THILLIAMMAL, BABY AMMAL AND RAJESWARI AMMAL Vs. THANDAVAMURTHY AND OTHERS

Normally the right to immovable property is decided according to the law of the land, where such property is situated. But, succession to the immovable property in India, of a person deceased, shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death. The Indian Succession Act, 1925, consolidates the law applicable to inter state and testamentary succession in the Country. However, it does not apply to Hindus.

They are governed by Hindu Law, their personal law, the law of domicile. There are many schools of Hindu Law in the Country. The law of succession in different parts of India depended upon the school of Hindu Law prevailing in that part. Statues enacted from time to time modified the Hindu Law to some extent.

(2008) ILR(Karnataka) 819 : (2008) 2 KCCR(SN) 88

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : N. Kumar, J )

THILLIAMMAL, BABY AMMAL AND RAJESWARI AMMAL — Appellant

Vs.

THANDAVAMURTHY AND OTHERS — Respondent

Regular First Appeal No. 516 of 1995

Decided on : 12-04-2007

Hindu Succession Act, 1956 – Section 14, Section 14 (1)

Cases Referred

Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, AIR 1959 SC 577 : (1959) 1 SCR 968 Supp

JUDGMENT

N. Kumar, J.—This appeal is by the plaintiffs whose suit for declaration of title and other consequential reliefs is dismissed by the trial court after trial. For the purpose of convenience the parties are referred to as they are referred to in the trial court.

2. The plaintiffs claim that, they are the owners of the properly bearing No. 51, 51A to K (old), New No, 131 situated at Veerapillay Street, Civil Station, Bangalore, which is hereinafter referred to as the “schedule properties”. They claim title to the said properties having inherited the same from Sri Gangadhara Mudaliar, who is the husband of the first plaintiff and father of the plaintiffs-2 and 3. The said Sri Gangadhara Mudaliar died on 15.5.1970. In the plaint they have set out the genealogical tree. The said Gangadhara Mudaliar is the last male member of the family. He would be the Bandhu of Sri. Periaswamy.

3. The specific case pleaded by the plaintiffs’ is that the schedule property belongs to Sri Periaswamy. He died in 1894. Smt. Unnamalaiammal, the daughter of Periaswamy had a life interest in the schedule property. She died on 30.7.1964 at Bangalore. On her death, as she was a limited owner, the title to the schedule property reverted to the plaintiffs, who are the revisioners. As Smt. Unnamalaiammal had alienated the property in favour of one Natasha Mudaliar on 7-8-1943 who died leaving behind the defendants-1 to 4, the said alienation did not bind them to any extent whatsoever. The other defendants, namely, defendants No. 5, 6, 6(a) to 6(d) and 21 claim this property through Natesha Mudaliar being alienees, and those alienations are also not binding on the plaintiffs. It is contended that the said Natesha Mudaliar had mortgaged the property to defendant No. 5. In pursuance to the decree obtained by defendant No. 5 schedule property was ordered to be brought to sale as per orders passed in O.S. No. 28/1962. As the said alienation are not binding on the plaintiffs, they called upon the defendants-1 to 4 by way of legal notice to hand over possession to them. They have also claimed mesne profits at the rate of Rs. 500/- per month for three years. It is alleged that during the pendency of the suit, defendants-1 to 4 through their General Power of Attorney Sri. G. Sundar Rajan had alienated the part of the suit property in favour of the 6th defendant Sri. M.K. Yousuff and the remaining part to the 23rd defendant Sri. S.M. Anwar Pasha and have delivered physical possession of a portion to them. Defendants-7 to 22 are the tenants in occupation of several portions of the suit building ever since the filing of the suit in the year 1973. Some of the tenants filed a petition u/s 19 of the Karnataka Rent Control Act, 1961 for deposit of rent. To the said proceedings they had made the first plaintiff and General Power of Attorney holder of defendants-1 to 4 as parties contending that as both of them were claiming to be landlords and demanding payment of rents, they sought permission of the court to deposit the amount in the court. By order dated 13.11.1978, the court passed an order directing them to deposit the rent in the court till the real landlord is ascertained. Accordingly, for some time they deposited the money and thereafter they have stopped making deposits. They have set out in the plaint the suit filed by defendant No. 6 for arrears of rent, as well as for eviction against the various tenants and contend that the 6th defendant has no right to initiate such proceedings. Defendants-7 to 9 and 12 had filed O.S. No. 10690/1984 on the file of the Additional City Civil Judge, Civil Station, Bangalore, against the 6th defendant and in the said suit an order of temporary injunction was passed against him restraining him from demolishing or damaging fee said tenements or in any way interfering with the peaceful occupation of the said plaintiffs. The plaintiffs are entitled to claim a declaration that the alienation made in favour of late Natesha Mudaliar and defendants 5 and 6 and 25 are not binding on the plaintiffs. They are also entitled to claim a decree for possession against all the defendants and also mesne profits, past and future, from them. Hence, the present suit is filed for the aforesaid reliefs.

