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2001 DIGILAW 1276 (MAD)

N. M. Subbaram v. Saraswathi Ammal and another

2001-10-29

M.CHOCKALINGAM

body2001
Judgment : This second appeal has arisen from the judgment and decree of the learned District Judge, Dindigul made in A.S.No.109 of 1989, dated 20.11.1989 modifying the judgment and decree of the learned District Munsif, Dindigul made in O.S.278 of 1981, dated 22.3.1988. 2. Judgment : This second appeal has arisen from the judgment and decree of the learned District Judge, Dindigul made in A.S.No.109 of 1989, dated 20.11.1989 modifying the judgment and decree of the learned District Munsif, Dindigul made in O.S.278 of 1981, dated 22.3.1988. 2. Thefirst respondent herein filed a suit for declaration that the plaintiff is entitled to 2/3rd share in the ‘A’ schedule property, for partition and allotment of separate possession in respect of the said share; for a permanent injunction restraining the defendants from interfering with her possession of B Schedule property and for damages and recovery of Rs.4033.32 from the defendant No.1, alleging that the properties described in ‘A’ schedule originally belonged to Nattamai Munusamy; that Munusamy and his wife Kumarammal had five sons viz., Renganayil; Ramachari, Eswaraiyer; Chakkarapani and Subburam-the first defendant and one daughter the plaintiff; that Renganayil was given in adoption to one Sornaiyer; that during the lifetime of Munusamy Ramachari, Eswaraiyer and Chakkarapani had executed release deed and separated themselves from the family; that Munusamy died 10 or 12 years back leaving behind his wife and two children viz., the plaintiff and the first defendant; that Kumarammal, the plaintiff and the first defendant were enjoying the ‘A’ schedule property jointly and without any objection; that the plaintiff was residing in a house adjacent to ‘A’ schedule property; that Kumarammal was residing along with the first defendant in the ‘A’ schedule property; that the first defendant as joint family manager was administering the suit property; that Kumarammal and the first defendant were enjoying the suit properties jointly, that Kumarammal executed a will on 6.10.1972 in favour of the first defendant in respect of her share in the ‘A’ schedule property; that since the first defendant was making harassment and troubles to Kumarammal, she cancelled the said will document dated 6.10.1972 by document dated 18.7.1980; that she relinquished her 1/3rd share in the A Schedule property in favour of the plaintiff; that the plaintiff was in joint possession of 2/3rd share in A schedule property; that the ‘B’ schedule property was rented out by the first defendant without the permission of the plaintiff and Kumarammal, to one K.S.Harikrishnan on 15.9.1978 under a rental agreement, fixing the rent at Rs.50 per month; that he received a sum of Rs.4,500 towards advance; that he also received Rs.550 from Harikrishnan towards rent for 11 months; that out of the said amounts, the first defendant is liable to pay Rs.3366.66 to the plaintiff; that the first defendant filed H.R.C.O.P. No.99 of 1980 against the said Harikrishnan before the Rent Controller, Dindigul, that when the said Kumarammal had paid Rs.2,000 to Harikrishnan in respect of the advance received by the first defendant, the said Harikrishnan handed over possession of B schedule property to the plaintiff; that the defendants have no right to remove the plaintiff from the suit property; that the first defendant is liable to pay Rs.4033.22 to the plaintiff; that the plaintiff issued a reply notice on 5.1.1981 to the first defendants notice dated 26.12.1980; that the first defendant was prolonging the matter; that the first defendant was trying to evict the plaintiff from B Schedule property on the basis of the ex parte decree obtained in H.R.C.O.P. No.99 of 1980; that D-1 was making interference over the plaintiffs possession of B schedule property; that the first defendant was also liable to pay damages to the plaintiff, since the first defendant had illegally put the second defendant into possession as a tenant; and hence the plaintiff was entitled to get the abovesaid reliefs. 