Kumaraswami Gounder and Others vs D.R. Nanjappa Gounder and Others

K. Veeraswami, C.J.—This reference comes before us, because of the conflict of opinion on the question, whether Section 8 of the Hindu

Succession Act, 1956, is applicable to a case where a husband died intestate before the Act came into force and his widow inherited his

properties, but was not possessed of those properties and died subsequent to the commencement of the Act. One of us was a party to the

reference. Since then has come Daya Singh (Dead) through Lrs. and Another Vs. Dhan Kaur, , which, in almost similar circumstances and after

dealing with the conflict of opinion of some of the High Courts, answered the question in the affirmative.

Were the question res Integra, it would have been open to debate and doubt as to whether Section 8 was intended to cover reversionary

succession as in the instant case. The Act was, no doubt, intended to amend and codify the law regarding intestate succession. The intention of the

Act was to cover, as far as possible, the entire filed. That was why Section 4 gave the Act over-riding effect. Yet, it visualises that any text, rule or

interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act would still have

force, if for any matter provision was not made in the Act and also any other law not inconsistent with any of the provisions in the Act, may

continue to have force. Chapter II of the Act deals with intestate succession, first, in respect of an interest of a coparcener in coparcenary property

and then with devolution of interest in coparcenary property and in the property of a Tarwad, Tavashi, Kutumbal Kavara or Illom. We have then

Section 8 providing for general rules of succession in the case of males. It abolishes at one stroke the scheme of succession under the Hindu law

and provides for devolution of the property of a male Hindu dying intestate, as provided therein read with the Schedule. This course was designed

to give effect to the popular desire to prefer the closer relatives of the deceased such as those mentioned in Class I and Class II of the Schedule.

Having provided for such a devolution of the property of a male Hindu dying intestate, rules also have been prescribed by the next five sections

relating to the order of succession among the heirs in the Schedule, distribution of property among heirs of Class I and Class II, the order of

succession among agnates or cognates and computation of degrees. Section 14 deals with property of a female Hindu. Any property possessed by

a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited

owner. The Explanation to Sub-section (1) is to the effect that for purposes of the sub-section, property includes both movable and immovable

property acquired by a female Hindu by inheritance, etc. Sub-section (2) of Section 14 provides for certain exception to the rule of enlarging what

was a limited estate of a female Hindu into a full and absolute estate. Consistent with the effect of Section 14, the next section provides for a

drastically new rule of devolution of property of female Hindu dying intestate. But is this sweeping change in the scheme of succession only

confined to limited property converted into absolute one in the hands of a woman? What is the effect in this context of the Explanation to Section

8(1) on that matter vis a vis Section 14? The order of succession and the manner of distribution among the heirs of a female Hindu are then

provided for by Section 16 and special provisions respecting persons governed by Marumakkattayam and Aliyasathanam also have been made in

Section 17. Then follow certain, general provisions relating to succession as to the preference between full Wood and half blood and mode of

succession of two or more heirs, who will take the property as tenants in common and not as joint tenants. The child in the womb is also taken

care of. Section 20 provides that the child in the womb at the time of the death of an intestate, who is subsequently born alive shall have the same

right to inherit the intestate as if he, or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a

case with effect from the date of the death of the intestate. Rules of presumption in cases of simultaneous deaths and preferential right to acquire

property in certain cases, special provisions respecting dwelling houses, rules of succession, where certain widows remarry and disqualifications for

a murderer and convert''s descendants have been made. Finally, provision is made for devolution where there is failure of heirs. Chapter III deals

with testamentary succession. That sums up the scheme of the Act. This brief survey indicates that the Act is intended to be a complete Code

governing succession to a Hindu male or female dying intestate.

