1993 Supreme(Bom) 325

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Madhavrao Keshavrao Surwase and another.... Petitioners.
Versus
Jankabai w/o. Atmaram Mane and others.... Respondents.
Civil Revision Application No. 466 of 1993, decided on 20-7-1993.
Advocates appeared :
C.G. Solshe, for the petitioners.
G.N. Chincholikar and Mrs. S.G. Chincholikar, for respondents Nos. 2D. 2A(i), (ii), (iii), 2C, 2B, 5 and 2E.

Headnote:Sections 38 and 47 - Decree-Lacking jurisdiction-Be nullity-But decree passed wrongly not be no.

       What decree would be a nullity on the ground of want of jurisdiction is a vexed question. The jurisdiction of a Court is firstly to be examined at the commencement of the proceedings and if the properly assumed, non-consideration of a fact or provision of law will not make the order or decree without jurisdiction.

       The matter would be simple in case the Court in a suit filed by female member claiming her share in the family property including dwelling house if the male members give consent to the partition of the dwelling house also or plead that partition has already taken place, the female member shall be entitled for her share in the dwelling houses Pleading or the acts of the male members in such a case would amount to choosing to have partition even if the finding of fact recorded by the Court is otherwise. In the instant case, it is admitted that out of 5 houses left by intestate, 3 houses are occupied by different male members of the family had no jurisdiction to deal with the question at all. For instance, if a Civil Court deals with the question of tenancy and grants declaration that the plaintiff is or is not a tenant of agricultural land when the law creates Special Tribunals for deciding the issue and excludes expressly the jurisdiction of the Civil Court, the decree of the Civil Court granting this relief would be a nullity. But wrong consideration of the legal provision or overlooking certain legal provisions would not by itself render the decree a nullity. If the basic requirement to be considered are within the jurisdiction of the Court, non-consideration of a legal provision would not bring the decree out of the ambit of the jurisdiction. In the instant case, Court had jurisdiction to deal with the property, it had jurisdiction to pass a decree for partition It had aha jurisdiction to find out whether there was partition. It had jurisdiction to consider whether the plaintiff is entitled for share in the suit property. Therefore, merely because the implication of Section 23, since they were not pleaded in defence, were not considered by the Judge, the decree will not be a nullity. The provisions of law some times impose a restriction on praying particular relief Such restraints tend and two houses have been sold by the male members which were allotted to them in a partition which was alleged by them in their pleading Purpose of Section 23 is to prevent the disintegration of the family dwelling houses at the instance of the female heir. But if the male members divide the property between themselves, act all it sell some portion of the dwelling house or some of the dwelling houses, then the right of the male member to claim partition in the dwelling house is not postponed. The disintegration of the family dwelling house or houses is already there and the restriction imposed by section to protect a party and if that party does not plead or point out that restrict, it would not be open for that party to challenge the decree in the execution proceeding urging that the decree is a nullity. A suit by an unregistered partnership firm would not be maintainable by virtue of provisions of Section 69 of the partnership Act. But if the objection is not raised and the decree is passed and has become final, the execution of such a decree cannot be resisted on the ground that the decree is a nullity.

       Section 23-Applicability of.

       The object of the rule laid down by this section is to prevent fragmentation and disintegration of the family dwelling house at the instance of a female heir. The purpose of the section is not to nullify the right of female heir which is granted by her inclusion in Class I heirs in Schedule appended to the Hindu Succession Act, 156. The specific object in the mind of the legislators appears to be that if dwelling is commonly shared by made heirs also, it should not to be disintegrated at the behest of a female heir who is likely to induct a stranger in portion of the property and create difficulties.

       A dwelling house to be covered by this restriction should be occupied wholly by the members of the family of the male or female who died intestate and the right is postponed till male heirs choose to divide their shares. If it is found that the house or houses are no occupied wholly by the members of his or her family, then Section 23 does not apply.

       There can be no doubt that the proposition that the legislative mandate contained in Section 23 will have to be obeyed and a female member could not be allowed to disintegrate the family dwelling house until male members choose to divide. Question required to be dealt with in the instant case is not whether Section 23 is mandatory or not. If the male members plead that the partition has already taken place and also act on the alleged partition by selling some of the dwelling houses to the strangers to the family, in such a case, even if the Court comes to the conclusion that the partition has not taken place, should the female heir to deprived from her share in the dwelling houses.

       The words appearing in Section 23 untile male heirs choose to divide their respective shares therein do not indicate that there should be actual partition. It merely signifies intention of the male members to have partition and when such intention is clear by pleadings or by acts of such male members, the requirement of this clause is complete. Therefore, 23 will not apply. The words "wholly occupied" indicate that dwelling house or houses should not have been partitioned or allotted to different shareholders and they should not have introduced stranges into it.