MANOHAR Vs. MENKABAI WIFE OF MUKUNDRAO BRAHMIN

JUDGEMENT

(1.) This Letters Patent Appeal raises a question of substantial importance as to whether the right to claim partition of a dwelling house, accrued in favour of a Hindu widow under sub-section (3) of section 3 of the Hindu Womans Right to Property Act of 1937 (hereinafter referred to as the Act of 1937) has been placed under suspension on coming into force section 23 of the Hindu Succession Act of 1956 (hereinafter referred to as the Act of 1956). The facts giving rise to the question are as under :---

(2.) Late Mukundrao Deshpande was a member of a coparcenary. His coparcenary had inherited ancestral property including moveable and immoveable. Late Mukundrao died intestate in 1951 leaving behind his widow Menkabai (Plaintiff) and sons (defendants). They on 30-12-1954, vide Ex. 91, partitioned only agricultural land of the coparcenary and thereunder 1/5th share was allotted to the plaintiff. They, however, preferred to maintain the jointness of rest of the property.

(3.) The plaintiff on 20-8-1959 filed a suit claiming a declaration for setting aside the partition dated 30-12-1954. She alleged that her consent for partition was obtained by fraud. She further claimed partition of the entire properties of the joint family, described in Schedule A, B and C, by metes and bounds, and also claimed separate possession of her 1/5th share Schedule A to the plaint describes agricultural lands. Schedule B relates to moveable property and Schedule C pertains to the house properties. The learned trial Court by judgment and decree dated 19-12-1964 dismissed the entire claim of the plaintiff. The plaintiff, therefore, preferred first appeal under section 96 of the Code before this Court.