B.P. Beri, C.J.
1. Smt Sireh Kanwar, widow of late Raja Kan Singh, instituted a suit for partition of certain immovable and movable 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. Harisingh son of the 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 suit 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the suit because Section 31 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Succession Act') merely repealed the Hindu Women's Rights to Property Act, 1937 (Act No. XVIII of 1937) (hereinafter referred to as 'the Indian Act of 1937') and not the Jaipur Hindu Women's Rights to Property Act, 1947 (Act No. XXXVIII of 1947) (hereinafter referred to as 'the Jaipur Act of 1947'). The learned Judge added that Section 31 of the Succession Act, which repealed the Indian Act of 1937, itself was repealed by the Repealing Act No. 58 of 1960 and, therefore, the plaintiff Smt. Sireh Kanwar was competent to institute the suit. Dissatisfied by this order the son persists in contesting the mother's right to seek partition on the basis of Section 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 Madankanwar = Raja Kansingh = Smt. Sireh Kanwar
Def. No. 10 died on 10-10-66 Plaintiff
| | | | |
Bhawansingh Smt. Mukand Smt. Bhawani Smt. Hansraj Harisingh
(died on Kanwar Kanwar Kanwar Def. No. 1
27-6-66) Def. No. 4 Def. No. 5 Def. No. 3
=Smt. Lekha Rani =Smt. Bhim
Def. No. 6 Kanwar alias
| Def. No. 2
| | |
Durgasingh Karansingh Chhatrapal singh
Def. No. 7 Def. No. 8 Def. No. 9
The immovable property which is sought to be partitioned is contained in Schedule 'Ka' annexed to the plaint called ifjf'k'V ^d* and the movable property is contained in ifjf'k'V ^[k* (Schedule 'Kha'). The immovable property consists of a 'Haveli' and a 'Nohara' appurtenant thereto situate in Sabzi Mandi, Johari Bazar, Jaipur, and is estimated by the plaintiff to be of the value of Rs. 1,50,000.
3. Mr. Datt, learned counsel for the son Harisingh, contends that the Indian Act of 1937 was adopted by the Jaipur State in the year 1947. Sub-section (3) of Section 3 of the Jaipur Act of 1947 entitled a Hindu widow to have the same right of claiming partition as a male owner had. When the Succession Act came into force in the year 1956 the Indian Act of 1937 came to be repealedand with it went the right of the Hindu widow to seek a partition as a male owner could. The learned counsel urged that the learned Additional District Judge was in error when he said that the repealing of the Indian Act of 1937 became ineffective on account of Section 31 of the Succession Act itself having been repealed by the Repealing and Amending Act. The principle is well settled, added the counsel, that once a provision is repealed even if the section by which it was repealed came to be repealed later then too the earlier repeal was not wiped out. The principle that the repeal by the repealing enactment would not revive the original Act once repealed is embodied in Section 6(a) of the General Clauses Act and has been recognised by the text writers including Maxwell. My attention was also invited to the observations oftheir Lordships of the Supreme Court in Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 SC 352.
4. Mr. Datt also urged that Section 4(1)(b) of the Succession Act which has an overriding effect on all other provisions clearly lays down that any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it was inconsistent with any of the provisions contained in this Act. Even assuming, added the learned counsel, that the Jaipur Act of 1947 was not as such repealed, the effect of Section 4 (1)(b) of the Succession Act was that the Jaipur Act of 1947 was repealed by implication. In such a situation Section 23 of the Succession Act clearly prohibits the partition of a dwelling house which partition Smt. Sireh Kanwar was seeking by her suit. He urged that even if a part of the dwelling house was rented out then too it did not cease to be a dwelling house. He invited my attention to Satyendu Kundu v. Amar Nath, AIR 1964 Cal 52 and urged that having regard to the averments in the plaint Mst. Sireh Kanwar was not entitled to claim a partition of a dwelling house which was in occupation of the members of the family of late Raja Kansingh.
5. Mr. P.C. Bhandari, learned counsel for Mst. Sireh Kanwar, conceded that in view of the overriding effect of Section 4(1)(b) of the Succession Act even the Jaipur Act of 1947 stood repealed by implication to the extent it is inconsistent with the Succession Act. He did not challenge that in the matter of claiming partition of a dwelling house covered by Section 23 was inconsistent with Section 3 (3) of the Jaipur Act of 1947. He, however, vehemently urged that the dwelling house as contained in Schedule 'Ka' attached to the plaint was not a dwelling house wholly occupied by members of the family of Raja Kansingh because parts of it were admittedly on rent and, therefore, at least those parts which were not in occupation of the members of the family of Raja Kansingh were saved from the prohibition contained in Section 23 and a suit for partition at the instance of Mst. Sireh Kanwar was competent. He invited my attention to Vidyaben v. Jagdish Chandra, AIR 1974 Guj 23 and urged that the question whether the premises for which partition is being sought is a dwelling house wholly in occupation of the members of Raja Kansingh, was a question of fact to be decided after recording evidence and it would be premature to reach any conclusion without necessary evidence.
6. Mr. Dalpat Raj Advocate, appearing as guardian ad litem for theminor non-petitioners Nos. 7, 8 and 9, urged that the suit could not be dismissed because he had also paid court-fees and had claimed partition as would be evident from the proceedings before the trial Court dated May 11, 1971. Section 23 did not prejudice his claim to seek partition because he represented the male members. Mr. Datt contested the position urging that mere payment of court-fee would not entitle the minors to institute the civil suit because that order was challenged in a revision before the High Court and the same was dismissed by Chhangani, J. by his order dated February 9, 1971 in S. B. Civil Revision No. 567 of 1969.
