Manohar son of Mukundrao Deshpande vs Menkabai (Smt. ) wife of Mukundrao Brahmin & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 396

IN THE HIGH COURT OF BOMBAY
(Nagpur Bench)
M.M. Qazi A.A. Desai, JJ.
Manohar son of Mukundrao Deshpande.... Appellants.
Versus
Menkabai (Smt.) wife of Mukundrao Brahmin others.... Respondents.
Letters Patent Appeal No. 102 of 1983 in First Appeal No. 26 of 1970, decided on 23-11-1987.
Advocates appeared :
C.S. Kaptan, for appellant.
J.N. Chandurkar, for respondent.

Headnote:Section 23 - Hindu Womens Right to Property Act, 1937 - Section 3 (3) - Dwelling house - Testatory died before commencement of Hindu Succession Act - Widow of the testator had no right to claim partition of the house even if it accrued prior to commencement of the Act.
       The Parliament with a view to amend and codify the law relating to intestate succession amongst Hindus has enacted the Hindu Succession Act of 1956. The Act is a complete Code in itself for the subject provided therein. This Act has substantially improved the right of Hindu Woman. The right to property of woman was limited as provided under the earlier Act of 1937. However, his Act under Section 14 has granted absolute right to female members to the property acquired by them either before or after the commencement of the Act of 1956. Thus, the remale heirs are brought at part with male heirs. By Section 3 (f), this Act of 1956 has defined "heir" means any person, male or female who is entitled to succeed to the property of an intestate under this Act. Section 4 (1) (b) provides the overriding effect of this Act. It lays down that any other law in force immediately before the commencement of his Act shall cease to apply to Hindus in so far it is inconsistent with any of the provisions contained in this Act. The Legislature has made their intention explicity by nullifying the effect of previous Statute which contains provisions to the contrary. As such those incidents of the previous statutes which have been applied to Hindus and do not conflict with the provisions of the Act of 1956 are preserved.
       The intention as discernible three from is to withdraw the opinion of a female heir to distintegrate the dwelling house by enforcing right to partition.
       Section 14, as observed has improved the right of a Hindu Woman which was acquired before or after the commencement of the Act of 1956. Section 23 operates, notwithstanding anything contained in the Act of 1956. Section 3 thus prevails over Section 14 which has improved the rights acquired even before the commencement of the Act of 1956. Section 23 though does not have similar phraseology like in Section 14 its applicability cannot be confined to the rights devolved only after the commencement of the. Act of 1956. Such construction would impair the legislative intention which is explicit. Further sub - section (2) of Section 4 made an unequivocal declaration that the Act of 1956 shall not effect rights and matters as regards to tenancy, fragmentation and ceiling. This has made crystals clear that the Legislature did not intend to save those right devolved by Section 3 (3) of the Act of 1937.
       HINDU WOMENS RIGHT TO PROPERTY ACT, 1937
       Section 3 (3).
       See Hindu Succession Act, 1956, Section 23.

JUDGMENT - A.A. DESAI, J.:---This Letters Patent Appeal raises a question of substantial importance as to whether the right to claim partition of a dwelling house, accrued in favour of a Hindu widow under sub-section (3) of section 3 of the Hindu Woman's Right to Property Act of 1937 (hereinafter referred to as the Act of 1937') has been placed under suspension on coming into force section 23 of the Hindu Succession Act of 1956 (hereinafter referred to as the 'Act of 1956'). The facts giving rise to the question are as under :---

2. Late Mukundrao Deshpande was a member of a coparcenary. His coparcenary had inherited ancestral property including moveable and immoveable. Late Mukundrao died intestate in 1951 leaving behind his widow Menkabai (Plaintiff) and sons (defendants). They on 30-12-1954, vide Ex. 91, partitioned only agricultural land of the coparcenary and thereunder 1/5th share was allotted to the plaintiff. They, however, preferred to maintain the jointness of rest of the property.

3. The plaintiff on 20-8-1959 filed a suit claiming a declaration for setting aside the partition dated 30-12-1954. She alleged that her consent for partition was obtained by fraud. She further claimed partition of the entire properties of the joint family, described in Schedule A, B and C, by metes and bounds, and also claimed separate possession of her 1/5th share Schedule A to the plaint describes agricultural lands. Schedule B relates to moveable property and Schedule C pertains to the house properties. The learned trial Court by judgment and decree dated 19-12-1964 dismissed the entire claim of the plaintiff. The plaintiff, therefore, preferred first appeal under section 96 of the Code before this Court.

4. The respondents-original defendants in appeal resisted the claim of the plaintiff for partition of house properties as described in Schedule C, amongst others, on the ground of a bar as laid down under section 23 of the Act of 1956. The learned Single Judge observed that section 23 of the Act of 1956 has no application to the present case. According to the learned Single Judge no such plea has been raised in the written statement that the properties described in Schedule C were dwelling houses wholly occupied by members of the family. According to the learned Single Judge, the nature of the house and its use are essentially a question of fact. Both these houses at Paratwada and Chendkapur had been placed at the same level for purposes to attract section 23 by the respondents. It is further observed that even in the evidence there is not even a whisper that both or either of the houses are dwelling houses wholly occupied by the members of the family.

5. The learned Single Judge also held that section 23 is not applicable as the succession has opened in the year 1951 long before Hindu Succession Act came into force. The learned Single Judge in this behalf sought support from the decision in the case of (Upendra Nath v. Chintamani Devi)1, A.I.R. 1963 Calcutta 22.

6. The learned Single Judge by judgment dated 10-2-82 rejected the claim of the plaintiff so far as the partition of agricultural land described in Schedule A was concerned. The learned Single Judge however, directed the partition of movables described in Schedule B and also of the house properties described in Schedule C.

7. This judgment has been impugned in this appeal. The challenge is confined only to the right of a Hindu Widow to claim partition of the house properties described in Schedule C.

8. Mr. Kaptan, the learned Counsel for the appellants-defendants, at the outset made a submission that the learned Single Judge has not appreciated the pleadings and evidence borne on record. According to Mr. Kaptan, the defendants have made specific pleadings and there is also evidence on record which is sufficient to attract the bar created by section 23 of the Act of 1956. With the assistance of the learned Counsel representing the parties before us, we have perused the pleadings and

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday