Jagtar Singh vs Satnam Kaur

R.L. Anand, J.—Jagtar Singh son of Manohar Singh, defendant No. 3 in the trial Court and brother of Satnam Kaur plaintiff, has filed the present appeal and it has been directed against the judgment and decree dated 17.10.1998 passed by Addl. District Judge, Jalandhar, who dismissed the appeal of Jagtar Singh and affirmed the judgment and decree dated 24.4.1996 passed by Civil Judge (Junior Division), Jalandhar, who passed a preliminary decree for possession by way of partition of the property fully described in the headnote of the plaint declaring that Satnam Kaur is the owner to the extent of th share of the property in dispute.

The pleadings of the parties can be summarised in the following manner :

The case set up by the plaintiff Satnam Kaur is that property No. PW17 known as Lal Kothi (also bearing No. BX155380) situated in Basti Sheikh, Jalandhar, fully described in the headnote of the plaint, was owned and possessed by her mother Joginder Kaur. The plaintiff and defendants No. 1 and 2 are the daughters of said Joginder Kaur while Jagtar Singh, present appellant, is the son. The property was the ownership of Joginder Kaur who died on 24.4.1983 leaving behind the four heirs namely Satnam Kaur, Iqbal Kaur, Basant Kaur and Jagtar Singh and in this manner the plaintiff is the legal heir in the estate of her mother to the extent of 1/4th share. The plaintiff further alleged that she along with defendants Nos. 1 to 3 was in possession of the property and no division has taken place. She does not want to keep the property joint. She requested the defendants to partition the property by meets and bounds on account of unpleasantness between her and the defendants but they have refused to do so. Hence the suit.

The notice of the suit was given to the defendants. Defendants No. 1 and 2 were proceeded ex parte. However, the suit was contested only by defendant No. 3 Jagtar Singh, who filed written statement and took the preliminary objections such as that the suit is not properly valued for the purposes of court fee and jurisdiction; that the court had no pecuniary jurisdiction to entertain the suit. On merits, the stand of this defendant in short was that the property in dispute is a residential one and, therefore, the daughters have no right to seek partition as per the provision of Section 23 of the Hindu Succession Act. However, this defendant admitted that the plaintiff is his sister. He also admitted that the property was owned by his mother Joginder Kaur who purchased the same in open auction and sale certificate was issued in her favour on 31.8.1961.

The plaintiff filed the rejoinder to the written statement of defendant No. 3 in which she reiterated her allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, the learned trial court framed the following issues :

Whether the plaintiff is entitled for separate possession by partition of 1/4th share of the plaintiff in suit property ? OPP

Whether the suit has been properly valued ? OPD

Whether the plaintiff as no locusstandi to file the present suit ? OPD

Relief.

The parties led oral and documentary evidence in support of their respective cases and on conclusion of the trial, issue No. 1 was decided in favour of the plaintiff, while issues Nos. 2 and 3 were decided against the defendant No. 3 and lastly a preliminary decree for possession was passed against the defendants for separate possession by way of partition of 1/4th share of the plaintiff. The reasons given by the trial court in deciding issue No. 1 in favour of the plaintiff are given in paras Nos. 6 and 7 of the judgment.

Aggrieved by the judgment and decree of the trial court, Jagtar Singh filed the first appeal in the court of Addl. District and Sessions Judge, Jalandhar and the first appellate court for the reasons given in paras Nos. 7 and 8 of the judgment, which are reproduced as under, dismissed the appeal.

"7. The learned counsel for the appellant Shri S.S. Bhatia, has vehemently contended that the property in dispute, was residential and dwelling house of Joginder Kaur where her son and daughters resided and, therefore, in view of Section 23 of the Hindu Succession Act, the daughters were not entitled to claim partition unless male heirs agree. In support of his contention as has referred to AIR 1996 Supreme Court 1826 : 1996(2) RRR 277 (SC), Narashimaha Murthy v. Smt. Susheelabai and others. He further contended that since the property in dispute is a dwelling house and the appellant is not agreeing to the partition, the plaintiff is not entitled to get the partition and as such the judgment and decree is liable to be set aside. On the other hand, learned counsel for the plaintiff has contended that when character of property is solely not residential but major part is used for commercial purposes and that too by way of renting of the shops, the provision of Section 23 of the Hindu Marriage Act are not applicable and as such the suit has been rightly decreed because PW.2 Surinder Pal Singh and PW3 Harmit Singh admitted that there were shops in the property, in dispute which were on rent.

