Padmanabha Pillai vs Chandra Pratap and Others

Srinivasan, J.—This Revision petition has been filed by the husband of the deceased third defendant in the suit. The plaintiff in the suit filed an

application to bring on record the Petitioner herein as well as his two sons as the legal representatives of the deceased third defendant One of the

defendants in the suit viz., the second defendant opposed the application on the ground that the petitioner herein is not a legal representative of the

deceased third defendant That contention was accepted and the Court below ordered that the sons of the deceased, third defendant only should

be brought on record as the legal representatives. Aggrieved by that order, the petitioner has preferred this revision petition.

Learned Counsel for the petitioner contends that the court below is in error in placing reliance upon the provisions of Section 17 of the Hindu

Succession Act According to her, the third defendant, no doubt, was member of a Marumakkathayam family previously, but after the passing of

the preliminary decree, the family got disrupted and there was no Marumakkathayam family which could be governed by Marumakkathayam law

as such. It is further contended that Section 17 of the Hindu Succession Act can come into play only if there had been no partition and the entire

Marumakkathayam family remained intact According to learned Counsel, the third defendant having died after the passing of the Hindu Succession

Act, her estate had become absolute during her life time u/s 14 of the Hindu Succession Act on the partition being affected by the passing of the

preliminary decree. Consequently, it is contended that Section 15 of the Hindu Succession Act is the only provision that would govern the

succession of the properties of the deceased third defendant

I do not agree with the contention put forward by learned Counsel for the petitioner. Section 17 of the Hindu succession Act is in the following

terms:

The provisions of Sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the Marumakkathayam law

or Aliyasantana law if this Act had not been passed as if--

(i) for Sub-clauses (c) and (d) of Section 8, the following had been substituted, namely (c) thirdly, if there is no heir of any of the two classes, then

upon his. relatives, whether cognates or cognates,

(ii) for Clauses (a) to (e) of Sub-section (1) of Section 15, the following had been substituted, namely:

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother,.

(b) secondly, upon the father and the husband.

(c) thirdly, upon the heirs of the mother;

(d) fourthly, upon the heirs of the father; and lastly, upon the heirs of the husband.

(iii) Clause (a) of Sub-section (2) of Section 15 had been omitted;

(iv) Section 23 had been omitted.

The section provides an exception to Section 15 of the Hindu Succession Act. There is no difficulty in accepting the contention of learned Counsel

for the petitioner that the third defendant had an absolute estate in the property which would fall to her share under the final decree. There is also

no difficulty in accepting the contention that there is a disruption of the joint family on the passing of the preliminary decree. The question which

arises for consideration is how does the absolute property of the third defendant devolve oh her death. Normally, Section 15 of the Hindu

Succession Act governs the succession to female Hindus. But, an exception is brought in by Section 17 of the Act.

Section 17 of the Act will apply to persons who would have been governed by the Marumakkathayam law or Aliyasanthana Law if the Hindu

Succession Act had not been passed. It is a statutory fiction that on the date when the third defendant died, the Court must assume that the Hindu

Succession Act had not been passed. Then, the only law that would have been applicable to the third defendant was Manimakkathayam law. In

such cases, the rule of succession is provided in Section 17 of the Act.

u/s 17 of the Act, the property shall devolve firstly upon the sons and daughters including the children of any predeceased son or daughter and

the mother and secondly upon the father and the husband. Thus, the husband of the deceased woman is relegated to the second class whereas the

mother of the deceased has taken place in the first class along with the sons and daughters of the deceased. As there is no dispute that the third

defendant would have been governed by Manimakkathayam law. If the Hindu Succession Act had not been passed, there is no difficulty in holding

that Section 17 of the Hindu Succession Act is applicable to the present case. Consequently, the provisions of Section 15(1) of the Hindu

Succession Act are excluded.

Hence, the order of the Court below bringing on record only the sons of the deceased third defendant as the legal representatives is

unassailable. The revision petition has to fail and it is hereby dismissed. But, there will be no order as to costs.