Atul Kumar vs Ram Avtar Gupta And Ors.
1995 Latest Caselaw 660 Del

JUDGMENT

Devinder Gupta, J.

(1) This is an application by the plaintiff under Order 12 Rule 6 of the Code of Civil Procedure praying for passing of decree on the basis of admission, alleged to have been made by defendant No.1 in the written statement.

(2) The facts in brief are that the plaintiff has filed a suit claiming a decree for partition of the disputed property which is H.No.860-861, Gali Beriwali, Kucha Patiram, Bazar Sita Ram, Delhi. Plaintiff and defendant No.1 are two sons of late Krishan Lal. Defendants 2 to 7 are the married daughters and defendant No.8 is the widow of Krishan Lal. The property belonged to Krishan Lal and it is not in dispute that after death of Krishan Lal, the plaintiff and defendants have succeeded to the property to the extent of 1/9th share each, being class I heirs as specified in Schedule I of Hindu Succession Act. It is the plaintiff's case that he received a notice dated 31.5.1993 from defendants 2 to 7, copy of which was also addressed to defendants 1 & 8 calling upon them to partition the house, according to the shares of parties. Plaintiff claims that he is in possession of the property in suit and parties are in joint and constructive possession. Plaintiff has also been ready and willing and is still ready and willing to partition the property in question, but defendant No.1 is not willing to partition the same. Therefore, he being an owner of 1/9th share in the house in joint occupation with defendants is entitled to seek partition of the property and has prayed for passing a decree declaring the shares of the parties and directing the property to be partitioned by metes and bounds.

(3) Defendants 2 to 8 have chosen not to contest the suit. They have filed written statement admitting the plaintiffs claim. He has contested the suit and filed his written statement. Defendant No.1 has pleaded that property in question, as inherited from late Krishan Lal, who died in 1971 was in a dilapidated condition at the time of his death and the same was repaired and reconditioned and was also made worth living by him out of his own earnings and resources. At the time of death of his father he was aged 30 years and was the only earning member in the family. Plaintiff was minor aged 12 years and was getting education. Expenditure on his education was incurred by him. Marriage of plaintiff as well as of defendants 4 to 7 and remarriage of defendant No.6 who had become widow, during the life time of his father, was solemnised by defendant No.1. Defendant No.1 on death of his father inherited liability of bringing up and educating the plaintiff and performing marriages. Plaintiff with his family, defendant No.8 and defendant No.1 with his family members alone are residing in the house which is sought to be partitioned. Defendant No.1 does not want any partition of the property but has in the written statement stated that he will have no objection to any legal partition.

(4) This stand of defendant No.1 that he has no objection to the legal partition has been made the basis by the plaintiff in filing application under Order 12 Rule 6 of the Code of Civil Procedure, alleging that there is an admission on the part of the defendant as regards joint nature of the property as also the extent of the shares of the respective parties. In view of this admission, it is alleged that suit deserves to be decreed and property deserves to be partitioned by metes and bounds.

(5) Defendant No.1 in his reply to the application has reiterated the stand taken by him in the written statement and has also taken up an additional plea that Section 23 of the Hindu Succession Act is a bar for partition of the property. He being the male heir of Krishan Lal has not decided to have partition of the property. He is also not agreeable to partition, therefore, property cannot be ordered to be partitioned at the behest of the defendants 2 to 8, the female heirs of the deceased.

(6) I have heard the learned counsel for the parties and have also gone through the record. Contention of learned counsel for defendant No.1 is that there is no clear admission and Section 23 of the Hindu Succession Act is a complete bar for partition of the property since there is no agreement amongst the plaintiff and defendant No.1 to have the property partitioned and he has himself not given his consent to the partition. Reliance has also been placed on the two decisions by the learned counsel for the parties - one is of Bombay High Court and the other is of Allahabad High Court, namely, Anant Gopalrao Shende v. Jankibai Gopalrao Shende and others,_ Air 1986 Bombay 319; and Punwadi v. Smt. Shukla Devi, .

(7) Defendant No.1 in his reply to the application filed under Order 12 Rule 6 has alleged that defendants 2 to 7 in their written statement to the plaintiff's suit have also prayed for partition and since they are married daughters of late Kishan Lal, in accordance with Section 23 of the Hindu Succession Act, they have no right to claim partition to the dwelling house and defendant No.8 being widowed mother and a female heir has only a right to have residence but has no right to seek partition.

(8) The submission made on behalf of defendant No.1 cannot hold up the decision on the application moved under order 12 rule 6 Civil Procedure Code . and the said objection raised also cannot taken as a legal resistance to suit being decreed under Order 12 Rule 6 Civil Procedure Code . Section 23 of the Act puts special restriction on the right of a female heir to demand actual partition of the family dwelling house in certain circumstances. Section 23 of the Act reads as under:- "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 occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."

(9) A bare reading of the provision would suggest that the right of a female heir to seek partition of a dwelling house does not arise until the male heirs have chosen to divide their respective shares in the dwelling house. In Kanwar Singh's case it was held that accrual of the right to seek partition is to precede the filing of the suit. The cause of action is founded upon the right to seek the relief. The cause of action is non-existent until the right has arisen. There cannot be any dispute on the ratio of this decision. Defendant No.1 cannot resist plaintiff's application on this ground since in the instant case defendants 2 to 7, the married daughters and defendant No.8 the widowed mother are not seeking partition. Partition is being sought, of the dwelling house, by the plaintiff, who is one of the male heirs. It is also not the case in which there is only one male heir and number of female heirs so as to apply the ratio of the decision in Anant Gopalrao Shende's case (supra). Learned Single Judge of Bombay High Court did not follow the decision of Calcutta and Madres High Courts but preferred that of Orissa High Court that even in such like situation where there is only one male heir and one or more than one female heirs, Section 23 will not debar the female heirs to claim partition when the only male heir chooses not to effect partition of the dwelling house. Since the case in hand is not a case where there is only one male heir, ratio of the said decision is of no relevance. In the instance case, the mere filing of the suit by one of the male heirs is an expression of his intention to seek partition of a dwelling house and his right to seek partition cannot be resisted by defendant No.1 on the ground that he is not an aggrieved party to have the partition of the dwelling house. Right to seek partition by plaintiff is not dependent upon agreement of defendant No.1. Plaintiff being a male heir has got a right to seek partition and since he has expressed his intention to partition the dwelling house the same has to be partitioned, in which case female heirs also will be entitled to get their respective shares.

(10) Defendant No.1 has not disputed the fact that property has been inherited from Kishan Lal by the parties to the suit in equal shares. Defendant No.1 has also not resisted the suit for partition on the ground that partition cannot be claimed by the plaintiff till he (defendant No.1) is reimbursed of the alleged expenses alleged to have been incurred by him in maintaining the plaintiff or performing marriage of the sisters. The sole ground in resisting the suit for partition is that there are female heirs, the dwelling house cannot be ordered to be partitioned since there is no agreement to partition between him and the plaintiff, the two male heirs. This submission cannot hold up the partition since partition in this case is sought by a male heir and not by female heirs. No other point was raised or survives for consideration.

(11) In view of the stand taken on the part of defendant No.1 that property has been inherited by the parties to the suit from Kishan Lal, on this admission alone, the application deserves to be allowed, which is hereby allowed. On the admission of defendant No.1, a preliminary decree is passed for partition of the suit property declaring the parties to be owners of 1/9th share in House No.860-861, Gali Beriwali, Kucha Patiram, Bazar Sita Ram, Delhi-110006. The parties are also held entitled to have their shares separated by metes and bounds. Decree be drawn in accordance with law.