Kusum Walia vs Tarawati and Others

Swatanter Kumar, J.—This is a regular second appeal preferred by the appellant against the judgment and decree passed by the learned Addl. District Judge, Patiala, dated 28.10.1996. The plaintiff and the defendants are the legal representatives of deceased Ram Sarup Walia who died on 19.5.1977. According to the plaintiffs they have 4/7th share in the estate left by the deceased Ram Sarup Walia and the remaining 3/7th share into the share of defendants in the suit. Deceased Ram Sarup Walia was the owner of the building, some movable properties and various other properties as detailed in the plaint. The plaintiffs in the suit claimed that they were not being permitted to enjoy the benefit in the Immovable and moveable assets left by the deceased even to the extent of their share in the properties left by the deceased. Resultantly, they filed suit for partition. The suit was contested by the defendants and more particularly defendants No. 2 and 4 to 8 who filed a joint written statement. The basic objection which was taken in the written statement was that the plaintiffs have no right of succession. Being a female, plaintiff-appellant Kusum Walia cannot seek partition. On merits it was contested that the assets of Ram Sarup Walia H.U.F. were fully settled when the partnership was dissolved and a sum of Rs. 15000/- in all was paid on 24.1.1978 with regard to the affairs of the partnership. Main objection on behalf of the defendants which was taken up was that the property in dispute is a residential and dwelling house and as such the plaintiffs have got no right to file the suit for partition.

Keeping in view the pleadings of the parties and various preliminary objections raised, the learned trial Court framed the following issues :-

Whether the plaintiffs are entitled to separate possession by partition of the suit properties? If so, to what extent? OPP.

Whether the defendants are liable to render accounts to the plaintiffs? OPP

Whether the plaintiffs are entitled to the reliefs claimed in the suit? OPP.

Whether plaintiff No. 3 and Usha Walia defendant gifted a sum of Rs. 5000/- each to Suresh Walia, defendant No. 2 as alleged in para No. 1 of the Addl. Objection of the written stalement? OPD.

Whether Smt. Sandhra is also the heir of Rajinder Walia? If so, to what effect? OPP.

Whether Rajinder Walia received a sum of Rs. 9126/- Rs. 15000/- and Rs.15000/- in full and final settlement as alleged in para Nos. 2 and 3 of the additional objections in the written statement? If so, to what effect? OPD.

Whether defendant No. 2 paid Rs.6146/-, spent Rs. 10,000/-, deposited Rs.26,204/- and paid Rs.3,000/- as alleged in para Nos. 4 and 5 of further objections in written statement? If so, to what effect? OPD.

Whether the suit is not maintainable as regards 1298/2 to 1301/2? OPD.

Whether the suit is bad for non-joinder of necessary parties? OPD.

Whether the properly in dispute stands already partitioned? OPD.

Relief.

The learned trial Court decided issues No. 1 to 3, the onus of which was on the plaintiffs, against the plaintiffs, while Issues No. 4 to 8, the onus of which was on the defendant, were decided in favour of the defendants and against the plaintiff. Issue No. 9 and 10 both were decided against the defendants and in favour of the plaintiffs. As a result of these findings the suit of the plaintiffs was dismissed on 31.7.1989 against which the appeal was preferred by the plaintiffs. This appeal of the plaintiffs was dismissed vide the impugned judgment and decree dated 28.10.1996.

Both the judgments of the trial Court and learned lower Appellate Court are concurrent on the finding of Issue No. 10. It has been specifically held that no plea of partition was proved by the defendants and consequently it was held that no partition had taken place between any of the heirs of the deceased. Keeping this issue in mind, the Court placed great emphasis on Section 23 of the Hindu Succession Act and applied the implied bar against the plaintiffs, they being the female heirs claiming partition of residential and dwelling house. The learned Courts below held that the suit of the plaintiffs itself was not maintainable in view of the provisions of Section 23 of Hindu Succession Act, It is this finding of the learned Courts below that has been vehemently assailed before this Court in this Regular Second Appeal.

