TaxTMI 
TaxTMI 
2012 (10) TMI 1282
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....56, was the lower appellate court justified in applying sec. 6 of the Hindu Succession Act, 1956 in view of the fact that the said Act came into force only on 17.6.1956? ii. Were the courts below justified in treating the plaint schedule property as the self- acquired property of Nayadi Vaidyar, the great grandfather of the plaintiff when, in the hands of his son Choyi and Choyi's son Vasu, the property was coparcenary property? 2. By the Cross Objection, essentially the plaintiff seeks for one-half share as contended by her before the Courts below. The question of law arising therein would be: iii. Whether the plaintiff, through her mother, is entitled to one-half share in the plaint schedule property by virtue of Section 6(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "Act 30 of 1956") as amended by the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as "Act 39/2005"); which enabled the daughter of a coparcener, by birth, to become a coparcener in her own right in the same manner as the son? 3. Admittedly the plaintiffs mother and the defendant were siblings, belonging to a family of Makkathaya Hindu Thiyyas of Calicut and governed by ....
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....hibit A2, assignment deed of 1997, indicated that Rajan, the brother of Sreeja @ Jayasree and Babu, the defendant, predeceased the plaintiffs mother Sreeja @ Jayasree. The claim of the plaintiff for one-half share was negatived. It was found that as per Exhibit Al Vasu and his two sons Rajan and Babu had one-third share in the plaint schedule properties. Subsequently on Vasu's death, his share equally devolved upon his three children Sreeja @ Jayasree, Rajan and Babu. Then on Rajan's death, his individual share acquired by virtue of Al and the fractional share inherited by him on the death of his father, Vasu, devolved equally upon the plaintiffs mother and the defendant. It was in such circumstance that the plaintiff was declared to be entitled to 3/9 share and the defendant to 6/9 share of the plaint schedule property. 6. The first appellate Court concurred with the said finding and specifically dealt with the contention of the plaintiff with respect to the amendment to Act 30/1956 made in the year 2005 by Act 39/2005. The first appellate Court held that the effect of the amendment brought in by Act 39/2005 has to be examined along with the provisions of the Kerala Joint....
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....ince his death occurred after the coming into force of the Act 30/1976, there is no question of application of Section 6 of Act 30/1956 and what is applicable is Section 8. 9. The learned counsel for the appellant seriously disputes this. It is his contention that though the documents are marked in evidence, that alone is not proof of its contents. He also contends, without conceding, that if at all Vasu's share is found to be subject to the proviso to Section 6 of Act 30/1956, Rajan's share would be governed by Section 6 as such. Section 6 provides that after the commencement of the Act if a male Hindu, having an interest in a Mitakshara coparcenary property, dies, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. Hence, when Rajan died, his interest would be one in Mitakshara coparcenary property and only Babu, the surviving member of the coparcenary; gets a claim by way of devolution by survivorship. 10. Nayadi Vaidyar, this Court is informed, died in 1935 and Choyi @ Kuttan in 1939. The date of their death does not at all alter the facts situation or has any relevance to the law....
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....w holding any coparcenary property on the day when the Act came into force shall hold it as tenants-in-common as if a partition had taken place and each share shall be separately held as full owner thereof. Hence Rajan, Babu and their sister Sreeja @ Jayasree holds the property as their own separately. When Rajan died intestate, unmarried and issueless, Section 6 has no application, since there is no coparcenary property available at that point, by virtue of the provisions of Act 30/1976. Then necessarily one has to go to Section 8 of Act 30/1956. Section 8 provides that the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule and on such heirs being unavailable, then upon the heirs, being the relatives specified in Class II of the Schedule. Rajan left behind only his brother and sister - Babu the defendant and Sreeja @ Jayasree, the plaintiffs mother. He did not have any Class I heirs surviving. The brother and sister equally share under Class II of the Schedule. Hence, his 4/9 shares gets equally divided; and Babu, who already had 4/9 share gets an additional share of 2/9 making his share 6/9. Sre....
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....same principle, Act 30/1976 does not invalidate Section 6 of Act 30/1956. That is not the case projected by the Senior Counsel for the respondent. It is the case of the plaintiff that Act 30/1976 extinguishes coparcenary property and there being no coparcenary property after Act 30/1976; Section 6 cannot be relied upon and one has to go to Section 8 to decide succession. Looking again at the Full Bench decision, Their Lordships noticed that Act 30/1956 dealt with "Wills, intestacy and Succession" coming under Entry 5 of List III of the 7th Schedule to the Constitution (para 18 supra). It was also noticed that Act 30/1976 dealt with "Tarawad and its management and partition" (para 20 supra). While Act 30/1956 determined the succession on death, intestate or testamentary; Act 30/1976 created a division during the lifetime of a person. If Rajan died before 1.12.1976; his share remained a coparcenary property and would have gone to the surviving coparcener. Provisions of Act 30/1956 could not be replaced by Act 30/1976; nor could there be a plea of repugnancy because the Act 30/1956 is enacted by the Union and Act 30/1976 by the State. There is absolutely no overlap or even incidental ....
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.... Section 6, as substituted by Act 39/2005 is extracted for ready reference: 6. Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, - (a) by birth become coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. 17. The aforementioned provisions give no room for doubt. The provision applies only to coparcenary property surviving as on the date of enactment of the amended provision of the Hindu Succession Act. As noticed above, in the State of Kerala, after the enactment of....
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.... has to be proved by admissible evidence, i.e., by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". However, the situation was held to be different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as Exhibits by the Court. The plaintiff having not disputed the rent receipts, it was held, there was no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution. The reliance placed by the High Court on P.C. Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9 was approved by the Supreme Court. This was followed in Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC 476, wherein it was so held in para 15: A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and where for consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a....
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....bu by way of Exhibit A1 in 1956. Rajan and Babu were minors at that point. It is specifically stated that, Vasu was holding the same on behalf of the minors also till they attained majority. The death of Vasu as also the death of Rajan is evident from the recitals. The devolution of Vasu's share to the three children and Rajan's share to the defendant and the plaintiffs mother has also been stated. It is on the strength of such recitals that the aforesaid three vendors put their signature to Exhibit A2 document. The defendant too has signed on the document and he has not denied the same. Even in the written statement the defendant admits to the same, but dismisses the inclusion of the plaintiff as an expedient measure due to the ignorance of the vendee therein. Afterthought cannot substitute/extinguish specific recitals made in the deed. Vasu has been shown as having held the property till both Rajan and Babu attained majority. Babu, the defendant, was 53 when this appeal was filed in the year 2006. At the time of execution of Exhibit A1, i.e., 22.1.1956, the defendant would have been three years old. If Vasu survived till he attained majority, necessarily Vasu died after t....