1. This Second Appeal involves the scope and interpretation of Section 23 of the Hindu Succession Act, 1956.
2. The facts of the case relevant for the purpose may be shortly stated. On 10th Apr., 1969, Chaturvedula Rajyalakshmamma alias Rajyalakshmi, the third defendant in the suit, entered into an agreement of sale Exhibit A-1 with the plaintiff agreeing to sell the plaint B-Schedule land and another 50 yards of site adjoining thereto representing to the plaintiff that she alone had full title to the entire B-Schedule property. Defendants 1 and 2 are the sons of the third defendant. Subsequently, the plaintiff came to know that the defendants 1 and 2 have title to the B-Schedule property, that the third defendant has only 1/3rd share and that she had misrepresented the facts. Therefore, the plaintiff raised a dispute with the third defendant and issued a registered notice to defendants 1 and 2. The third defendant ultimately executed the sale deed in favour of the plaintiff. Exhibit A-3 on 6th July, 1969 for the A-Schedule property representing the 1/3rd share of the third defendant in the B-Schedule property. The plaintiff was then put in possession of the A-Schedule property. From the time of the said sale, it is the case of the plaintiff, he has been in possession and enjoyment of the A-Schedule property and that defendants 1 and 2 are in possession of the B-Schedule property. But the defendants 1 and 2 raised a dispute with the plaintiff relating to the possession of A-Schedule property and also gave a false complaint to the police against the plaintiff. To avoid trouble from the defendants, the plaintiff gave up possession of the A-Schedule property with effect from 1st August, 1969. Subsequently, the defendants alone have been in possession of the B-Schedule property. The plaintiff has, therefore, filed the suit for partition of the B-Schedule property and separate possession of 50 Sq. Yards of site and house purchased by him in the case it is found that the plaintiff is not entiled to A-Schedule property within the specified boundaries. It was also stated that there was litigation with regard to the title of the B-Schedule property between the defendants and the brother of the third defendant's husband in O. S. No. 15 of 1962 on the file of the District Munsif, Gudivada, and in the said suit, title of the defendant was upheld and it was declared that the defendants prescribed title by adverse possession in the said property thereby it was pleaded that the third defendant had 1/3rd share in the said property.
3. The defendants 1 and 2 denied 1/3rd share to the third defendant in the B-Schedule property. On the other hand it was their case that only defendants 1 and 2 were entitled to the entire B-Schedule property and that they had been in possession and enjoyment of the B-Schedule property. It was further alleged that the third defendant was unchaste woman even during the lifetime of their father, that she led an immoral life with one Krishna Murthy, that their father died due to distress and humiliation as a result of the immoral life led by the third defendant and that the third defendant continued her adulterous life with the said Krishna Murty until he died in 1958- It was further the case of the defendants 1 and 2 that the third defendant contacted intimacy with one Veenam Subba Rao after the death of Krishna Murthy and has been living with the said Subba Rao as wife and husband and that the said Subba Rao alone was responsible for filing this suit and also another suit O. S. No. 68 of 1969 on the file of Sub-Court. Gudivada, against the defendants. In view of the unchastity of the third defendant, it was averred, that the third defendant had no right in the properties of her husband including the B-Schedule property. The agreement of the third defendant for B-Schedule property with the plaintiff was also denied and it was stated that it was a fabricated one. It was also the case of the first defendant that the plaintiff was not a bona fide purchaser for valuable consideration. It was further stated that the third defendant could not sell the B-Schedule property so long as the defendants 1 and 2 were living jointly in the said premises and that under Section 23 of the Hindu Succession Act she cannot claim any right in the properties. Therefore it is pleaded that the plaintiff had no right to demand for partition of the B-Schedule property nor was he entitled for a declaration of his title to the B-Schedule property because there is no such A-Schedule property at all. The third defendant while supporting the case of the plaintiff pleaded that she had absolute right in the entire B-Schedule property and denied the right of the defendants 1 and 2 to any share in the B-Schedule property. She claimed that she had been in uninterrupted possession of the B-Schedule property for a long time and had perfected title by adverse possession. The trial Court on a consideration of the evidence adduced by the parties held that the third defendant has 1/3rd share in the B-Schedule property while defendants 1 and 2 each had 1/3rd share and that the third defendant has not lost her right in the B-Schedule property on account of her unchaste life. He also held that the sale deed Exhibit A-2 executed by the third defendant in favour of the plaintiff was true but she was not competent to sell any specified items of the property in the B-Schedule property and she could only sell a 1/3rd share in the B-Schedule and, therefore, the plaintiff was not entitled to a declaration and possession of the plaint A-Schedule properties. He further held that the plaintiff cannot ask for a partial partition of the family property i.e. B-Schedule property of 150 Square Yards. He also held that the provisions of S. 23 of the Hindu Succession Act were inapplicable to this case as Suryaprakasa Rao, husband of the third defendant died in 1949 before the Hindu Succession Act, came into force. The suit was consequently dismissed. On appeal by the aggrieved plaintiff, the learned Subordinate Judge also held that the third defendant had 1/3rd share in the B Schedule property and that the suit by the plaintiff for a partial partition of the joint family properties was not maintainable. He however felt that the sale deed Exhibit A-2 was hit by the provisions or Section 23 of the Hindu Succession Act. The appeal was accordingly dismissed.
