1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original defendant Nos.8 to 13 challenging the judgement and decree passed by the learned Civil Judge (J.D.) Pardi in Regular Civil Suit No.83 of 1981 dtd.31/8/1984, by which the learned trial court has decreed the said suit filed by the original plaintiff declaring that she has 1/4th share in the suit property and for directing the original defendant No.8 to give 1/4th share in the suit property. That the appellants herein have also prayed to quash and set aside the impugned Judgement and Order passed by the learned Assistant Judge, Navsari in Regular Civil Appeal No. 94 of 1984, by which the learned appellate court has dismissed the said appeal preferred by the appellants herein by confirming the judgement and decree passed by the learned trial court in dismissing the suit. 2.00. That the original plaintiff – Dahiben Bhagwanbhai Patel - daughter of Lalabhai Bavabhai Patel instituted Regular Civil Suit No.83 of 1981 in the court of learned Civil Judge (J.D.) Pardi against the defendants, more particularly defendant Nos.8 to 13, claiming partition submitting that she has 1/4th share in the suit property which belongs to her father. That the learned trial court by the judgement and decree dtd.31/8/1984 decreed the said suit and held that the original plaintiff – sister has 1/4th share in the suit property.
2.01. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (J.D.), Pardi, in Regular Civil Suit No.83 of 1981 dtd.31/8/1984, appellants herein – original defendant Nos.8 to 13 preferred Regular Civil Appeal No. 94 of 1984 before the District Court, Valsad at Navsari and the learned appellate court - learned Assistant Judge, Valsad at Navsari by the impugned Judgement and Order has dismissed the said appeal confirming the judgement and decree passed by the learned trial court decreeing the suit. Being aggrieved by and dissatisfied with the Judgement and Order passed by both the courts below, appellants herein – original defendant Nos.8 to 13 have preferred the present Second Appeal under section 100 of he Code of Civil Procedure.
2.02. At the outset it is required to be noted that while admitting the present Second Appeal the learned Single Judge has framed the following substantial questions of law ;
(1) Whether the Lower Court committed an error of law in holding that the plaintiff, who was the daughter of the deceased Lalbhai Bavabhai, was entitled to claim partition inspite of the provisions of Section 23 of the Hindu Succession Act?
(2) Whether the Lower Court has committed an error of law in holding that the lands mentioned in Schedule “A” which were new tenure lands as per the provisions of the Tenancy Act, could be partitioned without previous sanction of the Collector as per Sec.43(2) of the Bombay Tenancy and Agricultural Lands Act?
(3) Whether the Lower Court has committed an error of law in not permitting the Appellants' Advocate to submit that the Civil Court had no jurisdiction to direct partition of most of the lands which are fragments as per the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act?
(4) Whether the Lower Court has committed an error of law in awarding 14th share in the properties to the plaintiff Dahiben, even though as per Section 6 of the Hindu Succession Act she would not be entitled to more than 1/8th share?
3.00. Mr.Amit Patel, learned advocate appearing on behalf of the appellants has heavily relied upon section 23 of the Hindu Succession Act which was prevailing at the time when the suit was instituted i.e. which was prevailing prior to Act of 2005 came into force and has submitted that both the courts below have materially erred in holding that the suit for partition by the plaintiff was maintainable. It is submitted that as per section 23 of the Hindu Succession Act which was prevailing at the relevant time, so long as the Hindu Male heir/s do not choose partition during the lifetime, daughter/s cannot claim partition or share, suit at the instance of the female heir for partition of the dwelling house would not be maintainable. It is submitted that as such both the courts below have rightly held that Proviso to Section 23 of the Hindu Succession Act (prevailing at the relevant time) would not be applicable, as the original plaintiff was neither unmarried nor deserted nor separated from her husband nor was a widow.
3.01. It is further submitted by Mr.Patel, learned advocate appearing on behalf of the appellant that the learned appellate court has solely relied upon the commentary of Hindu Succession Act contained in the book of Mulla's Principle of Hindu Law, Fifteenth Edition, 1986, page No.1034 and has materially erred in holding that the suit filed by the plaintiff for partition of the dwelling house in question was maintainable.
No other submissions have been made except substantial question Nos.2 and 3 i.e. with respect to breach of Fragmentation and Consolidation of Holdings Act and section 43(2) of the Bombay Tenancy Act.
By making above submissions it is requested to allow the present Second Appeal.
4.00. Having heard Mr.Patel, learned advocate appearing on behalf of the appellants and considering the impugned Judgement and Order passed by both the courts below and even considering section 23 of the Hindu Succession Act, it appears that no illegality has been committed by the courts below in holding that the suit filed by the plaintiff for partition of the suit property which was a dwelling house was maintainable.
4.01. At the outset, it is required to be noted that at the relevant time when the plaintiff instituted suit for partition of the suit property, which was a dwelling house, which was belonged to her father, there was no male member alive. Under the circumstances, when there was no male member alive, bar under section 23 of the Hindu Succession Act which was prevailing at the relevant time, prohibiting the female member from claiming partition, would not be there and the question of bar does not arise. As such the learned appellate court has rightly considered the commentary of Hindu Succession Act contained in the book of Mulla's Principle of Hindu Law, Fifteenth Edition, 1986, page No.1034, which reads as under :-
“It would seem that the right of a female heir to demand partition may be deferred and remain in abeyance under this section till the lifetime of the male heirs enumerated in Class- I of the Schedule or the last surviver of them unless a partition of the dwelling house is sought by any one of them before such time. The restriction will cease to operate on the death of the last of such male heirs of the intestate”.
This Court is in complete agreement with the aforesaid commentary as well as this Court is also of the opinion that the restriction imposed in section 23 of the Hindu Succession Act, which was prevailing at the relevant time, would cease to operate on the death of the last of such male heir intestate. Under the circumstances, no illegality has been committed by the courts below in holding that the suit filed by the original plaintiff for partition of the dwelling house was maintainable, as in the present case at the relevant time there was no male member alive.
5.00. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik