Himachal Pradesh High Court
______________________________________________________________________ vs Smt. Vijay Chauhan And Another on 20 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No: 510 of 2007
.
Reserved on: 11.08.2016
Date of Decision: 20.08.2016
______________________________________________________________________
Col. Balraj Chand Katoch (retired) .....Appellant.
Vs.
Smt. Vijay Chauhan and another .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the appellant:
For the respondents:
rt Mr. V.S. Rathore, Advocate.
Mr. Ajay Kumar, Sr. Advocate, with Mr.
Dheeraj K. Vashisht, Advocate.
Ajay Mohan Goel, J. :
By way of present appeal, appellant/plaintiff has challenged the judgment passed by the Court of learned District Judge, Kangra at Dharamshala in Civil Appeal No. 111-D/XIII/2005 dated 29.09.2007 vide which, learned appellate Court accepted the appeal filed by the respondent/defendant and set aside the judgment and decree passed by the Court of learned Civil Judge (Junior Division)-II, Dharamshala in Case No. CS29/2001 dated 25.08.2005.
2. This appeal was admitted on the following substantial questions of law on 26.03.2008:
Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 2
"1. Whether the vested and absolute rights of a person can be taken away by the subsequent amendments in Hindu Succession Act?
2. Whether the Amendment in Section 23 of .
the Hindu Succession Act, 1956, whereby Section 23 has been omitted would have retrospective effect so as to divest the rights vested in the parties prior to its coming into force w.e.f. 9.9.2005?
3. Whether the Lower Appellate Court below has wrongly applied and misinterpreted the law laid of down in judgment titled as Narashimaha Murthy V. Smt. Susheelabai and others reported in A.I.R. 1996 Supreme Court 1826?
rt
3. Brief facts necessary for the adjudication of the present case are that appellant/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for declaration and consequential relief of permanent prohibitory injunction against the defendants, his real sisters on the grounds that suit property which comprised of residential house alongwith Verandah, latrines, its courtyards and approaches existing over the suit land in Up Mohal Ghamru, Mouza and Tehsil Dharamshala, District Kangra was earlier being used as residence by Smt. Rattani Devi, mother of the parties and after her demise, its usufruct as residence was being exclusively enjoyed by the plaintiff to the exclusion of the defendants as the sole male heir of deceased Rattani Devi as its exclusive owner and defendants had no right in the same. According to the plaintiff, Rattani Devi died intestate and her estate except the suit property referred to in the plaint as dwelling house devolved upon the parties. Further, as per ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 3 the plaintiff, the defendants were married daughters of deceased Rattani Devi and were not entitled to succeed the dewelling house nor they were entitled to a right of residence therein. Further, as per the plaintiff, .
Rattani Devi died on 20.08.2000 and after her demise, the defendants had got their names entered in the revenue records vide mutation No. 598 with respect to dewelling house alongwith other estate left by her and the said revenue entry with respect to dewelling house was wrong based of on misinterpretation, collusion, fraud and without notice to the plaintiff.
It was further the case of the plaintiff that on the basis of the said erroneous revenue entries, defendants had started interfering in the rt peaceful possession of the plaintiff since March 2001 and the defendants had also started proclaiming that they also had interest in the same being heirs of deceased Rattani Devi. On these basis, the suit was filed by the plaintiff.
4. In their written statement, defendants while denying the case as was put up by the plaintiff inter alia stated that the defendants had rightly and correctly succeeded the estate of their mother including the dwelling house and it was denied by them that the dwelling house could not be succeeded by the defendants. Defendants emphatically denied that mutations attested in their favour were either wrong or the same were result of collusion or fraud. It was also stated by the defendants that the plaintiff was very much present at the time of attestation of mutation and he had also put his signatures on the order of mutation. It was further their case that question of interference did not arise because the ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 4 defendants were in fact in occupation of the house. It was further stated by the defendants that the plaintiff was misleading and misconstruing himself as the sole successor, owner and occupier of the house, whereas .
he has no such right vested in it.
