V Ethiraj vs Smt S Sridevi Since Deceased By Her Lrs

This R.F.A. is filed under Section 96 of CPC, against the Judgment and Decree dated 23.05.2011 passed in 3 RFA 1217/11

O.S.64/2002 on the file of the I Addl.City Civil & Sessions Judge, Bangalore City (CCH.No.2), decreeing the suit for partition and separate possession.

This R.F.A. coming on for Hearing on I.A., this day, N. Kumar J., delivered the following:

JUDGMENT

This is the 2nd defendant's appeal against the

Judgment and Decree of the trial Court, which has decreed

the suit in favour of the plaintiff declaring that she is entitled

to the half share in the plaint schedule property.

2. For the purpose of convenience, the parties are

referred to as they are referred to in the original suit.

3. The subject matter of the suit is the northern

portion of the property bearing No.113, 4th Main,

Chamarajapet, Bangalore-560 018, measuring east to west:

27 ft. and north to south: 80 ft., which is morefully described

in the schedule to the plaint and hereinafter referred to as

"the schedule property".

4 RFA 1217/11 4. The schedule property originally belonged to

Smt. Lokamma @ Sharadamma. She had two daughters by

name Smt. Savithramma and Smt. Kanthamma.

Smt. Kanthamma had two daughters viz., Smt. S. Sridevi -

the plaintiff and Smt. Vijaya, and a son by name S.

Prabhakar, the 1st defendant. During the pendency of the

suit, Smt. S.Sridevi died and her daughters by name Smt.

Nandini, Smt. Namitha R., Smt. Jayashree R., and a son by

name Sri. Srinath R., have been brought on record as legal

heirs of deceased plaintiff.

5. The case of the plaintiff is that under a

registered Settlement Deed dated 25.03.1959, Smt.

Lokamma @ Sharadamma gave the schedule property, which

is a northern portion of the property bearing No.130 to her

daughter Smt. Kanthamma. Smt. Kanthamma died

intestate on 15.12.1964, leaving behind two daughters and a

son. After her death, her two daughters and the son are in

peaceful possession and enjoyment of the ground floor 5 RFA 1217/11

portion of the schedule property. They are paying the

Corporation taxes. They are running an educational

institution by name Vijaya Primary School in the shop

located in the front portion. The 2nd defendant-purchaser is

running a flour mill and he is residing in the first floor.

6. Smt. Vijaya, the daughter of Smt. Kanthamma

filed O.S. No.784/1981 on the file of the XV Addl. City Civil

Judge, Bangalore, against the plaintiff and others seeking

partition and separate possession of her 1/3rd share in the

schedule property. Unfortunately, she died intestate during

the pendency of the said suit, leaving behind, her husband-

Dr.B.K.Sundara Rajan as her only legal heir and he came on

record and prosecuted the suit. Ultimately, O.S.

No.784/1981 was decreed on 21.07.1990. The plaintiff, the

1st defendant and Dr. B.K.Sundara Rajan were held to be

entitled to the 1/3rd share in the schedule property. The 1st

defendant, being aggrieved in respect of the portion of the

decree granting of share to Dr. B.K.Sundara Rajan, filed 6 RFA 1217/11

R.F.A. No.473/1990 on the file of this Court contending that

he is not entitled to any share in the schedule property in

view of the specific bar contained in Section 15(2)(a) of the

Hindu Succession Act, 1956. It is only the plaintiff and

himself who are entitled for equal share in the schedule

property. The appeal was allowed by this Court on

11.08.1998 negativing the claim of Dr. B.K.Sundara Rajan.

In the result, the plaintiff and the 1st defendant became

entitled to half share each in the schedule property in terms

of Section 15 (2)(a) r/w Section 16 of the Hindu Succession

Act, 1956. The 1st defendant behind the back of the plaintiff

suppressing the aforesaid facts, made an application to

Bruhat Bangalore Mahanagara Palike, seeking transfer of

khatha in respect of the schedule property from the name of

Smt. Kanthamma to his name. The Palike authorities

without notice to the plaintiff and without holding any

enquiry, transferred the khatha of the schedule property

from the name of Smt. Kanthamma to the name of the 1st

defendant. Being aggrieved by the same, the plaintiff filed a 7 RFA 1217/11

review petition, which came to be dismissed on 05.09.2001.

