Both, the Trial Court and the First Appellate Court concluded that though the property was partitioned between Eshwaramma, her father and her brothers, Eshwaramma’s share in it was by inheritance. Eshwaramma’s property would therefore revert to her brothers and not her husband in accordance with the provisions of Section 15(2) of the Hindu Succession Act, 1956 (“HSA”).

Section 15 of HSA, which deals with the general rules of succession in the case of female Hindus, states the following:

• The property of a female Hindu dying intestate shall devolve according to the rules set out under section 16:
  • firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
  • secondly, upon the heirs of the husband;
  • thirdly, upon her mother and father;
  • fourthly, upon the heirs of the father; and
  • lastly, upon the heirs of the mother.

Section 15(2) states: 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 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 the sub-section (1) in the order specified therein, but upon the heirs of the husband.

Eshwaramma’s brothers contended that in this case, their sister was not the original owner of the property but had inherited it from her father. Now since she had died without any offspring, without making a will and with her husband as beneficiary, the Trial Court and the First Appellate Court relied on the provisions of Section 15(2) (a) above to deprive her widowed husband of any share in the property.

Basangouda’s submission before the Court was that only if a female Hindu has inherited the property by succession, the exception carved out in section 15(2) of the HSA would apply. Section 15(2) would not apply if a female Hindu acquired the property as a gift, sale, or such other manner.

Basangouda further submitted that Eshwaramma had acquired the property based on a registered Partition Memorandum, by virtue of which she became an absolute owner of the property. The Trial Court and the First Appellate Court erred in holding that the property would revert to Eshwaramma’s brothers.

The Court examined the Partition Memorandum wherein the parties had declared that the property falling to their respective share would become their absolute property and other parties rights and interests would stand relinquished. Eshwaramma had therefore acquired the property on the basis of the Partition Memorandum, which cannot be construed as inheritance.

Legislature used the term inheritance considering intestate succession. Section 15(2) carved out an exception to the general rule mentioned in section 15(1) of the HSA. Acquisition of the property by a female Hindu by will or gift includes acquisition by a family partition. Upon partition and division of properties by metes and bounds, the partitioned property becomes the absolute property of such a sharer. The partitioned property may become the joint family property of the sharer and his family members/surviving heirs.

Section 15(2) of the HSA deals with inheritance from the parental family of a female Hindu. Such inheritance can only be by intestate succession, and not by an instrument.

Review and interpretation of section 15(2) of the HSA coupled with the Partition Memorandum establishes that Eshwaramma was the absolute owner of the property and on her demise, the property would devolve by way of general succession under section 15 (1) and not section 15 (2) of the HSA.

Thus, the property of a female Hindu dying without children as well as without making a will is a general class covering all the properties, except the properties inherited from her father or mother.

This article was originally published in Mondaq on 11 May 2023 Written by: Ashoo Gupta, Partner. Click here for original article

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