Sri C.S. Muniyappa (Since Deceased by Proposed Lrs. Sri Thammaiah Younger Brother of Late Muniyappa Since Deceased by His Lrs St. Srinivas S/O Late Thammaiah and ors.) and Sri Pillaiah Younger Brother of Late Muniyappa (Since Dead by Lrs. Smt. Parvathi, Sri S.P. Ramdas, S.P. Dileep and Kum Deepathi S and D/O Late Pillaiah) Vs. the Corporation of the City of Bangalore Rep. by Its Commissioner, - Court Judgment

Excerpt:
- section 8: [h.n. nagamohan das,j] general rules of succession in case of males -petitioners claim that they are surviving legal representatives of deceased 2nd plaintiff -2nd respondent died without leaving any relations specified in class of schedule to section 8 of the hindu succession act - petitioners come under class ii of schedule to section 8 of the act and want to come on record as surviving legal representative of deceased 2nd plaintiff trial court dismissed applications held, if all the persons mentioned in an entry are alive then the property of the deceased shall devolve on all of them in equal shares. admittedly, in the instant case the relatives specified in the first entry that is the father of deceased is not alive. therefore, the relatives specified in the second entry will succeed to the estate of deceased the first three persons specified in second entry are not alive. but the second plaintiff who is the sister of the deceased is alive and the property of the deceased shall devolve only on her. the petitioners are admittedly the sons and daughters of brothers of deceased and they come under fourth entry. when the relation specified in the second entry are alive, then they shall be preferred over the petitioners. therefore, the petitioners are not entitled to come on record as legal representatives of deceased second plaintiff. - the trial court after hearing both the parties passed the impugned order dismissing all the three applications filed by petitioners mainly on the ground that they have failed to prove and establish that thammaiah and pillaiah are dead and that the petitioners have not stepped into the witness box to prove that they are the surviving legal representatives of deceased c.orderh.n. nagamohan das, j.1. the third respondent is the first plaintiff and one muniyappa is the second plaintiff. respondents 1 & 2 are defendants 1 and 2 before the trial court. petitioners claim that they are the surviving legal representatives of deceased second plaintiff. in this judgment for convenience, the parties are referred to their status before the trial court.2. the plaintiffs filed o.s. no. 5950/1990 for declaration of title, for a direction to transfer the katha of schedule property to their names and for other reliefs. during the pendency of the suit second plaintiff - c.s. muniyappa died on 11.02.2002. the petitioners on coming to know about the pendency of o.s. no. 5950/1990 filed i.a. nos. ii/2005, iii/2005 and iv/2005 for condonation of delay, to set aside the abatement and to bring them on record as the surviving legal representatives of deceased second plaintiff c.s. muniyappa. in the affidavit filed in support of the applications, the petitioners contend that the deceased c.s. muniyappa died without leaving any relations specified in clause - i of the schedule to section 8 of the hindu succession act (for short 'the act'). the petitioners further contend that the deceased c.s. muniyappa died leaving behind two brothers by name tammaiah and pillaiah who are also dead. petitioners are the children of deceased tammalah and pillaiah and as such they contend that they are the surviving relations of deceased c.s. muniyappa as specified in clause - ii of the schedule to section 8 of the act. therefore the petitioners want to come on record as the surviving legal representatives of deceased c.s. muniyappa. the trial court after hearing both the parties passed the impugned order dismissing all the three applications filed by petitioners mainly on the ground that they have failed to prove and establish that thammaiah and pillaiah are dead and that the petitioners have not stepped into the witness box to prove that they are the surviving legal representatives of deceased c.s. muniyappa. petitioners being aggrieved by this order of the trial court are before this court in this writ petition.3. section 8 of the hindu succession act reads as under:section 8-general rules of succession in the case of males: the property of a male hindu dying intestate shall devolve according to the provisions of this chapter:(a) firstly, upon the heirs, being the relatives specified in class i of the schedule;(b) secondly, if there is no heir of class i, then upon the heirs, being the relatives specified in class ii of the schedule;(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and(d) lastly, there is no agnate, then upon the cognates of the deceased.4. a reading of section 8 of the act specifies that if a male hindu dies intestate then the property left by him shall firstly devolve on the relatives specified in clause i of the schedule, secondly on clause ii and thirdly upon the agnates of the deceased and lastly on the cognates of the deceased. it is not in dispute that the deceased c.s. muniyappa died intestate and has not left behind the relatives specified in clause i of the schedule to the act. the petitioners contend that they are relatives of deceased c.s. muniyappa as specified clause ii.5. in clause ii of schedule to section 8 of the act there are 9 entries. they are:i) father.ii) (1) son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.iii) (1) daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter.iv) (1)bother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughterv) fahter's father; father's mother.vi) father's widow; brother's widow.vii) father's brother; father's sister.viii) mother's father; mother's mother.ix) mother's brother; mother's sister.section 9 of the act specifies that order of succession. it is specified that the relation in first entry in class ii shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third; and so in succession.6. if ail the persons mentioned in any entry are alive then the property of the deceased shall devolve on all of them in equal share. admittedly, in the instant case the relatives specified in the first entry that is the father of deceased c.s. muniyappa is not alive. therefore, the relatives specified in the second entry will succeed to the estate of deceased. the first three persons specified in second entry are not alive. but the second plaintiff who is the sister of the deceased c.s. muniyappa is alive and the property of the deceased shall devolve only on her. the petitioners are admittedly the sons and daughters of brothers of deceased and they come under fourth entry. when the relation specified in the second entry are alive, then they shall be preferred over the petitioners. therefore, the petitioners are not entitled to come on record as legal representatives of deceased second plaintiff.7. though not for the reasons stated in the impugned order passed by the trial court, this writ petition is hereby dismissed for the reasons stated in this order.

Judgment:
ORDER

H.N. Nagamohan Das, J.

1. The third respondent is the first plaintiff and one Muniyappa is the second plaintiff. Respondents 1 & 2 are defendants 1 and 2 before the trial Court. Petitioners claim that they are the surviving legal representatives of deceased second plaintiff. In this judgment for convenience, the parties are referred to their status before the trial Court.

2. The plaintiffs filed O.S. No. 5950/1990 for declaration of title, for a direction to transfer the katha of schedule property to their names and for other reliefs. During the pendency of the suit second plaintiff - C.S. Muniyappa died on 11.02.2002. The petitioners on coming to know about the pendency of O.S. No. 5950/1990 filed I.A. Nos. II/2005, III/2005 and IV/2005 for condonation of delay, to set aside the abatement and to bring them on record as the surviving legal representatives of deceased second plaintiff C.S. Muniyappa. In the affidavit filed in support of the applications, the petitioners contend that the deceased C.S. Muniyappa died without leaving any relations specified in Clause - I of the Schedule to Section 8 of the Hindu Succession Act (for short 'the Act'). The petitioners further contend that the deceased C.S. Muniyappa died leaving behind two brothers by name Tammaiah and Pillaiah who are also dead. Petitioners are the children of deceased Tammalah and Pillaiah and as such they contend that they are the surviving relations of deceased C.S. Muniyappa as specified in Clause - II of the schedule to Section 8 of the Act. Therefore the petitioners want to come on record as the surviving legal representatives of deceased C.S. Muniyappa. The Trial Court after hearing both the parties passed the impugned order dismissing all the three applications filed by petitioners mainly on the ground that they have failed to prove and establish that Thammaiah and Pillaiah are dead and that the petitioners have not stepped into the witness box to prove that they are the surviving legal representatives of deceased C.S. Muniyappa. Petitioners being aggrieved by this order of the Trial Court are before this Court in this writ petition.

3. Section 8 of the Hindu Succession Act reads as under:

Section 8-General Rules of succession in the case of males: The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:

(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, there is no agnate, then upon the cognates of the deceased.

4. A reading of Section 8 of the Act specifies that if a male Hindu dies intestate then the property left by him shall firstly devolve on the relatives specified in Clause I of the Schedule, secondly on Clause II and thirdly upon the agnates of the deceased and lastly on the cognates of the deceased. It is not in dispute that the deceased C.S. Muniyappa died intestate and has not left behind the relatives specified in Clause I of the schedule to the Act. The petitioners contend that they are relatives of deceased C.S. Muniyappa as specified Clause II.

5. In Clause II of Schedule to Section 8 of the Act there are 9 entries. They are:

I) Father.

II) (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.

III) (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter.

IV) (1)Bother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter

V) Fahter's father; father's mother.

VI) Father's widow; brother's widow.

VII) Father's brother; father's sister.

VIII) Mother's father; mother's mother.

IX) Mother's brother; mother's sister.

Section 9 of the Act specifies that order of succession. It is specified that the relation in first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third; and so in succession.

6. If ail the persons mentioned in any entry are alive then the property of the deceased shall devolve on all of them in equal share. Admittedly, in the instant case the relatives specified in the first entry that is the father of deceased C.S. Muniyappa is not alive. Therefore, the relatives specified in the second entry will succeed to the estate of deceased. The first three persons specified in second entry are not alive. But the second plaintiff who is the sister of the deceased C.S. Muniyappa is alive and the property of the deceased shall devolve only on her. The petitioners are admittedly the sons and daughters of brothers of deceased and they come under fourth entry. When the relation specified in the second entry are alive, then they shall be preferred over the petitioners. Therefore, the petitioners are not entitled to come on record as legal representatives of deceased second plaintiff.

7. Though not for the reasons stated in the impugned order passed by the trial Court, this writ petition is hereby dismissed for the reasons stated in this order.