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2012 DIGILAW 3353 (MAD)

Angammal(died), Eswari v. Palaniammal

2012-07-30

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 17.11.2011 passed by the District Munsif Court, Gobichettipalayam, in E.A.No.237 of 2010 in E.P.No.53 of 2007 in O.S.No.85 of 2002, this civil revision petition is filed. 2. Despite printing the name of the respondent, there is no representation. Hence, I proceed to dispose of the matter on merits. 3. Heard the learned counsel for the petitioner. 4. A thumbnail sketch of the germane facts absolutely necessary for the disposal of this civil revision petition in a few broad strokes can be encapsulated thus: (i) The respondent herein filed the suit seeking the following reliefs: “ TAMIL ” asagainst her mother-in-law, namely, Angammal, so to say, her deceased husband Angamuthu's mother. (ii) Preliminary decree and final decrees were passed, based on the ratiocination that daughter-in-law and mother-in-law were entitled to half share each. (iii) While so, the daughter-in-law-the respondent herein filed the E.P. The mother-in-law remained absent initially and hence, the E.P proceeded ex-parte and delivery was effected, as per the E.P. (iv) Subsequently, the mother-in-law filed the application to get the ex-parte order set aside and the fact also remains that certain errors crept in the E.P. regarding description of property. (v) According to the learned counsel for the petitioner instead of delivering half portion, i.e. 21 cents in the first item of the suit property, as found allotted in the final decree, the entire property, i.e. 42 cents were delivered in favour of the daughter-in-law-the respondent herein, in the first item of the suit property. (vi) Subsequently, the mother-in-law herself filed application to get set aside the ex-parte order in the E.P and also for rectifying the E.P. and for redelivery. (vii) It appears, the mistakes committed were rectified record wise. However, when E.P. was pending, the application E.A.No.237 of 2010 was filed with the following prayer: “ TAMIL ” (viii) After hearing both sides, the said E.A. was dismissed by the lower Court. 5. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 6. The point for consideration is as to whether the Executing Court was justified in passing the order dismissing the E.A.No.237 of 2010 giving liberty to the petitioner to file separate suit for partition? 7. 5. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 6. The point for consideration is as to whether the Executing Court was justified in passing the order dismissing the E.A.No.237 of 2010 giving liberty to the petitioner to file separate suit for partition? 7. Ex facie and prima facie, the perusal of the impugned order would exemplify and evince that the lower Court misdirected itself throwing to winds the mandates as contained in the Hindu Succession Act. Indubitably and indisputably, the suit property belonged to only two persons, namely, the plaintiff and the defendant and it appears, preliminary and final decrees were passed allotting half share each in favour them. 8. The plaintiff, namely, Palaniammal, being the daughter-in-law of the defendant-Angammal, is entitled to only half share in the suit property in view of the fact that she happens to be the widow of the defendant's pre-deceased son, as the property originally belonged to the husband of the Palaniammal-the respondent herein/plaintiff. 9. As such, on the death of Angammal-the mother-in-law, her half share would devolve upon her heirs and as of now Eswari happened to be her only surviving heir and she is entitled to the share of Angammal, relating to which, Palaniammal-the daughter-in-law will have no claim, because she cannot be treated as one of the legal heirs of deceased Angammal by virtue of Sections 15 and 16 of the Hindu Succession Act. 10. At this juncture, it is just and necessary to extract hereunder Sections 15 and 16 of the Hindu Succession Act and also the decision emerged thereunder: "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 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 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.Order of succession and manner of distribution among heirs of a female Hindu.-The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely:- Rule 1.-Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2.-If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3.-The devolution of the property of the intestate on the heirs 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' sor 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." 1998 (II) CTC 236 [Seethalakshmi Ammal v. Muthuvenkataramana Iyengar and another]; certain excerpts from it would run thus: 3. This finding proceeds on a misconception of the provisions of the Hindu Succession Act. Section 15 of the Hindu Succession Act provides general rules of succession in the case of female Hindus. This finding proceeds on a misconception of the provisions of the Hindu Succession Act. Section 15 of the Hindu Succession Act provides general rules of succession in the case of female Hindus. Under sub-section (1), the property of a Hindu female dying intestate 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. Gomathi Ammal does not have any heirs falling under (a). Therefore, we have to examine who are the heirs of her husband. The heirs of a male Hindu are set out in the Schedule to the Hindu Succession Act. Heirs in Class I include a widow of a predeceased son. The appellant fits this description. But the High Court has held that when Sesha Iyengar, the husband of Gomathi Ammal died, their son Venkatarama Iyengar was alive. So the appellant cannot be called the widow of a predeceased son. 4. In order to decide who are the heirs of a female Hindu under category (b) of Section 15(1), one does not have to go back to the date of the death of the husband to ascertain who were his heirs at that time. The heirs have to be ascertained not at the time of the husband's death but at the time of the wife's death because the succession opens only at the time of her death. Her heirs under Section 15(1)(b) will have to be ascertained as if the succession to her husband had opened at the time of her death. Thus, if at the time of Gomathi Ammal's death, there is any heir of her husband who fits the description in the Schedule of being the widow of his predeceased son, she will be one of the heirs entitled to succeed. The status of the heir must be determined at the time of the death of the female whose heirs are being ascertained. The appellant was the widow of a predeceased son on the date when Gomathi Ammal died. Therefore, the learned Single Judge was not right in coming to the conclusion that the appellant is not an heir of Gomathi Ammal." 11. The appellant was the widow of a predeceased son on the date when Gomathi Ammal died. Therefore, the learned Single Judge was not right in coming to the conclusion that the appellant is not an heir of Gomathi Ammal." 11. As such, the Executing Court can straight away order delivery of only half share, as per the final decree, in favour of Palaniammal-the daughter-in-law and in respect of the other half share is concerned, that shall be allotted to Eswari-the only surviving legal heir of Angammal, on her payment of appropriate court fee and obtention of final decree, which the Court is bound to issue in her favour. Absolutely there is no necessity to drive Eswari to file a separate suit as ordered by the Executing Court. 12. It appears, the Executing Court got misled by the fact that Palaniammal is in occupation of the entire property etc. The lower Court itself hold that wrongly such delivery of entire 42 cents of land was delivered instead of 21 cents of land to Palaniammal. 13. My mind is reminiscent and redolent of the maxim: 'Actus curiae neminem gravabit'– An act of the court will prejudice no one. 14. Be that as it may, even if one of the co-sharers is in occupation of the entire property, another co-sharer is entitled to partition and while delivering the share of the claimant, there is no necessity that for evicting the co-sharer from the excess portion, a separate suit should be filed; straight away delivery could be ordered. As such, the order of the lower Court is set aside and this order shall be adhered to in strictosenso. 15. In the result, the civil revision petition is allowed. However, there is no order as to costs.