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Wednesday, March 29, 2017

whether sec.15 [2] of Hindu Succession Act applies ?= Perumal Naidu bequeathed his properties to all his heirs including his two daughters by conferring on them “absolute interest” and not the “life interest” in the properties. A fortiori, Alamelu Ammal and the defendant, therefore, acquired absolute ownership rights in the suit properties on the strength of the Will. They, therefore, rightly got their names recorded in the Revenue Records in 1957 itself and continued to exercise their ownership rights till 1987 without any interference from anyone including plaintiffs or/and their predecessor-in-title. One cannot dispute a legal proposition that once a heir becomes the absolute owner of the property by virtue of a Will then as a necessary consequence, he/she is entitled to alienate such property by any mode permissible in law to anyone. Alamelu Ammal did it when she alienated her share by executing a Will in favour of the defendant(her sister). It was legally permissible. 42) If however, Courts had held in the plaintiffs’ favour that the heir got only “life interest” in the property through Will of Perumal Naidu then perhaps on the death of such heir, her share may have devolved on the surviving heirs (reversioners) of father (Perumal Naidu) in terms of Section 15(2) of the Act subject to proving other conditions. Such was, however, not the case. we did not consider it necessary to examine the meaning of the words “any property inherited by a female Hindu from her father or mother” occurring in Section 15(2)(a) of the Act for deciding a question as to whether such expression would include “a property received by a female Hindu by Will from her father or mother” or it would include only those properties which are devolved on female by natural succession on the death of her father or mother. In this case, this question need not be decided once we have held that Section 15(2) of the Act has no application to the facts of this case. 45) As a consequence, the appeal succeeds and is allowed. The impugned judgment is set aside and that of the trial Court is restored resulting in dismissal of the suit filed by the plaintiffs.

REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No. 4490 OF 2017
                   (ARISING OUT OF SLP (C) No.22148/2013)

Karunanidhi                         ….Appellant(s)

                             VERSUS

Seetharama Naidu & Ors.                …Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed by  the  legal  representative  of  the  original
defendant against the final judgment and order dated  26.07.2012  passed  by
the High Court of Judicature at Madras in S.A. No. 873 of 2003  whereby  the
High Court allowed the appeal filed by the respondents  (plaintiffs)  herein
in part and set aside the judgment and decree passed by the Trial  Court  in
respect of ‘A’ Schedule properties and modified the judgment and  decree  to
the effect that each respondent(plaintiff) was held entitled to 1/3rd  share
in respect of ‘A’ Schedule property except Item No.2  of  ‘A’  Schedule  and
for consequential relief regarding mesne profits in respect of  2/3rd  share
of the respondents(plaintiffs) in  ‘A’  Schedule  property  and  accordingly
confirmed the judgment and decree passed by the Trial Court  in  respect  of
‘B’ Schedule property.
3)    We herein set out the facts,  in  detail,  to  appreciate  the  issues
involved in this appeal.
4)    The dispute in this appeal is between the heirs of one Perumal  Naidu,
who was the original ancestor in the family.  The  legal  heirs  of  Perumal
Naidu represent three branches of the family.
5)    The questions, which arise for consideration in this appeal, are  what
is the extent of share of each heir of  Perumal  Naidu  in  his  properties;
secondly, how the devolution of each heir's  share  would  take  place;  and
thirdly, on the death of any  heir,  how  his/her  share  would  devolve  on
his/her legal representative in law.  These are  broadly  the  issues  which
arise in this appeal.
6)    In order to properly answer the aforementioned  questions,  which  lie
in a narrow compass and based on  more  or  less  undisputed  facts,  it  is
necessary to set out the family genealogy tree.
                              GENEALOGICAL TREE

                     Late Perummal Naidu (died in 1924)



Late        Subbammal                      Late        Lakshmi         Ammal
Late Pappu Ammal
(1st          Wife)                                     (2nd           Wife)
(3rd Wife)


      Late Muthuammal
         (daughter)
           Late Alamelu                Ramanujatha       No Child
                              Ammal             Ammal (Defendant)
      (daughter) (daughter)
      (Died in 1987)   (died in 2004)



            Late Andal                 Late Vijayalakshmi
            Ammal                 (daughter)
           (daughter)        (died as minor)





Seetharama Naidu             Late Sagunthala
 (son)      (daughter)
(Plaintiff No.1)       (Plaintiff No.2)

