Andhra HC (Pre-Telangana)
Nalla Venkateshwarlu vs Porise Pullamma And Another on 12 August, 1993
Equivalent citations: AIR1994AP87, 1993(3)ALT532, AIR 1994 ANDHRA PRADESH 87, (1994) 1 LS 25, 1993 (3) ANDHLT 532, (1993) 3 CURCC 566, (1994) 1 CIVILCOURTC 538, (1994) 1 HINDULR 70, (1994) 2 CIVLJ 876, (1994) 2 CURLJ(CCR) 67
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
JUDGMENT
1. This second appeal arises out of partition suit filed by the respondent. One Narasimham died on 22-8-1974 leaving the plaintiff-daughter, two sons defendant 1 and defendant 2 and wife defendant No. 3 as his heirs. After the death of the said Narasimham, the plaintiff filed O.S. No. 167 of 1975 on the file of District Munsif, Tiruvuru, for partition and separate possession of 1/4th share of plaint schedule properties. There are two schedules in the plaint. Plaint 'A' Schedule contains two items -- item 1 consists of agricultural lands and item 2 comprises of thatched house and land appurtenant thereto and plaint 'B' Schedule contains moveable said to have been left by the deceased.
2. The plaintiffs case is that her father and brothers effected partition of the joint family properties on 5-11-1963. Under the partition, the plaintiff got immovable property mentioned in the plaint 'A' schedule. The plaintiff demanded partition of the plaint schedule properties. But, as the defendants, who are in possession of the property did not effect the partition, she filed this suit. The first defendant contested the suit on the ground that on 5-11-1963, late Narasimham executed will, Ex.B-1, pursuant to which he had bequeathed properties in favour of his wife-defendants 3 and defendant No. 1, and as he did not die intestate, the question of effecting partition of his property did not arise. It was further contended that item 2 of plaint 'A' schedule is a residential house, which cannot be partitioned at the instance of the plaintiff. The lower Court framed necessary issues. The plaintiff examined three witnesses and docu-
ments were marked Ex.A-1 to Ex.A-6, and the contesting defendants examined four witnesses, D.W. 1 to D. W. 4, and marked Ex.B-1 to Ex.B-3. Considering the evidence on record, the trial Court found that no B-Schedule property as available for partition. It also found that Ex.B-1 the will said to have been executed by late Narasimham on 5-11-1963, was concocted and antedated; in the result the trial Court passed preliminary decree and granted her 1/4th share in the plaint 'A' Schedule property to the plaintiff by judgment and decree dated 2nd September, 1977. The defendants 1 and 3 filed A. S. No. 16 of 1984 on the file of Subordinate Judge, Nuzvid, against the said judgment and decree of the trial Court. It may be pointed out here that the second defendant was not impleaded as party to the appeal. The Appellate Judge confirmed the findings of the trial Court and dismissed the appeal. With regard to item 2 of the plaint 'A' schedule, the learned Appellate Judge agreed with the trial Court that partition suit by female was not maintainable in view of Section 23 of the Hindu Succession Act, 1956, and that the appeal was without any merit. On 31st August, 1984, the learned Subordinate Judge dismissed the appeal of defendants 1 and 3. Aggrieved by the judgment and decree of the first appellate Court, the first defendant alone filed the Second Appeal.
3. Sri E. V. S. Charyulu, the learned counsel for the appellant, contended that in view of Section 23 of the Hindu Succession Act, the daughter a female heir cannot claim partition of the property of a dwelling house and item 2 of the plaint 'A' schedule is a dwelling house; both the Courts erred in granting partition of item 2 of the plaint 'A' schedule property. Sri Suresh Babu, appearing for the respondent-plaintiff contends that Section 23 of the Hindu Succession Act has no application, as one of the brothers remained ex parte. Therefore, in the suit only one son of the deceased, who is contesting, cannot claim the benefit of Section 23. He further contends that the second appeal itself is incompetent and is liable to be dismissed as necessary party to the appeal, namely, the second defendant is not impleaded and so far as the third defendant was concerned, she was impleaded, but, it was written in the memo of grounds that she was not a necessary party whereas in fact, she is a necessary party. Therefore, insofar as the defendants 2 and 3 are concerned this appeal is liable to be dismissed.
