The provision as it was there before omission by the 2005 Act in my considered view was purely standing as a temporary bar for exercising the right to partition by the female heirs over the dwelling house wholly occupied by the members of the family. The female had the right over the property to the extent of her share as a class-I heir, but it was remaining under suspension or abeyance so as to be exercised and worked out in reality. Thus the right over the dwelling house of the family wholly occupied by the members of the family standing recognized as such was put under restriction only for being exercised. It was therefore a restrictive right with restrictions put therein to get the same wholly worked out. This in no way was thus creating or clothing any vested right in favour of male heirs although standing as a weapon in their arms to put the right of class-I female heirs on hold from being exercised till such time the male heirs either choose to divide or put the said dwelling house into use in a manner running counter or offending the very objective sought to be achieved by that provision as then existing for the purpose of maintaining the sanctity of the family dwelling house respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration. Even if in a suit for non-fulfillment of those conditions, she was not being allowed with a share over the dwelling house but a suit or suits at a later date on happening of all those events was not legally barred. The provision was in relation to the exercise of the right at appropriate time but not concerning total de-recognition or negation of the right to claim for all times to come. The right over the property by virtue of that provision had not been given a total burial but it was as if being larva inside the volcano in readiness for eruption, at the moment of environmental disorder suiting the purpose when the conditions getting fulfilled. Thus, no finality was attached to such judgment of the courts denying the right to the female heirs to claim partition over the dwelling house. The exercise of the right was remaining in a dormant stage and springing up to life so as to be put into action on the happening of the enumerated eventualities.
Therefore, even in the instant suit, assuming for the sake of argument if we say that the plaintiff being the female heir is not entitled to exercise the right of partition over the dwelling house; however, in view of the omission of the said provision in the statute, she can very well file a suit again for the very same relief on the very day of disposal of the suit or on the next day onwards. So, when the present lis is continuing in the second appeal which has already been admitted and this Court finds that the provision creating the temporary bar to exercise the right has already been omitted, there arises no legal objection or impediment in answering it in favour of the plaintiff that she can well seek for partition of the said dwelling house in accordance with her share as the class-I heir of the Satyabadi against the defendant No. 2, the other class-I heir of Satyabadi. The provision of section 23 of the Act as was existing within all its four was thus a procedural one prescribing the appropriate time so as to the institution of the lis to enforce the right and it was merely a restriction for such time that its exercisable at such point of time when the events would so happen.
15. Although omission of the said section is not expressly stated to be retrospective yet now regard being had to the object behind such omission, it has to be said to be having the application to the pending lis at any stage in the court since the omission is not reopening a decision which had been rendered in that very lis that has reached its finality. But as it has earlier been said that there was no finality to the decision and the right under the earlier provision in the Act was exercisable on the happening of eventualities, the female heirs having been denied with the right to claim partition in a lis now can very well file it again in view of the omission of the provision from the statute and can get a decree if it is otherwise permissible in law even without establishing the eventualities which were required to happen as per earlier provision (since omitted) as the preconditions for grant of decree for partition of the dwelling house at the instance of the female heirs and notwithstanding all those.
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 225 of 2004
Decided On: 01.07.2016
Maheswar Amat and Ors.
Vs.
Ujala Amat
Vs.
Ujala Amat
Coram:D. Dash, J.
1. This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Sonepur in RFA No. 42/2001 by way of modification of the preliminary decree as passed by the learned Addl. Civil Judge (Jr. Divn.), Birmaharajpur in T.S. No. 24/30 of 1992.
The respondent No. 1 as the plaintiff had filed the suit for declaration of her right, title and interest over the suit land, confirmation of possession and permanent injunction, with alternative prayer for recovery of possession in case of dispossession during the suit. It was specifically prayed for division of the suit property in two equal half; one in her favour and the other one in favour of defendant No. 2 in case he is held to be the adopted son of her deceased brother namely, Judhistir.
2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. Satyabadi Padhan is the father of the plaintiff and her brother Judhistir. They became the absolute owners of the suit land as on the death of Satyabadi in the year 1971. The plaintiff and Judhistir succeeded to the property left by him. The plaintiff asserts that on 23.11.91 Judhistir died issueless and his wife Bila predeceased him having died in the year 1988. So the plaintiff claims to be the sole owner coming to possess the suit land with the aid and assistance of her husband. The defendants are said to be in no way related to her, although defendant No. 2 is falsely stating himself to be the adopted son of Judhistir and defendant No. 1 being his father is falsely declaring to have given defendant No. 2 in adoption to Judhistir. The plaintiff having come to learn that defendants are declaring to oust her from the suit land, apprehending serious disturbance, the suit has come to be filed.
