ARUN KUMAR SANYAL Vs. JNANENDRA NATH SANYAL

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff and it arises out of a suit for declaration of the plaintiffs title to the disputed property and partition of the same by metes and bounds.

(2.) The appeal involves a point of law of first impression relating to the construction of Section 23 of the Hindu Succession Act, 1956. The point is whether a transferee of the female heirs is entitled to claim partition of the dwelling house when the male heir does not choose to divide his share therein. In other words, whether the restriction imposed by Section 23 on a female heir to claim partition also applies to her transferee. In order to appreciate and consider the point, the facts of the case may be stated in brief.

(3.) The disputed property which is the dwelling house belonged to the father of the appellant, late Motilal Sanyal. He died intestate on May 30, 1960 leaving behind him his widow Khiroda Sundari Dasi, two sons, namely, the appellant and the respondent No. 1 and three daughters, Atasi, Anima and Anurupa, as his heirs under the Hindu Succession Act, 1956. Each of the said heirs inherited l/6th share in the disputed dwelling house. The appellant transferred his undivided l/6th share which he inherited from his father to his elder brother, the respondent No. 1 by a deed of sale dated July 6, 1962. The appellant's mother made a gift of her undivided l/6th share to the respondent No. 1 by a registered deed of gift dated October 30, 1961. The respondent No. 1 thus acquired a half share in the dwelling house. Atasi and Anima gifted their respective 1/6th shares in the dwelling house to the appellant by two registered deeds of gift both dated February 11, 1964. The appellant, therefore, acquired 1/3rd share in the dwelling house. The third sister Anurupa, however, retained her 1/6th share in the dwelling house. The suit has been filed by the appellant on the ground that joint possession of the dwelling house is inconvenient. He has also prayed for a declaration of his l/3rd share which he acquired by gift from his two sisters.