4. After service of notice the defendants have entered appearance. The defendants-1 to 4 have filed a detailed written statement contesting the claim of the plaintiffs. They haw denied plaintiffs’ title to the schedule property, deny that Gangadhara Mudaliar was the last male member of the family, they contend that the genealogical tree is not correct, Gandhara Mudaliar is not the Bandhu of Periaswamy. They denied their liability to pay mesne profits. They deny that Unnamalaiammal had a life interest in the properties. They contend that Unnamalaiammal had absolute interest in her own right as well as heir of her deceased mother Rukmaniammal. Rukmaniammal herself had acquired an absolute interest under O.S. No. 45/1923 on the file of the District Judge, Civil and Military Station, Bangalore. Rukmaniammal died on 25.9.1938 and her sister Manikammal having predeceased her and Unnamalaiammal has inherited the property. She sold the same in favour of Natesha Mudaliar under deed dated 7.8.1943 for legal necessity. As such she conveyed absolute title to them. The mortgage of suit schedule properties by Natesha Mudaliar to Ekambaran Chatty was admitted. They deny the legal notice issued by the plaintiffs to them. They contend that the suit is barred by limitation since the sale in favour of Natesha Mudaliar was on 7.8.1943 and subsequently after the death of the said Natesha Mudaliar the possession continues to be with the legal representatives continuously, adversely, openly and to the knowledge of the plaintiffs. They contend that the present suit is also barred by virtue of the decision in O.S. No. 62/1965 which was dismissed on 17.3.1972.

5. The fifth defendant has filed separate statement denying the ownership of the plaintiffs and has reiterated the allegations made in the written statement of defendants 1 to 4. He further contends that even if the interest of Unnamalaiammal can be said to be a limited interest, the sale by her to Natesha Mudaliar under a deed dated 07.08.1943 has conveyed absolute interest as the sale was for legal necessity. Absolute title is conveyed to him. He asserts his right to bring the property to sale in view of the decree passed in O.S. No. 28/62 and denies the issue of legal notice. He also contends that the suit is barred by virtue of the decision in O.S. No. 62/65.

6. Other defendants have reiterated the aforesaid allegations either by filing independent statement or by filing a memo adopting the statement.

7. On the aforesaid pleadings, the Trial Court framed the following issues:

(1) Whether the plaint genealogy is correct?

(2) Whether deceased Gangadhar Mudaliar was a Bandhu of Periaswamy?

(3) Whether plaintiffs have a right to inherit the suit property?

(4) Whether plaintiffs prove that deceased Unnamalaiammal had only a life interest in the suit property?

(5) Whether the alienation of the suit property in favour of late Natesha Mudaliar is not binding on plaintiffs?

(6) Whether defendants prove that Unnamalaiammal was an absolute owner?

(7) Whether they also prove that she alienated the suit property in favour of Natesha Mudaliar in 1943 for legal necessity?