Aggrieved by the same, the plaintiff filed W.P.

No.46100/2001. This Court by its Order dated 14.12.2001,

stayed the mutation proceedings made in the name of the 1st

defendant. The 2nd defendant despite being aware of the

said facts, purchased the schedule property from the 1st

defendant on 12.07.2001 for a sum of Rs.21,00,000-00,

which is ridiculously low and totally wanting in bona fides.

The whole transaction is fraudulent and nominal and not

binding on the plaintiff. Therefore, the plaintiff was

constrained to file the suit for partition and separate

possession of her half share in the schedule property.

7. After service of summons, the defendants

entered appearance through their counsel and filed their

separate written statements, contesting the claim.

8. The 1st defendant submitted that the plaintiff

claims the right under the Settlement Deed dated 8 RFA 1217/11

25.03.1959, which was subsequently cancelled by

registration of Cancellation Deed, dated 19.05.1978 by Smt.

Lokamma @ Sharadamma. Therefore, there is no

justification for the plaintiff to claim any right under the said

Settlement Deed dated 25.03.1995 as it is stood cancelled as

aforesaid on 19.05.1978. Smt. Lokamma @ Sharadamma

has left a registered Will dated 11.09.1981. Smt. Lokamma

@ Sharadamma expired on 26.12.1981. The registered Will

executed by Smt. Lokamma @ Sharadamma is accepted and

acted upon by the plaintiff.

9. The 1st defendant as per the registered Will

executed by Smt. Lokamma @ Sharadamma became the

absolute owner of the schedule property. The plaintiff is also

enjoying the property, which was bequeathed in her favour

by late Smt. Lokamma @ Sharadamma. Therefore, she

cannot question the 1st defendant, who is one of the

beneficiaries of the Will. As per the registered Will, the

bifurcation of the property has taken place in the Office of 9 RFA 1217/11

the Corporation at the City of Bangalore and the parties are

paying the corporation taxes as per the assessment with

respect to their respective portions. The plaintiff is in

possession and enjoyment of only the portion of the property

measuring 28 x 30 ft., mentioned as 'B' schedule. The

plaintiff has deliberately suppressed the recital of the Will

making it clear that the property measuring 27 x 80 ft. is

bequeathed in favour of the 1st defendant. The 1st defendant

has all the legal right, title and liberty to deal with the same

in any manner as deems fit. The plaintiff has no manner of

right, title or interest in the property sold in favour of the 2nd

defendant by the 1st defendant. Therefore, the suit is liable

to be dismissed in limine.

10. The 2nd defendant filed his written statement

contending that he is not aware of any proceedings initiated

by Smt. Vijaya in O.S. No.784/1981. The said suit was

between the 1st defendant and Smt. Vijaya and he has

nothing to do with said Smt. Vijaya. The 2nd defendant is 10 RFA 1217/11

not aware of the further litigation of this Court in R.F.A.

No.473/1990. The plaintiff has mentioned the execution of

the Settlement Deed, but not the subsequent cancellation of

the same by the executant herself. The 2nd defendant is not

aware of the writ petition filed by the plaintiff against the 1st

defendant, against the Order transferring the khatha in the

name of the 1st defendant in W.P. No.46100/2001. The

plaintiff has neither 50% share nor any bit in the schedule

property and the 1st defendant is the absolute owner of the

entire property measuring 27 x 80 ft. as per the recitals in

the registered Will executed by late Smt. Lokamma @

Sharadamma. The 2nd defendant is the bona fide purchaser

of the schedule property in question and he is the sole and

absolute owner. After obtaining legal opinion, he has

completed the sale transaction and therefore, he sought for

dismissal of the suit.

