1. Defendants 3 to 7 are the appellants in Second Appeal. The 3rd defendant purchased the suit property from defendants 1 and 2 under a sale deed dated 10-9-1957 . The plaintiff who died subsequent to the filing of the second appeal, claimed that the property was inherited by her from her mother and sued for cancellation of the sale deed executed by defendants 1 and 2 in favour of the 3rd defendant and for possession of the suit property. According to the case of the 3rd defendant , the property originally belonged to the defendants 1 and 2. The 1st defendant sold the property to Janakamma, the mother of the plaintiff on 29-4-1946. Janakamma died in 1950. Before her death Janakamma joined her husband, the 1st defendant and his brother the 2nd defendant in executing a mortgage over the suit property. The mortgagee filed O. S. No. 208/1956 to enforce the mortgage. When the property was about to be brought to sale the 3rd defendant to whom the property had been sold in the meanwhile by defendants 1 and 2 paid off the amount of the mortgage and satisfied the decree. The 3rd defendant claimed that even the original sale in favour of defendants 1 and 2 was sham and nominal. The lower courts decreed the suit. After the filing of the second Appeal the plaintiff died. If her father , the 1st defendant that sold the second appeal is to be allowed since it was the 1st defendant that sold the property to the appellants. If, on the other hand, the father is not the heir but the second wife and the second wife's children of the father are the heirs then it is necessary to go into merits of the Second Appeal.
2. Sri N. V. Ranganadham, learned counsel for the appellants urged that under Section 15 of the Hindu Succession Act it was the father that was the heir of the plaintiff while Sri. P. Kodandaramayya, learned counsel for the respondents urged that it was the second wife and the children of the father of the second wife that were the heirs of the plaintiff. Section 15 is as follows :--
'15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Sec. 16 --
(a) firstly, upon the sons and daughters (including the children of any predeceased 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) Nothwithstanding 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 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 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 .'
Prima facie it appears from Section 15 father's heirs are made the heirs when a female Hindu dies leaving property inherited by her from her father or mother, in the absence of any son or daughter of the deceased. This is also the view expressed by Mulla in his Commentary on the Hindu Succession Act at page 842. But a little closer examination shows that his interpretation is not correct. It should be noticed that there can be no question of the 'heirs of the father' during the lifetime of the father. There can be heirs only after a person is dead. Until he is dead there are only heirs-apparent . Therefore a reasonable way of interpreting Section 15(2)(a) would be to supply what was not intended to be omitted. Prof. J. Duncan M. Derrett in his 'Introduction to Modern Hindu Law' in paragraph 622 says :
'The exceptions to the general rule are motivated by a clear (and traditional) desire that property shall not pass from family to family merely by a female's death intestate. Where property was inherited by her from her parent or parents, it shall not pass to her husband or to her husband's heirs where she dies without children or children of predeceased children. If such children or grand-children survive her there is no objection to the husband taking a share even in such property, otherwise he is excluded, and so are his heirs , and the property was inherited by her from her mother , and her father survives her Since the section provides that it shall pass to the heirs of a person who turns out to be alive (and so has no heirs), should it go to the Government under HSA. S. 29 The answer must be that here we have an example of the very rare phenomenon, the legislative provision which is absurd unless words are added. We are justified in reading 'upon the heirs of the father' father upon the heirs of the father'. Under the maxim of construing ut res magis valeat quam pereat.'
3. I think what the learned professor has said must, in reason, be accepted. The second appeal is, therefore, allowed. There will be no order as to costs. Leave granted to the petitioners in C. M. P. No. 7133 of 1973 to file an appeal under Clause 15 against the judgment in the Second Appeal.
4. Appeal allowed.