PARUBAI SAVLIRAM KSHATRIYA Vs. SHANKAR GANUSA KSHATRIYA

JUDGEMENT

(1.) Second Appeal No. 332 of 1991 has been filed by the plaintiff being aggrieved by the decree passed by the Lower Appellate court in Regular Civil Appeal No. 164 of 1984 whereby the decree passed by the learned Civil Judge, Junior Division at Sinnar in Regular Civil Suit No. 101 of 1972 came to be modified. Second Appeal No. 416 of 1991 has been filed by the original defendants being aggrieved by the decree passed by the learned Civil judge, Junior Division, Sinnar in Regular Civil Suit No. 101 of 1972 as well as the Judgment and Order of the Extra Joint District Judge, Nashik in Regular Civil appeal No. 164 of 1984. In Second Appeal No. 332 of 1991 the following substantial questions of law have been framed while admitting it on 18-7-1991 by this Court :

(2.) The trial Court's decree in Regular Civil Suit No. 101 of 1972 declared that the plaintiff and defendant No. 1 Shankar had half share each in the suit property described in para 2 of the plaint and she would also have half share in the past income of the property for the last three years prior to the date of the filing of the suit. She was held to be entitled to recover an amount of Rs. 1260/- from the defendant No. 1 and also for mesne profit for future. 2a. The Lower Appellate Court while agreeing with the findings recorded by the trial Court that the plaintiff and defendant No. 1 were entitled for half share each in the suit property held that the portion of the house occupied by the defendant could not be partitioned in view of the provisions of section 23 of the hindu Succession Act, 1956 and for the time being the decree passed by the trial court was required to be executed only in respect of the portion of the suit house occupied by the tenants, by keeping in abeyance the plaintiff's half share over the portion occupied by the defendant for his residential dwelling, till there was a partition of the same between the male members. The substantial questions of law framed in Second Appeal No. 332 of 1991 pertain to only this modification made in the trial Court's decree by the Lower Appellate Court. Whereas the defendants' appeal has raised the questions regarding the applicability of the hindu Succession Act and appreciation of evidence by the trial Court regarding the suit house being the property of defendant No. 1 alone. Let it be noted at this stage itself that the substantial questions of law framed in Second Appeal No. 332 of 1991 do not survive any further and the reasons could be stated in short in the following paragraph.

(3.) Regular Civil Suit No. 101 of 1972 came to be filed by Smt. Parubai, the widow of Savaliram Kshatriya praying for partition and possession of half share of the suit property, namely, Sinnar Municipal House No. 42 and C. S. No. 559/560. She had claimed that it was a joint property of her husband Savaliram and his brother Shankar who were the sons of Gansua Kshatriya and Savaliram was the elder brother and Shankar was the younger brother. As per her, the suit house was purchased by her father-in-law Gansua vide sale deed dated 12-8-1918 (Exh. 54). Her father-in-law died on 26-10-1928 and thereafter as well she was staying in the suit house along with her husband and his brother Shankar and the other family members. Her husband Savaliram died on 1-2-1946 while residing in the suit house and thereafter she continued to stay as a joint family member along with defendant No. 1 and his children. Her only daughter Anusaya was married in 1942 at Sinnar only. After about more than 15 years she stayed as a joint family member, the defendant No. 1 forced her to stay in a separate room in the suit house and the original defendant Nos. 3 to 5 were kept as tenants in part of the suit house. The defendant No. 1 was collecting rent from them and was also spending on the joint family's requirements. However, when she started staying separately in the room which was part of the suit house, the defendant no. 1 refused to give her part of the income arising out of the rent and, therefore, she issued legal notice dated 15-7-1971. The defendant No. 1 replied to the same and denied her claim. She, therefore, filed Regular Civil Suit No. 101 of 1972. When the parties approached this Court, all the tenants had vacated the respective premises occupied by them from the suit property and, therefore, no portion of the suit house has been in occupation of any tenants while these Second Appeals are pending before this Court. 3a. The second substantial question of law based on the decision of the calcutta High Court in the case of Smt. Usha Majumdar and ors. vs. Smt. Smriti basu (Supra) is deemed to have been answered in the case of Narashlmaha murthy vs. Smt. Susheelabai and ors. reported in AIR 1996 SC 1826 and, therefore, the said issue does not survive any further. 3b. Section 23 of the Hindu Succession Act, 1956 reads as under :-