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PETITIONER: SEETHALAKSHMI AMMAL

       Vs.

RESPONDENT: MUTHUVENKATARAMA IYENGAR & ANR.

DATE OF JUDGMENT:       03/04/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellant  is the  daugher-in-law of  the  deceased Gomathi Ammal.  Venkatarama  Iyengar,  the  husband  of  the appellant was the only son of Gomathi Ammal  and her husband Sesha Iyengar. He died  prior to the death of Gomathi Ammal. Venkatarama Iyengar  and the appellant have no children. The husband of  Gomathi Ammal also died long prior to her death. The appellant  filed a suit for declaration of ownership and possession of  properties left  by Gomathi  Ammal  who  died intestate. The respondent, claiming to be the son of Gomathi Ammal’s brother,  contested the  suit  on  the  ground  that Gomathi Ammal made a will in his favour.      The will  has not  been accepted  either by  the  trial Court or  by the  first appellate Court or by the High Court in second  appeal. The  only reason  why the  High Court has allowed  the  second  appeal  is  on  the  ground  that  the appellant is  not an  heir of  her mother-in-law  under  the Hindu Succession Act.      This  finding   proceeds  on  a  misconception  of  the provisions of  the Hindu  Succession act.  Section 15 of the Hindu Succession act provides general rules of succession in the case  of  female  Hindus.  Under  sub-section  (1),  the property of a Hindu female dying intestate shall devolve (a) firstly, upon  the sons and daughters(including the children of any  pre-deceased son  or daughter)  and the husband; (b) secondly, upon  the heirs of the husband. Gomathi Ammal does not have  any heirs falling under (a). Therefore, we have to examine who  are the  heirs of  her husband.  The heirs of a male Hindu  are  set  out  in  the  Schedule  to  the  Hindu Succession Act.  Heirs in  class I include a widow of a pre- deceased son.  The appellant  fits this description. But the High Court  has held that when Sesha Iyengar, the husband of Gomathi Ammal died, their son Venkatarama Iyengar was alive. So the  appellant cannot  be called  the  widow  of  a  pre- deceased son.      In order  to decide who are the heirs of a female Hindu under category (b) of Section 15(10, one does not have to go back to  the date  of the  death of the husband to ascertain who were  his heirs  at that  time. The  heirs  have  to  be ascertained not  at the  time of  the husband’s death but at

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the time  of the  wife’s death  because the succession opens only at the time of her death. Her heirs under Section 15(1) (b) will  have to be ascertained as if the succession to her husband had opened at the time of her death. Thus, if at the time of  Gomathi Ammal’s  death, there  is any  heir of  her husband who  fits the  description in  the schedule of being the widow  of his  pre-deceased son,  she will be one of the heirs entitled  to succeed.  The status  of the heir must be determined at  the time  of the  death of  the female  whose heirs are  being ascertained. The appellant was the widow of a pre-deceased  son on  the date  when Gomathi  Ammal  died. Therefore, the  learned single Judge was not right in coming to the  conclusion that  the appellant  is not  an  heir  of Gomathi Ammal.      The appeal  is, therefore,  allowed. the impugned order of the  High Court  is set  aside and  the suit filed by the plaintiff is decreed with costs.