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1972 DIGILAW 235 (MAD)

Nesamma Nadachi v. Muthubkannu Nadar Paul Nadar

1972-04-05

K.VEERASWAMI, V.V.RAGHAVAN

body1972
ORDER.- The Civil Revision Petition raises an interesting question of Hindu law, on which there is no authoritative decision of this Court. Petitioner Nesamma Nadachi is the full sister of the plaintiff in O.S.No. 635 of 1967 on the file of the Court of the District Munsif of Padmanabhapuram, who died on 17th July, 1968. The respondent Muthukkannu Nadar Paul Nadar is the stepbrother of the deceased-plaintiff and on his application both the petitioner and the respondent were held to be the legal heirs of the deceased-plaintiff and the respondent has been impleaded as the second plaintiff in the suit. 2. The question for consideration in this Civil Revision Petition is whether the petitioner-defendant, as the full sister of the deceased-plaintiff excludes the respondent-step brother of the deceased plaintiff, by virtue of section 18 of the Hindu Succession Act. Section 18 of the Hindu Succession Act is as follows:- "Heirs related to an intestate by full blood shall be preferred to heirs related by half-blood, if the nature of the relationship is the same in every other respect." In Mullah’s Principles of Hindu Law, 13th Edn., at page 852, it is stated that section 18 of the Hindu Succession "Act is a substantial reproduction of the rule of Hindu law whereby relations of the whole blood are preferred to those of the half-blood. In fact at page 918 of N.R. Raghavachariar’s Hindu Law, 5th Edn., the same view is expressed and it is pointed out that even under the Hindu Law prior to the Hindu Succession Act, in the case of the same degree of relationship to the propositus, the whole blood excluded the half-blood. It appears from the same page of the above text book that having regard to the general scheme of the Hindu law of succession, the preference of the whole blood is confined to the relation of the same degree. At page 852 in Mulla’s Principles of Hindu Law, 13th Edition, the learned author has observed that the words "if the nature of relationship is the same" in every other respect in section 18 of the Hindu Succession Act may require judicial interpretation. At page 852 in Mulla’s Principles of Hindu Law, 13th Edition, the learned author has observed that the words "if the nature of relationship is the same" in every other respect in section 18 of the Hindu Succession Act may require judicial interpretation. The learned author has rightly pointed out that it is plain that a full brother is preferred to a half-brother and a full sister is preferred to a half-sister, and he has observed that a doubt may perhaps be raised as to whether the nature of the relationship with the intestate of his brother and sister enumerated in Entry II of Glass II of the Schedule can be said to be the same in every respect, and a full brother would be preferred to a half-sister or a full sister would be preferred to a half-brother and the same doubt may be raised in other cases where the competing heirs are similarly related to the intestate. He has proceeded to observe as follows:- “The rules of preference applicable to agnates and cognates of a male intestate emphasize that the nearness of relationship recognised under the Act depends in their case on the number of degrees of ascent and descent and the same doubt may perhaps be raised in case of some of those relatives. The section speaks of the nature of relationship being the same and it would seem that in all such cases heirs related to an intestate by full blood would be preferred to heirs related by half-blood having regard inter alia to the nature of relationship indicated in the scheme of the Act itself. The meaning of the words ‘nature of relationship’ must be found in the sense in which they best harmonise with the scheme and object of the Act and not so much on a strictly etymological propriety of language. The general scheme of succession under the Act is to treat the son and the daughter in equalijure and to regulate the order of succession having regard to the degree of kindred to him. It is, therefore, submitted that since a brother and a sister of the intestate stand in the same degree of relation to him the nature of their relationship with the intestate is the same in every other respect.”. It is, therefore, submitted that since a brother and a sister of the intestate stand in the same degree of relation to him the nature of their relationship with the intestate is the same in every other respect.”. At page 914 of N.R. Raghavachariar’s Hindu Law, 5th Edn., it is stated that a brother may be a brother of full blood or half-blood; but if there is a full blood brother he excludes the brother related only by half-blood. But the learned author has proceeded to point out an anomaly under which brother and sister are two of the simultaneous heirs and stated that in a particular case there is a full brother, a half-brother and a half-sister, the full brother and the half-sister will inherit the property of a deceased person, but the half-brother will be excluded. The learned author states that it is impossible to see, why a half-sister should come in while a half-brother should go out, in such a group of heirs and suggests that one way of avoiding this anomaly is to hold that a full brother or full sister will exclude both a half-brother and half-sister. 