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Madhya Pradesh High Court · body

2000 DIGILAW 18 (MP)

Basanta v. Smt. Laxmibai And Ors.

2000-01-04

R.S.GARG

body2000
ORDER R.S. Garg, J. 1. The applicant/judgment-debtor being aggrieved by the order dated 20.2.1998 passed by the learned Civil Judge Class I, Chhindwara in Execution Case No. 2/97 over-ruling the objections filed by the applicant/judgment-debtor, has filed this petition under Section 115, C.P.C. 2. Undisputedly on 23.9.1996 in Civil Suit No. 12-A/94 between the non-applicant No. 1 /plaintiff on one side, and present applicant and non-applicant Nos. 2 and 3/defendants on the other side, the suit was decreed in favour of plaintiff Laxmibai inter alia directing the plaintiff Laxmibai is entitled to 1/4th share in the house. The Court also directed that the plaintiff is entitled to seek partition by metes and bounds. No challenge was made to the said ex-parte judgment and decree, and the final decree proceedings started. In the final decree proceedings, the property that is the dwelling house was put for partition and the same was partitioned in four equal shares. The present applicant raised an objection under Section 23 of Hindu Succession Act inter alia pleading that the plaintiff/decree-holder being a female heir of deceased Sitaram was not entitled to seek partition of dwelling house. It was also pleaded that while the partition proceedings were going on, personal properties belonging to present applicant were also included in hotchpot and the property was illegally partitioned. The learned Trial Court over-ruled the objection observing that such an objection regarding applicability of Section 23 of Hindu Succession Act could not be raised in the final decree proceedings, and also over-ruled the other objection inter alia observing that all the persons who had shares in the property have appended their signatures to the partition sheet, therefore, such objection would not be available to the judgment-debtor. 3. Mr. Kochar learned Counsel for the applicant submits that a simple perusal of Section 23 of the Act would clearly show that a woman/female heir is not entitled to claim partition of dwelling house if the members of the family are residing in the said house. According to him, Section 23 puts an absolute bar to the right of a woman from claiming a partition because such woman is entitled to a right of residence only. 4. Mr. According to him, Section 23 puts an absolute bar to the right of a woman from claiming a partition because such woman is entitled to a right of residence only. 4. Mr. Lalwani, learned Counsel for non-applicant No. 1, on the other hand, submits that Section 23 in its terms would not be applicable to the present case and the Court below was justified in rejecting the objection. 5. For proper appreciation of the controversy between the parties, it is necessary to refer to Section 23 of Hindu Succession Act. Said section reads as under: "Special provision respecting dwelling house-Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class 1 of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, they, 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 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." 6. Pre-condition for application of Section 23 is that a Hindu intestate has left surviving him or her both male and female. The reason for putting a ban on the right of a woman to claim partition of dwelling house apparently is that she may not create problems to the members of the family or may not compel them to come out of the house if the house is partitioned or is sold under the provisions of Indian Partition Act. Undisputedly in the present case deceased Sitaram died intestate and did not leave male heirs. He was succeeded by plaintiff Laxmibai only. The submission of learned Counsel for the applicant that other members of the joint family are residing in the house, therefore, the house cannot be partitioned, also cannot be accepted because the other coparceners are not successors of deceased Sitaram. They had jointly constituted a coparcenary in a joint Hindu family. He was succeeded by plaintiff Laxmibai only. The submission of learned Counsel for the applicant that other members of the joint family are residing in the house, therefore, the house cannot be partitioned, also cannot be accepted because the other coparceners are not successors of deceased Sitaram. They had jointly constituted a coparcenary in a joint Hindu family. In a coparcenary when a person having rights in the joint family dies, then the succession would open in accordance with Section 6 of the Act. Section 6 clearly provides that when a male Hindu dies after the commencement of the Hindu Succession Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. It further reads that if the deceased had left him surviving a female relative specified in Clause 1 of the Schedule or a male relative specified in that clause who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by the survivorship. In the instant case, the deceased died intestate and at the time of his death, he had an interest in a Mitakshara coparcenary property. As the deceased left a female relative as his successor, the right would devolve upon female member under the Act and would not go by survivorship. On the date of death of coparcener, a notional partition would be presumed. The notional partition would be to the extent of the share of the female member in the share of the deceased which he had in the coparcenary property. Reading Section 6 with Section 23 in juxta position, the legal position would be clear that if the deceased dies intestate, had some interest in the coparcenary property, leaves behind him a female member, then the succession would be governed under the provisions of the Act. Undisputedly, the widow of the deceased coparcener comes in Clause 1 of the Schedule of the succession. She would succeed to the entire right of the deceased. 7. If the other members of the coparcenary cannot be deemed or termed as successors of the deceased, then Section 23 would have no application. Undisputedly, the widow of the deceased coparcener comes in Clause 1 of the Schedule of the succession. She would succeed to the entire right of the deceased. 7. If the other members of the coparcenary cannot be deemed or termed as successors of the deceased, then Section 23 would have no application. If argument of learned Counsel for applicant is accepted, it would lead to a chaotic condition because a widow left by the deceased would not be entitled to anything but for a right of residence, while on the other side if the partition was claimed by her husband, her husband would have got some share in the property which could be succeeded by his widow. I am unable to hold that the Court below was unjustified in over-ruling the objection. The argument is over-ruled. 8. So far as other objection of the applicant is Concerned, it is made clear that only that property can be partitioned which is shown to be the suit property in the plaint and in relation to which the decree has been passed. 9. I find no reason to interfere. The petition is dismissed. 10. C.C. be supplied to the parties within three days.