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CASE NO.:

Appeal (civil) 6626 of 1995

PETITIONER:

V. DANDAPANI CHETTIAR

RESPONDENT:

BALASUBRAMANIAN CHETTIAR (DEAD) BY LRS AND ORS.

DATE OF JUDGMENT: 08/08/2003

BENCH:

M.B. SHAH & DR. AR. LAKSHMANAN

JUDGMENT:

JUDGMENT

2003 Supp(2) SCR 371

The Judgment of the Court was delivered by

Dr. AR. LAKSHMANAN, J. The unsuccessful plaintiff who lost his case in all

the three Courts is the appellant in this appeal. The appellant (Dandapani

Chettiar) filed O.S. No. 300 of 1974 in the Court of the subordinate Judge,

Cuddalore for a declaration that the suit properties belonged to him and

defendants 2-9 and 23 (respondents 2-9 and 23) and for partition and

separate possession of his l/10th share in the movables and immovables and

for recovery of past mesne profits. His case in brief is that the suit

properties came to Rajathiammal and that the properties were obtained by

her from her mother Sivabagyammal. Rajathiammal succeeded to the properties

as Stridhana heir and on the death of Rajathiammal on 01.07.1972 issueless

and intestate, in accordance with Section 15(2) of the Hindu Succession

Act, 1956 (hereinafter referred to as "the Act") the suit properties

devolved upon the heirs of the father of Rajathiammal i.e. Venugopala

Chettiar. The appellant (plaintiff) and the respondents 2-8 (defendants

2-8) are the children of the said Venugopala Chettiar through his wife and

the 9th defendant(9th respondent) is the son of the said Venugopala

Chettiar through another wife and the respondent No.23 (defendant No.23) is

one of his wives and they are the heirs.

The case of the first respondent Balasubramanian Chettiar (died) and the

other respondents is that on the death of Rajathiammal, the suit properties

devolved upon the heirs of the husband of Rajathiammal, namely,

Muthukumarasami under Section 15(1) of the Act in the absence of any issues

to her. In the alternative, the respondents contended that Rajathiammal

executed a Will, Exhibit B-26, dated 15.06.1972 and that in accordance with

the said Will, there would be a testamentary succession for the first

respondent - Balasubramanian Chetiar and the others.

The Subordinate Judge, Cuddalore framed as many as 22 issues. The Sub-Court

took the view that the suit properties came to Rajathiammal only because of

the Compromise Decree in O.S. Nos.8 of 1926 filed by one Natanasabapathy -

son of Sivabagyam and 15 of 1942 and her pre-existing right has no

relevance. The Sub-Court also held that only Section 15(1) of the Act is

attracted which would be in favour of the first respondent Balasubramanian

Chettiar and his supporting respondents/defendants. As regards the alleged

Will, Exhibit B-26, the trial Court held that it is a true and valid

document executed by Rajathiammal. On these findings, the trial Court

negatived the appellant's/plaintiffs claim and dismissed the suit.

The appellant preferred an appeal, A.S. No. 1055 of 1977, in the High

Court. The learned Single Judge of the High Court took the view that the

suit properties devolved upon Rajathiammal not by inheritance from her

mother but as Stridhana heir of her grand-mother under the compromise

decrees in O.S. No. 8 of 1926 and O.S. No. 15 of 1942 granting the

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properties to her and, therefore, Section 15(1) of the Act alone applies,

dismissed the appeal of the appellant by a judgment dated 17.12.1982. The

learned Single Judge also held that the Will, Exhibit B-26, pleaded by the

first defendant/first respondent herein and found to have been executed by

Rajathiammal by the trial Court, is not a Will that has been proved and,

therefore, the finding of the trial Court regarding the Will was set aside

in the appeal.

The appellant preferred a Letters Patent Appeal No. 32 of 1983 to a

Division Bench of the said High Court. The Division Bench held that the

property of Rajathiammal will devolve as per Section 15(1) and not Section

15(2) and that the property does not devolve on the plaintiff, the

appellant herein and respondents 2-9/defendants 2-9. Therefore, the

argument of the appellant/plaintiff that on the death of Sengamalam and

Thaiyanayagi, Sivabagyam got absolute right in the properties was

unacceptable. Holding so, the Division Bench dismissed the Letters Patent

Appeal of the appellant on 12.04.1988 by rejecting the contentions of the

appellant that it is only Section 15(2) of the Act that applies in the

instant case. Aggrieved by the decision, say aforesaid, the plaintiff

preferred the present appeal in this Court.

We heard Mr. K. Ram Kumar, learned counsel for the appellant and Mr. A.T.M.

Sampath learned counsel for the contesting respondents. Mr. K Ram Kumar,

learned counsel for the appellant/plaintiff took us through the pleadings

and the judgments passed by the trial Court and of the High Court and also

the compromise decrees in O.S. No. 8 of 1926 and O.S. 15 of 1942. Mr. K.

