Thippeswamy vs Sri Rangappa

defendant was ordered to be entered in the

records. It is in these circumstances that one

suit came to be instituted seeking the relief of

declaration and injunction, whereas, the other

suit was filed for the same reliefs.

It was the contention of Nagamma and her

son Thippeswamy that on the death of Muddamma,

the suit property reverts back to her by

inheritance and Rangappa the purchaser had no

right, title or interest of whatsoever type over

the suit property whereas it was the contention

of Rangappa that Muddamma was absolute owner of

the suit property on the basis of gift deed 6 RSA No.25/2009 CW RSA No.26/2009

executed by her mother Rangamma and on the death

of Muddamma, her husband acquired an absolute

interest in the suit property and he sold it in

his favour under the registered sale deed dated

03.07.1997. So he pleads that since from the

date of registered sale, he has acquired the

title and also the possession and therefore,

sought for the relief.

On the basis of aforesaid facts and

pleadings, the Trial Court framed 5 issues in OS

No.163/2002 whereas as many as 6 issues in the

other suit. Both these cases were clubbed and

the Trial Court permitted the parties to lead

common evidence.

Accordingly, Thippeswamy the son of Nagamma

was examined as PW1 and two witnesses PWs.2 and

3. In their evidence, documents Exs.P1 to P5

were marked. Rangappa was examined as DW1 and a

witness DW2 and in their evidence, documents 7 RSA No.25/2009 CW RSA No.26/2009

Exs.D1 to D6 were marked. The Trial Court after

hearing the counsel for parties and on

appreciation of the evidence on record, decreed

the suit in part in OS No.163/2002 and declared

Rangappa as the owner of suit schedule property

and granted an injunction restraining Nagamma

and her son Thippeswamy from causing obstruction

to the peaceful possession and enjoyment of the

suit property, whereas OS NO.8/2004 instituted

by Thippeswamy and Nagamma claiming the same

reliefs was dismissed. Aggrieved by the common

judgment and decrees in both the suits,

Thippeswany and Nagamma preferred RA Nos.15 and

16/2008. Learned District Judge after clubbing

both these appeals, heard them and by a common

judgment and decree dated 26.09.2008 dismissed

both the appeals. Aggrieved by the judgment and

decrees of the Courts below, the aforesaid

Thippeswamy and Nagamma have approached this

Court in both these appeals.

8 RSA No.25/2009 CW RSA No.26/2009

3. At the time of admission, this Court

has raised the following substantial question of

law for consideration:

"1. Whether the Courts below were justified in holding that Section 15(1) of Hindu Succession Act, 1956 would apply to the facts of the case in deciding the right of the plaintiffs and whether it was in fact Section 15(2) of the Act, which ought to have been applied?

2. Whether Section 14 of the Act would over ride Section 15(2) of the Act? and

3. Whether the Courts below have over looked the law as laid down by the Supreme Court in the case of BHAGAT RAM (D) BY LRs Vs TEJA SINGH (D) BY LRs (AIR 2002 SC 1)?"

4. I have heard learned Counsel for both

the parties.

9 RSA No.25/2009 CW RSA No.26/2009

5. It is the contention of learned

Counsel for the appellants that Rangamma, the

wife of Odo Nagappa had acquired a life interest

in the properties left by her husband and as she

gifted those properties under a gift deed dated

09.04.1954 to both her daughters who were

entitled to the properties by inheritance on the

death of their mother Rangamma, they were the

absolute owners of the properties given to them

under a gift deed. Both the daughters got

properties and their right of inheritance was

accelerated and it relates back to the date of

gift. Therefore, he contends that the

properties given to both the daughters could be

treated as an acquisition by inheritance and on

the death of Muddamma, the husband cannot claim

any right over the suit property and it has to

revert back to the heirs of her father or mother

as she had no children through her husband

Rangappa. Hence, it is his contention that 10 RSA No.25/2009 CW RSA No.26/2009

under the provisions of Section 15(2)(a) of the

Hindu Succession Act, the suit property

inherited by Muddamma from her father or mother

would devolve in the absence of any son or

daughter, not upon the heirs referred to under

Sub Section (1) in the order specified therein

but upon the heirs of the father. Hence, he

would contend that the Courts below committed an

error in applying the provisions of Section

15(1) of the Hindu Succession Act, though it was

the property in the hands of Muddamma, through

her father. Therefore, he claims that the

Courts below committed an illegality in

dismissing their suit and granting a decree in

favour of Rangappa.

