Holding

The amendment to the Schedule is prospective and does not apply to the 1987 succession; the plaintiffs are not Class I heirs under the law then in force, and the High Court erred in exercising jurisdiction, so the appeal is allowed and the trial court judgment restored.

Summary

The appeal arose from a suit filed in 1988 by the great‑grandson and great‑granddaughter of Perumal Naidu (plaintiffs) seeking declaration and possession of properties that had been bequeathed by their great‑grandmother Alamelu Ammal to her sister Ramanujatha Ammal (defendant). The plaintiffs claimed that Alamelu held only a life interest and that, on her death in 1987, the properties should devolve to them as heirs of the father under Section 15(2)(a) of the Hindu Succession Act, 1956. The High Court, relying on the amended Schedule (2005) that added the plaintiffs’ category as Class I heirs, granted them a one‑third share each. The Supreme Court held that the amendment to the Schedule was prospective, could not be applied to a succession that opened in 1987, and that the plaintiffs were not Class I heirs at that time. Moreover, the High Court lacked jurisdiction to consider the issue in a second appeal without a substantial question of law under Section 100(5) CPC. Consequently, the Supreme Court set aside the High Court judgment, restored the trial court’s decree, and dismissed the suit.

Issues considered

The applicability of Section 15(2)(a) of the Hindu Succession Act, 1956 to the plaintiffs as Class I heirs given the 2005 amendment to the Schedule.
Whether the amendment to the Schedule is prospective and can be applied to a succession that opened in 1987.
The jurisdiction of the High Court to entertain the second appeal on the above issue without a substantial question of law framed under Section 100(5) of the Code of Civil Procedure.
The entitlement of the plaintiffs to a share in the suit properties as heirs of the father.

Legislation cited

Act 39 of 2005 (Amendment to Schedule of Hindu Succession Act)
Code of Civil Procedure, 1908s. 100
Hindu Succession Act, 1956s. 15, s. 5(2)(a), s. 8

Subjects

Hindu Succession ActSection 15(2)(a)Schedule amendment 2005prospective amendmentClass I heirssecond appeal jurisdictionCPC Section 100inheritancelife interest vs absolute interest

Judgment

[2017] 6 S.C.R. 631

KARUNANIDHI A
v.
SEETHARAMA NAIDU & ORS.
(Civil Appeal No. 4490 of2017)
MARCH 27, 2017 B
[R. K. AGRAWAL AND ABHAY MNOHAR SAPRE, JJ.]
Hindu Succession Act, 1956 - s.l 5(2)(a) rlw s.8 and Schedule
--:- 2005 amendment to Schedule in relation to Class I heirs -
Inapplicability of - Succession w.r.t female Hindus, - Suit by
plaintiffs-respondents (great-grandson and great-granddaughter of C
one 'P 'from his first wife) for declaration of title and possession of
suit property against defendant-predecessor-in-interest of appellant
(daughter of 'P 'from his second wife) - ·p ·had bequeathed the suit
properties in favour of the defendant and her sister 'A' - 'A' had
executed a Will of her share of property in favour of defendant and D
died thereafter - Plea of plaintiffs that 'A' had only life interest in
the properties received from 'P' through Will and thus could not
have bequeathed such properties by Will in favour of the defendant,
hence on death of 'A' the same would devolve upon them as
reversioners by succession being heirs from fathers side - Held:
Admittedly, according to the plaintiffs, their right to claim a share, E
if any, as an heir from fathers side in the suit properties held by 'A'
accrued on her death in 1987 for which they filed civil suit in 1988
- However, the category of heirs to which the plaintiffs belonged,
namely "son ofa pre-deceased daughter ofa pre-deceased daughter
and daughter of a pre-deceased daughter of a pre-deceased F
daughter" was added in the Schedule (in relation to Class 1 heirs)
only in 2005 by a prospective amendment and was not included in
Class l list in the Schedule in 1987 - Thus, plaintiffs had no right
on the strength of succession/devolution to claim any interest in
properties of 'A' in 1987 as fathers heir by virtue of s.l 5(2)(a) -
High Court wrongly placed reliance on s.15 of the Act for deciding G
the rights of the parties.
Code of Civil Procedure, 1908 - s.100 - Substantial question
of law - Suit by plaintiffs-respondents for declaration of title and
possession of suit property against defendant-predecessor-in-interest
of appellant - Suit dismissed by trial court - First appeal by H
631
632 SUPREME COURT REPORTS [2017] 6 S.C.R.

