Madras High Court
Tmt. Lakshmiammal vs Ekambara Gounder And 5 Others on 25 September, 2000
Equivalent citations: 2000(4)CTC648
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. The plaintiff is the appellant herein.
2. The plaintiff filed a suit against the defendants, the respondents herein in O.S.No.41 of 1989 on the file of Sub Court, Villupuram for partition and separate possession. The trial Court granted a preliminary decree for partition by its judgment dated 15.7.1992. The defendants, the respondents herein, aggrieved by the same, filed first appeal in A.S.No.120 of 1995 in the District Court, Villupuram. The lower appellate Court by its judgment dated 31.10.1995 partly allowed the appeal in respect of the items 3 and 4, the dwelling houses are concerned, however confirmed the decree in favour of the plaintiff in respect of items 1 and 2 are concerned. Peeling aggrieved by the dismissal of the suit in respect of dwelling houses, the present second appeal has been preferred by the plaintiff, the appellant herein.
3. According to the plaintiff, the suit properties are the self-acquired properties of one Murugesa Gounder, the father of the plaintiff. He had two sons and two daughters. The first daughter Lakshmi is the plaintiff, the second daughter is the sixth defendant, the first son is the first defendant and second son is one Mani. Since Mani died, the defendants 2 to 5 were impleaded as his legal representatives. Since the plaintiff is entitled to 1/4th share in the schedule properties 1 to 4, she filed the suit claiming partition against the defendants.
4. Countering the case projected by the plaintiff, the defendants would state that the plaintiff would not be entitled to any share, as the properties were the joint family properties and at the time of marriage of the plaintiff Rs.15,000 was spent and as such, she would not be entitled to claim partition.
5. As stated above, the trial Court decreed the suit in respect of all the properties with costs. However, the lower appellate Court though did not disturb the finding in respect of items 1 and 2 being the land properties, held that the plaintiff would not be entitled to the share in the properties, items 3 and 4 being the dwelling houses, in the light of Section 23 of the Indian Succession Act, since the counsel for the defendants, the appellants therein said that the plaintiff has got a right to claim for partition in respect of items 1 and 2 being the land properties.
6. The learned counsel for the appellant would mainly argue that Section 23 does not prohibit the right of share for the woman in dwelling houses, but it postpones the right of a female heir to claim partition of the dwelling house until male heirs choose to divide their respective shares therein. He would also point out, on the strength of the judgment reported in Janabai Ammal alias Gunabooshani v. T.A.S. Palani Mudaliar and others, 1980 (I) M.L.J. 492 wherein it is held that the plaintiff would be entitled to the share in the dwelling house also but she would be at liberty to enforce her right for division of her share in that house when the male heirs choose to divide the shares in the dwelling house.
7. I have heard the counsel for the parties.
8. On going through the judgments of both the Courts below and having regard to the settled position of law, I am of the view, as laid down by the Division Beach in the decision reported in Janabai Ammal alias Gunabooshani v. T.A.S. Palani Mudaliar and others, 1980 (I) M.L.J. 492, that it cannot be contended that the plaintiff would not be entitled to any share in the dwelling house. As a matter of fact, the trial Court discussed the legal position and held that the plaintiff has got a right of 1/4th share in those dwelling-houses, however, she cannot claim immediate partition till the male heirs choose to divide their respective shares therein. But, this finding has been disturbed by the lower appellate Court without understanding the wording in Section 23 of the Indian Succession Act and the judgment rendered by the Division Bench stated supra.
9. Section 23 of the Indian Succession Act 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."
10. The lower appellate Court however wrongly held that the plaintiff cannot have the right of share in the dwelling-house. The specific finding is as follows:-
These wordings would show that the lower appellate Court has given a finding that the plaintiff would not be entitled to the share in the dwelling house.
11. In this context, it would be relevant to refer to the observation given by the Division Bench in the decision reported in Janabai Ammal alias Gunabooshani v. T.A.S. Palani Mudaliar and others, 1980 (I) M.L.J. 492 : 93 L.W.734, which is as follows:-
"Accordingly, we hold that the appellant-plaintiff would be entitled to a 1/10 share in item 4 house, which is not disputed by the respondents, and that she is at liberty to enforce her right for division of her share in that house when the contingency contemplated under Section 23 is satisfied."
12. In view of the correct legal position pointed by the Division Bench, I am hold that the plaintiff would be entitled to 1/4h share in items 3 and 4 also, however, she has to wait and enforce the liberty to demand for the partition in respect of items 3 and 4 when the contingency contemplated in Section 23 is satisfied.
13. In that view of the matter, the second appeal is allowed in respect of items 3 and 4 are concerned, as indicated above.