7)    As would be clear from the family tree, the original ancestor  of  the
family was one male Hindu - Perumal  Naidu.  He  owned  extensive  immovable
properties situated in Thenkarai Esanur,  Thiruvaikur  Vattam,  Nagapattinam
Taluk in State of Tamil Nadu. The details of the properties held by  Perumal
Naidu are set out in the plaint  and  would  hereafter  be  referred  to  as
"suit properties".
8)    Perumal had three wives-Subbammal, Lakshmi Ammal and Pappu Ammal.  Out
of the first marriage with Subbammal, one daughter  was  born  -  Muthammal.
Out  of  the  wedlock  of   Muthammal,   two   daughters-Andal   Ammal   and
Vijayalakshmi were born. Vijayalakshmi, however, died during  her  minority.
Out of the wedlock of  Andal  Ammal,  one  son-Seetharama  Naidu  (plaintiff
No.1) and a daughter- Sagunthala (plaintiff No. 2) were born.
9)    Out of Perumal  Naidu’s  second  marriage  with   Lakshmi  Ammal,  two
daughters were born-Alamelu Ammal and Ramanujatha  Ammal  (defendant).  Both
did not have any issue.  Alamelu Ammal  died  in  1987  whereas  Ramanujatha
Ammal died in 2004. So far  as  Perumal  Naidu’s  3rd  wife-Pappu  Ammal  is
concerned, she died issueless.
10)   On 27.12.1923, Perumal  Naidu  executed  a  Will  and  bequeathed  his
immovable and movable properties including the suit properties to his  heirs
such as, his 3rd wife, two daughters from second  wife,  his  granddaughters
from first wife and  his  son-in-law.  The  Will  specified  the  extent  of
properties bequeathed to each heir named above. Soon after the execution  of
the Will, Perumal Naidu died in the 1924.
11)   The execution of the Will by Perumal Naidu  gave  rise  to  litigation
amongst his heirs. One suit being Civil Suit No.13/1924  was  filed  by  his
two daughters-Alamelu Ammal and Ramanujatha Ammal. Since both the  daughters
were minor, therefore, the suit was filed through  their  local  guardian  -
one Gopalsami Naidu.
12)   In the suit, the challenge was made to the legality  and  validity  of
the Will executed by  Perumal  Naidu  including  the  extent  of  properties
bequeathed to the  plaintiffs.   According  to  the  plaintiffs,  they  were
entitled to receive more shares in the properties left  by  their  father  -
Late Perumal Naidu than what was bequeathed to them in  the  Will.  In  this
suit, Andal Ammal-grand-daughter of late Perumal Naidu, who  is  the  mother
of the plaintiffs of this litigation was one of the defendants.
13)   Vide judgment/decree dated 15.09.1925, the Trial Court  dismissed  the
suit. It was, however, held that the  Will  executed  by  Perumal  Naidu  in
favour of  his  several  heirs  was  a  valid  Will.  The  plaintiffs,  felt
aggrieved,  filed  appeal  being  First  Appeal  No.  284/1925  but  it  was
dismissed.  The  plaintiffs  then  filed  second  appeal,  which  was   also
dismissed. This litigation ended finally as no further appeal was  filed  by
the plaintiffs after the decision of the High  Court  in  S.A.  No.  234  of
1925.
14)   On 29.07.1957, two daughters of Perumal Naidu from  his  second  wife-
Alamelu Ammal and Ramanujatha  Ammal  effected  partition  between  them  in
relation to the properties which they had received by Will from  their  late
father.   Both also got their name mutated in the revenue records  as  owner
in respect of their respective shares.
15)   On 01.10.1987, Alamelu Ammal-daughter  of  Perumal  Naidu  executed  a
Will of her  property  and  bequeathed  its  some  portion  to  her  sister-
Ramanujatha Ammal and the remaining to the appellant herein. Alamelu  Ammal,
however, died soon after execution of the Will on 29.10.1987.
16)    Ramanujatha  Ammal-another  daughter  also  executed  a  Will   dated
25.11.1987 of her share, which consisted of some properties received by  her
from her father and remaining from her sister -Alamelu  Ammal  by  Will  .By
her Will, she bequeathed her properties to the appellant herein and others.
17)   It is with the aforementioned  factual  background,  second  round  of
litigation began between the surviving heirs of Late Perumal  Naidu  out  of
which the present appeal arises.
18)   The second round of litigation with which we are  concerned  here  was
initiated by two heirs, i.e., great-grandson and the great-granddaughter  of
late Perumal Naidu- Seetharama Naidu and  Sagunthala-son/daughter  of  Andal
Ammal, who is the daughter of Muthammal, who, in turn, is  the  daughter  of
Perumal Naidu from his first wife Subbammal.
19)   On 15.12.1987, Seetharama Naidu and Sagunthala served a  legal  notice
to Ramanujatha Ammal. Though in the notice, no  legal  basis  was  mentioned
and nor any specific share in the suit properties was demanded and  nor  any
factual foundation was laid as to how and on  what  basis,  the  notice  was
being sent demanding share in the  properties  held  by  Alamelu  Ammal  and
Ramanujatha Ammal except stating therein that they were  entitled  to  claim
right, title, interest and share in the properties received  by  Ramanujatha
Ammal from her  late  father  and  sister-Alamelu  Ammal.  In  other  words,
according to them, the properties  received  and  possessed  by  Ramanujatha
Ammal had devolved on them by succession on the death of  Alamelu  Ammal  in
1987 but did not devolve  on  Ramanujatha  Ammal  because  they  were  heirs
through father’s side.  Ramanujatha Ammal, on receipt of notice, denied  the
claim by sending her reply on 23.12.1987.
20)   Seetharama Naidu and Sagunthala then filed a  suit  being  Civil  Suit
No. 26/1988 on 23.03.1988 against Ramanujatha Ammal.  The  suit  was  for  a