The expression a male Hindu dying intestate had received judicial interpretation and, as held by the Privy Council with reference to the Hindu

law of inheritance Amendment Act, 1929, it only referred to the status of the person dying and it had no effect upon the time of death so that the

expression would be apt to apply to a Hindu dying intestate before, or after that Act. If that be so, Section 8 would have applied itself when is the

instant case the husband died, before the Hindu Succession Act, 1956. Does not Section 8 have reference only to his physical death? Can it be

said that, in spite of it, by reason of the succession opening by the death of the widow after the Act came into force and of the rule of Hindu law

that the particular reversioners entitled to succeed to the estate must be ascertained as on the date of her death as, if her husband also had died on

the same date, Section 8 would have a further application? The question assumes a little more importance because of the Explanation to Sub-

section (1) of Section 14. It says that for purpose of that sub-section property includes both movable and immovable property acquired by a

female Hindu by inheritance. It is true that Section 14 would enable the limited estate to be enlarged only, if the widow was possessed of such

property. But if &he had already inherited and the property is hers, though not enlarged into a full estate, what will be the effect of suck inheritance

on the scope of Section 8? On this aspect extensive argument has been addressed to us.

Equally, it has been contended forcibly that the Act being an amending and codifying law regarding intestate succession among Hindus, we

should interpret Section 8 consistent therewith. It is said that, if a woman inherited the property of her husband, who died before the Act, but never

took, or lost possession and died after the Act, succession opens on her death and, if the presumption that the reversionary heirs will have to be

determined as on that date would necessarily imply a presumption that the husband died on that date, there is nothing in Section 8 which would

prevent such presumption from applying further to such a case, as it would be still a case of property of a male Hindu dying intestate. But is not the

presumption limited only to determine, who the reversionary heirs are and can its application be extended further to enlarge the scope of Section

8? There are other contentions too urged before us.

Mr. Thiruvenkatachari for the Respondents also contended that the case of a widow inheriting, but dying not possessed of her husband''s

property is a casus omissus to which Section 4(10)(b) would be applicable, and that, in any case, Daya Singh (Dead) through Lrs. and Another

Vs. Dhan Kaur, , should be distinguished on the ground that it is a decision justified by the particular custom and usage regulating succession to

Punjabis.

Interesting as these arguments have been, and we must confess that throughout the address we felt a considerable difficulty in construing Section

8 especially in the light of the related sections, it will, in our opinion, be futile to deal with them and express our view, because of Daya Singh

(Dead) through Lrs. and Another Vs. Dhan Kaur, .

As we see from the judgment of the Supreme Court, it was directly seized of the very question we are called upon to answer. There as here, the

husband had died before the Act.

The widow inheriting his property was not possessed of it and she died subsequent to the Act. The Supreme Court reviewed all the decisions on

the subject rendered by the High Court among, whom there was no unanimity, referred to Moniram Kolita v. Keri Kolitani (1879) ILR 5 Cal. 776

(P.C.) and held that, once it is taken to be the law that succession in a case like this opens when the widow dies as if her husband also died on the

very date, this presumption should not be boggled with and should be applied as a fact, so that Section 8 of the Act is attracted to the situation.

We are bound by this approach. Every possible argument against that view has also been visualised by the Supreme Court and it resolved the

difference of opinion among the High Courts.

As to the arguments based on custom before us in the penultimate paragraph of the judgment, the Supreme Court noticed the custom and said

that on the view it had taken of the scope and application of Section 8 of the Hindu Succession Act, that section governed the succession and not

the customary law of the Appellants before it. The argument is, therefore, not open that the decision rested on the peculiar customary law

governing the Punjabis for which provision has been made in the Act itself.

Reference was made to Eramma Vs. Verrupanna and Others, , and certain observations made therein and it was pointed out that Daya Singh

(Dead) through Lrs. and Another Vs. Dhan Kaur, , which was decided by the two learned Judges, was contrary to the opinion earlier expressed

by a Bench of Three learned Judges in the former decision. But, here again, the point is answered by the Supreme Court itself in the latter case.

The Supreme Court extracted in Daya Singh (Dead) through Lrs. and Another Vs. Dhan Kaur, , those very observations in the earlier decision and

proceeded on the basis that the precise point had not been considered, or was not decided in the earlier case.

That being the case, we do not think it necessary to say more except that following Daya Singh (Dead) through Lrs. and Another Vs. Dhan

Kaur, , we answer the question referred to us in the affirmative.

ORDER

Ramaprasada Rao, J.