11. The schedule property was given to 1st defendant

under the aforesaid Will and on the basis of the said Will the 11 RFA 1217/11

1st defendant got the katha of the schedule property entered

in his name. He was paying Corporation tax and thus he was

the absolute owner of the suit schedule property. He sold the

same in favour of 2nd defendant by a registered sale deed

dated 12.07.2001. Therefore on the date of filing of the suit,

the suit property cannot said to be in joint possession of the

plaintiff and the defendants. During the life time of Smt.

Lokamma her grand daughter by name Smt. Vijaya,

daughter of Kanthamma filed a suit in O.S. No. 784/1981

against Smt. Lokamma, the plaintiff and the 1st defendant

herein. Lokamma filed written statement in the said suit

stating that the settlement deed dated 25.03.1959 was

obtained by fraud and therefore the same was cancelled

subsequently, under the registered deed of cancellation

dated 19.05.1978. In the suit filed, the plaintiff and 1st

defendant adopted the written statement filed by Smt.

Lokamma by filing a memo. Therefore, both the plaintiff and

1st defendant admitted the cancellation deed dated

29.05.1978 executed by Smt. Lokamma. During the 12 RFA 1217/11

pendency of the suit Smt. Lokamma expired. Thereafter,

plaintiff and 1st defendant filed written statement claiming

their right under the registered will dated 11.09.1981

executed by Smt. Lokamma. Therefore, it is not open to the

plaintiff now to contend that Smt. Lokamma died intestate

as alleged in para 3 of the plaint. The suit filed by Smt.

Vijaya though decreed by the trial Court, was set aside by

the Hon'ble High Court in RFA 473/1990 filed by the 1st

defendant. Smt. Vijaya expired during the pendency of the

suit and therefore her husband alone came on record as

legal representative of Smt. Vijaya. Therefore, the High Court

held the husband is not entitled to a share of his wife Smt.

Vijaya and set aside the decree passed by the trial Court in

O.S. No.784/1981. During the pendency of the said appeal

the plaintiff herein tried to put up construction in the

property. Therefore first defendant filed O.S. No.1716/1998

for the relief of injunction, in which the present plaintiff filed

written statement claiming right under the Will dated

11.9.1981, therefore, the plaintiff has not come to the Court 13 RFA 1217/11

with clean hands. Even though the plaintiff was aware of

the registered Will executed by late Smt. Lokamma and as

per the Will parties have acted and enjoying the properties,

plaintiff has filed the present suit against 1st defendant

seeking for a partition, though the plaintiff has no right, title

or interest over the suit schedule property. Therefore, he

sought for dismissal of the suit.

12. On the aforesaid pleadings, the trial Court

framed as many as eight issues. The plaintiff's eldest

daughter Dr. Nandini was examined as PW 1. She also

produced 15 documents which were marked as Ex. P 1 to P

15. On behalf of the defendants, 1st defendant did not choose

to enter in to witness box. The purchaser was examined as

DW 1. He has produced 12 documents which were

marked as Ex. D 1 to D 12.

13. The trial Court on appreciation of the oral and

documentary evidence on record has held, after the death of 14 RFA 1217/11

Smt. Kanthamma, the plaintiff, 1st defendant and another

daughter Smt. Vijaya became joint owners in possession of

the suit schedule property. The first defendant has failed to

prove the settlement deed dated 25.03.1959 got cancelled on

19.05.1978 by executing a registered cancellation deed.

Further defendants 1 and 2 have failed to prove the will

dated 11.09.1991 said to have been executed by Smt.

Lokamma. The execution of sale deed by first defendant in

favour of second defendant on 12.07.2001 is in dispute.

Second defendant has failed to prove that he is a bona fide

purchaser of the suit schedule property from first defendant

for valuable consideration. Therefore, the trial Court decreed

the suit of the plaintiff as prayed for. Aggrieved by the said

judgment and decree of the trial Court, second defendant

alone has preferred this appeal.

