The mother of a male Hindu dying intestate inherits property as a full owner, and her right to partition is maintainable under the Hindu Succession Act, 1956, despite the 2015 amendment.

JUDGMENT :

M.A.Abdul Hakhim, J.

1. The appellants are the defendants in a suit for partition. They are the widow and two daughters of the deceased Kottayil Devadasan. The plaintiff in the suit is the mother of the said Devadasan for partitioning the plaint schedule properties left behind him.

2. The Trial Court decreed the suit passing a Preliminary Decree declaring that the plaintiff and the defendants 1 to 3 are entitled to get ¼ share each in Plaint B Schedule Item No.1 to 4 properties with a reservation regarding the house and the appurtenant land in Plaint B Schedule Item No.1 property in favour of the first defendant subject to payment of owelty to be fixed in final decree proceedings.

3. Though the defendants filed an Appeal before the First Appellate Court, the same was dismissed, confirming the Preliminary Decree passed by the Trial Court.

4. The substantial contention addressed from the side of the defendants before the Trial Court as well as the First Appellate Court is that as per Section 15(2)(c) of the Hindu Succession Act, 1956, which was inserted as per the Hindu Succession (Kerala Amendment) Act,2015 by the State Legislature, the plaintiff will not get absolute right over the property of her predeceased son to claim partition. The Trial Court, as well as the First Appellate Court, found that Section 15 (2)(c) has application only in cases where the mother died intestate after getting the property of the predeceased son and that so long as the mother is alive, Section 15(2) (c) has no application at all.

5. This Regular Second Appeal is admitted on the following substantial questions of law.

1.Whether the mother of a male Hindu dying intestate obtains an indefeasible right over the property of the deceased son notwithstanding the enactment of Hindu Succession (Kerala Amendment) Act, 2015?

2.Whether mother of a male Hindu dying intestate obtains a full estate and a partible interest in the properties in view of Hindu Succession (Kerala Amendment) Act, 2015?

3.Whether the dismissal of I.A.No.6/2022 by the First Appellate Court is legal and proper?

6. Though the Appeal is of the year 2023, the same was taken for final hearing on a priority basis since the Senior Counsel for the respondent Smt. Sumathi Dandapani pressed for an early hearing citing the age of the respondent. The learned Senior Counsel for the appellants, Sri. P.B. Krishnan also expressed that he is agreeable to an early hearing. Considering the facts that the only question to be considered is the nature of the right of the mother over the property inherited from her predeceased son with reference to the newly inserted Section 15(2)(c) of the Hindu Succession Act and that it is better to finalize the said legal issue at the earliest as it may arise in several other similar cases, this Court allowed early hearing of the appeal.

7. I heard the learned Senior Counsel for the appellant, Sri.P.B.Krishnan, instructed by Adv.Sri.Manu Vyasan Peter and the learned Senior Counsel for the respondent Smt. Sumathi Dandapani, instructed by Adv.Sri.Millu Dandapani.

8. Since the answer to the Substantial Question of Law No.1 will cover answers to Substantial Questions of Law Nos.2 & 3, all of them are considered together. The only question to be considered in this Regular Second Appeal is whether the mother of a male Hindu dying intestate obtains an indefeasible right over the property of the deceased son notwithstanding the enactment of Hindu Succession (Kerala Amendment) Act, 2015 inserting Section 15(2) (c) to the Hindu Succession Act.

9. The learned Senior Counsel cited the decision of the learned Single Judge of this Court in Binu and Ors. v. Valsala [2022 KHC 4562] in which Section 15(2) (c) is considered, and it is found that on the death of the son, the mother inherits a share in his property as a full owner, and a suit for partition is filed by the mother of a predeceased son is perfectly maintainable. The learned Senior Counsel pointed out that even though the said de