6. On the other hand, learned Counsel

for the respondent submits that from the date of

gift i.e., from 09.04.1954, Muddamma acquired an

absolute interest in the suit property and this

acquisition is not by inheritance but under the 11 RSA No.25/2009 CW RSA No.26/2009

gift. Hence, he submits that on the death of

Muddamma, her husband succeeded to the suit

property and had an absolute interest over it

and thereby, the sale deed executed by the

husband of Muddamma dated 03.07.1997 is legal

and valid. On the aforesaid contentions, he

submits that the Courts below were justified in

dismissing the suit of appellants and granting a

decree of declaration and injunction in favour

of the respondent.

7. It is not in dispute that late Odo

Nagappa was the owner of land bearing

Sy.Nos.114/4, 111/5 and 108/3. He died prior to

the commencement of Hindu Succession Act. On

his death, his wife Rangamma inherited the

aforesaid properties and gifted the suit

property to Muddamma whereas other properties

were gifted to Nagamma, the second plaintiff.

The gift deed was on 09.04.1954. Under the

aforesaid gift, it is Muddamma who acquired an 12 RSA No.25/2009 CW RSA No.26/2009

interest over the suit property from the date of

gift and Muddamma continued to enjoy the suit

property till she died and on her death, the

suit property was sold to Rangappa, the

defendant in the suit.

8. Under the provisions of Mysore Hindu

Law Women's Rights Act, 1933, Rangamma the widow

of late Odo Nagappa inherited the suit property.

Under the provisions of Section 4(1) of the

aforesaid Act on the death of Odo Nagappa it was

his widow who inherited the property and though

the aforesaid Act came into force, she was

having a limited estate and was not the absolute

owner with the rights to transfer the properties

to any person other than the daughters. Though

in the order of succession, the daughters were

next to the widow of deceased, she did not have

full estate to mean the total rights exercisable

over any property inherited by her and under

Section 10(1)(g) of the aforesaid Act, when she 13 RSA No.25/2009 CW RSA No.26/2009

had daughters, she would not inherit the full

estate. The provisions of Section 10(1) of the

aforesaid Act, though state that she was the

absolute owner of the properties mentioned under

the said provision, Clause (g) reads "property

taken by inheritance by a female from another

female and property taken by inheritance by a

female from her husband or son, or from a male

relative connected by blood except when there is

a daughter or daughter's son of the propositus

alive at the time the property is so inherited."

9. So in cases where the propositus died

leaving behind him his widow and his daughters,

the widow gets a limited estate to mean the

life estate over the properties of her deceased

husband and this is an exception to her right to

inherit the properties absolutely in the absence

of daughter or daughter's son as said in the

aforesaid provision. Even under the provision

of Section 176 of Hindu Law, the properties 14 RSA No.25/2009 CW RSA No.26/2009

inherited by widow subject to certain

restriction on alienation and subject to its

devolving upon the heirs of last owner upon her

death, the position of a widow is that of a

owner and her powers under that character are

however limited but so long as she is alive no

one has vested interest in the succession.

Therefore, Rangamma the widow of Odo Nagappa had

limited estate inherited from her husband and

she had no rights to transfer the said

properties to any other except to her daughters.

10. At this stage, it is relevant to

mention here that on the day when Hindu

Succession Act came into force, though she was

alive as she had gifted her properties to her

two daughters, she do not acquire an absolute

rights over the properties as the gift was in

the year 1954 and the provisions of Section 14

of Hindu Succession Act, 1956 would not apply as

she was not in the possession of the suit 15 RSA No.25/2009 CW RSA No.26/2009

property and the properties inherited by her

from her husband on the date of commencement of

Hindu Succession Act.

11. The suit property was gifted to

Muddamma under the gift deed dated 09.04.1954

and this gift is valid for the reason that

Muddamma was the next reversioner. Whenever a

widow who had the life estate over the property

inherited by her and surrenders the property to

her next reversioner, the daughter would acquire

an absolute interest in the property. On the

date of gift, the right of inheritance of the

daughters would accelerate and relates back to

the date of gift. When the widow Rangamma

parted the property with those who are her next

reversioners, though she is said to be

physically alive on the date of gift, the

consequence is same as if she died a natural

death. Thereby the next reversioner with whom

the property is surrendered or gifted the 16 RSA No.25/2009 CW RSA No.26/2009

inherited property, acquire title to the

property from the date of gift.

12. On this position of law, reliance

could be placed on the decision of Apex Court

reported in AIR 1954 SC 61 (Natvarlal Punjabhai

and another Vs Dadubhai Manubhai and Others). Even earlier as well, this principle was

accepted by the High Court of Patna in a

decision reported in AIR 1958 Patna 115 (Julam

Missir and Others Vs Pradip Missir and Others).

