KRISHNASWAMI CHETTIAR Vs. SANKILI CHETTIAR

JUDGEMENT

(1.) The second appeal has been placed before a Bench id view of a very interesting question of Hindu law regarding Stridhana succession raised by it.

(2.) The relevant facts are not in dispute. The property in suit was purchased by five persons along with one Vella Ammal with the last of whom alone we are now concerned. It is conceded that under this purchase Vella Ammal was entitled to a sixth share and it is the succession to this share that forms the subject-matter of these proceedings. Vella Ammal died on 18-5-1941 without issue. As there is no proof that she was married in any un-approved form, the succession, to the property which is admittedly the stridhana property of Vella Ammal would be to her husband and in his absence to his heirs. Vella Ammal was the second wife of her husband and by his first wife her husband Karuppan Chetti had five sons all of whom were dead by the date of Vella Animal's death. The plaintiff was a great grandson of Vella Ammal's husband through this elder wife while defendants 1, 2, 3, 4 and 6 are respectively grandsons by three of Vella Ammal's step-sons. Defendant 5 is a daughter-in-law of her step-son. Defendants 1 to 4 and 6 resisted the plaintiffs suit on the ground that he was a remoter heir than themselves and could not claim to succeed in their presence. The learned District Munsif however rejected this defence and held that the son, the grand-son and the great grand-son should also be considered as "sons" on the doctrine of representation, and that they would all take together without the son or the grandson excluding the grandson or the great grand-son respectively. On appeal by the contesting defendants, the learned Subordinate Judge agreed with this view of the law and dismissed the appeal. Hence the second appeal by the defendants.

(3.) The argument urged on behalf of the appellants was two-fold. The first was that the theory of representation was based upon the doctrine of spiritual benefit whereas stridhana succession was not based upon spiritual benefit but merely on propinquity. It was next argued that as the son, grandson and great grandson of the propositus herself would not take together but the nearer would exclude the more remote it was illogical to hold that a different rule for determining the heir would apply when one proceeded to the father or the husband. Having examined the matter carefully, we are of the opinion that the contentions raised on behalf of the appellants are well founded and have to be accepted.