we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act.

 Since the legislation is beneficial and placed on the statute

book with the avowed object of benefiting women which is a vulnerable

section of the society in all its

stratas, it is necessary to give a

liberal effect to it. For this reason

also, we cannot equate the concept of

partition that he legislature has in

mind in the present case with a mere

severance of the status of the joint-family which can be effected by an

expression of a mere desire by a family

member to do so. The partition that the

legislature has in mind in the present

case is undoubtedly a partition completed in all respects and which has

brought about an irreversible situation.

A preliminary decree which merely declares shares which are themselves

liable to change does not bring about

any irreversible situation. Hence, we

are of the view that unless a partition

of the property is effected by metes and

bounds, the daughters cannot be deprived

of the benefits conferred by the Act.

Any other view is likely to deprive a

vast section of the fair sex of the

benefits conferred by the amendment."

Bombay High Court

Lata @ Bhagyashree W/O Arunkumar vs (E) Manisha W/O Vishnudas ... on 8 July, 2008

Bench: Shri V.R. Kingaonkar

1. Challenge in this second appeal is to Judgment rendered by learned Second Ad-hoc Additional District Judge, Nanded, in an appeal (R.C.A.No.132 of 2000) confirming Judgment and decree rendered by learned Joint Civil Judge (J.D.), Nanded in a suit for partition and perpetual injunction (Spl.C.S.No.375 of 1997).

2. Subject matter of the dispute is a residential house, (which will be referred hereinafter as "the suit house") bearing C.T.S.No.2931 as described in claim clause. The suit house is situated in Chikhalwadi area at Nanded. One Rajaram Ganjare owned the suit house. He died somewhere in 1991, leaving behind him a son, a daughter and a widow. Deceased defendant - Madhukar was his son, deceased plaintiff No.2 - Subhadrabai was the widow and plaintiff No.1 - Lata, who is appellant herein, is - 3 -
the only married daughter left by said Rajaram Ganjare. The plaintiff's marriage was performed somewhere in 1975-76. She resides with her husband at Mangrulpeer (District Akola).

3. At the time of death of Rajaram Ganjare, the suit house was occupied by the sole surviving male member Madhukar (defendant) being his only son and plaintiff No.2 - Subhadrabai being his widow.
4. Appellant - Lata and her deceased mother (Subhadrabai) filed suit (Spl.C.S.No.375 of 1997) for partition and separate possession of the suit house and for perpetual injunction restraining defendant - Madhukar from alienating the suit house. They also claimed mesne profits. They asserted that deceased defendant - Madhukar and his wife alongwith their children gave ill-treatment to plaintiff No.2 - Subhadrabai. Defendant - Madhukar refused to maintain the mother. Consequently, both of them claimed their shares and filed the suit. The suit was resisted by deceased defendant - Madhukar on the ground that the plaintiffs had relinquished their rights in the suit house in the year 1989. He asserted that deceased Rajaram had executed a Will deed dated 1.8.1989 in his favour and had bequeathed the suit house to him. He contended that the - 4 -
plaintiffs were not entitled to claim any partition of the suit house, which is a dwelling house of the joint Hindu family. He, therefore, sought dismissal of the suit.

5. The parties went to trial over certain issues struck below Ex.29 by the trial Court. They adduced oral and documentary evidence in support of the rival contentions. The trial Court held that relinquishment of rights by the plaintiffs was not proved. The trial Court came to the conclusion that the plaintiffs cannot claim partition of the family dwelling house in view of legal embargo enumerated in Section 23 of the Hindu Succession Act. The suit for relief of partition was, therefore, dismissed. However, injunction was clamped restraining deceased defendant - Madhukar from alienating the portion of suit house, which was in the possession of plaintiff No.2 - Subhadrabai during her lifetime.

