VALLIKANNU Vs. R SINGAPERUMAL

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned single Judge of Judicature at Madras whereby the learned single Judge by his order dated 6th March, 1997 has allowed the Second Appeal No. 773 of 1983 filed by the respondent-1st Defendant herein.

(2.) Brief facts which are necessary for disposal of this appeal are : That an Original Suit No. 87/1978 was filed in the Court of the District Munsif, Melur by the plaintiff-appellant (herein). The schedule properties are the self-acquired properties of late Ramasami Konar and the first defendant was the only son of Ramasami Konar and the plaintiff is the wife of the first defendant. Wife of Ramasami Konar was already divorced and married with some other person and was residing separately. It is alleged that the first defendant in the suit married the plaintiff-appellant and both were residing as husband and wife. On 10th October 1972 the first defendant murdered his father, Ramasami Konar and was convicted under Section 302-IPC for life imprisonment. The conviction of the first defendant was confirmed by the High Court but the High Court recommended the Government to reduce the sentence to the period already undergone. The first defendant was released in July, 1975. Since the first defendant murdered his father, he was not entitled to succeed to the estate of his deceased-father and as such the claim of the plaintiff was that she alone was entitled to all the properties left by the deceased-Ramasami Konar. According to the plaintiff, the first defendant must be deemed to have predeceased as provided under Section 25 read with Section 27 of the Hindu Succession Act. She claimed to be the widow of the first defendant and claimed to be the owner of all the properties left by Ramasami Konar as coparcener. After the release of the first defendant from the prison, first defendant lived with the plaintiff for some time but after some time she was driven out of the house. Second defendant is already impleaded in the suit as tenant claiming under first defendant. Plaintiff, therefore, prayed that she may be granted the relief of declaration as she is entitled to inherit the entire estate of the deceased-Ramasami Konar. As against this it was contended by the first defendant that the suit was not maintainable as the plaintiff is not the legal heir of Ramasami Konar. It was alleged that all the properties acquired by the Ramasami, were joint family properties and the first defendant has acquired the same by survivorship. The Trial Court by Order dated 31st March, 1980 held that all the properties are joint family properties of the deceased Ramasami Konar and first defendant. The second defendant is a cultivating tenant. The first defendant having murdered his father is not entitled to claim any right under Section 6 read with Sections 25 and 27 of the Act but as per proviso to Section 6 of the Hindu Succession Act plaintiff is entitled to a decree for half share and accordingly it was granted to the plaintiff. This matter was taken up in appeal by defendant No.1. The lower Appellate Court also confirmed the finding of the Trial Court but modified the decree that it may be treated as preliminary decree. The lower Court also held that first defendant must be treated as non-existent. The plaintiff became a Class I heir under Schedule 1 of the Hindu Succession Act and she was entitled to a share in the property. The appeal was dismissed.

(3.) Aggrieved against this, the first defendant preferred a second appeal before the High Court.