A plaintiffs also dismissed - Second appeal by plaintiffs, allowed in
part by High Court holding that in view of s.15(2)(a) rlw s.8 and
Schedule (in relation to Class I heirs) of the Hindu Succession Act,
1956, the plaintiffs are entitled to 1/Jrd share in the suit properties -
On appeal, held: High Court has jurisdiction to hear the second
B. appeal only on substantial questions of law framed uls.100(5) -
However, no substantial question of law was framed by the High
Court on the applicability of s.15(2) - Further, no pleading, issue
or finding was recorded by the two courts below on the applicability
of s.15(2) - Thus, High Court had no jurisdiction to examine the
case of its own on such issue for the first time in second appeal -
C Impugned judgment of High Court set aside and that of Trial Court
restored - Hindu Succession Act, 1956 - s.15 r/w. s.8 and Schedule.
Allowing the appeal, the Court
HELD: 1.1 Section 15 of the Hindu Succession Act, 1956
applies to the case of female Hindus. It specifies the general
D rules of succession and provides the categories of heirs on whom
the property of a female Hindu would devolve on her death. Sub-
section(!) sets out four categories of heirs specified in clauses
(a) to (e) on whom her property would devolve as per the rules
set out in Section 16. Sub-section(2) is given an overriding effect
on the categories of persons specified in sub-section(!). So far
E as Clause (a) of sub-section (2) is concerned, it provides that any
property inherited by a female Hindu from her father or mother
shall devolve upon the heirs of the father, if female does not have
her son, daughter including the children of any pre-deceased son
or daughter but would not devolve upon the categories of heirs
F specified in sub-section(!). [Para 29) [641-E-G)
1.2 So far as Schedule in relation to Class I heirs is
concerned, it was amended by the Parliament by Act 39/2005
w.e.f. 9.9.2005. By this amendment, four new categories of heirs,
namely, (l)son of a pre-deceased daughter of a pre-deceased
daughter; (2)daughter of a pre-deceased daughter of a pre-
G deceased daughter; (3) daughter of a pre-deceased son of a pre-
deceased daughter; and (4) daughter of a pre-deceased daughter
of a pre-deceased son, were included in the categories of Class I
heirs. (Para 30] (641-H; 642-A]
1.3 Now on the facts of.this case, the High Court rightly
H upheld all the material findings of the two courts below but
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 633

committed a legal error when it placed reliance on Section 15(2)(a) A
read with Schedule appended to the Act for granting relief to the
plaintiffs and by recognizing their right in the suit properties
against the defendant. This finding of the High Court is bad in
law for various reasons mentioned hereinafter. [Para 31) [642-B)
1.4 In the first place, such was not the case set up by the B
plaintiffs in the Trial Court or the first appellate Court or even
before the High Court. Second, no substantial question of law
was framed by the High Court on the applicability of Section 15(2)
of the Ad and third, in the absence of any pleading, issue and
finding recorded by the two courts below on the applicability of C
Section15(2) of the Act, the High Court had no jurisdiction to
examine the case of its own for the first time in second appeal on
such issue. [Para 32) (642-C-D)
1.5 It is a settled principle of law that the High Court has
jurisdiction to hear the second appeal only on the substantial
question of law framed under Section 100(5) of the Code of Civil D
Procedure, 1908. Equally well settled principle of law is that the
High Court has no jurisdiction to decide the appeal on the question
which is not framed as required under Section 100(4) of the Code.
[Para 33) [642-E]
1.6 The High Court was therefore not right in suo moto E
applying the provisions of Section 15(2)(a) of the Act without even
framing any additional substantial question of law by taking
recourse to Section 100(5) of the Code. A jurisdictional error
was committed by the High Court while deciding the second
appeal. [Para 35) [643-B-C] F
2.1 That apart and even otherwise the High Court was not
right in placing reliance on Section 15 of the Act for deciding the
rights of the parties. It is for the simple reason that the category
of heirs to which the plaintiffs had belonged, namely, "son of a
pre-deceased daughter of a pre-deceased daughter and daughter G
of a pre-deceased daughter of a pre-deceased daughter" was
added in the Schedule (Class I) only with effect from 9.9.2005 by
amendment by Act No. 39 of 2005. [Para 36) (643-D-E)
2.2 The plaintiffs, therefore, were not entitled in law to take
the benefit of the aforesaid amendment because even according
H
634 SUPREME COURT REPORTS [2017) 6 S.C.R.