6. In the first appellate Court, respondent No.2 - Subhash was joined as a party on the allegation that he has purchased a part of the suit house from deceased defendant - Madhukar. The first appellate Court, however, held that mere joining of respondent No.2 - Subhash in the title of the appeal memo was of no consequence without amending the pleadings. The - 5 -
first appellate Court noticed that no relief was sought as against the subsequent purchaser nor any ground was added in the appeal memo in this behalf. The first appellate Court also noticed that transfer of a part of the suit house in favour of respondent No.2 - Subhash was not supported by any documentary evidence nor due to such intervening change further relief was claimed by the plaintiff/appellant.
7. There are subsequent changes, which occurred during pendency and before filing of the Second Appeal. First, original plaintiff No.2 - Subhadrabai died before filing of the second appeal and, therefore, this second appeal is only at instance of the married daughter i.e. appellant Smt.Lata alias Bhagyashri. Secondly, after filing of the second appeal, original defendant No.1 - Madhukar died and his legal representatives have been brought on record. Respondent No.1 (b) is the son of deceased defendant - Madhukar and is, therefore, the sole surviving male member of the joint Hindu family.
8. This second appeal was admitted on a single substantial question of law, which is reproduced as follows :
" Whether legal bar u/s 23 of the Hindu Succession Act is lifted on account of amendment Act No.39/2005 of the said provision and such amendment - 6 -
is retrospectively applicable as well whether due to subsequent development, namely death of the sole surviving male coparcener i.e. defendant No.1 - Madhukar, now such legal embargo stands declamped ?"
9. Heard Counsel.

10. The two legal questions of significance need consideration. First, whether elimination of Section 23 of the Hindu Succession Act under the Amendment Act No.39 of 2005 now gives right to the appellant to claim her share in the suit house at par with that of deceased Madhukar, who was her brother. Secondly, it needs to be examined whether due to death of said Madhukar, now the bar created under Section 23 would not be attracted and that the partition could be effected in respect of the suit house.

11. Though the deceased defendant alleged that the plaintiffs had relinquished their rights, yet he could not establish such a plea. Nor he had pressed into service the issue regarding his exclusive ownership on account of the Will deed executed by his father on 1st August 1989. Obviously, it would not be necessary to go into such questions in this second appeal. Nor they have been raised by learned Counsel for the respondents.

12. Mr.Gangapurwala, holding for Mr.Sharma, would - 7 -
submit that the intervening changes in the facts and the law may be considered. He strongly relied upon "S.Sai Reddy v. S.Narayan Reddy and others" (1991 AIR SCW 488).
488) The Apex Court considered effect of clause (ii) of Section 29A of the Amendment Act. It is held that the intervening event, which gave shares to the respondent Nos.2 to 5 (female members) had the effect of varying shares of the parties like any supervening development. The Apex Court observed : " Since the legislation is beneficial and placed on the statute
book with the avowed object of benefiting women which is a vulnerable
section of the society in all its
stratas, it is necessary to give a
liberal effect to it. For this reason
also, we cannot equate the concept of
partition that he legislature has in
mind in the present case with a mere
severance of the status of the joint-family which can be effected by an
expression of a mere desire by a family
member to do so. The partition that the
legislature has in mind in the present
case is undoubtedly a partition completed in all respects and which has
brought about an irreversible situation.
A preliminary decree which merely declares shares which are themselves
liable to change does not bring about
any irreversible situation. Hence, we
are of the view that unless a partition
of the property is effected by metes and
bounds, the daughters cannot be deprived
of the benefits conferred by the Act.
Any other view is likely to deprive a
vast section of the fair sex of the
benefits conferred by the amendment."

