Karnataka High Court
M.C. Thimmaraju (Deceased By L.R'S.) vs Smt. Puttakenchamma And Others on 16 January, 1989
Equivalent citations: AIR1990KANT317, ILR1989KAR819, 1989(1)KARLJ223, AIR 1990 KARNATAKA 317, 1989 (1) KANTLJ 223, 1989 (2) CURCC 16, ILR 1989 KANT 819
ORDER M. P. Chandrakantaraj Urs, J.
1. This appeal directed against the Judgment and decree dated 31-7-1987 of the XII Additional City Civil Judge of Bangalore, passed in O.S. No. 858 of 1980 on his file coming up for admission after notice is disposed of by the following judgment.
2. The brief facts necessary to be stated for a just disposal of this case are as follows:--
One Puttakenchamma was the daughter of one Malavalli Chandagiriyappa. Chandagiriyappa and his brother Malavalli Kamaiah constituted a undivided Hindu joint family. Chandagiriyappa died some time in the year 1975 leaving behind him the plaintiff, H.C. Thimmaraju and children of his pre-deceased son M. C. Narayappa who were arrayed as defendants in the aforementioned original suit. She claimed partition of the suit schedule properties, movables and immovables, and possession by metes and bounds particularly of a dwelling house situated on Kilari Road, item No. 1 of plaint 'A' Schedule property in which she claimed to be residing. The suit was resisted by the defendants inter alia on the ground that she was not entitled to any share and that she could not maintain a suit for partition not being a coparcener and in any event, S. 23 of the Hindu Succession Act was a bar for her to get a share and possession of a dwelling house which was the family residential house, that is item No. 1 of plaint 'A' schedule property. Otherwise, the relationship was admitted. Plaintiff had claimed 1/12th share in the suit schedule properties.
3. On the pleadings, the trial Court framed as many as 5 issues and 7 additional issues. The Court recorded a finding that she could maintain a suit having regard to the provisions made in Sec. 8 of the Hindu Succession Act being a Class-I female heir (daughter) of deceased Chandagiriyappa. It also recorded a finding that she was not entitled to a share in the dwelling house but only the right of residence along with others and that S. 23 of the Act was attracted to the facts of the case having regard to the ruling of this Court in Kariyawa v. Hanumanthappa Mallurappa, (1984) 1 Kant LJ 273. However while denying her right to separate possession of her 1/12th share in item No. 1 of plaint 'A' Schedule Property, it nevertheless gave her the right of residence along with others.
4. Aggrieved by the Judgment and decree, the appellants have approached this Court and at the time of arguments, the learned Counsel has fairly confined his argument to only one aspect of the case, that is, the right of residence granted to her ignoring the proviso to S. 23 of the Hindu Succession Act on the ground that as a married woman plaintiff was not entitled to a share, P.W. 1, her husband had deposed on her behalf and also held power of attorney from her, conclusively evidencing her married status.
5. Therefore, only point for our determination which arises in this appeal is whether the trial Court was correct in awarding the plaintiff, the right of residence in suit schedule item 1 property, the family dwelling house.
6. Section 23 of the Hindu Succession Act reads as follows:--
"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."
Unless the exception created by the proviso clearly covers a case, a female heir even if she is a daughter will not be entitled to right of residence in the dwelling-house if she is married unless it is proved that she has been deserted by her husband or has been separated or she has become a widow. When there was no evidence before the Court below that the plaintiff in any way qualified to come within the proviso to Sec. 23 of the Hindu Succession Act, the Court below was in error in granting her the right of residence. We therefore must set aside that part of the Judgment and decree in her favour and deny her the right of residence till she qualifies for the same. The appeal must succeed only to that extent and in regard to other matters, the Judgment of the trial Court is affirmed.
7. If the respondent/plaintiff is in occupation of the premises, she is given six months' time to vacate the same if the appellants and others object for her to continue to reside in the item No. 1 of plaint 'A' schedule property.
8. Final decree proceedings therefore shall take notice of the modified Judgment and decree and proceed to dispose of the matter in accordance with law.
Parties to bear their own costs.
9. Order accordingly.