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vs
Krishnamma And Ors
Facts: The appellants are the L.Rs of the deceased plaintiff, filed a suit
for declaration that the sale deeds executed by the first defendant in
favour of the defendants No. 2 to 4 is void and in
contravention Section 22 of the Hindu Succession Act, 1956. Further
pray for determination of the value of the suit properties and
thereafter to direct the defendants to execute the sale deed in respect
of the suit property by receiving the sale value determined by the
Court.
2
One R.Rajagopal had seven children, so to say, the plaintiff and
defendants 2 to 7. D1 is the widow of deceased Rajagopal who died in
the year 1992 leaving behind the plaintiff and the defendants as his
legal heirs. The defendants 1 to 3 entered appearance and filed their
written statement.
Ultimately the trial Court dismissed the suit for partition on the sole
ground that the plaintiff being a female member cannot ask for
partition of a dwelling house in the occupation of a male heir as
per Section 23 of the Hindu Succession Act. However, the lower Court
ordered accounts to be furnished to the plaintiff relating to the income
derived from the house, as a portion of the house was rented out to
tenants. Being aggrieved by and dissatisfied with the judgment of the
lower Court, this appeal has been filed on various grounds, the gist
and kernel of them would be to the effect that the trial Court should
have ordered partition as the true purport of Section 23 of the Hindu
Succession Act would not be a bar for seeking partition in the facts
and circumstances of the case, as part of the property was already let
out to the tenants and it is not in the exclusive possession of the male
member.
At the hearing, the learned counsel for the appellant appropriately and
appositely, correctly and convincingly drew the attention of this Court
to the recent amendment to the Hindu Succession (Amendment) Act,
2005 (39 of 2005) deleting Section 23 of the Act. No doubt the
amendment Act shall have prospective effect, but practically if the
matter is viewed, it is clear that as per the Hindu Succession
(Amendment) Act, 2005 the plaintiff is entitled to partition of the
dwelling house property also and such an amendment has come into
vogue during the pendency of the appeal. The appeal is deemed to be
in continuation of the suit proceedings. It would be a mere hyper
technicality if the appellant/plaintiff is driven to the extent of filing a
fresh suit invoking the said recent Hindu Succession (Amendment)
Act 2005 (39 of 2005) and in such a case, I am having no hesitation in
construing that in this case the erstwhile Section 23 is having no
application and accordingly partition could be ordered in respect of
the 1/8th share of the plaintiff.
Accordingly, preliminary decree is ordered to be passed lower Court in
set aside. It is quite obvious and apparent that the said Rajagopal died
leaving behind his seven children and his widow and as such, each one
is entitled to 1/8th share. Accordingly, this appeal is disposed of.