13. Clinching question is as to whether the - 8 -
amended provision contained in Section 29A of the Hindu Succession Act can be invoked in the present case. The law, which existed prior to such amendment, may be briefly stated. Section 23 of the Hindu Succession Act, 1956 is a special provision respecting dwelling house. It reads as follows : "23. Special provision respecting
dwelling-houses - Where a Hindu intestate
has left surviving him or her both male
and female heirs specified in class I of
the Schedule and his or her property
includes a dwelling-house wholly occupied
by members of his or her family, then,
notwithstanding anything contained in this
Act, the right of any such female heir to
claim partition of the dwelling-house
shall not arise until the male heirs
choose to divide their respective shares
therein; but the female heir shall be
entitled to a right of residence therein;
. Provided that where such female
heir is a daughter, she shall be entitled
to a right of residence in the
dwelling-house only if she is unmarried or
has been deserted by or has separated from
her husband or is a widow."

14. A plain reading of proviso appended to Section 23 would make manifestly clear that a married daughter was not given right of residence in a dwelling-house unless she was deserted by or had separated from her husband. Needless to say, the appellant's case is not covered under the proviso appended to the Section. In her lifetime, deceased Subhadrabai used to reside in the suit house. It was - 9 -
the view of Bombay High Court that where a sole surviving male coparcener is in possession of dwelling-house, the legal embargo would not be applicable. This view expressed in "Anant vs. Janaki Bai" (AIR 1984 Bombay 319) is disapproved by the Apex Court in "Narashimaha Murthy v. Smt.Susheelabai and others" (AIR 1996 SUPREME COURT 1826).
1826) The Apex Court, in clear terms, held that Section 23 prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life of the male heir or till he partitions or ceases to occupy and enjoy it or lets it out. The Apex Court observed that the legislature intended that during the life-time of surviving male heir(s) of the deceased Hindu intestate, he/they should live in the parental dwelling house as partition thereof at the behest of the female heir would render the male heir homeless/shelterless. It was in order to prevent hardship and unjust situation, the special provision was made in Section 23 of impartibility of the dwelling house. The Apex Court further observed that Section 44 of the Transfer of Property Act and also Section 4(1) of the Partition Act prevented fragmentation of the ancestral dwelling house. The - 10 -
purpose of law is to prevent brooding sense of injustice.

15. It is argued that due to death of original defendant - Madhukar, the legal bar is now inapplicable. I do not agree. Not only defendant - Madhukar but his son (respondent No.1-(b) Manoj) are the male members, who were residing in the suit house. The residence of respondent No.1(b) Manoj in the suit house would continue the process of keeping right of the appellant in abeyance. She cannot claim partition in the dwelling house when the same is occupied by respondent No.1 (b) - Manoj and other members of the family. I am of the opinion that due to death of Madhukar, there will be no change in the legal position qua the present appellant.

16. Coming to the question of effect of the change due to Amendment Act No.39 of 2005, it is important to note that Section 29A is added under Chapter II-A. No doubt, it gives equal rights to daughter in coparcenery property irrespective of limitations contained in Section 6 of the Hindu Succession Act. By the amended Act, Section 23 and Section 24 of the Hindu Succession Act, 1956 have been omitted. The omissions of these two Sections, of course, has nexus with introduction of Section 29A under Chapter II-A. - 11 -
Section 23 stands omitted under the amended Act in order to pave the way for effective operation of Section 23A. The amended provision of Section 29A is introduced under Chapter II-A, which is part and parcel of Chapter II of the Hindu Succession Act, which contains Section 23. The provision of Section 29A, as applicable to the State of Maharashtra reveals that the Chapter II-A shall not apply to a daughter married before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994. Thus, the daughters, who had married before the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994 are kept outside the beneficial zone of the amended provision of Section 23A. In other words, the provision would be available prospectively. In the present case, the appellant was married much prior to commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994 (MAH XL of 1994). Hence, she cannot claim benefit of Section 29A. The omission of Section 23 under the Amendment Act does not open floodgate to the ineligible female heirs for the purpose of seeking partition of dwelling house. Their rights are still in abeyance until the male heir is in occupation of the dwelling house. Under these circumstances, the appellant is not entitled to claim partition of the suit house. - 12 -
17. In the result, the second appeal fails and is accordingly dismissed. No costs.
( V.R.KINGAONKAR )
JUDGE
(vvr/sa543.04)

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