IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:13.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.385 of 2010 and M.P.No.1 of 2010 N.Lakshmi .. Appellant/Plaintiff vs. 1. Saraswathi Ammal 2. K.G.Lingaraj .. Respondents/Defendants This second appeal is filed under Sec.100 of CPC against the common decree and judgment dated 20.10.2009 of learned Subordinate Judge of Vellore allowing the First Appeal No.63 of 2008 and reversing the well considered decree and judgment dated 03.09.2007 and dismissing the same of the learned Principal District Munsif, Vellore, Vellore (District) in O.S.No.1079 of 2004 (Original Suit No.220 of 2002 Vellore Sub Court). For Appellant : Mr.K.N.Pandian For R1 : Mr.A.Rajendra Kumar J U D G M E N T This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 20.10.2009 passed in A.S.No.63 of 2008 by the learned Subordinate Judge of Vellore, in reversing the judgment and decree of the learned Principal District Munsif, Vellore, Vellore (District), in O.S.No.220 of 2002. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (i) The plaintiff filed the suit for partition of the suit properties into two halves and for allotment of one half in her favour on the ground that she happened to be the daughter of one https://hcservices.ecourts.gov.in/hcservices/ Ranganayaki Ammal, who happened to be the mother of her deceased son Margabandhu, who died on 30.08.1998 leaving behind as his legal heirs the said Ranganayaki Ammal and his wife Saraswathi Ammal, D1 herein. (ii) The plaint was resisted by D1, Saraswathi Ammal. D2/Lingaraj happened to be the purchaser of the second item of the suit property from the former. Hence, D2 also filed the written statement. Whereupon, issues were framed. (iii) During trial, on the plaintiff's side P.W.1 and P.W.2 were examined Exs.A1 to A8 were marked. The defendants examined themselves as D.W.1 and D.W.2 on their side and Exs.B1 and B2 were marked. 4. Ultimately, the trial Court decreed the suit allotting half share in the entire suit property in favour of the plaintiff. Even though Will was relied on by the plaintiff, yet that was negatived. However, based on the plaintiff's heirship to her mother deceased Ranganayaki, half share was allotted in her favour.. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, D1/Saraswathi Ammal filed A.S.No.63 of 2008, which was allowed. However, A.S.No.11 of 2008 filed by D2 was dismissed, as against which no Second Appeal was filed. 5. Challenging and impugning the allowing of A.S.No.63 of 2008 filed by D1, the Second Appeal has been filed on various grounds, the gist and kernel of them would run thus: The first appellate Court throwing to winds the provision of Section 15(1) of the Hindu Succession Act, simply reversed the reasoned judgment and decree of the trial Court and ultimately dismissed the suit of the plaintiff. 6. After hearing both sides, my learned Predecessor formulated the following substantial questions of law: "1. Whether the lower appellate Court has erroneously failed to apply the provisions of Section 15(1) of the Hindu Succession Act, 1956 to the facts of the case? 2. Whether the lower appellate Court has committed an error in law in omitting to consider the applicability of Section 15(1) of the Hindu Succession Act to test the admissibility of the claim made by the appellant/plaintiff de hors the Will propounded by the appellant/plaintiff? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the finding of the lower Appellate Court regarding genuineness and validity of the Will is perverse?" (extracted as such) 7. The facts of this case lie within a narrow campus. Indubitably and indisputably, unarguably and unassailably, one deceased Margabandhu happened to be the absolute owner of the suit property. He died issueless leaving behind his wife D1/Saraswathi Ammal and his mother Ranganayaki. Whereupon it is understandable that as on the date of his death, as per Section 8 read with the relevant Schedule of the Hindu Succession Act, the said Ranganayaki and Saraswathi Ammal were entitled to half share each in the properties of the deceased Margabandhu. While so, Saraswathi Ammal without respecting that settled legal position, arbitrarily sold the second item of the suit property in favour of D2. The trial Court correctly took note of the legal position and rendered its finding by holding that Ranganayaki and D1 were entitled to half share each in the entire suit properties. It is also an admitted factual position that the said Ranganayaki died leaving behind his daughter Lakshmi. In such a case, the trial court correctly applied Section 15(1) of the Hindu Succession Act and held that the half share of Ranganayaki devolved upon Lakshmi. Whereas, the learned appellate Court without any rhyme or reason went to the extent of discussing certain irrelevant facts and assumed and presumed without au fait with law and au courant with facts as though even for argument sake Ranganayaki was taken as one of the heirs, she might have been entitled to 1/4th share in the entire property and 3/4th share might have devolved upon D1. 