1. The plaintiffs are the appellants. They filed a suit for partition by metes and bounds and separate possession of the plaintiffs' two-third share in one half of the suit property and for recovery of past and future profit from the defendants.
2. One Veerappa Chettiar died leaving a son Ponnuswami and three daughters Ramayi (first defendant), Thangayi (second defendant) and Marayi. Marayi's husband is Veeramalai Chettiar, first plaintiff, and Muthuveera Chettiar and Kamakshi are her minor children. After Veerappa's death, Ponnuswami inherited the properties. Ponnuswami died in 1949 and his sisters Ramayi (first defendant), Thangayee (second defendant) and Marayi became entitled to the properties. Marayi died in the year 1953. First plaintiff Veeramalai Chettiar, purchased the one third share of Thangayee by a sale deed Ex. A-1 dated 16-10-1950. Thangayee is alive and so far as this one third share is concerned, it is admitted that the first plaintiff is entitled to it for the life time of Thangayee.
3. The question for consideration in this appeal is as to who is entitled to the share of Marayi. The plaintiffs contend that the husband and children of Marayi are entitled to her property, whereas the defendants contend that they are entitled to the property.
4. The trial Court found that the plaintiffs are entitled to a two-third share of the suit property as prayed for and decreed the suit. On appeal the learned Subordinate Judge of Tiruchirapalli found that the plaintiffs 2 and 3 are not entitled to the one-third share of Marayi, but it is only defendants 1 and 2 who are entitled to the one-third share. The learned Subordinate Judge found that the three sisters Ramayi, Thangayi and Marayi took Ponnuswami's property with a right of survivorship, and therefore on the death of Marayi the other two sisters became entitled to the property by survivorship.
5. Mr. K.S Ramamurthi, learned counsel for the plaintiffs, contended that the view of the learned Subordinate Judge that the three sisters took the property by survivorship is erroneous. He submitted that in Hindu law the female heirs take the property only as tenants-in-common. This position is not disputed by Mr. K.S Desikan learned counsel for the respondents. The question as to the nature of property inherited by two brothers from their maternal grandfather was fully considered by a Bench decision of this Court in Godavari Lakshminarasamma v. Godavari Rama Brahmam, ILR (1950) Mad 1084 : (AIR 1950 Mad 680). The Bench held that where two brothers, who are members of an undivided Hindu Mitakshara family inherit the properties of their maternal grandfather as heirs, they do not take the property with a right of survivorship, that daughter's sons have no right by birth in the property of their maternal grandfather and that they take the property as tenants-in-common and on the death of one of the brothers there would be no right of-survivorship in favour of the other at page 1107 the following passage occurs:
“According to the Mitakshara School of Hindu law, no property or interest in property of one person is taken by another by survivorship unless the latter had already an interest in the property by reason of his relationship. This can only be in apratibanda daya, in which there is always the right by birth. It is inaccurate to speak of the interest of a deceased undivided coparcener passing by survivorship to the surviving coparceners. What Happens is merely that the interest of the deceased coparcenr lapses on his death……. The true conception, according to Mitakshara law of joint family, is that in a state of non-division the ancestral property of the family is owned by all the members of the undivided family together, their ownership having accrued to them at the time of their respective births, and no new right is acquired on the death of a member.
The logical application of this basic conception leads us to the conclusion that, in property inherited by two or more person from their maternal grandfather, there can be no right of survivorship in this sense, for the daughter's sons, whether they be sons by the same daughter or by different daughters, did not possess from the time and by reason of their respective births any interest in the property of their maternal grand, father while he was alive.”
6. Therefore, apart from the members of a Hindu undivided joint family and in the case of co-widows and daughters, there is no justification for extending the principles of right of survivorship. The view of the learned Subordinate Judge that Ramayi and Thangayyee took the share of Marayi by survivorship is therefore incorrect and has to be set aside.
7. But this does not alter the result. For after the death of each of the sisters her share reverts back to Ponnuswami, the last male owner, and it is only the heirs of Ponnu-swami that are entitled to succeed to Marayi, Mulla in his Princples of Hindu Law, 12th Edn, at page 239, deals with succession to Property inherited by females, according to Mitakshara law:
A female inheriting to a male or to a female is not full Owner of the property inherited by her. Her power to deal with the property is limited. She cannot alienate it except for legal necessity. Nor does she become a Iresh stock of descent. At her death the Property passes not to her heirs but to the next heirs of the last full owner.”
8. This position is not changed by Act 2 of 1929. Though the Act makes the sister a nearer heir, her right to property is not in any way enhanced. Page: 439Therefore, on the death of Marayi hep one-third share will devolve on Ponnuswami's heirs and plaintiffs 2 and 3 will not be entitled to that on ???. As already observed, the first plaintiff will be entitled to the one-third share which be purchased from Thangayee by Ex. A-1 on 16th October, 1950, during the life, time of Thangayee.
9. In the result, the appeal is dismissed with costs.
GF/S/V.B.B
10. Appeal dismissed.