4. The above contentions are substantial questions in the second appeal.
5. To appreciate the contention with regard to the right of female heir to claim partition, it would be useful to read Section 23 of the Hindu Succession Act, 1956, which is as follows:
"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 member of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim paritition 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."
6. From a persual of the provision extracted above, it is evident that if a Hindu dies intestate leaving both male and female heirs specified in class I of the Schedule and the property left by him or her includes a dwelling-house wholly occupied by members of his or her family, the right of female heir to claim partition of the dwelling-house is postponed till such lime as male heirs choose to divide their respective shares therein. The Section further provides the right of residence to the female heirs in the dwelling-house. In the case of daughter, the right of residence in dwelling-house is restricted only in the following three situations:
1. If she is an unmarried daughter;
2. If she has been deserted by or separated from her husband; and
3. If she is a widow.
7. Here, we are not concerned with the right of residence.
8. A reading of Section 23 of the Hindu Succession Act, 1956, shows that the property to be partitioned must be a dwelling-house and the deceased must have left both male and female relatives. If these conditions are satisfied, the right of female relative to claim partition of the dwelling-house is postponed. The question of claiming partition of a dwelling-house by female relative was considered by this court in Bheemidi Goverdhan Reddy v. B. Subhadramma, 1980 (2) APLJ 1. Justice Madhava Reddy, as he was then, held that Section 23 of the Hindu Succession Act does not extingush the right of female heir to claim partition, but only postpones that right to enforce partition to claim a share in the dwelling-house in certain contingencies. If these situations do not arise, Section 23 of the Hindu Succession Act has no application. The learned Judge has held that Section 23 has no application where there is only one male heir of the Hindu intestate, the right of female heir or heirs to claim partition of the dwelling-house shall not be taken away or postponed till the male heir chooses to file the suit for partition. It is clear that by application of Section 23, right to claim partition by a female heir can be postponed only if there is more than one male heir. In the instant case, admittedly, Narasimham left two sons defendants 1 and 2 N. Venkateswarlu and N. Anjaneyulu, respectively. Merely because one of them remained ex parte, it cannot be said that the deceased had left only one male their, and therefore, Section 23 of the said Act should not apply. As the deceased left two sons, Section 23 has application and no partition of immovable property consisting of dwelling-house can be granted at the instance of female heir. That right would be postponed till such time as one of the brothers of the plaintiff choose to divide item 2 of the plaint 'N' schedule property.
9. Further, the second contention of the learned counsel for the respondents is formidable. Both the defendants 2 and 3 are necessary parties to the partition suit. In so far as the 2nd defendant is concerned, he was not impleaded in the first appeal and no objection was taken before the first appellate Court that as the 2nd defendant was not impleaded, the appeal should be dismissed. Therefore, I cannot now allow the respondents to take that objection at the stage of second appeal in view of provisions of Order XIII Rule 1 of Civil Procedure Code (sic), but, the same reasoning does not apply in so far as 3rd defendant is concerned.
10. Though the provisions of Order I, Rule 9 say that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it, the proviso makes it clear that this rule does not apply to non-joinder of necessary parties. Therefore, if necessary party is not impleaded in a suit or an appeal, it will have to be dismissed on that ground.
11. Admittedly, the third defendant is having l/3rd share in the property and she was impleaded as second respondent. But, against her name, it was noted that she is not necessary party. The copy of the grounds filed contain many alterations and in fair copy of the grounds, the third respondent was not impleaded. Therefore, the second appeal cannot be maintained in the absence of 3rd respondent, who is a necessary party. On this ground, the second appeal is dismissed but in the circumstances of the case, without costs.
12. Appeal dismissed.