The Judgment of the Court was delivered by

V. Periya Karuppiah, J.:— This second appeal is directed against the judgment and decree passed by the first appellate Court in A.S No. 124 of 1994 dated 14.8.1995 in confirming the judgment and decree passed by the trial Court in O.S No. 26 of 1988 dated 16.6.1994 in dismissing the suit.

2. The first appellant and the deceased second appellant were the plaintiffs and the deceased first respondent was the defendant before the trial Court. The appellants 3 to 12 are the legal representatives of the deceased first respondent.

3. For convenience, the rank of the parties before the trial Court are being maintained, infra.

4. The case of the plaintiffs as stated in the plaint would be as follows:

The plaintiffs are the children of Andalammal who is the grand daughter of one Perumal Naidu through his daughter Muthammal by his first wife Subbammal. The defendant is the only surviving daughter of Perumal Naidu by his second wife P. Lakshmi Ammal. The defendant's elder sister Alamelu Ammal died in the month of November 1987. Perumal's third wife is Pappu Ammal. She died without any issues. The mother of the plaintiffs younger sister was Vijayalakshmi who died even as a minor. Alamelu Ammal lost her husband and died as widow without issues. The defendant is also a widow without any children. Thus, the leneal decendants of Perumal Naidu are the plaintiffs and the defendants. Perumal Naidu had vast extent of about 48 acres of wet and dry lands in the hamlet of Thenkarai Esanur, Thiruvaikur Vattam, Nagapattinam Taluk. He had no male issues. All the properties of Perumal Naidu are his ancestral properties. Since he had no male issues, Perumal Naidu disposed of all his properties by means of a Will dated 27.12.1923 while in a sound disposing state of mind. Perumal Naidu died immediately after execution of the said will. After the death of Perumal Naidu, the defendant and her elder sister who are minors then represented by their paternal aunt's son Gopalsamy Naidu filed a suit against Perumal Naidu's third wife Pappu Ammal, Andalammal, the mother of the plaintiffs, Ramanujam alias Vijayam Andalammal's younger sister, Gurusamy Naidu, the father of Andal, and one Kuppusamy Iyer in O.S No. 13 of 1924 on the file of the Sub-Court Tiruvarur. The plaintiffs in that suit wanted a declaration that the Will left by Perumal Naidu is true and valid an binding on the defendants in that suit. They also wanted a confirmation of their possession of the suit properties described as items 1 to 43 in the plaint filed by them. By its judgment dated 15.9.1925, the learned Subordiante Judge, Tiruvarur upheld the Will of Perumal Naidu. The appeal in A.S No. 284 of 1925 filed against the judgment and decree in O.S No. 13/1924 Sub-Court, Tiruvarur was dismissed by the District Court, Nagapattinam confirming the judgment of the trial Court. The 2 appeal filed by the defendants in the suit in S.A No. 692 of 1928 on the file of the High Court of Judicature at Madras was also dismissed confirming the judgment and decree of the trial court. Thus, Perumal Naidu's will dated 27.12.1923 has been upheld to be true, genuine, valid and binding on all parties. Needless to say that the Will of Perumal Naidu had been given effect to by all parties concerned. The Will left by Perumal Naidu is in the custody of the defendant. In fact, the defendant alone should be in custody of the Will, since she along with her elder sister Alamelu represented by their paternal aunt's son Gopalsamy Naidu filed the suit in O.S No. 13 of 1924 Sub Court, Tiruvarur only on the strength of the said Will by producing the said Will and marking it as Ex.A on their side. Perumal Naidu's Will is also referred to in the registered partition deed dated 29.7.1957 between the defendant and her elder sister Alamelu Ammal. The defendant cannot therefore deny the custody of Perumal Naidu's Will. In the Will of Perumal Naidu, the properties described has been given to the defendant and her elder sister Alamelu Ammal to be enjoyed by them without powers of alienation. In the registered partition deed between the defendant and Alamelu Ammal, the properties set out in the ‘A’ schedule to the plaint had been allotted to Alamelu Ammal and the ‘B’ schedule properties to the defendant. As per the terms of the said Will of Perumal Naidu, after the life time of Alamelu Ammal and the defendant, the properties given to them are to be taken by the leneal decendants of any of the female heirs. Alamelu Ammal and Ramanujathammal have become widows and they have no children. Perumal Naidu's first wife Subbammal's daughter Muthammal alone had two daughters namely Andalammal and Vijayalakshmi. Vijayalakshmi died unmarried. The plaintiffs are the children of Andalammal. Therefore, as per the terms of the Will of Perumal Naidu, the plaintiffs alone have vested remainder in the properties given to Alamelu Ammal and the defendant under the will of Perumal Naidu.

