A single judge bench comprising Justice C M Joshi sitting at Kalaburgi has held in Regular Second Appeal No. 7094/2010 that upon the partition of property, a Hindu female becomes the absolute owner of the property and the acquisition of the property in such a way cannot be termed as acquisition by inheritance. Hence, upon her death, the property will not devolve upon her siblings.
The bench has taken a broad interpretation of Section 15(1) and has allowed the appeal filed by Mr. Basangouda thereby setting aside the orders of the trial and first appellate court which held that since the suit property was allotted to his deceased wife, late Mrs. Eshwaramma under a partition deed, the same would devolve upon her siblings.
Section 15(1) provides that “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 (c) lastly, upon the heirs of the mother”
Section 15(2)(a) provides that “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 predeceased son or daughter) not upon the other heirs referred to in sub-section (1) but upon the heirs of the father”.
The bench has held that “A combined reading of Section 15(2) coupled with the memorandum of partition, would show that late Mrs. Eshwaramma had become the absolute owner of the property and after her demise, the property would devolve by way of general succession under Section 15(1) and not as provided under Section 15(2) of Hindu Succession Act.
In this instance, since late Mrs. Eshwaramma had deceased without any children, the suit property would devolve upon her husband as provided under Section 15(1)(a). It was argued by her husband that only if a female Hindu inherited the property by way of succession, Section 15(2) would be applicable. It would not be applicable if the acquisition of the property was by way of gift, sale, partition, etc.
The Court held that the acquisition of the property by virtue of memorandum of partition between herself, her father, and her brothers cannot be construed as inheritance within the meaning of Section 15(2). It held that Section 15(2) has to be construed in a narrow sense. Further, it was held that “once there is a partition and the properties have been divided by metes and bounds, it becomes the absolute property of such sharer.
If the sharer had any surviving heirs at the time of partition, the property may become the joint family property of the person who acquired it and their family members. Therefore, partition cannot be construed to convey the property by way of inheritance at any stretch of imagination”.
The Court has allowed the appeal and declared the husband of late Mrs. Eshwaramma as the owner of the suit property. The defendants, being the brothers of late Mrs. Eshwaramma are restrained from interfering with the peaceful possession and enjoyment of the suit property held by Mr. Basangouda.