5. On the basis of pleadings of the parties, learned trial Court framed the following issues:
"1. Whether the plaintiff is exclusive owner in possession of dwelling house and land in suit of appurtenant to it under Section 23 of Hindu Sucession Act, as alleged? OPP
2. Whether the revenue entry suowing the defendants rt owner-in-possession alongwith plaintiff are wrong, illegal and against state of things existed on the spot? OPP
3. Whether the plaintiff has no cause of action? OPD
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the plaintiff is estopped by his act and conduct? OPD
6. Whether the suit is not correctly valued for the purpose of Court fee? OPD
7. Whether Rattani Devi had executed a valid Will dated 10.08.2000 in favour of the parties, as alleged? OPD
8. Relief.
6. On the basis of material placed on record by way of ocular and documentary evidence, learned trial Court returned following findings to the issues so framed:
"Issue No. 1: Partly Yes. ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 5 Issue No. 2: Yes. Issue No. 3: No. Issue No.4: No. Issue No. 5: No. . Issue No.6: No. Issue No.7: No. Relief: Suit of the plaintiff is decreed as per operative portion of this judgment.
7. Suit was decreed by the learned trial Court in favour of the of plaintiff in the following terms:
"...suit of the plaintiff is decreed to the rt effect that the defendants have no right, title, interest or concern with the dwelling house as well as with the land appurtenant to it comprising of Khata No. 92, Khatauni No. 159, Khasra Nos. 1313, 1346,1369, 1370, 1370/1, 1371, 1372,1373,1376 plot-9, area measuring 545-36D.M. Mohal Gamru, Mouza and Tehsil Dharamshala, and have no right of residence in the dwelling house. The revenue entries in favour of the defendants are ordered to be deleted. Further, the suit of the plaintiff is decreed for a decree of possession and the defendants are directed to vacate the part of the premises occupied by them within three months from the date of this judgment. The defendants are also restrained from claiming any right whatsoever or causing interference in the peaceful enjoyment by the plaintiff of usufruct raising therefrom. However, in the peculiar facts and circumstances of this case, parties are left to bear with their own costs."::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 6
8. It was held by learned trial Court (while disbelieving the Will set up by the defendants, which finding is not subject matter of the present appeal) that mother of the parties Rattani Devi died on .
20.08.2000 leaving behind one son (plaintiff) and two daughters (defendants). As per learned trial Court, defendants had no right of residence in the dwelling house in view of the provisions contained in Section 23 of the Hindu Succession Act, 1956 and it was also held by of learned trial Court that defendants do not fall within the proviso of Section 23 of the Hindu Succession Act. On these basis, it was concluded by learned trial Court that the defendants being married daughters had rt no right of residence in the dwelling house and though the plaintiff and defendants had succeeded the entire estate of deceased in equal shares, but in view of the provisions of Section 23 of the Hindu Succession Act, defendants being married daughters had no right of residence in the dwelling house. Learned trial Court also held that as the defendants had no right of residence in the dwelling house, therefore, the plaintiff was entitled for the possession of part of the house occupied by the defendants. Learned trial Court also held that revenue entries in favour of the defendants were wrong. On these basis, learned trial Court decreed the suit filed by the plaintiff.
9. Feeling aggrieved by the said judgment passed by learned trial Court, defendants filed the appeal. Learned appellate Court vide its judgment and decree dated 29.09.2007 set aside the judgment and decree passed by learned trial Court. It was held by learned appellate ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 7 Court that the suit property which included a dwelling house, other construction and land appurtenant to it undisputedly was owned and possessed by Rattani Devi, mother of the parties and she resided in the .
dwelling house subject matter of the suit property during her life time and she was owner in possession of the same. It was further held by the learned appellate Court that admittedly after the demise of Rattani Devi on 20.08.2000, whole of the estate of Smt. Rattani Devi including the suit of property was mutated in the presence of the parties to the suit vide mutation No. 598 dated 23.10.2000 Ex.-D1 in equal shares in favour of the parties to the suit, as a result of which, the parties to the suit became rt owners in joint possession in equal shares of the suit property. It was further held by learned appellate Court that there was no dispute that parties to the suit were Hindus by caste and were governed in the matter of succession by Hindu Succession Act, 1956. Thereafter, it was held by learned appellate Court while interpreting Section 23 of the Hindu Succession Act (on the basis of judgments which find mention in the judgment passed by learned appellate Court) that Section 23 of the Hindu Succession Act prohibits partition of dwelling house of deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life of the male heir or till the partition or ceases to occupy and enjoy it or lets it out or till the partition act and equities are worked out. It was further held by learned appellate Court that there was no dispute that both defendants were married daughters ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 8 of deceased Rattani Devi and had succeeded to the suit property including dwelling house in equal shares with the plaintiff as per the provisions of Section 23 of Hindu Succession Act with no right of .