(8) Whether they further prove that they perfected their title by virtue of adverse possession?

(9) Whether the suit is barred by a decision in O.S. 62/65?

(10) Whether the suit property is properly valued and correct court fee is paid?

(11) Whether plaintiffs are entitled for mesne profits?

(12) Are they entitled for possession?

(13) What decree or order?

(14) Whether Unnamalaiammal became the absolute owner by virtue of Section 10(2)(g) of Mysore Act?

(15) Whether the said Mysore Act applied properly to the parties and Civil Station as contended by LRs. of defendant – 6? If so, is the suit not maintainable?

(16) Whether they prove further that the reversionaryy interest of Gangadhara Mudaliar got wiped out u/s 10 of the said Mysore Act?

(17) Whether defendants 1 to 4 acquired absolute interest u/s 43 of the T.P. Act and could convey valid title to defendants 6 to 23?

8. On behalf of the plaintiffs, the first plaintiff was examined as PW1 and they examined a witness by name G.D. Balan as PW2 and they also produced 7 documents, which are marked as exhibits P1 to P7. On behalf of the defendants PA holder of defendants 1 to 4 was examined as DW1 and 23rd defendant Sri. Anwar Pasha was examined as DW2. They have produced 17 documents, which are marked as exhibits D1 to D17. The Trial Court, on appreciation of the oral and documentary evidence on record, held that the genealogy given in the plaint is correct and that the deceased Sri. Gangadhar Mudaliar was a Bandhu of Sri. Periaswamy. Further, it held that Unnamalaiammal became the absolute owner of the suit schedule property in 1938 itself under the provisions of Section 10(2)(g) read with Section 11 of the Hindu Law Women’s Rights Act, 1933, for short hereinafter referred to as “the Act”. As on the date of the said Act coming into force on 1.1.1934 she was residing in the Princely State of Mysore. When she sold the said property to Sri. Natesh Mudaliar on 7.8.1943 under exhibit D1, she was the absolute owner of the property and therefore, Sri. Natesh Mudaliar acquired absolute title to the property. Therefore, the said properly never reverted to the reversionary and plaintiffs have not inherited the suit property and the contentions of the plaintiffs that Unnamalaiammal had only like interest is not correct. It further held that aforesaid alienation by Unnamalaiammal in favour of Natesh Mudaliar was not for a legal necessity. It also held the decision rendered in O.S. 62/1965 does not operate as res-judicata in the present suit. It also held, the present suit is not barred by limitation and defendants have not perfected their title by adverse possession in respect of the suit schedule property. Thus, the Trial Court dismissed the suit of the plaintiffs holding that the plaintiffs have no right in the suit schedule properly. Aggrieved by the said judgment and decree of the Trial Court the plaintiffs have preferred this Regular First Appeal.

9. Sri. V. Tarakram, learned Senior Counsel appearing for the appellants contended, that the suit schedule property is situated in the Civil and Military Station, Bangalore. Rukminiammal and her daughter Unnamalaiammal were residing in the schedule property till they were dis-possessed. Merely because they were residing at Cotton pet or Srirampuram, it cannot be said that their domicile was within the old Princely State of Mysore. They had no intention to change their domicile and on the day of succession they were governed by the law of Mitakshara and the Act was not extended to the province where they were residing and therefore what Smt. Rukminiammal acquired was only a limited estate, she did not become the absolute owner of the property. It was not ‘streedana’ property as defined under the Act. Even under the Act, as Rukminiammal had a daughter, she did not become the absolute owner of the said property. On the date of sale by Unnamalaiammal, on 7.8.1943, she was only a limited owner. The Trial Court has rightly held that the sale by her is not for any legal necessity. She could have only conveyed her interest in the property which she possess and the said conveyance did not convey absolute title to Sri. Natesh Mudaliar and therefore on the death of Unnamalaiammal, the suit property reverted back to Gangadhar Mudaliar, a Bandhu of Periaswamy. Therefore, defendants did not get any title to the property and the plaintiffs are entitled to the declaration that they are the absolute owners of the suit property as they are the legal heirs of Sri. Gangadhar Mudaliar. Secondly, it was contended that the Act was extended to Civil and Military Station with effect from 8.5.1946 and that Unnamalaiammal died on 30.7.1964, as on the date of the Act made applicable to CMM Station, Unnamalaiammal was not in possession of the property and therefore, she did not become the absolute owner as the aforesaid section is similar to Section 14 of the Hindu Succession Act, 1956 where it is authoritatively held by various judgments, only if the female heir who has a life interest is in possession of the property, limited estate enlarges into the absolute estate.