declaration of their title and  for  possession  in  relation  to  the  suit
properties. In substance, the plaintiffs’ case was that  the  defendant  and
her late sister-Alamelu Ammal had  only  life  interest  in  the  properties
which she had received from their late father  Perumal  Naidu  through  Will
and hence on the death of Alamelu Ammal in 1987, the properties held by  her
devolved on the plaintiffs as reversioners  by  succession  through  Perumal
Naidu's first wife as father’s heirs. It was averred that  disposition  made
by Alamelu Ammal of her share by Will executed  in  favour  of  her  sister-
Ramanujatha Ammal was of no avail because Alamelu  Ammal  herself  had  life
interest in the properties and, therefore,  such  properties  could  not  be
bequeathed by her through Will to the defendant.  It was  averred  that  her
property could not be devolved on  the  defendant  also  by  succession  but
could only be devolved  in  favour  of  the  plaintiffs  as  father’s  heirs
(reversioners).
21)   The defendant filed her written statement and denied  the  plaintiffs’
claim. According to her, the Will executed by  Perumal  Naidu  (her  father)
conferred “absolute interest” on the defendant and her sister-Alamelu  Ammal
 in the suit properties and not the “life  interest”  as  contended  by  the
plaintiffs. It was also contended that since the defendant  and  her  sister
Alamelu Ammal,  got “absolute interest” in  the  properties,  Alamelu  Ammal
was, therefore, competent to transfer her share in any manner to anyone  and
which she did by executing the Will  in  defendant’s  favour.  It  was  also
contended that on the death of Alamelu Ammal in  1987,  her  share  did  not
devolve on the plaintiffs as heirs of Perumal Naidu  but  it  devolved  upon
the defendant by virtue of two Wills-one  executed  by  her  father  Perumal
Naidu and the other executed by her sister-Alamelu Ammal.
22)   The Trial Court, vide judgment/decree dated 16.06.1994  dismissed  the
suit. It was held that Alamelu Ammal and defendant had  “absolute  interest”
in the properties received by them by Will from Perumal Naidu. It  was  also
held that the plaintiffs failed to prove that the defendant  or/and  Alamelu
Ammal had only life interest in the properties. It was also held that  since
the plaintiffs’ mother Andal Ammal (who was grand-daughter of  Late  Perumal
Naidu) also got one share  along  with  the  defendant  and  others  in  the
properties through same  Will  of  Perumal  Naidu  and  she  having  enjoyed
“absolute interest”  of  her  share  like  other  heirs,  had  no  right  to
challenge the Will nor the plaintiffs, who are her  son  and  daughter,  had
any right to challenge the Will.  It was held  that  it  was  more  so  when
Andal Ammal was party to the earlier  civil  suit,  she  was  bound  by  the
findings recorded in the said suit.
23)   The plaintiffs, felt  aggrieved,  filed  first  appeal  being  A.S.No.
124/1994 before the  District  Judge.  By  judgment  dated  14.08.1995,  the
District Judge dismissed the appeal and affirmed the judgment/decree of  the
Trial Court.
24)   The plaintiffs, felt  aggrieved,  filed  Second  Appeal  No.  873/2003
before the High Court.  During  the  pendency  of  the  second  appeal,  the
defendant passed away on 29.07.2004.  The plaintiffs filed C.M.P.  No.  8691
of 2006 before the High Court to implead the appellant herein as  respondent
in the second appeal as legal representatives  of  the  defendant.   By  its
order dated 25.04.2012, the High  Court  brought  the  appellant  herein  as
respondent to represent the estate of the respondent(defendant).
25)    By  impugned   judgment,   the   High   Court   interfered   in   the
judgment/decree of the two courts below, allowed  the  appeal  in  part  and
while setting aside the judgment, decreed the suit in part. The High  Court,
however, upheld the concurrent findings of the two  Courts  below  and  held
that the Will executed by Perumal Naidu  in  favour  of  his  two  daughters
conferred "absolute interest" in the properties and not the “life  interest"
as claimed by the  plaintiffs.  The  High  Court  then  proceeded  to  place
reliance on Section 15 (2) (a) read with Section 8 and Schedule appended  to
the Hindu Succession Act, 1956 (hereinafter referred to as  “the  Act”)  and
held that since the plaintiffs  are  son  and  daughter  of  a  pre-deceased
daughter of a pre-deceased daughter and are class I  heir  as  specified  in
the Schedule and hence by virtue of Section 15(2)(a)  which  has  overriding
effect on those categories of the heirs specified in  sub-section(1),  would
be entitled to  claim  1/3rd   share  in  the  suit  properties  along  with
defendant, i.e., plaintiff No. 1 would be entitled to get  1/3rd,  plaintiff
No. 2 would be entitled to get 1/3rd,  i.e.,  both  would  get  2/3rd  share
whereas the defendant would be entitled to get 1/3rd   in  relation  to  the
properties specified in schedule ‘A’ ( except one item).
26)   It is against this judgment of the High Court, the defendant has  felt
aggrieved and  filed this appeal by way of special leave before  this  Court
questioning its legality and correctness.
27)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal  and  while  setting
aside  the  impugned  judgment,  restore  that  of  the  Trial   Court/First
appellate Court and, in consequence, dismiss the suit.
28)   Section 15 and Schedule appended to the Act are relevant for  deciding
the appeal. It read as under:
“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 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 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.”