When the provisions of Section 23 of the Act can be attracted, is the basic question that falls for determination. The Court below though noticed a very recent judgment of the Supreme Court of India in the case of Narashimaha Murthy Vs. Smt. Susheelabai and others, , but have, it appears, incorrectly applied the principles enunciated in the suit judgment to the facts of the present case. The Hon''ble Supreme Court held as under:-

"Thereby the dwelling house remains indivisible. The male heir(s) thereby evinces animus possedendi. But the moment the male heir(s) chooses to let out the dwelling house to a stranger/third party, as a tenant or a licensee he or they exhibit(s) animus dessidendi and the dwelling house thereby becomes partible. Here the conduct of the male heir(s) is the cause and the entitlement of the female-Class-I heir(s) is the effect and the latter''s claim for partition gets ripened into right as she/they is/are to sue for partition of the dwelling house, whether or not the proviso comes into play. Here the female heir(s) becomes entitled to not only mere partition of the dwelling house but also her right to residence after partition."

"A house tenanted brings in strangers and it ceases to be a dwelling-house inhabited by the members of the family. It may be a dwelling-house in the structural sense but it cannot be said to be dwelling house in habitation by the members of the intestate''s 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 of tenancy by the male heir or heirs and deprive them of their right to residence therein as also their right to partition; an incidence normal to the opening of succession."

It is clear from the above decision of the Hon''ble Apex Court that if the house is not a dwelling unit or a residential house for the male heirs of the deceased and the property is being used by a voluntary act on the part of the heirs as a commercial property then the implied bar created u/s 23 of the Act cannot be enforced against the female heir. The house in question is not only a residential property and is not being used for the residential purpose of the male heirs, as such the case of the plaintiffs, which itself has been found to be correct by the Courts below, is-that there is a composite property and in major part of which the shops are there which have been let out by the defendants/male heirs. In this regard following observations and conclusions as recorded in the judgment of the first appellate Court needs to be closely scrutinised:-

"Ld counsel for the appellants has also argued that defendant No. 2 has let out the shops. It is contended that in ease a male heirs lets out the residential house on rent he cannot claim protection of Section 23 of the Hindu Succession Act."

"I have considered this contention. It is undisputed fact that there are some shops attached with the dwelling house. Perusal of plaint shows that no separate partition is claimed by the plaintiffs in respect of the shops. The Ld. trial court has held that shops are part of the dwelling house. At the time of arguments it was argued by the ld. counsel for the respondents that shops are inseparable part of the dwelling house. These were already on rent since long ago."

The only plausible conclusion that can be arrived at is that the property of which the partition has been sought by the plaintiffs in the suit, and for other reliefs is not a residential or a dwelling unit being used by the defendants which would attract the bar of Section 23 of the Act. The rights of the tenants in the property are not disputed. The purpose of the provisions of Section 23 as indicated by the Hon''ble Apex court is to preserve the dwelling unit/house as long as it is wholly occupied by some or all other members of the intestate family which includes male or males. This protection does not remain good when the properly does not maintain its specified character.

During the course of arguments the above factual position was not disputed before me. On the contrary it was conceded that the character of the property is solely not residential but major part of it is being used for commercial purposes and that too by renting out the shops in question. In this view of the matter the finding of the first Appellant Court the suit is not maintainable for partition of the residential house does not appear to be correct. The judgment of the Supreme Court in the case of Narashimaha Murthy (supra) clearly makes out an exception in favour of the appellant and the suit of the appellant for such partition was maintainable and could not be held to be barred for the provisions of Section 23 of the Act.

Consequently while holding that the suit of the plaintiffs was maintainable and they were entitled to claim the partition of the property of the deceased, findings on issues Nos. 1, 2 and 3 of the Courts below are hereby set-aside. Resultantly, the judgments and decrees of both the Courts below are set-aside and the case is remanded to the learned trial Court for determination on the above issues afresh and for passing of appropriate orders in accordance with law. There shall be no order as to costs. The parties are directed to appear before the trial Court on 24.12.1997.