IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 RSA.No. 1145 of 2006() ---------------------- AS.24/1999 of DISTRICT COURT, PATHANAMTHITTA OS.158/1995 of MUSNIFF COURT,ADOOR .................... APPELLANT/1ST RESPONDENT/PLAINTIFF: ------------------------------------------------ SINDHU AJAYAN, PLAMTHOTTIL VEEDU, MUDIYARAKONAM MURI, PANDALAM VILLAGE, ADOOR TALUK. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT(S)/APPELLANT & 2ND RESPONDENT/ DEFENDANTS; -------------------------- 1. DAMODARAN PILLAI, THARUPPOTTIL VEEDU, MUDIYARAKONAM MURI, PANDALAM VILLAGE, ADOOR TALUK. 2. SARANYA D. PILLAI, THARUPPOTTIL VEEDU, MUDIYARAKONAM MURI, PANDALAM VILALGE, ADOOR TALUK. * 3. JANAMMA, KUREEKKATTU VEEDU, THENGAMOM MURI, PALLICKAL VILLAGE, ADOOR TALUK. (DIED. RECORDED) ADV. SRI.C.B.SREEKUMAR FOR R.1 SRI.K.K.JAYARAJ NAMBIAR FOR R2 SRI.C.B.SREEKUMAR FOR ADDL.RES.R3 & R4 SRI.P.VIJAYAKUMAR FOR ADDL.R-3 Addl.R3 and R4 are impleaded as per order in IA.1713/08 ADDL.R3: JAYASREE.V., AGED 45 YEARS, W/O.LATE DAMODARAN PILLAI RESIDING AT THARIPOTTIL HOUSE, MUDIYARKONAM MURI, PANDALAM VILLAGE. ADDL.R4: APARNA D.PILLAI (MINOR), D/O.LATE DAMODARAN PILLAI, RESIDING AT THARIPOTTIL HOUSE, MUDIYARKONAM MURI, PANDALAM VILLAGE, REP. BY HER MOTHER AND NATURAL GUARDIAN SMT.JAYASREE.V * It is recorded that the sole appellant is the LR's of deceased R2 (R3 in IA.2977/09) as per order dt/18/12/09 on I.A.2977/09. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1145 OF 2006 --------------------------------------------- Dated 9th March, 2011 JUDGMENT Who will inherit to the property of a Hindu female inherited by her leaving no issues, from her mother and died intestate, when her father is alive, is the question to be settled in the second appeal. The appellant is the plaintiff and respondents 1 and 2 are defendants 1 and 3 in O.S.158/1995. Second defendant was a minor when the suit was instituted and was second appellant in A.S.24/1999. She died during the pendency of the first appeal unmarried and intestate. Appellant herein was declared her sole legal heir. Second respondent in the second appeal, the third defendant, RSA 1145/06 2 died after the filing of the second appeal. Additional respondents 3 and 4 got themselves impleaded in the second appeal claiming that they are the second wife and daughter of the first respondent, which fact was disputed by the appellant. They were impleaded without settling the said dispute. Additional fifth respondent was subsequently got impleaded as one of the legal heir of the deceased second respondent. 2. Plaint schedule property originally belonged to Sankariamma, daughter of third defendant. First defendant is her husband and plaintiff and second defendant are their daughters. On the death of Sankariamma, her rights devolved on her legal heirs. Plaintiff instituted the suit contending that on the death of Sankariamma 1/3 share devolved on her RSA 1145/06 3 and therefore, she is entitled to get that share separated. She admitted that defendants 2 and 3 are entitled to the remaining 1/3 share each. Defendants 1 and 2 filed joint written statement contending that first defendant is ready and willing to give the share of the plaintiff and he is in possession of the property for the second defendant also and plaintiff and third defendant had executed some other documents with respect to the plaint schedule property and O.S.433/1995 is pending. Third defendant filed a written statement contending that she had executed a settlement deed in respect of the plaint schedule property in favour of her daughter Sankariamma in 1971. But property is still in the possession of third defendant and she is cultivating the property. Sankariamma died on 19/2/1995 and on RSA 1145/06 4 her death plaintiff and defendants 2 and 3 alone are entitled to her property. Third defendant also raised a contention that subsequently the settlement deed executed in favour of Sankariamma was cancelled and thereafter a partition deed was executed whereunder 74 cents were given each to the plaintiff and second defendant and third defendant had taken 44 cents and therefore, suit for partition is not maintainable. 3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 and B1 to B5 found that under Ext.A1 settlement deed, third defendant had transferred her entire rights over plaint schedule property in favour of Sankariamma and it was accepted and acted upon and thereafter third defendant is not entitled to cancel the settlement deed and therefore, cancellation RSA 1145/06 5 deed No.922/1995 is void abinitio and hence partition deed No.3516/1995 is not having any validity. Finding that on the death of Sankariamma, her rights devolved on the plaintiff, defendants 2 and 3, learned Munsiff held that each of them is entitled to 1/3 share. A preliminary decree was passed directing division of the plaint schedule property into three equal shares and allotment of one such share to the plaintiff. Defendants 1 and 2 together challenged the judgment before District Court, Pathanamthitta in A.S.24/1999. Learned District Judge on re-appreciation of the evidence found that on the death of Sankariamma her rights devolved on her children, the plaintiff and second defendant as well as her mother, the third defendant and therefore, the preliminary decree is correct. RSA 1145/06 6 But taking note of the subsequent death of second defendant, learned District Judge modified the preliminary decree providing that on the death of the second defendant, her rights devolved on the first defendant. Preliminary decree was modified to the effect that the plaintiff is entitled to 1/3 share and defendants 1 and 3 are entitled to the remaining 1/3 share each. Second appeal is filed challenging the said judgment. 