Succession to the properties of a Hindu male dying intestate opens not on his death but on death of life estate holder.

The unsuccessful defendants/respondents in A.S.No.88 of 1986 on the file of District Judge, West Thanjavur atThanjavur has filed this second appeal challenging the judgment and decree of the said court. The plaintiffs have filed a cross-objection. C.M.P.No. 15886 of 1992: The petitioner has filed this petition to implead her as 3rd appellant in the Second Appeal No.403 of 1988.

2. Therespondents herein as plaintiffs have filed O.S.No.75 of 1981 on the file of Subordinate Judge, Thanjavur for partition and for separate possession of their half share in the suit properties. Learned Subordinate Judge dismissed the suit and aggrieved by the judgment and decree passed by learned Subordinate Judge, the plaintiffs have filed A.S.No. 88 of 1986 in the Court of District Judge, Thanjavur. Learned District Judge set aside the judgment and decree passed by the trial court and decreed the suit as prayed for with costs. The unsuccessful defendants have filed second appeal.

3. The following substantial questions of law have been framed in the second appeal:

• (i) Whether the lower appellate court while reversing the judgment and decree of the first court

erred in not taking note of the legal position that the daughter of a deceased wife of a Hindu will not be a heir, when she had died in the year 1920 long before coming into force of the Hindu Womens Right to Property Act, 1937.

.• (ii) Whether the lower appellate court properly appreciated and applied the principles, governing prescription of title by adverse position to the facts of the present case.

.• (iii) Whether the lower appellate court mis-construed and omitted the construe the material evidence on record when it chose to reverse the judgment and decree of the first court.

4. Thequestion which has to be decided in C.M.P.No.15886 of 1992 is:

“Whether the petitioner can be impleaded as third appellant.”

5. One Narayanasami was the original owner of the properties in question. He had married one Pappammal who pre-deceased him. He married Sivagami as his second wife, who lived with him till his death in 1920. Pappammal had a daughter by name Paramayee. She died leaving behind two daughters and one son, the plaintiffs 1 to 3 in the present suit. Sivagami lived long and died on 7. 1981. Sivagami had a daughter by name Sundarathammal, the first defendant in the suit, who died on 25. 1987. It is the case of the second defendant and Chandrodayam, the proposed 3rd appellant, that Sundarathammals husband had first wife to whom the proposed 3rd appellant was born and the present second appellant is the son of the proposed third appellant. Apart from Sundarathammal, the second appellant Sekar was said to be the foster son of Sundarathammal. Her husband and Sundarathammal had executed a Will in favour of the second appellant herein in respect of her share in the suit properties. To appreciate the case of the parties, the genealogy is drawn hereunder:

6. The first appellant Sundarathammal was the daughter of Sivagami who was the second wife of Narayanasami. The respondents 1 to 3/cross-objectors are the legal heirs of Narayanasami through his first wife Pappammal, who predeceased him leaving behind her a daughter Paramayee, who died leaving behind the cross-objectors/plaintiffs 1 to 3. The succession to the properties of Narayanasami opens on the death of Sivagami his second wife on 7. 1981 and not on the date of the death of Narayanasami in the year 1920. Their Lordships of the Supreme Court in Fateh Bibi v. Charan Das A.I.R. 1979 S.C. 789 have held:

“Succession in such cases to the estate of the last Hindu male who died intestate did not holder. During the lifetime of the estate open until the death of the life estate/holder, the reversioners in Hindu law have no vested interest in the estate, and they have a mere spes successionis. The point of time for the applicability of the Act is when the succession opens, viz., when the life estate terminates.”

From this decision, it is clea