A to them, their right to claim the share, if any, in the suit properties
held by 'A' accrued on her death in 1987 and they filed civil suit
in the year 1988. In other words, a right, if any, to claim interest
by succession in the properties of 'A' opened in plaintiffs' favour
as an heir from father's side in 1987 when she died. In this view
B of the matter, the plaintiffs' rights as an heir to claim shares in
the suit properties had to be worked out on the basis of law in
force on the date (1987), i.e., when succession opened for them
to enforce such right and when they filed the suit (1988). [Para
37] [643-F-G]
2.3 However, the category of an heir to which the plaintiffs
c belonged was not included in class I list in the Schedule in 1987
but it was so included for the first time on 09.09.2005 by Act 39/
2005. In this view of the matter, the plaintiffs had no right on the
strength of succession/devolution to claim any interest in the
properties of 'A' in 1987 as father's heir. Afortari- the devolution
D of interest in suit properties could not take place in their favour
by virtue of Section 15(2)(a) of the Act. Since the amendment in
the Schedule was prospective, it had no application to the case in
hand with its retrospective effect so as to create any right in
plaintiffs' favour in 1987. [Para 38] [643-H; 644-A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4490
E of2017. ·
From the Judgment and Order dated 26. 07.2012 of the High Court
of Judicature at Madras in S. A. No. 873 of 2003.
V. Krishnamurthy, Sr. Adv., T. Harish Kumar, Navneet Dugar,
Ad vs. for the Appellant.
F
M.A. Chinna Samy, K. Ethiraj, K. Krishna Kumar, P. Raja Ram,
V. Senthil Kumar, Ms. C. Rubavathi, Advs. for the Respondent.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. l. Leave granted.
G 2. This appeal is filed by the legal representative of the original
defendant against the final judgment and order dated 26.07.2012 passed
by the High Court of Judicature at Madras in S.A. No. 873 of 2003
whereby the High Court allowed the appeal filed by the respondents
(plaintiffs) herein in part and set aside the judgment and decree passed
H by the Trial Court in respect of' A' Schedule properties and modified the
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 635
[ABHAY MANOHAR SAPRE, J.]

judgment and decree to the effect that each respondent(plaintiff) was A
held entitled to l/3'd share in respect of 'A' Schedule property except
Item No.2 of' A' Schedule and for consequential reliefregarding mesne
profits in respect of 2/3'd share of the respondents(plaintiffs) in 'A'
Schedule property and accordingly confirmed the judgment and decree
passed by the Trial Court in respect of 'B' Schedule property.
B
3. We herein set out the facts, in detail, to appreciate the issues
involved in this appeal.
4. The dispute in this appeal is between the heirs of one Perumal
Naidu, who was the original ancestor in the family. The legal heirs of
Perumal Naidu represent three branches of the family.
5. The questions, which arise for consideration in this appeal, are
c
what is the extent of share of each heir of Perumal Naidu in his properties;
secondly, how the devolution of each heir's share would take place; and
thirdly, on the death of any heir, how his/her share would devolve on his/
her legal representative in law. These are broadly the issues which arise
in this appeal. D
6. In order to properly answer the aforementioned questions, which
lie in a narrow compass and based on more or less undisputed facts, it is
necessary to set out the family genealogy tree.
GENEALOGICAL TREE

Late Perummal Naidu (died in 1924) E

!
Late Subbamnal Late LakJmi Ammal
1
Late P!'J'pu Ammol
(I" Wife)

!
(2"'Wife)
(3 'i'e)
Late Muthuammal
(daughter) F
Late Alamelu Ramanujatha No Child
Ammal Ammal (Defendant)

1 (daughtor)
(Died in I 987)
(daughter)
(dioo in 2004)

l
Late Anda!
l
Late Vljayalakshmi
Ammal (daughter) G
(daughter) (dioo as minor)

1
Seetharama Naidu Late Saguntbala
(son) (daughter)
(Plaintiff No.I) (PiaintiffNo.2) H
636 SUPREME COURT REPORTS [2017] 6 S.C.R.

