PUNWASI Vs. SUKHA DEVI

JUDGEMENT

(1.) The question raised in this appeal under O.XLIII, R.1(u) Civil P.C. directed against the order of the Additional District Judge, Varanasi, dated May 29, 1984, is short, but of some importance.

(2.) The respondent No.1 (Smt. Sukha Devi) instituted Original Suit No. 63 of 1980 in the Court of Munsif City, Varanasi, for partition in respect of a dwelling house, situate in a mohalla of that city. The house, it is alleged, belonged to Shiva Bhikh, who died leaving his son Bhagelu. The death of Bhagelu took place on Aug. 5, 1979. He left behind two sons, namely, Punwasi (the appellant), the respondent No. 2 (Banarasi) and one daughter, namely, Smt. Sukha Devi (plaintiff-respondent No.1). The share claimed by the plaintiff in the house is one third. The averment in the plaint also is that she gave notice to the defendants on Nov. 22, 1979, but they did not divide the house and hence the action for partition. The defendants, arrayed to the suit, were the present appellant and the respondent No.2. The appellant resisted the suit on ground, inter alia, that this was not maintainable at the instance of the plaintiff-respondent No. 1. The respondent No. 2 defendant filed a separate written statement wherein he said that the house is too small to admit of a division by metes and bounds, but that in case it is partitioned his one third share be also separated.

(3.) The question arose before the trial Court whether the suit at the instance of the respondent No. 1 plaintiff lay in view of the bar created under S. 23 Hindu Succession Act, 1956. This was taken up as preliminary issue and decided against her. In the appeal filed by the respondent No. 1, the decision reached by the trial Court was reversed and the case remanded to the trial Court to proceed on merit in respect of the other issues. Aggrieved the defendant No. 1 has preferred this appeal.