4. Second appeal was admitted formulating the following substantial questions of law. 1) What is the devolution of interest of a minor Hindu female died intestate ? 2) In the facts and circumstances of the case, whether the lower appellate court is right in holding that RSA 1145/06 7 father is the sole legal heir of a minor female Hindu died unmarried and is entitled to her 1/3 share. 5. Learned counsel appearing for the appellant and first respondent and additional fifth respondent were heard. 6. Third defendant who claimed that under Ext.A1 settlement deed Sankariamma did not obtain possession of the property and under Ext.B2 cancellation deed she had canclled Ext.A1, did not challenge the findings of the learned Munsiff that Ext.A1 settlement deed was accepted and acted upon and third defendant had no right to cancel Ext.A1 or execute Ext.B3 partition deed later. Therefore, the finding of the learned Munsiff that plaint schedule property belonged exclusively to Sankariamma on the date of her death RSA 1145/06 8 has become final. The question is, on the death of Sankariamma who will inherit her properties. Sankariamma admittedly died on 19/2/1995. As settled by the Full Bench of this court in Chellamma Kamalamma v. Narayana Pillai (1993 (1) KLT 174), as Sankariamma was born before 18/6/1956, the date when Hindu Succession Act, 1956 came into force and died after 1/12/1976, the date on which the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, inheritance of her properties would only be as provided under Section 17 of Hindu Succession Act. The Full Bench held; “We may finally summarise as follows: (1) S.17 of the Hindu Succession Act, 1956 will govern the law of succession on the death of males or females who were governed by the Marumakkathayam system if such persons were - RSA 1145/06 9 (i) living as on 18/6/1956 when the Hindu Succession Act, 1956 came into force and they died before 1/12/1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, (ii) living as on 18/6/1956 when the Hindu Succession Act, 1956 came into force and who dies on or after 1/12/1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, (iii) born on or after 18/6/1956 when the Hindu Succession Act, 1956 came into force and who died before 1/12/1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, and (iv) born on or after 18/6/1956 when the Hindu Succession Act, 1956 came into force but before 1/12/1976 and who died on or after 1/12/1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force. (2) S.17 of the Hindu Succession Act, 1956 will not, however, govern the law of succession of males or RSA 1145/06 10 females if such persons were born on or after 1/12/1976 and died thereafter. Succession to them would be governed by the provisions of the Hindu Succession Act, 1956 other than the provisions applicable to those governed by the Marumakkathayam system. (3) We approve the decision of the learned Single Judge in Madhavi Amma v. Kalliani Amma (1988 (2) KLT 964) and of the Division Bench in Bhaskaran v. Kalliani (1990 (2) KLT 749). We over-rule the observations to the contrary in Saraswathy Amma v. Radhamma (1990 (2) KLT 183).” 7. Therefore, as rightly found by the courts below on the death of Sankariamma her rights would devolve equally on her two daughters the plaintiff and the second defendant and her mother, the third defendant. First defendant, her husband will not inherit to the properties of Sankariamma who is RSA 1145/06 11 governed by Marumakkathayam Law of inheritance. Therefore, the findings of the courts below that on the death of Sankariamma plaintiff is entitled to 1/3 share each is perfectly correct. 8. The subsisting dispute is with regard to the 1/3 share of the deceased second defendant. Second defendant was a minor, aged six years at the time when the suit was instituted. It is admitted that she was born subsequent to 1/12/1976. Question is who will inherit to the properties of the second defendant. First question is whether the inheritance is as provided under Section 17 or 15 of Hindu Succession Act. As declared by the Full Bench, when the second defendant was born subsequent to coming into force of Kerala Joint Hindu Family System (Abolition) Act on RSA 1145/06 12 1/12/1976, the succession is governed not by under Section 17 of Hindu Succession Act but as governed by Section 15 of Hindu Succession Act. The settled position in Kamalamm's case (supra) is, “S.17 of the Hindu Succession Act, 1956 will not, however, govern the law of succession of males or females if such persons were born on or after 1/12/1976 and died thereafter. Succession to them would be governed by the provisions of the Hindu Succession Act, 1956 other than the provisions applicable to those governed by the Marumakkathayam system.” Then the question then is who will inherit to her properties. 