Calcutta High Court
Sripatinath Neogi And Another vs Sm. Ira Rani Sur on 13 February, 1991
Equivalent citations: AIR1992CAL60, (1991)1CALLT413(HC), AIR 1992 CALCUTTA 60, (1993) MARRILJ 195 (1991) 1 CALLT 413, (1991) 1 CALLT 413
JUDGMENT
1. This is an appeal preferred against the judgment and decree passed in Title Appeal Nos. 213 of 1976 and 218 of 1976 by the Second Court of Subordinate Judge, Hooghly, arising out of Title Suit No. 177 of 1973 of the first court of Munsif at Chandernagore.
2. This is a suit for declaration of title, recovery of possession and injunction.
3. The plaint case is that the plaintiffs and defendant are related as brothers and sister. Their father died intestate on 19-10-71 and the mother died on 10-2-73, leaving behind the parties to the suit and other two daughters. It is uncontroverted that the parties are governed by Hindu Law. The disputed property is a dwelling house and land appurtenant thereto which belonged to the father of the parties. The plaintiffs have been enjoying the entire house with their family members. The defendant who was residing with her husband at Chittaranjan came to the dwelling house to attend the Sradh Ceremony of the mother of the parties and was accommodated in the room of their mother. The defendant did not vacate the said room. She said that she would not go back to her husband at Chittaranjan. The defendant has no right of residence into dwelling house. So the suit has been filed.
4. The defence is that she separated from her husband who is living at Chittaranjan. The defendant had to take her youngest sister and the parents to her husband's place at Chittaranjan for their maintenance and treatment. The burden of maintenance and the expense for giving the youngest sister in marriage gave rise to difference between the defendant and her husband. Eventually the defendant left her matrimonial came on 14-5-71 and came to live with the parents at Chandernagore.
5. The trial Court decreed the suit in part. It was declared that the defendant had no right of residence in the dwelling house. No other relief was granted. The Court of Appeal below dimissed the suit altogether. The Court of appeal dismissed the appeal preferred by the plaintiffs and allowed the appeal preferred by the defendant. Being aggrieved by the said judgment the plaintiffs have preferred two appeals, one against the judgment of dismissal of their appeal and another against other allowing the appeal preferred by the defendant.
6. There is no controversy that the disputed property is a dwelling house and the land appurtenant thereto belonged to the father of the disputants. There is no controversy either that the defendant is residing in a part of the dwelling house. It is also an admitted fact that the father of the disputants died on 19-7-71 and the mother on 10-2-73. Both the courts have found that the defendant has been residing in the disputed house since 14-5-71. She was thus living in the house since before the death of the parents. It belies the plaintiffs' case that the defendant came to the dwelling house on the occasion of the Sradh Ceremony of the mother and then refused to leave the house. On the contrary, it lends support to the defence case that the defendant had left her material home at Chittaranjan with her parents and came to live in the disputed house on 14-5-71. The fact of her occupation of part of the disputed house since 14-5-71 lends support to the defence story. It has transpired in evidence that there was difference between the husband and wife and they are living apart.
7. Section 23 proviso enjoined that the defendant will have a right of residence if one of the several requirements laid down therein is satisfied. Proviso to Section 23 reads thus:--
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.
8. Generally speaking therefore a married daughter has no right of residence in the dwelling house, although she can ask for partition of the same under certain circumstances, unless she has been rendered otherwise helpless. The defendant relied upon the factum of separation from her husband as a ground for residence in the disputed house. The use of the two distinct expressions "deserted and separated" by the legislature was intentionally made in order to mark the distinction between the two concepts. Separation simpliciter is no desertion. It most be accompanies with an intention to bring cohabitation permanently to an end in order to constitute desertion. Therefore, the argument advanced by the learned Advocate for the appellant that the payment of maintenance and visit by the husband during the illness of the wife belie the fact of separation disprove separation cannot be accepted. It is true that separation must not be notional as distinguished from actual. It must not be collusive as distinguished from bonafide. This separation need not receive the sanction of a court in any matrimonial proceeding. Here there is actual separation of husband and wife since 14-5-71. This pertinent fact cannot be overlooked. The trial Court has confused the two expressions desertion and separation while dealing with the question of separation. The facts on record are eloquent to prove that the defendant is living separately from the husband since 14-5-71. It is nobody's case that the separation is collusive or purposive. Therefore the fact that the defendant is staying away from her husband since 14-5-71 confers upon her a right of residence in the dwelling house under Section 23 Proviso of Hindu Succession Act, 1956.
9. In view of any foregoing reason both the appeals must fail. The appeals are dismissed accordingly. There will be no order as to costs.
10. Appeal dismissed.