B DEIVANAYAGAM PILLAI Vs. SUBBIAH PILLAI

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. The property which is the subject matter of this litigation is a house in Palamcottah which belonged to one Esakkia Pillai, who died sometime about 1935 leaving behind three brothers Swarnam Pillai, Sambasivam Pillai and Kuppam Pillai. Sambasivam Pillai died in 1938 and his son Subbiah Pillai became entitled to his estate as his heir and Swarnam Pillai died sometime in 1945 and his widow Parvathi Ammal succeeded to his properties as his legal representative. On 11-7-1946 the plaintiff purchased the interest of Subbiah Pillai and Parvathi Animal on the footing that each of them was entitled to a third share in the house. Meantime on 27-5-1946 the first defendant had purchased the house from Kuppam Pillai on the footing that he was solely entitled to it. On the basis of his sale deed dated 11-7-1946 the plaintiff filed the suit out of which the present appeal arises for partition and delivery of two thirds share in the house on the allegation that Swarnam Pillai and Sambasivam Pillai became each entitled to a third share in it as the heir of Esakkai Pillai. The suit was resisted on the ground that both Swarnam Pillai and Sambasivam Pillai had become divided from Esakkia Pillai, whereas Kuppam Pillai was joint in estate with him and that though the house was the separate property of Esakkia Pillai, Kuppam Pillai was entitled as his coparcener to exclude the divided brothers, Swarnam Pillai and Sambasivam Pillai. The courts below accepted this contention and held that on the death of Esakkia Pillai the house devolved exclusively on Kuppam Pillai; that neither Swarnam Pillai nor Sambasivam Pillai was entitled to any share therein and accordingly dismissed the suit. The plaintiff appeals and contends that under the Hindu Law all the brothers are equally entitled to inherit as co-heirs and that it would make no difference in their rights, that any of them was joint with the propositus. As the question is not covered by any authority, in this Court, this second appeal has been referred to a Bench for decision.

(2.) The general rule is that all persons standing in the same degree of relationship to the propositus are entitled to inherit the estate together. This is subject to any special rule of preference that might obtain, such, for example, as that among heirs of the same class, those of the full-blood would be preferred to those of the half-blood. Swarnam Pillai, Sambasivam Pillai and Kuppam Pillai were all of them brothers of the full-blood, and they would all be entitled to succeed to the estate of Eskakkia Pillai as his heirs. The court below held that Kuppam Pillai was entitled to exclude his brothers for the reason that he was joint in estate with the propositus, and that under the Hindu law, in a competition between persons who are joint and persons who are divided, the former would be entitled to preference. 'Nana Tawker v. Ramachandra Tawker', 32 Mad 377 (A) was relied on as establishing this principle. There the question related to succession to the self-acquired property of one Jagannath Tawker, the contest being between a son who was joint with him and a son who had become divided from him. It was held by this court that the undivided son would exclude the divided son. The ground of the decision was that under Clause 27 of Sub section 1, Chapter I of the Mitakshara, "the son had a right by birth in the properties of the father whether ancestral or self-acquired", and that "succession to the self-acquired property of the father would, where there was an undivided son, be by survivorship rather than by inheritance and he who took by survivorship would exclude those, such as divided sons, who could only take in any case by inheritance". These observations came in for considerable comment in -- 'Viravan Chettiar v. Srinivasachariar', AIR 1921 Mad 168 (PB) (B) where the question was whether a son who was as heir entitled to an outstanding due to his father was bound to produce a succession certificate therefor. It was held that he was. With reference to the actual decision in --'32 Mad 377 (A)', Oldfield J. observed that me rule regarding the order of succession that the undivided are preferred to divided sons whatever its exact basis and the possibility of reconciling it with the other parts of Mitakshara system, must be regarded as established." In -- 'Narasimha Rao v. Narasimham', AIR 1932 Mad 361 (C) the question arose directly for decision whether an undivided son was entitled to inherit the separate property of his father to the exclusion of the divided son. It was held following -- '32 Mad 377 (A)' that he was. The ground was thus stated;

(3.) In -- 'Shamarao v. Krishnarao', AIR 1941 Nag 297 (G) it was held that "the brothers of the propositus were all of them entitled to inherit equally without reference to the fact whether they were Joint in estate with. the deceased or not." The decisions in which the undivided son was preferred to the divided son were explained on the ground that under the Mitakshara the son acquires some interest by birth even in the self-acquired property of the father though the latter has got power to alienate it or dispose of it by will and that when he dies intestate it must be considered to be ancestral property in the hands of his sons and that this principle was inapplicable when the property devolves on brothers. The conclusion was thus stated: