The distribution of property under the Hindu Succession Act prioritizes class I heirs, and prior partitions render claims by lower-class heirs untenable in cases of intestacy.

JUDGMENT

The second appeal is filed by the 1st defendant in OS.No.88/2009 on the file of Munsiff's Court, Manjeri. The suit was filed by the 1st respondent for a declaration that the plaint schedule properties belong to her as the sole legal heir of Sri.Govindan Nair. Sri.Govindan Nair was the brother of the 1st respondent and the suit was filed stating that he is unheard of for the past 34 years. The defendants in the suit, which includes the appellants, are the children of the 1st respondent. The suit was decreed on 18.01.2010. After 12 years, the 1st defendant filed AS.No.13/2022 before the District Court, Manjeri along with an application for condonation of delay. The District Court dismissed the petition to condone delay and consequently the appeal also was dismissed. It is in these circumstances that this second appeal is filed praying that the appellant is entitled to an order on merits.

2. The contention of the appellant is that the parties were governed by the 'marumakkathayam' law and on the death of a male, necessarily the children born out of a female who are members of the 'thavazhi' are also entitled to the shares. It is hence contended that the 1st respondent was not the sole legal heir of Sri.Govindan Nair whose death has been presumed. I do not find any reason to entertain this second appeal. The District Court cannot be faulted for having dismissed the application for condonation of delay. Even on merits, the claim of the appellant cannot be justified. The parties were governed by the 'marumakkathayam' law and after the Joint Family Abolition Act, the 'marumakkathayam' law cannot continue to apply. In the case on hand, even though the parties were governed by the 'marumakkathayam' law, two partitions had taken place as per document Nos.218/1953 and 875/1969. Sri.Govindan Nair (with whose properties we are concerned) and the 1st respondent were parties to the said partitions. After the first partition in 1953, there was a partition in between the members of the 'thavazhi' of which, Sri.Govindan Nair and the 1st respondent were members. After the said partition in 1969, the property alloted to Sri.Govindan Nair became his absolute property. As such, the parties will be governed by the Hindu Succession Act , 1956 with respect to the self acquired property of the Hindu male. Section 8 of the deals with the general rules for succession in the case of Hindu males. As per the Section, the property of a male Hindu dying intestate devolves firstly, upon the heirs, being the relatives specified in class I of the Schedule and secondly, if there is no heir of class I, upon the heirs, being the relatives specified in class II of the Schedule. (c) and (d) deals with succession when there are no heirs under clauses (a) and (b). Section 9 provides for the order of succession among heirs in the schedule. As per , the heirs included in class I shall take simultaneously and to the exclusion of all other heirs and those in the first entry in class II shall be preferred to those in the second entry and those in the second entry shall be preferred to those in the third entry and so on in succession. Admittedly, there are no class I heirs as far as Sri.Govindan Nair is concerned. The 1st respondent comes under the second entry in Class II being a sister of Govindan Nair. The appellant who is the son of the 1st respondent only comes under the fourth entry in Class II and hence stands excluded by the 1st respondent. The only other relevant provision is Section 17 of the Act which makes special provisions regarding persons governed by 'marumakkathayam' law. However, the Section only modifies Clauses (c) and (d) of and Clauses (a) and (b) continue to apply even for persons following 'marumakkathayam' law. Hence on all grounds, the appeal is liable to be dismissed and is so dismissed.