Alamelu Ammal died on 29.10.1987 The properties set out in ‘A’ schedule were enjoyed by her as per the terms of the Will of Perumal Naidu. After the death of Alamelu Ammal, the plaintiffs have become entitled to those properties under the Will of Perumal Naidu. The defendant is in possession of the properties enjoyed by Alamelu Ammal. The properties set out in ‘B’ schedule are in enjoyment of the defendant and the plaintiffs have vested remainder in those properties also. By a lawyer's notice dated 15.12.87 the plaintiffs called upon the defendant to hand over possession of the properties enjoyed by Alamelu Ammal as set out in ‘A’ schedule to the plaint. By reply notice dated 23.12.87, the defendant admita the Will left by Perumal Naidu. However, she denied the custody of the Will. In the registered partition deed of the year 1957, the Will of Perumal Naidu with the date is specifically referred. If the defendant does not choose to produce the original will of Perumal Naidu, adverse inference will have to be drawn against her for holding that the defendant and Alamelu Ammal had only a life estate in these properties given to them by Perumal Naidu. In view of the reply notice issued by the defendant, the plaintiffs are constrained to file the suit for declaration of their title to the A schedule properties and for recovery of possession of the same as they have vested remainder in those properties after the life time of the defendant.

5. The case of the defendant as stated in the written statement would be as follows:

The defendant admits the relationship of the parties in geneological tree, forming part of the plaint and that late Perumal Naidu executed an unregistered will on the date mentioned, during the minority of the defendant whereunder various items of properties were given to specific individuals. A suit was filed for recovery of possession through their guardian. The matter was contested and the defendant and her sister were able to lay their hands on the properties allotted to them only after prolonged litigations. The Will in original was not produced at the time of filing of the plaint. The parties have contested the matter only on the basis of the will of late Perumal Naidu and the matter was decided, on the basis that the Will was true and genuine and the right of the parties will have to be decided on the basis of dispositions made therein. The defendant is not in custody of the original will. From the very beginning the defendant's affairs were managed by her elder sister Alamelu Ammal. There was no occasion to find out the original will of her father. There was only typed copy of the Will available and it had been given the plaintiffs when they had moved the police to get possession of the properties. In respect of the dispositions under the Will, there was no dispute by any persons till the date of death of Alamelu Ammal and the plaintiffs have not disputed the title and claim of the defendant to the properties enjoyed by her as well as by her elder sister. The plaintiff have never claimed that they are vested remainder at any point of time when late Alamelu Ammal had entered into a deed of exchange and when the defendant sold the properties in part. For the first time, with malafide intention of getting the properties of the defendant and her sister, the plaintiffs have come forward with the suit. The properties given by Late Perumal Naidu to the defendant and her sister was in the nature of conferment of an absolute estate with no limitation regarding enjoyment. On the conferment of such an absolute estate, one cannot make any presumption that it was a limited estate given to them. The defendant and her sister have partitioned the properties under a duly registered document and such partition had only proceeded on the basis that the properties dealt with by them are their absolute properties and have been enjoyed as such by both the sisters. The funeral pyre was not lit by the first plaintiff. The funeral ceremonies were conducted by the defendant. After the filing of the suit the defendant has gone through the papers and he could not trace the original will. There is possibility of the original will having been handed over to the alienee to the exchange deed entered into by this defendant's sister, unfortunately, the alienee is dead. The children of the alienee also could not trace the will from the documents of their father and they expressed suspicion that the lands got from Alamelu Ammal were mortgaged with the Land Development Bank in which case, the Will should have been only with the bank. The defendant is not able to ascertain personally whether the Will being the title document was deposited in the bank. When the plaintiffs make a claim of devolution of interest under the terms of the Will, they alone are bound to prove their claim by producing the document. The plaintiffs have issued notice prior to the file of the suit and the defendant had given a reply. The defendant is the full sister of late Alamelu Ammal and her estate devolves only on the defendant. The plaintiff states that the will of Perumal Naidu had given only a limited estate to his two daughters and call upon the defendant to produce the original to substantiate their claim. The will in original is not under the custody of the defendant. There is no wilful suppression of the Will. In the will of Perumal Naidu, the defendant and her sister are not only beneficiaries and more particularly, the will having come into existence during the minority of the defendant, she cannot be said to be having the original Will. Therefore, there is no question of raising any adverse inference and the plaintiffs' responsibility and the legal onus cannot be shifted elsewhere. The plaintiffs have left out ‘A’ schedule certain items of properties covered by Will which had been dealt with by late Alamelu Ammal as her own. The defendant had sold 3 acres and odd to two ladies and the agreement of which was entered into some years ago and the sale deeds were later registered. Hence, the defendant prays for dismissal of the suit with exemplary costs.

