Binu W/o Kunduparambil Late Suresh v. Valsala D/o Karumathi Padinjaraveettil Kunduparambil Janakyamma
2022-07-21
M.R.ANITHA
body2022
DigiLaw.ai
JUDGMENT : M.R. ANITHA, J. 1. This appeal has been directed against the judgment and decree in A.S. No. 51/2020 on the file of Principal Subordinate Judge's Court, Irinjalakuda, which arise out of O.S. No. 1284/2018 on the file of Additional Musniff Court, Irinjalakuda. 2. The suit was one for partition filed by the mother with respect to the property belonged to her deceased son Suresh. The defendants are the wife and children of the deceased son. (For convenience parties would hereinafter be referred as per their status before the trial court). The son died intestate and parties are governed by Hindu Succession Act, 1956 (for short, the Act) and plaintiff claimed 1/4th share out of the schedule property with share of profits. 3. Defendants filed written statement contending that they are the only legal heirs of deceased Suresh and plaintiff is not entitled to any share in the property in view of the subsequent development of law. It is denied that the defendants let out the building on monthly rent of Rs. 4,500/-. The house is in a dilapidated condition. It is also contended that the properties are not in joint possession. 4. PW-1 examined and Exts.A1 to A3 marked from the side of the plaintiff. DW-1 examined from the side of the defendants. 5. The learned Munsiff on evaluation of the facts and circumstances and evidence adduced found that Section 8 of the Hindu Succession Act is applicable even after the amendment to Section 15 as far as the succession to the property of Hindu male is concerned. It is also found that there is no sufficient evidence to prove the cut and removal of trees or that the defendants received any rent. Learned Munsiff allowed the suit declaring that plaintiff is entitled to 1/4th share of the plaint schedule property. 6. Against which, defendants filed appeal as A.S. No. 51/2020. The learned Principal Subordinate Judge found that Section 15(2)(c) applies only on the death of a female Hindu. As per Section 8 of the Act the plaintiff-mother is entitled to get ¼ share of the plaint schedule property and hence it has been found that even after the amendment of Section 15, Section 8 applies to succession to the property of a Hindu male and Section 15 applies only to the property of Hindu female and accordingly appeal was dismissed.
Aggrieved by the same, the appellants/defendants approach this Court in Appeal. 7. This Court at the time of admission raised the following substantial questions of law: 1. Does Section 8 r/w schedule to Hindu Succession Act, 1955 survive after the introduction of Section 15(2)(c)? If so, does not Section 15(2)(c) limit the claim of the mother of predeceased Hindu son to his property to a life estate and deprive her of a share? 2. Is not the right of the mother eclipsed by the amendment, depriving her right to seek a partition? Consequently, can she enforce a metes and bounds partition of the property as against the wife and daughters of her son? 8. The contention advanced by the learned counsel for the appellants is that Section 8 of the Act has no application in view of amendment to Section 15 by introducing Section 15(2) (c) by Act 17 of 2016. It is contended that mother of predeceased son stands excluded from inheriting his property and Section 15(2)(c) repeals and nullifies the right conferred on her under Section 8 of the Act. So according to him the object of Section 15(2)(c) was to put shackles on a mother's right to inherit any property of a predeceased son. 9. The learned counsel for the plaintiff-mother on the other hand would contend that Section 15(2)(c) has no application in the present case and it will come into play only on the death of the plaintiff and according to her after her death the defendants alone can inherit the property in view of Section 15(2)(c). 10. The plaint schedule property admittedly stands in the name of Suresh, the deceased son of plaintiff. Section 8 of the Act deals with general rules of succession in the case of males, as per which the property of a male Hindu died intestate shall devolve firstly upon the heirs being the relatives specified in Class I of the schedule. Admittedly, the plaintiff and the defendants are coming under Class I of the schedule being the mother, wife and children of the deceased. 11.