4. The defendants contested the suit. It is stated that Satyabadi died in the year 1969 and Judhistir being his son became exclusive owner in possession of the suit land to the exclusion of all others including the plaintiff. It is specifically pleaded that during the lifetime Judhistir when he lost all the hope of begetting a child through his wife Bila, they approached the defendant No. 1 and his wife in the year 1980 to take their child who was then in the womb of the mother for being given in adoption after birth. The proposal was accepted and as such in the year 1981 when defendant No. 2 was born, he was given in adoption to Judhistir and his wife on the auspicious Janmashtami day in the month of Bhadraba by performance of giving and taking ceremony in the Siva temple of village Barajhua. And five years thereafter Judhistir's wife died. It is also stated that on 5.9.88 after the death of Bila, Judhistir executed a registered deed of acknowledgement of adoption in favour of defendant No. 2 declaring defendant No. 2 to be his adopted son. Thus, it is stated that defendant No. 2 possessed the land along with his adoptive father and he also performed all the funeral rites and obsequies of Judhistir. It is stated that the plaintiff has filed the suit being instigated by some persons in inimical terms with the defendants being well aware of the factum of adoption and the status of defendant No. 2 as the adopted son of Judhistir and as such the plaintiff's brother.
5. Faced with such rival pleadings, the trial court framed six issues. Rightly taking up issue Nos. 3 and 4 first for decision as those concern with the claim of the plaintiff vis-à-vis. the claim of defendant No. 2 as regards his status and consequently the claim over the property in question, the trial court on evaluation of evidence has recorded a finding that defendant No. 2 is the adopted son of Judhistir and that both are entitled to equal share over the property having been succeeded by them being the successors of Satyabadi, the original owner of the property. Thereafter, coming to the factum of possession, the defendant No. 2 has been found to be in possession of the suit property. However, lastly, going to answer issue No. 6 as regards the entitlement to the relief, the trial court declared that the plaintiff has got 1/4th share over the suit property save and except the dwelling house of the family.
6. Being aggrieved by the same, the plaintiff carried an appeal under Section 96 of the Code of Civil Procedure which came to be heard by the learned Addl. District Judge, Sonepur. The lower appellate court sitting over to judge the sustainability of the finding of the trial court firstly on issue Nos. 3 and 4 has gone to churn the evidence in finding out as to whether the defendant No. 2 has been able to discharge the burden of proof that he had been adopted by Judhistir during his lifetime and as such his status as the adopted son of Judhistir has been accepted. The answer upon independent examination of evidence has been recorded in favour of defendant No. 2 and against the plaintiff. Thus, it has affirmed the finding of the trial court on this aspect. Eventually going to the allotment of share to the plaintiff and defendant No. 2 over the suit property, it has of course modified the quantification made by the trial court by declaring half share of each over the entire property without any exception concerning dwelling house by keeping it beyond the purview of partition as had been done by the trial court.
7. In the above premises, the defendants have filed this second appeal under Section 100 of the Code of Civil Procedure, mainly challenging the modification of the decree made by the trial court in relation to the quantification of the share of plaintiff and defendant No. 2 over the property and also the inclusion of the undivided dwelling house within the purview of partition for the plaintiff, the sister to have her share over it. It may be mentioned here that the plaintiff has not further carried any challenge in accordance with law either by filing any independent appeal or by filing any cross-objection, feeling aggrieved by the concurrent finding of the courts below as regards the status of the defendant No. 2 as the adopted son of Judhistir. So, this finding has attained its finality and is no more thrown open for decision before this Court in the present second appeal.
Learned counsel for the parties of course fairly agree on the point at the time of hearing.
8. The present appeal has thus been admitted on the following substantial questions of law:-
i. Whether sections 6 and 8 of the Hindu Succession Act, 1956 will apply to this case as determined by the trial court?
ii. Whether the plaintiff-respondent is entitled to claim partition and get a share from the dwelling house in view of the bar contained in Section 23 of the Hindu Succession Act?"
Upon hearing the learned counsel for the parties although the appeal had been admitted on above substantial questions of law, those stand reformulated as under:-
"i) Whether the lower appellate court is right in holding the plaintiff as entitled to half share over the entire suit property being in conformity with the provision of Hindu Succession Act?"
9. Learned counsel for the appellants submits that the trial court had rightly declared 1/4th share of the plaintiff over the property excluding the dwelling house and without bringing the same within the purview of actual division of the property whereas the lower appellate court has completely erred in law by dividing all the properties in two equal half ignoring the provisions of Section 23 of the Hindu Succession Act (for short called as 'the Act') which was in force all through during suit and first appeal.