6. The trial court had framed necessary issues on the aforesaid pleadings and entered trial. After appraising the evidence on either side, the trial court had dismissed the suit with costs. Challenging the judgment and decree passed by the trial Court, the plaintiffs preferred the appeal before the first appellate Court in A.S No. 124/1994. The said appeal was heard by the first appellate court and the judgment and decree passed by the trial court were confirmed and the first appeal was dismissed. Aggrieved by the concurrent judgment passed by the first appellate court, the plaintiffs have preferred the second appeal before this Court.

7. On admission of the second appeal, this Court framed the following substantial questions of law for consideration in this appeal.

“1. Whether the lower appellate Court erred law in not drawing adverse inference against the defendant for non-production of the original of the Will dated 23.12.1923 executed by Perumal Naidu when the same was produced by them in the earlier suit?

2. Whether the lower appellate Court erred in law in receiving in evidence Exs.B3 and B.4 in the absence of any explanation for non-production of the original Will and without making grounds for reception of second evidence?

3. Whether the lower appellate Court erred in not taking the circumstances prevailing in 1923 at the time of execution of the Will that female heirs were given only life estates and hence the female legatees of Perumal Naidu as per Will only got life estate and not absolute interest?”

8. Heard, Mrs. Srividhya, learned counsel appearing on behalf of Mr. S. Visvanathan, learned counsel for the appellants/plaintiffs and Mrs. R.T Shyamala, learned counsel for the respondents/defendants.

9. Learned counsel for the appellants/plaintiffs would submit in her argument that the courts below have failed to see that the original Will of Perumal Naidu dated 23.12.1923 was withheld for some purpose and therefore adverse inference ought to have been taken by the courts below. She would also submit that the Will executed by the said Perumal Naidu would only reflect life estate granted to his daughters since the right to daughters prevailed during the said period was only a life estate. She would also submit that when such life estate holders died, the property will revert back to the heirs of Perumal Naidu and the plaintiffs being the heirs are entitled to the suit properties. She would further submit in her argument that the daughters of Perumal Naidu namely Alamelu Ammal and the defendant Ramanujathammal were only given life estate in the said properties and they have got only right of enjoyment of the suit properties and for their convenient enjoyment they have divided the said properties and the ‘A’ schedule property was allotted to Alamelu Ammal and ‘B’ schedule properties were allotted to Ramanujathammal and they were in enjoyment till their life time. He would also submit that both the daughters of Perumal Naidu were having no issues and they were widows and therefore, on their death, the property will revert back to the legal heirs of Perumal Naidu and there are no other legal heirs except the plaintiffs to inherit the suit properties. She would also submit that both the Courts below have wrongly come to the conclusion that the right given to Alamelu Ammal and Ramanujathammal under the Will dated 23.12.1923 was absolute estate which was not substantiated by any documentary evidence. He would further submit that original will dated 22.12.1923 was not produced by the defendants and in the said circumstances, the case putforth by the plaintiffs that the said Alamelu Ammal and Ramanujathammal were given life estate only, should be taken note of. She would also submit in her argument that the decision reached in O.S No. 13 of 1924 was only in respect of the declaration of truth and genuineness of the will executed by Perumal Naidu and their right to possession of the properties were not dealt with in the said suit. She would also submit that the reference made in the said suit would not in any way prove the absolute right of the legatees namely, Alamelu Ammal and Ramanujathammal. He would further submit that the plaintiffs would be entitled to the property belonging to Alamelu Ammal even if we consider that absolute right has been given to her but both the Courts below have erred in law in dismissing the suit in its entirety. She would further submit that the third wife of Perumal Naidu namely Pappu Ammal was also given only life estate and therefore, the presumption should have been taken that the daughters through the second wife Lakshmi Ammal were given only life estate in the said Will. She would therefore submit that the questions of law framed may be determined in favour of the appellants and thus, the judgment and decrees passed by the courts below may be set aside and the second appeal may be allowed and thus, the suit may be decreed as prayed for.

