Hindu Female Becomes ‘Absolute Owner’ Of Partitioned Property, Can’t Transfer To Siblings But Would Be Subject To Succession: Karnataka High Court
The Karnataka High Court on 14th March 2023 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. This was in the case of Basangouda v. Muddangouda & Others (REGULAR SECOND APPEAL NO. 7094 OF 2010) and was presided over by a single judge bench of JUSTICE C.M.JOSHI.
FACTS OF THE CASE:
This appeal is filed against the judgment and decree passed in RA No.28/2008 on the file of the Prl. District Judge, Raichur arising out of the judgment and decree passed in O.S.No.20/2006 by the Additional Civil Judge. The appellant is the plaintiff in O.S. No.20/2006. The parties are referred as per their ranking before the Trial Court for the sake of convenience. The appellant filed a suit for declaration and injunction contending that he had married Smt. Eshwaramma D/o Ramangouda in the year 1960 and his wife Eshwaramma was owner in possession of suit land bearing Sy.No.287/A measuring 22 acres 18 guntas situated at Athanur village in Manvi Taluk. It was contended that after the death of his wife Eshwaramma, the plaintiff became a exclusive legal heir and the said Eshwaramma died issueless in the year 1998. It was also contended that the said Eshwaramma had acquired ownership over the suit property on the strength of the oral partition between her father and her brothers namely Muddanagouda, Sharanappa, Siddanagouda and Shanker in the year 1968. The partition which was initially oral, came to be recorded in a memorandum of partition and the same came to be registered on 21.09.1974. Initially, the suit survey number which was fallen to the share of Eshwaramma was measuring 26 acres 28 guntas and later a portion of it had to be surrendered to the Government in view of the ceiling limitations under the Karnataka Land Reforms Act. Ultimately Sy.No.287/A measuring 22 acres 18 guntas which is the suit property came to be retained by the said Eshwaramma. It was also contended that the Eshwaramma continued in possession of the said property till her death. However, there were some discrepancy in the mutation entries and as such the name of Muddangouda continued in the record of rights. It was also contended that earlier the name of Eshwaramma was introduced along with the name of one Muddangouda in the cultivators column and the name of one Basavaraj came to be deleted, who died about two years back leaving behind his son Murali and his wife Narsamma. Taking advantage of these hollow entry, the defendants started obstruction in peaceful possession and enjoyment of the suit land and therefore the plaintiff who is the husband of Eshwaramma was constrained to file suit for declaration of his title as well as consequential relief of injunction. On issuance of summons, the defendants did appear through their counsel, but they did not choose to prefer any written statement. The plaintiff was examined before the Trial Court as PW1 and two witnesses were examined on his behalf as PW2 and PW3. Ex.P1 to Ex.P4 came to be marked and received in evidence. None of these witnesses were cross examined by the defendants.
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…”
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. 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.”
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JUDGEMENT REVIEWED BY PRATIKSHYA P. BEURA
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