Partition of Dwelling Houses:
A will, like any other document, is to be proved in terms of the provisions of
Section 68 of the Indian Succession Act and the Evidence Act. The propounder of
the will must provide satisfactory evidence that the will was signed by the
testator, that the testator was of sound mind at the relevant time, that the
testator understood the nature and effect of the disposition, and that the
testator affixed their signature to the document of their own free will. The
document shall not be used as evidence until at least one attesting witness has
been called for the purpose of proving its execution. This is the mandate of
Section 68 of the Evidence Act. This requirement remains the same even if the
opposite party does not specifically deny the execution of the document in the
written statement.
There was no finality to the decision, and the right under the earlier provision
in the Act was exercisable upon the happening of certain eventualities. Female
heirs, having been previously denied, can now file for partition again in light
of the omission of the earlier provision from the statute. They can obtain a
decree if permissible under the law, even without meeting the earlier omitted
pre-condition for granting a decree for partition of the dwelling house at the
instance of female heirs.
Even in the present suit, assuming for the sake of argument that the plaintiff,
being a female heir, is not entitled to exercise the right of partition over the
dwelling house, the omission of the provision in the statute allows her to file
for the same relief immediately after the disposal of the suit or at any time
thereafter. Since the present case is still under appeal, and the Court has
found that the provision temporarily barring the right has been omitted, there
is no legal objection or impediment to granting the plaintiff the right to seek
partition of the dwelling house according to her share as a Class-1 heir of
Satyabadi against Defendant No.2, the other Class-1 heir of Satyabadi.
The restriction on a daughter’s ability to claim partition applies only if the
house in question is being used as a dwelling by the brothers for their
residence, and not if any portion or substantial part of the house has been let
out to tenants. In this case, it is undisputed that a substantial portion of the
suit property is under tenancy to third parties. Furthermore, with the enactment
of Act 19 of 2005, Section 23 of the Hindu Succession Act was deleted, effective
from 9th September 2005.
The necessary effect of this deletion is that any pending matter involving
questions previously covered by Section 23 of the Hindu Succession Act will no
longer impose a bar on the daughter's right to claim partition in respect of the
dwelling unit. After the amendment, a daughter is now entitled to claim
partition alongside her brother concerning property inherited by siblings.
Therefore, there was no infirmity in either the judgment and decree dated 11th
March 2003 passed by the Trial Court or the order dated 12th October 2009 passed
by the first Appellate Court.
If possession of the dwelling house is given to strangers or tenants, the
protection under Section 23 of the Hindu Succession Act is not applicable, and
the dwelling house becomes subject to partition. The Trial Court concluded that
Jeet Ram has resided in the dwelling house since 1984 and that since a stranger
was introduced into the dwelling house, the protection under Section 23 of the
Act is not available to male heirs.
Suit for Partition and Permanent Injunction of Dwelling House:
Bare perusal of Section 23 reveals that it pertains to disputes regarding
partition among family members, and it mandates that any female heir has no
right to claim partition of the dwelling house until the male heirs choose to
divide their respective shares therein. However, the provision of this section
is wholly inapplicable in the present case, as neither of the parties in the
suit are members of a Joint Hindu Family, and both are transferees.
End Notes:
- Ramesh Verma v. Lajesh Saxena, 2017(170) A.I.C. 242 at p. 246 (S.C.): (2017)1 S.C.C. 257: 2017(3) A.L.R. 2017 S.C. 494
- Lucy Thadikkaran Chacku v. Baby Thadikkaran Ouseph, A.I.R. 2017 (N.O.C.) 4
- Krishan Sharma v. Raj Rani Bhardwaj, A.I.R. 2013 Delhi 136 at p. 13
- Mad. 82 at p. 83
- Ader Kumar Chona v. Vijay Singh Jandrotia, 2012(1) H.L.R. 229 at p. 233 (H.P.)
- Singh v. Nizamul Islam alias Musa, 2005(3) A.W.C. 2086 at p. 2089 (All.)
- Somanath pi) v. Ujjawala Sudhakar Pawar, 2013(1) Mh.L.J. 709
Written By: S Kundu & Associates
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