Under Section 17 of the Hindu Succession Act, children of a deceased individual have priority over the spouse in inheritance matters governed by Marumakkathayam law.

JUDGMENT

(Dated this the 11^th day of February 2025)

This original petition is filed to set aside Ext P6 order and to allow the application I.A. No 1/2024 in O.S. No 4/2022 before the Sub Court, Vadakara.

2. Brief facts of the case are as follows: - The petitioner is the petitioner in I.A. 1/2024, which was filed to get himself impleaded in O.S. No 4/2022, filed against the respondents to this petition, who are the plaintiffs and defendants in the suit. The suit was filed for partition by intestate succession of plaint A schedule property of one Raman Nair among his children by his 1^st wife, 2^nd wife and children. One of his daughters named, Devi, who was domiciled in Chennai, died on 01-10-2020. The petitioner, the husband of said Devi, was excluded from the suit, joining his children alone, who are the defendants 6 and 7 in the suit. The court below, by impugned order Ext P6, dismissed Ext P2 filed by him under Order 1 Rule 10(2) CPC to join the suit as a party.

3. Heard the counsels appearing for the petitioner and the respondents.

4. The counsel appearing for the petitioner has contended that the court below erred in dismissing the application for impleadment filed by the petitioner, as he was a necessary party to the suit since he is one of the legal heirs of Devi as evidenced by the legal heirship certificate issued by the Tamil Nadu Government. He further contended that the lower court had prejudged Devi, belonging to the Nair community who is domiciled in Chennai, to be governed by the provisions of section 17 of the Hindu Succession Act,1956, and to be under the definition of Madras Marumakkathayam Act.

5. The counsel appearing for the 1^st respondent has vehemently opposed the contentions raised by the petitioner, stating that Ext P2 petition is not maintainable either in law or on facts. The counsel further contended that the deceased Devi belongs to the Nair caste of the Hindu religion and is a Marumakkathayi. Hence, she is only to be governed by section 17(2) of the Hindu Succession Act. It is further argued that the legal heirship certificate obtained by the petitioner is by suppressing the true facts; therefore, the same does not hold the assent of law. The counter filed by defendants nos.6 and 7 in the suit also holds objections against the petitioner, stating that he has no right over the plaint scheduled property, as the legal heirs of deceased Devi are these children alone. Hence, the application seeking impleadment in the suit is only to be dismissed.

6. The question that arose for consideration before this court is whether the husband of the deceased Devi is her legal heir and a necessary party to the said suit.

7. The trial court relied on a settled position of law by this Court in Chellamma Kamalamma and Others v. Narayana Pillai Prabhakaran Nair (1993 (1) KLJ 187), wherein it is held that section 17 of the Hindu Succession Act will apply to property of persons who were living when the Act was in force and died on or after 01-12-1976, the date on which Kerala Hindu Joint Family System( Abolition) Act, 1976 came into force and those who were following the Marumakkathayam law. Going by Chellamma Kamalamma’s case (supra), section 17 of the Act will apply to the property of persons who were born on or after 18-06-1956 when the Act was in force but before 01-12-1976 and who died on or after 01-12-1976 when the Kerala Joint Family System (Abolition) Act was enacted.

8. The suit is for the partition of the property of the petitioner's wife. Admittedly, she died on 01-10-2020. It is also not in dispute that she was born before 01-12-1976. The fact that Marumakkathayam governs the parties is also not specifically denied in the application made by the petitioner. It was also held in Chellamma Kamalamma (supra) that section 17 of the Hindu Succession Act will not govern the law of succession of males and females, if such persons were born on or after 01.12.1976 and died thereafter. If that be the case, section 17 of the Act c