**C.R**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941**
## **WP(C).No.21871 OF 2018(H)**
## **PETITIONER:**
**SISUKUMAR R. AGED 50 YEARS PAVIZHAM, OLD VALLAM ROAD, PERUMBAVOOR, ERNAKULAM DISTRICT.**
**BY ADVS. SRI.DEEPU THANKAN SRI.A.ABDUL NABEEL SMT.NIMMY JOHNSON SMT.UMMUL FIDA**
## **RESPONDENTS:**
- **1 THE DISTRICT COLLECTOR, ALAPPUZHA-688 001.**
- **2 THE SUB COLLECTOR ALAPPUZHA-688 001.**
- **3 THE TAHASILDAR CHERTHALA-688 524.**
- **4 PADMAKSHI PANICHIRA, VARANAM P.O., CHERTHALA-688 555.**
- **5 JAMEELA ANGADI VEEDU, VARANAM P.O., CHERTHALA-688 555.**
- **6 SHYLAJA THEKKEYATTATHUVEEDU, ARYAD P.O.,ALAPPUZHA-688 538.**
- **7 DILIP KUMAR PANICHIRA, VARANAM P.O., CHERTHALA-688 555. ADV.SMT.MINI V.MENON ADV.SMT.S.SANTHY ADV.SRI.P.VISHNU PRASAD ADV.SRI.M.HARISHARMA ADV.SRI.MATHEW GEORGE VADAKKEL, GOVERNMENT PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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**C.R**
## **JUDGMENT**
## This writ petition is filed seeking the following prayers:
_“(i) issue a writ of certiorari or order or direction calling for the records leading to exhibit P3 & P4 and set aside the same;_
_(ii) issue a writ of certiorari calling for the records leading to Exhibit P2 and quash the same in so far it permit the mutation of the properties in favour of the 4[th] respondent, forthwith;_
_(iii) to issue writ of mandamus directing the 3[rd] respondent to order for mutation of the property of deceased Leela situated in Block No.27 in Sy. No.78/6-1 of Thanneermukkam North Village, to the petitioner as he is the only remaining heir as per Section 15(1) of the Hindu Succession Act.”_
2. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 3 and the learned counsel appearing for respondents 4 to 7.
3. It is submitted that the petitioner’s wife died intestate and issueless in the year 2016. The contentions of the petitioner is that, though he is entitled as the husband to inherit the property of his deceased wife as per Section 15(1) of the Hindu Succession Act (for short ‘the Act'), the ordered mutation of the property is in favour of
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respondents 4 to 7, who are the mother, two sisters and brother of the deceased wife.
4. It is stated that the petitioner’s wife had acquired 99 cents of property by Ext.P1 partition deed dated 23.06.1982. She had sold 59 cents of the property even prior to her marriage. She had purchased 2 cents of land as per sale deed dated 09.12.2009 to procure a way to the remaining 40 cents of property. After the death of his wife, the petitioner submitted an application for mutation of the property in his name. Similar applications were submitted by respondents 4 to 7. The 3[rd] respondent rejected the claim of respondents 5 to 7 and ordered mutation of property in the name of the petitioner and the 4[th] respondent by Ext.P2 order dated 11.05.2017. Respondents 4 to 7 filed an appeal before the 2[nd] respondent and by Ext.P3 order, mutation was ordered in favour of respondents 4 to 7. The order was challenged in revision before the first respondent, but by Ext.P4, the same was dismissed. These orders are under challenge.
5. The specific contention of the petitioner is that by the execution of Ext.P1 partition deed, the petitioner’s wife became the full owner of the property in question and that the said property was liable to be treated as self acquired property in the hands of the petitioner’s wife. It is submitted that the said property cannot be included in the category of
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property inherited by her from her father. It is therefore contended that since the property was not inherited property, the succession was to be decided in terms of Section 15 (1) of the Act and not Section 15 (2) of the Act.
6. A detailed counter affidavit has been placed on record by respondents 4 to 7, wherein, it is submitted that the property originally belonged to the father of the wife of the petitioner, who was the husband of the 4[th] respondent and the father of respondents 5 to 7. It is stated that the partition deed, Ext.P1 was only an internal arrangement between the legal heirs of the deceased Kesavan and that as such, the character of the property as property inherited by the petitioner’s wife from her father would not be lost by the execution of a partition deed as Ext.P1. It is stated that since the property has devolved on the petitioner’s wife from her father, the provision for deciding succession is Section 15(2) of the Act and that as such, the claim of respondents 4 to 7 is perfectly legal and valid.