10. Per contra, learned Counsel appearing for the respondents Sri. S.R. Krishna Kumar supported the impugned judgment and decree and contended, the evidence on record clearly establishes that Smt. Rukminiammal was residing permanently in the Princely State of Mysore from 1930 onwards and on the day the Act came into force, by virtue of the provisions of Section 10(2)(g) of the Act, the schedule properties became ‘streedana property’ of Rukminiammal and after the death of Rukminiammal by virtue of Section 21 of the Act, Unnamalaiammal became the absolute owner and therefore on 7.8.1943 when Unnamalaiammal sold the property in favour of Natesh Mudaliar she was the absolute owner and the purchaser became the absolute owner of the property and the right to property did not revert back to Gangadhar Mudaliar who was the Bandhu of Periaswamy.

11. In view of the aforesaid facts and the rival contentions, the point that arises for consideration is:

Whether on 7.8.1943 whether Smt. Unnamalaiammal was the absolute owner or a limited owner of the schedule property.

12. In order to answer this question, it is necessary to know what was the law governing the parties before the enactment of Mysore Hindu Law Womens Right Act, 1933, what are the changes bought about under the said law, and whether the said law is applicable to the parties and the schedule property.

13. Normally the right to immovable property is decided according to the law of the land, where such property is situated. But, succession to the immovable property in India, of a person deceased, shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death. The Indian Succession Act, 1925, consolidates the law applicable to inter state and testamentary succession in the Country. However, it does not apply to Hindus.

They are governed by Hindu Law, their personal law, the law of domicile. There are many schools of Hindu Law in the Country. The law of succession in different parts of India depended upon the school of Hindu Law prevailing in that part. Statues enacted from time to time modified the Hindu Law to some extent. The Hindu Law Women’s Right Act, 1933 and the Hindu Women’s Right to Property Act, 1937, were a big step forward in confirming larger rights of succession to women.

14. Prior to 1933, females inheriting the property from a male took a limited estate, according to all the schools of Hindu Law. Females who take a limited or restricted estate in property inherited by them were called as limited heirs. The heirs of last full owner, who would be entitled to succeed to the estate of such owner, on the death of a limited heir is called a reversioner. The interest of a reversioner is an interest expectant on the death of a limited heir. It is not a vested interest. It is a spes successions or a mere chance of succession within the meaning of the Transfer of Property Act, 1882.

15. The concept of “Stridhana” was well recognised from the most ancient times. It refers to women’s separate property. Stridhana in its etymological sense includes all kinds of properties of which woman has become the owner, whatever the extent of her rights over it, She forms the stock of descent in respect of such property, which devolves on her heirs. Therefore, under Shastric Hindu Law, the right of women to acquire and possess property was well recognised and the restriction imposed was only with reference to the right to dispose of the properly so held. Their rights of dispositions over many and minor species of properties too were admitted, though over others, restrictions were imposed on fairly rational grounds. It is to be remembered that restrictions were imposed over males also in respect of dispositions of property and especially of immovable property. The whole purpose and object of legislations brought about dealing with the properties of the women is to give her an absolute right to dispose of her properties without any such restriction.

