Hindu Female Becomes 'Absolute Owner' Of Partitioned Property, Can't Devolve On Siblings But Would Be Subject To Succession: Karnataka High Court

The Karnataka High Court has held that a female Hindu becomes the absolute owner of the property on acquisition of property by way of a partition deed agreed upon in the family and the property cannot be termed as acquisition by inheritance and thus would not revert to the siblings on her death.

A single judge bench of Justice C M Joshi sitting at Kalaburagi, allowed the appeal filed by Basangouda and set aside the orders of the trial and first appellate court which held that Section 15(2) of the Hindu Succession Act was attracted in respect of the suit property held by his deceased wife Eshwaramma allotted under a partition deed, and thus it would devolve back to her siblings.

The bench said “A combined reading of the interpretation of Section 15(2) of Hindu Succession Act coupled with the memorandum of partition, would go to show that the deceased Eshwaramma had become an absolute owner of the property and after her demise, the property would devolve by way of general succession under Section 15(1), but not as provided under Section 15(2) of the Act.”

Eshwaramma had acquired ownership over the suit property on the strength of the oral partition between her father and her brothers, which came to be recorded in a memorandum of partition and registered. Basangouda had filed a suit for declaration claiming that Eshwaramma was owner in possession of suit land and that after her issueless death, he became an exclusive legal heir.

Basangouda submitted there were some discrepancies in the mutation entries and as such the name of her brothers continued in the record of rights. Taking advantage of these hollow entries, the defendants started obstruction in peaceful possession and enjoyment of the suit land, he alleged.

The trial court however dismissed his suit for title declaration. The order was upheld by the first appellate court.

Basangouda argued that Eshwaramma had acquired the property on the basis of the registered memorandum of partition and by virtue of such partition, she had become absolute owner of the suit property. Thus such acquisition of property by Eshwaramma could not have been considered to be by way of inheritance.

“Only if a female Hindu has inherited the property by way of succession, the exception carved out in Section 15(2) of Hindu Succession Act would come in play and it would not be applicable if the acquisition of the property by a female Hindu is by way of gift sale or such other modes,” it was argued.

The bench agreed that by registering the memorandum of partition, Eshwaramma and respondents had given effect to the partition entered into between them. "They have declared that the property fallen to their respective shares would be absolute property belonging to them and the rights and interests have also been relinquished. Such kind of oral partition recorded in the form of memorandum of partition is permissible under the Hindu Law,” it said.

The Court held that acquisition of the property by virtue of Memorandum of Partition by Eshwaramma cannot be construed to be "inheritance" within the meaning of Section 15(2) of the Hindu Succession Act. "Though the provisions of Section 15(2) do not use the word intestate succession, the word used being inheritance, it has to be construed in the narrow sense..."

The bench opined that the legislature has used the word inheritance in the light of intestate succession and Section 15(2) carved out an exception to the general rule mentioned in Section 15(1) of the Act. Therefore, the acquisition of the property by a female Hindu either by Will, Gift will also include the acquisition by way of a partition in the family.

Further it said “Once there is a partition and 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 acquirer and his family members. Therefore, the Ex.P1 cannot be construed to convey the property by way of inheritance at any stretch of imagination.”

Noting that the provisions of Section 15(2) of the Hindu Succession Act deal with inheritance from the parental family of a female Hindu, Court said such inheritance cannot be by virtue of an instrument, but by way of intestate succession only.

It added that the Courts below did not critically examine the provisions of Section 15(2) of the Hindu Succession Act vis-a-vis the Memorandum of Partition. "They went under the presumption that a partition deed does not create the rights, but it only recognizes that inheritance of the property. The inheritance of the property need not be the metes and bounds and only the rights are inherited. If it is testatory disposition in whatever mode it may be, it overrides the rule of intestate succession and therefore the impugned judgment is not sustainable under law.”

Accordingly it allowed the appeal and declared the plaintiff to be the owner of the suit schedule property and consequently the defendants are restrained from interfering in the peaceful possession and enjoyment of the suit property by the plaintiff.

Case Title: Basangouda And Muddangouda & Others

Case No: REGULAR SECOND APPEAL NO. 7094 OF 2010

Citation: 2023 LiveLaw (Kar) 117

Date of Order: 14-03-2023

Appearance: Advocate Shivakumar Kallor for appellant.

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