J.C. SHAH, J.
1. One Arumugam had three sons, — Thanu, Shanmugam and Sankaran, and a daughter Ramalakshmi. Shanmugam died in 1942 and his estate devolved upon his daughter Chidambarathammal. By virtue of Section 14 of the Hindu Succession Act, she acquired, when that Act was brought into force an absolute interest in the ‘estate inherited by her from Shanmugam. Chidambarathammal died in February, 1957, when she was a minor and unmarried. Arunachalathammal, one of the daughters of Ramalakshmi Ammal, sister of Shanmugam, commenced an action in the Court of the District Munsiff for partition and separate possession other 1/24th share out of the estate of Chidambarathammal. The claim was resisted by the sons of Thanu and Sankaran — brothers of Shanmugam. The trial court decreed the claim and that decree was confirmed in second appeal to the High Court of Madras.
2. In this appeal Mr Chagla, for the appellant, contends that Aruna-chalathammal was under the Hindu Succession Act not entitled to a share in the state of Chidambarathammal. The relevant provisions of the Hindu Succession Act, 1956 may be noticed. Section 16(1) of the Act provides:
“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 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.”
By Section 16 it is provided:
“The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely:
Rule 1. Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2. * * *
Rule 3. The devolution of the property of the intestates on the heirs referred to in clauses (a), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.”
Section 8 of the Act provides:
“The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter —
(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 relatives specified in Class II of the Schedule;
(c)-(d) * * *”
3. The claimants to the estate of Chidambarathammal fall within clause (4) in sub-section (1) of Section 15, and by virtue of Section 16, Rule 3 the devolution of the property will be in the order and according to the rules as would have applied as if the properly were of Shanmugam and he had died immediately after Chidambarathammal. The claimants to her estate fall within Class II, Item IV of the Schedule to the Act — (1) Mother's son, (2) Sister's son, (3) Brother's daughter, (4) Sister's daughter.
4. It was urged by Mr Chagla that amongst the heirs specified in Item IV of Class II the heirs in sub-item (1) take the property in preference to heirs mentioned in item (2), and heirs mentioned in item (2) in preference to heirs mentioned in item (3), and soon. But we have held on Satya Charan Dutta v. Urmilla Sundari Desai1, Civil Appeal No. 1356 of 1966, decided on September 9, 1969 that all the hells mentioned in an item of Class II of the Schedule take the property simultaneously and heirs specified earlier in the same sub-item do not exclude those latter in the sequence. The descendants of the brothers of Shannugam and of Ramalakshmi, his sister, therefore take the estate in equal shares.
5. Mr Chagla raised an alternative contention that the estate in the possession of the deceased must be deemed to have the same character as it had when Shanmugam died and thereafter the provisions of Section 6 of the Act applied in determining the rights of the claimants thereto. There is no substance in this contention. Section 16, Rule 3 on which reliance is placed by counsel merely designates the heirs; it has no relevance in determining the nature of the property. There is nothing in Rule 3 to support the contention that the estate of a person dying intestate is to be restored to the character which it had when it devolved upon the propositus: the rule specifies a method of determining the preferential heirs, and for that purpose creates a fiction. The heir of the father, mother or the husband, of the propositus who would have taken the estate if he had immediately died after death of the propositus is the heir to the propositus. It is common ground that the estate upon Chidambarathammal on the death of Shanmugam was property which he received on partition, and Section 6 of the Act has no application to property received by a member of a joint family on partition. Again Section 6 in terms applies only to those cases where a Hindu dies after the commencement of the Act having at the time of his death an interest in a Mitakshara coparcenary property. In our view the contention that the property must be deemed to be restored to the character of interest in coparcenary property and devolves under Section 6 is without substance.
6. The appeal fails and is dismissed. There will be no orders as to costs.