HARI SINGH Vs. SIREH KANWAR

JUDGEMENT

(1.) SMT. Sireh Kanwar, widow of late Raja Kan Singh, instituted a suit for partition of certain immoveable and moveable properties in the court of Senior Civil Judge No. 1, Jaipur City, on December 22, 1967. The defendants in the suit were the son and other heirs of the Raja as would be evident from the genealogical table to which I shall presently refer. Hari Singh son of Raja Kan Singh by SMT. Sireh Kanwar resisted the suit while some other defendants pressed for partition. A preliminary issue was struck reading: "whether the plaintiff is not entitled to file a suil for partition of immovable property?" The suit travelled to the court of Additional District Judge No. 1, Jaipur City, and the learned Judge by his order dated September 6, 1971 held that SMT. Sireh Kanwar was competent to institute the suit because sec. 31 of the Hindu Succession Act, 1956 (here-r inafter referred to as "the Succession Act") merely repealed the Hindu Women's Rights to Property Act. 1937 (Act No. XVIII of 1937) (hereinafter referred to as "the Indian Act of 1937") and not the Jaipur Hindu Women's right to Property Act, 1947 (Act No. XXXVIII of 1947) (hereinafter referred to as "the Jaipur Act of 1947" ). The learned Judge added that sec. 31 of the Succession Act, which repealed the Indian Act of 1937, itself was repealed by the Repealing Act No. 58 of 1960 and, therefore, the dants plaintiff SMT. Sireh Kanwar was competent to institute the suit Dis-satisfied by this order the son persists in contesting the mother's right to seek partition on the basis of sec. 23 of the Succession Act.

(2.) IN order to appreciate the relationship between the plaintiff and the defendants the following genealogical table as contained in the plaint would admirably serve the purpose because it is substantially not in dispute. Smt. Madan Kanwar Def. No. 10 = Raja Kan Singh died on 10. 10. 66 = Smt. Sireh Kanwar Plaintiff Bhawani Singh (died on 27. 7. 66) Smt. Mukand Kanwar Def. No. 4 Smt. Bhawani Kanwar Def. No. 5 Smt. Hansraj Kanwar Def. No. 3 Hari Singh Def. No. 1 = Smt. Lekha Rani Def. No. 6 =smt. Bhim Kanwar alias Mankanwar Def. No. 2 Durga Singh Def. No. 7 Karan Singh Def. No. 8 Chhatrapal Singh Def. No. 9 The immoveable property which is sought to be partitioned is contained in Schedule "ka" annexed to the plaint called ifjf'k"v

(3.) SEC. 31 of the Succession Act reads: "s. 31 Repeal - The Hindu Law of Inheritance (amendment) Act, 1929 and the Hindu Women's Rights to Property Act, 1937 are here by repealed. " On the plain language of this section I am unable to hold that the Jaipur Act of 1947 although substantially the same as the Hindu Women's Rights to Property Act, 1937, stood repealed. The repeal in order to be effective must be express or by necessary implication.