MADHAVRAO KESHAVRAO SURWASE Vs. JANKABAI

JUDGEMENT

(1.) THIS revision application raises an important question whether an objection that the decree violates section 23 of the Hindu Succession Act, 1956 raised for the first time in execution proceeding can be entertained and whether such a decree is a nullity.

(2.) KESHAVRAO, who left behind him some property, was survived by two sons namely; Madhavrao and Nivrutti, wife Harnabai and two daughters Serubai and Jankabai. Jankabai filed a suit for partition and possession of her share from joint family property which included agricultural lands and five dwelling houses. In defence to the said suit, it was pleaded by the defendants that partition had already taken place during the life time of Keshavrao and Jankabai was given Rs. 2500/- and two buffaloes as her share in the family property and over and above, Keshavrao had given a sum of Rs. 10,000/- as token of his love and affection to Jankabai to enable her to purchase a new house. Jankabai is married and has purchased a separate house out of this sum and since the partition has taken place, the suit deserves to be dismissed. This suit came to be decreed and the learned Judge was pleased to award share to Jankabai both in the agricultural lands as well as in dwelling houses. An appeal came to be filed against this decree but it was also disposed of and the decree passed by the trial Court was upheld. In the execution petition filed by Jankabai, now an objection is raised by the judgement debtors that the decree violates terms of section 23 of the Hindu Sucession Act, 1956 and, therefore, it is a nullity. The learned Executing Judge rejected said objection and directed the execution to proceed and this order has been challenged in this revision application.

(3.) SHRI C. G. Solshe, learned Counsel appearing on behalf of the petitioner, submitted that section 23 of the Hindu Succession Act, 1956 is mandatory in nature and unless male heirs choose to divide the family dwelling house, female heir would not be entitled to have share in the dwelling-house. He futher contended that though defendants-judgment debtors had pleaded that partition was already there, Court has recorded a finding that there was no partition and hence, Jankabai being female heir, is not entitled to a share in the dwelling house unless male heirs choose to have partition of the said dwelling-house.