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Thanthoni Naicker Vs. Kuppammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1652 of 1969
Judge
Reported inAIR1973Mad274; (1973)1MLJ25
ActsHindu Succession Act, 1956 - Sections 11
AppellantThanthoni Naicker
RespondentKuppammal and ors.
Cases ReferredRangasami Gounder v. Rakkayyee Ammal
Excerpt:
- - i am of the opinion that the implication of the decision of the supreme court as well as my decision is that all the persons coming within the particular entry, take the property equally as between themselves and not that the appellant herein belonging to the group or unit of a 'brother' shares the property equally along with the respondents belonging to a single group or unit of 'sister' of the deceased......be divided between the heirs specified in any one entry in class ii of the schedule so that they share equally.'class ii of the schedule contains several entries, such as-'i. father ii. (1) son's daughter's son (2) son's daughter's daughter, (3) brother, (4) sister, iii. (1) daughter's son's son (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter, iv. (1) brother's son (2) sister's son, (3) brother's daughter, (4) sister's daughter. v. father's father; father's mother vi. father's widow; brother's widow vii. father's brother; father's sister viii. mother's father; mother's mother ix. mother's brother; mother's sister.' the controversy is what exactly is the scope of the expression 'entry' that occurs in section 11, whether it denotes only the.....
Judgment:

1. The defendant in O. S. No. 39 of 1965, on the file of the court of the District Munsif, Ranipet, who succeeded in part before the trial Court but lost before the first appellate Court, is the appellant herein. The matter in second appeal lies within a very narrow compass. The suit properties admittedly belonged to one Thiruvengada Naicker, brother of the appellant and the respondents herein. The respondents, who are five in number, instituted the suit for partition and separate possession of their five-sixths share in the suit properties. The contention of the appellant was that the respondents were not entitled to five-sixth share and that if at all they were entitled to only one half of the suit properties jointly, the other half belonging to the appellant. The learned District Judge who tried the suit accepted this case of the appellant, while the learned Subordinate Judge, Vellore, on appeal, rejected this case and directed that the respondents and the appellant will divide the properties equally, the respondents, five in number, together taking five-sixths shares and the appellant taking one-sixth share. For coming to this conclusion, he followed the decision in Arunachalathammal v. Ramachandra Pillai, : AIR1963Mad255 . It is the correctness of this conclusion of the learned Subordinate Judge that is challenged before me in second appeal.

2. The matter has to be decided having regard to the language of Section 11 of the Hindu Succession Act, 1956, read with the schedule. Section 11 states :--

'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.'

Class II of the schedule contains several entries, such as-

'I. Father

II. (1) Son's daughter's son

(2) Son's daughter's daughter,

(3) Brother,

(4) Sister,

III. (1) Daughter's son's son

(2) Daughter's son's daughter,

(3) Daughter's daughter's son,

(4) Daughter's daughter,

IV. (1) Brother's son

(2) Sister's son,

(3) Brother's daughter,

(4) Sister's daughter.

V. Father's father; father's mother

VI. Father's widow; brother's widow

VII. Father's brother; father's sister

VIII. Mother's father; mother's mother

IX. Mother's brother; mother's sister.'

The controversy is what exactly is the scope of the expression 'entry' that occurs in Section 11, whether it denotes only the group of persons represented by the Roman numerals or the persons referred to by Arabic numerals. This question was considered by the Supreme Court in Satyacharan v. Urmilla, : [1970]2SCR294 , and the Supreme Court held that the expression 'entry' occurring in Section 11 denotes all the persons covered by the Roman numerals. I have followed that decision in my judgment in Rangasami Gounder v. Rakkayyee Ammal, (1971) 84 MLW 724. Mr. Ramamurthi, the learned counsel for the appellant points out that in those two cases the exclusion of the one by the other was considered; and the question whether the persons belonging to two groups take the property equally as two separate groups or all of them take the property equally as individuals, has not been considered. I am of the opinion that the implication of the decision of the Supreme court as well as my decision is that all the persons coming within the particular entry, take the property equally as between themselves and not that the appellant herein belonging to the group or unit of a 'brother' shares the property equally along with the respondents belonging to a single group or unit of 'sister' of the deceased. This conclusion flows from the language of Section 11 itself which states that the property shall be divided between the heirs specified in the entry to that they share equally. The expression 'they share equally' will refer to the individual heirs and not to any particular group of heirs constitution as one unit. If so, the conclusion is irresistible that the learned Subordinate Judge was right in holding that the five respondents, together, will be entitled to five-sixths share and the appellant, to only one-sixth share.

3. The second appeal, therefore, fails and is dismissed. There will be no order as to costs. No leave.

4. Appeal dismissed.


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