Orissa High Court
Mahendra Mahanta And Ors. vs Smt. Tarini Dei And Ors. on 9 April, 2003
Equivalent citations: AIR2003ORI180, 96(2003)CLT182, AIR 2003 ORISSA 180, (2003) 10 ALLINDCAS 450 (ORI), 2003 (10) ALLINDCAS 450, (2003) 96 CUT LT 182
Author: B. Panigrahi
Bench: B. Panigrahi
JUDGMENT B. Panigrahi, J.
1. Defendant Nos. 1, 3, 4 and 5 in the court of the Subordinate Judge, Baripada in Title Suit No. 3 of 1978-I against the judgment and decree passed in a suit for partition have filed this appeal.
2. Essential factual matrix leading to this appeal is as follows :
The plaintiff-respondents 1 and 2, who are sisters being daughters of late Jayakrushna filed the suit against appellant-defendant No. 1, Mahendra Mohanta, who is their uncle claiming their share in the joint family property. In order to appreciate the facts of the case it is profitable to quote the genealogy placed in the record.
GENEALOGY
Late Birbal Mohanta
_____________________|_______________________
| | |
Late Rabi Late Laxmiram Late Lokanath
Mohanta Mohanta = Jashoda
| | |
Dinabandhu | |
=Kishori Bewa | |
(D.6) | |
| | |
___|______________ | |
| | | |
Sulochana Dei Hunda | |
(D.7) (D.8) | |
_____________|_______________ |
| | |
Late Prasad Late Sukura |
=Janaki =Chudamoni |
(D.9) (D.10) |
__________|_____________ | |
| | | Bhima |
Sadhu Dei Rajani Dei Bihari (D.13) |
(D.12) (D.11) |
_____________________________|_______
| |
Late Jayakrushna Mahendra
=Sabitri (D.1)
(D.2) |
_____________|_____________ |
| | |
Late Tarini Dei Mithila Dei |
(Plff. 1) (Plff. 2) |
___________________________________|_____
| | |
Laxmi Benga Sabitri
(1st wife) (2nd wife) (Kept after
| death of
Jagri Jayakrishna
(D.3) __________________________|____
| |
Golapi Dei Himansu
(D.3) (D.5)
3. Late Birbal Mohanta had three sons, namely, Rabi, Laxmiram and Lokanath. There was a partition among the sons of Birbal in which Lokanath got certain landed properties. He acquired further properties during his life time. At the time of his death in 1962 Lokanath left behind 'B' Schedule properties. His son Jayakrushna, the father of the plaintiffs had pre-deceased him in the year 1960. Even during the life time of Lokanath, the defendant No. 1 Mahendra became the Karta of the joint family consisting of Jashoda, widow of Lokanath and Sabitri, defendant No. 2 (mother of the plaintiffs) and himself. The appellant No. 1 purchased some landed properties out of the surplus income of the joint family properties. The lands described in Schedules C-1 to C-8 belonged to Lokanath, father of Mahendra and Jayakrishna and out of the income from the aforesaid land, the appellant No. 1 Mahendra acquired Schedules C-9 to C-14 properties. The defendant No. 1 and the plaintiffs jointly purchased the Schedule C-15 land from Balaram Mohanta and sold Schedule C-18 land to the said Balaram on the same day. The defendant No. 1 sold Schedule C-8(a) properties to one Sunaram Majhi and purchased Schedules C-16 and C-17 properties in the same of his daughters Jagri (defendant No. 3 and Gopali Dei (defendant No. 4). Schedules E-1 and E-2 lands are portions of the properties of Schedule 'C' purchased in the names of defendants 3 and 5, the children of defendant No. 1 from Jasoda widow of late Lokanath out of the joint family funds by defendant No. 1. The plaintiffs have not laid their claims for partition of C-18 Schedule properties, but they have claimed shares in Schedules C-1 to C-17 properties.'
