SA/544/1995 of D. SAINATH, Vs M. B. BHUSHANAM (DIED), on 31 December 2012

Judgment:

The only question of law that arises for considerationin the second appeal is the interpretation of Section 15 ofthe Hindu Succession Act, 1956 (the Act, for short). The suit was laid by the 1[st] plaintiff seeking for a declaration ofher title to the plaint ‘B’ schedule property, for recovery ofpossession of the same and other ancillary reliefs. Duringthe pendency of the suit, the 1[st] plaintiff died. After thedeath of the 1[st] plaintiff, the 2[nd] plaintiff was brought onrecord as the legal representative of the 1[st] plaintiff. Theplaintiffs examined two witnesses in support of their claim. The defendants examined the 3[rd] defendant as the onlywitness on their behalf. The plaintiffs marked Exs.A-1 to A-3. The defendants in their turn exhibited Exs.B-1 to B-3. Thesuit was decreed. The defendants 3 and 4unsuccessfully preferred appeal from the judgment. Bythe time the appeal came up for hearing, the 2[nd] plaintiffalso died. His legal representatives were brought onrecord as respondents 2 to 7 in the appeal.

2. As the defendants 3 and 4 failed in the appeal, thissecond appeal was preferred by them assailing theconcurrent judgments of the trial court and the appellatecourt.

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 ofAudemma was the 1[st]plaintiff. Mareddy Subbarathnamma was the younger daughter ofAudemma. Audemma purchased the plaint ‘A’ scheduleproperty. She died in 1955 intestate. She left the 1[st] plaintiff Venkata Subbamma and the other daughterSubbarathnamma as her only children.

(b) The two sisters who inherited the plaint ‘A’schedule property divided the same by effecting partitionon 29-11-1956 through Ex.B-1 registration extract of thepartition deed. In the said partition, the western portion ofthe plaint ‘A’ schedule property fell to the share of the 1[st]plaintiff. The eastern portion of the plaint ‘A’ scheduleproperty fell to the share of the other daughterSubbarathnamma. It is the plaint ‘B’ schedule property. Subbarathnamma died in August, 1981, without anyissue. Sankaraiah, husband of Subbarathnamma,executed a registered relinquishment deed registrationextract of which is Ex.B-3, on 01-3-1983 in favour of the1[st] defendant, who is his nephew being the son of hisbrother.

(c) Claiming that the plaintiff is entitled to the plaint ‘B’schedule property as the surviving daughter of Audemma,the 1[st] plaintiff issued a notice to the husband of VenkataSubbamma that by virtue of Section 15(2) of the Act, theplaintiff became the owner of the plaint schedule propertyvide Ex.A-1. The 1[st] 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 andthat he executed Ex.B-3 relinquishment deed in favour ofthe 1[st] defendant. Hence, the suit by the plaintiff.

4. As already pointed out, the trial court decreed thesuit through judgment dated 21-9-1988 holding that inview of Section 15(2) of the Act, the 1[st] plaintiff becamethe absolute owner of the plaint ‘B’ schedule property andthat the 2[nd] plaintiff consequently was entitled to thedecree as sought for. The appellate court, throughjudgment dated 12-7-1995 affirmed the view of the trialcourt. Hence, the second appeal.

5. The question of law involved in this case iswhether Section 15(2) of the Act applies to the case of theplaintiff 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 dyingintestate shall devolve according to the rules set out inSection 16, (a)firstly, upon the sons and daughters (including thechildren of any pre-deceased son or daughter) andthe husband;children of any pre-deceased son or daughter) andthe 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 fromher father or mother shall devolve, in the absence of any son or daughter of the deceased (including the childrenof any pre-deceased son or daughter) not upon the otherheirs referred to in sub-section (1) in the order specifiedtherein but upon the heirs of the father; and (b) any property inherited by a female Hindus fromher husband or from her father-in-law shall devolve, inthe absence of any son or daughter of the deceased(including the children of any pre-deceased son ordaughter) not upon the other heirs referred to sub-section(1) in the order specified therein, but upon the heirs of thehusband.”

7. Section 15(1) of the Act provides the mode ofintestate succession of the property of a female Hindu. Section 15(2) of the Act however is an exception to thesuccession as provided under Section 15(1) of the Act. Section 15(2) of the Act starts with a non obstante clausethat notwithstanding Section 15(1) of the Act, the propertyinherited by a female Hindu from her parents devolvesupon the heirs of the father of such a female Hindu if sucha female Hindu dies without any issue. Section 15(2) ofthe Act further envisages that the property inherited by afemale Hindu either from her husband or from her father-in-law devolves upon the heirs of her husband if she dieswithout 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, 2[nd] daughter of Audemma, on the demise of Audemma,the property devolves upon the heirs of the father ofSubbarathnamma when Subbarathnamma died issueless in view of Section 15(2)(a) of the Act and that as the 1[st] plaintiff was the only heir of the father of the 1[st] plaintiff and Subbarathnamma, the 1[st] plaintiff wouldinherit plaint ‘B’ schedule property on the demise ofSubbarathnamma.

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 applicationsince Subbarathnamma did not inherit the property withinthe meaning of ‘inheritance’. The learned counsel for thedefendants 3 and 4 placed reliance upon Emana .Veeraraghavamma v. Gudiseva Subbarao[[1]]

It was observed in that case that when a female Hindusucceeds to the property by way of inheritance from herparents and if such inherited property was sold away andother properties were purchased with the produce, suchsubsequently purchased property would not constitute the‘inherited property’ within Section 15(2)(a) of the Act. ADivision Bench of this Court held that the special rule ofsuccession under Section 15(2)(a) of the Act applies incase the very property inherited by a female Hindu fromher father or mother was still available at the time of herdeath 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 theplaint ‘B’ schedule property by virtue of partition with herelder sister through partition deed dated 29-11-1956. Thelearned counsel for the plaintiffs, on the other hand,contended that the plaint ‘B’ schedule property did notchange the character of being inherited property since theplaint ‘B’ schedule property was not the propertypurchased subsequent to the inheritance as in the case ofEmana Veeraraghavamma(1 supra) and thatconsequently, the Division Bench decision of this Courthas no application. I am afraid that the contention of thelearned counsel for the plaintiffs is not correct.

It is not as though the property held by Subbarathnammawas the property inherited by her. The 1[st] plaintiff andSubbarathnamma inherited the plaint ‘A’ scheduleproperty. They effected partition of the inherited propertyin November, 1956. From then onwards, it should beconsidered that the 1[st] plaintiff and Subbarathnamma heldthe property as partition property and not as inheritedproperty.

11. In Bobballapati Kameswararao v. Kavuri Vasudevarao[[2]],a Division Bench of this Courtconsidered the meaning of ‘inheritance’. The DivisionBench held that the term ‘inheritance’ occurring in Section15(2) of the Act should be given a restricted meaning andnot a wider interpretation as in other enactments.

In Ayi Ammal v. Subramania AsarAyi Ammal v. Subramania Asari[[3]], a

12. In Ayi Ammal v. Subramania AsarAyi Ammal v. Subramania Asari, alearned single Judge of the Madras High Courtconsidered the meaning of ‘inheritance’ under Section15(2) of the Act. In that case, a lady acquired title to theproperty from her father through a gift. The Court held thatthe property was not inherited by her as she did notacquire the same through succession. The Court definedinheritance as, “to receive property as heir, i.e. succession by descent”.

13. It is the contention of the learned counsel for the1[st] defendant that so long as Subbarathnamma did notacquire 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 forconsideration is whether the acquisition of title to theproperty through partition shall be considered to beinheritance within the meaning of Section 15(2) of the Actwhere the property partitioned in fact was acquired byinheritance. In the light of Emana Veeraraghavamma

(1 supra), I consider that once an inherited property isintermeddled with, such property looses its character asan inherited property so far as Section 15(2) of the Act isconcerned. It is true that the 1[st] plaintiff andSubbarathnamma inherited the plaint ‘A’ schedule property. However, once there was a partition and theplaint ‘B’ schedule property was allotted toSubbarathnamma, the plaint ‘B’ schedule property as wellas the remaining part of the plaint ‘A’ schedule propertylost their character as ‘inherited property’. Consequently,Section 15(1)(a) of the Act came into operation onceSubbarathnamma died. Her husband succeeded to theplaint ‘B’ schedule property as the only heir under Section15(1)(a) of the Act. As the owner of the property,Sankaraiah, husband of Subbarathnamma, was entitled todispose of the plaint ‘B’ schedule property in any mannerof his choice. He chose to settle the same in favour of the1[st] defendant. The plaintiffs cannot question the disposalof plaint ‘B’ schedule property by Sankaraiah in favour ofthe 1[st] defendant.

14. The trial court and the appellate court erred inconsidering that the plaint ‘B’ schedule property was theinherited property of Subbarathnamma and thatconsequently by virtue of Section 15(2)(a) of the Act, the1[st] plaintiff became the owner of the palint ‘B’ scheduleproperty. As Section 15(2)(a) of the Act does not apply tothe plaint ‘B’ schedule property, the plaintiffs are liable tofail 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 wifeSubbarathnamma and that the 1[st] defendant becameentitled to the same by virtue of the relinquishment deedexecuted by Sankaraiah under Ex.B-3. The plaintiffs arenot entitled to the declaration, possession and mesneprofits as claimed. The suit is accordingly dismissed. However, the parties shall bear their respective costs.

31[st] December, 2012.

_________________

K.G.SHANKAR, J.

-Note:L.R. Copy to be marked.(B/o)Ak

(Judgment)

31[st] December, 2012.(Ak)

[1]AIR 1976 ANDHRA PRADESH 337AIR 1976 ANDHRA PRADESH 337

[2]AIR 1972 ANDHRA PRADESH 182AIR 1972 ANDHRA PRADESH 182

[3]AIR 1966 MADRAS 369AIR 1966 MADRAS 369