A 7. As would be clear from the family tree, the original ancestor of
the family was one male Hindu - Perumal Naidu. He owned extensive
immovable properties situated in Thenkarai Esanur, Thiruvaikur Vattam,
Nagapattinam Taluk in State ofTamil Nadu. The details of the properties
held by Perumal Naidu are set out in the plaint and would hereafter be
referred to as "suit properties".
B
8. Perumal had three wives-Subbammal, Lakshmi Ammal and
PappuAmmal. Out of the first marriage with Subbammal, one daughter
was born - Muthammal. Out of the wedlock of Muthammal, two
daughters-AndalA111Il1al and Vijayalakshmi were born. Vijayalakshmi,
however, died during her minority. Out of the wedlock of Anda! Ammal,
C one son-Seethararria Naidu (plaintiffNo. l) and a daughter- Sagunthala
(plaintiff No. 2) were born.
9: Out of Perurnal Naidu's second marriage with LakshmiAmmal,
two daughters were born-Alamelu Ammal and Ramanujatha Ammal
(defendant). Both did not have any issue. AlameluAmmal died in 1987
D whereas RamanujathaAmmal died in 2004. So far as Perumal Naidu's
3rd wife-Pappu Ammal is concerned, she died issueless. .
10. On27.12.1923, Perumal Naidu executed a Will and bequeathed
his immovable and movaole properties including the suit properties to his
heirs such as, his 3rd wife, two daughters from second wife, his
E granddaughters from first wife and his son-in-law. The Will specified
the extent of propenies bequeathed to each heir named above. Soon
after the execution of the Will, Perumal Naidu died in the 1924.
11. The execution of the Will by Perumal Naidu gave rise to
litigation amongst his heirs. One suit being Civil Suit No.13/1924 was
F filed by his two daughters-Alamelu Ammal and Ramanujatha Ammal.
• Since both the daughters were minor, therefore, the suit was filed through
their local guardian - one Gopalsami Naidu.
12. In the suit, the chailenge was made to the legality and validity
of the Will executed by Perumal Naidu including the extent of properties
G bequeathed to the plaintiffs. According to the plaintiffs, they were entitled
to receive more shares in the properties left by their father - Late Perumal
Naidu than what was bequeathed to them in the Will. In this suit, Andal
Ammal-grand-daughter oflate Perumal Naidu, who is the mother of the
plaintiffs of this litigation was one of the defendants.
H
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 637
[ABHAY MANOHAR SAPRE, J.]

13. Vide judgment/decree dated 15.09.1925, the Trial Court A
dismissed the suit. It was, however, held that the Will executed by Perumal
Naidu in favour of his several heirs was a valid Will. The plaintiffs, felt
aggrieved, filed appeal being First Appeal No. 284/ 1925 but it was
dismissed. The plaintiffs then filed second appeal, which was also
dismissed. This litigation ended finally as no further appeal was filed by B
the plaintiffs after the decision of the High Court in S.A. No. 234 of
1925.
14. On 29.07.1957, two daughters of Perumal Naidu from his
second wife-Alamelu Ammal and Ramanujatha Ammal effected partition
between them in relation to the properties which they had received by
Will from their late father. Both also got their name mutated in the C
revenue records as owner in respect of their respective shares.
15. On 01.10.1987, Alamelu Ammal-daughter of Perumal Naidu
executed a Will of her property and bequeathed its some portion to her
sister- Ramanujatha Ammal and the remaining to the appellant herein.
Alamelu Ammal, however, died soon after execution of the Will on D
29.10.1987.
16. RamanujathaAmmal-another daughter also executed a Will
dated 25.11.1987 of her share, which consisted of some properties
received by her from her father and remaining from her sister -Alamelu
Ammal by Will .By her Will, she bequeathed her properties to the appellant E
herein and others.
17. It is with the aforementioned factual background, second round
of litigation began between the surviving heirs of Late Perumal Naidu
out of which the present appeal arises.
F
18. The second round oflitigation with which we are concerned
-here was initiated by two heirs, i.e., great-grandson and the great-
granddaughter oflate Perumal Naidu- Seetharama Naidu and Sagunthala-
son/daughterofAndalAmmal, who is the daughter ofMuthammal, who,
in turn, is the daughter of Perumal Naidu from his first wife Subbammal.
G
19. On 15.12.1987, Seetharama Naidu and Sagunthala served a
legal notice to RamanujathaAmmal. Though in the notice, no legal basis
was mentioned and nor [:ny specific share in the suit properties was
demanded and nor any factual foundation was laid as to how and on
what basis, the notice was being sent demanding share in the properties
H
638 SUPREME COURT REPORTS [2017] 6 S.C.R.

