1. This appeal is by the plaintiff. He lost in the trial Court. Dispute relates to the residential house situated in Dewas more particularly described in para 4 of the plaint. Plaintiff sought declaration, possession and permanent injunction in respect of the suit house supra.

2. In this appeal, it is admitted that the suit house belonged to Ramcharanlal who died issue-less on 5.6.1980. He had executed a power of attorney in favour of defendant No.1 Narainprasad, for collection of the rent from the tenants residing in the suit house. The defendant No.2 is the son of brother-in-law (wife's brother) of Ramcharanlal. It is also not in dispute that Shivcharanlal (original plaintiff) was the first cousin through male side of Ramcharanlal and Sxivmangal, who subsequently came on record as the legal representative of Shivcharanlal was the son of real sister of late Ramchranlal.

3. Shivcharanlal filed the suit seeking declaration that Ramcharanlal died intestate and the plaintiff, being the sole surviving heir was entitled to inherit by way of succession the suit property of Ramcharanlal. He further claimed that he was entitled to the possession of the suit property and defendants should not interfere with the enjoyment of property. It is pertinent to point at this stage that during the pendency of suit original plaintiff died, and Shiv mangal came on record under Order XXII Rule 5 by way of substitution based upon a will executed by Shivcharanlal in his favour. In the written statement, the basic contention was that Ramcharanlal until his last, lived with his brother-in-law i.e. father of defendant No.2, and the former on his accord, willing executed a will in favour of defendants before he died.

4. Based upon pleadings Court below framed issues and allowed parties to adduce evidence. The trial Court held that original plaintiff Shivcharanlal was not the nearest surviving heir of late Ramcharanlal and consequently dismissed the suit. Hence this appeal. The respondents have also filed cross objection under Order XLI Rule 22 in this appeal against the finding recorded by the trial Court refusing to issue direction with regard to the delivery of possession of the suit house to the defendants.

5. The only question in this appeal is whether trial Court committed illegality in dismissing the suit?

6. At the time of final arguments, learned counsel agreed that in view of the established facts, fate of this appeal hinges upon the question relating to right of Shivcharanlal to institute the suit based upon succession. As pointed above, Ramcharanlal died in 1980 and there is no dispute that succession to the estate of Ramchaanlal is governed by the Hindu Succession Act, 1956, assuming he died intestate as claimed by the plaintiff.

7. A combined reading of section 8 to section 13 of the Hindu Succession Act, 1956 shows that there are four categories of heirs of a male dying intestate and lay down the general rule of succession to the inheritable property. Accordingly, the property of such deceased would devolved firstly upon the class I heirs specified in the schedule and in absence of class I heir, upon Class II heir specified in the Schedule. In absence of Class I or II heir, then upon agnates of the deceased and lastly in absence of above three, upon the cognates of the deceased.

8. From the family tree as mentioned in the plaint, it is clear that Shivcharanlal was one of the agnates i.e. first cousin, from male side of the deceased. Definitely he was coming under the third category. Could he took precedence over Shivmangal? The answer is obviously no Ramcharanlal was the real brother of Gouribai, mother of Shivmangal. Shivmangal was one of heirs covered by item IV of class II heirs at the time of death of Ramcharanlal, being sister's son. It is in this backdrop, trial Court rightly held that original plaintiff Shivcharanlal had no right to seek declaration and other reliefs in respect of the suit house. Trial Court also rightly rejected th