16. The Mysore Hindu Law Women’s Rights Act, 1933, was enacted amending the Hindu Law as to the rights of the women and in certain other aspects. The said Act came into force from 01.01.1934 in the Princely State of Mysore and from 08.05.1946 in the Civil and Military Station, Bangalore. Section 2 of the Act makes it clear that it applies to persons who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions contained therein. Nothing contained in the said Act shall be deemed to affect the rules or incidents of the Hindu Law which are not inconsistent with the provisions of the Act Section 3(d) of the Act deals with women’s full estate. Section 4 of the Act defines the order of succession and it sets out the members of the family who would be entitled to succeed to a Hindu male dying interstate, Section 10(1) of the Act defines what is ‘Stridhana’. It means property of every description belonging to a Hindu female, other than properly in which she has, by law or under the terms of an instrument, only a limited estate. Sub-section (2) of Section 10 of the Act sets out the properties which are included in the ‘Stridhana’. One such property which falls within the definition of ‘Stridhana’ is contained in Section 10(2)(g) of the Act, i.e., properly taken by inheritance by a female from another female and property taken by inheritance by a female from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter’s son of the propositus alive at the time the property is so inherited. In other words, the existence of a daughter or a daughter’s son comes in the way of a female inheriting the property as aforesaid absolutely. If daughter or a daughter’s son exists she would get only a limited estate. This provision has to be read along with Section 16 of the Act, which clarifies the position that any property other than ‘Stridhana’ as defined under Sections 12 and 13, a female shall take a limited estate. The proviso to Section 16 makes it clear that it shall be competent to a female having only a limited estate in any property to acquire a fall estate therein by obtaining from the next reversioner a release of his entire interest in such property in her favour. Section 13 of the Act declares that any person, male or female, inheriting ‘Stridhana’ property shall take therein a full estate. Section 17 of the Act sets out the rights of a holder of limited estate. Section 18 of the Act imposes restrictions on powers of holder of limited estate in so for as alienating the same is concerned. It provides that a female having only a limited estate in any property is not entitled to alienate the property or any portion thereof for any period extending beyond the termination of her limited estate. In other words, what has been given is the power of alienating the limited estate during the period she is entitled to enjoy the said estate.

However, few exceptions have been carved out to this general rule. One such exception is where the alienation is made for a necessary purpose, then notwithstanding the fact, she possess only a limited estate, she can alienate the properly as absolute owner thereof. If the alienation is for a legal necessity, then the purchaser of the said properly would get absolute estate. The second exception recognized is, if the next reversioner acquiesced to acquire the full estate therein of a female having only a limited estate in any properly, then also, the purchaser would get absolute title. The word “necessary purpose” in Section 18(1)(a) of the Act has been explained by Sub-section (2) of Section 18 of the Act to mean any purpose which is for the benefit of the property or is proper or incidental to the position in life and society of the female owner concerned and the illustrations (a) and (b) amplify the said purpose. Section 21 of the Act provides for succession on termination of limited estate. On termination of a limited estate of a female owner, the property comprised in such estate, shall pass to the person who at the time is the next heir of the last full owner.

17. Therefore, with the passing of this enactment, a female heir inheriting the property from another female or male gets the property absolutely as ‘Stridhana’ property, the only exception is if such female heir has a daughter or a daughter’s son, then she succeeds to the estate as a limited owner. On her death her heirs who will also be the heirs of the last full owner would get absolute title to the said estate. This rule is inconsistent with the rule of Mitakshara, where a female heir never succeeds to the estate of a male or female heir absolutely and therefore, the provisions of this Act prevail over the law of Mitakshara.

18. ‘Hindu’ Law Women’s Rights to properly Act 1937, was enacted which came into force on 14.04.1937. It applied to the whole of India, except part ‘B’ States. Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of Section 3 of the said Act applied where a Hindu dies intestate. Section 3 of the Act dealt with devolution of the property. Under the aforesaid enactment, when a Hindu died intestate leaving behind the property, his widow shall be given a share as equal to that of a son. However, it was made clear that any interest devolving on a Hindu widow under the provisions of said Section 3 shall be a limited interest known as Hindu Women’s Estate, provided that she shall have the same right of claiming partition as a male owner. Section 4 made it clear that said enactment is only prospective.

