advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, August 16, 2013

Hindu Succession Act Section 15(2)(a) of the Act does not apply to the plaint 'B' schedule property, the plaintiffs are liable to fail in their case.whether the acquisition of title to the property through partition shall be considered to be inheritance within the meaning of Section 15(2) of the Act where the property partitioned in fact was acquired by inheritance.- It is found that the plaint 'B' schedule property was inherited by Sankaraiah on the demise of his wife Subbarathnamma and that the 1st defendant became entitled to the same by virtue of the relinquishment deed executed by Sankaraiah under Ex.B-3. The plaintiffs are not entitled to the declaration, possession and mesne profits as claimed. The suit is accordingly dismissed.= once an inherited property is intermeddled with, such property looses its character as an inherited property so far as Section 15(2) of the Act is concerned. It is true that the 1st plaintiff and Subbarathnamma inherited the plaint 'A' schedule property. However, once there was a partition and the plaint 'B' schedule property was allotted to Subbarathnamma, the plaint 'B' schedule property as well as the remaining part of the plaint 'A' schedule property lost their character as 'inherited property'. Consequently, Section 15(1)(a) of the Act came into operation once Subbarathnamma died. Her husband succeeded to the plaint 'B' schedule property as the only heir under Section 15(1)(a) of the Act. As the owner of the property, Sankaraiah, husband of Subbarathnamma, was entitled to dispose of the plaint 'B' schedule property in any manner of his choice. He chose to settle the same in favour of the 1st defendant. The plaintiffs cannot question the disposal of plaint 'B' schedule property by Sankaraiah in favour of the 1st defendant. = "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) 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. (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-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 Hindus 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 sub-section (1) in the order specified therein, but upon the heirs of the husband." 7. Section 15(1) of the Act provides the mode of intestate succession of the property of a female Hindu. Section 15(2) of the Act however is an exception to the succession as provided under Section 15(1) of the Act. Section 15(2) of the Act starts with a non obstante clause that notwithstanding Section 15(1) of the Act, the property inherited by a female Hindu from her parents devolves upon the heirs of the father of such a female Hindu if such a female Hindu dies without any issue. Section 15(2) of the Act further envisages that the property inherited by a female Hindu either from her husband or from her father-in-law devolves upon the heirs of her husband if she dies without any issue.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=9552
HON'BLE SRI JUSTICE K.G.SHANKAR      

Second Appeal No.544 of 1995

31-12-2012

Dasari Sainath, S/o.Krishnaiah, Hindu, Aged about 47 years, residing at
Nawabpet, Nellore and another... Appellants/Defendants 3 and 4

Mareddy Bujanga Bhushanam (Died)... Respondent/Plaintiff No.2 Mareddy
Parvathamma and 5 others... Respondents/LRs of Plaintiff No.2

Counsel for the appellants:  Sri J.Ugra Narasimha

Counsel for the Respondents: Sri K.R.Sasidharan Nair

<Gist:

>Head Note:

?Cases referred:
1. AIR 1976 ANDHRA PRADESH 337    
2. AIR 1972 ANDHRA PRADESH 182    
3. AIR 1966 MADRAS 369  

Judgment:

        The only question of law that arises for consideration in the second
appeal is the interpretation of Section 15 of the Hindu Succession Act, 1956
(the Act, for short).  The suit was laid by the 1st plaintiff seeking for a
declaration of her title to the plaint 'B' schedule property, for recovery of
possession of the same and other ancillary reliefs.  During the pendency of the
suit, the 1st plaintiff died.  After the death of the 1st plaintiff, the 2nd
plaintiff was brought on record as the legal representative of the 1st
plaintiff.  The plaintiffs examined two witnesses in support of their claim.
The defendants examined the 3rd defendant as the only witness on
their behalf.  The plaintiffs marked Exs.A-1 to A-3.
The defendants in their turn exhibited Exs.B-1 to B-3.  The suit was decreed.
The defendants 3 and 4 unsuccessfully preferred appeal from the judgment.  By
the time the appeal came up for hearing, the 2nd plaintiff also died.  His legal
representatives were brought on record as respondents 2 to 7 in the appeal.

