SHYAM LAL @ KULDEEP versus SANJEEV KUMAR & ORS

Citation: [2009] 5 S.C.R. 1049 · Decided: 15-04-2009 · Supreme Court of India · Bench: DALVEER BHANDARI · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 5 S.C.R. 1049 
SHYAM LAL @ KULDEEP 
A 
v. 
SANJEEV KUMAR & ORS. 
(Civil Appeal No.2888 of 2001) 
APRIL 15, 2009 
B 
[DALVEER BHANDARI AND H.L. DATTU, JJ.] 
HINDU SUCCESSION ACT, 1956: 
s.30 rlw s.4 - Will in respect of ancestral property- Held: c 
There being concurrent findings of courts below that the will 
had validly been executed, and the findings being purely on 
a question of fact, i.e., with regard to execution of will, High 
Court rightly held that such findings could not be interfered 
) 
with in second appeal - In view of s.30 rlw s.4, a male Hindu 0 
governed by Mitakshara system is not debarred from making 
a will in respect of ancestral property - Besides, considering 
as a whole, as set out in the plaint, suit was not within time -
Limitation. 
EVIDENCE ACT, 1872: 
E 
s. 112 - Birth during marriage - Conclusive proof of 
legitimacy- Held: In absence of cogent and reliable evidence 
as to non-access of parents of a child to each other 
presumption u/s 112 would be available - Onus to rebut the 
F 
presumption was on defendants and they failed to discharge 
the same. 
s. 74 - Public document - School Leaving Certificate -
Showing the parentage of child - Admitting of without format c 
proof not questioned by defendant in relevant court - Held: 
-.\ 
Defendant cannot raise the issue in appeal before Supreme 
Court. 
1049 
1050 
SUPREME COURT REPORTS [2009) 5 S.C.R. 
A 
MAXIM: 
'Odiosa et inkonesta non sunt in lege prae sumenda' -
Applicability of 
The appellant filed a suit for declaration that mutation 
8 of the suit land in favour of defendants 1 and 2, who were 
the grandsons of 'BR', was illegal and null and void. It was 
claimed that the plaintiff and defendants 3 and 4 were 
sons of 'BR' and they comprised Hindu Undivided 
Family with him; that defendants 5 and 6 were BR's 
C daughters; that the suit land was inherited by 'BR' from 
his father and, as such, the same was ancestral property 
in his hands and, therefore, after the death of 'BR', the 
property could not have been mutated in favour of 
defendants 1 and 2; that no Will was executed by 'BR' in 
D his life time, and if there was any Will, the same was a 
forged and fabricated one. The stand of the defendants, 
on the other hand, was that 'BR' executed a registered 
Will in favour of defendants 1 and 2 in a sound disposing 
mind; and that the wife of 'BR' had deserted him during 
E his life time and started living with another person 
through whom the plaintiff and defendant No.4 were 
born. The trial court relying upon the Will held the 
mutation operative against the plaintiff and dismissed the 
suit. The first appellate court partly allowed the appeal of 
F the plaintiff holding that the suit land in the hands of 'BR' 
was ancestral property to the extent of his share in the 
coparcenary property. The High Court having dismissed 
plaintiff's second appeal, he filed the appeal. 
G 
Dismissing the appeal, the Court 
HELD:1. So far as genuineness of the Will is 
concerned, the two courts below have concurrently held 
~ 
1
the Will Ex.OW 11A to have been validly executed by 
deceased 'BR' in favour of defendant nos.1 and 2. Such 
H concurrent findings being purely on a question of fact, 
SHYAM LAL@ KULDEEP v. SANJEEV KUMAR & 1051 
ORS. 
that is, with regard to execution of the Will, as has been 
A 
rightly held by the High Court, cannot be interfered with 
in the second appeal. [Para 28] (1065-F-G] 
2.There is no denying that the property in the hands 
of the deceased was ancestral since admittedly he had 
inherited the same from his father. [Para 29) [1065-G-H] 
B 
3. In so far as the question whether under the custom 
governing the parties, a Will could be executed in respect 
of ancestral property is concerned, the same is no more c 
res integra. In view of s.30 read with s.4 of the Hindu 
Succession Act, 1956, a male Hindu governed by 
Mitakshara system is not debarred from making a Will in 
respect of coparcenary/ancestral property. In this view of 
the matter, the District Judge has erred in upholding the 
validity of the Will Ext. OW 1/A only to the extent of the 
D 
) 
interest of the deceased in the property. Such findings are 
wrong and liable to be set aside. [Paras 30 and 32] [1066-
A-D] 
Tek Chand and Another v. Moo/ Raj and Others 1997 (2) 
E 
Hindu L.R. 306 and Kartari Devi and Ors. v. Tota Ram 1992 
(1) Sim. L.C. 4021, relied on. 
Perumal Nadar (dead) by Legal Representative v. 
Ponnuswami Nadar (minor) AIR 1971 SC 2352

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