19. The Mysore Hindu Law Women’s Rights Act, 1933, which was not applied to Civil and Military Stations of Bangalore was extended to the said province on 08-05-1946 by a notification dated 06.11.1945. As is clear from Section 2 of the Act, 1933, the said enactment was made applicable to persons and not to the properties. Therefore, to all those persons who are governed by the law of Mitakshara and who were domicile in the State of Mysore except Bellary District, the said law was made applicable. Only those females who were residing within the State of Mysore on the date of said enactment were entitled to the benefit of the said enactment. It is irrespective of where the properties owned by them or claimed by them is situated.

20. The learned Author – Mayne, in his Hindu Law and Usage has observed as under:

Prima facie any Hindu residing in a particular province of India is held to be subject to the particular Doctrine of Hindu Law recognised in that province. But this law is not merely a local law. It becomes personal law, and a part of the status of every family which is governed by it. Consequently, where any such family migrates to another province, it carries its own law with it, including any custom having the force of law.

21. This Court in the case of Duggamma and Anr. v. Ganeshayya and Ors. AIR 1968 MYS 97 observed that the argument that the rights to immovable property should be decided according to the law of the land in which such property is situate, has little practical value in India in respect of persons who are governed by the Hindu Law. The Succession Act, which is the law of the country, does not apply to Hindus and the right to succession is governed by the Hindu law which is the law of domicile.

22. From the material on record, it is clear that the suit schedule property originally belonged to Veerapillai. Veerapillai took his brother’s son Periaswamy in adoption, as he had no issues. After the death of Veerapillai, Periaswamy became the absolute owner of the suit schedule property. Periaswamy had married Rukminiammal. Through her, he had two daughters by name Unnamalaiammal and Manikyammal. Perisaswamy had two natural brothers Sri. Venkatachala and Sri. Thiruvengadam. Sri. Thiruvengadam died issueless. Sri Venkatachala had a son by name Sri. Gangadhar Mudaliar. In view of the fact that Periaswamy did not have sons, after the death of Venkatachala, Gangadhar Mudaliar was his Sambandhi, a nearest male relative. The said Periaswamy died in 1894. After the death of Periaswamy his widow Rukminiammal was in possession of the suit schedule property. She died in the year 1938. Her another daughter Manikyammal pre-deceased her. After her death, her daughter Unnamaliaammal inherited the suit schedule property.

23. The case of the plaintiffs is that the suit schedule property is situate in Civil and Military Station, Bangalore. After the death of Unnamalaiammal, who had only a limited estate in respect of the plaint schedule property, Sri Gangadhar Mudaliar – husband of the first plaintiff inherited the said property as the next legal heir and Bandhu by way of reversion being the last male relative. After the death of Gangadhar Mudaliar in the year 1970, the plaintiffs being his legal heirs inherited the suit property.