Section 23 of the Hindu Succession Act clearly lays down that where a Hindu intestate has left surviving him/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 the 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. It is, therefore, clear that when a Hindu dies leaving behind male and female heirs, the dwelling house cannot be partitioned at the instance of female heirs until the male heirs agreed to the same. Previously there was difference of opinion whether in case of sole male heir, female has right to claim partition or not but now the law has been settled by the highest court of the country in AIR 1996 Supreme Court 1826, Narashimaha Murthy v. Susheelabai and others. It was held that Section 23 of the Hindu Succession Act applies and prohibits partition of the 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 heirs 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. But in the same case it was further held that a dwelling house is that house which is in actual physical possession by one or more members of the intestate family. It was further held that a house tenanted brings in strangers and it ceases to be a dwelling house. It was further held that it is incumbent upon 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 male to resist partition. In Kusum Walia v. Tarawati and Ors., 1998(1) Civil Court Cases 552 (P&H) it was held that when character of property is solely not residential but major part is used for commercial purposes and that too by renting out shops, the provision of Section 23 of the Hindu Succession Act, are not applicable and the suit is maintainable. The law is, therefore, settled that female heir cannot seek partition of a dwelling house but if the house is not solely a residential and its major part issued for commercial purposes then the provisions of Section 23 are not applicable. In the present case, no doubt, the defendant claimed that the house in dispute was family house but PW2 Surinder Pal Singh PW3 Harmit Singh admitted that there were shops. PW2 admitted in the crossexamination that there may be 78 shops in the kothi on the front side and one of them is a Halwai shop and in one shop there is printing press. Similarly, Harmit Singh, PW3, admitted in the crossexamination that there are shops built in the kothi which are 4 or 5 in number and one shop is of Halwai and in the second there is printing press but he did not know the nature of the other shops. It is thus clear that house, in dispute, is not a solely residential house rather it consists of shops and as such, it does not come within the definition of dwelling house. Since the property in dispute is not a dwelling house, the suit is maintainable and Satnam Kaur has got right to seek partition. In this view of the matter, I am of the opinion, that the trial Court has rightly decided the issues and the findings of the trial court on the issues are affirmed."

Aggrieved by the judgment and decree of the first appellate court, the present Regular Second Appeal.

A caveat was also filed on behalf of the plaintiff through her counsel.

I am disposing of this appeal at the motion stage itself with assistance rendered by Mr. Kanwaljit Singh, Advocate, who appeared on behalf of the appellant, Mr. I.S. Ratta, Advocate, who appeared on behalf of the contesting respondent and with their assistance I have gone through the records of this case.

The principal defence of the appellant before the Courts below was that plaintiff Satnam Kaur cannot seek the partition of the dwelling house by virtue of provisions of Section 23 of the Hindu Succession Act. The learned counsel for the appellant also submitted that it is the case of the plaintiff herself that the property in dispute was a dwelling unit and the evidence which has been led by the plaintiff to show that the property has also the shops cannot be looked into because this evidence is beyond the pleadings of the parties. It was also the contention of Mr. Kanwaljit Singh that the property in dispute cannot be held to be nondwelling unit until and unless it is established that the major portion of the property is being used for commercial purposes. Mr. Kanwaljit Singh further submitted that the area of the Kothi in dispute is about 3 Kanals and if the entire concession is given to the plaintiff, the shops are only in the area of 3 marlas occupied by the different tenants and in these circumstances the plaintiff Satnam Kaur by virtue of the bar under Section 23 of the Hindu Succession Act cannot seek the partition.

On the contrary, the counsel for the respondentplaintiff submitted that the bar of Section 23 of the Hindu Succession Act will not come into play because the property in dispute is not wholly a dwelling house. There are six shops forming integral part of the property and in these circumstances the property is liable to be partitioned at the instance of Satnam Kaur, who, admittedly, is the daughter of Joginder Kaur, who died intestate and the plaintiff is Class I heir.

In these circumstances, the controversy revolves on the short ground whether the property in question can be partitioned at the instance of Satnam Kaur or not. Section 23 of the Hindu Succession Act lays down as follows :

"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 dwellinghouse 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 dwelllinghouse only if she is unmarried or has been deserted by or has separated from her husband or is a widow."

