In the High Court of Judicature at Madras Dated: 13.08.2010 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.145 of 2002 and C.M.P.Nos.2034 and 2034 of 2008 G.Krishnamoorthy ..Appellant/ I Respondent/ I Defendant ..vs.. 1. Padmavathy 2. Girija 3. Rajan ..Respondents 1 to 3 / Appellants 1 to 3/ Plaintiff 1 to 3 4. G.P.Govindarajulu 5. G.Ram Mohan 6. R.Narayanasamy Naidu ..Respondents 4 to 6/ Respondents 4 to 6/ Defendants 2 to 4 Second Appeal under section 100 of Civil Procedure Code filed against the judgment and decree dated 28.09.2001 in A.S.No.22 of 2001 on the file of Principal Sub Court, Nagapattinam, reversing the judgment and decree dated 20.12.2000 in O.S.No.429 of 1999 on the file of District Munsif Court, Nagapattinam. For Appellant : Mr.N.Damodaran For Respondents : Ms.K.M.Nalinishree for R1 to R3 JUDGMENT This second appeal has been preferred against the judgment and decree dated 28.09.2001 made in A.S.No.22 of 2001 on the file of the Principal Sub Court, Nagapattinam, reversing the judgment and decree dated 20.12.2000 made in O.S.No.429 of 1999 on the file of the District Munsif Court, Nagapattinam. The 1st defendant is the appellant herein. https://hcservices.ecourts.gov.in/hcservices/ 2. The parties are related as under:- Perumal Naidu (died in 1908) | | ----------------------------- | | | 1st wife adopted son,(E) Ammathayee Ammal (second wife) | (Ramachandran) |(died in 1950) (A) ------------ | --------------- | | | | Venkatamma Seethalakshmi Damodaran Muthulakshmi=Muthukrishnan (C) (D) |(died) (died) (B) | (died) | | | ------------------- ----------------- | | | | | | | Widow daughter son Vatsala Damodaran | (Plaintiffs 1 to 3) (died) (died unmarried | | in 1995) | -------------- | | | (Brother) Husband Daughter Gopalsamy Rajaram Usha @ Pappa Naidu (died) (died) | | | Krishnamurthy(son) (1st defendant) 3. The case of the plaintiff, in brief, is as follows:- The suit properties were originally owned by one Perumal Naidu, son of Ayyanna Naidu of Virinjur Village. Perumal Naidu had two wives and the name of the second wife was Ammathayee Ammal, through whom, Perumal Naidu had only one daughter, by name, Muthulakshmi. Perumal Naidu's first wife also had only daughters, by name, Venkattamma and Seethalakshmi and no sons. Hence, Perumal Naidu had adopted one Ramachandra Naidu as his son, whose son was Damodara Naidu. The said Damodaran Naidu died leaving behind the plaintiffs, who are his widow and children. Perumal Naidu, while in his sound disposing state of mind, had left a Will dated 17.01.1908 and it was registered in the Sub Registrar's Office, Nagapattinam on 09.04.1908. In the said Will, 'A' schedule property was allotted to Ammathayee Ammal; 'B' schedule to Muthulakshmi; 'C' schedule to Venkatammal; 'D' schedule to Seethalakshmi and 'E' schedule to his adopted son. Ammathayee Ammal died on 12.10.1950. The adopted son of Perumal Naidu had predeceased Ammathayee Ammal and hence his only son Damodara Naidu and his wife Padmavathi (1st plaintiff) filed a suit in the District Court, Nagapattinam for recovery of possession of the properties in O.S.No.54 of 1953. In the said https://hcservices.ecourts.gov.in/hcservices/ suit, there was a compromise and as per the terms of which, the 'A' schedule property, which devolved on Muthulakshmi Ammal, on the death of Ammathayee Ammal, was shared between Muthulakshmi and Damodaran. Subsequently, Muthulakshmi and her husband Muthukrishnan died and their son, viz., Damodaran also died unmarried. Muthulakshmi's only daughter Vatsala got married to one Rajaram and they had one daughter viz., Usha @ Pappa. Vatsala also died. Thereafter, Usha and her father Rajaram also died on the same day on 27.06.1996. Therefore, all the properties of Muthulakshmi have devolved upon the heirs of her parents. The son of the adopted son, viz., Damodaran also died. Therefore, the plaintiffs are the heirs of Perumal Naidu and his second wife Ammathayee Ammal. 4. It is the further case of the plaintiffs that thereafter, one Gopalsamy, brother of Muthukrishnan, took possession of the properties of Muthulakshmi Ammal without any semblance of right and he also subsequently died within a year. Thereafter, one Krishnamoorthy, son of Gopalsamy, the 1st defendant, took possession of the properties of Muthulakshmi Ammal and he handed over the possession of the landed properties to defendants 2 to 4 under some agreement. After the death of Usha, the daughter of Vatsala, the properties of Muthulakshmi ought to have come into the hands of the plaintiffs, who are the legal heirs of Perumal Naidu. Gopalsamy Naidu, who is the brother of Muthukrishnan had no right whatsoever in the suit properties. Hence, the plaintiffs issued a lawyer's notice dated 11.07.1999 to hand over possession of the suit properties and filed the suit for recovery of possession and for future mesne profits. 