A held by AlameluAmrnal and RamanujathaAmrnal except stating therein
that they were entitled to claim right, title, interest and share in the
properties received by Ramanujatha Amrnal from her late father and
sister-AlameluAmrnal. In other words, according to them, the properties
received and possessed by RamanujathaAmmal had devolved on them
B by succession on the death ofAlamelu Ammal in 1987 but did not devolve
on Ramanujatha Amrnal because they were heirs through father's side.
RamanujathaAmmal, on receipt of notice, denied the claim by sending
her reply on 23.12.1987.
20. Seetharama Naidu and Sagunthala then filed a suit being Civil
Suit No. 26/1988 on 23.03.1988 against Ramanujatha Ammal. The suit
C was for a declaration of their title and for possession in relation to the
suit properties. In substance, the plaintiffs' case was that the defendant
and her late sister-AlameluAmmal had only life interest in the properties
which she had received from their late father Perumal Naidu through
Will and hence on the death of Alamelu Amrnal in 1987, the properties
D held by her devolved on the plaintiffs as reversioners by succession
through Perumal Naidu's first wife as father's heirs. It was averred that
disposition made by Alamelu Amrnal of her share by Will executed in
favour of her sister-Ramanujatha Ammal was of no avail because
Alamelu Amrnal herself had life interest in the properties and, therefore,
such properties could not be bequeathed by her through Will to the
E defendant. It was averred that her property could not be devolved on
the defendant also by succession but could only be devolved in favour of
the plaintiffs as father's heirs (reversioners). ·
21. The defendant filed her written statement and denied the
plaintiffs' claim. According to her, the Will executed by Perumal Naidu
F (her father) conferred "absolute interest" on the defendant and her sister-
Alamelu Ammal in the suit properties and not the "life interest" as
contended by the plaintiffs. It was also contended that since the defendant
and her sister AlameluAmmal, got "absolute interest" in the properties,
AlameluAmmal was, therefore, competent to transfer her share in any
G manner to anyone and which she did by executing the Will in defendant's
favour. It was also contended that on the death of Alamelu Ammal in
1987, her share did not devolve on the plaintiffs as heirs of Perumal
Naidu but it devolved upon the defendant by virtue of two Wills-one
executed by her father Perumal Naidu and the other executed by her
sister-AlameluAmmal.
H
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 639
[ABHAY MANOHAR SAPRE, J.]

22. The Trial Court, vide judgment/decree dated 16.06.1994 A
dismissed the suit. It was held that Alamelu Ammal and defendant had
"absolute interest" in the properties received by them by Will from
Perurnal Naidu. It was also held that the plaintiffs failed to prove that
the defendant or/andAlamelu Ammal had only life interest in the properties.
It was also held that since the plaintiffs' mother AndalAmmal (who was B
grand-daughter of Late Perumal Naidu) also got one share along with
the defendant and others in the properties through same Will of Perumal
Naidu and she having enjoyed "absolute interest" of her share like
other heirs, had no right to challenge the Will nor the plaintiffs, who are
her son and daughter, had any right to challenge the Will. It was held
that it was more so when AndalAmmal was party to the earlier civil suit, C
she was bound by the findings recorded in the said suit.
23. The plaintiffs, felt aggrieved, filed first appeal being A. S.No.
124/1994 before the District Judge. By judgment dated 14.08.1995, the
District Judge dismissed the appeal and affirmed the judgment/decree
of the Trial Court. D
24. The plaintiffs, felt aggrieved, filed Second Appeal No. 873/2003
before the High Court. During the pendency of the second appeal, the
defendant passed away on 29.07.2004. The plaintiffs filed C.M.P. No.
8691 of2006 before the High Court to implead the appellant herein as
respondent in the second appeal as legal representatives of the defendant. E
By its order dated 25.04.2012, the High Court brought the appellant
herein as respondent to represent the estate of the respondent(defendant).
25. By impugned judgment, the High Court interfered in the
judgment/decree of the two courts below, allowed the appeal in part and
while setting aside the judgment, decreed the suit in part. The High Court, F
however, upheld the concurrent findings of the two Courts below and
held that the Will executed by Perumal Naidu in favour of his two
daughters conferred "absolute interest" in the properties and not the
"life interest" as claimed by the plaintiffs. The High Court then proceeded
to place reliance on Section 15 (2) (a) read with Section 8 and Schedule
appended to the Hindu Succession Act, 1956 (hereinafter referred to as G
"the Act") and held that since the plaintiffs are son and daughter of a
pre-deceased daughter of a pre-deceased daughter and are class I heir
as specified in the Schedule and hence by virtue of Section 15(2)(a)
which has overriding effect on those categories of the heirs specified in
H
640 SUPREME COURT REPORTS (2017) 6 S.C.R.

A sub-section( l ), would be entitled to claim l/3n1 share in the suit properties
along with defendant, i.e., plaintiff No. 1 would be entitled to get l/3'd,
plaintiff No. 2 would be entitled to get 1/3"1, i.e., both would get 2/3'd
share whereas the defendant would be entitled to get 113n1 in relation to
the properties specified in schedule 'A' (except one item).
B 26. It is against this judgment of the High Court, the defendant
has felt aggrieved and filed this appeal by way of special leave before.
this Court questioning its legality and correctness.
27. Having heard learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal and while
c setting aside the impugned judgment, restore that of the Trial Court/First
appellate Court and, in consequence, dismiss the suit.
28. Section 15 and Schedule appended to the Act are relevant for
deciding the appeal. It read as under:
"15. General rules of succession in the case of female
D 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;
E
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
F
(2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female Hindu from her father
or mother shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-
G deceased son or daughter) not upon the other heirs referred
to in sub-section (1) in the order specified therein, but upon
the heirs of the father; and
(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in the
absence of any son or daughter of the deceased (including
H
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 641
[ABHAY MANOHAR SAPRE, J.]

the children of any predeceased son or daughter) not upon A
the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband."
"THE SCHEDULE
[Section 8]
HEIRS IN CLASS I AND CLASS II B

CLASS I
Son; daughter; widow; mother; son of a pre-deceased son;
daughter of a pre-deceased son; son of a predeceased
daughter; daughter of a pre-deceased daughter; widow of a c
pre-deceased son; son of a predeceased son of a pre-
deceased son; daughter of a pre-deceased son of a pre-
deceased son; widow of a pre-deceased son of a pre-
deceased son; [son of a pre-deceased daughter of a pre-
deceased daughter; daughter of a pre-deceased daughter
of a pre-deceased daughter; daughter of a pre-deceased D
son of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased son.]*
*added by amendment by Act 39/2005, section 7
(w.e.f.9.9.2005) "
E
29. Section 15 of the Act applies to the case of female Hindus. It
specifies the general rules of succession and provides the categories of
heirs on whom the property of a female Hindu would devolve on her
death. Sub-section( I) sets out four categories of heirs specified in
clauses (a) to (e) on whom her property would devolve as per the rules
set out in Section 16. Sub-section(2) is given an overriding effect on the F
categories of persons specified in sub-section( I). So far as clause( a) of
sub-section(2) is concerned, it provides that any property inherited by a
female Hindu from her father or mother shall devolve upon the heirs of
the father, if female does not have her son, daughter including the children
of any pre-deceased son or daughter but would not devolve upon the G
categories of heirs specified in sub-section( I).
30. So far as Schedule in relation to Class I heirs is concerned, it
was amended by the Parliament by Act 39/2005 w.e.f. 9.9.2005. By
this amendment, four new categories of heirs, namely, ( l )son of a pre-
deceased daughter of a pre-deceased daughter; (2)daughter of a pre-
H
642 SUPREME COURT REPORTS [2017] 6 S.C.R.