        2. As the defendants 3 and 4 failed in the appeal, this second appeal was
preferred by them assailing the concurrent judgments of the trial court and the
appellate court.
        3. The facts leading to the filing of the present appeal, which are not in
controversy, are as follows:
        (a) One Dasari Audemma had two daughters.  Medisetty Venkata Subbamma,    
elder daughter of Audemma was the 1st plaintiff.  Mareddy Subbarathnamma was the
younger daughter of Audemma.  Audemma purchased the plaint 'A' schedule  
property.  She died in 1955 intestate.  She left the
1st plaintiff Venkata Subbamma and the other daughter Subbarathnamma as her only
children.
        (b) The two sisters who inherited the plaint 'A' schedule property divided
the same by effecting partition on 29-11-1956 through Ex.B-1 registration
extract of the partition deed.  In the said partition, the western portion of
the plaint 'A' schedule property fell to the share of the 1st plaintiff.  The
eastern portion of the plaint 'A' schedule property fell to the share of the
other daughter Subbarathnamma.  It is the plaint 'B' schedule property.
Subbarathnamma died in August, 1981, without any issue.  Sankaraiah, husband of
Subbarathnamma, executed a registered relinquishment deed registration extract
of which is Ex.B-3, on 01-3-1983 in favour of the 1st defendant, who is his
nephew being the son of his brother.
        (c) Claiming that the plaintiff is entitled to the plaint 'B' schedule
property as the surviving daughter of Audemma, the 1st plaintiff issued a notice
to the husband of Venkata Subbamma that by virtue of Section 15(2) of the Act,
the plaintiff became the owner of the plaint schedule property vide Ex.A-1.  The
1st defendant issued a reply on 23-02-1983 through Ex.A-2 contending that
Sankaraiah became the absolute owner of the plaint 'B' schedule property and
that he executed Ex.B-3 relinquishment deed in favour of the 1st defendant.
Hence, the suit by the plaintiff.

        4. As already pointed out, the trial court decreed the suit through
judgment dated 21-9-1988 holding that in view of Section 15(2) of the Act, the
1st plaintiff became the absolute owner of the plaint 'B' schedule property and
that the 2nd plaintiff consequently was entitled to the decree as sought for.
The appellate court, through judgment dated 12-7-1995 affirmed the view of the
trial court.  Hence, the second appeal.
        5. The question of law involved in this case is whether Section 15(2) of
the Act applies to the case of the plaintiff or otherwise.
6. For the sake of convenience, Section 15 of the Act may be quoted, which reads
as under:
"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) 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.

(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-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 Hindus 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 sub-section (1) in the order specified therein, but
upon the heirs of the husband."

7. Section 15(1) of the Act provides the mode of intestate succession of the
property of a female Hindu.  Section 15(2) of the Act however is an exception to
the succession as provided under Section 15(1) of the Act.  Section 15(2) of the
Act starts with a non obstante clause that notwithstanding Section 15(1) of the
Act, the property inherited by a female Hindu from her parents devolves upon the
heirs of the father of such a female Hindu if such a female Hindu dies without
any issue.  Section 15(2) of the Act further envisages that the property
inherited by a female Hindu either from her husband or from her father-in-law
devolves upon the heirs of her husband if she dies without any issue.

8. It is the case of Sri K.R.Sasidharan Nair,
learned counsel for the respondents-plaintiffs, that as
the property was inherited by Subbarathnamma,
2nd daughter of Audemma, on the demise of Audemma, the property devolves upon  
the heirs of the father of Subbarathnamma when Subbarathnamma died issueless in
view of Section 15(2)(a) of the Act and that as the
1st plaintiff was the only heir of the father of the
1st plaintiff and Subbarathnamma, the 1st plaintiff would inherit plaint 'B'
schedule property on the demise of Subbarathnamma.
9. Sri J.Ugra Narasimha, learned counsel for the
appellants-defendants 3 and 4, on the other hand, contended that Section 15(2)
of the Act has no application since Subbarathnamma did not inherit the property
within the meaning of 'inheritance'.  The learned counsel for the defendants 3
and 4 placed reliance upon Emana Veeraraghavamma v. Gudiseva Subbarao1.  
It was observed in that case that when a female Hindu succeeds to the property
by way of inheritance from her parents and if such inherited property was sold
away and other properties were purchased with the produce, such subsequently
purchased property would not constitute the 'inherited property' within Section
15(2)(a) of the Act.  A Division Bench of this Court held that the special rule
of succession under Section 15(2)(a) of the Act applies in case the very
property inherited by a female Hindu from her father or mother was still
available at the time of her death and not in other circumstances.