5. On the contrary, it is the case of the 1st defendant that after the death of Muthulakshmi Ammal, her husband Muthukrishnan and her son Damodaran, who died unmarried, the only surviving legal heir was their daughter Vatsala and hence, the properties came into the hands of the daughter of Muthulakshmi Ammal and Muthukrishnan, viz., Vatsala. Subsequently, Vatsala also died leaving behind her husband Rajaram and daughter Usha @ Pappa. During the lifetime, Rajaram executed a Will dated 15.04.1996 in favour of the 1st defendant in respect of the properties. On 27.06.1996, Usha died in the morning and her father Rajaram died in the evening. Therefore, after the death of Usha, her father inherited the properties and after the death of Rajaram, the 1st defendant is entitled to the properties, according to the Will dated 15.04.1996 and the lands are also under cultivation by the tenants, namely, defendants 2 to 4 under this defendant. 6. On the basis of the above said pleadings, the trial court framed four issues and on behalf of the plaintiffs, the 3rd plaintiff was examined as P.W.1 and Exs.A-1 to A-5 were marked https://hcservices.ecourts.gov.in/hcservices/ and on the side of the defendants, the 1st defendant was examined as D.W.1 and one Rangaiyan was examined as D.W.2 and Exs.B-1 to B-13 were marked. On a consideration of the evidence, the trial court dismissed the suit holding that neither the plaintiffs nor the 1st defendant was entitled to the suit properties and that the suit properties became escheat due to the failure of heirs, as contemplated in Section 29 of the Hindu Succession Act. Aggrieved over this, the 1st defendant preferred A.S.No.5 of 2001 challenging the observation of the trial court on application of Section 29 and the plaintiffs preferred A.S.22 of 2001 before the Principal Sub Court, Nagapattinam, wherein the appellate court reversed the judgment of the trial court and allowed the appeal in A.S.No.22 of 2001 and decreed the suit as far as the relief of recovery of possession and directed the plaintiffs to file a separate application under Order 20 Rule 12 C.P.C.for mesne profits and dismissed the appeal filed by the 1st respondent in A.S.No.5 of 2001. Aggrieved over the dismissal of the appeal, the 1st defendant has come forward with the present second appeal. 7. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the lower appellate court erred in law and misdirected itself in granting the relief as prayed for by the plaintiffs by applying the provision section 8 of the Hindu Succession Act, 1956 to the facts of the present case when the property of a female Hindu shall devolve only as per section 15(1)(2) of the said Act ? (2) Whether the suit as framed by the plaintiffs without seeking for the relief of declaration of title to the suit properties especially when the first defendant/appellant is denying the title of the plaintiffs is maintainable in law ? (3) Whether the courts below erred in law and misdirected themselves in holding that Ex.A-13 Will executed by late Rajaram was not proved without adverting to and construing the said Will in its true perspective and without adverting to the evidence of D.W.2 the attesting witness to the said document ? (4) Whether the courts below are correct in holding that Usha alias Pappu died later and her father Rajaram died earlier in point of time by applying the provision of Section 21 of the Hindu Succession Act, 1956 when it is proved by the appellant herein that Rajaram died in the evening and his daughter died in the morning on the same day ? 8. Learned counsel for the appellant/1st defendant submitted that the trial court, by considering the entire evidence rightly https://hcservices.ecourts.gov.in/hcservices/ dismissed the suit by holding that since respondents 1 to 3/plaintiffs are the legal heirs of Perumal Naidu, they cannot succeed to the suit properties, which lastly devolved on the minor Usha, merely for the reason that Usha died without leaving behind any legal heirs. Further, the trial court, by adverting to Section 15 of the Hindu Succession Act, has come to a conclusion that the appellant cannot be construed as the legal heir in respect of the properties of a female Hindu dying intestate, held that since neither the appellant nor the respondents cannot succeed to the property, as per section 29 of the Hindu Succession Act, the property shall devolve on the Government and thereby dismissed the suit. But the appellate court, on a wrong interpretation of the provisions of the Hindu Succession Act, has come to a conclusion that as per section 8 of the said Act, which defines 'General Rules of succession in the case of males', the plaintiffs can succeed to the properties of Usha. Section 8 deals about the property of a male Hindu dying intestate and not female Hindu dying intestate. Therefore, by a wrong interpretation of the provisions of the Hindu Succession Act, the appellate court has reversed the finding of the trial court and under such circumstance, the second appeal has to be allowed by setting aside the decree and judgment of the appellate court. 