Important Point
Property inherited by a female Hindu is excluded from sub-section (1) of Section 15 of Hindu Succession Act and same would fall under sub-section (2) and as such husband of the Hindu female who dies intestate cannot claim right over such property.

Order

In this case, the respondent has not appeared inspite of service.

Heard learned counsel for the appellant.

2. The short facts are that one Kehar Singh was the owner of the land admeasuring 280 kanals and 18 marlas situated in Village Antowali (now in Pakistan). He died prior to the partition. His widow Kirpo succeeded to his estate as owner. She had two daughters Santi and Indro who came to India. Smt. Kirpo, widow of Kehar Singh was allotted suit land in lieu of the land left behind by her in Pakistan. In 1951 she died leaving behind two daughters who remained in possession of the suit land. Thereafter the Hindu Succession Act, 1956 came into force. Some time in 1961 one of the sister Santi died. In 1963, muta­tion on the entire land was made in favour of Indro, the other sister. On 2nd March, 1963, Indro entered into an agreement to sell of this land in dispute, with the present appellant. It seems that subsequent­ly as Indro tried to retract from the said agreement to sell, the present appellant had to file a suit for specific performance which was decreed in appellant’s favour.

3. This led to the filing of the present suit by one Teja Singh who is the brother of Santi’s pre-deceased husband. The suit was for possession of the half share of the suit land which had fallen to the share of Santi. Teja Singh based his claim on sub-section (1) of Section 15. He claimed to fall in the line of succession under the second clause of this sub-section, namely, Section 15(1)(b)-‘heirs of the husband’. This position is contested by the appellant. Appellant case is, sub-section (2) and not sub-section (1) of Section 15 will apply, on the facts and circumstances of this case. The trial Court decreed the suit holding that Section 15(1) will apply. The appeal was also dismissed and the High Court also dismissed the appeal filed by the appellant. Hence the present appeal by special leave.

4. The short question raised for our consideration is, whether on the facts and circumstances of this case, sub-section (1) or sub-section (2) of Section 15 of Hindu Succession Act 1956 will apply. For ready reference, sub-sections (1) and (2) of Section 15 are quoted hereun­der:-

“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; 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 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 father; and

(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.”

5. On perusal of the two sub-sections we find that their spheres are very clearly marked out. So far sub-section (1), it covers the proper­ties of a female Hindu dying intestate. Sub-section (2) starts with the words ‘Notwithstanding anything contained in sub-section (1)’. In other words, what falls within the sphere of sub-section (2), sub-section (1) will not apply. We find that Section 15(2)(a) uses the words ‘any property inherited by a female Hindu from her father or mother’. Thus property inherited by a female Hindu from her father and mother is carved out