Uma Rani Sharma vs Ved Parkash Sharma
2001 Latest Caselaw 1796 Del

JUDGMENT

V.S. Aggarwal, J.

1. Uma Rani Sharma, plaintiff is the sister of defendant Ved Prakash Sharma. Shiv Ram Sharma, since deceased, was the father of the parties while Smt. Vidyawanti was the mother. Shiv Ram Sharma was the owner of leasehold property bearing House No. 3, Block-12, Old Rajindra Nagar, New Delhi. Shiv Ram Sharma had died, leaving behind his widow besides the plaintiff and the defendant. The mother of the parties also died on 28.9.1989.

2. It is asserted by the plaintiff that when her father died, she inherited 1/3rd share in the property and when her mother died, she became the owner of the half of the property, reffered to above. In addition to that, it has been pleaded that Vidyawant Sharma had executed a Will dated 14.9.1989, bequeathing her 1/3rd share in the property upon both the plaintiff and the defendant in equal shares because it is asserted that the mother of the parties was not keeping good-health, the defendant and his wife were ill-treating her and the plaintiff had left her family and started living in Old Rajindra Nagar house to take care of her mother. When the mother of the plaintiff died the defendant is alleged to have broke opened the lock and taken possession of that portion. The present suit has been filed seeking partition of the property, bearing House No. 3, Block No. 12, Old Rajindra Nagar, New Delhi.

3. In the written statement filed, the civil suit had been contested. It is alleged that the plaintiff has no locus standi to file the present suit because the property vests with the defendant by virtue of the Will dated 30.10.1971 executed by Shiv Ram Sharma, father of the parties in favor of the defendant. It is denied that mother of the plaintiff had executed the Will set up by the plainftiff. Furthermore, plea has been raised that the present suit is not maintainable by virtue of the provisions of Section 23 of the Hindu Succession Act, which specifies that the partition of a dwelling house is confined to the male heirs and plaintiff could not seek partition of the same. Defendant claims that he has become the absolute owner of the property and, therefore, the suit, in any case, is not maintainable.

4. Needless to state that in the rejoinder that has been filed, the plaintiff re-asserts her assertions.

5. From these pleadings of the parties, on 8.7.1993, this Court had framed the following issues:

1. Whether the plaintiff is entitled to one half share in property bearing No. 3, Block No. 12, Rajinder Nagar, New Delhi?

2. Whether the plaintiff has no locus standi to file the present suit as alleged in para 2 of the written statement?

3. Whether the Will dated 14.9.89 is a forged will ass alleged in para 3 of the WS?

4. Whether the defendant is the absolute owner of the property in question as alleged in para 5 of the WS?

5. Whether the deceased Shiv Ram Sharma executed a valid Will on 30.10.1971 bequeathing the suit property in favor of the defendant as alleged in para 3 of the written statement, reply on merits, if so its effect?

6. To what relief is the plaintiff entitled?

ISSUE NO. 2:-

6. During the course of submission, it was urged that the present suit, which is a simple suit for partition of the property, is not maintainable because according to the learned counsel for the defendant, this was the onl residential house in which the defendant is residing and consequently, a female alleged heir can not file a suit for partition of the property. The assertions of the defendant's learned counsel had been controverter.

7. Reliance on behalf of the defendant was being placed on Section 23 of the Hindu Succession Act, which provides for special provisions respecting the dwelling house. The same reads as under:

23. Special provision respecting dwelling houses. --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 to 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 therin;

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.

8. Perusal of the above clearly shows that Section 23 makes a departure from the scheme of the Hindu Succession Act, whereby the female heirs have been given full rights in certain cases. It clearly prescribes that if a Hindu has died and he is survived by both male and female heirs specified in Slass I of the Scheduled and the property includes a dwelling house, which is occupied by the members of his family, in that event, the right to seek partition to the female heirs will only arise if the male heirs choose to devide their respective shares. However, female heirs have a right to live in the property.

9. This question had been considered by the Supreme Court in the case of NARSIMAHA MURTHY v. SUSHEELABAI AND ORS., . It was held that even if there is single male heir unless he chooses to take out his share from the dwelling house, the female heir can not seek partition. The precise finding of the Supreme Court in this regard are as under:

33. The second question does not present much difficulty. On literal interpretation the provision refers to male heirs in the plural and unless they chose to divide their respective share in the dwelling-house, female heirs have no right to claim partition. In that sense there cannot be a division even when their is a single male. It would always be necessary to have more than one male heir. One way to look at it is that if there is one male heir, the section is inapplicable, which means that a single male heir cannot resist female heir's claim to partition. This would obviously bring unjust results, and intendment least conceived of as the underlying idea of maintenance of status quo would go to the winds. This does not seem to have been desired while enacting the special provision. It looks nebulous that if there are two male, partition at the instance of female heir could be resisted, but if there is one male, it would not. The emphasis on the section is to preserve a dwelling-house as long as it is wholly occupied by some or all members of the intestate's family which includes male or males. Understood in this manner, the language in plural with reference to male heirs would have to be read in singular with the aid of the provisions of the General Clauses Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his share from the dwelling-house, the female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu male oriented society, where begetting of a son was a religious obligation, for the fulfilllment of which Hindus have even been resorting to adoptions, it could not be visualized that is was intended that the single male heir should be worse off, unless he had a supportive second male as a Class I heir. The provision would have to be interpreted in such manner that it carries forward the spirit behing it. The second question would thus have to be answered in favor of the proposition holding that where a Hindu intestate leaves surviving him a single male heir and one or more female heirs specified in Class I of the Schedule, the provisions of Section 23 keep attracted to maintain the dwellin-house impartabel as in the case of more than one male heir, subject to the right of re-entry and residence of the female heirs so entitled, till such time the single male heir chooses to separtate his share; this right of his being personal to him, neither transferable nor heritabel.

In other words, even when there is a male and female heir and the male heir is in occupation of the property, which happens to be a dwelling house, the right to partition by the female heir would be deferred unless he chooses to take out his share from the dwelling house.

10. Identical indeed is the position in the present case. It is not in dispute that defendant, with his family, is presently in occupation of the said dwelling house. In that view of the matter, even if the assertions of the plaintiff are taken to be correct, that she is the owner of one half of the property, necessarily, she can not seek partition of the same till such time the defendant chooses to separate his share from the property. This right of the defendant is personal to him. In that view of the matter, in the facts of the present case, when the defendant has not admitted the right of the plaintiff nor indicated that he wants to separate his share, the suit for partition must be held to be not maintainable.

ISSUES 1,3,4,5 & 6:-

11. Keeping in view the said finding on Issue No. 2, it becomes unnecessary to go into the other issues.

12. During the course of submissions, learned counsel for the plaintiff submitted that if the suit is not maintainable, defendant should be restrained from alienating or creating third-party interest in the property. Indeed, this question could not have been gone into as this is not the claim of the plaintiff in the plaint. She may, if so advised, seek such a relief in accordance with law, by filing a separate suit.

13. For the reasons, recorded above, the suit of the plaintiff fails and is dismissed. However, nothing said herein should be taken as any expression of opinion with respect to the other claims, raised by the parties regarding which no opinion has been expressed.