O.M. Meyyappa Chettiar alias Kalyappa Chettiar vs Konnappa Chettiar alias Chidambaram Chettiar

N.S. Ramaswami, J.—The two C.M. As. arise out of an execution petition. Angupillai alias Kalyam Achi, who was insane, acting through

her husband, obtained a money decree for a sum of Rs. 18,000/- on a deposit letter. Somasundaram Chettiar, the first defendant in O.S. No. 1 of

1959 on the file of the court of Subordinate Judge, Sivaganga was the Judgment-debtor under that decree. The paid Angupillai alias, Kalyani Achi,

the decree-holder died. The husband has since obtained Succession certificate in respect of the decree amount. After obtaining such succession

certificate, he assigned the decree in favour of Kannappa Chettiar alias Chidambaram Chettiar. In the meanwhile, the judgment-debtor, namely,

Somasundaram Chettiar, also died. Therefore, the assignee-decree-holder filed the execution petition for recognising him as such and also

recording the two sons of the first defendant (who were defendants 2 and 3 respectively in the suit) as the legal representatives of the judgment-

debtor who was dead. One of the sons of the judgment-debtor, namely, Meyyappa Chettiar alias Kalayappa Chettiar (second defendant) (in the

suit) resisted the execution raising various objections. Ramanathan Chettiar and Odayappan who were impleaded as respondents 5 and 6 in the

execution petition are the brothers of Angupillai alias Kalyani Achi, the original decree-holder. They also raised similar objections to the execution

petition filed by the assignee-decree-holder. The court below over-ruled all the objections except in respect of certain items of properties brought

up for sale, and ordered the execution petition accordingly No. 540 of 1972 is filed by Meyyappa Chettiar alias Kalayappa Chettiar, one of the

sons of the judgment-debtor and the other C.M.A. (C.M.A. No. 596 of 1973) is filed by the brothers of the original decree-holder. The main

contention raised by the appellants in C.M.A. No. 596 of 1973 is that the husband of the original decree-holder is not the nearest heir of the

decree-holder in respect of the decree amount, inasmuch as the amount represented her stridhana. They contended that S. 15(2) of the Hindu

Succession Act applied and as such, they being the brothers of the original decree-holder are nearer heirs excluding the husband. This contention,

however, has absolutely no force. It is the case of the appellants that the money deposited by the original decree-holder with the first defendant

had been gifted to her by her father at the time of her marriage and therefore it was stridhana property. Assuming that case regarding the character

of the amount is true, surely S.15(2) of the Hindu Succession Act has no application. Under S. 15 (1), the property of a female Hindu dying

intestate shall devolve according to the rules set out in S. 16 firstly upon the sons and daughters and the husband. Sub-section (2) is a non-obstante

clause and according to that sub-section any property inherited by a female Hindu from her father or mother shall devolve not upon the other heirs

referred to in Sub-section (1) in the order specified therein, but upon the heirs of the father. But the sine qua non for application of this non

obstante clause contained in sub-section (2) is that the property of the female ought to have been inherited from her father or mother. As noted

earlier, the case of appellants has been that the father had gifted the amount to the original decree-holder at the time of her marriage. That is not

inheritance as contemplated in sub-S. (2) of S. 15. It is to be noted that this sub-section does not say that all properties obtained by a female in

whatever manner known to law, from her father or mother, shall devolve upon the heirs of the father. It restricts the application of the said Sub-

section only to property inherited from the father or mother. As these appellants do not even contend that the decree amount had been inherited by

the original decree-holder from her father, there is no question of applying Sub-S.(2) of S. 15 and making the appellants in C.M.A. No. 596 of

1973 the rightful heirs to succeed to the interest of the decree-holder. Undoubtedly, the husband is the heir, and, therefore, he was entitled to

assign the decree in favour of the contesting respondent who filed the petition for execution.

The other objections raised by the appellants are really frivolous. One of the objections says that defendants 2 and 3 ought not to be recognised

as the legal representatives of the Judgment-debtor. Except raising such an objection, the same is not substantiated.

The objection that the assignee-decree-holder is only a benamidar for the third defendant (who was impleaded) as the third respondent in the

execution petition and who was ex parte has also no force. No doubt, the assignee-decree-holder happens to be the son-in-law of the third

defendant. But that does not mean that the assignee-decree holder has no separate existence and the assignment was a benami transaction. Except

the ipse dixit of the second defendant, there is no evidence at all to show that the assignee-decree-holder was only a benamidar for the third

defendant.

In respect of item No. 65 and item No. 77 which are also brought up for sale, the objection is that they had been mortgaged in favour of the

third defendant and that therefore they cannot be brought up for sale. This objection is understandable. It is to be noted that the objection is not

tailed by the mortgage. Even the mortgages cannot raise an objection against the properties being brought to sale subject to the mortgage. In any

event, it is not open to the second defendant of the other defendants to contend that the properties being subject to mortgage in favour of the that

defendant, they ought not to be brought up for sale.

One other objection raised by the parties was in respect of 1/4 share in item Nos. 1 to 29 and 78 and a half share in item Nos. 30 to 64. The

contention was that those properties are trust properties and that therefore they cannot be solo in execution of the decree this is the objection

which has been upheld by the executing court and the assignee-decree-holder has not filed any appeal or cross appeal regarding that aspect. Both

these Civil Miscellaneous Appeals fail and they are dismissed with costs of the contesting respondent (assignee-decree-holder).