Ram Kumar submitted that since the properties have been got by Rajathiammal

by compromise decrees (Exhibits B1-B4), they cannot be said to be the

properties inherited by her mother and, therefore, the contentions of the

respective parties will have to be considered and a conclusion arrived at

regarding the question whether Section 15(1) of the Act is applicable or

Section 15(2) of the Act is applicable in the matter of succession of the

properties of late Rajathiammal. In other words, as per the provisions of

the Act, the appellant/plaintiff and his brothers and sisters, namely,

defendants 2-9 and his mother defendant 23 are the heirs of Rajathiammal

and they are entitled to the properties.

Per contra, Mr. A.T.M. Sampath, learned counsel for the contesting

respondents, submitted that Rajathiammal executed a Will, Exhibit B-26,

dated 15.06.1972 under which she bequeathed absolute interest in some of

the properties to Balasubramanian Chettiar, the first defendant/first

respondent and some of the properties to his son Saravanan and limited

interest in other items of properties to others like one Subramaniam

Chettiar, husband of Rajalakshmi (D-6) V. Krishnasamy Chettiar (D-9) and

Nagalakshmiammal (D-25) directing the remainder in some of the properties

to be vested in the first respondent/first defendant and in some other

properties in his son Saravanan. There was also some direction to the first

respondent for performing Brahmotsavam at a temple at Thiruppapuliyur etc.

out of income from the properties items 8 and 9 mentioned in the second

schedule. It was further contended by Mr. Sampath that after the death of

Rajathiammal he took possession of the properties as per the terms of the

Will and effected improvements and leased out some of the properties also.

Therefore, the first respondent and other respondents, who are the

beneficiaries under the Will are entitled to the properties and even if the

Will is not there and Rajathiammal died intestate, the contesting

defendants alone are entitled to the properties as heirs of Rajathiammal

under the Act.

The question, therefore, is who will succeed to the properties left by

Rajathiammal (got by her under compromise decrees B-2 and B-8 dated

27.08.1927 and 19.09.1949) in O.S. No.8 of 1926 and O.S. No.15 of 1942

respectively on her death on 01.07.1972 as between the appellant/plaintiff

and respondents 2-9/defendants 2-9 on the one hand and the first defendant/

first respondent and other contesting respondents on the other hand. Before

we proceed further, it is useful to reproduce the relevant provision,

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namely, Section 15 of the Act, which 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) 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."

The above section propounds a definite and uniform scheme of succession to

the property of a female Hindu who dies intestate after the commencement of

the Act. This section groups the heirs of a female intestate into five

categories described as Entries (a) to (e) and specified in sub-section

(1). Two exceptions both of the same nature are engrafted by sub-section(2)

on the otherwise uniform order of succession prescribed by sub-section (1).

The two exceptions are that if the female dies without leaving any issue,

then (1) in respect of property inherited by her from her father or mother,

that property will devolve not according to the order laid down in the five

Entries (a) to (e), but upon the heirs of the father; and (2) in respect of

property inherited by her from her husband or father-in-law it will devolve

not according to the order laid down in the five Entries (a) to (e) of sub-

section (1) but upon the heirs of the husband. The two exceptions mentioned

above are confined to property 'inherited' from the father, mother, husband

and father-in-law of the female Hindu and do not affect property acquired

by her by gift or by device under a Will of any of them. The present

Section 15 has to be read in conjunction with Section 16 which evolves a

new and uniform order of succession to her property and regulates the

manner of its distribution. In other words, the order of succession in case

of property inherited by her from her father or mother, its operation is

confined to the case of dying without leaving a son, a daughter or a

children of any pre-deceased son or daughter.

Sub-section (2) of Section 15 carves out an exception in case of a female

dying intestate without leaving son, daughter or children of a pre-deceased

son or daughter. In such a case, the rule prescribed is to find out the

source from which she has inherited the property. If it is inherited from

her father or mother, it would devolve as prescribed under Section 15(2)

(a). If it is inherited by her from her husband or father-in-law, it would

devolve upon the heirs of her husband under Section 15(2)(b). The clause

enacts that in a case where the property is inherited by a female from her

father or mother, it would devolve not upon the other heirs, but upon the

heirs of her father. This would mean that if there is no son 01 daughter

including the children of any pre-deceased son or daughter, then the

property would devolve upon the heirs of her father. Result would be - if

property is inherited by a female from her father or her mother, neither

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her husband or his heirs would get such property, but it would revert back

to the heirs of her father.

In the present case, it is not disputed that Rajathiammal died intestate

without leaving any son or daughter or children of pre-deceased son or

daughter. Hence, the property would devolve on the heirs of her father. It

is contended that she got the property because of the compromise decree

and, therefore, the property is not inherited by her from her father or

mother. This submission, in our view, is without any substance. She was

daughter of Sivabagyammal and, therefore, she was entitled to inherit the

property of her maternal grandmother as her mother had expired. As some

dispute was raised by the other heirs, a suit was filed. In that suit,

rights of Rajathiammal were recognized and compromise decree was passed in

her favour. Result is - she got the property as daughter of her mother.