8. I am at a loss to understand as to what was the ratiocination behind such a finding by the appellate Court. By way of making the matters worst, the first appellate Judge instead of atleast modifying the decree according to her own view, simply dismissed the entire original suit, to the shock and surprise of this Court; to say the least, the first appellate Judge should have kept herself well informed of the civil law. 9. The learned counsel for the D1/first respondent would submit that on the death of Ranganayaki it could be taken that her daughter Lakshmi and her pre-deceased son's widow, were the legal heirs of Ranganayaki and for that he would try to usher in clause (b) of sub Section 1 of Section 15 of the Hindu Succession Act to the effect that Ranganayaki's husband's heirs also could be taken as heirs and accordingly as per him, Margabandhu's wife could be taken as the heir of Ranganayaki's husband. Such an argument fails to carry conviction with this Court for the reason that Section 16 of the Hindu Succession Act clarifies the position that heirs in one sub clause would exclude the heirs in the other sub clause. Accordingly if viewed, Lakshmi alone who happened to be the daughter covered by https://hcservices.ecourts.gov.in/hcservices/ clause (a) of sub Section (1) of Section 15 of the Hindu Succession Act could be treated as the heir of Ranganayaki and not her daughter- in-law, who happened to be the widow of her son Margabandhu. 10. Sections 15 and 16 of the Hindu Succession Act are extracted hereunder for ready reference. "15. General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16.- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1).- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son on daughter of the deceased (including the children of any pre- deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. 16. Order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in section 15 shall be, and the distribution of https://hcservices.ecourts.gov.in/hcservices/ the intestate's property among those heirs shall take place, according to the following rules, namely:- Rule 1.- Among the heirs specified in sub- section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death." 11. A mere reading of the above provisions would amply make the point clear that the appellate Court fell into error in not taking into account the relevant provision of law and decided the lis. The learned counsel for the first respondent would try to canvass the case that the plaintiff approached the Court with unclean hands as both the Courts below gave the findings in the judgment that the Will executed by Ranganayaki was not a genuine one and in such a case, the plaintiff should have been non-suited, for which the learned counsel for the plaintiff would submit that the trial Court appropriately and appositely, correctly and convincingly pointed out that even de hors the Will, the said Lakshmi happened to be the legal heir of Ranganayaki Ammal and on that ground she was entitled to half share, which Ranganayaki Ammal inherited from her son in the entire suit properties. As such, I would like to confirm the view taken by the trial Court and set aside the judgment and decree of the appellate Court. 12. The trial Court also au fait with law and au courant with facts, observed that the right of D2 in having purchased the second item of D1 would be dealt with at the time of final decree proceedings. I make it clear that during final decree proceedings, https://hcservices.ecourts.gov.in/hcservices/ equity could be worked out depending upon the facts and circumstances of the case, which would be placed before the Court in respect of the alienation made by D1 in favour of D2. At the most, the property which D1 sold in favour of D2 could be allowed notionally in favour of D1, if at all that would not cause inconvenience to the plaintiff. 13. Accordingly, substantial question of law Nos.1 to 3 are answered in favour of the plaintiff and as against the defendants. Ultimately the judgment of the appellate Court is set aside in toto and the judgment of the trial Court is restored in full. Accordingly, the Second Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gms To 1. The Subordinate Judge, Vellore. 2.The Principal District Munsif, Vellore, Vellore (District). 3.The Section Officer, V.R.Section, High Court, Madras-104. 1 cc to Mr.K.N.Pandian, Advocate, Sr.No.88816 S.A.No.385 of 2010 GV {CO} TP/31.12.2010. https://hcservices.ecourts.gov.in/hcservices/