Admittedly, the plaintiff and the defendants are coming under Class I of the schedule being the mother, wife and children of the deceased. 11. The contention of the learned counsel for the appellants is that Section 8 read with Schedule to the Act will not survive after the introduction of Section 15(2)(c) and Section 15(2)(c) limits the claim of the mother over the property of deceased son to a life estate and deprived her right of a share in the deceased son's property. According to him, due to the introduction of Section 15(c) amendment by the State Government the right of the mother to get partition over the son's property is eclipsed and hence she cannot sue for partition as against the wife and daughters. 12. As has been stated earlier Section 8 of the Act deals with the general rules of succession in the case of males and here the plaint schedule property belongs to deceased son of the plaintiff and as on his death Section 8 starts to operate devolving his right equally upon the heirs specified in Class I of the Schedule. So as soon as the death of the son occurred the devolution of right as per Section 8 starts and the ¼th share of the plaintiff will vest upon her. 13. Section 15 of the Act deals with the general rules of succession in the case of female Hindus and that would start its operation as rightly found by the lower courts on the death of the mother. As per Hindu Succession (Kerala Amendment) Act, 2015 (Kerala Act 17 of 2016) sub-clause (c) has been introduced in Section 15(2). Section 15 in this context is relevant to be extracted, which reads thus: “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. (e) lastly, upon the heirs of the mother.
(b) secondly, upon the heirs of the husband. (c) thirdly, upon the mother and father. (d) fourthly, upon the heirs of the father. (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 predeceased 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. (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 sub-section (1) in the order specified therein, but upon the heirs of the husband. (c) any property inherited by a female Hindu from her pre-deceased son shall devolve, not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the pre-deceased son from whom she inherited the property.” Kerala Act 17 of 2016, S.2. 14. On going through Section 15(2)(c) it can be seen that the legislative intention by introducing the amendment is to give right of inheritance of female Hindu inherited from her predeceased son upon the heirs of predeceased son from whom she inherited the property. If at all the amended clause (c) was not there, the property inherited by the female Hindu from her predeceased son would have gone to the heirs described in Section 15(1) i.e. firstly upon the sons and daughters and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father; and lastly, upon the heirs of the mother with non-obstante clause provided under sub-section (2) clause (a) and (b) extracted above. Hence by the introduction of Clause (c) to sub-section (2) of Section 15 the right of inheritance of the property of female Hindu upon the heirs described in Section 15 (1) has been given a go-bye and it is provided that it would devolve upon the heirs of predeceased son. In other words, by the introduction of Section 15(2)(c) the right of heirs provided under Section 15(1) has been curtailed.
In other words, by the introduction of Section 15(2)(c) the right of heirs provided under Section 15(1) has been curtailed. So Section 15(2)(c) would control the right of inheritance of the heirs of female Hindu provided under Section 15(1) and it has no impact on the devolution of the property of a male Hindu died intestate provided under Section 8. To put it in other words, Section 8 is not controlled by Section 15(2)(c) or introduction of section 15(2)(c) will not eclipse the right of mother depriving her claim for partition of the property of predeceased son as contended by the learned counsel for the appellant. So the argument to the contrary advanced by the learned counsel for the appellant is not sustained in law. 15. Section 14 of the Act also expressly provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act be held by her as full owner and not as a limited owner. Explanation to Section 14 provides that “property” includes both movables and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance etc. etc. So a property acquired by female Hindu by inheritance also will be held by her as full owner and not as a limited owner. 16. Section 15(2)(c) did not intend to provide any limited right of inheritance to a female Hindu of the property of the predeceased son. The property inherited by her as legal heir of deceased son as heir under Class I of Section 8(a) is her absolute property and introduction of Section 15(2)(c) will not limit that right to that of life estate especially because there is no such express wording in sub clause (c) of sub-section (2). What sub-clause (c) intended to introduce is the devolution of property of female Hindu inherited from her predeceased son upon his legal heirs and not the other heirs provided under Section 15 (1). It would only indicate the devolution of property on her death and it does not limit her right over the property inherited from her predeceased son as a limited owner. 17.
It would only indicate the devolution of property on her death and it does not limit her right over the property inherited from her predeceased son as a limited owner. 17. So when a property is devolved upon a female Hindu as per Section 8 due to the death of son as Class I heir of the Schedule, it is as full owner and not as a limited owner. So Section 15(c) cannot be read independently with Section 14 or Section 8. As stated earlier Section 8 or Section 14 are not controlled by Section 15(2)(c). Hence in the present case property devolved upon the plaintiff as a heir of the son in Class I as per Section 8(a) of the Act is as full owner and not as a limited owner and suit for partition filed by her is perfectly maintainable. Hence, judgment and decree passed by the courts below are hereby confirmed. 18. In the result, appeal is found to be devoid of any merit and hence dismissed.