O. M. MEYYAPPA CHATTIER Vs. KANNAPPA CHATTIER

JUDGEMENT

(1.) THE two C. M. As, arise out of an execution petition. Angupillai alias Kalyani Achi, who was insane, acting through her husband, obtained a money decree for a sum of Rupees 18,000/ - on a deposit letter. Somasundaram Chettier, the first defendant in O.S. No. 1 of 1959 on the file of the court of Subordinate Judge, Sivaganga was the Judgment -debtor under that decree. The said Angupillai alias Kalyani Achi, the decree -holder died. The husband, has since obtained succession certificate in respect of the decree amount. After obtaining such succession certificate, he assigned the decree in favour of kannappa Chettiar alias Chidambaram Chettiar. In the meanwhile, the judgment -debtor, namely, Somasundaram Chettiar, also died. Therefore the assignee -decree -holder filed the execution petition for recognising him as such and also recording the two sons of the first defendant (who were defendants Nos. 2 and 3 respectively in the suit) as the legal representatives of the judgment -debtor who was dead. One of the sons of the judgment -debtor, namely, Meyyappa Chettiar alias Kalayappa Chettiar (second defendant) (in the suit) resisted the execution raising various objections. Ramanathan Chettiar and Odayappan who were impleaded as respondents Nos. 5 and 6 in the execution petition are the brothers of Angupillai alias Kalyani Achi, the original decree -holder. They also raised similar objections to the execution petition filed by the assignee -decree -holder. The court below overruled all the objections except in respect of certain items of properties brought up for sale, and ordered the execution petition accordingly, C.M. A. No. 540 of 1972 is filed by Meyyappa Chettiar alias Kalayappa Chettiar, one of the sons of the judgment -debtor and the other C.M.A. (C.M.A. No. 596 of 1973) is filed by the brothers of the original decree -holder.

(2.) THE main contention raised by the appellants in C.M.A. No. 596 of 1973 is that the husband of the original decree -holder is not nearest heir of the decree -holder in respect of the decree amount inasmuch as the amount represented her stridhana. They contended that Section 15 (2) of the Hindu Succession Act applied and as such, they being the brothers of the original decree -holder are nearer heirs excluding the husband. This contention, however, has absolutely no force. It is the case of the appellants that the money deposited by the original decree -holder with the first defendant had been gifted to her by her father at the time of her marriage and therefore it was stridhana property. Assuming that case regarding the character of the amount is true, surely Section 15 (2) of the Hindu Succession Act has no application. Under Section 15 (1), the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 firstly upon the sons and daughters and the husband. Sub -section (2) is a non obstante clause and according to that sub -section any property inherited by a female Hindu from her father or mother shall devolve not upon the other heirs referred to in sub -section (1) in the order specified therein, but upon the heirs of the father. But the sine qua non for application of this non obstante clause contained in sub -section (2) is that the property of the female ought to have been inherited from her father or mother. As noted earlier, the case of the appellants has been that the father had gifted the amount to the original decree -holder at the time of her marriage. That is not inheritance as contemplated in sub -section (2) of Section 15. It is to be noted that this sub -section does not say that all properties obtained by a female in whatever manner known to law, from her father or mother, shall devolve upon the heirs of the father. It restricts the application of the said sub -section only to property inherited from the father or mother. As these appellants do not even contend that the decree amount had been inherited by the original decree - holder from her father, there is no question of applying sub -section (2) of Section 15 and making the appellants in C.M.A. No. 596 if 1973 the rightful heirs to succeed to the interest of the decree -holder. Undoubtedly, the husband is the heir and, therefore, he was entitled to assign the decree in favour of the contesting respondent who filed the petition for execution.

(3.) THE objection that the assignee -decree -holder is only a benamidar for the third defendant (who was impleaded as the third respondent in the execution petition and who was ex parte) has also no force. No doubt, the assignee - decree -holder happens to be the son -in -law of the third defendant. But that does not mean that the assignee -decree -holder has no separate existence and the assignment was a benami transaction. Except the ipse dixit of the second defendant, there is no evidence at all to show that the assignee -decree -holder was only a benamidar for the third defendant.