residence in the dwelling house as they were not covered under the proviso to Section 23 of the Hindu Succession Act nor were they having right to get the dwelling house partitioned till the plaintiff got the dwelling house partitioned or the happening of the events as were laid down by the of Hon'ble Supreme Court of India in Narashimaha Murthy's case. It was further held by learned appellate Court that defendants were entitled to succeed to the suit property equally with the plaintiff on the basis of rt mutation No. 598, which was mutually entered and sanctioned in favour of the plaintiff and defendants and the revenue entries showing plaintiff and defendants as owners of the suit property were legal and valid. It was further held by learned appellate Court that grant of decree for vacant possession of the portion of dwelling house which was found in possession of the defendants was also not sustainable, especially in view of the fact that rider which was created upon the rights of the defendants by virtue of the then existing provisions of Section 23 of the Hindu Succession Act stood amended vide amendment Act 39 of 2005 which had come into force w.e.f. 09.09.2005 and after the amendment, Section 23 stood omitted from Hindu Succession Act, 1956. Learned appellate Court also held that judgment passed by the trial Court to the effect that defendants had failed to prove the due execution of Will Ex. DW2/A was ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 9 correct. On these basis, learned appellate Court set aside the judgment passed by the trial Court.
10. I have heard the learned counsel for the parties and also .
gone through the records of the case as well as the judgments passed by both the Courts below.
11. Section 23 of the Hindu Succession Act till it was in force provided as under:
of "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 rt 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."
12. This Section was omitted by Section 4 of the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) w.e.f. 09.09.2005.
Deleted Section 23 of the Hindu Succession Act made a hostile discrimination against female heirs to the effect that while the female heir ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 10 was given a share in the family dwelling-house, she was not entitled to enjoy the benefit thereof till the male heirs chose to divide their respective shares. In this background, it is pertinent at this stage to refer to Head .
Note of the plaint as filed by the plaintiff:
"Suit under Section 26 of the C.P.C. read with Section 23 of the Hindu Succession Act No. 30 of 1956 for the grant of decree in favour of plaintiff and against defendants:
of 'A' For declaration with consequential relief of permanent and mandatory injunction to the effect that the defendants have no right, title, interest or concern in any manner whatsoever with dwelling house built rt over as well as alongwith land appertenant to it, comprising of Khata No. 92 min, Khatauni No. 159 min, Khasra Nos. 1313, 1346, 1369, 1370, 1370/1,1371, 1372, 1373, 1376 plots 9 area measuring 545-36 D.M. situate at Mohal Ghamru, Mauza and Tehsil Dharamsala, District Kangra exclusively of the plaintiff as being owner in possession nor the defendants have right of residence therein. The revenue entries showing them as owner in possession alongwith plaintiff are wrong, illegal against the state of things existing on spot. They be restrained from claiming any right whatsoever or cause interference in the peaceful enjoyment by plaintiff of usufruct arising therefrom. Further they be directed to get the erroneous revenue entries showing them as owner in possession be corrected by deletion of their names therefrom.::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 11
In case the plaintiff is found not entitled to a decree as prayed for in prayer 'A' wholly or partially, then in that contingency:-
'B' For possession to that extent.
.
Value for the value for the Date of place of
Purposes of purposes of cause of cause of
court fees Jurisdiction action action
'A' Rs.140/- fixed. Rs.140/- 20th Aug. Up Mohal Ghamru
2000 & on Mauza & Tehsil
subsequent Dharamshala,
of
Different District Kangra.
occasions
'B' Rs.188/- i.e. Rs.563/- i.e.
