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TMI Blog1977 (10) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been open to debate and doubt as to whether Section 8 was intended to cover reversionary succession as in the instant case. The Act was, no doubt, intended to amend and codify the law regarding intestate succession. The intention of the Act was to cover, as far as possible, the entire field. That was why Section 4 gave the Act overriding effect. Yet it visualises that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act would still have force, if for any matter provision was not made in the Act and also any other law not inconsistent with any of the provisions of the Act, may continue to have force. Chapter II of the Act deals with intestate succession, first, in respect of an interest of a coparcener in coparcenary property and then with devolution of interest in coparcenary property and in the property of a tarvad, Tavazhi, Kutumba, Kavara or Illom. We have then Section 8 providing for general rules of succession in the case of males. It abolishes at one stroke the scheme of succession under the Hindu Law and provides for devolution of the property of a male Hindu dying intestate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect from the data of the death of the intestate. Rules of presumption in cases of simultaneous deaths and preferential right to acquire property in certain cases, special provisions respecting dwelling houses, rules of succession wherein certain widows remarry and disqualifications for a murderer and convert's descendants have been made- Finally, provision is made for devolution where there is failure of heirs. Chapter III deals with testamentary succession. That sums up the scheme of the Act. This brief survey indicates that the Act is intended to be a complete Code governing succession to a Hindu male or female dying intestate. 3. The expression a male Hindu dying intestate' had received judicial interpretation and as held by the Privy Council with reference to the Hindu Law of Inheritance Amendment Act 1929, it only referred to the status of the person dying and it had no effect upon the time of death so that the expression would be apt to apply to a Hindu dying intestate before or after that Act. If that be so, Section 8 would have applied itself when in the instant case the husband died, before the Hindu Succession Act 1956. Does not Section 8 have reference only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fess that throughout the address we felt a considerable difficulty in construing Section 8 especially in the light of the related sections, it will, in our opinion, be futile to deal with them and express our view because of Daya Singh V. Dhan kaur: [1974]3SCR528 . 7. As we see from the judgment of the Supreme Court, it was directly seized of the very question we are called upon to answer. There as here, the husband bad died before the Act. The widow inheriting his property was not possessed of it and she died subsequent to the Act. The Supreme Court reviewed all the decisions on the subject rendered by the High Court among whom there was no unanimity, referred to Moniram Kolita v. Kerry Kolitari (1880) ILR 5 Gal 776 (PC) and held that, once it is taken to be the law that succession in a case like this opens when the widow dies as if her husband also died on the very date, this presumption should not be boggled with and should be applied as a fact, so that Section 8 of the Act is attracted to the situation. We are bound by this approach. Every possible argument against that view has also been visualised by the Supreme Court and it resolved the difference of opinion among the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here has been a legal adjudication on the main issue in controversy. If the trial court fails to advert to the public register and its various limbs and the recitals therein and sustain its judgment on a well founded reasoning or it the appellate court mechanically accepts such a finding rendered by the trial court which as we said, did not make a detailed examination of a challenged public register, then, in either of the above two contingencies, it cannot be said that there was a concurrent finding of fact. The situation in the present case falls within the excepted principle set out by us. 12. This litigation started in 1960 is yet limping as one or two of the facts of such a litigation only have been fully thrashed out and concluded and there remain the other points which arise in the litigation and which have an important impact on the success or failure of one or the other of the parties in the case and yet to be decided. Whilst the first respondent-plaintiffs case is that he is the nearest reversioner of one Sengammal who is referred to in the judgment appealed against, the case of the appellants-defendants 23 and 33 is that he is not. In order to sustain their contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even refer to certain salient features in the testimony of D. W. 6. The case of the plaintiff was that the entry in Ex. B-62 appears to be not genuine and that it was made for the purpose of the case. 14. Neither the trial court nor the appellate court adverted to these obvious discrepancies in the register. If they had considered and expressed their view on it and either concurred with each other or differed, matters would have been different. But when they have totally abstained from adverting to this telling but rather doubtful features in the public register, we are unable to accept mechanically the theory that there is a concurrent finding of fact and therefore Section 100, C. P. C. is a bar for a further hearing of the second appeal on such a question. Not being satisfied with the manner and method and treatment of such an important issue and having noticed that D. Ws.6 and 8 are greatly interested in this litigation, being relations to the