LexM. YOGENDRA & ORS. versus LEELAMMA N. & ORS
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A B c D E , F G H (2009] 12 S.C.R. 38 M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. (Civil Appeal Nos. 4818-4819 of 2009) JULY 29, 2009 [S.B. SINHA AND DEEPAK VERMA, JJ.] 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 113rd share and denying the second marriage of 'K', and the other suit 38 .. .. ~ -- M. YOGENDRA & ORS. v. LEELAMMA N. & ORS. 39 was filed by the two surviving daughters from the first A ... 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 B 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 c 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 D 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 E 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 F ·~· who had the occasion to see the con'duct 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] G Badri Prasad v. Dy. Director of Consolidation & Ors. AIR 1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434, relied on. H 40 SUPREME COURT REPORTS [2009] 12 S.C.R. A 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'. B 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] c 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. D 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, E 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 marria
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