14. Learned Counsel for the appellant-2nd defendant

assailing the impugned judgment and decree of the trial

Court contended that the plaintiff claims right under the 15 RFA 1217/11

registered settlement deed. The said registered settlement

deed was cancelled by a registered document dated

19.05.1978 and therefore the plaintiff has no right in respect

of the suit schedule property. After cancellation of the

settlement deed Smt. Lokamma original owner executed a

Will dated 11.09.1981 bequeathig the schedule property in

favour of first defendant and a small portion was also

bequeathed in favour of the plaintiff. In the suit filed by

Smt. Vijaya in O.S. No. 784/1981 first defendant and

plaintiff filed a common written statement contending that

the settlement deed is cancelled and the Will is executed.

Therefore, it is too late in the day for the plaintiff to contend

that she is entitled to share in the property by virtue of

settlement deed. The appellant who is a bona fide

purchaser for valuable consideration, was not aware of the

proceedings in O.S. 784/2981 and RFA 473/1990. When

first defendant handed over the Will, khatha endorsement,

tax paid receipt and he was in possession of the property, he

took note of the same and purchased the schedule property 16 RFA 1217/11

and therefore same is valid and it cannot be found fault

with.

15. Per contra, learned Counsel for the plaintiff

submitted that once the registered settlement deed was

executed by Smt. Kanthamma, she had no right to execute

cancellation deed, as such said cancellation deed is of no

value. 0n the day she executed the Will, she was not the

owner and therefore the said Will does not confer any right

on the first defendant. In fact the original of the said Will did

not see the light of the day, not produced before the Court

and not proved in accordance with law. Therefore, the trial

Court was justified in holding, the Will is without any value.

However, he submits the first defendant is a party to the suit

in O.S. 784/1981, the suit was decreed granting 1/3rd share

to the plaintiff and first defendant. The first defendant

preferred an appeal in RFA 473/1990 challenging grant of

share to defendant No.3 in this case who is the husband of

Smt. Vijaya on the ground that by virtue of Section 15(2)(a) 17 RFA 1217/11

defendants 1 and 2 are entitled to ½ share. His contention

was accepted, appeal was allowed and it was declared that

the plaintiff and first defendant alone are entitled to half

share each in the schedule property. Defendant No.2 in the

course of his evidence has admitted that he has seen the

judgment copy of O.S. No.7841981 and RFA 473/1990. But,

still he purchased the property. Therefore, it is too late for

him to contend that he is a bona purchaser for valuable

consideration without notice of these proceedings. The trial

Court on appreciation of oral and documentary evidence on

record has rightly decreed the suit of the plaintiff and

therefore no case for interference is made out.

16. The third respondent herein Dr. B.K.Sundara

Rajan, the husband of late Smt. Vijaya was not made a party

to the suit. Therefore at the stage of argument of the suit, he

filed an application on 13.04.2011 purporting to be under

Section 151 of CPC read with Order 1 Rule 8(3) and Order 1

Rule 10 CPC and Order 2 Rule 2 and Order 7 Rule 11(d) of 18 RFA 1217/11 CPC, seeking dismissal of the suit as barred by res judicata,

under Order 2 Rule 2 and Order 7 Rule 11(d) CPC in view of

the preliminary decree passed in O.S.No.784/81, RFA

473/90 and P & SC 25/08. In the affidavit filed in support

of the said application, he contended referring to the

previous proceedings in O.S.No.784/81, FDP 58/1990 and

RFA 473/1990, the present suit is not maintainable in law.

He contended that he has obtained a probate in P&SC 25/08

on 17.01.2011. The trial Court considered the said

application and held that in P&SC proceedings, there is no

reference to RFA 473/1990. In the suit O.S.784/81 there is

no mention about the Will alleged to have been executed by

Smt. Vijaya in his favour. Therefore, once in RFA 473/1990

this Court has held that the third respondent has no share

in the schedule property, by mere obtaining a probate of the

Will he would not get any right in the schedule property.

Therefore it rejected the application as meritless while

passing the judgment and decree. It is in this background

he filed an application before this Court to implead himself. 19 RFA 1217/11

His application was allowed by order dated 28.02.2012.

Therefore, he was also heard. He has also made an

application for remand of the matter to the trial Court to

enable him to establish his right to the schedule property.

17. In the light of the aforesaid facts and rival

contentions of the parties the points that arise for our

consideration are:

1) Whether the findings of the trial Court that the cancellation deed executed by Smt. Lokamma cancelling the earlier settlement ded dated 25.03.1959 is void, requires interference?

2) Whether the finding of the trial Court that under the sale deed dated 11.09.1981 first defendant acquires no right to the schedule property calls for interference?

3) Whether the third respondent is entitled any share in the suit schedule property?

20 RFA 1217/11

POINT NO.1

18. The facts are not in dispute. Smt. Lokamma

had two daughters by name Kanthamma and Savithramma.

She was the absolute owner of the Property bearing No.113,

4th Main, Chamarajpet, Bangalore. She executed a registered

settlement deed dated 25.03.1959 settling northern portion

of the said property which is the schedule property in favour

of Kanthamma, southern portion was given to Smt.

Savithamma. Smt. Kanthamma had two daughters namely

Vijaya and Sridevi and a son by name S. Prabhakar-

defendant No.1. Kanthamma died on 15.12.1964 intestate.

It is after the death of Smt. Kanthamma cancellation deed

said to have been executed on 19.05.1978 cancelling the

settlement deed dated 25.03.1959 on the ground of fraud,

undue influence. That Smt. Lokamma realized the fraud and

undue influence practiced on her after nearly 29 years from

the date of execution of the settlement deed. On the day of

the execution of the cancellation deed Kanthamma was not

alive. By virtue of the settlement deed schedule property 21 RFA 1217/11

vests with Kanthamma. On the date of execution of the

document, she had become absolute owner of the schedule

property. Once, the settlement deed was executed in favour

of her daughter, Lokamma lost her right, title and interest in

the schedule property. On the day she executed cancellation

deed, she had no right in the property. The registered

settlement deed cannot be cancelled by executing a

cancellation deed. If at all the said document is to be

canceled, it had to be done under the provisions of Specific

Relief Act, by approaching a competent civil Court for

cancellation of such document. The fact of fraud, undue

influence, mistake or any other ground which is alleged for

cancellation of the said documents being proved, the Court

may order for cancellation. That is the only mode known to

law to cancel the registered settlement deed. Otherwise the

parties by consent has to annul the settlement by executing

the document of reconveyance, the settlee can give up her

right in favour of the settlor. Admittedly, no suit was filed

against cancellation. Therefore, by execution of cancellation 22 RFA 1217/11

deed, the registered settlement deed dated 25.03.1959 did

not stand cancel. Unilaterally the settlor cannot execute a

cancellation deed of settlement. Therefore, the trial Court

was fully justified in holding so. In the suit OS No.784 of

1981, this plea was raised by Smt. Lokamma and the 1st

defendant and it was negated. This Court in RFA No. 473 of

1990 has affirmed the said finding. The second defendant is

claiming title to the property under the first defendant.

Therefore, he is also equally bound by the said finding and

he is estopped from re-agitating the said issue. In fact, the

first defendant has accepted the judgment and has not

preferred any appeal challenging the said finding. The said

finding operates as res judicata. There is no infirmity in the

said finding recorded by the trial Court and we, therefore

affirm the same.

POINT NO.2

19. The said Lokamma said to have executed a Will

dated 11.09.1981 bequeathing the suit schedule property in 23 RFA 1217/11

favour of first defendant and a small portion in favour of the

plaintiff. On the day Lokamma said to have executed the

Will, Lokamma was not owner of the said property. Therefore

even if the Will is proved, as she was not owner of the

property, under the Will she could not have bequeathed any

title to the legatee. Therefore, the trial Court has rightly held

the said Will has no value in the eye of law. The original will

was not produced. Attesting witnesses of the Will were not

examined to prove the will. Therefore, the Will is not proved

in accordance with law.

