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M.G. Kumara Pillai Vs. Kunjulekshmi Amma Bhavani Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 594 of 1967
Judge
Reported inAIR1972Ker66
ActsHindu Succession Act, 1956 - Sections 9 and 11
AppellantM.G. Kumara Pillai
RespondentKunjulekshmi Amma Bhavani Amma and ors.
Appellant Advocate Panicker and; Poti, Advs.
Respondent Advocate P.K. Kesavan Nair and; K.N. Narayana Pillai, Advs.
DispositionAppeal dismissed
Cases ReferredNagama Naicker v. Ponnuchinnayyan
Excerpt:
.....who seek partition to pay what he considers as proportionate share of expenses incurred by him - such amount claimed in present case - effect of admitting such claim practically negativates claim of petitioners as heirs to property of deceased may be burdened with such liability - held, claim of heirs attending obsequial ceremonies turned down. - .....more heirs may be related to the deceased through a deceased heir as in the case of children of a predeceased daughter or predeceased son. in such a case, the children of one predeceased daughter and the children of another predeceased daughter or son take per stirpes. for instance if a man dies leaving three children by a predeceased daughter and four children by a predeceased son the property will be divided half and half, the children of the predeceased daughter taking one half per stirpes and children of the predeceased son taking the other half per stirpes. but when the children' of the predeceased daughter divide the half taken by them they take per capita each daughter getting one-sixth. there is no joint tenancy between co-heirs taking under the act the property of an intestate......
Judgment:

P. Subramonian Poti, J.

1. The main question for decision in this appeal concerns the construction of Sections 11 and 19 of the Hindu Succession Act 30 of 1956. On the death of a Hindu, intestate, his properties devolve firstly upon his heirs, being the relatives specified in Class I of the Schedule. Where there are no heirs of Class I, then the properties devolve on the relatives specified in Class II of the Schedule. There are 9 entries in Class II and those in the successive entries come in as heirs in the absence of heirs in the previous entries. The case before me is one of a Hindu dying intestate without heirs mentioned in Class I of the Schedule and also without heirs mentioned in Entries 1, 2 and 3 of Class II of the schedule. It is not disputed that succession is to the heirs all of whom fall within Entry 4 in Class II. That entry specifies the categories of heirs which fall within it as (1) brother's son, (2) sister's son, (3) brother's daughter and (4) sister's daughter. The person to whose assets succession is claimed in the suit died leaving sons and daughters of two brothers and sons and daughters of one sister, altogether 11 in number. The question is whether each of them take 1/11th in the assets left by him or whether, for the purpose of division, the 4 groups mentioned in Entry 4 should be considered distinct and each group deemed to take one share.

2. Sections 11 and 19 of the Hindu- Succession Act, 1956 which are relied on for the purpose of this appeal run as follows:--

11. 'The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.'

19. 'If two or more heirs succeed together to the property of an intestate they shall take the property:--

(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and

(b) as tenants-in-common and not as joint tenants.'

3. Counsel for the appellant --first defendant -- attempts to argue that the provision of Sec. 11 means that the division between the heirs in any one entry in Class II of the Schedule shall be in such a way that each of the categories mentioned in the Schedule share equally. But apparently that is not supported by the language of the section. The provision is only that equal division shall be made between 'the heirs specified in any one entry in Class II'. It is not disputed and cannot be possibly be disputed that the reference to 'heirs specified in any one entry' in the section is, in relation to Entry 4 in Class II, reference to all the heirs of the 4 categories mentioned in that entry. That as between them there should be division otherwise than as equals is not only not indicated by the section but the indication is to the contra. Nor does Section 19 in any way advance the case of the appellant. Per capita division appears to be the rule and per stirpes the exception and therefore the court should assume the division to be per capita unless there is an express provision otherwise. That being the purport of Section 19(a) of the Hindu Succession Act 1956, I cannot read Section 11 of the Act in the manner in which counsel for the appellant would attempt to persuade me to read it.

4. Apparently counsel draws inspiration for his stand from a passage in the Text Book of Hindu Law. Principles and Precedents by N. R. Rashavachariar. In the 6th Edition of the. Text at page 898 the Author has commented On the scope-of Section 11.

