Sivakami vs Thangavel

M. Karpagavinayagam, J.—Sivakami, the second plaintiff in the suit, is the appellant herein.

2.The appellant along with her mother, Lakshmi Ammal filed the suit for partition of 4/6 share in the suit property and also for mesne profits,

namely, the rental charges, till the delivery of possession of their share.

3.During the pendency of the suit, Lakshmi Ammal, the first plaintiff, died. After conclusion of trial, the trial Court held that though the second

plaintiff, the appellant herein is entitled to get 1/6 share in the suit property, she would be entitled to the said share not immediately, but only when

the male heir, namely, the defendant chooses to partition the property, since the suit property happens to be the dwelling house. Challenging the

judgment and decree of the trial Court, the second plaintiff filed appeal before the lower appellate Court, which in turn, confirmed the same and

dismissed the appeal. Hence, this second appeal.

4.The case of the plaintiffs is as follows:-

The suit property is a dwelling house. It originally belonged to Subba Boyen. On 17-9-1940, the said Subba Boyen executed a settlement deed,

settling the life interest in favour of his wife Veerammal and after her, giving the absolute right to their sons, Marimuthu Boyen and Pazhanisami

Boyen. Lakshmi Ammal, the first plaintiff is the wife of Marimuthu Boyen and the second plaintiff, Sivakami is her daughter. Besides the daughter,

they had two sons, namely, Peria Maruthamuthu and Chinna Maruthamuthu.

5.It is the further case of the plaintiffs that the said Marimuthu Boyen died 35 years ago leaving behind his legal representatives, his wife, the first

plaintiff, the sons, Peria Maruthamuthu and China Maruthamuthu, and daughter Sivakami. Chinna Maruthamuthu died 30 years ago. Subsequently,

Peria Maruthamuthu purchased the other half share in the suit property from Pahzanisami, his uncle, by the sale deed dated 28-12-1948.

Thereafter, Peria Maruthamuthu also died leaving behind his son Thangavel as the legal representative. The first plaintiff would be entitled to 4/6

share in the property belonging to Marimuthu Boyen, Peria Maruthamuthu and Chinna Maruthamuthu, and the defendant, the son of Peria

Maruthamuthu would be entitled to 2/6 share in the suit property.

6.It is the further case of the plaintiffs that when the first plaintiff went to her daughter''s house and stayed there, the suit property, namely, the

dwelling house, was occupied by the defendant and the premises was let out to the tenants. The share in the rental charges was not handed over to

the first plaintiff. In the meantime, on 28-7-1980, the first plaintiff executed a Will, settling her share in favour of the second plaintiff. As such, the

second plaintiff would be entitled to 4/6 share in the suit property and also the share in the rental charges till the delivery of possession of the suit

property.

7.The case of the defendant is as follows:-

Peria Maruthamuthu purchased 1/2 share from Pazhani sami. Since Peria Maruthamuthu and Chinna Maruthamuthu died even before the Hindu

Succession Act came into force, the suit property would exclusively belong to the defendant only and as such, the first plaintiff has no right in the

said property. Consequently, the plaintiffs would not be entitled to any share in the property as well as the rental charges and so, the suit is liable to

be dismissed.

8.On the basis of the above pleadings, the trial Court framed necessary issues. On the side of the plaintiffs, P.Ws.1 to 4 were examined and

Exs.A-1 to A-3 were marked. The defendant examined himself as D.W.1 and Exs.B-1 to B-14 were marked.

9.The trial Court, on an appraisal of the entire evidence available on record, concluded that the second plaintiff would be entitled to 1/6 share in

the suit property and that she would be entitled to get that share only when the male heir chooses to divide the property as per the provisions of

Section 23 of the Hindu Succession Act. As such, the second plaintiff has to wait till the male heir chooses to partition the suit property, the

dwelling house. This finding was confirmed by the appellate Court as well, in the appeal filed by the second plaintiff. Hence this second appeal by

the second plaintiff.

10.At the time of admission of the second appeal, this Court framed the following substantial question of law:-

Whether the judgement of the lower appellate Court is correct, in view of the decision in Upendra Nath Das and Another Vs. Chintamoni Devi

and Others, ?

11.Challenging the judgement and decree of the Courts below, learned counsel appearing for the appellant would strenuously argue on the strength

of the following additional substantial question of law:-

When the statutory rights bestowed and conferred by Section 8 of the Act of 1956, are restricted and curtailed only to dwelling houses which is

actually in occupation of the male member, are the Courts below right in dismissing the suit as the suit property is in the occupation of the tenants,

where Section 23 of the Hindu Succession Act does not get attracted?

