JANARDHANAN Vs. RUGMINI

JUDGEMENT

(1.) Defendant appeals against a preliminary decree for partition.

(2.) Chami, a Hindu male who ran a teashop, died intestate following a motor accident on 19.05.2000. First plaintiff is his widow. Plaintiffs 2 and 3 are their daughters and the defendant their son. in 2004, the mother and daughters sued for partition claiming one-fourth right each in the suit properties, which according to them is the estate left behind by late chami. Defendant contested and claimed that the first item in plaint A Schedule, a dwelling house, is not liable to be partitioned in view of Section 23 of the Hindu Succession Act, 1956, for short, "the Act". He also pleaded that some of the movables in the tea shop were his acquisitions and that there are certain items of monies left out of from the claim for partition.

(3.) The court below held that Chami's widow had shown that no amount other than that included in the Schedule to the plaint was available for partition and that the defendant having taken over the tea shop of chami immediately following his unexpected demise following the motor accident, has not shown that any of the movables in the tea shop belonged exclusively to him, contrary to the available presumption that all movables therein belonged to chami who owned the shop till his death, on the defendant's plea regarding the dwelling house, the court below held that though the suit was instituted before the coming into force of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), hereinafter, the "Amending Act", the female heirs are no more barred from seeking partition of the dwelling house in view of the repeal of Section 23 of the Act by the Amending Act.