·A deceased daughter of a pre-deceased daughter; (3) daughter of a pre-
deceased son of a pre-deceased daughter; and (4) daughter of a pre-
deceased daughter of a pre-deceased son, were included in the categories
of Class I heirs.
31. Now reverting to the facts of this case, in our considered
B opinion, the High Court rightly upheld all the material findings of the two
courts below but committed one legal error when it placed reliance on
Section 15(2)(a) read with Schedule appended to the Act for granting
relief to the plaintiffs and by recognizing their right in the suit properties
against the defendant. This finding of the High Court is bad in law for
various reasons mentioned hereinafter.
c
32. In the first place, such was not the case set up by the plaintiffs
in the Trial Court or the first appellate Court or even before the High
Court. Second, no substantial question of law was framed by the High
Court on the applicability of Section 15(2) of the Act and third, in the
.D absence of any pleading, issue and finding recorded by the two courts
below on the applicability ofSectionl5(2) of the Act, the High Court had
no jurisdiction to examine the case of its own for the first time in second
appeal on such issue.
33. It is a settled principle oflaw that the High Court has jurisdiction
to hear the second appeal only on the substantial question of law framed
E under Section 100(5) of the Code of Civil Procedure, 1908 (hereinafter
referred to as "the Code"). Equally well settled principle oflaw is that
the High Court has no jurisdiction to decide the appeal on the question
which is not framed as required under Section 100(4) of the Code.
34. It is clear from the record of the case that the High Court had
F framed following three substantial questions oflaw, which did not include
any question regarding the applicability of Section 15(2) of the Act:
"1. Whether the lower appellate Court erred in law in not
drawing adverse inference against the defendant for non-
production of the original of the Will dated 23.12.1923
·G executed by Perumal Naidu when the same was produced
by them in the earlier suit?
2. Whether the lower appellate Court erred in law in
receiving in evidence Exs. B3 and B4 in the absence of
any explanation for non-production of the original Will and
H without making grounds for reception of second evidence?
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 643
[ABHAY MANOHAR SAPRE, J.)

3. Whether the lower appellate Court erred in not taking A
the circumstances prevailing in 1923 at the time of execution
of the Will that female heirs were given only life estates
and hence the female lagatees of Perumal Naidu as per Will
only got life estate and not absolute interest?"
35. The High Court, in our considered opinion, was, therefore, not B
right in suo moto applying the provisions of Section 15(2)(a) of the Act
without even framing any additional substantial question oflaw by taking
recourse to Section 100( 5) of the Code. If it was of the view that such
issue was involved in the case then it was mandatory for the High Court
to have first formulated the specific question on the applicability of Section C
l 5(2)(a) of the Act either at the time ofadmission of the appeal or atthe
time of final hearing of the appeal by assigning reasons for framing such
question. This was not done. It was, in our view, a jurisdictional error
committed by the High Court while deciding the second appeal.
36. That apart and even otherwise, in our considered opinion, the
High Court was not right in placing reliance on Section 15 of the Act for D
deciding the rights of the parties. It is for the simple reason that the
category of heirs to which the plaintiffs had belonged, namely, "son of a
pre-deceased daughter of a pre-deceased daughter and daughter
of a pre-deceased daughter of a pre-deceased daughter" was added
in the Schedule (class I) only with effect from 9.9.2005 by amendment E
by Act No. 39 of2005.
37. The plaintiffs, therefore, were not entitled in' law to take the
benefit of the aforesaid amendment because even according to them,
their right to claim the share, if any, in the suit properties held by Alamelu
Ammal accrued on the death of Alamelu Ammal in 1987 and they filed F
civil suit in the year 1988. In other words, a right, if any, to claim interest
by succession in the properties of Alamelu Ammal opened in plaintiffs'
favour as an heir from father's side in 1987 whenAlameluAmmal died.
In this view of the matter, the plaintiffs' rights as an heir to claim shares
in the suit properties had to be worked out on the basis oflaw in force on
the date ( 1987), i.e., when succession opened for them to enforce such G
right and when they filed the suit ( 1988).
38. As mentioned above, the category of an heir to which the
plaintiffs belonged was not included in class I list in the Schedule in 198.7
but it was so included for the first time on 09.09.2005 by Act 39/2005. In
H
644 SUPREME COURT REPORTS [2017] 6 S.C.R.

