Decided on July 25,1944

ARULAYI Appellant
Antonimuthu Nadan And Ors. Respondents


- (1.) THE main question arising for decision in this second appeal is whether the provisions of Section 33A(1) of Act 39 of 1923, the Succession Act apply to this case so as to benefit the appellant to the extent of property worth Rs. 5000. The appellant is the widow of one Arulandu Nadan who was an Indian Christian. He died in the year 1936 leaving his widow defendant 1, a sister the plaintiff, a brother defendant 2 and two daughters by a deceased sister, defendants 3 and 4. The property left by the deceased Arulandu Nadan is stated in the plaint to be worth Rs. 6725 -14 -0. The plaintiff conceded that defendant 1 was entitled exclusively to Rs. 5000 and interest thereon. Deducting this sum she claimed a sixth in the balance and that was mentioned to be Rs. 159 -13 -10 -2/3. It was also stated that defendants 3 and 4 who were her sister's daughters were entitled to a like sum of Rs. 159 -13 -10 -2/3. Defendant 2 was stated to be also entitled to a similar sum and the balance of the excess was stated to be the share of defendant 1, i.e., this is in addition to the sum of Rs. 5000 and interest thereon which was conceded in favour of defendant 1. Defendants 3 and 4 submitted to a decree apparently content with the share allotted to them in the plaint. Defendant 1 did not contest the plaintiff's claim. Defendant 2, however, put forward a claim that he was entitled to a sixth not merely in the surplus remaining after setting apart Rs. 5000 and interest for the sole benefit of defendant 1 but in the entire assets left by Arulandu Nadan. To this claim defendant 1 naturally took objection. The fight was between defendant 1 whose priority to the sum of Rs. 5000 and interest was conceded by the plaintiff and defendant 2 who did not concede this right. The trial Court held in favour of defendant 1 the widow and decreed Rs. 159 -13 -10 -2/3 to each of the three sets of claimants, namely, the plaintiff, defendant 2 and defendants 3 and 4. The plaintiff was content as she got what she wanted in her plaint, that being the amount on which she paid the court -fee. Defendants 3 and 4 did not file any appeal; they were also apparently content with what they got. Defendant 2, however, took the matter on appeal to the appellate Court. That Court agreed with his contention and held that he was entitled to a sixth share in the entire property and did not uphold the exclusive right to Rs. 5000 and interest put forward by defendant 1. While allowing the appeal, the appellate Court varied the decree in favour of the plaintiff and defendants 3 and 4 by giving a sixth in the whole of the property to them. Defendant 1 has filed this appeal and urges that the correct view of the law is the one taken by the trial Court and that, at any rate, the appellate Court should not have varied the decree which had been passed in favour of the plaintiff and defendants 3 and 4.
(2.) MR . Umamaheswaram urges that the plaintiff claimed in her plaint only Rs. 159 odd, paid court -fee only on that sum, did not ask for an amendment of the plaint even after defendant 1 appeared and put forward a larger claim and that after the decree of the trial Court, she did not prefer an appeal or even a memorandum of objections as she would be entitled to file as a respondent Under Order 41, Rule 22, Civil P.C. Under that rule one respondent can file a memorandum of objections against another respondent and not merely against the appellant. That being so, it is said that there was no valid ground for the appellate Court enhancing the amount granted to the plaintiff and for varying a decree in which she acquiesced. Section 33A was introduced into the Succession Act by Act 40 of 1926. Arulandu Nadan died in 1936. So the amending Act applies to this case. Under Section 33A(1) where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to his widow. Under Clause (2), where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of the five thousand rupees, with interest thereon from the date of the death of the intestate at four per cent, per annum until payment. Clause (3) says: The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees, with interest as aforesaid, and such residue shall be distributed in accordance with the provisions of Section 33 as if it (residue) were the whole of such intestate's property.
(3.) CLAUSE (4) is not material. Clause (5) which has given rise to the trouble runs as follows: This section shall not apply (a) to the property of: (i) any Indian Christian; (ii) any child or grandchild of any male person who is or was at the time of his death an Indian Christian, or (iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to whose property is, Under Section 24, Special Marriage Act, 1872, regulated by the provisions of this Act; (b) unless the deceased dies intestate in respect of all his property. The contention put forward by the appellant which found acceptance in the trial Court is that the expression "unless the deceased dies intestate in respect of all his property" occurring in Clause (b) is really part of Clause (a) and governs the three classes which are mentioned in Clause (a). According to the learned advocate, the section will not apply to the property of an Indian Christian unless the deceased died intestate in respect of his property; similarly as regards the persons mentioned in Clauses (ii) and (iii). If this is the correct construction, then the provisions of Clause (5) which provide that the section shall not apply to certain cases will exclude only those cases of Indian Christians who die leaving a will in respect of any sum or all his properties. But if the Indian Christian died intestate in respect of all his property, then the provisions in Clause (5) will not come into operation and therefore the right of exclusion enacted in Clause (5) would not apply.;

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