Under the Hindu Succession Act, 1956, the mother succeeds to the property of a deceased female Hindu governed by marumakkathayam law over the husband.

J U D G M E N T

The interplay between Ss.15 and 17 of the Hindu Succession Act , 1956 is the issue involved in this appeal. One Vijayalekshmi passed away and her mother filed the suit O.S.No.343/1994 [from which this appeal arose] before the Principal Sub Court, Thiruvananthapuram seeking partition, with the husband and children of Smt.Vijayalekshmi as defendants 1, 3 and 4. The second defendant is the another daughter of the plaintiff, the sister of deceased Vijayalekshmi. The mother claimed intestate succession under S.17 of the Succession Act, whereas the claim was resisted by defendants 1, 3 and 4 by resorting to S.15 of the Succession Act. The judgment impugned found that the parties were erstwhile marumakkathayees, liable to be governed by S.17 and decreed the suit as prayed for. One another contention which was pressed into service is based on S.11 of the Code of Civil Procedure, in view of an earlier suit, O.S.No.2492/1993, which was preferred by the second defendant against the plaintiff, admittedly seeking injunction from trespass into item nos.6 and 7 to the plaint herein. In as much as the said suit was decreed against the plaintiff herein, the claim for title espoused by the plaintiff herein stood negated, wherefore, the instant claim for partition is barred by principles of res judicata, was the argument. This contention was also negated by the Sub Court finding that the judgment in a previous suit for injunction would not operate as res judicata in a subsequent suit seeking partition.

2. Heard Sri.R.T.Pradeep, learned counsel for the appellant. Perused the records. Pending appeal, the respondent/plaintiff died on 03.11.2013 and her legal heirs were impleaded/recorded.

3. Ss.15 and 17 of the Hindu Succession Act are extracted here below:

'15. General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) xxxxx (c) xxxxx (d) xxxxx (e) xxxxx

17. Special provisions respecting persons governed by marumakkattayam and aliyasantana laws.- The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if -

(i) xxxxx (ii) for clauses (a) to (e) of sub-

section (1) of section 15, the following had been substituted, namely:-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother.

(b) xxxxx (c) xxxxx (d) xxxxx (e) xxxxx '

(underlined by me for emphasis)

It could thus be seen that, for persons who would have been governed by the marumakkathayam and aliyasantanam laws, if Hindu Succession Act had not been passed, the husband as a class I heir is replaced by mother. The specific claim espoused in the plaint in paragraph no.3 is based on S.17(a) of the . It is admitted that the parties are Nairs, governed by the erstwhile marumakkathayam law and for the purpose of S.17, they would have been governed by the marumakkathayam law, but for the advent of Succession Act, 1956. S.17 carves out an exception to the general rule that, upon the death of a female Hindu, her husband, along with the sons and daughters, will succeed to her estate, by replacing the husband with the mother.

This Court is therefore of the opinion that no interference, whatsoever, is required to the judgment impugned of the Sub Court, which decreed the suit in terms of S.17.

4. The contention of the appellant that by virtue of Article 254 of the Constitution, r/w S.4 of the Hindu Succession Act , the marumakkathayam law ceases to have any effect is only to be rejected. There is no room for any application of Article 254 of the Constitution. No doubt, S.4 of the contemplates overriding effect to the same and any text, rule or interpretation of Hindu law