned counsel strongly relied upon, in this regard, a decision of this Court in Badri Prasad v. Dy. Director of Consolidation Ors. [AIR 1978 SC 1557] Tulsa Ors. v. Durghatiya Ors. (2008) 1 SCALE 434. In Badri Prasad's case (supra) this Court held as under:- For around 50 years, a man and a woman as the facts in this case unfold, lived as husband wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jundaiah and Yashodamma. So far as their status is concerned without keeping in view the close relationship were also witnesses to various documents executed by Yashodamma. The evidence in this behalf in our opinion is admissible. The learned trial judge has noticed and relied upon a large number of documents. It has not been contended before us by Mr. Chandrashekhar that those documents were not admissible in evidence. Some of the documents being registered documents would rest their own presumption of correctness. School records could be admissible in evidence in terms of Section 35 of the Indian Evidence Act. Only because the High Court could find out certain discrepancies in the lagnapatrika the same in our opinion was not a conclusive proof to reverse the finding of the learned trial court. The High Court has itself noticed that the applicability of the covenants of Section 50 of the Indian Evidence Act having regard to the evidence have been brought on record. In that view of the matter, we are of the opinion that the finding that K Doddannanjundaiah married Yashodamma need not be interefered with. The question which now survives for our consideration is the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (i) of the Scheduled appended to the Act. Dinesh was admittedly born after the coming into force of the Hindu Succession Act, 1956. Mr. Bhat, however, would contend that the properties at the hands of K Doddananjundaiah which were allotted to him in partition which took place between him and his brother in the year 1948 would constitute coparcenary properties at his hands, with respect we cannot persuade ourselves to agree with the said view which has been accepted by the courts below. It is now well-settled in view of several decisions of this Court that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenery property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid. This aspect of the matter has been considered by this Court in Commissioner of Weal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty ceased to have effect . The Court further observed that in construing a Codification Act, the law which was in a force earlier should be ignored and the construction should be confined t the language used in the new Act. The High Court felt that so construed, Section 8 of the Hindu Succession Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestated after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons. It followed the Full Bench decision of the Madras High Court as well as the view of the Allahabad High Court in the two cases noted above including the judgment under appeal. The question yet again came up before this Court in Sheela Devi Ors. V. Lal Chand Anr. 2006 (10) SCALE 75 wherein it was clearly held : 22. The Act indisputably would prevail over the Hindu Law. We maynotice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Successi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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