9. Resisting the above, the learned counsel for respondents/ plaintiffs made elaborate arguments and submitted that under the Hindu Succession Act, these respondents are entitled to succeed to the properties of Usha as the legal heirs of Perumal Naidu. 10. Heard the learned counsel for the parties and perused the materials on record. 11. Admittedly, there is no dispute about the relationship of the parties. Originally, the suit properties belonged to Perumal Naidu, who is the ancestor of the respondents/plaintiffs and he was owning several properties in the village of Virinjur in Kilvelur Taluk. The said Perumal Naidu had two wives and Ammathayee Ammal as his second wife. Perumal Naidu had two daughters through his first wife and one daughter through his second wife and he had no male issue and hence, he adopted a son, by name, Ramachandran, whose son is Damodara Naidu. The 1st respondent is the widow and respondents 2 and 3 are the children of Damodara Naidu. Perumal Naidu, while he was in a sound disposing state of mind, executed a Will dated 17.01.1908, in which 'A' schedule property was allotted to Ammathayee Ammal, 'B' schedule property to Muthulakshmi, 'C' and 'D' schedules to his daughters through the first wife and 'E' schedule to his adopted https://hcservices.ecourts.gov.in/hcservices/ son. Ammathayee Ammal died on 12.10.1950. Since the adopted son of Perumal Naidu, namely, Ramachandran Naidu, predeceased Ammathayee Ammal, the share allotted to her under the Will dated 17.01.1908 came into the hands of of her daughter Muthulakshmi. Hence, the said Damadoran Naidu filed a suit against the said Muthulakshmi in respect of 'A' schedule property in O.S.No.54 of 1953, which ended in a compromise and a portion of 'A' schedule property was allotted to Muthulakshmi and another portion was allotted to Damodara Naidu and his wife (1st plaintiff.) Hence, Muthulakshmi became the owner of the 'B' schedule property and part of 'A' schedule property. Subsequently, the said Muthulakshmi died and her husband Muthukrishnan also died and their only daughter Vatsala, who got married to Rajaram, also died, leaving behind her only daughter Usha @ Pappa. Muthulakshmi's son Damodaran also died unmarried. Hence, all the properties of Muthulakshmi had devolved upon her only grand daughter Usha. Subsequently, on 27.06.1996, Usha died unmarried and her father Rajaram also died on the same day evening. 12. It is the case of respondents 1 to 3/plaintiffs that after the death of Usha, the properties devolved upon her from her ancestor Muthulakshmi will revert back to respondents 1 to 3 as the legal heirs of Perumal Naidu. But, according to the appellant, the father of Usha had executed a Will dated 15.04.1996 i.e.few months prior to his death, in favour of the appellant/1st defendant, viz., Krishnamurthy, the son of Gopalsamy Naidu, who is the brother of Muthukrishnan (the husband of Muthulakshmi) and he had handed over possession of the landed properties to respondents 4 to 6 herein as tenants. Hence, the 2nd respondent/2nd plaintiff issued a legal notice dated 11.07.1999 to the appellant and respondents 4 to 6 asking them to hand over possession of the properties. The appellant did not receive the notice, whereas others had received the same. Under such circumstances, the respondents 1 to 3 have filed the suit for recovery of possession of the suit properties. 13. From the above facts, it could be understood that it is the case of respondents 1 to 3 that as the legal heirs of Perumal Naidu, they are entitled to the suit properties, which devolved upon Usha from Muthulakshmi, whereas it is the case of the appellant that the father of Usha executed a Will dated 15.04.1996 in his favour and he is entitled to the suit properties. It is the further case of the appellant that on 27.06.1996 morning, Usha, the daughter of Rajaram died and as such, the properties were devolved upon him and he also died on the same day evening. Therefore, at the time of death of Usha, Rajaram was the absolute owner of the schedule properties and under such circumstances, as per the Will executed by Rajaram, https://hcservices.ecourts.gov.in/hcservices/ the appellant is entitled to the properties. It is the further contention of the appellant that since he is disputing the title of respondents 1 to 3 over the suit properties, the suit filed by them for recovery of possession without the prayer for declaration is not maintainable. 14. On a perusal of the trial court judgment, I find that the trial court has come to the conclusion that though it was claimed by the appellant that Usha died in the morning and her father died in the evening on the same day, no tangible proof was produced by the appellant to prove their death. Under such circumstances, the trial court, by drawing the presumption under Section 21 of the Hindu succession Act i.e. 