Decided on November 13,1953



Venkatarama Aiyar, J. - (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; "In other words the separate property becomes part of the joint property in the hands of the heirs, as a divided member no longer belongs to the coparcenary and has no interest in its property, he can take no share in it." This decision is, thus based on the doctrine of Hindu law that what is self-acquired property in the hands of the father becomes impressed with the character of joint property in the hands of his sons. The result in law is that the sons will take the property as coparceners with right of survivorship; that their male issue will acquire an interest by birth in that property and that the grandsons and great grandsons would also get title to it by right of representation. Vide --'Marudayi v. Doraiswami', 30 Mad 348 (D), following -- 'Ramappa Naicken v. Sithammal', 3 Mad 182 (FB) (E) and -- 'Muthuvadugunatha Tevarr v. Periasami', 16 Mad 11 (F). These are incidents flowing the peculiar character of the property of the father devolving upon his male issue as coparcenary property. That rule has no application when collaterals succeed as heirs to the propositus. In their hands the estate does not became joint family property. When the estate of the propositus devolves on his brothers they inherit it as tenants in common, and not as coparceners; their issues do not take any interest therein by birth and the sons of the deceased brothers are not entitled to take along with their uncles on the theory of representation. They would be excluded by the general rule that the nearer excludes the more remote based on the text "to the nearest Sapinda the inheritance goes". The principle, therefore, on which the undivided son was preferred to the divided son would be inapplicable in a competition between divided and undivided brothers.
(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: "In view of the fundamental points of difference indicated above the circumstance as to the inheriting brother being joint with or separate from the deceased brother whose property he inherits becomes in my opinion wholly immaterial." The question was considered recently by a Full Bench of the Allahabad High Court in -- 'Karhiley v. Hira', (H) and it was held on a review of the authorities that "under the Mitakshara school of Hindu law a brother who has remained joint has no preferential right and cannot exclude a separated brother from inheritance in respect of the self-acquired property of his deceased brother." We are in agreement with those decisions and are of opinion that the decisions which recognise a preferential right in the undivided sons as against the divided sons in the matter of succession to the self-acquired properties of the father do not warrant the conclusion that a brother who is joint in estate with the propositus could exclude the divided brothers.;

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