9. Section 15 is the general rules of succession in the case of female Hindus and Section 16 provides the order of succession and RSA 1145/06 13 manner of distribution among heirs of a female Hindu. Sub Section 1 of Section 15 provides the rules of succession in the case of a female Hindu dying intestate, in the order set out in Section 16. Under Sub Section (1) of Section 15, the property shall devolve (a) firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband, (b)secondly, upon the heirs of the husband, (c)thirdly, upon own mother and father, (d)fourthly, upon the heirs of the father and (e)lastly, upon the heirs of the mother. As provided under Section 16, the order of succession among the heirs referred to under Section 15 shall be as provided under Rules 1 to 3. Under Sub Rule (1) among the heirs specified in Sub Section (1) of Section 15, those in one entry shall be RSA 1145/06 14 preferred to those in any succeeding entry, and those included in same entry shall take simultaneously. Therefore, if the deceased female is having husband or children including the children of predeceased children, as provided under Section 15(1) the property will devolve on them and neither the heirs of the husband of the deceased nor the heirs of the parents would inherit it. Sub Section (2) is an exception to Sub Section (1) of Section 15 with regard to the property inherited by the female Hindu from her parents or from her husband or from her father-in-law. Under clause (a) of Section 15(2) if any property was inherited by a female Hindu from her father or mother, on her death, shall devolve on, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son RSA 1145/06 15 or daughter) not upon the other heirs referred to in Sub Section (1) but only on the heirs of the father. Similarly, under clause (b) Sub Section 2 of Section 15, if any property is inherited by a female Hindu from her husband or from her father-in-law, such property shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased children), not upon the heirs referred to in Sub Section (1)but only upon the heirs of her husband. Intention of the Legislatures is clear. If the female Hindu inherited the property from her parents, such property on her death intestate, leaving no children or children of the deceased children, shall not devolve upon her husband, which would be the case of succession under Section 15(1)(a), but only upon the heirs of the RSA 1145/06 16 father. Similarly, in the case of a property inherited by the female Hindu from her husband or father-in-law, in the absence of children or children of the predeceased children, shall not devolve upon her parents or the heirs of her parents, but only upon the heirs of her husband. 10. The question of inheritance in the case can only be settled, bearing the provisions under Rule 3 of Section 16 of the Act. As stated earlier, clause (a) of Sub Section 2 of Section 15 provides the succession of any property inherited by the female from her parents. On her death, in the absence of children or deceased children, it shall devolve upon the heirs of her father. Rule 3 of Section 16, provides that the devolution of the property of the intestate, on the heirs RSA 1145/06 17 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 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. Therefore, Rule 3 of Section 16 provides that when a female dies intestate, leaving behind no children or children of the deceased children, and the property was inherited from her parents, only the heirs of the father would succeed to her estate. A fiction is provided in Rule 3 that the property of the father had to devolve as if such father had died intestate immediately after the intestate daughter's death. A combined reading of RSA 1145/06 18 Section 15(2) and Rule 3 of Section 16 makes the question clear that when the property left behind by the female Hindu, was inherited from her parents and she died intestate, leaving behind no children or children of the children, it will devolve only upon the heirs of the father. Though, it may appear that mother is excluded from such succession, as provided under Section 8, the property of a male Hindu dying intestate shall devolve firstly on class I heirs, which includes the widow. Hence the mother is not excluded under Sub Section 2 of Section 15, even though clause (a) does not provide that the property would devolve upon the mother, and only provides that it shall devolve upon the heirs of the father. 11. Then the question is whether the heirs of the father provided in clause (a) of RSA 1145/06 19 Sub Section 2 of Section 15 exclude the father and include only the heirs of the father. For a proper appreciation of the question it is profitable to extract clause (a) of Sub Section 2 of Section 15 as well as Rule 3 of Section 16. clause (a) of Sub Section 2 of Section 15 reads, “(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 or daughter (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 “ Rule 3 of Section 16 reads; “The devolution of the property of the intestate on the heirs RSA 1145/06 20 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.” 12. Under clause (a) Section 15(2) succession is not to the parents, not to the mother, not to the father but only to the heirs of the father. True, there cannot be a heir to the father, when the father is alive as in this case. The question is whether the fiction is to be applied even if the father was alive at the time of her death and thereby the father is excluded from succession. 