The object of Section 23 of the Hindu Succession Act is to restrict the right of a female heir to claim partition of the dwellinghouse, until the male heirs chose to divide their respective shares therein. The legislature wanted to protect a male heir specified in class I so that he may be able to live in a dwelling unit wholly occupied by the members of the last holder of the property. Before Section 23 of the Hindu Succession Act is attracted in a particular case, it has to be established that the property of which the partition has been sought by a female is a dwelling house and the same is wholly occupied by the members of his or her family. The stress is on the word "wholly". The legislature has introduced the word "wholly" with a specific purpose. If the property is not wholly occupied by the family members, it loses the sanctity and cannot defeat the claim of the female heir. The law courts are supposed to interpret the provisions of enactment as those are and every word incorporated by the legislature while drafting a statute has to be seen that it has a meaning.

Now we have to revert to the nature of the property as to whether it is a dwelling unit wholly occupied by the members of the family or it is partly residential and partly commercial. Reference can be made to the plaint itself wherein Satnam Kaur has described the property not only by municipal numbers but also by boundaries and further the site plan Ex.PC has also been attached with the plaint. According to the boundaries, in the north there is a property of Mehma Singh and on the southern side there is a road. On the eastern side there is property of Parmanand and on the west there is a road. A perusal of site plan Ex. P3 would show that there are six shops on the southern side of this Kothi abutting the main road and these six shops are the integral part of the property unit No. WP17 known as ''Lal Kothi'' situated at Basti Sheikh, Jalndhar and also bearing municipal No. BX155380. There is no dispute with the proposition of law propounded by Mr. Kanwaljit Singh that no amount of evidence can be looked into which is beyond the pleadings of the parties. But the plaintiff in this case has described the property, regarding which she wanted partition, by boundaries also. If those boundaries include the six shops forming integral part of the property, certainly the evidence can be led in this behalf and it cannot be said that the evidence which has been led by the plaintiff is beyond the pleadings of the parties. Surinder Pal Singh and Harmit Singh were examined as witnesses and they admitted that there are 7/8 shops in the Kothi on the front side and in one of the shop there is a Halwai and in other there is a printing press. Even this aspect is not being disputed by the learned counsel for the appellant that the shops in question are forming integral part of the property. But his contention is that these shops have been constructed over an area measuring 3 Marlas whereas the total area of the property is about 3 Kanals. Till a large portion of the unit of which the partition has been sought is commercial area or a nonresidential area, it cannot be said that the property has ceased to be a dwelling unit. I am not in concurrence with the argument raised by the learned counsel for the appellant for the reason that to preserve the sanctity of a unit as a dwelling house it has to be established first that such dwelling house is wholly occupied by the members of the family of the person who was the last holder of the property. I have examined this argument of Mr. Kanwaljit Singh in further depth whether this unit is liable to be sold in execution and whether the judgmentdebtor could take a plea that in Punjab the residential house of a judgmentdebtor is not subject to attachment and sale. The answer of this court is in the negative for the reason that this unit has six commercial shops and in these circumstances when the unit is ultimately liable to be attached and sold and that a judgmentdebtor cannot take the advantage of Section 60(1)(ccc) of the Code of Civil Procedure as applicable to the State of Punjab, how it can be said that this is a dwelling unit wholly occupied by the members of the family. The things do not rest here. For the sake of supposition if the residential portion of this property is partly occupied by two tenants or a tenant, how it can be stated that this Kothi is wholly occupied by the members of the family. Moment the holder of the property has let out any part of the property and his or her members of the family are not residing in the unit, it will cease to be a dwelling house wholly occupied by the members of his or her family and in such a situation a female heir of class I can certainly exercise her right of partition against her brother. It has been held in Narashimaha Murthy v. Smt. Susheelabai and Ors. 1996(2) CCC 86 (SC) that in the legal world the word "dwellinghouse" is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self acquired, as understood in the law applicable to Hindus. In the contest of Section 23 therefore when the legislature has chosenly employed the word "dwellinghouse", it has done so with a purpose, which is to say that on the death of the intestate a limited status quo should prevail as existing prior to his or her death. His or her abode, shared by him or her, with members of his or her family, identifiable from Class I Heirs of the Schedule, should continue to be in enjoyment thereof, not partible at the instance of the female heirs till the male heirs choose to effect partition thereof. Further it was held that the right of residence of the female heirs specified in Class I of the Schedule, in order to be real and enforceable, presupposes that their entitlement cannot be obstructed by any act of the male heirs or rendered illusory such as in creating third party rights therein in favour of others or in tenanting it, creating statutory rights against dispossession or eviction. The Hon''ble Supreme Court further held that this section protects only a dwellinghouse, which means a house wholly inhabited by one or more members of the family of the intestate, where some or all of the family members, even if absent for some temporary reason, have the animus reverted. In our considered view, a tenanted house therefore is not a dwellinghouse, in the sense in which the word is used in Section 23. It may be a dwellinghouse in the structural sense but it cannot be said to be a dwellinghouse in habitation by the members of the intestate''s family.

