The judgment clarifies that female heirs retain rights to seek partition despite Section 23, which is lifted when a male heir claims partition.

JUDGMENT :

MANDEEP PANNU, J.

1. The present Regular Second Appeal has been filed by the plaintiffs– appellants challenging the judgment and decree dated 12.12.1998 passed by the learned Additional District Judge, Jagadhri whereby the judgment and decree dated 05.11.1996 passed by the learned Civil Judge (Junior Division), Jagadhri decreeing the suit of the plaintiffs for partition, was set aside and the suit was dismissed.

Brief Facts

2. The facts in brief are that Uttam Singh, owner of the house in dispute situated in Chhachhrauli, District Yamuna Nagar, expired leaving behind his legal heirs, namely his sons Jaswant Singh, Amrik Singh, Dhanwant Singh and his daughters, besides the present plaintiffs being legal representatives of deceased Jaswant Singh. The plaintiffs’ case was that the suit property continued to be joint and had never been partitioned. It was further pleaded that they were in possession of specific portions as shown in the site plan and that defendants had refused to effect partition and were threatening to alienate the property, thus necessitating the suit.

3. The defendants admitted that plaintiffs were LRs of Jaswant Singh, but denied that they had any share in the property. They alleged that Jaswant Singh had been separated in the lifetime of Uttam Singh and was living separately since his marriage in 1982, and therefore, neither he nor his heirs had any right in the house.

4. From the pleadings of the parties, following issues were framed:-

1. Whether the property in dispute, detailed in the heading of the plaint, is owned by the defendants and plaintiffs jointly as alleged in the plaint. If so, whether the plaintiffs are entitled to the separate possession by way of partition, to the extent of their share? OPP

2. Whether the present suit is not maintainable? OPD

3. Whether the present suit being false, frivolous and vexatious, is liable to be dismissed with special costs? OPD

4. Relief.

5. Both the parties have led their evidence.

Findings of the trial Court

6. The learned trial Court, on appreciation of oral and documentary evidence, held that there was no proof of any partition ever having taken place between Uttam Singh and Jaswant Singh. The site plan (Ex. P1) and Local Commissioner’s report (Ex. P2 to P4) established that the plaintiffs were in possession of certain portions. It was further held that as per law of succession, upon the death of Uttam Singh, his estate devolved equally upon his five legal heirs, and consequently the plaintiffs, being LRs of Jaswant Singh, were entitled to his 1/5th share. The suit was accordingly decreed and a preliminary decree for partition was passed.

Findings of the Lower Appellate Court

7. The learned Additional District Judge, Jagadhri reversed the decree mainly on the ground that in terms of Section 23 of the Hindu Succession Act, 1956 , female heirs could not seek partition of a dwelling house until male heirs chose to divide the same. The Court also observed that Devinder Singh, minor son of Jaswant Singh, could not sue for partition until he attained majority.

8. Feeling aggrieved, the appellants preferred the present Regular Second Appeal.

9. Upon notice, respondents have not caused appearance and finally they were proceeded ex-parte, vide order dated 11.09.2025.

Submissions of learned counsel for the appellants

10. In the present appeal, learned counsel for the appellants has argued that the approach of the Lower Appellate Court is wholly erroneous. It is urged that Devinder Singh, plaintiff no.4, is a male heir of deceased Uttam Singh and being represented through his natural guardian, could competently claim partition. Once a male heir sought partition, Section 23 of the Succession Act, could not be invoked to bar the suit. It is further contended that the learned Additional District Judge misdirected himself by ignoring settled law that female heirs cannot be deprived of their prop