parties, the appellate court at least should have given such thought to it so that it could be said when it comes up in second appeal that the appellate court did reasonably go into the matter and gave out its view. We are unable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon. Peria Ramana Gounder died without issues but was Survived by his wife, Sengammal. In the suit filed by Chinna Ramana Gounder (OS 2 of 1892) for partition, Sengammal was brought on record as heir of Peria Ramana Gounder and as being entitled to widow's estate. The case of the plaintiffs is that Sami Gounder forcibly entered into possession of the properties of late Peria Ramana Gounder and dealt with such properties as if the family remained still joint. It is said that there was a mingling of the properties of the two brothers as above with the result the properties to which Sengammal was entitled was also dealt with by them without reference to her. It was in those circumstances, that Sengammal died in 1958 which event threw open the reversionary succession to her husband Peria Ramana Gounder who died long before. The primary claim of the plaintiffs as well as the first defendant in the suit out of which the second appeal arises, is that Peria Ramana Gounder died being divided from Sami Gounder and that Sengammal had only a life estate without being in possession of the properties and the plaintiffs and the first defendant the only nearest reversioners and heirs to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was in the light of such a disclosure as to the date of death of Kaliammal, we called for a finding from the court below whether Ex. 8 62 is a genuine document and is it not open to challenge. The court has given a finding that Ex. B 62 could be challenged and it does not appear to be a true document After the court below rendered the said finding the matter came up once again for final hearing. There was no serious argument be tore us about the finding of the court below that Ex. B 62 does not appear to be a genuine document We have, therefore, rejected Ex. B 62 as unreliable. The net result of the discussion on this part of the case is that it has been proved that Kaliammal was alive on the date of death of Sengammal. Under the Hindu Succession Act, the estate would devolve on Kaliammal as she is the sister of Peria Ramana Gounder. Because of the later discoveries, if we can use that expression, made, a new complexion had been given to the suit. The plaintiffs having been put in such an inconvenient position, have applied for an amendment of the plaint in C. M. P. 9869 of 1977. They would allege that the title of Kaliammal and her successors-in-interest stands extinguishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events have happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances, for, that would run counter to the essential ratio governing the principle of amendment of pleading which is that no amendment can introduce a cause of action which was never thought of originally or could not have been thought of earlier and which is diametrically opposite to that stated in the original plaint. We are also of opinion that the application for amendment is an afterthought and therefore, lacks bona fides. This is so because the plaintiffs denied that Peria Ramana Gounder bad a sister by name Kaliammal and his filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounder, on the death of Sengammal, inherited the properties of Peria Ramana Gounder as full owner under Sections 14 to 18 of the Act She became a fresh stock of descent and on her death on 6-10-1960, succession has to be traced to her alone, testamentary or intestate as provided for in Section 15 of the Act. It, therefore, follows that after such absolute vesting of the rights in Kaliammal as per the provision of the Act there can be no question of any preferential claim by reversionary succession to Peria Ramana Gounder. It appears, therefore, to us that neither the plaintiffs nor the first defendant as such reversioners to the estate can with any competence further their status as nearest reversioners and compete with Kaliammal, who is obviously the statutory heir. Analogies cannot be mechanically sought for purpose of application and implementation. On the only ground that the enumerated heirs in Class I all take together in equal shares, it cannot said by the mechanical invocation of the doctrine of analogical application that such enumerated heirs in the various items set out in Class II should also be treated as such and all of them pooled up together so as to vest in them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the whole decree entitles the appellate court to pass such judgment as the circumstances of the case would require in order to render justice. Order 41 Rule 33 , C. P. C. also meets this purpose. Under Order 41 Rule 4, C. P. C., on an appeal by one or more of the parties to a suit on a ground common to all, the decree may be varied in favour of all. Under Order 41, Rule 33, the court has the power to make the proper decree in order to render justice between the parties even though the appeal is directed against a part of the decree and even though the appeal might have been filed by some of such parties and the other affected parties are not even before the appellate court. The rules based on just equity and good conscience compel us to treat the present second appeal as one filed for the benefit of all the alienees, and in the light of such an understanding of the subject matter, the allowance of the appeal should benefit all the alienees as well. 23. Even in the alternative, Mr. Kesava Iyengar would contend that the plaintiffs' claim is barred by res judicata by virtue of the decision of the trial Court in OS No. 67 of 1924, marked as Ex. B. 25 which was affirmed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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