A. S. Mythili v. Ramasamy Battachariyer — 1999 DIGILAW 1046 (MAD)

Judgment : 1. Plaintiff in O.S.No.349 of 1990 on the file of Principal District Munsif, Trivellore, is the appellant. suit filed by the plaintiff was one for declaration that plaint scheduled property belong to her absolutely and for recovery of possession from the defendant. The material averments in the plaint could be summarised thus: 2. The property originally belonged to late Sami Battachariyar who had two sons viz., Anantha Battachariyar and Seshu Battachariyar. He had also a daughter by name Rajammal. 3. One of the sons Anantha Battachariyar died on 17. 1970 and the other son Sashu Battachariyar died on 112. 1974. Ananatha Battachariyar had a son by name Sethurama Batachari, he also died on 15. 1975. The plaintiff is his widow. I have already stated that Sami Battachariyar had a daughter by name Rajammal, her son Srirama Battachari is the defendant in the suit. 4. It is admitted that between two sons there was partition and all terms plaint items were allotted to the share of Seshu Battachariyar. After Seshu Battachariyar death the same devolved upon his wife Kalyani who is none other than the sister of the defendant. Kalyani died on 7. 1987. According to the plaintiff, she is entitled to the ownership of the plaint scheduled properties under Section 15(1) of the Hindu Succession Act. According to her, she being the daughter-in-law of Anantha Battachariyar who is none other than elder brother of Seshu Battachariyar, she is entitled to succeed the estate of the deceased and she is entitled to recover the property from the defendant. 5. As against the said contention, the defendant contended that under Hindu Succession Act, he alone will be the legal heir and not the plaintiff. 6. Both the Courts held that the defendant is only the sole legal heir and not the plaintiff and dismissed the suit. The trial Court marked Exs.A.1 to A.5 on the side of plaintiff who got herself examined as P.W.1. The defendant got himself examined as D.W.1 and Exs.B.1 and B.2 were examined on his side. 7. The following substantial questions of law have been raised in the memorandum of appeal: .(A) Whether the courts below are right in its appreciation of Section 15(1)(b) and Section 8 f Hindu Succession Act in coming to the conclusion that the plaintiff is not a legal heir and not entitled to any where in the suit property? 7. The following substantial questions of law have been raised in the memorandum of appeal: .(A) Whether the courts below are right in its appreciation of Section 15(1)(b) and Section 8 f Hindu Succession Act in coming to the conclusion that the plaintiff is not a legal heir and not entitled to any where in the suit property? .(B) Whether the Lower Court are right in considering Exs.B1 in coming to the conclusion that the defendant is the legal heir of Sesha Battachariyar and Kalyani Ammal? .(C) Whether the Lower courts had properly appreciated the evidence on record in coming to a conclusion that the plaintiff is not entitled to any share in the suit properties? 8. Since caveat was entered by the respondent, I heard the second appeal at the admission stage itself. 9. The only question to be considered is, whether the plaintiff is entitled for declaration asked for as if she is the sole legal heir of late Seshu Battachariyar. 10. As per Ex.A.1 dated 16. 1963, Anantha Battachariyar and his brother Seshu Battachariyar got divided and the plaint property was allotted to the share of Seshu Battachariyar. Seshu Battachariyar and his wife is Kalyani did not have any issues. Seshu Battachariyar died on 112. 1974 and the death certificate was marked as Ex.A.3. His widow Kalyani died on 17. 1987, Ex.A.5 is the death certificate. The question to be considered is, whether the plaintiff can be considered as legal heir. Section 15 of the Hindu Succession Act reads thus: "15. Seshu Battachariyar died on 112. 1974 and the death certificate was marked as Ex.A.3. His widow Kalyani died on 17. 1987, Ex.A.5 is the death certificate. The question to be considered is, whether the plaintiff can be considered as legal heir. Section 15 of the Hindu Succession Act reads thus: "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 rule set out in section 16,— .(a) firstly, upon the sons and the daughters (including the children of any pre-deceased son or daughter) and also the husband; .(b) secondly, upon the heirs of the husband; .(c) thirdly, upon the mother and father .(d) fouthly, 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 so or daughter of the deceased (including the children of any predeceased 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." 12. In this case, Kalyani obtained the right from her husband and since she had no issues, succession will be according to the Section 15(2(b) of the Act. Section 16(3) is also relevant for out purpose which provide the rules regarding Order of succession and manner of distribution among heirs of a female Hindu. In this case, Kalyani obtained the right from her husband and since she had no issues, succession will be according to the Section 15(2(b) of the Act. Section 16(3) is also relevant for out purpose which provide the rules regarding Order of succession and manner of distribution among heirs of a female Hindu. Rule 3 provide thus: "Rule 3 — The devolution of the property of the intestate on the heirs referred to in clo.