Indian Kanoon - Search engine for Indian Law

6. We may also notice here that during the pendency of the suit, defendant No.4 also passed away issueless. The amended suit was, therefore, pursued by the L.Rs of deceased Lalithamma.

7. In the written statement, it was claimed by the defendant No.1 that Puttathayamma had executed a Will on 18.6.1974 in favour of Indiramma. Consequently, there was no intestate succession. Testamentary succession devolved on late Indiramma. Therefore, neither the plaintiffs nor the 4th defendant could succeed to the properties of Puttathayamma at all. During the life time of Indiramma, her sister did not care to even look after her. The moment she died, they have claimed to be heirs of her estate. Defendant No.1, on the other hand, is the son of Seethamma, sister of Puttathayamma. He denied the entire claim made by the plaintiffs. He further explained that he had informed the plaintiff and defendant No.4 about the death of Indiramma. Although the plaintiff turned up on the 5th day, the 4th defendant did not choose to come at all. Defendant No.1 further claimed to have carried out extensive repairs of the house. It is also pleaded by defendant No.1 that Indiramma was the second wife of one Chalapati Rao, who pre-deceased her. Although Chalapati Rao did not beget any children with Indiramma, he died leaving four sons and two daughters from his first wife. According to the first defendant, the legal heirs of Chalapati Rao would have preference over the appellants and defendant No.4. Therefore, under any circumstances, no relief could be granted to them.

8. In reply to the amended plaint, defendant No.1 stated that an agreement of mortgage had been created in favour of 5 th defendant in respect of the schedule property. Upon receiving Rs.1,00,000/-, defendant No.1 has put defendant No.5 in possession.

9. With these pleadings parties led their evidence. Upon consideration of the entire material, the suit filed by the appellants herein was dismissed by the Trial Court.

10. The Trial Court notices that defendant No.1 is the son of Seethamma, sister of Puttathayamma. It is also noticed that Indiramma was the second wife of one Chelapathirao who had six children from his previous marriage. Indiramma, however, died issueless. The Will dated 18.6.1974 was produced by defendant No.1, during evidence. The Trial Court observed that the plaintiffs have not seriously disputed the execution of the Will by Puttathayamma in favour of Indiramma. Defendant No.1 had examined the scribe of the Will as DW2 to prove the Will. It has been held that the appellants in fact admitted the execution of the Will in a subsequent suit being OS No.233 of 1998 which was filed by the appellants herein as the legal heirs. In view of the testamentary succession, Indiramma became the absolute owner of the schedule property. Since husband of Indiramma had pre-deceased her, the property would devolve upon his children under Section 15 (1) (b) of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act"). It would not devolve on the appellants and defendant No.4 under Section 15(2) of the Act. The Trial Court further notices the claim made by the first defendant during trial that Indiramma had executed a Will in his favour dated 2.10.1984, bequeathing the schedule property to him. The Trial Court further notices that though defendant No.1 had got the Will dated 2.10.84 marked as Exhibit, he had not chosen to examine any of the attesting witnesses to the document. Defendant No.1 had earlier not instituted any proceedings to prove his title over the schedule property pursuant to the alleged Will. Consequently, the claim of defendant No.1 over the schedule property has also been negatived. However, in view of the finding that appellants and defendant No.4 cannot not inherit the property of Puttathayamma under Section 15 (2) of the Act, the suit has been dismissed.

13. The High Court further holds that since the property had been acquired by Indiramma through Will, Section 15(2) of the Act would not be applicable. It is noticed that "The provisions of Section 15 (2) will apply only when the property is acquired by a female by way of intestate succession, otherwise, the property would devolve as directed under sub-Section (1). May be, the children of deceased husband of Indiramma being step sons, are not entitled to succession under sub-sec. (1) (a), but however as heirs of the husband, under sub-sec. (1) (b) of Sec.15, they will be entitled to succeed to the estate. In that view of the matter, the claim of title of property by the plaintiffs is untenable." It is further held that since the children of the first wife would be entitled to succeed to the estate, the appellants (plaintiffs) have no right to seek the relief of title by succession. Consequently, the appeal was allowed. The judgment and decree of the Appellate Court was set aside. The judgment and decree of the Trial Court was confirmed. This judgment is challenged before us in the present appeal.

 "10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by her from her husband or father- in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be -- if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father."