USHA MAJUMDAR Vs. SMRITI BASU

JUDGEMENT

(1.) Smt. Smriti Basu (nee Mazumdar), who happens to be the only issue of one Samarendra Nath Mazumdar (since deceased) by his first wife, filed a suit, out of which the instant appeal arises, against her step mother, step brother and two step sisters claiming partition of the properties left behind by her father which include a two-storied house and the moneys paid under his Life Insurance Policy and from his provident fund account. In contesting the claim of the plaintiff the defendants did not dispute that she had 1/5th share in the properties left behind by her father but contended that in view of Section 28 of the Hindu Succession Act, 1956 (hereinafter referred to as the "Succession Act") the house was impartible. It was further contended by them that the moneys payable - and since paid - under the Life Insurance Policy and from the Provident Fund Account of the deceased exclusively belonged to Smt. Usha Mazumdar (defendant No. 1) the second wife of the deceased, and Sri Surojit Mazumdar (defendant No. 4), the son of the deceased as they were the respective nominees. The Trial Court negatived all the contentions raised by the defendants and decreed the suit in a preliminary form. Hence this appeal at their instance.

(2.) Mr. Pal, learned Advocate appearing on behalf of the defendants, fairly conceded that the finding of the Court below that the plaintiff had a claim, proportionate to her share, to the money received under the Life Insurance Policy of her father could not be assailed in view of the Supreme Court judgment in the case of Sarbati Devi v. Usha Devi, reported in A.I.R. 1984 S.C. 346. He, however, submitted that the other two findings of the Trial Court, namely, that the house was partible and that the plaintiff-respondent was also entitled to receive her share in the provident fund money of the deceased were not legally sustainable.

(3.) It is not in dispute that the house in question is exclusively used for residential purposes; and that its two rooms in the ground floor are in occupation of a tenant and the rest is in occupation of the defendants. In view of those facts the Trial Court held that the restriction on the right of a married female to claim partition as engrafted in Section 23 of the Succession Act would not apply. Mr. Pal, however, submitted that the restriction imposed under Section 23 of the Succession Act would be applicable even if a dwelling house was partially tenanted. According to Mr. Pal the word "wholly" appearing in Section 23 should not be given its plain and literal meaning but should be interpreted in. a manner consistent with the purpose and object of the Act itself. When so interpreted it would mean so much of the dwelling-house as was "wholly" occupied by the members of the family and consequently the plaintiff herein could legitimately claim partition only of that portion of the dwelling-house which was in occupation of the tenant, argued Mr. Pal, in this connection he referred to a judgment of the Gujarat High Court in the case of Vidyaben v. J.N. Bhatt reported in A.I.R. 1974 Gujarat 23. In combating the above contention of 1VIr. Pal, Mr. Roy Chowdhury, learned Advocate appearing for the respondent, submitted that the word "wholly" appearing in Section 23 should be given its natural meaning more particularly when the section was a clog on the right of an. individual to succeed to an estate and that when such a meaning was given there was no escape from the conclusion that the suit house was partible as it was not fully occupied by the members of the deceased's family.