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1951 DIGILAW 104 (KER)

Krishna Iyer v. Lekshmi Ammal

1951-09-06

KOSHI, SUBRAMONIA.IYER

body1951
Judgment :- 1. The appellant in this Second Appeal obtained a decree for money against the assets of one deceased Devanarayana Iyer in O.S. 282/1090 on the file of the Munsiffs Court of Krishnapuram, impleading the widow, sister, and mother's sister of the deceased, as defendants 3, 2 and 1 respectively. In execution of that decree, certain items of properties were attached as forming part of the estate of the deceased. Defendants 1 and 2 preferred objections to the attachment, claiming the properties as heirs of the other of the first defendant who is the grand mother of the 2nd defendant as also of the Devanarayana Iyer. The trial Court over-ruled the objections but in appeal, the Temporary Second Judge of Mavelikara took a different view and upheld the objections. Hence this Second Appeal by the decree holder. 2. The following geneology is necessary to elucidate the question that arises in the case:- Table:#1 3. The admitted facts are that the properties belonged to Janardana Iyer on whose death they devolved upon his grand-daughter Lekshmi Ammal, the two daughters having predeceased him. The first and third daughters of Lekshmi Ammal predeceased her who died leaving her surviving daughter the 1st defendant, her grand daughter the 2nd defendant and her grandson Devanarayana Iyer who was the husband of 3rd defendant. 4. The contention of the claimants viz., that on Lekshmi Ammal's death the proeprties devolved upon the 1st defendant as her heir, found favour with the lower apellate court which took the view that Devanarayana Iyer was only a reversioner who could take only when the reversion opens, that is, on the death of the 1st defendant and that he having predeceased the 1st defendant, had no rights over the properties. 5. The only question that arises in this Second Appeal is as to upon whom the properties devolved, whether on the 1st defendant or on the deceased Devanarayana Iyer. It is admitted that the parties are governed by the Hindu (Mithakshara) Law. According to that law, if the heir of the last male owner is himself a male, then he becomes a stock of descent and at his death the devolution of the property is traced from him. But if the heir is a female, she does not, except in Bombay, become a fresh stock of discent. According to that law, if the heir of the last male owner is himself a male, then he becomes a stock of descent and at his death the devolution of the property is traced from him. But if the heir is a female, she does not, except in Bombay, become a fresh stock of discent. At her death the property passes not to her heirs but to lose of the last male holder, that is to say, the male holder will be deemed by the law as having lived up to and died at the moment of the death of the female heir. The principle is well established. (See Moniram Kolita v. Kerri Kolitani 1880 (7) IA 115, Lakshmi Ammal v. Ananthrama ILR (1937) Mad., 948 F.B., Mayne's Hindu Law and Usage, 11th Edition 1950, 585, Paragraph 482). 6. To determine the devolution of the property after the death of Lekshmi Ammal, it is therefore necessary to consider who is the preferential heir to the deceased Janardana Iyer as between defendants 1 and 2 and deceased Devanarayana Iyer who are all bandhus in relation to the propositus. As between the bandhus the male bandhus take precedence over female bandhus though the latter be of a nearer degree of relationship to the deceased. This principle again is well established (See Rajah Venkatta v. Raja Surenani (1908) 31 Mad. 321, Kenchava v. Girimallappa (1924) 51 I.A. 368 Jaganatham v. Adilakshmi I.L.R. (1940) Mad. 421, Tirchendur Sivathwaja Matam v. Sami Bhattar (1949)1 M.L.J. 448, Mayne's Hindu Law and Usage 11th edition, 1950, page 666, paragraph 533) Devanarayana Iyer who is the male ban takes the properties in question which are, therefore, liable to be attached for the decree. 7. The Second Appeal should, be allowed. The decree appealed against is set aside and that of the allowed. Munsiff restored. The respondent will pay the costs of the appellant here and in both the courts below.