That means, she got the property not from her husband or father-in-law, but

from her mother side. In that state of affairs, the heirs of her father,

that is, heirs of S.V. Venugopala Chettiar would be entitled to inherit her

property in view of Section 15(2)(a) of the Act.

A passage in the case of Ayi Ammal v. Subramania Asari and Anr., AIR (1966)

Madras 369 can be beneficially reproduced hereunder:

"The succession to a female Hindu generally is provided for under Sub-

section (1) of Section 15 an exception has been engrafted under sub-section

(2) recognizing a different mode of devolution in respect of property which

the woman acquired by inheritance, in a way to a very limited extent

recognizing the old Hindu law in the matter which restricted a woman's

estate in inherited property and provided for its devolution as from the

last full owner. Prima facie, the exception engrafted seeks to retain in

the father's family property inherited by the deceased lady from her

parents and similarly seeks to retain in the husband's family properly

inherited from her husband or father-in-law. The word "inherit" means to

receive as heir, that is, succession by descent."

In the case reported in Venugopal Pilial v. T. Ammal, AIR (1979) Madras

124, a Division Bench of the Madras High Court observed that in cases where

the female Hindus acquired rights by virtue of compromise is a reiteration

and a declaration of a pre-existing right of the female Hindus.

The respective case of the parties, as contended by their respective

counsel, has already been summarized in the above paragraphs. It is not in

dispute that Rajathiammal died intestate and got certain items by way of

compromise in Suit No. 8/1926 and in Suit No. 15/1942 filed by

Natanasabapathy. Items 1 to 3, 5 and 8 to 18 in the plaint second schedule

were allotted to Rajathiammal under the compromise decree passed in O.S.No.

8/1926. Likewise, items 4,6 and 7 were given to Rajathiammal under the

compromise decree passed in O.S.No. 15/1942. Thus all the items got by

Rajathiammal were under the compromise decree in both the suits.

We have given our thoughtful consideration on the arguments advanced by the

counsel for the appellant and the counsel for the respondents with specific

reference to the pleadings, evidence exhibits, records and the judgments

impugned in this appeal. The submission made by learned counsel for the

appellant-plaintiff merits acceptance. The trial Court, the learned single

Judge and the learned Judges of the Division Bench of the High Court are in

error in dismissing or rejecting the case of the appellant/plaintiff.

In our opinion, the contention of the appellant/plaintiff that it is only

Section 15 (2) of the Act that applies in the instant case to the

properties of Rajathiammal upon her death on 1.7.1972 has support and well

founded. The High Court having been upheld the finding of the learned

single Judge that Ex.B-26, a Will executed by Rajathiammal, according to

the first respondent, is not a Will that is proved to have been executed by

her, should have further held that the properties devolved upon the heirs

of the father of Rajathiammal in accordance with Section 15(2)(a) of the

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Act.

It will be seen from the facts of the present case that Rajathiammal had

inherited the property from her mother, the section applicable will be

Section 15(2) of the Act, according to which the properties will go to the

heirs of her father and, therefore, the plaintiff/appellant and defendants

2-9/respondents 2-9 who are the sons and daughters of Rajathiammal's

father, Venugopal Chettiar, through his third wife Nagalakshmi would be

entitled to the suit properties. Therefore, the case put forward by the

first defendant and other contesting defendants that Rajathiammal inherited

the properties not from her mother but also from her grand-mother and great

grand-mother, and, therefore, Section 15(1) of the Act would only apply

cannot at all be countenanced.

In the instant case, Rajathiammal acquired her rights by virtue of

compromise which is a reiteration and a declaration of her pre-existing

right. Therefore, on the death of Rajathiammal who died intestate and

issueless, the suit properties devolved upon the heirs of her father,

Venugopal Chettiar. The present plaintiff/appellant, V. Dandapani Chettiar,

who is the son of the father of Rajthiammal through his third wife and

respondents 2-9 and 23 who are children of the father of Rajathiammal and

one of his wives becomes the heirs and entitled to succeed under Section

15(2) (a) of the Act since the properties came to Rajathiammal under the

compromise decree amounts to a declaration of her pre-existing right under

the compromise decree passed by the Courts.

In our opinion, the plaintiff/appellant and respondents 2 to 9 and 23/

defendants 2-9 and 23 are the only rightful heirs of Rajathiammal and would

be entitled to succeed to the properties of Rajathiammal.

For the foregoing reasons, we have no hestitation to set aside the judgment

and decree passed by the subordinate Judge, Cuddalore as confirmed by the

learned single Judge of the High Court in A.S. No. 1055 of 1977 and by the

Division Bench of the High Court in L.P.A. No. 32/1983 dated 12.4.1988.

Therefore, this appeal filed by the plaintiff/appellant succeeds.

Considering the relationship of the parties to this action, there shall be

no order as to costs.