A this view of the matter, the plaintiffs had no right on the strength of
succession/devolution to claim any interest in the properties of Alamelu
Ammal in 1987 as father's heir. Afortari- the devolution of interest in
suit properties could not take place in their favour by virtue of Section
15(2)(a) of the Act. Since the amendment in the Schedule was
B prospective, it had no application to the case in hand with its retrospective
effect so as to create any right in plaintiffs' favour in 1987.
39. However, if Alamelu Ammal had died after 09.09.2005 then
perhaps, the plaintiffs could have claimed some interest in the suit
properties subject to however their proving other conditions. The reason
being the category of heirs to which they belonged was by that time
c included in the Schedule. Such was, however, not the case.
40. Apart from what we have held supra, the plaintiffs had
otherwise no case on merits on yet another ground. It is not in dispute
that the Courts below concurrently held and, in our view, rightly that
Perumal Naidu bequeathed his properties to all his heirs including his
D two ,daughters by conferring on them "absolute interest" and not the
"life interest" in the properties. A fortiori, Alamelu Ammal and the
defendant, therefore, acquired absolute ownership rights in the suit
properties on the strength of the Will. They, therefore, rightly got their
names recorded in the Revenue Records in 1957 itself and continued to
E exercise their ownership rights till 1987 without any interference from
anyone including plaintiffs or/and their predecessor-in-title.
41. One cannot dispute a legal proposition that once a heir
becomes the absolute owner of the property by virtue of a Will then as a
necessary consequence, he/she is entitled to alienate such property by
F any mode permissible in law to anyone. Alamelu Ammal did it when
she alienated her share by executing a Will in favour of the defendant(her
sister). It was legally permissible.
42. If however, Courts had held in the plaintiffs' favour that the
heir got only "life interest" in the property through Will of Perumal Naidu
G then perhaps on the death of such heir, her share may have devolved on
the surviving heirs (reversioners) of father (Perumal Naidu) in terms of
Section 15(2) of the Act subject to proving other conditions. Such was,
however, not the case.
43. In the light of foregoing discussion, we are of the considered
H opinion that though the High Court was right in upholding all the findings
KARUNANIDHI v. SEETHARAMA NAIDU & ORS. 645
[ABHAY MANOHARSAPRE, J.]

of fact of the two courts below but was not right in relying upon Section A
15(2)(a) of the Act for allowing the plaintiffs' second appeal by treating
them to be Class I heirs from father's side and, in consequence, was
also not right in decreeing the plaintiffs' suit in part by granting l/J'd
share to each plaintiff in the suit property. This finding, as held above, is
legally unsustainable and hence deserves to be set aside. It is accordingly B
set aside.
44. Here we consider it apposite to mention that we did not consider
it necessary to examine the meaning of the words "any property inherited
by a female Hindu from her father or mother" occurring in Section
15(2)(a) of the Act for deciding a question as to whether such expression
would include "a property received by a female Hindu by Will from her C
father or mother" or it would include only those properties which are
devolved on female by natural succession on the death of her father or
mother. In this case, this question need not be decided once we have
held that Section 15(2) of the Act has no application to the facts of this
case. D
45. As a consequence, the appeal succeeds and is allowed. The
impugned judgment is set aside and that of the trial Court is restored
resulting in dismissal of the suit filed by the plaintiffs.

E
Divya Pandey Appeal allowed.