If the present case is examined in the light of the observations made by the Hon''ble Supreme Court, it can be safety said that though the property from the structural point of view is a dwelling house but it is not wholly occupied as required under Section 23 of the Hindu Succession Act. Therefore, the defence which has been taken up by the appellant is not valid. The learned counsel for the appellant also referred to the provisions of Section 2(d) and 2(g) of the East Punjab Urban Rent Restriction Act, 1949 and submitted that as per Section 2(d) "nonresidential building" means a building being used solely for the purpose of business or trade and as per Section 2(g) "residential building" means any building which is not a nonresidential building. The learned counsel wanted to build the argument that since the property in dispute is not solely being used for the purpose of business or trade, therefore, it will be considered a residential unit. I am not inclined to accept this contention because the two definitions upon which the reliance has been placed by the learned counsel for the appellant cannot be stretched for the purpose of Section 23 of the Hindu Succession Act. Those definitions are purely for the purpose of Rent Restriction Act so as to determine the right of a landlord and tenant with respect to such nature of properties. Here the term "a dwelling house wholly" has been used in the different context. The provisions of Section 23 have been interpreted by the Calcutta High Court also in Gita Mukherjee v. Prabhat Kumar Dutta, 1988(2) C.C.C. 409 where it was held that if the whole of the house is not occupied by the members of the family, the bar of Section 23 of the Act cannot be set up. Of course, in the cited case a considerable portion of the property was let out to the tenants, however in the view of this court considerable portion or a small portion will not make a difference because in both the eventualities the dwelling house cannot be said to have been wholly occupied. In these circumstances, the female heir would not be debarred from claiming partition by virtue of the bar under Section 23 of the Hindu Succession Act.

The point was also considered by this Court in Kusum Walia v. Tarawati, 1998(1) RCR (Civil) 739, in which it was held that if the property sought to be partitioned is solely not residential but major portion of it is being used for commercial purposes, in such a situation a suit for partition at the instance of female member of class I is maintainable. The Hon''ble Judge relied upon the judgment of the Hon''ble Supreme Court Narashimha Murthy v. Smt. Susheelabai (supra).

An intelligent distinction was sought to be made by Mr. Kanwaljit Singh when he wanted to convince this Court that six shops is not the major chunk of the property in dispute and, therefore, the bar of Section 23 will come into play. The argument is not acceptable for the reason that in that situation the meaning which is to be given to word "wholly" will become meaningless. Reliance can also be placed upon Smt. Usha Majumdar and others v. Smt. Smriti Basu, AIR 1988 Calcutta 115. In this case similar defence was taken with respect to a two storied house which was exclusively used for residential purposes and only two rooms on the ground floor were in occupation of the tenant and it was observed behind incorporating Section 23 in the Succession Act is that dwellinghouse of a Hindu joint family should be regarded as an imparteable asset as ordained by the ancient Hindu doctrines and precepts and as such should be allowed to be preserved by the family until the male heirs opt for dividing the same. The Calcutta High Court further held that on a plain meaning of the word "wholly" therefore there is no escape from the conclusion that to put a fetter to the right of a female heir to claim partition under Section 23 of the Succession Act, the dwellinghouse must be entirely, completely, totally and fully occupied by the members of the family.

Thus I am of the considered opinion that this appeal is totally devoid of any merit and the same is hereby dismissed at the motion stage itself. No order as to costs.