'the younger survived the elder' has held that it has to be construed that the father died in the morning and the daughter died in the evening and that the entire properties lastly devolved upon only Usha and not on Rajaram. Thereafter, the trial court, by adverting to Section 15 of the Hindu Succession Act that the devolvement of the properties of a female Hindu dying intestate, has come to the conclusion that respondents 1 to 3 cannot succeed to the properties of the Hindu female dying intestate since respondents 1 to 3 will not come under 'Class I heirs' as mentioned in section 15 and under such circumstances, neither the appellant nor respondents 1 to 3 cannot succeed to the properties and hence, as per section 29 of the said Act, the properties have to be devolved on the Government since, in accordance with the provisions of this Act, the intestate had left no heir, qualified to succeed to his or her property. Aggrieved over the dismissal of the suit, the respondents 1 to 3 herein filed an appeal before the first appellate court, which set aside the finding of the trial court, by adverting to section 8 of the said Act and held that since Usha died unmarried, the properties will revert back to Muthulakshmi and from Muthulakshmi, it will revert back to Ammathayee Ammal and as the legal heirs of Perumal Naudi, respondents 1 to 3 are entitled to inherit the properties as per Section 8 of the Act. 15. In view of the two different findings of the courts below, the question that has to be decided in this appeal is, whether Section 15 will decide the inheritance ? or section 8 will decide the inheritance ? Sections 8 and 15 are extracted hereunder. "8. General rules of succession in the case of males: The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; https://hcservices.ecourts.gov.in/hcservices/ (b) secondly, if there is no heir of class I, then upon the heirs being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased". "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 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 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. A reading of Section 15 shows that firstly, the property will devolve upon the sons and daughters including the children of any pre-deceased son or daughter and the husband of the intestate. But, in the instant case, Usha died unmarried and secondly ,upon the heirs of the husband, thirdly, upon the mother and father, fourthly upon the heirs of the father and lastly https://hcservices.ecourts.gov.in/hcservices/ upon the heirs of the mother. Since Usha died and her father and mother pre-deceased her, none of the legal heirs mentioned in Section 15 are available to succeed to the properties on the date of death of Usha. So far as the respondents 1 to 3/plaintiffs are concerned, they cannot be construed as the legal heirs of the mother and father of Usha. Therefore, the trial court, by relying upon section 15, has come to the conclusion that neither the appellant nor respondents 1 to 3 are entitled to succeed to the suit properties. But, the appellate court, by relying upon section 8 of the said Act, set aside the judgment of the trial court. Section 8 deals about the property of a male Hindu dying intestate. But the said section can be applied only in case of death of a male Hindu dying intestate. In the instant case, as on the date of death of Usha, section 8 cannot be applied because Usha died as a female Hindu dying intestate. Moreover, her father, mother, brother, grandfather and grandmother have all predeceased on the date of death of Usha. In those circumstances, the question of applying section 8 to the fats of the present case is patently illegal. Therefore, I am of the opinion that the appellate court has committed a blatant error in setting aside the well founded judgment of the trial court and consequently, the judgment and decree of the appellate court are liable to be set aside. 17. Moreover, as contended by the learned counsel for the appellant, when the title of respondents 1 to 3 over the suit properties was disputed, the suit filed by respondents 1 to 3 without the relief of declaration of title is not maintainable. In my considered opinion, the questions of law framed by this court are answered in favour of the appellant. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside by confirming the judgment and decree of the trial court. No costs. Consequently, connected C.M.Ps.are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gl https://hcservices.ecourts.gov.in/hcservices/ To 1) The Principal Subordinate Judge, Nagapattinam. 2) The District Munsif, Nagapattinam. 3.The Record Keeper, V.R.Section, High Court,Madras. Second Appeal No.145 of 2002 BS (CO) kk 22/10 https://hcservices.ecourts.gov.in/hcservices/