It is held "Surrender by a Hindu widow of her

limited estate means a self effacement of the

widow and amounts to a civil death and complete

extinguishment of the title of the widow in her

husband's estate. Its legal consequence is that

all prior alienations in excess of her powers

are liable to be challenged immediately on her

civil death 'just as they could be impeached

after she had died'." Therefore, Rangamma the

widow had gifted the properties inherited to her 17 RSA No.25/2009 CW RSA No.26/2009

two daughters i.e., to one Nagamma and another

Muddamma, the gift has to be treated as

surrender of all her rights in the properties

inherited to the next reversioners i.e., the

daughters. The mere fact that there was a gift

deed does not change the nature of suit property

as the deed of gift is a transfer of rights in

the property to the next reversioner.

13. The special Bench of Patna High Court

in a decision reported in AIR 1938 Patna 33,

while considering the provisions of Stamp Act,

1899, held as under:

"A Hindu widow was in possession of certain property having rights in it similar to those of a Hindu widow in the property of a deceased husband. She desired to surrender her interest to her son who would succeed to the property in the ordinary course on her death. She executed a deed for that purpose 18 RSA No.25/2009 CW RSA No.26/2009

whereby she transferred the rights to possession of property to her sons."

Considering the facts on hand, in view of

the aforesaid provisions of Mysore Hindu Law of

Women's Rights Act, 1933, the only inference

that has to be drawn is that the widow

surrenders her rights in the properties

inherited by her daughters who are her next

reversioners.

14. Sri.G Balakrishna Shastry, the

learned Counsel for the respondent placed

reliance on the decision of Apex Court reported

in (2009) 15 SCC 66 (Om Prakash and Others Vs

Radhacharan and Others), wherein the Apex Court

took into consideration the provisions of

Section 15(1) of the Hindu Succession Act, 1956.

The facts reveal that Smt.Narayani who was

educated died intestate and as she was employed,

she left huge sum in her provident fund account

and her mother filed an application for grant of 19 RSA No.25/2009 CW RSA No.26/2009

succession certificate under Section 372 of the

Succession Act. The Apex Court considering the

fact that a widow had acquired the properties

from her own income, held that on her death the

provisions of Section 15(1) of Hindu Succession

Act will be applicable to consider the rights of

inheritance and the provision of Section

15(2)(a) are not applicable.

15. The provisions of Section 15 of the

Hindu Succession Act relates to the succession

in case of female Hindus, the property of a

female Hindu dying intestate would devolve

according to the rules set out in Section 16,

under Clause (a) firstly upon the sons and

daughters (including the children of any

predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband and

(c) thirdly upon the mother and father. In case

if a widow inherited any property from her

father or mother, in the absence of any son or 20 RSA No.25/2009 CW RSA No.26/2009

daughter of the deceased widow, devolves not

upon the other heirs referred to in Sub Section

(1) in the order specified therein, but upon the

heirs of the father. So the provisions of

Clause (a) Sub Section (2) of Section 15 apply

to the properties inherited by female Hindu who

has not left a son or daughter, the interest of

female Hindu would be inherited by heirs of the

father and not on her husband, whereas Clause

(b) applies to a case where the female Hindu had

acquired any property inherited from her husband

or from her father-in-law, it devolves upon the

heirs of her husband in the absence of any son

or daughter.

16. So far as suit property that was

inherited by Muddamma, on her death the property

would devolve upon the heirs of her father and

not to the heirs of her husband as she did not

leave any son or daughter at the time of her

death. So the aforesaid principle was taken into 21 RSA No.25/2009 CW RSA No.26/2009

consideration by the Apex Court in the decision

referred to supra and it was held that clause

(a) of Sub Section (2) of Section 15 is an

exception to the general rule that the property

of Hindu Widow shall devolve upon the heirs of

her husband in case if it is self acquired

property or the property inherited from her

husband or father-in-law. The principle laid

down by the Apex Court aforesaid certainly does

not apply to the facts on hand for the sole

reason that Muddamma who inherited the suit

property did not leave a daughter or son and

hence, the provisions of Section 15(2)(a) of the

Hindu Succession Act is applicable for

inheritance and not clause (b) of Section 15(2)

or 15(1) of the Hindu Succession Act.