5. Again in commenting on Section 19 at page 952 the Author says:--

'Heirs equally related to the deceased take equal shares per capita, but two or more heirs may be related to the deceased through a deceased heir as in the case of children of a predeceased daughter or predeceased son. In such a case, the children of one predeceased daughter and the children of another predeceased daughter or son take per stirpes. For instance if a man dies leaving three children by a predeceased daughter and four children by a predeceased son the property will be divided half and half, the children of the predeceased daughter taking one half per stirpes and children of the predeceased son taking the other half per stirpes. But when the children' of the predeceased daughter divide the half taken by them they take per capita each daughter getting one-sixth. There is no joint tenancy between co-heirs taking under the Act the property of an intestate. It must be noticed that even when sons take the self-acquisitions of the father on the letter's death on intestacy they take not as joint-tenants with right of survivorship but as tenants-in-common. In this there is a departure from the position obtaining under the law previous to this enactment. The position is the same when two or more daughters or co-widows succeed and they take their shares absolutely as tenants-in-common so that on the death of any of them the share of the deceased goes to her own heirs. Nagama Naicker v. Ponnuchinnayyan (1970-1 Mad LJ 437).' The author does not deal with the case of succession by heirs in Entry 4 of Class II. But it is true that what he has stated in regard to the heirs in Entries 2 and 3 may possibly indicate that his view with regard to heirs in Entry 4 is what counsel for the appellant has attempted to canvass before me. There is no difficulty in resolving this question in regard to heirs mentioned in Entries 5 to 9, because in all these entries there are only 2 heirs and therefore the question whether division should be per stirpes or per capita will not arise in such cases.

6. If the Text to which I have referred really means that the heirs mentioned in Entry 4 take per stirpes in four groups indicated in that entry, each group taking equal share. I must necessarily state that I do not subscribe to that view. Accepting the argument of counsel for the appellant would be, to treat all sons of brothers in a group of daughters of brothers in another group, similarly all sons of sisters in a group and all daughters of sisters in a group and that would be the four groups mentioned in Entry 4, if contention of counsel is to be accepted-Then it cannot be said that these groups take per stirpes because they are related to the deceased through a particular nearer relative. Neither logic nor the language of Section 11 of the Act would, apparently justify the contention canvassed by counsel for the appellant.

7. The view I have expressed in this judgment seems to be the same as that noticed in the 13th Edition of Mulla on Principles of Hindu Law. At page 813 of that treatise commenting on Section 11 it is said:--

'The equality, therefore, is between every individual heir of the intestate and not between the sub-divisions (really there are no sub-divisions) in any particular entry. Thus for instance if the intestate dies leaving him surviving as his heirs only one brother and foursisters who are among the heirs enumerated in Entry II the distribution will be that all the five heirs will share equally. Illustrations 2 and 3 which follow the passage which I have cited here are in accordance with the view I have expressed.

8. . The division therefore must be per capita among the heirs in Entry 4 of Class II and that is what has been found by the courts below. No interference is called for.

9. Another contention raised concerns what is claimed as expenses incurred by the first defendant for the obsequial ceremonies of the deceased to whose assets the parties claim succession. A claim of Rs. 700/- is made Apparently the property that the deceased had left is not considerable. It is shown to be 30 cents of land. The first defendant has no case that the other heirs requested him to incur expenses on their behalf in conducting the obsequial ceremonies. It is not disputed that he is only one of the several heirs of the deceased. Though he claims the expenses as Rs. 700/-, the evidence as to the quantum of expenses so met by him is very meagre. Apart from his own interested testimony he relies on what he calls an account, marked as Ext. D-2. Having gone through that account, I am not impressed that the entries therein could be relied on In support of his case. The other heirs do not admit that the sum which is claimed to have been expended by him has been actually so expended. They are also vehement in their contention that if at all any expense was met by him, it was voluntarily done and there is no question of reimbursement of such expenses.

10. Any one of the heirs of the deceased who takes upon himself the duty of attending to the obsequial ceremonies of the deceased without a request by the others, who are to be deemed equally interested, should normally be taken to have volunteered to do so. It may be that some of the heirs may not want obsequial ceremonies to be conducted in the manner and scale in which it is actually conducted by one of the heirs. Therefore unless there is evidence of common consent by the heirs to have the obsequial ceremonies conducted by any particular person, he cannot claim to reimburse himself from the other heirs of whatever has been spent by him in that behalf. Normally when a person takes up the responsibility of conducting such ceremonies, besides the idea of propitiating the soul of the dead, there is necessarily involved in it the idea of enhancement, socially, of the prestige of theperson who conducts them. Possibly he may stand to gain socially if the society is made to understand that apparently, it is he who has been attending to the obsequies and incurring expenditure in that behalf. Having obtained that advantage and having conducted the obsequies in a fashion and scale of his own choice, it cannot be open to him to call upon the heirs who seek partition to pay what he considers as a proportionate share of the expenses incurred by him. That is what is claimed here and in the circumstances I have no hesitation in turning down his claim. As rightly pointed out by counsel for plaintiffs, the effect of admitting such a claim would practically be to negative their claim as heirs to share in the property of the deceased, as even the small extent of the assets they may get on partition will be burdened with such liability as is likely to render their shares of practically no value.

11. In the circumstances of this case I see no reason to accept either of the contentions raised before me. The second appeal fails and is dismissed. But in the circumstances of this case I direct parties to suffer costs in this appeal.


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