13. An identical question was considered RSA 1145/06 21 by the Andhra Pradesh High Court in Bhimadas and others v. P.K.Kanthamma and others ( AIR 1974 (A.P) 266). Learned Single Judge interpreting Sub Section 2(a) of Section 15, followed the opinion of Prof.J.Duncan M.Derret in his Introduction to Modern Hindu Law at page 842, and held that as the section 15(2)(a) provides that property shall pass to the heirs of the father who turns out to be alive and hence as he has no heirs, it will not go to the Government as provided under Section 29 of Hindu Succession Act. It was held that it was an omission on the part of the Legislature and therefore, clause (a) of Sub Section 2 of Section 15 shall be read as “upon the father and in default of the father upon the heirs of the father” instead of upon the heirs of the father. His Lordship held. RSA 1145/06 22 “But a little closer examination shows that this interpretation is not correct. It should be noticed that there can be no question of the 'heirs of the father' during the lifetime of the father. There can be heirs only after a person is dead. Until he is dead there are only heirs-apparent. Therefore, a reasonable way of interpreting Section 15(2) would be to supply what was not intended to be omitted. Prof.J.Duncan M.Derrett in his 'Introduction to Modern Hindu Law' in paragraph 622 says: “The exceptions to the general rule are motivated by a clear (and traditional) desire that property shall not pass from family to family merely by a female's death intestate. Where property was inherited by her from her parent or parents, it shall not pass to her husband or to her husband's heirs where she dies without children or children of predeceased children. If such children or grand-children survive her there is no objection to RSA 1145/06 23 the husband taking a share even in such property, otherwise he is excluded, and so are his heirs, and the property goes to the 'heirs of the father'. The intelligent reader will at once exclaim what will happen if the property was inherited by her from her mother, and her father survives her? Since the section provides that it shall pass to the heirs of a person who turns out to be alive (and so has no heirs), should it go to the Government under HSA. S.29? The answer must be that here we have an example of the very rare phenomenon, the legislative provision which is absurd unless words are added. We are justified in reading 'upon the heirs of the father' as 'upon the father and in default of the father upon the heirs of the father', under the maxim of construing ut res magis valeat quam pereat.” That decision was challenged before the Division Bench of Andhra Pradesh High Court. RSA 1145/06 24 Division Bench in Pinkana Pasamma alias Janikamma and others v. Bhimadas and others (ILR ( 1977) A.P 418) . The Division Bench held that object of introducing clause (a) of Sub Section 2 of Section 15 is to see that such property shall not pass into the hands of the other heirs referred to in Sub Section 1, in the order specified therein, but shall devolve upon only on the heirs of the father and that position is made absolutely doubtless by Rule 3 of Section 16. The Division Bench held, “The effect of Section 15(2)(a) when read along with Rule 3 of Section 16 is that the property of a female Hindu dying intestate will not devolve upon the husband under Clause (a) of sub section (1) or on the heirs of the husband under Clause (b) of sub section (1), but will devolve upon the heirs of the father as if the father had died intestate RSA 1145/06 25 in respect thereof immediately after her death. The words “upon the heirs of the father” have therefore to be construed as if the father had died intestate immediately after the death of the female Hindu. We are, therefore, unable to agree with the learned Single Judge that the property should first devolve upon the father and it is only in default of the father that the property should devolve upon the heirs of the father.” 14. If Sub Section 2 of Section 15 is not there in the Act, when a female dies intestate and she is not having any son and daughter or children of any predeceased sons or daughters, her estate would devolve on the husband as provided under clause (a) of Sub Section 1 of Section 15. If the husband was not surviving at the time of her death, whether RSA 1145/06 26 the property of the female was inherited from her parents or her husband or the father-in- law, if sub Section 2 of Section 15 is not there, the property will devolve only upon the heirs of her husband as they are the only surviving heir as provided in clause (b) of Sub Section (1) of Section 15. If so, even if the husband had predeceased her, the property will not devolve on her parents or their heirs, as under Rule (1) of Section 16, those in one entry shall be preferred to those in any succeeding entry and when the heirs of the husband provided under clause (b) is available, heirs in clauses (c) to (e) will not inherit the property. It is to make an exception to the said succession in the case of property inherited her from her father, clause (a) in the case of property inherited from the husband RSA 1145/06 27 and in the case of a property inherited from her husband or her father-in-law, clause (b) of sub Section 2 of Section 15 was enacted providing that if the female Hindu had inherited the property from her parents, in the absence of the children or children of the predeceased children, it shall not devolve on her husband or the heirs of her husband and instead shall devolve upon the heirs of her father. Similarly, in the case of properties inherited from her husband and father-in-law, it is provided that the property shall not devolve upon her parents or the heirs of her parents as provided under clause (a) of Section 15(2) and instead shall devolve only upon the heirs of her husband, if she dies intestate and without leaving any children or children of the predeceased children. By clause RSA 1145/06 28 (a) of Sub