10. Learned counsel for the respondents/defendants would submit in her arguments that the trial Court has categorically come to a conclusion that the will dated 27.12.1923 executed by Perumal Naidu in favour of his daughters Alamelu Ammal and Ramanujathammal (defendant) was conferring life estate as seen from the plaint allegations made in O.S No. 13 of 1924 and the copy of the Will produced in Ex.B3 She would also submit that the original will was produced in Ex.B4 and it would also state that absolute estate has been conferred on the daughters of Perumal Naidu, the testator. She would further submit that the said finding was confirmed by the first appellate Court and therefore, the appellants cannot putforth the case that the daughters of Perumal Naidu namely, Alamelu Ammal and Ramanujathammal were only conferred with life estate by their father. She would also submit that the truth, genuineness and validity of the Will was upheld in O.S No. 13/1924 and therefore, the contents of the Will cannot be agitated against its tenor by the plaintiffs in the suit. She would also submit that the findings reached by the courts below in an earlier occasion in O.S No. 13 of 1924 would be certainly binding upon the plaintiffs who are seeking their right under Alamelu Ammal who is also one of the parties to the said proceedings. She would also submit that the defendant had partitioned the properties bequeathed by her father jointly with Alamelu Ammal by virtue of Ex.A1 partition deed and the said partition deed would also state their absolute right in the suit property. She would further submit that the said partition deed was produced by the plaintiff and the plaintiffs are therefore estopped from challenging the right given under the Will Ex.B4 by the testator in favour of the defendant and her sister Alamelu. She would further submit in her argument that the defendant had enjoyed the properties as she liked and had alienated the properties for her necessities and therefore, the plaintiffs cannot question the proprietory right of the defendant in ‘B’ schedule property which she got from the partition deed produced in Ex.A1 She would also submit that the defendant would also entitle to ‘A’ schedule property after the demise of Alamelu Ammal as her heir and therefore, the plaintiff's claim over the suit properties would not germane. She would also submit that the courts below have correctly come to the conclusion that the plaintiffs are not entitled to any of the suit properties or not liable to be disturbed since there is no perversity or bias nor any violation of principles of law. She would therefore request the court that the judgment and decree passed by the first appellate court in concurring with the judgment and decree of the trial Court may be upheld and thus the second appeal may be dismissed.

11. I have given anxious thoughts to the arguments advanced on either side.

12. The suit has been filed by the plaintiffs for the following reliefs:

To pass a decree,

“a) declaring that the plaintiffs are the true, lawful and absolute owners of the properties described hereunder in A schedule;

b) declaring that the plaintiffs have a vested remainder in the ‘B’ schedule properties as set out thereunder after the life time of the defendant;

c) directing the defendant to put the plaintiffs in possession of the ‘A’ schedule properties;

d) directing an enquiry into future mesne profits under Order 20 Rule 12 C.P.C

e) directing the defendant to pay the costs of the suit to the plaintiffs;

f) granting such other and further reliefs that may be deems fit and proper in the circumstances of the case and thus render justice.”

13. The admitted case of both parties are that one Perumal Naidu, father of the defendant and great grandfather of the plaintiffs 1 and 2 and he married three wives namely Subbammal, Lakshmiammal and Pappammal. The third wife Pappammal did not procure any child and she was issueless. However, the first wife of Perumal Naidu namely Subbammal had a daughter namely Muthammal. The second wife of Perumal Naidu, Lakshmiammal was having two daughters namely Alamelu Ammal and Ramanujathammal namely the defendant herein. The first wife's daguther Muthammal had two daughters namely Andal and Vijayalakshmi and second daughter Vijayalakshmi died as spinster in the year 1988 and the first daughter Andal had two issues namely Seetharama Naidu, the first plaintiff herein and Sakunthala, the second plaintiff. The daughters of second wife Lakshmi Ammal namely Alamelu and Ramanujathammal became widows on their husband's death and they were also issueless. The father of the defendant and the great grandfather of the plaintiffs namely Perumal Naidu executed a Will on 27.12.1923 bequeathing his properties in favour of his daughters and the third wife Pappuammal. The said Will was upheld in a suit filed in O.S No. 13 of 1924. However, the said judgment and decree passed by the Sub-Court Tiruvarur on 15.9.1925 was challenged in the first appeal as well as in second appeal before this Court and the judgment and decree passed by the trial Court was upheld and confirmed. According to the said judgment, the truth, genuineness and validity of the Will executed by Perumal Naidu bequeathing the properties in favour of his daughters got through the second wife Lakshmiammal has been accepted and approved. After the death of Perumal Naidu, the Will came into force and the properties bequeathed in favour of Alamelu and Ramanujammal were divided among themselves in a partition, had in between them on 29.7.1957 as proved through Ex.A1, the partition deed. In the said partition deed A-schedule property was allotted to the said Alamelu and B schedule property were allotted to Ramanujathammal. The available properties of Alamelu Ammal in ‘A’ schedule of Ex.A1 were shown as ‘A’ Schedule to the suit except item 2 in ‘A’ schedule of Ex.A1 and the properties listed in ‘B’ schedule of Ex.A1 have been referred to in the ‘B'schedule in this suit.