                                “THE SCHEDULE
                                 [Section 8]
                        HEIRS IN CLASS I AND CLASS II

                                   CLASS I
 Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-
deceased son; son of a predeceased  daughter;  daughter  of  a  pre-deceased
daughter; widow of a pre-deceased son; son of a predeceased son  of  a  pre-
deceased son; daughter of a pre-deceased son of a  pre-deceased  son;  widow
of a pre-deceased  son  of  a  pre-deceased  son;  [son  of  a  pre-deceased
daughter of a pre-deceased daughter; daughter of a pre-deceased daughter  of
a pre-deceased daughter; daughter of a pre-deceased son  of  a  pre-deceased
daughter; daughter of a pre-deceased daughter of a pre-deceased son.]*

*added by amendment by Act 39/2005, section 7(w.e.f.9.9.2005) “

29)   Section 15 of the Act applies  to  the  case  of  female  Hindus.   It
specifies the general rules of succession and  provides  the  categories  of
heirs on whom the property of a female Hindu would  devolve  on  her  death.
Sub-section(1) sets out four categories of heirs specified  in  clauses  (a)
to (e) on whom her property would devolve  as  per  the  rules  set  out  in
Section 16.  Sub-section(2) is given an overriding effect on the  categories
of persons specified  in  sub-section(1).   So  far  as  clause(a)  of  sub-
section(2) is concerned, it  provides  that  any  property  inherited  by  a
female Hindu from her father or mother shall devolve upon the heirs  of  the
father, if female does not have her son, daughter including the children  of
any pre-deceased son or daughter but would not devolve upon  the  categories
of heirs specified in sub-section(1).
30)   So far as Schedule in relation to Class I heirs is concerned,  it  was
amended  by  the  Parliament  by  Act  39/2005  w.e.f.  9.9.2005.   By  this
amendment, four new categories of heirs, namely, (1)son  of  a  pre-deceased
daughter of a pre-deceased daughter; (2)daughter of a pre-deceased  daughter
of a pre-deceased daughter; (3) daughter of a pre-deceased  son  of  a  pre-
deceased daughter; and (4) daughter of a pre-deceased  daughter  of  a  pre-
deceased son, were included in the categories of Class I heirs.

