The deletion of Section 23 of the Hindu Succession Act by Act 39 of 2005 puts a daughter at par with a brother to claim partition in properties inherited by siblings.

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal under Section 100 CPC against the judgment/decree dated 12.10.2009 passed by the learned Additional District Judge in R.C.A. No.19/2003 dismissing the first appeal of the appellant.

2. Briefly stated the facts of the case are that the plaintiffs/respondent Nos.1 and 2 herein had filed a suit bearing No.399/2001 for declaration, injunction, partition and possession in respect of House No.118, Gali No.6, Kishan Nagar, Safdarjung Enclave, New Delhi, which was decided by the Civil Judge in favour of the plaintiffs/respondent Nos.1 and 2 on 11.3.2003.

3. The case setup in the plaint was that the aforesaid property belonged to Gopal Devi and her husband, Baboo Ram Sharma (parents of the parties). On account of death of Gopal Devi and Baboo Ram, it is stated that the four sons and two daughters, who were left behind by them, were legally entitled to 1/6th share each in the said property. The respondent Nos.1 and 2 (herein) are the two daughters while as the present appellant Krishan Sharma is the grandson of Gopal Devi. So far as the other sons and daughters are concerned, they are respondents in the present appeal and are represented by their legal heirs. The appellant, who was the defendant No.7 in the suit, filed his written statement admitting that the suit property belonged to Gopal Devi and that she was survived by four sons and two daughters; however, he resisted the prayer of the respondent Nos.1 and 2 for partition of the suit property on the ground that the suit property was the only dwelling unit available to the appellant and the other respondents and, therefore, by virtue of Section 23 of the Hindu Succession Act, the respondent Nos.1 and 2, being the daughters, could not claim partition and would only have a right of residence. The learned trial court framed following four issues :- “1. Whether the plaintiff is entitled for the decree of declaration? OPP 2. Whether the plaintiff is entitled for the partition and possession, as claimed? OPP 3. Whether the property is wholly or partly occupied by the tenants at that time of institution of the suit? OPD 4. Relief.”

4. The learned Civil Judge decided all the issues against the Defendant No.7/appellant and in favour of the Plaintiffs/Respondents 1 and 2 and returned a finding that the property was partly occupied by the tenants.

5. The trial court, accordingly, passed a preliminary decree on 11.3.2003 in favour of Plaintiffs/respondent Nos.1 and 2 and the remaining co-sharers in the property as the legal heirs of Gopal Devi.

6. Feeling aggrieved by the said order of passing preliminary decree dated 11.3.2003 the appellant (herein) along with respondent Nos.10 and 11 (herein) preferred an appeal bearing No.19/2003 titled Sanjeev Sharma & Ors. vs. Raj Rani Bhardwaj & Ors. The learned Additional District Judge upheld the judgment and the preliminary decree passed by the trial court holding that the plaintiffs/respondent Nos.1 and 2 were entitled to 1/6th share each in the suit property and directed appointment of a Local Commissioner for the purpose of exploring the modalities of partition by metes and bounds.

7. Still not feeling satisfied, the appellant has preferred the present regular second appeal. The appeal though filed in the year 2010, considerable time has been taken by the appellant to effect service on the respondents on account of death of some of the co-sharers in the property. Be that as it may. After service of all the respondents, on 5.7.2012, the matter was adjourned to 18.7.2012 for the purpose of preliminary hearing with regard to substantial question of law involved in the matter; however, no submissions have been made and the matter has been invariably adjourned at request of either the counsel for the appellant or the appellant himself.

8. Today also, the matter was passed over once and it has been taken up only at 3:45 p.m. The learned counsel for the appellant has still not appeared and is