An application under Order 1 Rule 10 CPC sought impleadment in a probate petition by the son of the testator's predeceased brother claiming Class II legal heir status. The court held that living sisters of the testator (Class II Entry II) take precedence over him (Class II Entry IV), so he has no caveatable interest.
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A.No.3291 of 2024 in O.P.No.832 of 2023
Orders reserved Orders pronounced 08.08.2024 21.08.2024
RMT.TEEKAA RAMAN,J.,
This petition has been filed under Order XIV Rule VIII of O.S.Rules read with Order 1 Rule 10(2) of C.P.C.,seeking to implead the petitioner as the proposed respondent in the main O.P.No.832 of 2023.
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property originally owned by Mr.K.Gopal Naicker, and his wife is Mrs.Kathayee Ammal. They had 6 children i.e., G.Govindarajan, G.Chandrasekar, S.Jayalakshmi, S.Yasodha, N.Saraswathi & E.Parvathi. Mr.K.Gopala Naicker purchased the properties bearing S.No.3788/4 and 3787/39, which are the subject matter of this petition. Mr.K.Gopal Naicker died on 09.08.1994, and Mrs.Kathayee predeceased him. The 6 LRs succeeded to his estate. S.Jayalakshmi, S.Yasodha, N.Saraswathi & E.Parvathi filed O.S.No.12140/1996 for partition and separate possession from the Chandrasekar. An exparte decree was passed on 10.09.1998.
7(a) It is stated that the wife of the testator, Suganthal died on 6.6.2002. The petitioner is the beneficiary under the Will.
(b) The 1st petitioner is the adopted daughter of testator, and the respondents 1 to 3 are the sister of the testator, and the respondents 4 to 6 are the legal heir of the testator's 2nd sister, Yasodha, who died on 06.05.2021 after testator's death. The 4th respondent is the husband of the testator's
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deceased 2nd sister, and 5th and 6th respondents are the son and daughter of testator's deceased 2nd sister. The testator's elder brother, Govindaraj, died on 14.06.2002 before the testator's death. All the respondent have given their consent in favour of the petitioners.
8 (a). On the above factual ground, the petitioner seeks to implead as II class legal heir of the testator. The party has filed an application to implead himself. The petitioner herein is the son of the predeceased brother of the testator, namely G.Chandrasekaran. Chandrasekaran's elder brother is Govindarajan. Govindarajan died intestate on 14.06.2002, leaving behind the petitioner and two children.
(b) The original respondents in the main O.P as stated above, are the sisters of the testator, namely R1 to R3. The respondents 4 to 6 are the legal heirs of the testator's second sister, Yasodha, who died on 06.05.2021. Whether respondents 4 to 6 are necessary parties is a point to determine in the trial. The petitioner now claims that he is the II class legal heir of the Hindu man died and has invoked Section 8 of the Hindu Succession Act.
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9.Section 8 of the Hindu Succession Act defines the general rules of succession in case of a Hindu male dying intestate shall devolve firstly upon the heirs, which are the relatives specified in the schedule. Thus, Class I & II legal heirs have been described.
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13(a). In view of the clear cut provision in Section 11, only the sister of the deceased testator shall be the legal heirs who takes the share in the property and in the presence of the sister, the son of the deceased brother of the testator who falls under the Class II Entry IV cannot supersede living sisters, namely respondents R1 to R3.
(b) Hence, in view of the clear provision contained in the Act, which has been discussed by this Court in S.A.No.269 of 2021 dated 21.06.2024, a similar position has been dealt with by me and held as above. The preference and position between Entry II and Entry IV in the schedule regarding clause II heirs is no longer res integra. The same has been addressed by me in S.A.No.269 of 2021. Hence, the petitioner is not having any caveatable interest.
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the Will seeking the probate of the Will, has clearly added the sister of the deceased testator as respondents R1 to R3 since they fall under category Class II Entry IV sub division 4. Hence, the petitioner cannot seek right over and above supersede the Entry II, as the petitioner falls under Entry IV.
dismissed.
21.08.2024
nvi
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RMT.TEEKAA RAMAN,J.,
nvi
Pre-Delivery order in A.No.3291 of 2024 in O.,P.No.832 of 2023
21.08.2024
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1 issue framed by the court
Whether the son of the testator's predeceased brother, claiming to be a Class II legal heir, is a necessary party to be impleaded in a probate petition.
6 provisions across 3 enactments
Murugan
Sivakamasundari
RMT Teekaa Raman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