The fundamental principle in a second appeal is that only on question of law the decision of the Lower Court has got to be interfered. It is also

well-known, that, if the trial Court and the appellate Court concurrently find on a particular issue, but after legal adjudication, then such a

concurrent finding of fact also is equally binding on the second appellate Court. One other situation can easily be conceived. When the trial Court

as well as the appellate Court base their conclusion on a public register which is challenged on several grounds by the opponent and if in the light of

such challenge, both the trial Court and the appellate Court do not delve into the recitals in that public register, and give satisfactory reason as to

why the public register should be accepted, or rejected, then it cannot reasonably be said that there has been a legal adjudication on the main issue

in controversy. If the trial Court fails to advert to the public register and. its various limbs and the recitals therein and sustain its judgement on a

well-founded reasoning, or if the appellate Court mechanically accepts such a finding rendered by the trial Court which, as we said, did not make a

detailed examination of a challenged public register, then, in either of the above two contingencies, it cannot be said that there was a concurrent

finding of fact. The situation in the present case falls within the excepted principle set out by us.

This litigation started in 1960 is yet limping as one or two of the facts of such a litigation only have been fully thrashed out and concluded and

there remain the other points which arise in the litigation and which have an important impact on the success or failure of one or the other of the

parties in the case and yet to be decided. Whilst the first Respondent-Plaintiff''s case is that he is the nearest reversioner of one Sengammal, who is

referred to in the judgment appealed against, the case of the Appellants-Defendants 2, 3 and 33 is that his is not.

In order to sustain their contention, the Appellants examined D.W. 6 and D.W. 8 to prove the date of death of one Kaliammal alias Kaliakkal

who, according to them is a reversioner to Sengammal but nearer to the Plaintiff. Their specific case, as spoken to by D.Ws. 6 and 8, is that

Kaliammal alias Kaliakkal died on 6th October, 1960, when Sengammal died in the year 1958 and that, therefore, when Kaliammal alias

Kaliakkal was alive on the date of death of Sengammal, the Plaintiff cannot project himself as the nearest reversioner on the foot of which he can

institute the present action for possession of the suit properties from the Defendants which he filed on 15th June, 1960. During the earlier period of

the litigation between the parties and until 1964 it was nobody''s case that Kaliammal alias Kaliakkal, the reversioner to the estate of Sengammal,

was alive on the date of death of the latter. It is only on 16th September 1964 that this was brought to the notice of the Court through an additional

pleading filed by the Defendants on record which was to the effect that Kaliammal alias Kaliakkal died in 1960, but was alive on the date of death

of Sengammal and hence she should be adjudged as the reversioner nearer to the Plaintiff and, therefore, the Plaintiff has to be non-suited.

The parties went to trial on various issues with which we are not concerned at present, but the matter in controversy revolves around, the fact

whether the Appellants have proved that on the date of death of Sengammal Kaliammal alias Kaliakkal was alive. In order to establish that fact,

the Defendants examined two witnesses to prove the date of death, namely D. Ws. 6 and 8. That Kaliammal alias Kaliakkal is no more is not in

dispute, but the only question is as to when she died. Of course, the parties, who appeared to be very rich have been rightly characterised by the

trial Judge as belonging to a group to whom relationship is of no value. But such embellishments are common in litigations involving heavy stakes.

The point in issue and the crucial point in controversy is as to when Kaliammal alias Kaliakkal died. The trial Court referred to the evidence of

D.Ws. 6 and 8. D.W. 6 is the Maniyagarar of Narasipuram and he speaks to the date of death of Kaliammal alias Kaliakkal, but refereshes his

memory and gains support only from exhibit B-62 which is the register of deaths kept by him in his regular course of business. The learned trial

Judge did not even refer to certain salient features in the testimony of D.W. 6. The case of the Plaintiff was that the entry'' in exhibit B-62 appears

to be not genuine and that it was made for the purpose of this case. A suggestion was put to D.W. 6 when tic was in the box that he signed after

D.W. 8 (Periyasami) has signed. This suggession obviously has some merit and one would expect that a trial Judge should have made a comment

one way, or the other on the reasonableness or otherwise, if the suggestion made by the Plaintiff in cross-examination, but he was content by

saying Some thoroughly reckless and wholly baseless suggestions have been made in the course of his cross-examination to impugn his evidence.