4. The ancestral house was damaged, therefore, Lokanath and his brothers had constructed three separate houses. Schedule D-1 is a house which belonged to Lokanath, but is in possession of the defendant No. 1, Schedule 'F' properties are the movables now held by defendant No. 1. Apart from the landed properties, the plaintiffs have also claimed the house situated In Schedule D-1 land and movables described in Schedule 'F'. Although the plaintiffs after their marriage are now residing in their father-in-law houses being close to the defendants' village, therefore, they use to come and supervise the agricultural operation. After marriage of Jagri, defendant No. 3, she along with her husband Ram Chandra are residing in the house of defendant No. 1. There was a family dissension and quarrel between the plaintiffs and the defendant No. 1. as a reason whereof the former demanded shares from defendant No. 1. But defendant No. 1 having refused to give their share, therefore, they filed the suit for partition.
5. The defendants 1 to 13 are the descendants of Birbal Mohanta, who had 3 sons. Although all of them had been made parties to the suit, but the plaintiffs have particularly sought relief against the defendants 1 to 3. The defendants 4 to 17 have either purchased the land from defendant No. 1 or some other defendants to whom the lands were alienated.
6. Defendants 1, 3, 4, 5, 6 and 13 filed their written statement. The defendant No. 2, who died during the pendency of the suit also filed her written statement along with defendants 1 to 6. The other defendants did not choose to file any written statement as such they were set ex parte. The main contest was between defendant No. 1 and the plaintiffs.
7. The defendant No. 1, has however, admitted that Schedules C-1 to C-8 are the properties inherited from Lokanath Mohanta and treated as the joint family. But in so far as the properties covered under Schedules C-9 to C-14 are concerned, it is submitted that those belonged exclusively to defendant No. 1, who purchased the same out of his own funds. It is further stated in the written statement that there was a partition of the joint family properties between the plaintiffs and late Jashoda, Sabitri (defendant No. 2 and himself in which 10 manas of land were given to the plaintiffs and also to defendant No. 1 and late Jashoda was given 3 manas of land. Consequent upon the said family arrangement, a list of partition was prepared in presence of Panchayat members and properties fell to their respective shares were enjoyed by them separately. As regards Schedule C-15 properties are concerned, the case of defendant No. 1 is that Schedule C-18 land was given to Balaram Mohanta, defendant No. 14, and in exchange Schedule C-15 property was given by him to defendant No. 1 and plaintiff respondents 1 and 2. Regarding the properties in Schedules C-16 and C-17 it is stated by defendant No. 1 that defendant No. 3 Jagri Dei purchased those lands out of the income of her husband Ram Chandra and that Schedule C-17 properties were purchased jointly in the names of defendant No. 3, Jagri, and defendant No. 4, Golap from out of funds given by their relations but not from the joint family properties.
8. It is further contended that Schedules E-1 and E-2 properties were sold to defendants 4 and 5, Golap and Himansu respectively, by late Jashoda from out of her share in the joint family properties on receipt of consideration which she required for her treatment. The further contention of defendant No. 1 is that defendants 4 and 5 got the financial support from their relations and had paid the consideration money to late Jashoda. As regards shares claimed by the plaintiffs in respect of the house in Schedule D-1 and the movable as described in Schedule 'F' it is alleged that the plaintiffs had already got a house towards their share in a deed of partition dated 23.6. 1976 and, therefore, they cannot lay any claim over the house in Schedule D-1 of the suit as the house has been treated as the exclusive property of the defendants. Since the movable properties are not available for partition, the plaintiffs claim is, therefore, not maintainable. The defendant No. 1 has claimed that alternatively in case the plaintiffs are held to be entitled for partition then the properties covered under Schedules C-1 to C-8 and C-15 can be partitioned, but not the properties covered under Schedules C-9 to C-14, C-16 and C-17 and 'F'.
9. Learned trial court held that the deed of family arrangement as claimed by the appellants is not a valid document so as to deprive the plaintiffs from claiming their due share. The properties in Schedules C-14, C-16 and C-17 are held to be the joint family properties and, therefore, liable for partition. The properties conveyed by Jasoda Bewa, widow of late Lokanath in favour of defendants 4 and 5 cannot be partitioned. With these observations the trial court decreed the suit. The plaintiffs, therefore, being aggrieved by the aforesaid observations filed a cross-appeal.