12.In elaboration of the above substantial questions of law, learned counsel appearing for the appellant, though did not make serious challenge with

reference to the quantum of the share allotted to the second plaintiff, would strenuously contend that the appellant would be entitled to her share in

the suit property immediately and that she need not wait till the male member chooses to divide their respective shares, as Section 23 of the Hindu

Succession Act would not apply to the case where there is a single male heir when the suit property was let out to the tenants. In support of her

contention, she would cite the following decisions:-

(i)SUBBARAM VS. SARASWATHI AMMAL ;

(ii) Hemalata Dei Vs. Umasankari Moharana and Others, and

(iii) Mahanti Matyalu Vs. Oluru Appanama and Others, .

13.In the above cases, it is held that where there is a single male heir and when there is no possibility for the male heir claiming any partition against

another, the female heirs are entitled to claim partition and that such right is not denied u/s 23 of the Hindu Succession Act. But the principle laid

down in these decisions is no more a good law in view of the dictum laid down by the Supreme Court in Narashimaha Murthy Vs. Smt.

Susheelabai and others, .

14.In the decision reported in Narashimaha Murthy Vs. Smt. Susheelabai and others, , it is held that Section 23 of the Act would apply even when

there is a surviving sole male heir and there need not be more than one. The Supreme Court in that decision observed as follows:-

33....The second question would thus have to be answered in favour of the proposition holding that where a Hindu intestate leaves surviving him a

single male heir and one or more female heirs specified in Class I of the Schedule, the provisions of Section 23 keep attracted to maintain the

dwelling house impartible as in the case of more than one male heir, subject to the right of re-entry and residence of the female heirs so entitled, till

such time the single male heir chooses to separate his share; this right of his being personal to him, neither transferable nor heritable.

15.In view of the above dictum of the Supreme Court, as pointed out by learned counsel for the respondent, I am unable to accept the contention

of the appellant with reference to the non-applicability of Section 23 of the Hindu Succession Act where there is only a sole surviving heir.

However, I find some force in the contention urged by learned counsel for the appellant on one another point with regard to the non-applicability of

Section 23 of the Hindu Succession Act.

16.In this case, it is specifically mentioned in the plaint and the evidence adduced by the second plaintiff that the suit property was let out to third

parties. On that basis, the second plaintiff wanted her share in the rental charges collected by the defendant. Admittedly, this is not disputed. On

the other hand, it is the case of the defendant that the plaintiffs would not be entitled to get their share either in the suit property or in the rental

charges. Thus, it is clear that there are materials which are not challenged and disputed to show that the suit property has been rented out to third

parties, namely the tenants.

17.The Supreme Court in the same decision reported in Narashimaha Murthy Vs. Smt. Susheelabai and others, , held as follows:-

13.....The marginal note itself indicates that Section 23 is a special provision: in other words, it is an exception to the general partition. So long as

the male heir(s) chose not to partition the dwelling house, the female class-I heir(s) has been denied the right to claim its partition subject to a

further exception, namely, the right to residence therein by the female Class-I heir(s) under specified circumstances. In other words, the male

heir(s) becomes entitled to perpetuate the memory of the deceased-Hindu who died while remaining to live in the dwelling house during his or her

life-time. 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.

18.In the light of the above observations, it could be safely held that the interdict contemplated u/s 23 of the Hindu Succession Act would not

apply to the facts of the present case, where the respondent/defendant allowed the strangers, namely, the tenants to occupy a part of the living

house on rental basis, by which, the property has lost its character as the family dwelling house and that it has become an ordinary house.

19.It is an admitted position that the suit property is a dwelling house and the second plaintiff specifically averred in the plaint that the defendant has

illegally let out the suit property to third parties and hence the second plaintiff was liable to get mesne profits. The respondent/defendant also in the

course of his written statement and in his evidence, has categorically admitted that a portion of the property was let out to the tenants.

20.From the above, it is clear that the contention of the second plaintiff that the defendant let out the dwelling house to a third party, is true and

correct statement of facts. Therefore, there is no difficulty in holding that Section 23 of the Hindu Succession Act would not apply to the facts of

the case and as such, the appellant/second plaintiff would be entitled to 1/6 share in the suit property immediately.

21.The second appeal is allowed to the extent indicated above. The judgement and decree passed by both the Courts below are set aside.