SAROJ KUMAR MONDAL MINOR Vs. ANIL KUMAR MONDAL

JUDGEMENT

(1.) THIS appeal at the instance of the defendant no. 1 arises out of a suit for partition of the properties described in the two schedules of the plaint. The first schedule relates to. 7 acres of land of plot No. 2068 while the second schedule relates to. 2 acres only of plot No. 2086 of Mouza chakpara. Admittedly, these properties belonged to Gobinda Chandra Mondal. Gobinda died leaving two sons namely the plaintiff Anil Kumar Mondal and defendant No. 2 Gunadhar Mondal and three daughters, Proforma defendant nos. 3, 4 and 5. During his life time, Gobinda made a gift of certain properties Including. 3 acres out of. 7 acres of Plot No. 2066 to the plaintiff by a registered document dated 15. 2. 66. Gobinda having died in 1373 B. S. was succeeded by his aforesaid two sons and three daughters. The three daughters made a gift of their shares in the disputed properties to the plaintiff by a registered Deed of Gift. Accordingly the plaintiff claimed partition of. 06 1/5 out of 7 acres of plot No. 2066 and 4/5th share in the other plot namely 2086. The suit was contested by the appellant defendant No. 1 who is a transferee from the defendant No. 2. His contention was that it was not open to the plaintiff to claim partition on the basis of the Deed of gift executed by his three sisters in his favour. Both the courts below negatived such contention, hence this appeal by the defendant No. 1.

(2.) IT was contended by Mr. Saktiprosad Mukherjee. learned Advocate appearing for the appellant that since the three sisters, perform defendant nos. 3 to 5. were married sisters, they have neither the right of residence in the disputed properties which constitute dwelling house nor they have right to claim any partition in such properties and accordingly the plaintiff could not claim a higher right than that by bringing this suit for partition. It was also contended by Mr. Mukherjee that it would be clear from section 23 of the hindu Succession Act. 1956 that the legislature's intention was that the daughters like the proforma defendant nos. 3 to 5 would not have the right to alienate their share any time before the male heirs choose to divide their respective shares in the dwelling house. In this connection my attention was drawn to a Bench decision of this court in the case of Arun Kumar Sanyal vs. Jnanendra Nath Sanyal and Anr. reported in A I. R. 1975 Cal. 232.

(3.) MR. Banerjee learned Advocate appearing for the plaintiff respondent submitted that the appellant was a stranger purchaser from the defendant no. 2 and that as such it was not open to him to contend that the plaintiff had neither acquired any interest in the shares of his three sisters on the basis of the Deed of gift nor has any right to claim partition of the shares acquired by such deed of gift. Section 23 of of the Hindu Succession Act, 1956 restricts the right of a female heir to claim partition of the dwelling house as long as the male heir does not choose to effect partition. But the female heir is entitled to a right of residence in the dwelling house provided that where such female heir is a daughter she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has been separated from her husband or is a widow. It is, therefore, clear that what section 23 of the Hindu Succession Act, 19156 intends and lays down is that in case of a dwelling house wholly occupied by the male members of a Hindu dying intestate. his female heirs cannot claim partition of such dwelling house until the male heirs choose to divide their respective shares therein. It would be putting a meaning which is not conveyed by section 23 of the aforesaid Act, if it is said that even such a female heir will have no right to alienate her share in such a dwelling house so long as the male heirs do not choose to divide their respective shares therein. Under section 8 of the aforesaid Act the property of a male Hindu, dying intestate devolves first upon the heirs being the relatives specified in Class I of the schedule. Among the heirs specified in the schedule those in Class I take simultaneously and to the exclusion of all other heirs. sons and daughters are amongst the heirs in Class I of the schedule and they take equally. There is nothing in the Hindu Succession Act, 1956 which restricts the right of a female heir to transfer her share in a dwelling house and more so to her co-heir and brother like the plaintiff unless and until the male heirs choose to divide their respective sharers in the dwelling house.