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2000 DIGILAW 17 (RAJ)

Rajeshwar Dayal v. Sobhana Mathur

2000-01-06

M.A.A.KHAN, SHIVARAJ V.PATIL

body2000
Honble PATIL, CJ.–Smt. Sobhana Mathur, Plaintiff-respondent No. 1, filed a suit on 21.10.91 in the Court of Additional District Judge No. 7, Jaipur for partition of a joint house property being Plot No. D-148, Durga Marg Bani Park, Jaipur. She claimed 1/4th share therein. Her case was that the suit property was the self-acquired property of her father, Late Dr. S. Dayal, who died intestate on 23.11.1975 leaving behind him one son (Rajeshwar Dayal-appellant), two daughters namely Smt. Parmila Nag, Respondent 2 and the plaintiff herself and a widow Smt. Sheela Dayal, respondent No. 3. (2). The suit was contested by Rajeshwar Dayal-appellant on the ground, inter alia, that the suit property was the ancestral property of the family, having been acquired with HUF nucleus and that the plaintiff, being a married daughter of the family, could not maintain the cause as the dwelling house in question was not portable at her instance due to the bar created by Sec. 23 of the Hindu Succession Act 1956 (for short `the Act). (3). The learned trial Judge raised necessary issues and held that the property in question was the self acquired property of late Dr. S. Dayal who had died intestate, that the plaintiff had 1 /4th share therein, and that she was entitled to claim partition thereof as the dwelling house was not wholly occupied by the members of the family. Holding thus the learned trial Judge passed a preliminary decree on 30.5.1995 in favour of the plaintiff. (4). In appeal the learned Single Judge agreed with and accepted the findings of the learned trial Judge and dismissed appellants appeal vide his judgment dated 3.3.1998. Hence this Special Appeal u/S. 18 of the Rajasthan High Court Ordinance 1949 by the non-appellant. (5). In the course of hearing the appeal on 24.11.1999 we were informed that the appellant had not been paying maintenance allowance @ Rs. 450/-per month to his 75 years aged mother, Smt. Sheela Dayal Respondent No. 3 for the last about 2 years. The appellant, however, made a payment of Rs. 10,000/-on 25.11.1999 to-wards the arrear of the maintenance allowance to the said respondent, who was admittedly residing in a specified portion in the same dwelling house, though separately from family of the appellant. (6). The appellant, however, made a payment of Rs. 10,000/-on 25.11.1999 to-wards the arrear of the maintenance allowance to the said respondent, who was admittedly residing in a specified portion in the same dwelling house, though separately from family of the appellant. (6). Looking to the controversy raised in the appeal and also having regard to the close relationship of the parties we permitted the learned counsel for the parties to explore the possibility of a settlement of the dispute by entering into a compromise. Efforts in that behalf having failed we resumed the hearing to dispose of the appeal on its own merits. (7). At the very out set Mr. P.C. Jain, the learned counsel for the appellant submitted that since the learned single Judge had disposed of appellants first appeal by a short order, without making a detailed discussion of the evidence on the record of the lower Court, we must restore the matter to him to dispose of the same after hearing the parties afresh. In reply Mr. S.R. Bajwa, the learned counsel for the contesting respondents, submitted that the only point raised and argued by the appellant before the learned Single Judge related to the applicability of Sec. 23 of the Act to the facts of the instant case and the learned Single Judge had-decided the issue on merits by a well reasoned order by making specific reference to the Supreme Court decision in the case of Narshimha Murthy vs. Susheela Bai & Ors. (1). At the same time the learned counsel took serious objection against the language used by the appellant in the Memorandum of Appeal with regard to the conduct of the first appeal by the Learned Single Judge. (8). On going through the impugned judgment we noticed that the only point canvassed before the learned Single Judge on behalf of the appellant related to the applicability of Sec. 23 of the Act to the facts of the instant case. The learned Single Judge considered the issue with reference to the findings recorded by the learned trial Judge and in the light of the Supreme Court decision in the case of Narsimha Murthy (supra) and thereafter recorded his own findings on the merits of the case. The learned Single Judge considered the issue with reference to the findings recorded by the learned trial Judge and in the light of the Supreme Court decision in the case of Narsimha Murthy (supra) and thereafter recorded his own findings on the merits of the case. Brevity is the soul of wit and we find that the brevity, adopted by the learned Single Judge in deciding the issue raised before him, did not overlook the principles of natural justice and caused no harm to any rule of procedure involved in ad-judicatory process. We find no case for remand. (9). Since Mr. Jain was fair enough to accept that the memorandum of appeal could have been appreciably drafted in words better than those used in expressing appellants grievance against.the impugned judgment and he, in-fact, withdrew the