The Karnataka High Court, in a recent appeal before it, held
that in cases of inheritance, a property needn't be defined by
its physical boundaries (metes and bounds in legal parlance) as
only the rights have been inherited. The Court ruled that gift of
any property by its owner under a will (broadly referred to as
testatory disposition) in any manner overrides the rule of
intestate succession.
It is in the context of the facts and analysis of the case below
that the Karnataka High Court delivered this judgement.
One Smt Eshwaramma, who married one Basangouda in 1960, passed
away issueless in 1998. Eshwaramma had acquired ownership of a
property in 1968, on the basis of an oral partition made between
her father, her three brothers and herself. The oral partition was
subsequently recorded in a memorandum of partition ("Partition
Memorandum") which was registered in 1974.
Due to some discrepancy in the mutation entries, the names of
Eshwaramma's brothers continued to be mentioned in the record
of rights, though her name was not included. Taking advantage of
this, Eshwaramma's brothers tried to deny peaceful possession
and enjoyment of the property by her widowed husband Basangouda,
who then filed a title declaration and injunction suit.
Both, the Trial Court and the First Appellate Court concluded that
though the property was partitioned between Eshwaramma, her father
and her brothers, Eshwaramma's share in it was by inheritance.
Eshwaramma's property would therefore revert to her brothers
and not her husband in accordance with the provisions of Section
15(2) of the Hindu Succession Act, 1956 ("HSA").
Section 15 of HSA, which deals with the general rules of
succession in the case of female Hindus, states the
following:
(1): The property of a female Hindu dying intestate shall devolve
according to the rules set out under section 16:
a. firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband;
b. secondly, upon the heirs of the husband;
c. thirdly, upon her mother and father;
d. fourthly, upon the heirs of the father; and
e. lastly, upon the heirs of the mother.
Section 15(2) states: 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-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 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 the children of any
pre-deceased son or daughter), not upon the other heirs referred to
in the sub-section (1) in the order specified therein, but upon the
heirs of the husband.
Eshwaramma's brothers contended that in this case, their
sister was not the original owner of the property but had inherited
it from her father. Now since she had died without any offspring,
without making a will and with her husband as beneficiary, the
Trial Court and the First Appellate Court relied on the provisions
of Section 15(2) (a) above to deprive her widowed husband of any
share in the property.
Basangouda's submission before the Court was that only if a
female Hindu has inherited the property by succession, the
exception carved out in section 15(2) of the HSA would apply.
Section 15(2) would not apply if a female Hindu acquired the
property as a gift, sale, or such other manner.
Basangouda further submitted that Eshwaramma had acquired the
property based on a registered Partition Memorandum, by virtue of
which she became an absolute owner of the property. The Trial Court
and the First Appellate Court erred in holding that the property
would revert to Eshwaramma's brothers.
The Court examined the Partition Memorandum wherein the parties
had declared that the property falling to their respective share
would become their absolute property and other parties rights and
interests would stand relinquished. Eshwaramma had therefore
acquired the property on the basis of the Partition Memorandum,
which cannot be construed as inheritance.
Legislature used the term inheritance considering intestate
succession. Section 15(2) carved out an exception to the general
rule mentioned in section 15(1) of the HSA. Acquisition of the
property by a female Hindu by will or gift includes acquisition by
a family partition. Upon partition and division of properties by
metes and bounds, the partitioned property becomes the absolute
property of such a sharer. The partitioned property may become the
joint family property of the sharer and his family
members/surviving heirs.
Section 15(2) of the HSA deals with inheritance from the parental
family of a female Hindu. Such inheritance can only be by intestate
succession, and not by an instrument.
Review and interpretation of section 15(2) of the HSA coupled with
the Partition Memorandum establishes that Eshwaramma was the
absolute owner of the property and on her demise, the property
would devolve by way of general succession under section 15 (1) and
not section 15 (2) of the HSA.
Thus, the property of a female Hindu dying without children as
well as without making a will is a general class covering all the
properties, except the properties inherited from her father or
mother.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