7. The 1[st] respondent has also placed a counter affidavit on record. The factual aspects are admitted. It is stated that Exts.P3 and P4 orders are perfectly in tune with the provisions of the Act. It is stated that since the property in question was inherited by the petitioner's wife from her father, the devolution on succession would be under Section 15(2) of
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the Act on the legal heirs of the father.
8. The learned counsel for the petitioner places reliance on a decision of the Andhra Pradesh High Court in Second Appeal No.544/1995. It is contended that the Andhra Pradesh High Court had considered the issue and held that a partition effected between co-owners would take away the character of inherited property and once a deed of partition is effected, the parties take the property under that deed and the character of the property as inherited property would be lost.
9. The learned counsel for the respondents 4 to 7 places reliance on a decision of this Court in **Kallianikutty C. (Dr.) and Another v. Meera Unnikrishnan and Another [2017 KHC 42]** . In the said case also, the issue considered was with regard to succession to property, where a partition had been effected between co-owners. It was held that even though Ext.A1 was executed among respondents 1 and 2, the property could only be treated as a property inherited from the husband and therefore the issue of succession would have to be decided treating the property as property inherited from the husband. The specific contention raised in the said case is that on the execution of the partition deed, the parties ceased to be tenants in common and that the character of the property as inherited property would be lost by the execution of a deed of
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partition was considered. This Court held that the execution of a partition deed between the co-owners, who had all inherited property from a common source would not amount to loss of the status of inherited property in their hands. It was held that in spite of the execution of a partition deed, the character of the property as property inherited from the husband would not be lost and the mere execution of a partition deed will not change the character of the property as inherited property. The question of succession was decided accordingly.
10. The learned counsel also places reliance on a decision of the Apex Court in **Radhika v. Aghnu Ram [1995 KHC 69]** to contend that when the property is inherited by a female Hindu from her father or mother, the husband stands excluded under Section 15(2)(a) from succession to such property.
11. The learned counsel for the petitioner places specific reliance on provisions of Section 14 of the Act. It is submitted that Section 14 of the Act with regard to the property possessed by a female hindu being treated as her full property specifically refers to acquisition by inheritance and by partition separately and that therefore, it is to be assumed that the legislature intended property acquired through inheritance and through partition as separate classes of properties and that as such, the partition
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affected between co-owners would change the character of the property. 12. I have considered the contentions advanced on either side at considerable length. Section 15 of the Act specifically provides for two modes of succession in respect of properties of female hindu dying intestate. The property of a female hindu dying intestate, would devolve under Section 15(1) of the Act firstly upon sons and daughters and the husband. Going by Section 15(1) therefore, the petitioner would be entitled to succeed to the property. However, Section 15(2) provides that notwithstanding anything contained in sub section (1), any property inherited by a female hindu from her father or mother shall devolve, in the absence of son or daughter of the deceased including children of any predeceased son or daughter, not upon the other heirs referred to in sub section (1), but upon the heirs of the father. In the instant case, the specific contention is that the property is inherited by the petitioner's wife from her father. The contention of the learned counsel for the petitioner is that on the execution of a partition deed between the petitioner's wife, her siblings and her mother, the character of inherited property is lost. Reliance is placed on Section 14 of the Act to contend that in the explanation to Section 14(1), property acquired by a female hindu by inheritance or device or at a partition are separately mentioned.
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13. Having considered the contentions advanced on either side and having perused the judgments relied upon by the learned counsel of either side, I am of the opinion that the view taken by this Court in **Kallianikutty C. (Dr.) and Another v. Meera Unnikrishnan and Another [2017 KHC 42]** has considered the question whether a partition would change the nature of the property. The issue therefore is whether the nature of the property as inherited property from the father would be lost by effecting a partition between the sharers. I am of the considered opinion that the nature of the property as inherited property would not undergo a change by a partition deed in the nature of Ext.P1.
In the above view of the matter, I am unable to hold that there is any illegality in the view taken by the respondents. The prayers sought for in this writ petition therefore cannot be granted. The writ petition thus fails and the same is accordingly dismissed.
**Sd/-**
## **ANU SIVARAMAN**
## **JUDGE**
np
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1: A TRUE COPY OF THE PARTITION DEED NO.3227 OF SRO CHERTHALA DATED 23.6.1982.**
**EXHIBIT P2; A TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 11.5.2017. EXHIBIT P3: A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 20.12.2017. EXHIBIT P4: A TRUE COPY OF THE ORDER PASSED BY THE IST RESPONDENT DATED 11.5.2018.**
**RESPONDENT'S/S EXHIBITS: NIL**
