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The suit properties were originally owned by one Perumal Naidu, son of Ayyanna Naidu of Virinjur Village. Perumal Naidu had two wives and the name of the second wife was Ammathayee Ammal, through whom, Perumal Naidu had only one daughter, by name, Muthulakshmi. Perumal Naidu's first wife also had only daughters, by name, Venkattamma and Seethalakshmi and no sons. Hence, Perumal Naidu had adopted one Ramachandra Naidu as his son, whose son was Damodara Naidu. The said Damodaran Naidu died leaving behind the plaintiffs, who are his widow and children. Perumal Naidu, while in his sound disposing state of mind, had left a Will dated 17.01.1908 and it was registered in the Sub Registrar's Office, Nagapattinam on 09.04.1908. In the said Will, 'A' schedule property was allotted to Ammathayee Ammal; 'B' schedule to Muthulakshmi; 'C' schedule to Venkatammal; 'D' schedule to Seethalakshmi and 'E' schedule to his adopted son. Ammathayee Ammal died on 12.10.1950. The adopted son of Perumal Naidu had predeceased Ammathayee Ammal and hence his only son Damodara Naidu and his wife Padmavathi (1st plaintiff) filed a suit in the District Court, Nagapattinam for recovery of possession of the properties in O.S.No.54 of 1953. In the said suit, there was a compromise and as per the terms of which, the 'A' schedule property, which devolved on Muthulakshmi Ammal, on the death of Ammathayee Ammal, was shared between Muthulakshmi and Damodaran. Subsequently, Muthulakshmi and her husband Muthukrishnan died and their son, viz., Damodaran also died unmarried. Muthulakshmi's only daughter Vatsala got married to one Rajaram and they had one daughter viz., Usha @ Pappa. Vatsala also died. Thereafter, Usha and her father Rajaram also died on the same day on 27.06.1996. Therefore, all the properties of Muthulakshmi have devolved upon the heirs of her parents. The son of the adopted son, viz., Damodaran also died. Therefore, the plaintiffs are the heirs of Perumal Naidu and his second wife Ammathayee Ammal.

8. Learned counsel for the appellant/1st defendant submitted that the trial court, by considering the entire evidence rightly dismissed the suit by holding that since respondents 1 to 3/plaintiffs are the legal heirs of Perumal Naidu, they cannot succeed to the suit properties, which lastly devolved on the minor Usha, merely for the reason that Usha died without leaving behind any legal heirs. Further, the trial court, by adverting to Section 15 of the Hindu Succession Act, has come to a conclusion that the appellant cannot be construed as the legal heir in respect of the properties of a female Hindu dying intestate, held that since neither the appellant nor the respondents cannot succeed to the property, as per section 29 of the Hindu Succession Act, the property shall devolve on the Government and thereby dismissed the suit. But the appellate court, on a wrong interpretation of the provisions of the Hindu Succession Act, has come to a conclusion that as per section 8 of the said Act, which defines 'General Rules of succession in the case of males', the plaintiffs can succeed to the properties of Usha. Section 8 deals about the property of a male Hindu dying intestate and not female Hindu dying intestate. Therefore, by a wrong interpretation of the provisions of the Hindu Succession Act, the appellate court has reversed the finding of the trial court and under such circumstance, the second appeal has to be allowed by setting aside the decree and judgment of the appellate court.

13. From the above facts, it could be understood that it is the case of respondents 1 to 3 that as the legal heirs of Perumal Naidu, they are entitled to the suit properties, which devolved upon Usha from Muthulakshmi, whereas it is the case of the appellant that the father of Usha executed a Will dated 15.04.1996 in his favour and he is entitled to the suit properties. It is the further case of the appellant that on 27.06.1996 morning, Usha, the daughter of Rajaram died and as such, the properties were devolved upon him and he also died on the same day evening. Therefore, at the time of death of Usha, Rajaram was the absolute owner of the schedule properties and under such circumstances, as per the Will executed by Rajaram, the appellant is entitled to the properties. It is the further contention of the appellant that since he is disputing the title of respondents 1 to 3 over the suit properties, the suit filed by them for recovery of possession without the prayer for declaration is not maintainable.

14. On a perusal of the trial court judgment, I find that the trial court has come to the conclusion that though it was claimed by the appellant that Usha died in the morning and her father died in the evening on the same day, no tangible proof was produced by the appellant to prove their death. Under such circumstances, the trial court, by drawing the presumption under Section 21 of the Hindu succession Act i.e. 'the younger survived the elder' has held that it has to be construed that the father died in the morning and the daughter died in the evening and that the entire properties lastly devolved upon only Usha and not on Rajaram. Thereafter, the trial court, by adverting to Section 15 of the Hindu Succession Act that the devolvement of the properties of a female Hindu dying intestate, has come to the conclusion that respondents 1 to 3 cannot succeed to the properties of the Hindu female dying intestate since respondents 1 to 3 will not come under 'Class I heirs' as mentioned in section 15 and under such circumstances, neither the appellant nor respondents 1 to 3 cannot succeed to the properties and hence, as per section 29 of the said Act, the properties have to be devolved on the Government since, in accordance with the provisions of this Act, the intestate had left no heir, qualified to succeed to his or her property. Aggrieved over the dismissal of the suit, the respondents 1 to 3 herein filed an appeal before the first appellate court, which set aside the finding of the trial court, by adverting to section 8 of the said Act and held that since Usha died unmarried, the properties will revert back to Muthulakshmi and from Muthulakshmi, it will revert back to Ammathayee Ammal and as the legal heirs of Perumal Naudi, respondents 1 to 3 are entitled to inherit the properties as per Section 8 of the Act.