IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.543 OF 2004
Lata @ Bhagyashree w/o Arunkumar
Sangole, aged 42 years,
Occu.Household r/o Mangrulpeer,
District Akola .. Appellant
(Orig.Pltff.No.1)
(Note : Orig.Plaintiff No.2/Appellant
No.2 Subhadrabai w/o Rajaram
Ganjare died during the pendency
of appeal, hence her name was
deleted)
Versus
1. Madhukar s/o Rajaram Ganjare
(died) through his L.Rs. :
1(a)
Shakuntalabai w/o Madhukar Ganjare
Age 50 years, Occu.Household,
R/o Gita Nagar, Eklare's Wada,
Opp.Kunal Kunj Building Niwas,
Nanded.
1(b) Manoj s/o Madhukar Ganjare,
Age 22 years, Occu.Student,
R/o As above.
1(c) Soni @ Mohini w/o Suresh Korde,
since deceased deleted as per
order dated 27.4.2007
1(d) Manju w/o Girish Kahat,
Aged 28 years, Occu.Household,
R/o Nanalpeth Teli Galli,
Parbhani.
1(e) Manisha w/o Vishnudas Kulkarni,
Aged 30 years, Occu.Household,
R/o Kamalkunj Niwas, Gita Nagar,
Nanded.
2. Subhash s/o Narayanrao Gudewar
.. Respondents
(Orig.Defedts.)
Mr.S.V.Gangapurwala, Advocate holding for Mr.Vijay
Sharma, Advocate for the appellant
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- 2 -
Mr.S.P.Deshmukh, Advocate for respondent No.1 (b)
Mr.Vivek Bhavthankar, Advocate for respondent No.2
Respondent No.1 (a), 1(d) served.
Name of respondent Nos.1 (c) deleted.
Respondent No.1 (e) served through paper publication.
.....
CORAM : V.R. KINGAONKAR, J.
Date of Reserving the Judgment : 2.7.2008
Date of Pronouncing the Judgment: 8.7.2008
JUDGMENT
1. Challenge in this second appeal is to Judgment
rendered by learned Second Ad-hoc Additional District
Judge, Nanded, in an appeal (R.C.A.No.132 of 2000)
confirming
Judgment and decree rendered by learned
Joint Civil Judge (J.D.), Nanded in a suit for
partition and perpetual injunction (Spl.C.S.No.375 of
1997).
2. Subject matter of the dispute is a residential
house, (which will be referred hereinafter as “the
suit house”) bearing C.T.S.No.2931 as described in
claim clause. The suit house is situated in
Chikhalwadi area at Nanded. One Rajaram Ganjare
owned the suit house. He died somewhere in 1991,
leaving behind him a son, a daughter and a widow.
Deceased defendant – Madhukar was his son, deceased
plaintiff No.2 – Subhadrabai was the widow and
plaintiff No.1 – Lata, who is appellant herein, is
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the only married daughter left by said Rajaram
Ganjare. The plaintiff’s marriage was performed
somewhere in 1975-76. She resides with her husband
at Mangrulpeer (District Akola).
3. At the time of death of Rajaram Ganjare, the
suit house was occupied by the sole surviving male
member Madhukar (defendant) being his only son and
plaintiff No.2 – Subhadrabai being his widow.
4. Appellant – Lata and her deceased mother
(Subhadrabai) filed suit (Spl.C.S.No.375 of 1997) for
partition
and separate possession of the suit house
and for perpetual injunction restraining defendant –
Madhukar from alienating the suit house. They also
claimed mesne profits. They asserted that deceased
defendant – Madhukar and his wife alongwith their
children gave ill-treatment to plaintiff No.2 –
Subhadrabai. Defendant – Madhukar refused to
maintain the mother. Consequently, both of them
claimed their shares and filed the suit. The suit
was resisted by deceased defendant – Madhukar on the
ground that the plaintiffs had relinquished their
rights in the suit house in the year 1989. He
asserted that deceased Rajaram had executed a Will
deed dated 1.8.1989 in his favour and had bequeathed
the suit house to him. He contended that the
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plaintiffs were not entitled to claim any partition
of the suit house, which is a dwelling house of the
joint Hindu family. He, therefore, sought dismissal
of the suit.
