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High Court Of Calcutta
M. K. MUKHERJEE, SATYABRATA MITRA
USHA MAJUMDAR - Appellant
Versus
SMRITI BASU - Respondent
Appeal 221 Of 1984
Decided On : 08/28/1987
PARTITION - RESTRICTION - HINDU SUCCESSION ACT, 1956, SECTION 23 - WHETHER RESTRICTION APPLIES TO DWELLING HOUSE PARTIALLY TENANTED - PROVIDENT FUND ACT, 1952 - NOMINEE - WHETHER GETS BENEFICIAL INTEREST IN THE AMOUNT STANDING TO THE CREDIT OF THE DECEASED MEMBER.
Fact of the Case:
The plaintiff, the only issue of her father by his first wife, filed a suit for partition of properties left behind by her father, including a two-storied house and the moneys paid under his Life Insurance Policy and from his provident fund account. The defendants, the second wife, son, and two step sisters of the plaintiff, contested the claim, contending that the house was impartible under Section 23 of the Hindu Succession Act, 1956, and that the moneys payable under the Life Insurance Policy and from the Provident Fund Account exclusively belonged to the second wife and the son of the deceased as they were the respective nominees.
Finding of the Court:
The court held that the restriction on the right of a female heir to claim partition under Section 23 of the Hindu Succession Act would not apply if the dwelling house was partly tenanted. The court also held that the nominee under the Provident Fund Act, unlike the nominee under the Insurance Act, had not only the right to receive the money but also a beneficial interest therein.
Issues: 1. Whether the restriction on the right of a female heir to claim partition under Section 23 of the Hindu Succession Act applies to a dwelling house that is partially tenanted? 2. Whether the nominee under the Provident Fund Act gets a beneficial interest in the amount standing to the credit of the deceased member?
Ratio Decidendi: 1. The court interpreted Section 23 of the Hindu Succession Act and held that the restriction on the right of a female heir to claim partition applies only if the dwelling house is wholly occupied by the members of the family. The court reasoned that the purpose of the restriction was to preserve the dwelling house as the exclusive domain of the male heirs until they opted for dividing the same, and that this purpose would not be served if the house was partly tenanted. 2. The court examined the provisions of the Provident Fund Act and the Scheme framed thereunder and held that the nominee under the Provident Fund Act had a beneficial interest in the amount standing to the credit of the deceased member. The court reasoned that the nominee was entitled to receive the money and that the money vested in the nominee upon the death of the member, free from any debt or liability incurred by the deceased or the nominee.
Final Decision: The court allowed the appeal in part and modified the decree of the Trial Court by declaring that the plaintiff-respondent was not entitled to any share in the amount which was standing to the credit of the deceased Samarendra Nath Mazumdar in his provident fund.
( 1 ) SMT. Smriti Basu (nee Mazumdar), who happens to be the only issue of one Samarendra Nath Mazumdar (since deceased) by his first wife, filed a suit, out of which the instant appeal arises, against her step mother, step brother and two step sisters claiming partition of the properties left behind by her father which include a two-storied house and the moneys paid under his Life Insurance Policy and from his provident fund account. In contesting the claim of the plaintiff the defendants did not dispute that she had 1/5th share in the properties left behind by her father but contended that in view of Section 28 of the Hindu Succession Act, 1956 (hereinafter referred to as the "succession Act") the house was impartible. It was further contended by them that the moneys payable - and since paid - under the Life Insurance Policy and from the Provident Fund Account of the deceased exclusively belonged to Smt. Usha Mazumdar (defendant No. 1) the second wife of the deceased, and Sri Surojit Mazumdar (defendant No. 4), the son of the deceased as they were the respective nominees. The Trial Court negatived all the contentions raised by the defendants and decreed the suit in a preliminary form. Hence this appeal at their instance.
( 2 ) MR. Pal, learned Advocate appearing on behalf of the defendants, fairly conceded that the finding of the Court below that the plaintiff had a claim, proportionate to her share, to the money received under the Life Insurance Policy of her father could not be assailed in view of the Supreme Court judgment in the case of Sarbati Devi v. Usha Devi, reported in A. I. R. 1984 S. C. 346. He, however, submitted that the other two findings of the Trial Court, namely, that the house was partible and that the plaintiff-respondent was also entitled to receive her share in the provident fund money of the deceased were not legally sustainable.
( 3 ) IT is not in dispute that the house in question is exclusively used for residential purposes; and that its two rooms in the ground floor are in occupation of a tenant and the rest is in occupation of the defendants. In view of those facts the Trial Court held that the restriction on the right of a married female to claim partition as engrafted in Section 23 of the Succession Act would not apply. Mr. Pal, however, submitted that the restriction imposed under Section 23 of the Succession Act would be applicable even if a dwelling house was partially tenanted. According to Mr. Pal the word "wholly" appearing in Section 23 should not be given its plain and literal meaning but should be interpreted in. a manner consistent with the purpose and object of the Act itself. When so interpreted it would mean so much of the dwelling-house as was "wholly" occupied by the members of the family and consequently the plaintiff herein could legitimately claim partition only of that portion of the dwelling-house which was in occupation of the tenant, argued Mr. Pal, in this connection he referred to a judgment of the Gujarat High Court in the case of Vidyaben v. J. N. Bhatt reported in A. I. R. 1974 Gujarat 23. In combating the above contention of 1vir. Pal, Mr. Roy Chowdhury, learned Advocate appearing for the respondent, submitted that the word "wholly" appearing in Section 23 should be given its natural meaning more particularly when the section was a clog on the right of an. individual to succeed to an estate and that when such a meaning was given there was no escape from the conclusion that the suit house was partible as it was not fully occupied by the members of the deceased's family.
( 4 ) TO appreciate the respective contentions of the parties it will be profitable at this stage to extract Section 23 of the Succession Act, so far as it is relevant for our present purposes:"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 occupie
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