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Bombay High Court
Lata @ Bhagyashree vs Madhukar on 8 July, 2008
Bench: V.R. Kingaonkar
            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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     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 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.”

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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