20. It is also on record Kanthamma's daughter

Vijaya, after the death of her mother filed O.S. No.748/1981

for partition and separate possession of her 1/3rd share in

the schedule property against Lokamma her grandmother,

the plaintiff as well as S.Prabhakar-defendant No.1 in the

suit. In the said suit Smt. Lokamma set up a plea that after

cancellation of settlement deed, she has become owner again

and in turn she executed a Will in favour of Sri Prabhakar- 24 RFA 1217/11

defendant No.1 on 11.09.1981 and therefore Smt. Vijaya has

no right in the property. In the said proceedings the plaintiff

herein and defendant No.1 supported their grandmother,

who had set up the deed of cancellation and also the Will.

During the pendency of the proceedings Smt. Vijaya died and

her husband, was brought on record as respondent No.3.

He prosecuted the suit. The trial Court after trial held the

cancellation deed was not valid, the Will dated 19.09.1981

has no value and then it decreed the suit of the plaintiff

granting 1/3 share to the plaintiff and 1/3rd share to

defendant No.1 and 1/3 share to the 3rd defendant herein.

Defendant No.1 preferred an appeal in RFA 473/1990 before

this Court contending that in view of Section 15(2)(a) of the

Hindu Succession Act, 1956 the husband does not inherit

the property under Section 15(1) of the Act as the said

property was inherited by Smt. Vijay from her mother.

Accepting the said contention the decree of the trial Court to

that extent was set aside and it was declared that the

plaintiff herein and defendant No.1 herein are entitled to half 25 RFA 1217/11

share each. Husband of Smt. Vijaya, the 3rd respondent has

no share in the property. He did not chose to challenge the

said decree of this Court which has attained finality. It is

after the said judgment and decree defendant No.2 has

purchased the plaint schedule property from defendant No.1

under a registered sale deed dated 12.7.2001. The subject

matter of Will is the suit schedule property in which

defendant No.1 has got half share. The evidence on record

shows defendant No.1 got khatha of the property transferred

to his name on the basis of the Will, exclusively in his name.

He has sold the property to defendant No.2. The evidence on

record shows defendant No.2 purchaser was aware of the

proceedings in O.S. No.784/1981 and R.F.A. No. 473/1990.

He has purchased the entire property from defendant No.1

though he was aware that the 1st defendant was only owner

of half portion of the suit schedule property. Even other wise,

the purchaser ought to have made necessary enquiry and

only after satisfying about the title of the property he should

have purchased the same. Therefore it is not open for him 26 RFA 1217/11

now to contend that he is a bona fide purchaser without

notice of the aforesaid proceedings and he is entitled to the

entire property. In that view of the matter the trial Court was

justified in holding, defendant No.2 cannot claim absolute

title to the schedule property. He can only claim half share in

the schedule property and therefore no interference in the

said finding is made out.

POINT NO.3

21. Third respondent is the husband of Smt. Vijaya

who is the daughter of Smt. Kanthamma. As set out above,

Smt. Vijaya had filed a suit in O.S.No.784/1981 after the

death of her mother claiming 1/3rd share in the suit

schedule property. During the pendency of the suit, she

died and the 3rd respondent, her husband, came on record,

he prosecuted the matter. The suit was decreed granting

him 1/3rd share. The first defendant herein preferred RFA

473/1990 contending that in view of Section 15(2)(a) of the

Hindu Succession Act, 1956, he is not entitled to the said 27 RFA 1217/11

share as the share which Smt. Vijaya inherited from her

mother has to revert back to her mother's family. After

hearing, the appeal was allowed. The claim of the 3rd

respondent was negated. The said judgment of this Court

has attained finality. However, the 3rd respondent is still

contending that notwithstanding the said judgment, as he

has obtained probate of the Will of his wife, he is entitled to

1/3rd share in the suit property. The application filed by him

in the suit came to be dismissed as merit less. However, his

application filed in this appeal came to be allowed and he is

arrayed as the 3rd respondent. Again he is reagitating his

claim to 1/3rd share of his wife in the schedule property.

22. Section 15 of the Hindu Succession Act, 1956

provides for the rules of succession in case of female Hindu.

Section 15 reads as under:

"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,--

28 RFA 1217/11 (a) firstly, upon the sons and the daughters (including the children of any predeceased 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;

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 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; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law 29 RFA 1217/11

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 husband."

23. This Section fell for consideration by the Apex Court in

several judgments. The Apex Court in the case of BHAGAT

RAM (DEAD) BY L.RS Vs. TEJA SNGH (DEAD) BY LRS.

reported in (2002) 1 SCC 210 held as under:

8. We do not find any merit in the contention raised by the Counsel for the respondents.

Admittedly, Smt. Santi inherited the property in question from her mother. If the property held by a female was inherited from her father or mother, in the absence of any son or daughter of the deceased, including the children of any pre- deceased son or daughter, it would only devolve upon the heirs of the father and, in this case, her sister Smt. Indro was the only legal heir of her father. Deceased Smt. Santi admittedly inherited 30 RFA 1217/11

the property in question from her mother. It is not necessary that such inheritance should have been after the commencement of the Act. The intent of the Legislature is clear that the property, if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So also under clause (b) of sub-Section 2 of Section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. We do not think that the fact that a female Hindu originally had a limited right and later, acquired the full right, in any way, would alter the rules of succession given in sub-section 2 of Section 15.

13. The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the 31 RFA 1217/11

intent and purpose of sub-Section 2 of Section 15, which gives a special pattern of succession.

24. The Apex Court in the case of V. DANDAPANI

CHETTIAR V. BALASUBRAMANIAN CHETTIAR,(2003) 6

SCC 633, considered the extent and nature of the rights

conferred by this section and held as follows:-

"9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in sub-section (1). Two exceptions, both of the same nature are engrafted by sub-section (2) on the otherwise uniform order of succession prescribed by sub-section (1). The two exceptions are that if the female dies without leaving any issue, then (1) in respect of the property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five Entries (a) to (e), but upon the heirs of the father;

and (2) in respect of the property inherited by her 32 RFA 1217/11

from her husband or father-in-law, it will devolve not according to the order laid down in the five Entries (a) to (e) of sub-section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to the property 'inherited' from the father, mother, husband and father-in-law of the female Hindu and do not affect the property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation in confined to the case of dying without leaving a son, a daughter or children of any predeceased son or daughter.

10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would 33 RFA 1217/11

devolve as prescribed under Section 15(2)(a). If it is inherited by her from her husband or father- in- law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including sthe children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father."

25. Again the Apex Court in the case of OMPRAKASH AND

OTHERS Vs. RADHACHARAN AND OTHERS reported in

(2009) 15 SCC 66, held as under:

8. ......Sub-Section (1) of Section 15 lays down the ordinary rule of succession. Clause (a) of sub-

Section (2) of Section 15 providing for a non- 34 RFA 1217/11

obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased from her parents' side, on her death the same would relate back to her parents' family and not to her husband's family. Similarly, in a case where she had inherited some property from her husband or from her husband's family, on her death the same would revive to her husband's family and not to her own heirs.

9. The law is silent with regard to self-

acquired property of a woman. Sub-section (1) of Section 15, however, apart from the exceptions specified in sub-section (2) thereof does not make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents. In that view of the matter, we are of the opinion that sub-Section (1) of Section 15 of the Act would apply and not the sub-Section (2) thereof.

35 RFA 1217/11

26. The Apex Court in the case of S.R. SRINIVASA AND

OTEHRS VS. S. PADVATHAMMA reported in (2010) 5 SCC

274, held as under:

34. A perusal of the aforesaid provisions would show that the basic aim of Section 15(2) is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers.

15. The report of the Joint Committee which was accepted by Parliament indicates that sub-

section (2) of Section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand that they should not pass. That means the property should go in the first instance to the heirs of the husband or to the source from where it came."

36 RFA 1217/11

27. It is also necessary to notice the object behind this

provision. In fact, the Hindu Succession Bill 1974 as

originally introduced in the Rajya Sabha did not contain any

clause corresponding to sub-Section (2) of Section 15. It

came to be incorporated on the recommendations of the

Joint Committee of the two Houses of Parliament. The

reason given by the Joint Committee is found in Clause 17 of

the Bill.

