Ramachandra Bhimappa Murgod and Another vs Sushila and Others

M.B. Vishwanath, J.

1.This appeal u/s 100 of the C.P.C. has been filed by defendants-1 and 2 against plaintiffs-2 to 4. Plaintiff-1 is since deceased.

The first plaintiff is the mother. Plaintiffs-2 to 4 are the daughters of the first plaintiff. They filed the suit before the Principal Munsiff, Dharawad, against six defendants for partition and separate possession of their shares.

The Trial Court decreed the plaintiff''s suit and granted the plaintiffs 1/3 share in the suit schedule properties.

Defendants-1 and 2, aggrieved by the judgment and decree passed by the Trial Court, preferred appeal before the Principal Civil Judge, Dharwad. The appeal preferred by defendants-1 and 2 was dismissed. Defendants-1 and 2 have filed the present second appeal.

The suit properties are 3 items (a), (b) and (c). Items (a) and (b) are residential buildings.

In this case it is necessary to set out the family pedigree which is as follows:

Bhimappe (propisitus) (Died in 1940)

Wife Smt. Chandrawa (Died in 1941 ______________________________|_______________________________ | | | | | | Hanaman Yallappa Ramachandra Tulasawa Govind Laxman tappa (Died in @ Ramu W/o (died in (died (Died in 1941 Deft. 1) Krishnappa 1948 in 1941 Wife Kanganol Wife 1941) Wife Chandrawa kar Kousalya Chandrawa | (dead) (died in 1947) (Piff-1) No | | issues | | Manohar |___________________________________ (Deft.2 | | | | Shankar Sushila Pramila Dhundakka (died) (Plff-2) (Plff-3) @ Dondubai (Plff-4)

It should be borne in mind that first plaintiff Chandrawa is the wife of Hanamantappa, Hanamantappa died in the year 1941 itself.

The present suit out of which the present second appeal arises was filed on 19.3.1987, after the Hindu Succession Act came into force.

In this Court it is contended that in view of Section 23 of the Hindu Succession Act, 1956, which, in so far as it is relevant for our present purpose, says that the right of any female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares in a dwelling house, the suit was not maintainable.

In this Court it is contended by the Learned Counsel for the appellants-defendants-1 and 2 that in view of Section 23 of the Hindu Succession Act, 1956, the suit field by the female heirs was not maintainable.

This plea has not been taken in the the written statement. This is entirely a new plea urged before this Court. I have already stated that the suit was filed as far back as 1987. An entirely new plea cannot be permitted to be taken up by the appellant-defendants at this stage. In law also, the plea raised before this Court by the Learned Counsel for the appellants-defendants-1 and 2 cannot be accepted.

I have already stated that the first plaintiff''s husband died in the year 1941 itself, long prior to the coming into force of the Hindu Succession Act, 1956. In view of the Hindu Women''s Right to Property Act (18 of 1937), the first plaintiff became the heir to her late husband along with her daughters. The succession to the estate of her late husband Hanumantappa opened in 1941 before the Hindu Succession Act came into force.

The Calcutta High Court, in Upendra Nath Das and Another Vs. Chintamoni Devi and Others, has held:

"Where a Hindu dies intestate before the Act of 1956 came into operation, leaving a widow and two sons, the succession to his estate, so far as the widow is concerned, is governed by the Hindu Women''s Right to Property Act (18 of 1937) and she becomes heir to her late husband along with his sons in equal shares on the 12th June 1956, with regard to all his properties other than agricultural land under the Act 18 of 1937. As such, the widow has unrestricted power of claiming partition of all the properties which she inherits in duding dwelling houses left by her husband. That right is not taken away by Section 23 or other provisions of the Act of 1956."

I agree with the view taken by the Calcutta High Court.

It is argued by the Learned Counsel for the respondents-plaintiffs that Section 23 of the Hindu Succession Act comes into play only if there is only one dwelling house and not if there is more than one. (plaint schedule shows two dwelling houses). It is not necessary for this Court to pronounce on this point.

For the aforesaid reasons, in my opinion, no substantial question of law arises for consideration by this Court.

Accordingly this second appeal is dismissed at the admission stage.