10. The genealogy extracted above has established that from the marriage communion between defendant No. 1 and his wife Laxmi one daughter named Jagri was born. After the death of Laxmi, defendant No. 1 again married to Benga, but in the meanwhile upon death of Jayakrishna, defendant No. 1 had extra rnarita) relationship with Sabitri, (defendant No. 2) the widow of Jayakrishna. Through them defendant No. 4 Golapi and defendant No. 5 Himansu were born.
11. During the life time of Birbal his three sons were separated in mess and property about 40 years back. Lokanath, the father of Jayakrishna and defendant No. 1 purchased some lands out of the surplus income from the land fallen to his share. The lands inherited by Lokanath has been described in the plaint Schedules as C-1 to C-8 of the plaint. From the evidence placed on record it has appeared that Lokanath and his two other brothers separately constructed their houses covered in Schedules D-1 to D-3. In the house built by Lokanath his two sons, namely, Jayakrishna and Mahendra lived in the same. Jayakrishna died some time in 1960 whereas Lokanath in 1962. Thus Jayakrishna pre-deceased his father. There was no partition between Lokanath and his two sons, namely, Jayakrishna and Mahendra. After the death of Jayakrishna Mahendra became the Karta and manager of the joint family properties of plaintiffs and defendants 2 and 3. It is alleged by the plaintiffs that defendant- appellant No. 1 used to collect considerable income from the landed properties left by the joint family. Thus he purchased from the joint family income the properties in Schedules C-9 to C-14 which should have been treated as the joint family properties. Plaintiff No. 1 and defendant No. 2 had equally contributed for purchase of the lands described in Schedule C-15 in their names and in the name of Plaintiff No. 2 which was owned and possessed by the plaintiffs and defendants 1 to 3. Although the name of defendant No. 1 was described as the vendee, yet the same was purchased by the plaintiff and defendants 1 to 3. Defendant No. 1 gave Schedule C-18 properties to defendant No. 14 by way of exchange and the plaintiffs have no claim over the same. Defendant No. 1 had given defendant No. 4 in marriage to Ram chandra. He kept defendant No. 4 and her husband as his illatum son-on-law. It is alleged by the plaintiffs that appellant No. 1 purchased some lands in the name of defendant No. 4. Also the properties described in Schedules C-6 and C-7 conveyed in favour of defendants 4 and 5 by another deed by defendant No. 1 have been claimed by the plaintiffs as the joint family properties. In the above premises it has to be considered whether the properties claimed by defendant No. 1 covered under Schedules C-9 to C-14, C-16 and C-17 are liable to be partitioned. Schedules C-14 to C-19 properties are being claimed by defendant No. 1 to be his self acquired properties. In a Mitakshara Hindu joint family the existence of such a family does not raise a presumption that it owned joint family property. But once such nucleus is either proved or admitted which from its nature and relative value it could be inferred that such property could have been acquired, the burden shifts to the party alleging self acquisition and he or she must establish affirmatively that such property was acquired without the aid of the joint family. In this respect reliance can be placed on a judgment of the Supreme Court reported in AIR 1961 SC. 1268 in the case of Mallesappa Bandeppa Desai and Anr. v. Desai Mallappd alias Mallesappa and Anr.. In the aforesaid decision it has been held as follows :
"...In our opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners."
12. Such principle also has been followed in a Division Bench judgment reported in AIR 1964 Orissa 75 in the case of Jaagat Krishna Das and Anr. v. Ajit Kumar Das and Ors.. Their Lordships also held according to the dictum of the above Supreme Court judgment that the party, who claims any particular item of property to be joint family property, must establish it. The onus is on him not only to establish the existence of nucleus but to prove that the family had sufficient surplus income from the nucleus from which the acquisition could be made. The nature and value of the nucleus are of importance. With the aforesaid principle keeping in view, the evidence placed in the record with regard to the claims advanced by appellant No. 1 about his self acquisition shall be examined.