3. The first defendant vehemently contested the suit stating that the plaintiff had filed this suit in order to grab the property from the first defendant; that D-1 had no knowledge about the alleged will and revocation document; that the alleged payment of Rs.2,000 to Harikrishnan was not known to him; that after Renganayilai was given in adoption, the suit properties were enjoyed by five members; that Ramachari had relinquished his share in favour of the remaining four members under a release deed dated 15.10.1954; while Eswara Iyer and Chakkarapani had relinquished their respective shares in favour of Munusamy Iyer and the first defendant under document dated 25.3.1957; that from the time onwards, the suit property was jointly enjoyed only by Munusamy Iyer and the first defendant; that Munusamy Iyer died on 7.12.1964; that after that, D-1 was in exclusive possession of the suit properties; that he rented out some portions in the suit property to Krishna Iyer,Ramamurthy, Jayapal, Jatka Krishnamurthy while he retained the remaining portion in his possession; that he rented out B schedule property to Harikrishnan at Rs.50 per month; that out of the advance amount of Rs.4,000 given by Harikrishnan, D-1 made improvements to the suit properties; that since Harikrishnan did not pay rent for 15 months, he filed H.R.C.O.P. No.99 of 1980 which was ordered, that the plaintiff has no right over the suit properties; that the suit was barred by limitation; that D-1 took delivery of possession in respect of B schedule property from Harikrishnan only as per the Courts order; that the second defendant was occupying a portion as tenant and was paying Rs.25 per month as rent; that A schedule property was in the possession of the first defendant; that the alleged claim for Rs.4033.32 was not correct and hence the suit has to be dismissed. 4. The second defendant had filed a written statement contending that he occupied a portion in the B schedule property as a tenant from June, 1981 and was paying Rs.25 per month towards rent; that the plaintiff was not in possession of the said property at any time; that he was not a necessary party and hence the suit was liable to be dismissed. 5. The trial Court framed the necessary issues, tried the suit and granted a preliminary decree. The aggrieved first defendant preferred an appeal before the District Court. 5. The trial Court framed the necessary issues, tried the suit and granted a preliminary decree. The aggrieved first defendant preferred an appeal before the District Court. The first appellate Court modified the judgment of the trial Court. Aggrieved by the judgment of the first appellate Court, the first defendant has brought forth this second appeal. At the time of admission the following questions of law were formulated by this Court for consideration; (1) Whether the suit is barred by the provisions under Sec.23 of the Hindu Succession Act? (2) Whether the appellant acquired title to the entire property by adverse possession? (3) Whether the claim for recovery of Rs.4,033.22 is barred by limitation? 6. The first respondent herein filed a suit for partition and separate possession of her 2/3rd share of the properties described in the Schedule to the plaint and for other consequential reliefs. The trial Court granted a preliminary decree for partition declaring that the plaintiff was entitled to 2/3rd share in the suit property and for mesne profits. When the said judgment was appealed against by the first defendant, the first appellate Court modified the trial Courts judgment declaring that the plaintiff was entitled to 1/3rd share in the schedule property and directing the first defendant to pay Rs.850 towards the mesne profits. As against the said judgment, the first defendant has preferred this second appeal. 7. Arguing for the appellant, the learned counsel inter alia would submit that this second appeal is limited to the question of the maintainability of the suit, that the suit for partition filed by the first respondent was not maintainable since the same was for partition by a female co-owner in respect of a dwelling house and the same is expressly barred under Sec.23 of the Hindu Succession Act, 1956; that the first appellate Court has failed to consider that the first respondent was also to bound to contribute to the debits incurred by the family, which was adjusted by the appellant; that the decision reported in Mookammal v. Chitravadiammal (1980)1 MLJ 310: A.I.R. 1980 Mad. 243 is not at all applicable the the present facts of the case; that it was a suit filed for partition by a daughter against the purchaser of the property described as a dwelling house of the family and this Court holding that the suit for partition was maintainable; that the said decision cannot be applied to the present facts of the case since in the suit, the only male member of the family in the presence of the other family members chose to alienate his half share in a dwelling house, but in the present case there was no question of alienation of any part of the property in question and hence the right of the female heir viz., the first respondent to claim the partition of the dwelling house would not arise and thus the suit was premature; that the suit was barred by limitation; and hence the judgments of both the lower Courts have to be set aside and the suit has to be dismissed. 