10. The learned counsel for the respondent on the other hand submits that no such illegality has been committed by the lower appellate court in dividing the entire property equally between the plaintiff and defendant No. 2 who are the daughter and son's son of Satyabadi. It is his contention that even though for a moment, it is said that the lower appellate court had fallen in error by giving the share to the plaintiff over the property over which the dwelling house of the family stands yet in view of the fact that the provision of Section 23 of the Hindu Succession Act has already been omitted by Hindu Succession (Amendment) Act 2005 (for short called as 'the 2005 Act') coming into force w.e.f. 9.9.05, the same now cannot be said to be impermissible and the court cannot decline to grant any share to the plaintiff over the said property merely on the ground that the bar was in the statute during the suit and first appeal. He thus contends that even though the lower appellate court was then not having the competence to allow the claim of partition over the dwelling house by the plaintiff, the provision being just a bar to claim the partition dependent upon some eventuality to happen, the omission of said provision has to enure to the benefit of the suitor when is remains pending. It is further placed that it would now serve no purpose in refusing said relief saying that it could not have been granted by the appellate court which in turn would just again drive the plaintiff for another suit in view of omission of said provision from the statute claiming partition of the family dwelling house standing over it which in the given situation thus cannot be held as barred and even if it is so said, the next suit would be mere formality with the result being fixed and known.
11. Admitted case of the parties is that Satyabadi was the absolute owner of the property and therefore the allotment of share in two equal half to the plaintiff and defendant No. 2 as done by the lower appellate court is unassailable.
12. At this juncture, the question arises as to whether the plaintiff being the daughter coming as class-I heir under the schedule of the Hindu Succession Act, is entitled to claim partition and get the share as per her entitlement allotted in her favour in so far as the dwelling house of the parties are concerned. The suit was instituted in the year 1992 and the first appeal came to be filed in the year 2001, where after this Court has been moved with the present second appeal in the year 2004 which has been admitted on framing the substantial questions of law as stated in aforesaid para-6. During the suit and first appeal, the provision of section 23 of the Act containing the temporary bar of claiming partition of dwelling house by daughter till happening of certain events was there in the statute and the same then stood as under:-
"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."
The proviso as above confers right on unmarried daughter, the daughter who has been deserted or is separate from her husband and a widowed daughter giving the right of residence notwithstanding the fact that her husband has left a dwelling house. The right of a female heir to claim partition of the family dwelling house although restricted so long as the male heirs do not choose to effect partition of the same yet it expressly recognizes that those category of female heirs have the right to reside therein.
13. The above provision came to be totally omitted by the 2005 Act, which came into force on 09.09.2005 without any other provision either having any sort of nexus with the earlier existing provision as contained in Section 23 of the Act or corresponding to it as also not remaining with any changes being introduced. The provision as it stood was that when a Hindu intestate leaves by surviving both male and female heirs as indicated in class-I of the schedule of the Act and the property includes a dwelling house wholly occupied by the members of the family, the right of the female heirs to claim partition of the same is thereby not wholly denied or taken away nor barred forever. But the provision was creating a mere temporary logjam that the right to claim partition shall remain under suspension being not pressable to get the final outcome for that period until the male heirs choose to divide their respective shares therein and till then, the schedule-I female heirs as sub-classified under the proviso will be simply having the right of residence. The object and importance of the provision is clearly discernable. The divergent views in the decisions of various High Courts as regards the provision of the said section having its play has been finally set at rest by the Supreme Court in case of Narasimha Murthy Vr. Susila Bai; MANU/SC/0463/1996 : AIR 1996 SC 1826. It has been held that the right of the female heirs to claim partition of a dwelling house remains in abeyance during the lifetime of the male heirs and till such time that the male heirs choose to partition the property, as also until such time that the male heirs cease to occupy it as such and their occupation stands otherwise such as by letting it out or otherwise running counter to the very objective, and purpose behind such enactment as well as the goal sought to be achieved that is to maintain the sanctity of the family dwelling house respecting tradition of preventing its fragmentation and disintegration to effectuate family unity. The right of the female heir was remaining under suspension until the above enumerated events occur and the claim was fructifying only on in case of happening of those eventualities.
The Full Bench decision of this Court in case of Mahanti Matyalu vs. Oluru Appanama And Ors. : MANU/OR/0009/1993 : AIR 1993 Orissa 36 has also been over ruled.