13. While proving the joint family nucleus, the evidence of P.Ws. and D.Ws are of greater relevance. P.W. 1 proved that Lokanath Mohanta had 10 to 15 acres of land. From out of the income of those lands, he further acquired 10 to 12 manas of land situated in Kuhanala, Panchabhaya, Madhubani and Fuljhari. At the time of death, he left 30 manas of lands which yielded 100 pauties of paddy per year. Such statement could not be shattered in cross-examination by the appellants. Similarly the evidence of P.W. 3 also substantially corroborates as regards the land possessed by Lokanath Mohanta and also the acquisition made by him. it has further transpired that Lokanath Mohanta had Sabai grass business which the defendant No. 1 carried on after his death. P.W. 4, Tarini Mohanta, one of the plaintiffs, deposed that Lokanath Mohanta had 30 manas of land in Panchabhaya, Mundhabani, Dahuda, Kalianal and Fuljhari. Out of those lands 25 manas are Jal lands and the others are Asu lands. He used to grow Sabai grass on Asu lands. Lokanath Mohanta used to get 100 pauties per year. D.W. No. 1 in his evidence has also admitted to have inherited about 20 manas of cultivable lands. It has been further elicited during chief examination that 7 to 8 manas of land was acquired by Lokanath Mohanta from his business on vegetable and paddy. About the acquisition of property from business by defendant No. 1 's father it is conspicuously absent in the written statement. Therefore, only inference could be drawn in this case is that Lokanath Mohanta used to derive considerable income out of which he purchased properties in his name. The defendant No. 1 himself admitted that he was the manager of the joint family upon the death of his father. He used to deposit the surplus income from the business in a pass book. But that was not filed in court. Apart from the oral evidence, a reference be made to the record-of-right filed by the plaintiff respondents. In the record-of-rights, Ext. 8 the name of Lokanath Mohanta has been recorded as raiyat in respect of 1 mana 10 gunts and 12 biswas of land. That apart, a sale deed has been filed by the respondents which is marked as Ext. 1 executed on 20.9,1057 for Rs. 700/- by Budhia Majhi and others for Ac. 1.12 gunthas and 8 biswas of land. Therefore, such documents can unequivocally suggests that even during life time of Lokanath Mohanta, the joint family lands used to provide sufficient nucleus from which he was able to acquire more lands. Similarly, while the defendant No. 1 acted as the Manager and Karta of the joint family presumably, it can be said that he might have also acquired some properties out of the joint family funds. Thus, the properties covered under Schedules C-8 to C-14 can be held to be the joint family properties. Schedule C-15 properties have been purchased jointly by defendant No. 1 and the plaintiffs. As regards the properties covered under Schedule C-18 the plaintiffs do not lay any claim. As regards the lands covered under Schedules C-16 and C-17, it is claimed by the defendants 3, 4 and 5 that they purchased the same not from the income of their joint family lands, but by the money received from their relations and from the income of the defendant No. 3's husband. Schedules E-1 and E-2 are portions of Schedule 'C' lands and the same has been sold by late Jashoda to defendants 4 and 5, during the pendency of the suit. Since the defendants 3 to 5 did not have any separate source of income and the funds have been supplied by the defendant No. 1 for purchase of the property when he was the manager and Karta of the family, therefore, necessary inference can be drawn that those properties covered under Schedules C-9 to C-14, C-16 and C-17 are not the self-acquisition, but the joint family properties.
14. Schedule C-15 was acquired from Balaram Mohanta in exchange of land under Schedule C-18 given by defendant No. 1. Therefore the land under Schedule C-15 has been treated as joint family property and the plaintiffs did not claim any interest over C-18 Schedule property. Thus, from the aforesaid discussion, it was rightly concluded by the trial court that the plaintiffs have right to claim partition over schedules C-9 to C-17 properties.
15. Next it has to be considered about the alienation made by Jashoda in so far as Schedules E-1 and E-2 properties are concerned. But defendant Nos. 3 and 5 have purchased the same on 24.5.1977, vide Exts. D and C. The consideration amount of Rs. 10,000/- is purported to have been paid to Jashoda, The plaintiff on the other hand claimed that such sale deed being fictitious in nature, therefore, no right has accrued to defendants 3 and 5. The recital in Exts. D and C disclosed that Jashoda sold those lands for raising funds to meet the pilgrimage expenses and for her treatment. D.W. 3 was a witness to the sale deed. It is true that Defendants 3 and 5 did not have any independent income and were dependents on defendant No. 1. In this background, it can now be considered whether the plaintiffs could question the validity of the sale deed. Admittedly, Jashoda executed those sale deeds. She had a right in the joint family property and she was competent to dispose of her share in the joint family property. In that view of the matter, the plaintiffs' challenge with regard to the execution of Exts. D & C is not sustainable. Therefore, the defendants 3 and 5 have right over the property of Jashoda to the extent of her share.
