Madras High Court
K.Rajalakshmi vs K.Padmavathi @ Devi on 16 August, 2023
C.R.P.(MD).No.904 of 2019
-BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(PD)(MD)No.904 of 2019
and
C.M.P(MD) No.5234 of 2019
1. K.Rajalakshmi
2. Sree Mohana
V.Kannan (died)
3. S.Perumal
(2nd Petitioner mentally retarded
Represented through 1st Petitioner)
... Petitioners/Respondents/
Defendants
-vs-
1. K.Padmavathi @ Devi
2. L.Makarajothy
3. L.Manikandan ... Respondents/Petitioners/Plaintiffs
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution
of India, to set aside the order dated 18.01.2019 passed in I.A.No.427 of 2018
in O.S.No.5 of 2013 on the file of the Sub-Court, Periyakulam.
For Petitioners : Mr.V.N.Arjun
for Mr.N.Vallinayagam
For Respondents : Mr.R.Rajamohan
1/6
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.904 of 2019
ORDER
The present Civil Revision Petition has been by the petitioners under
Article 227 of Constitution of India, to set aside the order dated 18.01.2019
passed in I.A.No.427 of 2018 in O.S.No.5 of 2013 on the file of the Sub-
Court, Periyakulam.
2. The petitioners herein are the defendants and the respondents herein
are the plaintiffs before the Court below.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. The learned counsel for the petitioners/defendants has vehemently
submitted that the very order passed by the Court below permitting the
plaintiffs who are brothers's son of the 3rd defendant to have a change in ratio
of share from 1/4th to 1/3rd on the demise of 3rd defendant, is contrary to
Section 8 of the Hindu Succession Act, and he prayed to allow this Civil
Revision Petition.
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C.R.P.(MD).No.904 of 2019
5. The learned counsel appearing for the respondents would fairly
concede that their client comes under class II heir in entry four. Therefore, as
per Section 9 of the Hindu Succession Act, the preceding entry have a right
over the later entry.
6. This Court has given anxious consideration to the submissions of
the learned counsel on either side.
7. It is an admitted fact that the 3rd defendant viz., V.Kannan died
issueless. Upon the demise of said Kannan, who also happened to be the
mentally retarded person, the plaintiffs have filed an amendment application
to alter the quantum of share from 1/4th to 1/3rd on the ground that they are the
legal heirs of the 3rd defendant.
8. In respect of succession of male Hindu, Section 8 of the Hindu
Succession Act provides Rules of succession. For ready reference, Section 8
of the Hindu Succession Act, is extracted hereunder:
“8. General rules of succession in the case of
males.—The property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter:-
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C.R.P.(MD).No.904 of 2019
(a) firstly, upon the heirs, being the relatives
specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon
the heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two
classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the
cognates of the deceased.”
9. As per the above Section, if there is no heir of class I, then the
class II heirs are entitled to have the share of the deceased male Hindu.
Admittedly, the plaintiffs are not the class I heirs and they would only come
as class II heir. But, in the plaint, apart from the plaintiffs, the other sharers
who are brothers and sisters of the deceased Kannan, were impleaded as
parties to the suit. As per class II, the brother and sister comes in the second
entry, whereas, the plaintiffs being the son of predeceased brother come in the
fourth entry. Therefore, as per Section 9 of the Hindu Succession Act, prior
entry of class II shall be preferred to the later entry. Since the petitioners
come within the later entry, as per the Hindu Succession Act, they are not
entitled to have the share of the deceased Kannan/3rd defendant.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.904 of 2019
10. In this regard, the learned counsel for the petitioners has also
relied upon the judgment of this Court reported in 2019 (2) CTC 456
(Thirthagiri Vs.Chinnathambi Gounder and others). However, the Court
below, without taking into consideration the above aspects, has permitted the
amendment as if the plaintiffs can also have a share of the deceased 3rd
defendant, which finding is contrary to the Sections 8 and 9 of the Hindu
Succession Act and perverse. Therefore, the same is liable to be interfered
with.
11. In the result, this Civil Revision Petition is allowed by dismissing
the amendment application in I.A.No.427 of 2018. There shall be no order as
to costs. Consequently connected Miscellaneous Petition is closed.
16.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Sub-Court,
Periyakulam.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.904 of 2019
C.KUMARAPPAN,J.
ebsi
C.R.P(MD)No.904 of 2019
16.08.2023
https://www.mhc.tn.gov.in/judis