As to how the suggestions were reckless or baseless does not appear from his judgment. He has also obviously ignored the fact that D.W. 6 is a

near relation of D.W. 8 and D.W. 8 in turn is very much interested in the litigation. We are not prepared to say anything more on this aspect now.

The learned trial Judge took it for granted that D.W. 6 proved that the register was sent to the Taluk Officer, even in 1960. We searched in vain to

find any seal of the Taluk Office to show that the death register of 1960 was sent to the Taluk Office, even in that very year. D.W. 8 would

causally refer to exhibit B-62 and say that the entry relates to the date on which Kaliammal died. The trial Court, as already stated, characterised

the criticism which appears to be not far from legitimate by made by the Plaintiff as a baseless suggestion. No reason, however, has been given.

The matter went up in appeal and the appellate Court, who at least could have done better, repeated the performance. While considering the

important question on which revolves the rights of parties in this age old litigation, he accepted the observations made by lower Court, which again,

was not a considered one and in turn agreed with it, We do not find any reason given by the appellate Court as to the circumstances under which

he was totally and summarily rejecting the challange to the entry in the public register as a bogus one. Such a cursory and haphazard treatment of

the subject-matter which, as we repeatedly pointed out, is the pivot on which this very litigation rests appears to us to project the proposition that

both the trial Court and the appellate Court though pretentiously found facts on a number of issues did not in fact do so, in so far as the relevant

issue is concerned there has not even been a discussion or a reasonable discussion as to whether the entry in exhibit B-62, can be taken at its face

value.

We have been so very strong in our remarks for we have had the opportunity of seeing the original of exhibit B-62 also. We do not find in the

opening page of this register, the signature of the Tahsildar or the Deputy Tahsildar to show that he has examined the same. At the end of the

register we find that the register bears the signature of some one of the year 1961 only and not of 1960. In fact someone is said to have signed for

the Tahsildar only in the year 1961. This register obviously did not go to the Tahsildar''s Office in the year 1960, but yet D.W. 6 would swear

otherwise. Apart from this, there is an entry at page 5 of this register which bears the serial number 10 and against which the recital reporting the

death of one Nanja Peria Karuppan Chettiar, who is said to have died on 13th October, 1960 and a report of which has been made on 14th

October, 1960 has been made. There is no furtherance of this report in the various column. The circumstances under which this entry was made

has not been explained by the Maniyagarar, D.W. 6. Surprisingly again we find serial number 19 being repeated and a second entry created in the

same page and which is the challenged entry. At the eastern most column relating to this entry, D.W. 8 has obviously signed over D.W. 6''s

signature, but D.W. 6 would say that, he signed after D.W. 8 signed the register. These are some of the features which were obviously the basis

for the suggestion that the entry could not have been made as it purported to be, Neither the trial Court nor the appellate Court adverted to these

obvious discrepancies in the register. If they had considered and expressed their view on it and either concurred with each other or differed,

matters would have been different. But when they have totally abstained from adverting to this telling but rather doubtfull features in the public

register, we are unable to accept mechanically the theory that there is a concurrent finding of fact and, therefore, Section 100 of the CPC is a bar

for a further hearing of the second appeal on such a question. Not being satisfied with the manner and .method and treatment of such an important

issue and having noticed that D.Ws. 6 and 8 are greatly interested in this litigation, being relation to the parties, the appellate Court at least should

have given such thought to it so that it could be said when it comes up in second appeal that the appellate Court did reasonably go into the matter

and gave out its view. We are unable to accept the contention of Mr. Kesava Iyengar that the judgment in question being one of affirmance in so

far as this matter is concerned, there cannot be a readjudication or a re-look into it. We accept the contention of the learned Advocate-General

that the matter requires a further probe and scrutiny. For the purpose the papers and the subject shall be placed before the District Court,

Coimbatore, which is the appellate Court in this case to examine throughly the evidence on record, both oral and documentary, and send a report

to this Court after hearing arguments, whether exhibit B-62 can be successfully challenged by the Plaintiff first Respondent, or whether the attack,

as pointed out by the appellate Court is a spurious and a reckless attack. The parties, if they choose, may re-examine D.Ws. 6 and 8 with

reference to exhibit B-62. The lower Court will send the report within six weeks from the date of receipt of the records.