16. The learned counsel appearing for the appellants has advanced an important argument that even if the plaintiffs are held to have an interest in the joint family properties, but since it has been already divided at the mediation of villagers, therefore, the suit for partition is untenable in law. It is stated that the partition had taken place in the year 1976 and in evidence thereof a partition list was prepared indicating the shares of the plaintiffs and the defendants on 23.6.1976. The plaintiffs have strongly denied such partition to have taken place on that date.
17. In this background, it be noted here that there is a presumption of jointness of a Mitakshara Hindu family. He, who advances a claim of partition, must have to prove by clear, cogent and clinching evidence that there was such partition. There has been no agreement filed by either party suggesting that the village Panchayat was authorised to divide the properties. D.W. 1 has stated in the evidence that the villagers, such as Suphala Mohanta, Dasarath Mohanta, Brahmananda Mohanta, Dayanidhi Mohanta and Parsuram Mohanta and other measured the lands which continued for about 5 to 6 days before partition and after such measurement, the partition list was prepared specifying the land allotted to each share. He further stated that a list was prepared with respect to the properties allotted to Jashoda and both the plaintiffs. Suphala Mohanta scribed the partition list which was read over to the plaintiffs and Jashoda and they have fixed their thumbs in token of their acquiescence to the terms of the partition list. D.W. 2 also corroborated the statement of D.W. 1. On a comparative study of the evidence of D. Ws. 1 and 2 it appears that no such land records were consulted while the measurements were carried on. The plot numbers and the extent of lands were noted in a separate paper before the partition list was prepared. But it is strange to note that no such document had been produced. Although livestocks and movables were partitioned, but nothing was reflected in the partition list. The trial court felt unsafe to place reliance on the testimony of D.Ws. 2 and 4 on the ground that they were closely related to defendant No. 1. The list prepared by Panchayata was the creation of D.Ws. 2 and 4. Although the parties had allegedly authorised the Panchayat to divide their properties, it was not placed in the court. P.W. 3, although claimed by the defendants, to have been present at the time of preparation of list, but his testimony disclosed that such partition list was a fake one. Jashoda and Sabitri though were members of the family, were not called to put their thumbs. The writings in Exts. A and B though are in different ink, the evidence shows that the ink and pen were supplied by defendant No. 1. Therefore, the trial court held all those partition lists to be self-serving documents and were prepared for the purpose of this case. Admittedly, the value of property is more than Rs. 100/-, but the partition lists were not registered. It should, therefore to be an unregistered award.
18. Mr. Sinha, the learned counsel appearing for the respondents has strongly placed reliance on a judgment reported in AIR 1974 SC 1066 in the case of Ratan Lal Sharma v. Purushottam Harit wherein it has been held as follow :
"Where the terms of the arbitration award did not transfer the share of a partner A in the assets of a firm to the other partner B either expressly or by necessary intendment, but on the other hand expressly made an allotment of the partnership assets and liabilities to B marking him absolutely entitled to the same in consideration of a sum of money to be paid by him to the other partner A, thereby expressly purporting to create rights in immovable property of the firm worth above Rs. 100/-, the award is compulsorily registrable under Section 17, Registration Act and, if unregistered, cannot be looked into and the court could not pronounce judgment in terms of award under Section 17 Arbitration Act, 1940, which presupposes the existence of an award which can be validly looked into by the Court. The award being an inseparable tangle of several clauses cannot be enforced as to part not dealing with immovable property."
19. Therefore, in the above premises, I hereby agree with the findings of the trial court that there was no division of suit properties at any time much less in 1976.
