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
-----------------------
26
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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