This case come for further hearing after the- finding''s by the lower Court,

This second appeal, which had a long history behind it, is yet to see the end of litigation. When it was taken up by us earlier, a question arose

whether the Plaintiffs could be said to be the nearest reversioner at all, who could file the present action. The doubt arose because there was not a

clear finding as to the date of death of Sengammal. The issue was, whether on the date of death of Sengammal, one Kaliammal was alive. If

Kaliammal was alive on the date of death of Sengammal, then the Plaintiffs would not be the nearest reversioner. In order to as certain the date of

death of Sengammal as also the date of death of Kaliammal, a finding was called for by us. It is now common ground that Kaliammal died on 6th

October, 1960 and she was alive on the date of death of Sengammal, which was earlier. The finding of fact rendered by the Court below is not

challenged before us and the position as above that Sengammal, pre-deceased Kaliammal is also not disputed. It is in the above background that

the relevant facts, which are to be considered may be briefly stated.

Sami Gounder, Peria Ramana Gounder and Chinna Ramana Gounder, were the sons of one Nanjappa Gounder, the first two through his first

wife Velakkal, and the third through his second wife Vellayammal. Chinna Ramana Gounder obtained his share of the properties beloning to the

joint family in an earlier litigation initiated by him. The Plaintiff�s case is that Sami Gounder and Peria Ramana Gounder become divided in status.

The further case of the Plaintiffs is that Sami Gounder and Peria Ramana Gounder divided only certain properties and kept certain other properties

in common. Peria Ramana Gounder died without issues, but was survived by his wife Sengammal. In the suit filed by Chinna Ramana Gounder

(Original Suit No. 2 of 1892) for partition, Sengammal was brought on record as heir of Peria Ramana Gounder and as being entitled to widow''s

estate. The case of the Plaintiffs is that Sami Gounder forcibly entered into possession of the properties of late Peria Ramana Gounder and dealt

with such properties as if the family remained still joint. It is said that, there was a mingling of the properties of the two, brothers as Above-''with

the result the properties to which Sengammal was entitled was also dealt with by them without reference to her. It was in those circumstances, that

Sengammal died in 1958 which event threw open the reversionary succession to her husband Peria Ramana Gounder, who died long before. The

primary claim of the Plaintiffs as well as the first Defendant in the suit, out of which the second appeal arises, is that Peria Ramaaa Gounder died

being divided from Sami Gounder and that Sengammal had only a life-estate without being ia possession of the properties and the Plaintiffs and the

first Defendant the only nearest reversioners and heirs to the estate of Peria Ramana Gounder. The case of Defendants 2 and 3 was entirely

different. They pleaded that Sami Gounder and Peria Ramana Gounder always remained undivided and on the death of Peria Ramana Gounder

and Sengammal did not succeed to any property in which she could claim a women''s estate. Alternatively it was pleaded that even, if there was a

division between the brothers, sucession to Peria Ramana Gounder had to be traced not as member under the orthodox Hindu Law, but in

accordance with the Hindu Succession Act. In this sense, they would say that Kaliammal, who died on 6th October, 1960, after the death of

Sengammal, should be deemed to be the heir of Peria Ramana Gounder and the Plaintiffs can project no title at all to the estate of Peria Ramana

Gounder.

The first appellate Court decreed the suit for partition and separate possession of the shares of the Plaintiffs and the first Defendant and

quantified their entitlement as 1/4th share each in the suit propenie. The appellate Court held that the remaining half share will go to Defendants 2

and 3. They upheld the claim for mesne profits in favour of the Plaintiffs and the first Defendant and the quantum of which was to be determined at

the time of the final decree.