objectionable language, as was pointed-out by Mr. Bajwa, we leave the matter with wishful expectation that maturity and sobriety should always and would hence-forth dictate the draft of pleadings by the parties. (10). Coming to the merits of the appeal, it was vehemently urged by Mr. Jain that no doubt on evidence on the record of the trial Court, it may be said that the house property in question or a substantial part thereof, was being let out from time to time to various tenants but such periodical tenancies, which were dictated by urgencies of the fact situations, did not, according to Mr. Jain, rob the house property of its character of being a ``dwelling house for the purposes of applicability of Sec. 23 of the Act. The learned counsel submitted that the appellant was the only son of Late Dr. S. Dayal and due to the exigencies of his services as an Engineer with the State Government he had to let out the major portion of the house property to different tenants from time to time. But by such acts of letting out the house property the appellant, contended Mr. Jain, did not loose his ``animus possedendi and hence the house property did not cease to be a ``dwelling house wholly occupied by his family. (11). On other hand Mr. But by such acts of letting out the house property the appellant, contended Mr. Jain, did not loose his ``animus possedendi and hence the house property did not cease to be a ``dwelling house wholly occupied by his family. (11). On other hand Mr. Bajwa, the learned counsel for the respondents urged with equal industry that whereas the plaintiff-respondent had specifically pleaded in her pleadings that the property in question was continued to be let out to tenant from time to time and hence it was a partible property, the appellant simply pleaded that the said property was an ``ancestral property of Late Dr. S. Dayal and since the plaintiff was got married in the year 1975 and since then had been living in West Bengal alongwith her husband and children, she was not in possession over any part thereof and had no share therein so as to claim partition. Mr. Bajwa particularly pointed-out that the letting of the property in question was not on account of any exigencies of his service and that it was quite a voluntary act. (12). At the very outset we would like to make it clear that the only point raised, canvassed and argued before us on behalf of the appellant related to the applicability or otherwise of the provisions contained in Sec. 23 of the Act to the facts obtaining in the present case. The finding of the learned trial Court that the property in question was not the ancestral property of late Dr. S. Dayal, instead it was his self acquired property was not assailed before us. (13). It was also not disputed that Dr. Dayal died intestate in 1975. The property in question, therefore, devolved upon his four heirs, (who all are parties to this litigation), in equal shares as per Class I of the Schedule referred to in Sec. 8 of the Act. (14). The learned trial Court had recorded a further finding to the effect that the house property in question was not a ``dwelling house wholly occupied by the appellant or his family in as much as it had been let out to various tenants from time to time and even at the time of deciding the suit by him, one Satpal Choudhary was a tenant in a part of the house in question. Such a finding recorded by the learned trial Court has been upheld by the learned Single Judge. It is thus a concurrent finding of fact which cannot and should not be disturbed in Special Appeal unless it is found that such a finding is not the legitimate child of the evidence on record and was contrary to such evidence. ` (15). However, in view of the preliminary objection raised by Mr. Jain we closely scrutinized the evidence on the record of the trial Court and on such study of the said record we felt satisfied that it was clearly and fully established on the record of the trial Court that a major portion of the property in question had continuously been let out to different persons in a routine manner. (16). Undisputedly the house property in question is comprised of 10 rooms, 7 latrines, 5 bath-rooms and 6 stores besides open space. The plot in suit, admeasures 2000 sq. yds. being 120 x 150 in area. It is also established on record that during the life time of Dr. S. Dayal, the deceased father of the appellant, a major portion of the house in suit was being continuously let out to tenants and the parents of the appellant used to reside in a portion thereof. Both the daughters of the family namely, Smt. Shobhna Mathur, the plaintiff-respondent and Smt. Pramila Nag respondent No. 2 were married and whenever they visited their parents house they used to reside with them. After the death of Dr. S. Dayal in 1975 the same position and practice continued. Rent from the tenants used to be received by Smt. Sheela Dayal, the mother of the appellant. (17). No doubt Smt. Shobhana Mathur (PW-1), her husband Ashok Kumar (PW-2) and their witness Smt. Sati Danwani (PW-3) tried to prove that Smt. Shobhana Mathur was in possession of a portion of the house property through a tenant named Shri Satyapal Choudhary but the learned trial Judge did not accept this version. He, on the other hand, accepted the version of the appellant and which was to the effect that excluding the portion