7. The first question which arisesfor consideration is whether Section 3(3)of the Jaipur Act of 1947 survives entitling Smt. Sireh Kanwar to maintain thepresent suit for partition. The learnedAdditional District Judge has held thatit does for two reasons, namely, thatSection 31 of the Succession Act did notrepeal the Jaipur Act of 1947 and even if it had, the repeal became ineffectivebecause Section 31 itself stood repealedby the Repealing Act of 1960.
8. Section 31 of the Succession Act reads:
'Section 31. Repeals.-- The Hindu Law of Inheritance (Amendment) Act, 1929 and the Hindu Women's Rights to Property Act, 1937 are hereby 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.
9. What remains to be examined is whether the Jaipur Act of 1947 is otherwise repealed and, if so, to what extent. Section 4 of the Succession Act reads as under:--
'Section 4(1). Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings orfor the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.'
Sub-section (b) of Section 4(1) clearly indicates that any other law, which term includes the Jaipur Act of 1947, in force immediately before the commencement of the Act, namely, the Succession Act, would cease to apply to the Hindus in so far as it was inconsistent with any of the provisions contained in the Succession Act. Section 3(3) of the Jaipur Act of 1947 reads as under;--
'Section 3 (3). Any interest devolving on a Hindu widow under the provisions of this section shall be the 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.'
This provision is exactly the same as Section 3(3) of the Indian Act of 1937. However, this provision entitles a Hindu widow to have the same right of claiming partition as a male owner has. Section 23 of the Succession Act, however, restricts this right. It reads,--
'Section 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 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.'
The object behind this section appears to be that a female heir should not have the option to cause the disintegration of a dwelling house by claiming partition thereof unless the male heirs come to divide it by metes and bounds. This limitation on a female heir's right to claim partition is clearly inconsistent with Section 3 (3) of the Jaipur Act of 1947 and, therefore, it cannot survive. There is another reason which makes Section 3 (3) of the Jaipur Act, 1947 ineffective. A reference to Article 254 of the Constitution of India in this connection may be made. It provides that if any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concur-rent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void. In my opinion, this provision read with Section 23 of the Succession Act also gives a death-blow to Section 3(3) of the Jaipur Act of 1947.
10. Another argument which appealed to the learned Additional District Judge that Section 31 became ineffective because it was itself repealed by the Repealing Act of 1960 is clearly erroneous. The principle of interpretation, to borrow the language of Maxwell from his Interpretation of Statute, Tenth Edition, at page 402, is-
'Where an Act repealing, in whole or in part, a former Act, is itself repealed the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them.'
This principle received the affirmation from the Supreme Court in Ameer-un-Nissa's case AIR 1955 SC 352 at Page 362 where it is observed.:
'It may indeed be said that the present rule is the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English statute, we can still apply the English Common Law rule if it appears to us to be reasonable and proper. But even according to the common law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment manifest an intention to the contrary.'
11. Another argument which I might notice is contained in Section 6 of the General Clauses Act of 1897, It provides-
'6. Effect of repeal.-- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
The repeal by Section 31 of the Succession Act completely wiped out the Indian Act of 1937 and a subsequent repeal of Section 31 had not the effect of reviving the Indian Act of 1937.
12. What remains to be considered now is whether the provisions of Section 23 disentitle Smt. Sireh Kanwar to institute the suit. The question is whetherthe Haveli and the Nohara appurtenant thereto left by Raja Kan Singh, besides the movable property, are covered by the expression 'dwelling-house'. Two cases were cited before me. In Vidyaben's case AIR 1974 Guj 23, the widow claimed partion of husband's immovable property. The first floor of the property was in occupation of the joint family including the son and daughter of her husband by his earlier wife. Section 23 was pleaded in bar. The learned Judge of the Gujarat High Court held that the partition of the first floor could not be ordered in view of the provisions of Section 23 but that of the other parts of the property, which were not in occupation of the family, partition was perfectly permissible, The Calcutta case of Satyendu Kundu AIR 1964 Cal 52 relied on by Mr. P.N. Datt does not directly assist us because it arose under the Partition Act.
13. In my opinion, the language of Section 23 implies that before the restriction against claiming partition operates the immovable property should be (a) a dwelling house and (b) that it should be wholly occupied by the members of the family of the deceased. The key words for our purposes are 'wholly occupied'. Whether the Nohara and the Haveli in the case before me are wholly occupied by the members of the family or not is plainly ,a question of fact, which could be determined by recording evidence on the subject. I decline to decide this question without evidence having been adduced by the parties. To say that a part of the property is in occupation of some of the members of the family of Raja Kan Singh does not conclude the matter. I accordingly direct that the trial court before applying Section 23 must ascertain whether the immovable property of which partition has been claimed by Smt. Sireh Kanwar falls within the mischief of Section 23 and not to forget that the suit is also for partition of movable property.
14. The claim of the non-Petitioners Nos. 7, 8 and 9 for being transposed as co-plaintiffs was rejected by Chhangani, J. by his order dated February 9, 1971 in S. B. Civil Revision No. 567 of 1969. So far as the non-petitioners' right to be transposed as co-plaintiffs in this suit is concerned, the matter stands adjudicated and is not open for examination. I express no opinion in regard to their rights to seek partition independently of the concluded matter.
15. The result is that the revision is allowed. The order of the learned Additional District Judge is set aside and the case is sent back with the direction that the learned Judge shall decide the issue afresh after recording necessary evidencein the light of observations made above. There will be no order as to costs.