The appellant is a transferee who claims through the female heir; he steps into the shoes of the female heir and has no right independent of the right of the female heir which he has acquired by the transfer.


[Case Brief] Arun Kumar Sanyal vs Jnanendra Nath Sanyal


Case name: Arun Kumar Sanyal vs Jnanendra   Nath Sanyal

Citation: AIR 1975 Cal 232, 79 CWN 305

Court: The Calcutta High Court

Bench: M Dutt, J and  N. Mukherji, J.

Decided on: 15 January, 1975.

Relevant Act/Sections: Section 23 of the Hindu Succession   Act,1956, Section 13(2) of the General Clauses Act

Section 44 of the Transfer of   Property Act,1882

Section 4(1) of the Partition Act ,1893


· BRIEF FACTS AND PROCEDURAL HISTORY:

1. There is a 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.

2. 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.

3. The main defence of the respondents Nos. 1 and 2, namely, the elder brother and the younger sister of the appellant, who contested the suit was that the appellant being the transferee of his sisters Atasi and Anima had no right to claim partition of the dwelling house and as such the suit was not maintainable. The learned Subordinate Judge upheld the said contention. Therefore, the present appeal at the instance of the plaintiff , is before the Bench.


· ISSUES BEFORE THE COURT:

1. Whether the restriction imposed by Section 23 on a female heir to claim partition also applies to her transferee.

2. Whether the appellant could be awarded a declaration of his l/3rd share which he acquired by gift from his two sisters.


· RATIO OF THE COURT:

1. Section 23 is a special provision respecting dwelling-houses. It will apply only when a Hindu dies intestate leaving, both male and female heirs specified in class I. There can be no doubt that a female heir specified in class I of the Schedule inherits a share in the dwelling-house absolutely. But the rule laid down in Section 23 postpones the right of such a female heir to claim partition of the dwelling-house until the male heirs choose to divide their respective shares therein. The object behind the rule seems to be to prevent fragmentation or disintegration of a family dwelling house. The female heir is debarred from claiming partition of the dwelling-house except on the happening of a contingency, namely, when the male heirs come to a division of the same. So long as that contingency does not happen the female heir is precluded from claiming partition. Section 23 states that-

"Special provision respecting dwelling-houses - Where a Hindu intestate has left surviving him or her both male and female heirs specified in class 1 of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

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 separated from her husband or is a widow."

2. The rule which has been laid down by Section 23 clearly indicates the intention of the legislature that female heirs should not be allowed to divide the dwelling-house against the will of the male heirs and, on a proper construction of the section, we are of the view that it is also the intention of the legislature when there is only one male heir. If the male heir chooses to divide the dwelling-house, undoubtedly the female heir or heirs will be entitled to claim partition, but so long as no such choice is actually exercised the female heirs are debarred from claiming partition. If at the instance of any such daughters the dwelling-house is allowed to be partitioned against the wish of the son, he may be put to great hardship.

3. Relying on the case of Abdoola Haroon & Co. vs Corporation Of Calcutta AIR 1950 Cal 36where it was stated that no Court is entitled to depart from the intention of the Legislature as may be ascertained from the language of the Act only because it is thought either unreasonable of inconvenient, the construction which has been put by us on Section 23 in the background of the facts and circumstances of the instant case, is in accord with the well-settled rules of construction.

4. In the present case, the appellant is a  transferee who claims through the female heir; he steps into the shoes of the female heir and has no right independent of the right of the female heir which he has acquired by the transfer. In our view, a transferee of a female heir will be subject to the same restriction and prohibition as imposed by Section 23, namely, that he will be precluded from claiming partition of the dwelling-bouse until the male heirs chose to divide the same.

5. It was also contended on behalf of the appellant that after he had sold his undivided l/6th share in the dwelling-house which he inherited from his father, to his elder brother, the respondent No. 1, it tantamounted to a division of the house or at least an exercise of choice by him and the respondent No. 1 to divide the same. The court in this regard stated that they are not aware of any authority which lays down that when one of the co-sharers transfers his interest in a property to another, there is a division of the property. This contention of the appellant, therefore, fails.

6. Before we part with the case, we must dispose of another contention of the appellant. It has been already stated that the appellant has also prayed for a declaration of his l/3rd share in the disputed dwelling-house. Admittedly, the appellant has acquired 1/3rd share from his two sisters. Mr. Banerjee, learned Advocate appearing on behalf of the respondents has admitted that the appellant has l/3rd share in the disputed dwelling-house. The learned Subordinate Judge was, therefore, not justified in dismissing the entire suit, but should have declared the appellant's title to 1/3rd share in the disputed dwelling-house.


· DECISION HELD BY COURT:

1. We hold that the appellant is not entitled to claim partition of the disputed dwelling-house, his prayer for a declaration of his title to l/3rd share of the same should be allowed. In these circumstances, we modify the judgment and decree of the learned Subordinate Judge to this extent that the suit is decreed in part only declaring the title of the appellant to l/3rd share in the disputed dwelling-house. The remaining prayers of the appellant as made in the plaint are disallowed.

2. The appeal is allowed in part only to the extent indicated above. But in view of the facts and circumstances of the case we direct each party to bear his or her costs in this Court as well as in the Court below.

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