(Ten times of land rt (Thirty times of
revenue assessed) land revenue
assessed)."
13. A perusal of head note of plaint and the contents of the plaint clearly demonstrate that the suit filed by the plaintiff was totally misconceived. Section 23 of the Hindu Succession Act as it existed before its omission nowhere barred the inheritance of the estate of a Hindu who died intestate including dwelling house by a female heir specified in Class-I of the Schedule. What this Section barred was that a female heir was not entitled to enjoy the benefit of her share in the family dwelling-
house till the male heirs chose to decide their respective shares. This very important aspect of the matter was totally lost sight of by learned trial Court while it decreed the suit of the plaintiff, wherein the plaintiff had prayed for a declaration to the effect that defendants who were the daughters of deceased Rattani Devi, a Hindu who died intestate were not entitled to inherit her estate, which included a dwelling house. Learned ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 12 appellate Court has rightly set aside the judgment and decree so passed by learned trial Court because the findings returned by learned trial Court were perverse as the intent of Section 23 of the Hindu Succession .
Act was not to debar the female heirs specified in Class-1 of a Hindu who died intestate from inheriting dwelling houses. This perversity was rightly set aside by learned appellate Court by reversing the findings returned in this regard by learned trial Court. Learned trial Court lost sight of the fact of that Section 23 of the Hindu Succession Act deals with "Special provision respecting dwelling houses" and this Section did not contain the General Rules of Succession. rt
14. Even the finding which has been returned by learned appellate Court to the effect that after delition of Section 23 from Hindu Succession Act w.e.f. 09.09.2005, the riders which were created upon the rights of the defendants by virtue of legal provisions contained in Section 23 of the Hindu Succession Act stood obliterated also does not require any interference because though the amendment in issue is prospective, but the fact of the matter still remains that from the year the said amendment comes into force, the riders which were created upon the rights of the defendants no more exist.
15. The Hon'ble Supreme Court in G. Sekar Vs. Geetha & Ors.
AIR 2009 Supreme Court 2649 while holding that operation of amendment carried out vide Act 39 of 2005 w.e.f. 09.09.2005 was prospective in nature has held:
"22. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 13 that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned .
has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be of construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at rt the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. We may notice Sub- section (5) of the 2005 Act, which reads as under:
"(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December,2004 Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 14 under the Registration Act, 1908 or partition effected by a decree of a court."
Thus, where a partition has not taken place, the said provision shall apply.
.
Reliance has also been placed by Mr. Viswanathan on Eramma v. Verrupanna & ors. [(1966) 2 SCR 626], wherein it was held:
"It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the of commencement of the Act. It is manifest that the language of s. 8 must be construed in the context of s. 6 of the Act. We accordingly hold that the provisions rt of s. 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, s. 8 of the Act will have no application."
In the factual matrix obtaining in Eramma (supra), Section 8 was construed in the light of Section 6 of the Act, as one of the questions raised therein was as to whether the property was a coparcenery property or not.
Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place."
16. The Hon'ble Supreme Court in Prakash & Ors. Vs. Phulavati & Ors., Civil Appeal No. 7217 of 2013 decided on 16.10.2015 has held:
"23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 15 including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the .
Explanation".
25. The view which we have taken above is consistent with and not in conflict with any of the earlier decisions. We may now refer to the decisions cited by the parties. Main decisions cited by the respondents are: Prema vs. Nanje Gowda9, Ganduri of Koteshwaramma vs. Chakiri Yanadi 10 , V.K. Surendra vs. V.K. Thimmaiah 11, Ram Sarup vs. Munshi 12, Dayawati vs. Inderjit 13, Amarjit Kaur vs. Pritam Singh rt 14, Lakshmi Narayan Guin vs. Niranjan Modak 15 S. Sai Reddy vs. S. Narayana 9 (2011) 6 SCC 462 10 (2011) 9 SCC 788 11 (2013) 10 SCC 211, para 18 12 (1963) 3 SCR 858 13 (1966) 3 SCR 275 14 (1974) 2 SCC 363 15 (1985) 1 SCC 270 Reddy 16 and State of Maharashtra vs. Narayan Rao 17.