5. The parties went to trial over certain issues
struck below Ex.29 by the trial Court. They adduced
oral and documentary evidence in support of the rival
contentions. The trial Court held that
relinquishment of rights by the plaintiffs was not
proved. The trial Court came to the conclusion that
the plaintiffs cannot claim partition of the family
dwelling house in view of legal embargo enumerated in
Section 23 of the Hindu Succession Act. The suit for
relief of partition was, therefore, dismissed.
However, injunction was clamped restraining deceased
defendant – Madhukar from alienating the portion of
suit house, which was in the possession of plaintiff
No.2 – Subhadrabai during her lifetime.
6. In the first appellate Court, respondent No.2
– Subhash was joined as a party on the allegation
that he has purchased a part of the suit house from
deceased defendant – Madhukar. The first appellate
Court, however, held that mere joining of respondent
No.2 – Subhash in the title of the appeal memo was of
no consequence without amending the pleadings. The
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first appellate Court noticed that no relief was
sought as against the subsequent purchaser nor any
ground was added in the appeal memo in this behalf.
The first appellate Court also noticed that transfer
of a part of the suit house in favour of respondent
No.2 – Subhash was not supported by any documentary
evidence nor due to such intervening change further
relief was claimed by the plaintiff/appellant.
7. There are subsequent changes, which occurred
during pendency and before filing of the Second
Appeal. First, original plaintiff No.2 - Subhadrabai
died before
filing of the second appeal and,
therefore, this second appeal is only at instance of
the married daughter i.e. appellant Smt.Lata alias
Bhagyashri. Secondly, after filing of the second
appeal, original defendant No.1 - Madhukar died and
his legal representatives have been brought on
record. Respondent No.1 (b) is the son of deceased
defendant - Madhukar and is, therefore, the sole
surviving male member of the joint Hindu family.
8. This second appeal was admitted on a single
substantial question of law, which is reproduced as
follows :
” Whether legal bar u/s 23 of the Hindu
Succession Act is lifted on account of amendment Act
No.39/2005 of the said provision and such amendment
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is retrospectively applicable as well whether due to
subsequent development, namely death of the sole
surviving male coparcener i.e. defendant No.1 –
Madhukar, now such legal embargo stands declamped ?”
9. Heard Counsel.
10. The two legal questions of significance need
consideration. First, whether elimination of Section
23 of the Hindu Succession Act under the Amendment
Act No.39 of 2005 now gives right to the appellant to
claim her share in the suit house at par with that of
deceased Madhukar, who was her brother. Secondly, it
needs
Madhukar,
to
be examined whether due to death
now the bar created under Section 23 would
of said
not be attracted and that the partition could be
effected in respect of the suit house.
11. Though the deceased defendant alleged that the
plaintiffs had relinquished their rights, yet he
could not establish such a plea. Nor he had pressed
into service the issue regarding his exclusive
ownership on account of the Will deed executed by his
father on 1st August 1989. Obviously, it would not
be necessary to go into such questions in this second
appeal. Nor they have been raised by learned Counsel
for the respondents.
12. Mr.Gangapurwala, holding for Mr.Sharma, would
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submit that the intervening changes in the facts and
the law may be considered. He strongly relied upon
"S.Sai Reddy v. S.Narayan Reddy and others" (1991
AIR SCW 488).
488) The Apex Court considered effect of
clause (ii) of Section 29A of the Amendment Act. It
is held that the intervening event, which gave shares
to the respondent Nos.2 to 5 (female members) had the
effect of varying shares of the parties like any
supervening development. The Apex Court observed :
” Since the legislation is
beneficial and placed on the statute
book
with the avowed object
benefiting women which is a vulnerable
section of the society in all its
of
stratas, it is necessary to give a
liberal effect to it. For this reason
also, we cannot equate the concept of
partition that he legislature has in
mind in the present case with a mere
severance of the status of the
joint-family which can be effected by an
expression of a mere desire by a family
member to do so. The partition that the
legislature has in mind in the present
case is undoubtedly a partition
completed in all respects and which has
brought about an irreversible situation.
A preliminary decree which merely
declares shares which are themselves
liable to change does not bring about
any irreversible situation. Hence, we
are of the view that unless a partition
of the property is effected by metes and
bounds, the daughters cannot be deprived
of the benefits conferred by the Act.
