NARAYANAN Vs. PUSHPARAJINI

JUDGEMENT

(1.) Plaintiff is the appellant. The suit is for partition and recovery of 5/32 shares of the plaintiff in plaint schedule properties. The properties belonged to one Sri Madhavan, who was the son of Ayyappan. Ayyappan had two wives namely., Kunhimalu alias Madhavi and Kalyani. Plaintiff is the son and defendants 4 and 5 daughters of Ayyappan through his first wife Kunhimalu. Madhavan is ia son and defendants 1 to 3 daughters of Ayyappan through his second wife Kalyani. In 1964, the legal heirs executed a registered partition in respect of the joint properties and the plaint schedule properties were allotted to Sri. Madhavan and his mother Madhavi. Madhavi died in 1970. After her death, her half share also devolved on Madhavan and defendants 1 to 3. Madhavan died in 1975 leaving no wife or children to inherit his properties. The plaintiff, who is a half brother of Sri. Madhavan, has filed this suit for partition and recovery of 5/32 shares in the plaint schedule property. The defendants who are the sisters of Madhavan contended that the plaintiff is not entitled to any share and they alone are heirs of Madhavan under S.8 read with S.18 of the Hindu Succession Act, 1956. Both the courts below accepted the defence contention and dismissed the suit and hence the appeal by the plaintiff.

(2.) The only question that arises for consideration in this appeal is the interpretation of S.18 of the Hindu Succession Act. From the facts it is clear that defendants 1 to 3 are the direct sisters (sisters by full blood of Madhavan) the plaintiff and defendants 4 and 5 are the brother and sisters of Madhavan by half blood, their mother being different. Under S.8 of the Hindu Succession Act, the property of a Male Hindu dying intestate shall devolve firstly upon the heirs mentioned in class I of the schedule. S.8 further provides that if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the schedule. Madhavan has not left any heir mentioned in Class I of the schedule. Item No. 3 in Class II is brother and 4 is sister. The question is as to whether the plaintiff, who is a brother by half blood of Madhavan is entitled to inherit the property or defendants 1 to 3 alone are the heirs of Madhavan, they being direct sisters. The contention of defendants 1 to 3 is that under S.18 of the Hindu Succession Act, an heir related to an intestate by full blood shall be preferred to heirs related by half blood. S.18 of the Hindu Succession Act is to the following effect:--'

(3.) Counsel for the appellant plaintiff contended that S.18 will apply only if the nature of the relationship is the same in every other respect between the heirs made mention of in S.18. On the other hand, the contention of the counsel for defendants 1 to 3 is that the plaintiff being a half brother will be excluded by virtue of the provision contained in S.18 as the nature of the relationship between him and defendants 1 to 3 who are sisters is the same in every respect. In other words, the contention of the counsel for the plaintiff is that the nature of the relationship to be the same even the sex of the parties has to be the same. On a reading of S.18 of the Hindu Succession Act, I am not inclined to agree with the contention raised by the appellant plaintiff. On a plaint reading of the Section it is clear that the words used therein are "nature of the relationship is the same in every other respect" and not that the relationship should be of the same nature. From the above wording of the Section, it is clear that the relationship of a brother and sister is the same irrespective of the difference in sex among them. To find out whether a person is excluded under under S.18 or not, the relationship is to be reckoned in terms of the degrees of ascent or descent or both. If the argument of the counsel for the appellant plaintiff is to be accepted, the plaintiff, a half brother alone will be entitled to a share whereas defendants 4 and 5 who are half sisters of deceased Madhavan will not be entitled to the share in the property. That could not have been the intention of the legislature. It makes a distinction between a brother and sister solely on the basis of sex. The Hindu Succession Act was enacted for the purpose of giving an equal right to a son and a daughter whereby taking away the distinction between them which existed under the Hindu Law. From the wording of S.18 and from the object of the Hindu Succession Act, it is abundantly clear that the Act never intended to make any difference between a man or woman in case of succession of the properties of a male or female. The expression used in S.18 being nature of the relation, I have no hesitation to hold that it is the same so far as defendants 1 to 3 on the one hand and the plaintiff on the other inspite of the fact that plaintiff is a brother. If that be so, by virtue of S.18 of the Hindu Succession Act, full brothers and sisters have to be preferred and the plaintiff will stand excluded notwithstanding the fact that he will be an heir coming under section Class II of the Schedule. As defendants 1 to 3 who are sisters by full blood are available as heirs of Madhavan, certainly the plaintiff who is only a brother by half blood will be excluded from inheritance by virtue of the provisions contained in S.18 of the Act.