14. The dispute in between the parties is that the Will executed by Perumal Naidu in favour of Alamelu Ammal and Ramanuthammal was conferring only life estate in their favour, without any power of alienation. The case of the plaintiff would be that when Perumal Naidu has bequeathed his properties; in favour of Alamelu Ammal and Ramanujathammal to enjoy those properties till their life time, and on the death of Alamelu Ammal, the properties described in ‘A’ schedule will revert back to the plaintiffs as reversioners of Perumal Naidu. Similarly, the contention raised by the plaintiff regarding the properties of Ramanujathammal as detailed in ‘B’ schedule was that the plaintiffs are the ‘vested remainder’ holders of ‘B’ schedule properties after the demised of Ramanujathammal. Since the plaintiffs are entitled to such reliefs, the plaintiff has also asked for mesne profits to be decided under Order 20 Rule 12 C.P.C

15. The trial Court had categorically come to a conclusion that the Will executed by Perumal Naidu in favour of his daughters Alamelu Ammal and Ramanujathammal was conferring absolute right and it was not a life interest as putforth by the plaintiff. For that it had referred to the plaint allegations made in O.S NO. 13 of 1924 and also the reference made in Ex.A1 partition deed and had decided that the bequest made by Perumal Naidu in favour of his daughters was only absolute right and not life estate. The first appellate court had also considered the said aspect in point No. 2 framed by it and had come to a conclusion that the bequest made by Perumal Naidu in favour of his daughters was absolute estate. It had considered the reference made in Ex.A1 partition deed produced by the plaintiffs and also the reference made in the averments in the plaint produced in the judgment Ex.B2=Ex.A5 The copies of the will produced in Ex.B3 and Ex.B4 was not disputed by the plaintiff at the time of its admission and they would show that Perumal Naidu had disposed his properties through the bequest in favour of his daughters absolutely. Therefore, it cannot be said that the bequest made in favour of the defendant and her sister Alamelu by their father in Ex.B3 and Ex.B4 was only life estate. The plaintiff who has come forward with a specific case he must show that the testator Perumal Naidy had bequeathed only life estate and not absolute estate. When plenty of evidence is produced and available before the Court in order to prove the nature of bequest made by Perumal Naidu through his Will dated 27.12.1923, no adverse inference can be taken against the defendant for not producing the original will which is nearing a century old. In the background of the decisions reached by the courts below, I do not find any perversity or biased attitude in reaching a decision regarding the fact. Therefore, this Court cannot interfere in the finding reached on facts that the bequest made by PerumalNaidu in favour of his daughters was only a absolute interest in the properties not through the Will dated 27.12.1923

16. As regards the appreciation of law, I could see that the plaintiffs were claiming the properties belonging to Alamelu Ammal as the legal heirs of Alamelu Ammal since they are the reversioners of Perumal Naidu. The plaintiffs have also claimed that the properties described in ‘B’ schedule belonging to the defendant as the absolute owner of the said properties. Out of these two claims, the claim against the properties belonging to the defendant was clearly decided by the factual aspects that the ‘B’ schedule properties was given to the defendant and there cannot be any claim over the said property that the plaintiffs would be the holders of vested remainder of ‘B’ schedule property. The said finding reached by the courts below are perfectly alright.