8. Vehemently opposing the above contentions of the appellants side, the learned counsel for the contesting respondents would contend that the appeal is void of merits; that it is not correct to state that the suit filed by the first respondent was premature in view of the provisions of law under Sec.23 of the Hindu Succession Act, that the said contention was neither placed nor raised before the trial Court; that from the pleadings and the evidence adduced by the parties, it would be abundantly clear that the first respondent has let out the major part of the property to the second respondent, who is a stranger and thus the property in question lost the character of a dwelling house. Added further the learned counsel that the decision reported in Mookammal v. Chitravadiammal (1980)1 MLJ 310 A.I.R. 1980 Mad. 243 is squarely applicable to the present facts of the case and the first appellate Court was perfectly correct in following the same and granting the relief to the first respondent and hence it has got to be sustained. 9. Added further the learned counsel that the decision reported in Mookammal v. Chitravadiammal (1980)1 MLJ 310 A.I.R. 1980 Mad. 243 is squarely applicable to the present facts of the case and the first appellate Court was perfectly correct in following the same and granting the relief to the first respondent and hence it has got to be sustained. 9. As seen above, the first respondent filed a suit for partition and separate possession alleging that the suit properties were self acquired properties of her father; that on his death, herself, her mother and her brother the first defendant/ appellant became entitled to equal share by operation of law and that her mother settled her undivided 1/3rd share on the first respondent and thus she was entitled to 2/3rd share. The appellant contested the suit stating that the property was a coparcenary property in which he had half share and the remaining undivided half share belonged to his father; that on his death he inherited 1/3rd of his fathers share and thus he was entitled to 2/3rd share. Though the trial Court agreed with the first respondents case and granted a preliminary decree declaring that the first respondent was entitled to 2/3rd share in the suit property, the first appellate Court agreeing with the contentions of the appellant held that the suit properties were coparcenary properties; that the appellant was entitled to 2/3rd share and modified the decree declaring that the first respondent was entitled to 1/3rd share in the suit properties along with future mesne profits. As rightly contended by the learned counsel for the first respondent, the appellant did not offer anything as to the maintainability of the suit stating that though the first respondent was entitled to an undivided share in the dwelling house, she was prohibited from instituting a suit for partition in view of the statutory interdict provided under Sec.23 of the Hindu Succession Act on her to claim for partition. However, this contention was raised by the appellant herein before the first appellate Court and the same was rejected holding that the suit was maintainable. Hence the only question that would arise for consideration in this second appeal would be whether Sec.23 of the Hindu Succession Act can be applied to the present facts of the case to hold that the suit filed by the first respondent herein was premature. 10. Hence the only question that would arise for consideration in this second appeal would be whether Sec.23 of the Hindu Succession Act can be applied to the present facts of the case to hold that the suit filed by the first respondent herein was premature. 10. First it would be more advantageous to reproduce Sec.23 of the Hindu Succession Act which runs as follows: “Section 23: Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I 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.” In the instant case it is an admitted position that the immovable property described in ‘A’ schedule which includes ‘B’ schedule property, is a dwelling house. The first respondent has specifically averred in the plaint that the first defendant has illegally leased out the suit property to the second defendant/ second respondent and hence he was liable to pay mesne profits. The appellant/ first defendant in the course of his written statement has also categorically admitted that while he let out a part, he was occupying the rest of the property. From the above it would be clear that the contention of the first respondent that the appellant has let out a part of the dwelling house to a third party, who has been occupying the same, is true and correct statement of facts. Hence it cannot be stated that the dwelling house in question was wholly occupied by the appellant or members of his family. In the instant case the members of the family who are entitled to the undivided share in the property in question are one female member viz., the first respondent and one male member being the appellant. Hence it cannot be stated that the dwelling house in question was wholly occupied by the appellant or members of his family. In the instant case the members of the family who are entitled to the undivided