(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the learned Single Judge of this Court whereby an order of rejection of the plaint was made in A.No.4609 of 2004 in C.S.No.629/2004 at the instance of the defendants.
2.The Court heard the learned Counsel for the appellant and also the learned Senior Counsel for the respondents.
3.The case of the appellant/plaintiff as could be seen from the plaint and the submissions made by the learned Counsel, is that the suit property belonged to the grandfather of the minor appellant represented by the guardian, the mother Uma Devi; that the fifth defendant is the husband of the said Uma Devi; that the marriage took place and the minor was also born; that both the minor and the mother, the wife of the fifth defendant, were not maintained properly; that the fifth defendant also filed FCOP No.1002/98 for divorce; that an ex-parte order of divorce was also made; that pending the same, there was an attempt to alienate the property and under the circumstances, there arose a necessity for filing the suit; that since he is the grandson of Krishnan, who is the owner of the property, he is having his share in the property, and hence the suit for partition was made.
4.The defendants filed an application in A.No.4609/2004 under Order VII Rule 11 of C.P.C. to reject the plaint inter alia stating that the suit itself is not maintainable in view of Sec.8 of the Hindu Succession Act.
5.The learned Single Judge agreeing with the contentions put forth by the respondents' side rejected the plaint by the impugned order. Under the circumstances, this appeal has been brought forth.
6.The only contention put forth by the learned Counsel for the appellant is that admittedly, the minor is the grandson of the said Krishnan, who is the owner of the property; that he is the son of the fifth defendant and also the mother Uma Devi, representing the minor; that under the circumstances, both the minor and the said Uma Devi, the wife of the fifth defendant, remained uncared; that apart from that, a divorce OP was also filed and ex-parte order of divorce was also made; that taking advantage of the fact, within a few days, he got married second time; that now they are not maintained; that even by operation of law, the minor is entitled to share, and under the circumstances, the order of the learned Single Judge has got to be set aside.
7.The learned Senior Counsel for the respondents in his sincere attempt put forth his submissions to sustain the order under challenge.
8.The Court paid its consideration on the submissions made.
9.It is not in controversy that the property in respect of which the minor sought for division belonged to Krishnan, the father of the fifth defendant. It is also admitted that the said Krishnan, the owner of the property, died intestate, and hence the property would devolve upon the heir by operation of law. At this juncture, it would be fit and proper to reproduce Sec.8 of the Hindu Succession Act as follows:
"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 heir 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."
10.As per the above provision, whenever a Hindu male dies intestate, the property shall devolve upon the heirs firstly as per Class I of the Schedule namely son, daughter, widow mother, son of a predeceased son, and thereafter upon two other categories. In the instant case, admittedly, the minor is the grandson of the said Krishnan through the fifth defendant. If Sec.8 is put into operation, he cannot come under any one of the categories mentioned in the Schedule. In such circumstances, he cannot make a claim in law. The learned Single Judge was correct in coming to the conclusion that the plaint in law will not stand and in ordering rejection of the plaint. This Court finds nothing to interfere in the order of the learned Single Judge, and it has got to be sustained.
11.In the result, this original side appeal fails, and the same is dismissed leaving the parties to bear their costs.
nsv