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HIGH COURT OF KARNATAKA
B. SREENIVASE GOWDA, J.
V. Ethiraj
Versus
S. Sridevi & Others
First Appeal No. 1217 of 2011
Decided on : 07.06.2013
Text1
HINDU SUCCESSION ACT, 1956 - Section 15: [N. Kumar & B. Sreenivase Gowda, JJ] Succession in case of female Hindu - wife inheriting property from her mother dying issue less - Held, 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 is 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 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.
Therefore the property which the respondent husband 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 inheritance 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 respondent would get no right in the said property and he gets no right under the Will of wife or under the probate.
HINDU SUCCESSION ACT, 1956 - Section 15: [N. Kumar & B. Sreenivase Gowda, JJ] Property belonging to female Hindu female - Wife inherited property from her mother - Wife died issueless - Held, Property would revert back to her parents family and not to her husband.
. INDIAN SUCCESSION ACT, 1925 - Section 63: [N. Kumar & B. Sreenivase Gowda, JJ] Will - Testator was not the owner of the property on the day of execution of the Will - Held, Testator could not have bequeathed any title to legatee even if the said Will was proved.
. INDIAN SUCCESSION ACT, 1925 - Section 63: [N. Kumar & B. Sreenivase Gowda, JJ] Will - Validity - On the day of execution of Will the testator was not owner of property - Held, Testator could not have bequeathed any title to legatee even if said Will was not proved.
INDIAN SUCCESSION ACT, 1925 - Section 276: [N. Kumar & B. Sreenivase Gowda, JJ] Probate - It does not confer title in property to person in whose favour probate is granted.
TRANSFER OF PROPERTY ACT, 1882 - Section 9: [N. Kumar & B. Sreenivase Gowda, JJ] Cancellation of Registered Settlement deed - Held, Once, the settlement deed was executed by mother in favour of her daughter, Mother lost her right, title and interest in the schedule property. Subsequently on the day the mother 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 cancelled, 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 re-conveyance, the settlee can give up her right in favour of the settlor. Admittedly, no suit was filed against cancellation. Therefore, by execution of cancellation deed, the registered settlement deed did not stand cancelled. Unilaterally the settlor cannot execute a cancellation deed of settlement.
TRANSFER OF PROPERTY ACT, 1882 - Section 9: [N. Kumar & B. Sreenivase Gowda, JJ] Cancellation of Registered Settlement Deed - Settlement deed executed by mother in favour of daughter - Subsequently on the same day the mother executed a cancellation deed - Held, Registered settlement deed cannot be cancelled by executing a cancellation deed. If at all the said document is to be cancelled, 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. Unilaterally the settlor cannot execute a cancellation deed of settlement.
TRANSFER OF PROPERTY ACT, 1882 - Section 54: [N. Kumar & B. Sreenivase Gowda, JJ] Sale - Purchaser purchased the entire property from defendant though he was aware that defendant was only owner of half portion of the suit schedule property - Held, He cannot claim to be bona fide purchaser without notice of proceedings relating to said property and cannot claim absolute title to entire property.
1. This is the 2nd defendants 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 shore 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. 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 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 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 Bra hat 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 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
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