In the course of hearing of the second appeal, one of the main questions of law involved in this case was referred to a Full Bench. The question

was whether the succession to Peria Ramana Gounder''s estate is governed by the Hindu law as it existed before the Hindu Succession Act or

whether succession to such estate has to be determined under the Hindu Succession Act of 1956. The Full Bench of our Court held that

succession has to be traced to Peria Ramana Gounder on the death of Sengammal in 1959 by applying the Hindu Succession Act. This opinion of

the Full Bench was given on 29th October, 1974. When the matter again came up before us, we sought for a further investigation and probe into

the fact, whether Sengammal died first or Kaliammal died first. The parties were at variance on this also. Strong reliance was placed upon exhibit

B-62 containing an entry relating to the alleged death of Kaliammal. The first appellate Court rendered a finding in favour, of the Plaintiffs and the

first Defendant�s but before us we admitted additional evidence and satisfied ourselves that Kaliammal, sister of Peria Ramana Gounder died on

6th October, 1960. It was in the light of such a disclosure as to the date of death of Kaliammal, we called for a finding from the Court below

whether exhibit B-62 is a genuine document and it is not open to challenge. The Court has given a finding that exhibit B-62 could be challenged

and it does not appear to be a true document. After the Court below rendered the said finding the matter came up once again for final hearing.

There was no serious argument before us about the finding of the Court below that exhibit B-62 does not appear to be a genuine document. We

have, therefore, rejected exhibit B-62 as unreliable. The net result of the discussion on this part of the case is that it has been proved that

Kaliammal was alive on the date of death of Sengammal. Under the Hindu Succession Act, the estate would devolve on Kaliammal as she is the

sister of Peria Ramana Gounder. Because of the later discoveries, if we can use that expression, made, a new complexion had been given to the

suit. The Plaintiffs having been put in such an inconvenient position have applied for an amendment of the plaint in Civil Miscellaneous Petition No.

9869 of 1967. They would allege that the title of Kaliammal and her successors-in-interest stands extinguished by the operation of Section 27 of

the Limitation Act of 1963 and on that ground alone, the Plaintiffs and the first Defendant are entitled to the suit properties as being the next in the

line of succession. They sought for introduction of the following paragraphs:

15-A Assuming without admitting that Sengammal was survived by Kaliakkal her husband''s sister and that Kaliakkal died on 6th October, 1960,

the conduct of Kaliakkal and after her death the conduct of Janakiammal, the universal legatee under the Will of Kaliakkal, dated 16th March,

1958 and the conduct of Periasami, the husband of Janakiammal clearly manifest an abandonment of their title to the reversionary succession and

the Plaintiffs and the first Defendant being the next in the line of heirs under the Hindu Succession Act are entitled to the properties and can

therefore, recover the property. It is therefore, submitted that even on the footing that the reversionary succession to Sengammal has to be traced

not under the old Hindu law, but under the Hindu Succession Act, the Plaintiff and the first Defendant are entitled to the decree as prayed for.

15-B. The Plaintiff further submits that the reversionary succession to Peria Ramana having opened in 1958 on the death of Sengammal, the title if

any of Kaliakkal and her successors-in-title stands extinguished by virtue of the provision of the Limitation Act. By virtue of such extinguishment

the Plaintiff and the first Defendant are entitled to succeed as reversioners as Defendants 2 and 3 and the other Defendants claiming under them are

not in the line of succession. Nor have they prescribed a title as against the Plaintiff and the first Defendant. The Plaintiff and the first Defendant

have better title as against the second and third Defendants and the other Defendants claiming under them as the Plaintiff and the second Defendant

are Class 11 heirs of Peria Ramana. They are, therefore, entitled to a decree as prayed for.

