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2008 Supreme(P&H) 1889
2009 (2) RCR(Civ) 80
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAKESH KUMAR GARG, J.
Swaran Singh -Appellant
Versus
Charanjit Kaur & Ors. -Respondents
RSA No.3503 of 2008
Decided on: 11.11.2008
Advocate Appeared:
Mr. Ashish Gupta, Advocate for the appellant.
The main legal point established in the judgment is that the amendment to Section 23 of the Hindu Succession Act on 09.09.2005 removed the bar on female heirs claiming partition of a dwelling house, and this change in law was applied during the pendency of the case.
Headnote:
Hindu Succession Act - Partition of Dwelling House - Section 23 - Amendment - 09-09-2005
Fact of the Case:
The plaintiffs filed a suit for separate possession by way of partition of a house in dispute. The trial Court dismissed the suit based on Section 23 of Hindu Succession Act, which barred female members from claiming partition of a dwelling house. The Lower Appellate Court accepted the appeal, passing a preliminary decree for partition, and held that the amendment of the Hindu Succession Act on 09.09.2005 removed the bar created by Section 23, allowing the plaintiffs to get the dwelling house partitioned.
Finding of the Court:
The Court found that the amendment to Section 23 of the Hindu Succession Act on 09.09.2005 removed the bar on female heirs claiming partition of a dwelling house, and the plaintiffs were entitled to separate possession by way of partition.
Issues: The issues included whether the plaintiffs were co-sharers in the suit property, whether the suit was maintainable, whether it was barred by the provisions of Hindu Succession Act, and whether the plaintiffs were entitled to separate possession of the suit property by way of partition.
Ratio Decidendi: The Court held that the amendment to Section 23 of the Hindu Succession Act on 09.09.2005 removed the bar on female heirs claiming partition of a dwelling house, and the plaintiffs were entitled to separate possession by way of partition. The change in law was not made effective retrospectively and was applied during the pendency of the case.
Final Decision: The Court dismissed the appeal, finding no merit in it and stating that no question of law arose.
RAKESH KUMAR GARG J.
1. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiffs has been decreed to the effect that they are co-sharers/co-owners to the extent of 3/5 share and defendant No.1 Swaran Singh is co-sharer/co-owner of 1/5 share and the defendants No.2 to 4 are co-owners/co-sharers in equal shares to the extent of 1/5 share and a preliminary decree for partition was passed.
2. Briefly stated, the facts of the case are that the plaintiffs namely Charanjit Kaur, Manjit Kaur and Surjit Kaur filed a suit for separate possession by way of partition of the house in dispute as detailed in the head note of the plaint and situated at Kurali, Tehsil Kharar, District Ropar and for permanent injunction restraining the defendants from raising any construction. The plaintiffs submitted in their plaint that originally the house No.102, Ward No.4, Kurali was owned and possessed by Ujjal Singh and after his death the same was inherited by his wife, Kauro, through a Will dated 28.02.1988. After the death of Kauro the house in dispute was inherited by the plaintiffs and defendant No.1 and mother of defendants No.2 to 4 namely Swaran Kaur. Each inherited the 1/5 share. So the plaintiffs have 3/5 share and defendant No.1 has 1/5 share and defendants No.2 to 4 have 1/5 share in the house in dispute. The plaintiffs are entitled for separate possession of 3/5 share being owner of the same. There remains a dispute between the parties and hence the plaintiffs filed this suit for separate possession and injunction by way of partition.
3. Notice of the suit was given to the defendants. Defendants filed written statement and denied the averments of the plaint and further submitted that house in dispute is ancestral and coparcenary property of defendant No.1 and same is in possession of defendant No.1. Earlier the house in dispute was owned and possessed by Tulsi, grand father of the defendants and later on it was occupied by Ujjal Singh, father of defendant No.1 and after his death defendant No.1 is in possession of the same being his ancestral house. The defendant denied the execution of Will dated 28.02.1988. The defendant denied the share of plaintiffs in the suit property. It was stated that after the death of Kauro house in dispute is owned and possessed by defendant Swaran Singh alone. Earlier a dispute arose between the wife of defendant No.1 and his mother Kauro and the same was compromised on 03.02.1992. It was further averred that the suit is barred under the provision of Hindu Succession Act, so the defendant prayed for dismissal of the suit.
4. From the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiffs are co-sharers in the suit property? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form? OPD
3. Whether the suit is barred by the provisions of Hindu Succession Act? OPD
4. Whether the plaintiffs are entitled to the separate possession of the suit property by way of partition?OPP
5. Relief.
After hearing the parties and considering the evidence on record the trial Court dismissed the suit by relying upon Section 23 of Hindu Succession Act which barred the female member from claiming partition of a dwelling house.
5. Aggrieved by the aforesaid judgment and decree of the trial Court, plaintiffs filed an appeal, which was accepted by the Additional District Judge( Ad hoc)-cum-Presiding Officer, Fast Track Court, Rupnagar and a preliminary decree was passed to the effect that plaintiffs are co-owners to the extent of 3/5 share and defendant No.1 Swaran Singh is co-sharer of 1/5 share and defendant Nos. 2 to 4 are co-owners in equal shares to the extent of 1/5 share. The Lower Appellate Court held that after the death of original owner, Smt.Kauro became the owner of the house in dispute and after the death of Ujjal Singh and Kauro, the plaintiffs and the defendants are leg