17. From the aforesaid discussion, it

could be certainly said that the intent of the

Legislature to incorporate Section 15(2)(a) of

the Act is to see that the property originally 22 RSA No.25/2009 CW RSA No.26/2009

belonged to the parents of the deceased female

Hindu should be inherited by only those

descendants of the parents family and such

property shall not go either to the husband or

to his heirs unless the deceased has left behind

her a son or a daughter. In any other cases, it

is the provisions of Section 15(1) of the

aforesaid Act which would be applicable and

therefore, Section 15(2)(a) of the Act is an

exception to the general rule of succession in

case of female Hindus. [Emphasis supplied by me]

18. Now to advert to the facts, though

Rangamma had gifted the suit property to her

daughter Muddamma, as she was the next

reversioner, the gift to the next reversioner is

the surrender in her life time and only

inference that has to be drawn is that it

accelerates the right of inheritance of her

daughter and it relates back to the date of gift

and the right of inheritance of the heirs of her 23 RSA No.25/2009 CW RSA No.26/2009

parents would not change merely because there

was a gift by widow to her next reversioner.

19. The Apex Court had an occasion to

consider the provisions of Section 15(1)(b) and

Section 15(2) of the Hindu Succession Act in a

decision reported in AIR 2002 SC 1 (Bhagat Ram

(D) by LRs. Vs Teja Singh (D) by LRs.). The

facts in the aforesaid judgment are similar to

the facts on hand. One Smt.Santi died in the

year 1960 and the property in question was

inherited from her mother Smt.Kirpo who died on

25.12.1951 and though Smt.Santi had only limited

right over the property, but by virtue of

Section 14 of the Hindu Succession Act, she

became an absolute owner of the property and

therefore, it was contended that on her death,

the property held by her would be inherited by

her LRS. As per rules set out under Section

16(1) of the Act, and the Apex Court held that

though she had acquired an absolute right in the 24 RSA No.25/2009 CW RSA No.26/2009

property by virtue of Section 14(1) of the said

Act, as the property was inherited from her

mother, it held that Section 15(2)(a) would

apply to the facts as the inheritance was

through her deceased mother and despite the

commencement of Hindu Succession Act, absolute

ownership rights of succession would not change

merely because the life estate was converted

into an absolute estate.

20. Though in the case on hand, the gift

was in the year 1954 and under the gift Muddamma

had acquired the absolute interest over the

property and as such in the absence of any son

or daughter, the suit property cannot be

inherited by her husband and on the death of

Muddamma, the inheritance would be as

contemplated under Section 15(2)(a) of the Hindu

Succession Act. Therefore, when Rangappa her

husband had not acquired any interest in the

suit property on the death of Muddamma, he had 25 RSA No.25/2009 CW RSA No.26/2009

no rights to transfer the suit property to

Rangappa, the plaintiff in one suit and

defendant in the other and ultimately on the

death of Muddamma, her sister Nagamma and her

son Thippeswamy being the heirs through her

father or mother are the persons who are

entitled to inherit the suit property. These

provisions of Section 15(2)(a) of the Hindu

Succession Act would be applicable to the facts

on hand and the property on the death of

Muddamma would devolve upon her sister and the

husband has no right to transfer the suit

property under the sale deed.

21. The Courts below applied the

provisions of Section 15(1) of the Hindu

Succession Act and held that on the death of

Muddamma, her husband Rangappa inherits the

property left by deceased Muddamma and the sale

deed executed by him in favour of Rangappa, the

plaintiff in one suit and defendant in another, 26 RSA No.25/2009 CW RSA No.26/2009

is valid. This approach of the Courts below is

contrary to the provision of Section 15(2)(a) of

Hindu Succession Act as the property devolves

upon the heirs of parents of the deceased

Muddamma. The husband would not inherit any

rights and therefore, the sale deed executed is

void-ab-initio. Hence, for the aforesaid

reasons, the provision of Section 15(2)(a) of

the Act which has to be applied to the facts on

hand and Section 14 of the Hindu Succession Act

would not over ride Section 15(2) of the Act.

The principle laid down by the Apex Court in the

decision reported in AIR 2002 SC 1 has been

overlooked by the Courts below, hence, the

appeals deserve to be allowed.

Consequently, the appeals are allowed. The

judgment and decrees of the Courts below are set

aside. The suit instituted by the respondent in

OS No.163/2002 is dismissed, whereas the suit

instituted by the appellants in OS No.8/2004 is 27 RSA No.25/2009 CW RSA No.26/2009

decreed granting the relief of declaration and

injunction as prayed for.

No costs.

Sd/-

JUDGE

Ap/- & *bgn/-