20. The plaintiff- respondents have claimed shares from the movables covered under Schedule 'F' properties. Schedule 'F/1' is a postal deposit of Rs. 2000/- in the name of defendant No. 1. Schedule F/2 properties are movables including the paddy, bullock worth Rs. 890/-. The trial court has rejected the claims of the plaintiffs so far as livestock and movable properties are concerned. But in respect of postal deposits, the evidence of D.W. 1 at paragraph 6 gains importance. He was noticed to produce the Pass Book but that did not come from his hands. He admitted that by the time of institution of the suit he had Rs. 4000/-. Therefore, the plaintiffs have claimed Rs. 2000/- towards their share. But the grievance of the plaintiffs is that although the trial court awarded Rs. 2000/-in their favour, but no interest was allowed on the said amount. The plaintiffs reasonably expect Rs. 2000/- towards their share along with the interest accrued thereon from the date of the suit till payment at the prescribed rate of interest allowed by the Nationalised Banks. The plaintiffs have also claimed partition over the residential houses covered under Schedules D/1 to D/3 of the plaint.
21. Mr. Mukherjee appearing for the appellant has strongly contended that the plaintiffs being the female members of the joint family, therefore, they cannot claim partition over the joint family residential house and in support of his contention he placed strong reliance under Section 27 of the Hindu Succession Act which is quoted hereunder :
"If any person is disqualified from inheriting any property under this Act, it shall, devolve as if such person had died before the intestate."
22. From Section 44 of the Transfer of Property Act it is also clear that where one of two or more co-owners of immovable property transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and in so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
23. In so far as transfer of dwelling house belonging to a undivided family which has been transferred to an outsider not being a member of the family is concerned nothing in the Section shall be deemed to entitle him to joint possession or their common or part-enjoyment of the house. Thus from Section 44 a trite position has emerged that a transferee who is not a member of the family cannot claim joint possession or other common or part enjoyment of the house. It is clear from Section 23 of the Hindu Succession Act that the right of any such female heir to reside in a family dwelling-house is available. This position is explicit notwithstanding the restriction statutorily placed on the right of a female member to claim partition of such dwelling house. In other words, the female heirs have a right of residence in the joint family house. The interpretation of Section 23 of the Hindu Succession Act as well Section 44 of the Transfer of Property Act read with Section 4(1) of the Partition Act appeared for consideration in a reported judgment in II (1996) Civil Law Times 260 (SC); (1996) 3 SCC 644 in the case of Narashimaha Murthy v. Susheelabai (Smt) and Ors. and the Supreme Court has held in the following manner :
"Attention may now be invited to the last sentence in the provision and the proviso, for there lies the clue to get to the heart of the matter. On first impression the provision may appear conflicting with the proviso but on closer examination the conflict disappears. A female heir's right to claim partition of the dwelling house does not arise until the male heirs choose to divide their respective shares therein, but until that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement or residence in a Court of law. The proviso makes it amply clear 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. On first impression, it appears that when the female heir is the daughter, she is entitled to a right of residence in the dwelling house so long as she suffers from any one of the four disabilities i.e. (1) being unmarried; (2) being a deserted wife; (3) being a separated wife; and (4) being a widow. It may appear that female heirs other than the daughter are entitled without any qualification to a right of residence, but the daughter only if she suffers from any of the afore-mentioned disabilities. If this be the interpretation as some of the commentators on the subject have thought it to be, it would lead to a highly unjust result for a married grand-daughter as a Class I heir may get the right of residence in the dwelling house, and a married daughter may not. This incongruous result could never have been postulated by the legislature.
Significantly, the proviso covered the cases of all daughters, which means all kinds of daughters, by employment of the words "where such female heir is a daughter"
and not "where such female heir is the daughter". The proviso thus is meant to cover all daughters, the description of which has been given in the above table by arrangement.
The word 'daughter' in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter. The right of residence of the female heirs specified in Class I of the Scheduled, 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 right therein in favour of others or in tenanting it, creating statutory rights against dispossession or eviction. What is meant to be covered in Section 23 is a dwelling house or houses (for the singular would include the plural, as the caption and the section is suggestive to that effect), fully occupied by the members of the intestate's family and not a house or houses let out to tenants, for then it or those would not be dwelling house/houses but merely in description as residential houses. The section protects only a dwelling house, 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 revertendi. In our considered view, a tenanted house therefore is not a dwelling house, in the sense in which the word is used in Section 23.