4. There is no dispute that the family of the defendants possessed not only B-Schedule property but also some other lands and 50 square yards of house sits. It is also not in dispute that the B-Schedule property is a dwelling house. It is now well settled that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit for partial partition of specified items can only be an exception. The Supreme Court in Hateshar Kuer v. Sakaldee Singh, (1969) 2 SCWR 414 held:
'The rule requiring inclusion of the entire joint estate in a suit for partition is not a rigid and inelastic rule which can admit of no exception. This rule aims at preventing multiplicity of legal proceedings which must result if separate suits were to be instituted in respect of fragments of joint estates. Normally speaking it is more convenient to institute one suit for partition of all the joint properties and implead all the interested co-sharers so that all questions relating to the share of the various co-owners and the equitable distribution and adjustment of accounts can be finally determined. But this being a rule dictated by consideration of practical convenience and equity may justifiably be ignored when, in a given case there are cogent grounds for departing from it.'
5. The question therefore is whether there are no cogent grounds for departing from the normal rule of general partition in the instant case. The plaintiff has not given any explanation or reasons why he has not filed a suit for partition of all the joint family properties. He has only filed a suit for partition of the B-Schedule property. Further the relief asked for the allotment of A-Schedule property and a specified 1/3rd share out of B-Schedule cannot be gone into since the defendants 1 and 2 have interest in every square yard of B-Schedule property. Therefore the siit for partial partition is not maintainable.
6. The next question that is raised is whether Section 23 of the Hindu Succession Act is a bar to claim partition of the family dwelling house. Section 23 of the Hindu Succession Act provides:
'23. Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class-I 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 sharps 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.'
This is a special provision made in respect of division of dwelling houses of a joint family. The section lays down that in the case of a dwelling house left behind by the Hindu Intestate, his or her female heirs can claim partition thereof only if the male heirs choose to effect a division of their respective shares. Thus the choice of partition of a dwelling house is confined to the male heirs, and divested from the female heirs. The object of the statutory rule is obviously to ensure easement of disruptive influences which would operate if the right of a female heir to claim partition of the family dwelling house were left unrestricted. The statutory provision is designed to defeat the disturbance of the family dwelling house and infliction of misery on the male heirs by the female members such as daughters and daughters' daughters whose mooring and interests are elsewhere on account of their marriage and are staturated with separate ownership. There is no dispute that the B-Schedule property is a family dwelling house and is, therefore, liable to partition only at the choice of the male heirs, namely, D-1 and D-2. But the learned counsel for the plaintiff submits that the husband of the third defendant died in 1949 long prior to the Hindu Succession Act came into force and that Section 23 has no retrospective operation and, therefore, does not apply to the case of an intestate who died before the commencement of the Hindu Succession Act. It is true that on the death of her husband, the third defendant became entitled to 1/3rd share and while her sons, defendants 1 and 2 became entitled to 1/3rd share each. But the disposal of her right was done in 1967 and partition of the dwelling is sought long after the Hindu Succession Act came into force. As already observed, the object of the statutory provision is to prevent the female heirs from forcing a situation resulting in the sale of the family house and cause distress and hardship to the sons of the intestate.
7. The learned counsel however, placed reliance on the decision of the Calcutta High Court in Upendra Nath Das v. Chintamoni Devi, : AIR1963Cal22 and submitted that where Hindu dies intestate before the Act of 1956 came into operation, leaving a widow and two sons, the succession of his estate, so far as the widow is concerned, is governed by the Hindu Womens' Right to Property Act (XVIII of 1937) and she becomes heir, to her husband along with his sons in equal shares with regard to all his properties other than agricultural land under the Act XVIII of 1937. The learned Judges also held that the widow has unrestricted power of claiming partition of all the properties which she inherits including dwelling houses left by her husband and that right is not taken away by Section 23 or other provisions of the Act of 1956. It is true that on the death of her husband she succeeded as the heir under Act (XVIII of 1987) in respect of a dwelling house and properties other than agricultural lands. Section 3(3) of the Act provides any interest devolving on a Hindu widow shall be limited interest known as a Hindu Women's Estate provided however, that she shall have the same right of claiming partition as a male owner. By that provision, a Hindu widow gets an unrestricted right of claiming partition of all the properties which she inherited including dwelling houses. But Section 4 of the Hindu Succession Act, 1956 gives an overriding application to the provisions of the Act on the Law as it obtained previously. The Act supersedes all prior law and the law of succession as laid down in the Act alone shall govern intestate succession among Hindus. Under Section 4(b) any law in force applicable to Hindu immediately before the commencement of Act shall cease to apply to a Hindu in so far as it is inconsistent with the provisions contanied in the Act. The right conferred on a Hindu Widow under Section 3(3) of the Hindu Women's Right to Property Act to seek partition of a dwelling house is inconsistent with the provisions of Section 23 of the Act and so stands nullified. With great respect I am unable to record my accord with the view expressed by the learned Judges of the Calcutta High Court in the ruling referred to above.
8. In the result, the Second Appeal fails and it is accordingly dismissed with costs.