B.N. Maitra, J.
1. The present suit for partition was filed by one Maya Dutta, daughter of Radha Raman Das aliasRadha Charan Das, a Hindu governed by the Dayabhaga School of Hindu Law. He was the owner of the disputed property, being premises No. 3B Collins Street, Calcutta. The defendant, Surjya Kumar Das, is her brother. On the 4th April, 1969, she instituted the Suit No. 964 of 1969 against her brother in this Court for a declaration that she and her brother belonged to a joint family governed by the Dayabhaga School of Hindu Law and she was the sole and absolute owner of the premises No. 3B Collins Street, Calcutta, and for other reliefs. Ultimately, the parties came to terms and a decree was passed that the parties were governed by the Dayabhaga School of Hindu Law and they were absolute owners of the disputed property to the extent of a moiety share each. In view of the strained relations between them, It has become inconvenient for her to enjoy the property. She called upon her brother to effect an amicable partition. Her brother did not do so and hence the suit for partition and accounts.
2. The defendant filed a written statement alleging, inter alia, that the plaintiff was out of possession for more than twelve years and so, she could not ask for partition without paying ad valorem court fees. The parties were governed by the Mitakshara School of Hindu Law.
3. The learned Judge of the City Civil Court accepted the plaintiff's version and overruled the defendant's contention regarding the provisions of Section 23 of the Hindu Succession Act. He stated that though the previous Suit No. 964 of 1969 was compromised, it was not registered and hence, that decree had no value in the eye of law. The claim for accounts was not allowed. He held that the parties had moiety share each and, a preliminary decree for partition was passed. The propriety of this decision has been challenged by the defendant in this appeal.
4. It has been contended on behalf of the appellant that the decision of the learned Judge is erroneous because he has stated that Section 23 of the Hindu Succession Act can have no application unless the previous owner left more than one male heir. In this case, the previous male owner, viz., Radha Raman, left only one son and one daughter and hence, the provisions of Section 23 of the Act were out of the way. This decision is incorrect. The defendant is the only daughter of Radha Raman and only sister of the defendant-appellant. So, according to the provisionsof Section 23 of the Act, she cannot ask forpartition.
5. The learned Advocate appearing on behalf of the respondent has stated that the provisions of Section 23 of the Hindu Succession Act will apply and the decision of the learned Judge in this respect is correct.
6. It has already been indicated that the prayer for accounts was negatived. This has not been challenged. So, the first question arises about the interpretation of Section 23 of the Hindu Succession Act. This section says that where a Hindu intestate has left surviving him both male and female heirs specified in clause I of the Schedule and his property includes a dwelling-house wholly occupied by the members of the 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.
7. The proviso to that section says that where she is the daughter, she will have a right of residence only if she is unmarried or she has been deserted by or has separated from her husband or is a widow. In this case, the plaintiff is not unmarried or has not been deserted by or has been separated from her husband or is a widow, within the meaning of the proviso to Section 23 of the Act.
8. The provisions of Section 23 of the Act were considered by a Bench of this Court. In the case of Arun Kumar Sanyal v. Gnanendra Nath Sanyal reported in : AIR1975Cal232 , it has been stated that Section 23 of the Act makes it clear that the object of this section is prevention of fragmentation or disintegration of a family dwelling house at the instance of the female heirs to the hardships and difficulties to which the male heirs may be put.
9. The learned Judge of the City Civil Court states that Section 23 of the Act speaks of male heirs. In other words, that section will apply if a Hindu dies intestate leaving more than one male heir. But that court completely overlooked the provisions of Section 23(2) of the General Clauses Act, which says that in all Central' Acts and Regulations unless there is anything repugnant in the subject or context, words in the singular shall include the plural and vice versa. In the present Central Act, viz., Hindu Succession Act, thereis nothing repugnant in the subject or context. It has been stated in that Bench case that a Hindu may die leaving a son and a number of daughters. If at the instance of any such daughter, the dwelling house is allowed to be partitioned against the wish of the son, he may be put to great hardship, We, therefore, hold that the decision of the learned Judge in this respect is incorrect and the plaintiff (daughter of Radha Raman) cannot ask for partition unless the male heir of Radha Raman (plaintiffs brother) asks for partition of such dwelling house.
10. Then about the observations of the learned Judge that since the previous compromise decree in Suit No. 964 of 1969 was not registered, in view of the case in AIR 1937 All 282, this compromise decree has no value according to the provisions of Section 17 of the Indian Registration Act. Here also, the learned Judge was completely oblivious of the exception engrafted in Sub-section (2), Clause (vi) of Section 17 of the Indian Registration Act. That clause (vi) of Sub-section (2) of Section 17 of the Indian Registration Act indicates that notwithstanding anything in Clause (b) and (c) of Sub-section (1) of Section 17, no question of registration arises in respect of any decree or order of a court except a decree or order expressed to be made on a compromise and compromising immoveable property other than that which is the subject-matter of the suit or proceeding. In the case of Nathram v. Latif in 39 Cal WN 485; (AIR 1935 Cal 478), it has been stated that that clause (vi) applies to a consent decree by which the property in question was dealt with and so it does not require any registration. It has already been indicated that the subject-matter of that suit of 964 of 1969, which was decreed on compromise, was 3B Collins Street, Calcutta, and that is also the subject-matter of the present litigation. In the cases in : AIR1954SC82 and : 1SCR99 it has been stated that such decision operates as estoppel, not as res judioata. So, no further discussion on this is called for because that compromise decree operates as estoppel and plaintiff's title cannot be challenged.
11. Then about the point that the plaintiff was not in actual possession of the disputed property for more than twelve years and so, the suit was not maintainable without paying ad valorem court-fees. This matter is concluded by several Bench decisions of this Court. In the case reported in 45 Cal WN 561: (AIR 1942 Cal 180) presided over by Sir R. C.Mitter, it has been stated that in a partition suit, it is essential that a plaintiff should be in possession at the date of the suit either actually or constructively. If he is at the material time in possession of a part of the joint property or if he be not in actual possession of any part of the joint property, but his co-sharer (defentant) is in possession and there is no ouster, the suit is maintainable on a payment of court-fee of Rs. 15 because his co-sharer's possession will constructively be his possession. The same view has been taken by Venkat Ram lyer, J. in the case reported in : AIR1956SC548 . There is no ouster or of adverse possession. Moreover by the compromise decree in the Suit No. 964 of 1969, moiety shares of the parties were declared. Hence the question of non-maintainability of the suit does not arise.
12. Now the most important question arises, what is to be done in this suit. It has already been held that Section 23 of the Act applies. Consequently, a female heir, viz., the plaintiff, who is the daughter of Radha Raman, cannot ask for partition, unless her brother (defendant) chooses to divide the dwelling house in question. Until such partition is made by the defendant-respondent, she will have to wait to get her share in the property. No further relief can be claimed. This disposes of all the points that may be raised in this appeal.
13. The appeal is allowed. The judgment and decree appealed against be hereby set aside. It is hereby declared that the parties have a moiety share each in the property in question. But in view of the provisions of Section 23 of the Hindu Succession Act, the plaintiff's claim for partition is dismissed for the present.
14. The parties will bear their own costs.
15. At present, it has been contended on behalf of the appellant that the tenant, who resided in a portion of the house, has surrendered his lease. An application has been filed to that effect. The application be kept on the record.
16. I agree.