Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | HINDU SUCCESSION ACT |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | HINDU SUCCESSION ACT, 1956:s.30 rlw s.4 - Will in respect of ancestral property- Held: 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 r/w 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: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 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 proof not questioned by defendant in relevant court - Held: Defendant cannot raise the issue in appeal before Supreme Court. MAXIM:'Odiosa et inkonesta non sunt in lege prae sumenda' - Applicability of The appellant filed a suit for declaration that mutation 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 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 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 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 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. |
Judge | Hon'ble Mr. Justice Dalveer Bhandari |
Neutral Citation | 2009 INSC 504 |
Petitioner | Shyam Lal @ Kuldeep |
Respondent | Sanjeev Kumar & Ors |
SCR | [2009] 5 S.C.R. 1049 |
Judgement Date | 2009-04-15 |
Case Number | 2888 |
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