Having regard to the age of this litigation and also for the reason that the amendment sought for sets up a totally different cause of action which

ex-facie cannot stand on a line with the original pleading, we are unable to allow this, application for amendment. A pleading could only be

amended, if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings, but under the guise of an

amendment a new cause and a case cannot be substituted and the Courts cannot be asked to adjudicate the alternative case instead of the original

case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long

drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to

such passage of time, several events have happened and several matters have intervened. It would be hazardous to accept such as application for

amendment to a plaint on the only ground of passage of time and change of circumstances, for, that would run counter to the essential ratio

governing the principle of amendment of pleading, which is that no amendment can introduce a cause of action, which was never thought of

originally or could not have been thought of earlier and which is diametrically opposite to that stated in the original plaint. We are also of opinion

that the application for amendment is an after thought and therefore, lacks bona-fides. This is so because the Plaintiffs denied that Peria Ramana

Gounder had a sister by name Kaliammal and his filing of the suit during the life-time of Kaliammal, is obviously in deliberate disregard of truth. The

courts below found that the Plaintiffs should have been aware that Kaliammal was alive on the date of suit and their pretended ignorance about it

was not tolerable. We dismiss the applicatioa for amendment.

The contention of Mr. Parasaran, learned Counsel for Respondents-Plaintiffs is that in any event, the Plaintiffs and the first Defendant have a

better title as against the second and the third Defendants and the other Defendants claiming under them, as the Plaintiffs and the second

Defendants are Class II heirs of Peria Ramana Gounder. The case of Mr. Parasaran is that the dichotomy created in the enumeration of heirs in

Class II in the schedule to the Hindu Succession Act cannot be given, an (sic) nominal weightage and that like the heirs enumerated in Class I,

those classified heirs in Class II-would take cumulatively and not to the exclusion of one to the other. We are unable to appreciate this contention.

The style of enumeration of the heirs in Class II in the schedule is different from that accepted in Class I. It gives the key for understanding and

interpreting the same. Under the Head of Class II heirs, father comes first, secondly son''s daughter''s son, son''s daughter''s daughter, brother and

sister are closeted in item No. II in the list of enumerated Class II heirs. It goes on like that. It may be that the son''s, daughter''s son, son''s,

daughter''s daughter, the brother and the sister of a Hindu, who died intestate may all be the heirs of the deceased Hindu having been so closeted

and grouped as item II heirs in Class It of the schedule. But it cannot be said that all the heirs enumerated in the various items to Class II take

together and they would be entitled to succeed to the estate of a Hindu who died intestate. Perja Ramana Gounder died intestate leaving behind

him his widow, who died after the Hindu Succession Act, in 1959. After the death of Sengammal inheritance again opened out to the estate of

Peria Ramana Gounder because he had no issues. u/s 8 of the Hindu Succession Act, Kaliammal as sister is the Class II heir being one of such

enumerated heirs in item II to Class II heirs in the Schedule to the Hindu Succession Act. It is, therefore, fairly clear that Kaliammal, who was the

nearest heir of Peria Ramana Gounder, on the death of Sengammal inherited the properties of Peria Ramana Gounder as full owner under Sections

14 to 16 of the Act. She became a fresh stock of descent and on her death on 6th October, 1960, succession has to be traced to her alone,

testamentary or intestate as provided for in Section 15 of the Act. It, therefore, follows that after such absolute vesting of the rights in Kaliammal as

per the provisions of the Act, there can be no question of any preferential claim by reversionary succession to Peria Ramana Gounder. It appears,

therefore, to us that Neither the Plaintiffs nor the first Defendant as such reversioners to the estate can with any competence further their status as

nearest reversioners and compete with Kaliammal, who is obviously the statutory heir. Analogies cannot be mechanically sought for purpose of

application and implementation On the only ground that the enumerated heirs in Class I all take together in equal shares, it cannot be said by the

Mechanical invocation of the doctrine of analogical application that such enumerated heirs in the various items set out Claw II should also be

treated as such and all of them pooled up together so as to vest on them an entitlement to share the estate of the deceased equally as Class II heirs.

This would MM that mother''s brother and mother''s sister if they are alive along with the father the three such heirs enumerated in Class II will

each take a 1/3rd in the estate of the deceased, who died intestate. This will lead to an anomalous position which could never have been intended

by the Legislature. The heirs referred to in each item in Class II would exclude the heirs referred to in the next item. If the father is alive, then the

son''s, daughter''s son or the son''s, daughter''s daughter, the brother or the sister would not come into the pieture and so on. In this view of the

matter, we are unable to agree with the contention of Mr. Parasaran that the Plaintiffs who are not the nearer statutory heirs are also competent to

institute the action in the light of the present finding that Kaliammal was alive on the date of death of Sengammal, when fresh inheritance opened to

the estate of Peria Ramana Gounder. If the suit is not maintainable by the Plaintiffs, no other question arises for consideration.

