The omission of Section 23 of the Hindu Succession Act by the 2005 Act allows the female heir to claim partition of the dwelling house without the fulfillment of the previous conditions.

JUDGMENT :

1. This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Sonepur in RFA No.42/2001 by way of modification of the preliminary decree as passed by the learned Addl. Civil Judge (Jr.Divn.), Birmaharajpur in T.S. No. 24/30 of 1992.

The respondent no. 1 as the plaintiff had filed the suit for declaration of her right, title and interest over the suit land, confirmation of possession and permanent injunction, with alternative prayer for recovery of possession in case of dispossession during the suit. It was specifically prayed for division of the suit property in two equal half; one in her favour and the other one in favour of defendant no. 2 in case he is held to be the adopted son of her deceased brother namely, Judhistir.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. Satyabadi Padhan is the father of the plaintiff and her brother Judhistir. They became the absolute owners of the suit land as on the death of Satyabadi in the year 1971. The plaintiff and Judhistir succeeded to the property left by him. The plaintiff asserts that on 23.11.91 Judhistir died issueless and his wife Bila pre-deceased him having died in the year 1988. So the plaintiff claims to be the sole owner coming to possess the suit land with the aid and assistance of her husband. The defendants are said to be in no way related to her, although defendant no. 2 is falsely stating himself to be the adopted son of Judhistir and defendant no. 1 being his father is falsely declaring to have given defendant no. 2 in adoption to Judhistir. The plaintiff having come to learn that defendants are declaring to oust her from the suit land, apprehending serious disturbance, the suit has come to be filed.

4. The defendants contested the suit. It is stated that Satyabadi died in the year 1969 and Judhistir being his son became exclusive owner in possession of the suit land to the exclusion of all others including the plaintiff. It is specifically pleaded that during the lifetime Judhistir when he lost all the hope of begetting a child through his wife Bila, they approached the defendant no.1 and his wife in the year 1980 to take their child who was then in the womb of the mother for being given in adoption after birth. The proposal was accepted and as such in the year 1981 when defendant no. 2 was born, he was given in adoption to Judhistir and his wife on the auspicious Janmastami day in the month of Bhadraba by performance of giving and taking ceremony in the Siva temple of village Barajhua. And five years thereafter Judhistir’s wife died. It is also stated that on 5.9.88 after the death of Bila, Judhistir executed a registered deed of acknowledgement of adoption in favour of defendant no.2 declaring defendant no. 2 to be his adopted son. Thus, it is stated that defendant no. 2 possessed the land along with his adoptive father and he also performed all the funeral rites and obsequies of Judhistir. It is stated that the plaintiff has filed the suit being instigated by some persons in inimical terms with the defendants being well aware of the factum of adoption and the status of defendant no. 2 as the adopted son of Judhistir and as such the plaintiff’s brother.

5. Faced with such rival pleadings, the trial court framed six issues. Rightly taking up issue nos. 3 and 4 first for decision as those concern with the claim of the plaintiff vis-a-vis the claim of defendant no. 2 as regards his status and consequently the claim over the property in question, the trial court on evaluation of evidence has recorded a finding that defendant no. 2 is the adopted son of Judhistir and that both are entitled to equal share over the property having been succeeded by them being the successors of Satyabadi, the original owner of the property. Thereafter, coming to the factum of possession, the defendant no. 2 has