Any other view is likely to deprive a
vast section of the fair sex of the
benefits conferred by the amendment.”
13. Clinching question is as to whether the
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amended provision contained in Section 29A of the
Hindu Succession Act can be invoked in the present
case. The law, which existed prior to such
amendment, may be briefly stated. Section 23 of the
Hindu Succession Act, 1956 is a special provision
respecting dwelling house. It reads as follows :
“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 occupiedby members of his or her family, then,
notwithstanding anything contained in thisAct, 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 sharestherein; 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 thedwelling-house only if she is unmarried or
has been deserted by or has separated fromher husband or is a widow.”
14. A plain reading of proviso appended to Section
23 would make manifestly clear that a married
daughter was not given right of residence in a
dwelling-house unless she was deserted by or had
separated from her husband. Needless to say, the
appellant’s case is not covered under the proviso
appended to the Section. In her lifetime, deceased
Subhadrabai used to reside in the suit house. It was
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the view of Bombay High Court that where a sole
surviving male coparcener is in possession of
dwelling-house, the legal embargo would not be
applicable. This view expressed in “Anant vs.
Janaki Bai” (AIR 1984 Bombay 319) is disapproved by
the Apex Court in “Narashimaha Murthy v.
Smt.Susheelabai and others” (AIR 1996 SUPREME COURT
1826).
1826) The Apex Court, in clear terms, held that
Section 23 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. The Apex Court observed
that the legislature intended that during the
life-time of 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. It was in order to prevent
hardship and unjust situation, the special provision
was made in Section 23 of impartibility of the
dwelling house. The Apex Court further observed that
Section 44 of the Transfer of Property Act and also
Section 4(1) of the Partition Act prevented
fragmentation of the ancestral dwelling house. The
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purpose of law is to prevent brooding sense of
injustice.
15. It is argued that due to death of original
defendant – Madhukar, the legal bar is now
inapplicable. I do not agree. Not only defendant –
Madhukar but his son (respondent No.1-(b) Manoj) are
the male members, who were residing in the suit
house. The residence of respondent No.1(b) Manoj in
the suit house would continue the process of keeping
right of the appellant in abeyance. She cannot claim
partition in the dwelling house when the same is
occupied by
respondent No.1 (b) – Manoj and other
members of the family. I am of the opinion that due
to death of Madhukar, there will be no change in the
legal position qua the present appellant.
16. Coming to the question of effect of the change
due to Amendment Act No.39 of 2005, it is important
to note that Section 29A is added under Chapter II-A.
No doubt, it gives equal rights to daughter in
coparcenery property irrespective of limitations
contained in Section 6 of the Hindu Succession Act.
By the amended Act, Section 23 and Section 24 of the
Hindu Succession Act, 1956 have been omitted. The
omissions of these two Sections, of course, has nexus
with introduction of Section 29A under Chapter II-A.
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Section 23 stands omitted under the amended Act in
order to pave the way for effective operation of
Section 23A. The amended provision of Section 29A is
introduced under Chapter II-A, which is part and
parcel of Chapter II of the Hindu Succession Act,
which contains Section 23. The provision of Section
29A, as applicable to the State of Maharashtra
reveals that the Chapter II-A shall not apply to a
daughter married before the date of the commencement
of the Hindu Succession (Maharashtra Amendment) Act,
1994. Thus, the daughters, who had married before
the commencement of the Hindu Succession (Maharashtra
Amendment)
Act, 1994 are kept outside the beneficial
zone of the amended provision of Section 23A. In
other words, the provision would be available
prospectively. In the present case, the appellant
was married much prior to commencement of the Hindu
Succession (Maharashtra Amendment) Act, 1994 (MAH XL
of 1994). Hence, she cannot claim benefit of Section
29A. The omission of Section 23 under the Amendment
Act does not open floodgate to the ineligible female
heirs for the purpose of seeking partition of
dwelling house. Their rights are still in abeyance
until the male heir is in occupation of the dwelling
house. Under these circumstances, the appellant is
not entitled to claim partition of the suit house.
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17. In the result, the second appeal fails and is
accordingly dismissed. No costs.
( V.R.KINGAONKAR )
JUDGE
(vvr/sa543.04)
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