24. The evidence on record discloses that in the cross-examination of Rangaswamy Chetty in O.S. No. 33/1930, the suit filed by him for recovery of advance amount against Rukminiammal and her children, it is elicited that Rukminiammal and her two daughters shifted from the plaint schedule property to Srirampuram house and Smt. Rukminiammal died about 5 years after she shifted to Srirampuram. The evidence on record showed that she died at Srirampuram house. Exhibit P6 is a suit in O.S. 87/1931 filed by one Devaraja Mudaliar against Rukminiammal and her daughters. In the said suit it is mentioned that Rukminiammal and her daughters were residing in Gejje Basetti’s Lane, Cotton pet, Bangalore City on the date of the suit i.e., in 1931. Smt. Unnamalaiammal had filed a suit O.S. 32/1940 against one Rangaswamy Chetty for possession of the suit property and for recovery of Rs. 1,260/- and for future mesne profits. In the said suit, case of Unnamalaiammal was the said N. Rangaswamy Chetty had obtained a decree for money against Smt. Rukminiammal and her daughters and in execution of the said decree the property was brought to sale. He purchased the same in court auction and that he was in possession of it from the year 1932. In other words, in or about 1931 Smt. Rukminiammal and her daughters were dis-possessed from the said suit schedule property. It is also on record that the parents of Rukminiammal were residents of Cubbonpet, Bangalore. The other materials on record shows that Unnamalaiammal though got decree for possession of the suit schedule property on 23.03.1942, she did not recover possession of the schedule property and she did not reside in the schedule property. On the contrary, she sold the property to Natesh Mudaliar under exhibit D1. In other words, 10 to 12 years prior to the sale in favour of Natesh Mudaliar, neither Rukminiammal nor her daughter Unnamalaiammal lived in the suit schedule property. They were living in Srirampuram and Cotton pet which falls within the province of old Mysore State. Therefore, on the day the Act of 1933 came into force i.e., on 1.1.1934, both Smt. Rukminiammal and Unnamalaiammal were residing in the Princely State of Mysore to which the aforesaid Act applied.

25. It is not in dispute that the law which was applicable to both the province namely, the Princely State of Mysore and Civil and Military Station of Bangalore, was law of Mitakshara. Hindus living in these two provinces were governed by the law of Mitakshara. In so far as Hindus living in the Princely State of Mysore, after this Act came into force on 1.1.1934, the law of Mitakshara applicable to the persons in the area, stood amended or modified by the provisions of this Act. The property taken by inheritance by a female member from another female and property taken by inheritance by female from her husband or a son or from male relative became her streedana property, subject to an exception that when there is a daughter or a daughter’s son alive at the time the properly is so inherited in which event what she inherited is only a limited estate. However, Section 21 of the said Act provided, on the termination of the limited estate of female owner the property comprised in such estate, shall pass to the person who at the time is the next heir of the last full owner. Section 4 of the Act deals with order of succession when a Hindu male dies intestate, the male issue to the third generation succeeds through the said estate to the total exclusion of all others. If there is no male issue, it is the widow who succeeds the estate. In the absence of the widow, it is the daughter who succeeds to the estate. Therefore, u/s 11 on the death of the widow the next heir of the last true owner namely the daughter succeeds to the estate as the absolute owner.

26. Smt. Rukminiammal, after the death of her husband in 1894 took a limited estate in the schedule property. On the passing of the Act, the position did not change under the Act also, Smt. Rukminiammal took a limited estate in the schedule property as she had a daughter. After her death in 1938, her daughter Unnamalaiammal became the absolute owner. In 1943 when Unnamalaiammal sold the schedule property in favour of Natesh Mudaliar she was the absolute owner and not a limited owner. Natesh Mudaliar under the sale deed dated 7-8-1943 acquired absolute title to the suit property. Therefore, as the estate possessed by Unnamalaiammal was not a limited estate, on her death the question of the said limited estate reverting back to reversioners did not arise. Though the plaintiffs are the legal heirs of Sri. Gangadhar Mudaliar, who is the nearest last male relative and Bandhu of Sri Periswamy, he did not acquire any right to the schedule properly by such reversion. Therefore, the plaintiffs also did not acquire any right to the schedule property.

27. The Trial Court has discussed at length the law on the question of domicile and the law on the question of migration which was also argued before me.

The word ‘domicile’ finds place in Indian Succession Act, 1925. Section 5 of the Act, 1925, declares that succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death. Whereas the succession to the movable properly of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death. Therefore, the word Domicile in the said Act is to be understood in that context. The Indian Succession Act, 1925, has no application to Hindus in the matter of succession and inheritance, as they are governed by their personal law, Hindu Law. In the light of personal law, the word Domicile has to be construed in the context of a person migrating from one region of India which is governed by a particular school of Hindu Law, to another region which is governed by another school of Hindu Law. However, if a person shifts his residence from a place which is governed by the law of mitakshara to another place which is also governed by the law of mitakshara, there is no change of domicile or migration, as understood in the context of law of succession. In such circumstances the question of finding out the intention of the person, who changed his residence, whether he wanted to give up the law which was applicable to him at the place of his original residence and he wanted to embrace and have the benefit of the law which was applicable to the province to which he migrated would not arise. However, in the Act which is a subsequent legislation, there is no reference to the word ‘domicile’ anywhere in the Act.

