URMILA PYNE Vs. AMIYA KUMAR PYNE

JUDGEMENT

(1.) The principal point in this appeal is whether the learned Subordinate Judge, 3rd Court, Howrah, has rightly dismissed the plaintiff-appellants claim for partition in respect of Holding No.7, Gopal Banerjee Lane, Howrah comprising inter alia, a two storied pucca building. On or about 15th of October, 1965 Biswanath Pyne died intestate leaving as his heirs, his widow, Smt. Urmila Pyne, the appellant above named, and Amiya Kumar Pyne, the respondent, his only son by his pre-deceased wife and the aforesaid Holding No.7, Gopal Banerjee Lane which was the dwelling house of the deceased had been inherited by his said two heirs. The said dwelling house was and still in occupation of the plaintiff and the defendant.

(2.) The plaintiff, Smt. Urmila Pyne, had instituted in the 3rd Court of the Subordinate Judge, Howrah a suit for partition by metes and bounds of her 8 annas share in the said dwelling house at 7, Gopal Banerjee Lane and also of several other items of movable and immovable properties. The defendant respondent had contested the plaintiff's prayer for partition of the said dwelling house on the ground that in view of section 23 of the Hindu Succession Act, 1956 the plaintiff who was one of the female heirs specified in Class-I of the Schedule of the said Act was not entitled to herself claim partition of the said dwelling house. For deciding this appeal to set out the cases of the respective parties with regard to other items of property which were also subject-matter of the said partition suit. As already stated, the learned Subordinate Judge 3rd Court, Howrah, has held that the plaintiff's suit for partition of the said dwelling house was barred under section 23 of the Hindu Succession Act, 1956. He, however, has passed a preliminary decree for partition in respect of several items of property which were declared to be joint. The plaintiff's suit has been dismissed in respect of the remaining items on the ground that she had failed to establish her claim in respect of them.

(3.) Mr. Ghosh, learned Advocate for the appellant, has submitted that the special provision respecting the dwelling house contained in section 23 of the Hindu Marriage Act has no manner of application in case a Hindu intestate is survived by a single male heir and also one or more female heirs specified in Class-I of the Schedule to the said Act. According to Mr. Ghosh, only in case a dwelling house is occupied by plurality of male heirs, right of female heirs specified in Class-I would be postponed until the male heirs whose to divide their respective shares therein.