SHANMUGHASUNDRATHAMMAL Vs. NARAYANA KONAR

JUDGEMENT

(1.) THE plaintiff is the appellant. He sued for declaration of his title to the suit property and for recovery of the same from the three defendants. The case of the plaintiff was that the suit property originally belonged to one Sudalaimuthu Konar, that after his death his widow, Somu Ammal was in enjoyment of the same till her death on 22-3-1966, that Somu Ammal had a daughter Kasamadi who predeceased her leaving no issues and that after her death Somu Ammal sold the properties to her brother the first defendant under a registered sale deed dated 21-6-1935. One Shanmugha Konar and his brother Enasamuthu filed a suit O. S 275 of 1935 on the file of the District Munsif, Srivaikuntam for a declaration that the sale deed executed by Somu Ammal was not binding on them as reversioners and succeeded in obtaining a decree. After the death of Somu Ammal the suit property is claimed by the plaintiff as the nearest heir of Sudalaimuthu as per the provisions of the Hindu Succession Act, 1956.

(2.) THE defendants resisted the suit contending that the third defendant has been taken in adoption by Somu Ammal he is entitled to succeed to the suit property. They also contended that in any event, the succession to the properties has to be governed by the law of succession as on the date of Sudalaimuthu's death and not under the Hindu Succession Act which was in force on the date of the death of somu Ammal.

(3.) BOTH the courts below held that the case of adoption set up by the defendants has not been established. Therefore, we have to proceed on the basis that the third defendant has not been adopted by Somu Ammal and he cannot claim the suit property on that basis. But the courts below differed in their view as to the applicability of the law of succession. The trial court felt that the question as to who is to succeed to the suit property after the death of Somu Ammal has to be found out with reference to the Hindu Succession Act which was the law in force relating to Hindu Succession prevailing at the time of Somu Ammal's death. But the lower appellate Court has taken the view that the orthodox law of succession which prevailed at the time when Somu Ammal's husband Sudalaimuthu died has to be applied. It is for consideration in this second appeal as to which of the two differing view is correct.