But now in view of the total omission of the said section from the statue, the temporary bar and abeyance of right for the female heirs to the claim of partition of the dwelling house during the lifetime of the male heirs and till such time that such male heirs choose to partition the property as also until such time that the male heirs go to occupy it otherwise does no more stand. The provision by which the right to claim partition of dwelling house only springing up on the happening of the above enumerated incidents and fructifying in case of all the eventualities happening has been swept away and thrown to the dustbin. It may be kept in mind that though the right over the property was remaining all along when prior to the 2005 Act, its exercise was restrictive and contingent; it is now after omission of the provision of section 23 of the Act by virtue of the 2005 Act become exercisable even without the fulfillment of the conditions as those enumerated and notwithstanding such occasion since the provision restricting the exercise of right has stood omitted altogether and there stands the removal of the bar thereby.
14. The provision as it was there before omission by the 2005 Act in my considered view was purely standing as a temporary bar for exercising the right to partition by the female heirs over the dwelling house wholly occupied by the members of the family. The female had the right over the property to the extent of her share as a class-I heir, but it was remaining under suspension or abeyance so as to be exercised and worked out in reality. Thus the right over the dwelling house of the family wholly occupied by the members of the family standing recognized as such was put under restriction only for being exercised. It was therefore a restrictive right with restrictions put therein to get the same wholly worked out. This in no way was thus creating or clothing any vested right in favour of male heirs although standing as a weapon in their arms to put the right of class-I female heirs on hold from being exercised till such time the male heirs either choose to divide or put the said dwelling house into use in a manner running counter or offending the very objective sought to be achieved by that provision as then existing for the purpose of maintaining the sanctity of the family dwelling house respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration. Even if in a suit for non-fulfillment of those conditions, she was not being allowed with a share over the dwelling house but a suit or suits at a later date on happening of all those events was not legally barred. The provision was in relation to the exercise of the right at appropriate time but not concerning total de-recognition or negation of the right to claim for all times to come. The right over the property by virtue of that provision had not been given a total burial but it was as if being larva inside the volcano in readiness for eruption, at the moment of environmental disorder suiting the purpose when the conditions getting fulfilled. Thus, no finality was attached to such judgment of the courts denying the right to the female heirs to claim partition over the dwelling house. The exercise of the right was remaining in a dormant stage and springing up to life so as to be put into action on the happening of the enumerated eventualities.
Therefore, even in the instant suit, assuming for the sake of argument if we say that the plaintiff being the female heir is not entitled to exercise the right of partition over the dwelling house; however, in view of the omission of the said provision in the statute, she can very well file a suit again for the very same relief on the very day of disposal of the suit or on the next day onwards. So, when the present lis is continuing in the second appeal which has already been admitted and this Court finds that the provision creating the temporary bar to exercise the right has already been omitted, there arises no legal objection or impediment in answering it in favour of the plaintiff that she can well seek for partition of the said dwelling house in accordance with her share as the class-I heir of the Satyabadi against the defendant No. 2, the other class-I heir of Satyabadi. The provision of section 23 of the Act as was existing within all its four was thus a procedural one prescribing the appropriate time so as to the institution of the lis to enforce the right and it was merely a restriction for such time that its exercisable at such point of time when the events would so happen.
15. Although omission of the said section is not expressly stated to be retrospective yet now regard being had to the object behind such omission, it has to be said to be having the application to the pending lis at any stage in the court since the omission is not reopening a decision which had been rendered in that very lis that has reached its finality. But as it has earlier been said that there was no finality to the decision and the right under the earlier provision in the Act was exercisable on the happening of eventualities, the female heirs having been denied with the right to claim partition in a lis now can very well file it again in view of the omission of the provision from the statute and can get a decree if it is otherwise permissible in law even without establishing the eventualities which were required to happen as per earlier provision (since omitted) as the preconditions for grant of decree for partition of the dwelling house at the instance of the female heirs and notwithstanding all those.
16. In view of the aforesaid, this Court finds no reason at this moment to interfere with the decision of the lower appellate court in view of omission of the provision of section 23 of the Act from the statute, which is the subsequent event arising in view of the change of law that under no circumstance cannot be lost sight of but has certainly to be taken note of as discussed above. The above discussion and reasons accordingly provide the answer to the substantial questions which run against the appellant. In view of aforesaid, the ultimate preliminary decree passed by the lower appellate court modifying the preliminary decree passed by the trial court is held as not liable to be set aside.
17. In the result, the appeal stands dismissed.
In the facts and circumstances, the parties are to bear their respective cost of the litigation throughout.
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