Many of these decisions deal with situations where change in law is held to be applicable to pending proceedings having regard to intention of legislature in a particular law. There is no dispute with the propositions laid down in the said decisions. Question is of application of the said principle in the light of a particular amending law. The decisions relied upon do not apply to the present case to support the stand of the respondents.
25.1. In Ram Sarup case (supra), the question for consideration was of amendment to the Punjab Pre- emption Act, 1930 by Punjab Act 10 of 1960 restricting the pre-emption right. Section 31 inserted by way of ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 16 amendment prohibited passing of a decree which was inconsistent with the amended provisions. It was held that the amendment was retrospective and had retrospective operation in view of language employed in .
the said provision.
25.2. In Dayawati case (supra), Section 6 of the Punjab Relief of Indebtedness Act, 1956 expressly gave 16 (1991) 3 SCC 647 17 (1985) 2 SCC 321, paras 8 to 10 Page 20 retrospective effect and made the statute applicable to all pending suits on the commencement of of the Act. The Act sought to reduce the rate of interest in certain transactions to give relief against indebtedness to certain specified persons.
rt 25.3. In Lakshmi Narayan Guin case (supra), the question was of applicability of Section 13 of the West Bengal Premises Tenancy Act, 1956 which expressly provided that no order could be passed by the Court contrary to the scheme of the new law.
25.4. In Amarjit Kaur case (supra), Section 3 of the Punjab Pre-emption (Repeal) Act, 1973 was considered which expressly prohibited the Court from passing any pre-emption decree after the commencement of the Act.
25.5. There is also no conflict with the principle laid down in V.K. Surendra case (supra) which deals with a presumption about the nature of a joint family property and burden of proof being on the person claiming such Page 21 property to be separate. The said decision only lays down a rule of evidence.
25.6. In S. Sai Reddy case (supra), the question for consideration was whether even after a preliminary decree is passed determining the shares in partition, ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 17 such shares could be varied on account of intervening events at the time of passing of the final decree. In the said case, partition suit was filed by a son against his father in which a preliminary decree was passed .
determining share of the parties. Before final decree could be passed, there was an amendment in the Hindu Succession Act (vide A.P. Amendment Act, 1986) allowing share to the unmarried daughters. Accordingly, the unmarried daughters applied to the court for their shares which plea was upheld. The said of judgment does not deal with the issue involved in the present matter. It was not a case where the coparcener whose daughter claimed right was not alive on the date rt of the commencement of the Act nor a case where shares of the parties stood already crystalised by operation of law to which the amending law had no application. Same is the position in Prema and Ganduri cases (supra). Page 22 25.7. In Narayan Rao case (supra), it was observed that even after notional partition, the joint family continues. The proposition laid down in this judgment is also not helpful in deciding the question involved herein. The text of the Amendment itself shows that the right conferred by the Amendment is on a 'daughter of a coparcener' who is member of a coparcenary and alive on commencement of the Act. 25.8. We also do not find any relevance of decisions in State of Rajasthan vs. Mangilal Pindwal18 and West U.P. Sugar Mills Asson. vs. State of U.P.19 or other similar decisions for deciding the issue involved herein. The said decisions deal with the effect of repeal ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP 18 of a provision and not the issue of restrospectivity with which the Court is concerned in the present case."
However, in the present case, it is not a question of reopening .
of vested rights where succession has already taken place because on the contrary here is a case where by way of succession, the plaintiff as well as the defendants have succeeded to the estate of their deceased mother in equal shares.
of
17. Therefore, in my considered view, there is neither any perversity nor any infirmity with the judgment which has been passed by learned appellate Court. Learned appellate Court on correct appreciation rt of the statutory provisions as well as law declared on the same has set aside the judgment and decree passed by learned trial Court, which judgment and decree as I have already held above was perverse and was a result of misreading and misconstruction of the provisions of Section 23 of the Hindu Succession Act. The substantial questions of law are answered accordingly.
18. Therefore, in view of my findings recorded above, the appeal is dismissed with costs. Miscellaneous application(s), if any, stand disposed of.
(Ajay Mohan Goel) Judge August 20, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:02:50 :::HCHP