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Punjab High Court · body

2009 DIGILAW 1874 (PNJ)

Amrit Lal v. Nusrat

2009-11-02

SABINA

body2009
Judgment 1. Plaintiffs-respondent Nos. 1 to 4 filed a suit for partition, which was dismissed by the Additional Senior Sub-Judge, Batala vide judgment and decree dated 31.7.1992. In appeal, the said judgment and decree were set aside by the Additional District Judge, Gurdaspur vide judgment and decree dated 19.3.1997 and the suit of the plaintiffs was decreed. Hence, the present appeal by the defendant No. 1. 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under: "2. Nusrat and others plaintiffs-appellants filed suit for partition of the property fully detailed in the heading of the plaint on the averments that Anayat Masih was the owner of the house in dispute who has since died and plaintiffs 1 to 3 are his daughters, and defendant Nos. 2 and 3 are also his daughters, whereas, defendant No.1 is his son. Gulzar-deceased was his widow. It is averred that Anayat Masih died intestate leaving behind plaintiffs 1 to 3 and defendants 1 to 3 and Gulzar as his heirs. According to the plaintiffs after the death of Anayat Masih the house in dispute devolved upon the aforesaid seven persons to the extent of 1/7th share each. According to the plaintiffs, Gulzar has sold her share in favour of plaintiff No. 1 vide sale deed dated 18.1.1983. It is further pleaded that Nusrat transferred her l/7th share in favour of the plaintiff No.4 Mohinder Singh. They have further pleaded that plaintiffs 1 to 4 and defendants 1 to 3 are owners in the disputed house to the extent of l/7th share each. The plaintiffs have further pleaded that they do not want to keep their share joint with the defendants and as such they filed suit for partition of the house fully detailed in the headnote of the plaint. 3. In his written statement, defendant No. 1 has pleaded that plaintiffs are not entitled to partition of the house by metes and bounds. The plaintiffs have no cause of action and the plaintiffs are required to affix ad valorem court-fee on the market value of the property, and as such the suit is not properly valued for the purpose of court-fee and jurisdiction because of the fact that the plaintiffs are not in possession of the disputed house. The plaintiffs have no cause of action and the plaintiffs are required to affix ad valorem court-fee on the market value of the property, and as such the suit is not properly valued for the purpose of court-fee and jurisdiction because of the fact that the plaintiffs are not in possession of the disputed house. It is further averred by defendant No.l in the written statement that he is owner in possession of the disputed house and that the plaintiffs have no right, title or interest in the house in dispute and they are not entitled to get the disputed house partitioned." 3. On the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiffs have locus standi to file the present suit? OPP 2. Whether the suit is not valued for the purpose of court-fee and jurisdiction? OPP 3. Whether Smt. Gulzar Kaur has sold her share in favour of plaintiffs? OPP 4. Whether Nusrat has sold l/7th share in favour of the plaintiff No. 4? OPP 5. Whether the plaintiffs are entitled to get the house partitioned? OPP 6. Relief 4. The plaintiffs had field a suit for partition of the house in dispute. 5. Learned counsel for the appellant has submitted that as per Section 23 of the Hindu Succession Act (for short the Act) a female heir cannot claim partition of the property inherited by her from her father along with other heirs. 6. Learned counsel for the respondents, on the,other hand, has submitted that in the present case, defendant No.1 was the only male heir of the deceased-Anayat Masih. Plaintiff Nos. 1 to 3 and defendant Nos. 2 and 3 were the daughters of Anayat Masih and hence, the female heir could seek partition of the property in dispute. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Anant Gopalrao Shende v. Jankibai Gopalrao Shende and others, AIR 1984 Bombay 319, wherein it was held as under : "Where a Hindu male dies intestate leaving one male heir and other female heirs, the female heirs can claim partition of the family dwelling house. Section 23 is no bar to such a claim. Section 23 is no bar to such a claim. The statutory rights bestowed and conferred by Section 8 on the female heirs are restricted or curtailed respecting dwelling house only under the circumstances envisaged under Section 23, the purpose being to defer actual partition of the family dwelling house which is actually in occupation of the members of the family of the intestate until the male members themselves choose to destruct their joint status. This exception and restriction must be construed strictly and strongly and it is, in fact, implied that no other exceptions are contemplated by the legislature. Firstly, therefore, in the case of single or sole male heir, there is no joint family, no joint family dwelling of joint family members and, therefore, there is no object and no purpose, that is calculated, to be served by keeping the devolution of female heirs in abeyance. Secondly, to construe this section to mean that the restriction applies even in cases where there is only one heir of the intestate, would be to construe it beyond the puipose plainly indicated and to forfeit, verily, the established and vested rights of the female heirs, when they take as tenants- in-common with the single male heir. In determining the true scope and applicability of Section 23, the consideration of comparative hardship between the single male heir and the female heirs, is out of place and has no relevance. Now, when there are only two male heirs prejudice and hardship is bound to be caused to them also, in the event of their choosing to sever and divide. On the other land , where a male heir and his step sister or his niece (deceaseds brothers daughter) are the only two heirs of Class-I, hardship and prejudice to him would be less as compared to that caused to such a female heir, if she is to be perpetually deprived of her right of succession bestowed on by law. Section 13(2) of the General Clauses Act, which mentions that "words in the singular shall include the plural and vice versa", cannot be made applicable for construing the words "male heirs" occurring in Section 23 of the Act of 1956 as to include " a single male heir". Section 13 opens with the expression, " unless there is anything repugnant in the subject or context". Section 13 opens with the expression, " unless there is anything repugnant in the subject or context". The expression "respective" appearing in Section 23 of the Act of 1956 cannot be given any effect, if the Court is to construe "male heirs" as to include "male heir" with the aid of Section 13 of the General Clauses Act. Thus, in the context in which the words "male heirs" is used in Section 23, it would not include a singular." 7. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Section 23 of the Act reads as under: "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." 8. A perusal of the above provision reveals that a female heir is debarred to claim partition of the dwelling house unless other male heirs seek partition. However, learned counsel for the appellant has failed to controvert the decision rendered in Anant Gopalrao Shendes case (AIR 1984 Bom 319) (supra). 9. Learned counsel for the respondents has submitted that the parties were Christians and hence, Hindu Succession Act was not applicable to them. However, a reading of the pleadings does not reveal that the parties are Christians. Although from the names of the parties it can be inferred that they are Christians. Be that as it may, learned Additional District Judge had rightly decreed the suit of the plaintiffs basing reliance on the judgment passed in Anant Gopalrao Shendes case (supra). 10. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. Appeal dismissed.