31)   Now reverting to the facts of this case, in  our  considered  opinion,
the High Court rightly upheld all the material findings of  the  two  courts
below but committed one legal error  when  it  placed  reliance  on  Section
15(2)(a) read with Schedule appended to the Act for granting relief  to  the
plaintiffs and by recognizing their right in  the  suit  properties  against
the defendant.  This finding of the High Court is bad  in  law  for  various
reasons mentioned hereinafter.
32)   In the first place, such was not the case set up by the plaintiffs  in
the Trial Court or the first appellate Court or even before the High  Court.
Second, no substantial question of law was framed by the High Court  on  the
applicability of Section 15(2) of the Act and third, in the absence  of  any
pleading, issue and  finding  recorded  by  the  two  courts  below  on  the
applicability  of  Section15(2)  of  the  Act,  the  High   Court   had   no
jurisdiction to examine the case of its own for the  first  time  in  second
appeal on such issue.
33)   It is a settled principle of law that the High Court has  jurisdiction
to hear the second appeal only on the substantial  question  of  law  framed
under Section 100(5) of the
Code of Civil Procedure, 1908  (hereinafter  referred  to  as  “the  Code”).
Equally well settled principle of  law  is  that  the  High  Court   has  no
jurisdiction to decide the appeal on the question which  is  not  framed  as
required under Section 100(4) of the Code.
34)   It is clear from the record of  the  case  that  the  High  Court  had
framed following three substantial questions of law, which did  not  include
any question regarding the applicability of Section 15(2) of the Act:
“1. Whether the lower appellate Court erred in law in  not  drawing  adverse
inference against the defendant for non-production of the  original  of  the
Will dated 23.12.1923 executed by Perumal Naidu when the same  was  produced
by them in the earlier suit?

2.    Whether the lower  appellate  Court  erred  in  law  in  receiving  in
evidence Exs. B3  and  B4  in  the  absence  of  any  explanation  for  non-
production of the original Will and without making grounds for reception  of
second evidence?

3.    Whether  the  lower  appellate  Court  erred   in   not   taking   the
circumstances prevailing in 1923 at the time of execution of the  Will  that
female heirs were given only life estates and hence the female  lagatees  of
Perumal Naidu as per Will only got life estate and not absolute interest?”

