RAJESHWAR DAYAL Vs. SOBHANA MATHUR

JUDGEMENT

(1.) SMT. Sobhana Mathur, Plaintiff-respondent No. 1, filed a suit on 21. 10. 91 in the Court of Additional District Judge No. 7, Jaipur for partition of a joint house property being Plot No. D-148, Durga Marg Bani Park, Jaipur. She claimed 1/4th share therein. Her case was that the suit property was the self-acquired property of her father, Late Dr. S. Dayal, who died intestate on 23. 11. 1975 leaving behind him one son (Rajeshwar Dayal-appellant), two daughters namely SMT. Parmila Nag, Respondent 2 and the plaintiff herself and a widow SMT. Sheela Dayal, respondent No. 3.

(2.) THE suit was contested by Rajeshwar Dayal-appellant on the ground, inter alia, that the suit property was the ancestral property of the family, having been acquired with HUF nucleus and that the plaintiff, being a married daughter of the family, could not maintain the cause as the dwelling house in question was not portable at her instance due to the bar created by Sec. 23 of the Hindu Succession Act 1956 (for short `the Act' ).

(3.) AT the very out set Mr. P. C. Jain, the learned counsel for the appellant submitted that since the learned single Judge had disposed of appellant's first appeal by a short order, without making a detailed discussion of the evidence on the record of the lower Court, we must restore the matter to him to dispose of the same after hearing the parties afresh. In reply Mr. S. R. Bajwa, the learned counsel for the contesting respondents, submitted that the only point raised and argued by the appellant before the learned Single Judge related to the applicability of Sec. 23 of the Act to the facts of the instant case and the learned Single Judge had-decided the issue on merits by a well reasoned order by making specific reference to the Supreme Court decision in the case of Narshimha Murthy vs. Susheela Bai & Ors. (1 ). AT the same time the learned counsel took serious objection against the language used by the appellant in the Memorandum of Appeal with regard to the conduct of the first appeal by the Learned Single Judge.