28. In the instant case the parties were residing at Civil and Military Station of Bangalore which was governed by the law of mitakshara. They shifted their residence to Princely State of Mysore which was also governed by the law of mitakshara. Therefore, the question of finding out what was the intention of the parties after they shifted from one place to another would not arise. It is not a case of migration in the strict sense. The Act came into force nearly after three years after such shifting. Therefore the question of parties shifting their residence with the intention of having the benefit of the law in the Princely State of Mysore also did not arise. It so happened that the Act came into force on 1-1-1934 giving the benefit to women who are governed by the law of Mitakshara in the Princely State of Mysore. Therefore, the parties were entitled to the said benefit and there is no reason to deny the same to them on the basis of the any imaginary or notional or technical interpretation, that would not advance the cause of justice.

29. Learned trial Judge has almost referred to all the decisions cited in this regard and has categorically held that neither it can be said that the domicile was changed in the facts and circumstances nor was there any migration. Under these circumstances, on 1.1.1934 when the Act came into force, both Rukminiammal and Unnamalaiammal were residing in the old State of Mysore and therefore, the law of Mitakshara was applicable to them, stood modified to the extent of the said Act. As Rukiminiammal had a daughter, she did not become the absolute owner of the schedule property. She possessed only a limited estate. But on her death, her daughter Unnamalaiammal who is also the next heir of the last true owner i.e., Periaswamy, became the absolute owner of the property. As such absolute owner she sold the property to Natesh Mudaliar and not as a limited owner. In that view of the matter, the plaintiffs did not acquire any right to the schedule property.

30. In so far as the contention that Smt. Rukminiammal was not in possession of the schedule property on the date, the Act came into force, and therefore she did not become the absolute owner, is concerned, it is without substance. The said argument is canvassed on the basis of the judgment of the Supreme Court in the case of Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, , while interpreting Section 14(1) of the Hindu Succession Act, 1956. The said provision provides that any property possessed by a female Hindu whether acquired before or after commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explaining the word “possessed” used in the said Section, the Supreme Court held that, “the opening words” “property possessed by female Hindu” obviously mean, that, to come within the purview of the Section the property must be in possession of the female concerned, on the date of commencement of the Act.” They clearly contemplate the female is in possession, when the Act came into force. However, under the Act the said word “possessed” is conspicuously missing in Sections 11, 12 and 13 of the Act. Therefore, the said decision has no application to the facts of this case.

31. The Trial Court on careful appreciation of both the documentary evidence on record and after referring to the statutory provisions as well as the law on the point has by a considered judgment has held that the Act is applicable to the facts of the case and therefore the plaintiffs have no right to property. I do not find any justification to interfere with the well considered judgment by the Trial Court.

32. Accordingly, the appeal is dismissed.

33. Plaintiffs had filed the suit in the Trial Court as an indigent persons after the suit was dismissed, the Trial Court directed the plaintiffs to pay the court fee and it also directed for recovery of the same, a copy of the decree is sent to the Deputy Commissioner. Against the said judgment and decree when the plaintiffs preferred this Regular First Appeal, they were permitted to prosecute this appeal also as an indigent persons. Now that the appeal is also dismissed, they are liable to pay the court fee. Therefore, the appellants are directed to pay the court fee in the High Court. If they have not paid the court fee, even in the trial court they are permitted to pay the court fee payable both on the memorandum of appeal and plaint in this Court within a period of 90 days. Only in the event of the said amount not being paid, copy of the decree shall be sent to the Deputy Commissioner for recovery of the same.

Final Result : Dismissed