35)   The High Court, in our considered opinion, was, therefore,  not  right
in suo moto applying the provisions of Section 15(2)(a) of the  Act  without
even framing any additional substantial question of law by  taking  recourse
to Section 100(5) of the Code.  If it was of the view that  such  issue  was
involved in the case then it was mandatory for  the  High  Court    to  have
first formulated the specific  question  on  the  applicability  of  Section
15(2)(a) of the Act either at the time of admission of the appeal or at  the
time of final hearing of the appeal by assigning reasons  for  framing  such
question.  This was not done.  It was, in our view, a  jurisdictional  error
committed by the High Court while deciding the second appeal.
36)   That apart and even otherwise, in our  considered  opinion,  the  High
Court was not right in placing  reliance  on  Section  15  of  the  Act  for
deciding the rights of the parties.  It is for the simple  reason  that  the
category of heirs to which the plaintiffs had belonged, namely,  "son  of  a
pre-deceased daughter of a pre-deceased daughter  and  daughter  of  a  pre-
deceased daughter of a pre-deceased daughter”  was  added  in  the  Schedule
(class I) only with effect from 9.9.2005 by  amendment  by  Act  No.  39  of
2005.
37)   The plaintiffs, therefore, were  not  entitled  in  law  to  take  the
benefit of the aforesaid amendment because even  according  to  them,  their
right to claim the share, if any, in the suit  properties  held  by  Alamelu
Ammal accrued on the death of Alamelu Ammal in 1987  and  they  filed  civil
suit in the year 1988. In other words, a right, if any,  to  claim  interest
by succession in the properties  of  Alamelu  Ammal  opened  in  plaintiffs’
favour as an heir from father's side in 1987 when  Alamelu  Ammal  died.  In
this view of the matter, the plaintiffs’ rights as an heir to  claim  shares
in the suit properties had to be worked out on the basis of law in force  on
the date (1987), i.e., when succession  opened  for  them  to  enforce  such
right and when they filed the suit (1988).
38)   As mentioned above, the category of an heir to  which  the  plaintiffs
belonged was not included in class I list in the Schedule  in  1987  but  it
was so included for the first time on 09.09.2005 by  Act  39/2005.  In  this
view of the  matter,  the  plaintiffs  had  no  right  on  the  strength  of
succession/devolution to claim any interest in  the  properties  of  Alamelu
Ammal in 1987 as father’s heir. A fortari – the devolution  of  interest  in
suit properties could not take place in their favour by  virtue  of  Section
15(2)(a) of the Act.  Since the amendment in the Schedule  was  prospective,
it had no application to the case in hand with its retrospective  effect  so
as to create any right in plaintiffs’ favour in 1987.
39)   However, if Alamelu Ammal had died after 09.09.2005 then perhaps,  the
plaintiffs could have claimed some interest in the suit  properties  subject
to however their proving other conditions.  The reason  being  the  category
of heirs to which they belonged was by that time included in  the  Schedule.
Such was, however, not the case.
40)   Apart from what we have held supra, the plaintiffs  had  otherwise  no
case on merits on yet another ground. It is not in dispute that  the  Courts
below concurrently held  and,  in  our  view,  rightly  that  Perumal  Naidu
bequeathed his properties to all his heirs including his  two  daughters  by
conferring on them “absolute interest” and not the “life  interest”  in  the
properties.  A  fortiori,  Alamelu  Ammal  and  the  defendant,   therefore,
acquired absolute ownership rights in the suit properties  on  the  strength
of the Will.  They, therefore, rightly  got  their  names  recorded  in  the
Revenue Records in 1957 itself and continued  to  exercise  their  ownership
rights till 1987 without any interference from anyone  including  plaintiffs
or/and their predecessor-in-title.
41)   One cannot dispute a legal proposition that once a  heir  becomes  the
absolute owner of the property by virtue of  a  Will  then  as  a  necessary
consequence, he/she is entitled  to  alienate  such  property  by  any  mode
permissible in law to anyone.  Alamelu Ammal did it when she  alienated  her
share by executing a Will in favour of the  defendant(her  sister).  It  was
legally permissible.
42)   If however, Courts had held in the plaintiffs’ favour  that  the  heir
got only “life interest” in the property through Will of Perumal Naidu  then
perhaps on the death of such heir,  her  share  may  have  devolved  on  the
surviving heirs  (reversioners)  of  father  (Perumal  Naidu)  in  terms  of
Section 15(2) of the Act subject to proving  other  conditions.   Such  was,
however, not the case.
43)   In the light  of  foregoing  discussion,  we  are  of  the  considered
opinion that though the High Court was right in upholding all  the  findings
of fact of the two courts below but was not right in  relying  upon  Section
15(2)(a) of the Act for allowing the plaintiffs’ second appeal  by  treating
them to be Class I heirs from father’s side and, in  consequence,  was  also
not right in decreeing the  plaintiffs’  suit  in  part  by  granting  1/3rd
share to each plaintiff in the suit property. This finding, as  held  above,
is legally  unsustainable  and  hence  deserves  to  be  set  aside.  It  is
accordingly set aside.
44)   Here we consider it apposite to mention that we did  not  consider  it
necessary to examine the meaning of the words “any property inherited  by  a
female Hindu from her father or mother” occurring  in  Section  15(2)(a)  of
the Act for deciding a question as to whether such expression would  include
“a property received by a female Hindu by Will from her  father  or  mother”
or it would include only those properties which are devolved  on  female  by
natural succession on the death of her father  or  mother.   In  this  case,
this question need not be decided once we have held that  Section  15(2)  of
the Act has no application to the facts of this case.
45)   As a consequence, the appeal succeeds and  is  allowed.  The  impugned
judgment is set aside and that of the trial Court is restored  resulting  in
dismissal of the suit filed by the plaintiffs.

                       ………...................................J.
                             [R.K. AGRAWAL]


 ...……..................................J.
                             [ABHAY MANOHAR SAPRE]

      New Delhi;
      March 27, 2017


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