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Judgment
Natesan, J.—A simple question in the applicability of Section 6 of the Hindu Succession Act arises for consideration in this appeal by the
Plaintiff. The suit was for recovery of a sum of Us. 54,627-50 P. due under a security bond executed by Defendants 1 to 9 in the suit in favour of
one Somasundaram Chettiar, the father of the Plaintiff. The 10th Defendant to the suit is the son of a predeceased daughter of this Somasundarm
Chettiar. There is no serious dispute as to the liability for the amount claimed and the only matter seriously put in issue is the claim of the 10th
Defendant to a one-fourth share in the suit amount under the Hindu Succession Act. The trial Court has upheld his claim and
in granting a preliminary decree against Defendants 1 to 9 in favour of the Plaintiff and the 10th Defendant, declared the respective shares in the
amount as three-fourth and one-fourth.
There is no dispute that Somasundaram Chettiar died as a member of a Mitakshara joint Hindu family leaving surviving his son, the Plaintiff in the
suit and the 10th Defendant son of a predeceased daughter. Somasundaram Chettiar died on 1st December 1957 after the Hindu Succession Act
of 1956 came into force. It is stated that there is a suit pending between the Plaintiff and the 10th Defendant, Original Suit No. 1 of 1958 on the file
of the Sub-Court, Devakottai, instituted by the 10th Defendant for partition and"" separate possession of one-fourth share in the joint family
properties. Section 6 of the Act while affirming the Mitakshara law of survivorship applicable to coparcenary property to an extent by a proviso
engrafts a vital exception, conferring new rights on certain female heirs and the son of a predeceased daughter of a deceased coparcener in his
interest in the coparcenary property at the time of his death. Explanation I to Section 6 provides that the interest of a Hindu Mitakshara coparcener
for the purpose of the section shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had
taken place immediately before his death. Where the proviso'' to Section 6 applies, the interest of the deceased devolves by testamentary or
intestate succession, as the case may be, under the Act: the interest does not survive to the remaining coparceners automatically and eo instante on
the death. Section 30 of the Act enables the coparcener to make a testamentary disposition of his interest in the coparcenary property. Section 6
runs thus:
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the schedule or a male relative, specified in that class
who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by survivorship.
Plainly read, in a case falling under the proviso the interest of the deceased coparcener where he has left no Will devolved by intestate
succession upon the persons alive at the time of his death who are among the 12 preferential heirs specified in class I of the schedule. u/s 8, the
property of a male Hindu dying firstly devolves upon the relatives specified in class I of the schedule. As the proviso comes into play only after the
deceased had left surviving the relatives in class I specified in the proviso, the sharing of the interest will be only among class I heirs. u/s 9 of the
Act they inherit that interest simultaneously and as provided for in Section 19 of the Act, share as tenants-in-common.
Learned Counsel Mr. R. Ramamurthi Ayyar for the Plaintiff-Appellant contends that for the proviso to apply by reason of the existence of a
male relative, the female relative through whom he claims must have survived the deceased coparcener. It is argued that as admittedly the 10th
Defendant is the son of a predeceased daughter, the proviso does not apply. To sustain this interpretation learned Counsel relies first upon the
expression such female relative found in the proviso. The proviso requires that there must be surviving either a female relative specified in class I or
a male relative claiming through such female relative. The argument is that by qualifying the female relative in the latter part of the proviso by the
word such reference is made to the surviving female relative mentioned in the earlier part of the proviso. It is stated that the word such brings in
with it the qualification that the female relative must be a relative whom the deceased had left surviving him. This argument is on the face of it
untenable. A reference to class I of the schedule would show that if there is a female relative surviving the deceased, a male relative who can claim
through her has no place in the array of heirs therein. There is no provision for the daughter and daughter''s son to take together simultaneously as
heirs under class I. The daughter if alive would exclude her son or daughter and would herself become a fresh stock of descent. The phrase female
relative and the expression such female relative in the latter part of the proviso can only mean a female relative specified in class I and not a female
relative alive at the opening of the succession. The word surviving in the proviso qualifies both the female relative first mentioned therein, and the
male relative following.
Emphasis is next laid on the requirement of the proviso that the surviving male relative of the deceased must be one who claims through a female
relative mentioned in class I. It is submitted that a person cannot claim through a female relative unless the female relative was alive when the
succession opened and had herself inherited. This argument again overlooks what has been pointed out already. To accede to it would be to
overlook that then the female becomes a fresh stock of descent, while Section 6 deals with devolution of the interest of a deceased coparcener.
The language used is not claims from or claims under. If a female relative specified in class I is alive, then her male descendant can make no claim
to the estate of the deceased coparcener. Section 6 by itself does not provide a set of heirs. For that we are referred to other provisions of the
Act. In our view what all the expression claims through in the proviso means is tracing relationship through. The male relative must be one who
traces relationship to the deceased through a female relative specified in class I, and he must also be male relative specified in class I. The claim he
makes is not with reference to property but in regard to relationship. When the relationship is established, law gives him his share in the property. It
may be pointed out that the only male relative specified in that class who fulfils both the requirements, is the son of a predeceased daughter and the
language of the proviso in its latter part when indicating this only male relative through a female relative is rather involved. But the scope and
intention is clearly brought out. Words must normally receive their obvious and popular meaning in the context and not strained to make the
provision unworkable. Reading Section 6 along with the other provisions of the Act, there can be no doubt that in a case like the present one
where the father dies intestate leaving an undivided son and a son by a predeceased daughter, both the son and the daughter''s son succeed to his
interest in the coparcenary property simultaneously as class I heirs and tenants-in-common. It follows that the Plaintiff and the 10th Defendant
share equally the interest the father had in the suit security bond. The lower Court has, therefore, correctly held that the Plaintiff gets three-fourth
share in the suit debt and the tenth Defendant a one-fourth share.
It is submitted for the Plaintiff that the learned Subordinate Judge had divided the mortgage amount between the Plaintiff and the 10th Defendant
and given a decree accordingly when there is a suit for partition pending between the parties wherein adjustments have to be made. We do not
read the learned Subordinate Judge as having decreed the suit severally in favour of the Plaintiff and the 10th Defendant in their respective shares.
The 10th Defendant himself has referred to the pending partition suit in the family and prayed only for a joint decree in favour of himself and the
Plaintiff. Though the learned Subordinate Judge specifies the shares of the Plaintiff and the 10th Defendant, he has given only a joint decree in their
favour. It will be for the parties to apply in the partition suit Original Suit No. 1 of 1958 on the file of the Subordinate Judge, Devakottaj, for this
decree also to be taken into consideration in the general partition as an item for division, if that is considered necessary or convenient. This
clarification is more than sufficient to calm the apprehension of the Plaintiff in the matter.
In the result the appeal fails and it is dismissed with costs.