17. However, the properties shown in ‘A'schedule is concerned, the defendants claim as absolute owners of ‘A’ schedule properties being the reversioners of Perumal Naidu. The same would be thwarted down by the courts below. Whether the decision reach by the Courts below concurrently is in accordance with law, is the question to be decided. The beneficiary of the Will namely Alamelu Ammal was given absolute right in the properties bequeathed under the will dated 27.12.1923 and subsequently, she has partitioned the properties with her sister, the defendant herein. In the said partition i.e, Ex.A4, she got the properties described in ‘A’ Schedule. Admittedly the said Aamelu Ammal died prior to the filing of the suit. When we apply the law prevailed on the date of death of Alamelu Ammal, I could see that she died only after entering into partition deed in the year 1957 in Ex.A1 Therefore, the provisions of Hindu Succession Act would also strictly apply for finding out her heirs. It is not the case of both parties that Alamelu Ammal has also executing the will dislocating the intestate succession. Therefore, we have to find out whether the plaintiffs are also deemed as her heir for inheriting the property through intestate succession.

18. The legal heirship for death of a female is being dealt with in Section 15 of the Hindu Succession Act for ascertaining her heir.

“15. General rules of succession in the case of female Hindus: - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(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;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Nothwithstanding anything contained in sub-section (1)—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) nor upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.”

19. According to section 15(2)(a), of the Hindu Succession Act, we could see that if any property inherited by the female Hindu from her father, it shall devolve in the absence of son or daughter not upon the other heirs referred to sub section (1) but only upon the heir of the father. Therefore, the heirs of Perumal Naidu have to be ascertained for the purpose of finding out the heirs of Alamelu Ammal as on the date of death of Alamelu Ammal. For that, Section 8 of the Hindu Succession Act has to be resorted to—

“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 heirs of any of the two classes, then upon the agnates of the deceased; and

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

20. In the said section it has been categorically stated that the property of the male Hindu died intestate shall devolve firstly upon Class-I heir, secondly upon Class-II heirs in the absence of Class-I heirs, thirdly upon the agnates of the deceased in the absence of Class-I and Class-II heirs and lastly if there is no agnate, then upon the cognates of the deceased. Now, we have to ascertain whether Class-I heir are available for Perumal Naidu. It has been described in schedule of The Hindu Succession Act as follows:

Class-I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son (son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son).

21. According to the said description, we can find that the first plaintiff was the son of predeceased daughter (Andal) of predeceased daughter (Muthammal) of perumal Naidu and the second plaintiff being the daughter of predeceased daughter (Andal) of predeceased daughter (Muthammal) of Perumal Naidu, they are attracted under Class-I heir. The defendant being the daughter of Perumal Naidu is also described in Class-I heir and according to the provisions of Section 8 of the Hindu Succession Act Class-I heir will take the properties simultaneously. Therefore, the plaintiffs would each get 1/3 share and the defendant, Ramanujathammal will get 1/3rd share from and out of the properties of Alamelu Ammal as Class-I heirs of Perumal Naidu. However, on verification, I can find that item 2 of ‘A’ schedule property is not found a place in Ex.A1 partition deed as allotted to Alamelu Ammal. Therefore, the plaintiffs cannot get any right in respect of item 2 of A-schedule and however in respect of other items of ‘A’ schedule, the plaintiffs are each entitled to 1/3 share (i.e 2/3 share for plaintiffs) and a declaratory decree to that effect is ordered. Therefore, I could see that the courts below have erred in applying the principle of law in respect of the properties belonging to Alamelu Ammal and had dismissed the entire claim of the plaintiffs which is not correct. Therefore, it has become necessary for this Court to interfere with the judgment and decree passed by the Courts below. Despite the questions of law framed are ending against the appellants, to sum up the judgment and decree passed by the courts below are set aside in respect of ‘A’ schedule properties and the judgment and decree passed by the courts below are modified to the effect that the plaintiffs are entitled to a declaration that the plaintiffs are each entitled in respect of ‘A’ schedule property except item 2 of ‘A’ schedule as prayed for and for consequently enquiry regarding mesne profits in respect of ‘A’ schedule property is also ordered. In respect of other aspects, the second appeal is dismissed.

22. In fine, the second appeal is partly allowed. The judgment and decree passed by the courts below are set aside in respect of ‘A’ schedule properties and the judgment and decree passed by the courts below are thus modified to the effect that the plaintiffs are each entitled to 1/3 share in respect of ‘A’ schedule property except item No. 2 of ‘A’ schedule as prayed for and for consequential relief regarding mesne profits in respect of 2/3 share of the plaintiffs in ‘A’ schedule property. The judgment and decree passed by the courts below are confirmed in respect of ‘B’ schedule property. There shall be no order as to costs.