"While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that, properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass."

37 RFA 1217/11 28. Therefore the above section propounds a definite

and uniform scheme of succession to the property of a

female Hindu who dies intestate after the commencement of

the Act. Then Sub-Section (1) of Section 15 lays down the

ordinary rule of succession. This section groups the heirs of

a female intestate into five categories described as Entries (a)

to (e) and specified in sub-section (1). Two exceptions, both

of the same nature are engrafted by sub-section (2) on the

otherwise uniform order of succession prescribed by sub-

section (1). Sub- Section (2) of Section 15 starts with a non-

obstante clause, carving out the said two exception. The

two exceptions are that if the female dies without leaving any

issue, then (1) in respect of the property inherited by her

from her father or mother, that property will devolve not

according to the order laid down in the five Entries (a) to (e),

but upon the heirs of the father; and (2) in respect of the

property inherited by her from her husband or father-in-law,

it will devolve not according to the order laid down in the five

Entries (a) to (e) of sub-section (1) but upon the heirs of the 38 RFA 1217/11

husband. The two exceptions mentioned above are confined

to the property 'inherited' from father, mother, husband and

father-in-law of a female Hindu and do not affect the

property acquired by her by gift or by device under a Will of

any of them. When a property is devolved upon a deceased

from her parents' side, on her death the same would revert

back to her parents' family and not to her husband's family.

Similarly, in a case where she had inherited some property

from her husband or from her husband's family, on her

death, the same would revert back to her husband's family

and not to her own heirs. The present Section 15 has to be

read in conjunction with Section 16 which evolves a new and

uniform order of succession to her property and regulates

the manner of its distribution. In other words, the order of

succession in case of property inherited by her from her

father or mother, its operation in confined to the case of

dying without leaving a son, a daughter or children of any

predeceased son or daughter. In fact, the source from which

she inherits the property is always important and that would 39 RFA 1217/11

govern the situation. Otherwise persons who are not even

remotely related to the person who originally held the

property would acquire rights to inherit that property. That

would defeat the intent and purpose of sub-Section (2) of

Section 15, which gives a special pattern of succession.

29. In the light of the aforesaid legal position, the

property which the third respondent is claiming belongs to

his wife which she inherited from her mother. On her death

as issue-less, the said property would revert back to her

parents family and not to her husband. She acquired rights

to the property by inheritence from her mother. In view of

Section 15(2)(a), the property will not devolve according to

the order laid down in 5 Entries (a) to (e) of sub-Section (1) of

Section 15. It falls within the exception carved out in clause

(a) of sub-Section 2 of Section 15. Therefore, her husband,

the third respondent herein would get no right in the said

property. Therefore he gets no right under the Will or under

the probate. A probate does not confer title in the property 40 RFA 1217/11

to the person in whose favour the probate is granted. The

said probate was obtained by the third respondent by

suppressing the judgment and decree passed by this Court

in RFA 473/90 to which the third respondent was a party.

In the said proceedings it is declared that the third

respondent has no share in the schedule property. The said

judgment has attained finality as the third respondent has

not chosen to challenge the said judgment and decree. The

said judgment and decree operates as res judicata. He

cannot be permitted to reagitate his right, which is finally

adjudicated between the same parties. Therefore, when the

third respondent has no right in the schedule property, when

no right is conferred under the probate and when his right to

the property is already adjudicated by this Court in RFA

473/90, the question of remanding the matter again to the

trial Court would not arise as the trial Court would be bound

by the judgment and decree passed by this Court in RFA

473/90. Therefore the third respondent is not entitled to 41 RFA 1217/11

any share in the suit schedule property. His application for

remand also stands dismissed.

30. In view of the aforesaid discussion, we do not

find any merit in this appeal. Accordingly it is dismissed.

Parties to bear their own costs.

Sd/-

JUDGE

Sd/-

JUDGE

Ksm/-Vb/-