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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4490 OF 2017
Karunanidhi
V
Seetharama Naidu & Ors.
Dated:March 27, 2017
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
3Page 4
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
4Page 5
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 sisterRamanujatha
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
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
1Page 13
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
1Page 14
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,
1Page 15
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.”
1Page 16
“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
1Page 17
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.
1Page 18
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
1Page 19
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
1Page 20
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
2Page 21
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
2Page 22
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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