*** *** *** The second question does not present much difficulty. On literal interpretation the provision refers to male heirs in the plural and unless they choose to divide their respective shares in the dwelling house, female heirs have no right to claim partition. In that sense there cannot be a division even when there is a single male. It would always be necessary to have more than one male heir. One way to look at it is that if there is one male heir, the section is inapplicable, which means that a single male heir cannot resist female heir's claim to partition. This would obviously being unjust result, an intendment least conceived of as the underlying idea of maintenance of status quo would go to the winds. This does not seem to have been desired while enacting the special provision. It looks nebulous that if there are two males, partition at the instance of female heir could be resisted, but if there is one male, it would not. The emphasis on the section is to preserve a dwelling house as long as it is wholly occupied by some or all members of the intestate's family which includes male or males. Understood in this manner, the language in plural with reference to male heirs would have to be read in singular with the aid of the provisions of the General Clauses Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his share from the dwelling house, the female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu male-oriented society, where begetting of a son was a religious obligation, for the fulfillment of which Hindus have even been resorting to adoptions, it could not be visualised that it was intended that the single male heir should be worse off, unless he had a supportive second male as a Class I heir. The provision would have to be interpreted in such manner that it carries forward the spirit behind it. 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.
24. Following the above case the Supreme Court in a recent judgment reported in 2002 (III) Civil Law Times 52 (SC) in the case of Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh held in the following manner :
"Applying the ratio in the aforementioned decided cases to the case in hand the position that emerges is that the last owner of the suit property left one male heir (son) and three female heirs (widow and two daughters) who succeeded to the suit property. The widow transferred her interest in the suit property by gift in favour of her two daughters, who in course of time got married; the two daughters filed the suit for partition of the suit property which was a female dwelling house; the partition suit was decreed preliminary; at the stage of execution proceedings the petition has been filed by the male heir i.e. the brother of the plaintiffs claiming right of pre-emption to purchase the share of one of the sisters (plaintiff No. 2). In strict sense the provision of Section 4 of the Partition Act has no application in the case. Neither can the plaintiffs who are daughters be said to be strangers to the family nor is there any material to show that they have expressed their intention not to reside in the suit property or to transfer their interest in the same to a person who is a stranger to the family. It is also to be kept in mind that the plaintiffs have acquired interest in the property by gift from their mother. Therefore, they have stepped into the shoes of their mother. Under the circumstances the petition filed by the defendant under Section 4 of the Partition Act was not maintainable and was liable to be dismissed as premature. At the same time keeping in view the object and purpose of preserving unity of the family dwelling house for occupation of members of the family the plaintiffs cannot be given a right to transfer their interest in the family dwelling house in favour of a stranger. If they decide not to reside in the suit dwelling house and desire to transfer their interest then they must make an offer to the defendant and if he is willing to purchase the interest of the sisters then he will be entitled to do so on payment of the consideration mutually agreed or fixed by the Court".
25. Thus in the aforesaid circumstances, for the interest of all the members of the family, i.e. the appellants and the plaintiff-respondents, and in order to preserve the unity of the family the dwelling house which is meant for occupation of the successors of appellant No. 1 and also the plaintiff-respondents has been kept joint.
26. Accordingly the decree of the trial court is modified to the extent indicated below :
(i) The suit is decreed preliminarily in part on contest against defendants 1 to 58 with costs and ex parte against the rest of the defendants.
(ii) The plaintiffs, defendant Nos. 1 and 2 are entitled to 26/144th, 48/ 144th and 13/144th shares respectively in Schedules C-1 to C-8, C-9 to C-17, D-1 house, and a share from F/1 property, namely, Rs. 2000/- along with interest accrued thereon as per the rate of the Nationalised Bank. Out of 57/144th share belonging to Jashoda, the lands sold under Exts. C and D shall be adjusted and the remaining properties, if any, be divided between the plaintiffs and defendant No. 1 in equal shares. Defendant No. 1 is, therefore, directed to amicably partition the property in accordance with the share indicated above within three months from date failing which the plaintiff-respondents shall approach the court for passing a final decree and divide the properties with the help of a Survey Knowing Commissioner.
27. With the above modification the appeal is partly allowed and the cross appeal is dismissed.