(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 fathers, of the mothers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death." On the basis of this rule, Seshu Battachariyar must be deemed to have died immediately after the death of Kalyani. Naturally, we have to take into consideration the provision of Section 8 which deals with succession in the case of males. Under Section 8, the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter firstly, upon the heirs, being the relatives specified in Class I of the Schedule. It is admitted that neither the plaintiff not the defendant are relatives specified in Class I of the Schedule. In the absence of relatives specified in Class I of the Schedule, the property will devolve upon the relatives specified in class II of the Schedule. There are no relations specified in clause 1,2, and 3 to Section 8. In Clause 4, the defendant will be a legal heir i.e. sisters son. So far as the plaintiff is concerned, she will not come under any group in Class II. In view of the applicability of Section 8, Class II of the Schedule, the defendant will be the legal heir of late Seshu Battachariyar. 13. Learned counsel for the appellant submitted that brothers daughter-in-law also can be legal heir since Section 15(2) of the Act does not eliminate other Class of heirs. If there is no elimination of other legal heirs, the plaintiff also can be treated as one among the legal heirs, though not exclusively entitled to the property. Reliance was placed on the decision reported in State of Punjab v. Balwant Singh, AIR 1991 S.C. 2301 . If there is no elimination of other legal heirs, the plaintiff also can be treated as one among the legal heirs, though not exclusively entitled to the property. Reliance was placed on the decision reported in State of Punjab v. Balwant Singh, AIR 1991 S.C. 2301 . I do not find any merit in the submission. 14. Inthat case, the question before their Lordships was, whether on the death of female heir, the property was escheated with the Government under Section 29, of the Hindu Succession Act. In that case, one Smt. Mohan Kaur inherited certain properties from her husband, she did not have any issues. The plaintiff in that case claimed that he is the grandson of the brother of Mohan Kaur and entitled to succeed to their estate. A contention was taken by the Government that when Mahan Kaur has not left any legal heir, the property will have to be escheated by the Government. This contention was not accepted by the High court which decided the case against the Government. The matter was taken before the Honble Supreme Court, their Lordships considered Section 15(2) and the same is held in paragraphs 15 to 17. The relevant portion reads thus: "15. Sub-Section (2) of Section 15, in our opinion was intended only to change the order of succession specified under sub-section (1) and not to eliminate the other classes of heirs. This view finds support from the recommendations of the Joint Committee of two Houses of Parliament which went into the question of the Hindu Succession Bill. The Hindu Succession Bill 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. the reason given by the Joint Committee is found in Clause 17 of the Bill which reads as follows: "While revising the order of succession among the heirs to a Hindu female, the Joint committee have provided that properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass." 16. Thereport of the Joint Committee which was accepted by Parliament indicates that sub-section (2) of Section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties form passing into the hands of persons to whom justice would demand that they should not pass. The means the property should go in the first instance to the heirs of the husband or to the source from where it came. 17. In support of the contrary submission, attention was drawn to a passage from Hindu Law by S.V. Gupta in which it is stated "that the heirs of the husband will take where the property was inherited from the husband or from the father-in-law. The object is to eliminate the father and the mother, the heirs of the father, and the heirs of the mother altogether from succession where the property inherited was from the husband or the father- in-law and the deceased has left no son or daughter or any grandchild. The effect of the clause is not only to eliminate the three classes of the heirs, being those mentioned in clauses (c) (d) and (e) to sub-section (1), but to change the order of succession". (1981 Edition Vol.2 Page 522). We however, find it difficult to share this view. It does not get support from the terms of sub-Section (2) of Suction 15. Sub-Section (2)(b) emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub-section (1) in the order specified thereunder but upon heirs of the husband. The object seems to be not to eliminate the other heirs under sub-section (1) and not to exclude them from inheri-tance altogether. There is no justice in such a construction of Section 15. The parliament could not have intended the result." 15. On a reading of the above passage, it is clear that the decision is not at all helpful to the plaintiff in this case. It is not disputed by the plaintiff that under Section 15(2) read with Section 8 of the Act, the defendant will be the legal heir. The parliament could not have intended the result." 15. On a reading of the above passage, it is clear that the decision is not at all helpful to the plaintiff in this case. It is not disputed by the plaintiff that under Section 15(2) read with Section 8 of the Act, the defendant will be the legal heir. Only in the absence of the defendant, the question may arise as to whether the plaintiff is entitled to succeed. 16. In the result, I do not find any merit in the second appeal. consequently, the same is dismissed, however, without any order as to costs. Connected C.M.P.No. 15284 of 1999 is closed.