in possession of his parents the entire house had remained in possession of the tenants, including S/Sh. O.P. Bishnoi, Kishan Singh, Mr. Solanki, Mr. Mehta Judge and Mr. Kapoor and that presently Shri Satyapal Choudhary was the tenant in the house. O.P. Bishnoi, Kishan Singh, Mr. Solanki, Mr. Mehta Judge and Mr. Kapoor and that presently Shri Satyapal Choudhary was the tenant in the house. The appellant and his witness DW-2 Om Prakash unanimously stated that the tenants were admitted to tenancy by Smt. Sheela Dayal, the mother of the appellant, and that she used to receive rent from them. (18). The above state of evidence in general and appellants own admission in particular, clearly established that not only during the life time of late Dr. S. Dayal, the father of the appellant, the premises in question was regularly let out to tenants but also after his death the same position and practice was continued by his heirs including the appellant. The appellant did not assert either in the written statement or in his statement recorded in Court, his own possession over any portion of the house in suit. Similarly neither in the pleadings filed by him nor his statement recorded on oath at the trial did he ever assert that the house had to be let out due to exigency of his service or that the letting of the sane was not a voluntary act. Appellants own evidence thus clearly established that the house in question was not a dwelling house wholly occupied by members of appellants or of late Dr. Dayals family. (19). Succession of a Hindu dying intestate is governed by sec. 8 of the Act and the right to succession devolves upon Class-1 heirs of the Schedule. As per Class-1 of the Schedule all the respondents, who incidentally are the female heirs of late Dr. S. Dayal, were his heirs. Since the deceased left the appellant only as his sole surviving male heir, besides the female heirs above-mentioned, Sec. 23 would have stood attracted and denied the female heirs their rights to claim partition of the premises in suit, which undoubtedly was a dwelling house, had the said premises been wholly occupied by the members of the family of the appellant the deceased. In that case the right of the female heirs, including the plaintiff-respondent to claim partition would have remained in abeyance till the moment the appellant exhibited animus dessidendi. In that case the right of the female heirs, including the plaintiff-respondent to claim partition would have remained in abeyance till the moment the appellant exhibited animus dessidendi. But since the appellant, as found by the trial Court, the learned Single Judge and by us also, had no animus posse-din-di instead had already exhibited amicus desi-den-di by letting out the dwelling house to tenants after the death of his father late Dr. S. Dayal, the dwelling house was very much a partible estate of the deceased. Thus the learned Single Judge had all the reasons to concur with the findings of the learned trial Judge recorded on the issue on hand. (20). Section 23 of the Act, it seems to us, was interpreted differently by various High Courts. The conflict in the opinions of various High Courts was considered by the Apex Court in the case of Narsimha Moorthy, (supra). Speaking on the point K. Rama Swamy J. spoke thus:- ``Para 20:-The Legislature intended that during the life-time of the 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. Situations, special provision was made in See. 23 of importability of the dwelling house. Section 44 of the Transfer of Property Act and also Sec. 4(1) of the Partition Act appear to prevent such fragmentation of the ancestral dwelling house. Singular includes plural u/S. 13(2) of the General Clauses Act and may be applied to Sec. 23 as it is not inconsistent with the context or subject. Even without resorting to it or having its aid for interpretation, by applying common sense, equity, justice and good conscience, injustice would be mitigated. After all, as said earlier, the purpose of law is to prevent brooding sense of injustice. It is not the words of the law but the spirit and internal sense of it that makes the law meaningful. The letter of the law is the body but the sense and reason of the law is the soul. Therefore, pragmatic approach would further the ends of justice and relieve the male and female heir from hardship and prevent unfair advantage to each other. The letter of the law is the body but the sense and reason of the law is the soul. Therefore, pragmatic approach would further the ends of justice and relieve the male and female heir from hardship and prevent unfair advantage to each other. It would, therefore, be just and proper for the Court to adopt common sense approach keeping at the back of its mind, justice, equity and good conscience and consider the facts and circumstances of the case on hand. The right of residence to the male member in the dwelling house of the Hindu intestate should be respected and the dwelling house may be kept impartible during the life time of the sole male heir of the Hindu instestate or until he chooses to divide and gives a share to his sister or sisters or alienate his share to a stranger or lets it out to others,etc. Until then, the right of the female heir or heirs u/S. 8 is deferred and kept in abeyance. So, instead of adopting grammatical approach to construe