share in the property in question are one female member viz., the first respondent and one male member being the appellant. When the only male member viz., the appellant had chosen to introduce a stranger into the dwelling house by parting with a portion of the property by leasing it out, it would not be satisfying the concomitants which are attached to and integrated with the dwelling house. The appellant herein, the only male member of the family, in the presence of the first respondent the other female member, has chosen to let out major part of the dwelling house to a third party. It can neither be stated that the said dwelling house is wholly occupied by the male member nor would the property no longer be called a dwelling house, as mentioned in the special provision made under Sec.23 of the Hindu Succession Act. Hence the interdict contemplated under Sec.23 of the Hindu Succession Act would not apply to the present facts of the case where the only male member viz., the appellant in the presence of the only female member the first respondent, but without her consent has allowed a stranger to occupy a part of the dwelling house on rental basis by which the property has lost its character as a family dwelling house. But it has become an ordinary house. 11. It is true that the appellant who is a male member of the family has not alienated his share or any part of the property by way of sale. But it is not the test to be applied to decide whether the statutory interdict imposed on a female heir to claim partition of the dwelling house until the male member chooses to divide their respective shares therein. The real test to be applied is whether the house property in question is a dwelling house and is being inhabited by one or some members of the intestates family. The real test to be applied is whether the house property in question is a dwelling house and is being inhabited by one or some members of the intestates family. “Wholly occupied by the members of the family”found in Sec.23 of the Act would clearly indicate that one or more members of the family of the intestate should wholly occupy the dwelling house left by him and that not even any portion of the said house should be occupied by somebody else. A Full Bench of the Hon’ble Apex Court had an occasion to interpret and consider the application of Sec.23 of the Hindu Succession Act in a case reported in Narashimha Murthy v. Susheelabai and others Narashimha Murthy v. Susheelabai and others Narashimha Murthy v. Susheelabai and others A.I.R. 1996 S.C. 1826 wherein it has been held as follows: “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. A dwelling-house is that house which is in actual, physical, inhabited possession of one or more members of the intestates family in stricto sense, and if some are absent due to exigencies of serve or vocations, the dwelling-house remains available for them to re-enter without any obstruction or hindrance and on that premises enabling the female heir to assert a right of entry and residence therein. A tenanted house does not fit into this description. A house tenanted brings in strangers and it ceases to be a dwelling-house inhabited by members of the family. It may be a dwelling-house in the structural sense but it cannot be said to be a dwelling-house in habitation by the members of the intestates family. 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 and deprive them of the right to residence therein as also their right to partition; an incidence normal, to the opening of succession. 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 and deprive them of the right to residence therein as also their right to partition; an incidence normal, to the opening of succession. Thus 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 on 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.” Applying the aforesaid decision of the Hon’ble Supreme Court to the present facts of the case, it has to be necessarily held that the appellant who has created third party rights by entering into an agreement of tenancy and allowing a third party to occupy major part of the property in question, has no right to resist the claim for partition by the female member viz., the first respondent herein. Neither it can be stated that the house property in question is impartible nor can be stated that the right of the female heir to claim partition is deferred and kept in abeyance. Hence the contention of the appellants side that the suit filed by the first respondent is premature in view of the bar under Sec.23 of the Hindu Succession Act cannot be countenanced. The Court is of the view that there are no merits in this second appeal and all the contentions put forth by the appellants side do not merit acceptance by the Court. 12. In the result, this second appeal is dismissed. The judgment and decree of the first appellate Court are confirmed. Parties shall bear their costs.