10. It is contended by the learned counsel for the
defendants 3 and 4 that Subbarathnamma did not inherit the plaint 'B' schedule
property and that she acquired the plaint 'B' schedule property by virtue of
partition with her elder sister through partition deed dated 29-11-1956.  The
learned counsel for the plaintiffs, on the other hand, contended that the plaint
'B' schedule property did not change the character of being inherited property
since the plaint 'B' schedule property was not the property purchased subsequent
to the inheritance as in the case of Emana Veeraraghavamma (1 supra) and that
consequently, the Division Bench decision of this Court has no application.  I
am afraid that the contention of the learned counsel for the plaintiffs is not
correct.
It is not as though the property held by Subbarathnamma was the property
inherited by her.  The 1st plaintiff and Subbarathnamma inherited the plaint 'A'
schedule property.  They effected partition of the inherited property in
November, 1956.  From then onwards, it should be considered that the 1st
plaintiff and Subbarathnamma held the property as partition property and not as
inherited property.

11. In Bobballapati Kameswararao v. Kavuri Vasudevarao2, a Division Bench of
this Court considered the meaning of 'inheritance'.  The Division Bench held
that the term 'inheritance' occurring in Section 15(2) of the Act should be
given a restricted meaning and not
a wider interpretation as in other enactments.

12. In Ayi Ammal v. Subramania Asari3, a learned single Judge of the Madras High
Court considered the meaning of 'inheritance' under Section 15(2) of the Act.
In that case, a lady acquired title to the property from her father through a
gift.  The Court held that the property was not inherited by her as she did not
acquire the same through succession.  The Court defined inheritance as,
"to receive property as heir, i.e. succession by descent".

13. It is the contention of the learned counsel for the 1st defendant that so
long as Subbarathnamma did not acquire title through inheritance, Section 15(2)
of the Act has no application and that Section 15(1)(a)
of the Act would operate.  The real question for consideration is whether the
acquisition of title to the property through partition shall be considered to be inheritance within the meaning of Section 15(2) of the Act where the property partitioned in fact was acquired by inheritance.
In the light of Emana Veeraraghavamma  
(1 supra), I consider that once an inherited property is intermeddled with, such
property looses its character as an inherited property so far as Section 15(2)
of the Act is concerned.  It is true that the 1st plaintiff and Subbarathnamma
inherited the plaint 'A' schedule property.  However, once there was a partition
and the plaint 'B' schedule property was allotted to Subbarathnamma, the plaint
'B' schedule property as well as the remaining part of the plaint 'A' schedule
property lost their character as 'inherited property'.  Consequently, Section
15(1)(a) of the Act came into operation once Subbarathnamma died.  Her husband 
succeeded to the plaint 'B' schedule property as the only heir under Section
15(1)(a) of the Act.  As the owner of the property, Sankaraiah, husband of
Subbarathnamma, was entitled to dispose of the plaint 'B' schedule property in
any manner of his choice.  He chose to settle the same in favour of the 1st
defendant.  The plaintiffs cannot question the disposal of plaint 'B' schedule
property by Sankaraiah in favour of the 1st defendant.

14. The trial court and the appellate court erred in considering that the plaint
'B' schedule property was the inherited property of Subbarathnamma and that
consequently by virtue of Section 15(2)(a) of the Act, the 1st plaintiff became
the owner of the palint 'B' schedule property.  As Section 15(2)(a) of the Act
does not apply to the plaint 'B' schedule property, the plaintiffs are liable to
fail in their case.

15. Consequently, the second appeal is allowed.
It is found that the plaint 'B' schedule property was inherited by Sankaraiah on
the demise of his wife Subbarathnamma and that the 1st defendant became entitled
to the same by virtue of the relinquishment deed executed by Sankaraiah under
Ex.B-3.  The plaintiffs are not entitled to the declaration, possession and
mesne profits as claimed.  The suit is accordingly dismissed.  However, the
parties shall bear their respective costs.

_________________  
K.G.SHANKAR, J.  
31st December, 2012

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.