Sec.23, we are of the considered view that the approach of the Calcutta and its companion Courts is consistent with the justice, equity and good conscience and we approve of it. We accordingly hold that Sec. 23 applies and 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 or till at a partition action, equities are worked out. Punchi, J. (as his Lordship then was) expressed himself on the point in the following words:- ``Para 31:-The Section protects only a dwelling house, which means a house wholly inhabited by one or more members of the family of the intestate, where some or all of the family members, even if absent for some temporary reason, have the animus revertendi. In our considered. view, a tenanted house therefore is not a dwelling house, in the sense in which the word is used in Sec. 23. In our considered. view, a tenanted house therefore is not a dwelling house, in the sense in which the word is used in Sec. 23. It may be a dwelling house in the structural sense but it cannot be said to be a dwelling house inhabitation by the members of the intestates family..In that twin sense, when the female heirs are entitled to a right of residence therein, which right is enforceable against the male heirs, that right militates against the created or creating of tenancy by the male heir or heirs and deprive them of their right to residence therein as also their right to partition; an incidence normal to the opening of succession. Thus it appears to us that if the male heirs derive the right under the provision to resist partition of the dwelling house unless they chose to divide their respective shares therein, then correspondingly it is incumbent in the male heirs to keep the property well arranged, inhabited or occupied by themselves keeping the property available for the female heirs to enforce the right of residence therein. But if the latter right is frustrated on creation of third party rights or a contractual or statutory tenancy, there remains no right with the males to resist partition. Para 33:-The emphasis on the section is to preserve a dwelling house as long as it is wholly occupied by some or all members of the intestates family which includes male or males. Understood in this manner, the language in plural with reference to male heirs would have to be read in singular with the aid of the provisions of the General Clauses Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his share from the dwelling house, the female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu male oriented society, where begetting of a son was a religious obligation, for the fulfilment of which Hindus have even been resorting to adoptions, it could not be visualized that it was intended that the single male heir should be worse off, unless he had a supportive second male as a Class-I heir. The provision would have to be interpreted in such manner that it carries forward the spirit behind it. The provision would have to be interpreted in such manner that it carries forward the spirit behind it. The second question would thus have to be answered in favour of the proposition holding that where a Hindu intestate leaves surviving him a single mate heir and one or more female heirs specified in Class I of the Schedule, the provisions of Sec. 23 keep attracted to maintain the dwelling house impartible as in the case of more than one male heir, subject to the right of re-entry and residence of the female heirs so entitled, till such time the single male heir chooses to separate his share; this right of his being personal to him, neither transferable nor heritable. Para 34: Now applying the ratio above evolved on the facts of this case it is evident that when the house in question is tenanted, it is not a dwelling house in the sense the word is used in Sec. 23 of the Hindu Succession Act and therefore it has no protection of its being impartible. The suit of the plaintiff-respondent could not have been resisted by the defendant appellant on the basis that it was a family house. Equally the suit could not have been resisted by the defendant appellant on the ground that being the sole male heir of the intestate, Sec. 23 was inapplicable, because then the suit for partition would otherwise have been maintainable. Had the finding been that the house in question was a dwelling house the suit could have been resisted by him even as a single male heir on the basis of Sec. 23 of the Act. (21). It may be appreciated that the facts found by the learned trial Judge and endorsed fully by this Court while exercising its appellate jurisdiction in the matter squarely attract the observations made by their Lordships in Para No. 34 of the report, reproduced above. Therefore, in view of the well established position that the house in question was not a dwelling house in the sense the word has been used in Sec. 23 of the Act, but that it was a tenanted property, the learned Single Judge was justified in law and no facts in agreeing with the learned trial Judge and to have dismissed appellants appeal. On exercising the same appellate jurisdiction of the Court in this second phase, we also arrive at the same conclusion and find no force in this appeal. (22). In the result, this appeal is dismissed with costs to the contesting respondents. The learned trial Judge is directed to take steps to pass final decree in the suit.