The further argument of Mr. Parasaran, is that the appeal has been filed only by the second, third and the 32nd Defendants and the other

alienees have not filed their appeals and as such alienation should be the subject-matter of a separate cause of action, the finding of the Court

below, in so far as the other Defendants and the other alienations are concerned, should not be disturbed. It is no doubt true that the first appellate

Court has given an elaborate judgment on the alienations made by Defendants 2 and 3 and their sustainability. But in the view held by us that the

Plaintiffs cannot file the present action as the nearest reversioner, it is unnecessary to go into this question.

Order XLI, Rule 4 of the CPC would govern the situation arising here. The common ground which was agitated to the core before the Courts

below was, whether the alienations made by Defendants 2 and 3 of some of the suit properties are sustainable at all. Some of the alienees, who arc

dissatisfied with the ultimate decision have come up in appeal, but the poser is whether the alienations made bf the second and the third Defendants

are sustainable or not, It is a ground common to all the Defendants. The fact that some of the Defendants have appealed against the whole decree

entitles the appellate court to pass such judgment as the circumstances of the case would require in order to render justice, Order XLI, Rule 33

CPC also meets this purpose. Under Order XLI, Rule 4 CPC on jut appeal by one or more of the parties to a suit on a ground common to all the

decree maybe varied in favour of all. Under Order XLI, Rule 33, the Court has the power to make the proper decree in order to render justice

between the parties even though the appeal is directed only against a part of the decree and even though the appeal might have been filed by some

of such parties and the other affected parties are not even before the appellate Court. These rules based on justice equity and good conscience

compel us to treat the present second appeal as one filed for the benefit of all the alienees, and in the light of such an understanding of the subject-

matter, the allowance of the appeal should benefit all the alienees as well.

Even in the alternative Mr. Kesava Iyengar would contend that the Plaintiffs'' claim is barred by res judicata by virtue of the decision of the trial

Court in Original Suit No. 67 of 1924 marked as exhibit B-25, which was affirmed by the High Court in Appeal Suit No. 147 of 1926 marked as

exhibit B-26. Chinna Nanjappan is the son of Sami Gounder, who as such son and having inherited his father''s property, dealt with the same under

a Will, exhibit B-63. He bequeathed the suit properties in favour of the predecessors-in-interest of Defendants 2 and 3. That Will was upheld as

true and binding on the Plaintiffs, who were parties to that litigation. What is contended is that on such adjudication on the Will of Chinna

Nanjappan and the same having been upheld by decision of this Court, the Plaintiffs and the first Defendant can no longer project an inconsistent

source of title and file the suit once again laying their hands on the suit properties on the foot that they are the owners-reversioners entitled to the

estate of Peria Ramana Gounder after the death of Sengammal. It is also incidentally urged that Kaliammal herself knew of the proceedings in

Original Suit No. 67 of 1924, Sub-Court, Coimbatore, (exhibit B-25), and that she gave evidence as P.W. 4. Kaliammal did not agitate,

thereafter, against the resultant decree and judgment of the above proceedings and that, therefore, Kaliammal herself or her legal representatives

cannot re-agitate a closed matter. We are not inclined in this action to go into the said controversy about the alleged right of Kaliammal or her heirs

to the suit properties. Suffice it however to hold in this suit that the Plaintiffs and the first Defendant have no locus standi to institute the suit. We

are, however constrained to accept the contention that the decision of this Court in Appeal Suit No. 147 of 1926, exhibit B-26 has become final

and binding on the Plaintiffs in the present action.

In the result, therefore, the second appeal is allowed. In passing we trust that a curtain would be drawn at least now to this long drawn litigation

and with that objective we are not awarding costs in this appeal.