3. In Rangammav. Annapurnamma1, the question arose under the following circumstances: A had two daughters B and C from his first wife and a daughter D from, his second wife. After A’s death, his junior wife was in possession of the property as a limited owner, as his senior wife had pre-deceased him. After her death, B brought a suit against C and D for partition. After preliminary decree B died. A question arose whether C the full sister was the sole heir of B or whether D who was only a half-sister was also entitled to be brought on record as a legal representative of B who had died intestate after the Hindu Succession Act come into force. After preliminary decree B died. A question arose whether C the full sister was the sole heir of B or whether D who was only a half-sister was also entitled to be brought on record as a legal representative of B who had died intestate after the Hindu Succession Act come into force. It was held that the succession to B was regulated by section 15 (2) of the Hindu Succession Act and that her heirs were the heirs of her father ‘A’; that the rule contained in section 18 of the Act that in all cases of succession the heir related to an intestate by full blood should be preferred to the heir related by half-blood, should be applied too as falling within section 15 (2) of the Act; and that thus C was the sole heir of B, who was a full sister and was alone entitled to be susbtituted in her place. It was pointed out in this decision that “Upon this interpretation some incongruities were possible, but it would not constitute any justification in departing from the interpretation which its plain language fully justified”. The Advocate for the unsuccessful petitioner in that case pointed out that the principle of an illustration appearing in the commentary to the book on Hindu Law by Mulla (12th Edn.) under section 18 was diametrically opposed to the principle of another illustration appearing in the commentary to section 15 of the Act. In the eighth illustration appearing in the commentary to section 18, what the learned author has done is to give effect to the principle incorporated in section 18 and to say that in circumstances similar to those in the present case a half-sister was excluded by a full sister. But in the third illustration appearing under the commentary to section 15, this principle has been overlooked and it is stated that a brother and a step-brother were both entitled to shares in the property of the sister. This illustration has been remodelled after the error in it was pointed out in Rangamma v. Annapurnamma1, as stated in the foot-note at page 842 of Mulla’s Hindu Law, Thirteenth Edition. 4. In Swaran Singh and others v. Shrimati Dhan Kaur and others2, the same question arising as in the present Civil Revision Petition came up for consideration. This illustration has been remodelled after the error in it was pointed out in Rangamma v. Annapurnamma1, as stated in the foot-note at page 842 of Mulla’s Hindu Law, Thirteenth Edition. 4. In Swaran Singh and others v. Shrimati Dhan Kaur and others2, the same question arising as in the present Civil Revision Petition came up for consideration. It was held in that decision that so far as the brothers and sisters in Entry II, Class II of the Schedule to the Hindu Succession Act are concerned, they are the children of the deceased father and therefore the nature of their relationship must be taken to be the same, with the result that the full brother of the deceased would exclude a half-sister. The said decision clearly supports the claim of the petitioner in this case. 5. Having regard to the fact that there is no authoritative decision of this Court on this point, I am of opinion that the question involved in this revision petition should be decided by a Bench of this Court. The Civil Revision Petition is therefore directed to be placed before His Lordship the Chief Justice for being referred to a Bench for decision. Pursuant to the above order the petition came on for hearing before the Bench (Veeraswami, C.J. and V. V. Raghavan, J.) T.R. Rajagopalan, for Petitioner. P. Ananthakrishnan Nair, for Respondent. The Judgment of the Court was delivered by Veeraswami, C.J.-we are unable to see any point in the Civil Revision Petition. The order of the Court below, which is sought to be revised, merely directed that the half-brother of the plaintiff and his sister, defendant, should be regarded as the legal representatives of the deceased. That is only for purposes of conducting the litigation and for representation of the deceased’s estate. That cannot be regarded as a final decision On the question, who is the heir of the deceased. Apparently, as a question of law, Sadasivam, J., thought fit to refer the revision petition itself for disposal by a Division Bench. But this is a revision under section 115 of the Code of Civil Procedure and no question of jurisdiction arises. A mere question of law can in no sense be regarded as one involving jurisdiction. Nor is there any question of material irregularity. But this is a revision under section 115 of the Code of Civil Procedure and no question of jurisdiction arises. A mere question of law can in no sense be regarded as one involving jurisdiction. Nor is there any question of material irregularity. In the circumstances, all that we need say is that the decision to bring the half-brother and the sister, defendant, on record as the legal representatives of the deceased should not be taken as concluding the question as to who is the heir of the deceased plaintiff. That will have to be decided in the main suit. Subject to these observations the petition is dismissed. No costs. S.J. ------------- Petition dismissed.