Case Note & Summary
The appellant, Bharat Vithal Sakhare, filed a second appeal against the judgment of the Appellate Court which had allowed the partition suit filed by the plaintiff-respondent, Shankuntalabai w/o Pandurang Pulate, seeking partition and separate possession of her 2/9th share in the properties left by her father Vitthal Mahadji Sakhare. The properties included agricultural lands and a house property. The plaintiff claimed that the defendants refused to partition the property. The defendants resisted the suit, contending that Vitthal had partitioned the estate during his lifetime. The trial court dismissed the suit, but the Appellate Court reversed the decision and decreed the suit for partition. The appellant-defendant challenged the Appellate Court's judgment on the ground that the female heir's right to claim partition of the dwelling house was barred by Section 23 of the Hindu Succession Act, 1956. The High Court framed a substantial question of law regarding the applicability of Section 23 when there is only one male heir. The court analyzed the provision and held that Section 23 imposes a restriction on a female heir's right to claim partition of a dwelling house only when there are male heirs, to protect them from being forced out. However, when there is only one male heir, the restriction does not apply as there is no risk of multiple male heirs being displaced. The court found that the Appellate Court had correctly held that Section 23 was not applicable in the circumstances. The High Court dismissed the second appeal, upholding the Appellate Court's decree for partition.
Headnote
A) Hindu Succession Act - Section 23 - Restriction on Female Heir's Right to Partition Dwelling House - Interpretation - The issue was whether Section 23 of the Hindu Succession Act, 1956 bars a female heir from claiming partition of a dwelling house when there is only one male heir. The court held that the restriction under Section 23 is not applicable when there is only one male heir, as the provision is intended to protect multiple male heirs from being forced out of the family dwelling. The Appellate Court's finding was upheld. (Paras 1-6)
Issue of Consideration
Whether the learned Appellate Court committed a serious error of law in holding that when there was only one male heir, the right of any female heir to claim partition is not taken away by Section 23 of the Hindu Succession Act and the restrictions of Section 23 are not applicable in the above circumstances.
Final Decision
The second appeal is dismissed. The judgment and decree of the Appellate Court are confirmed. No order as to costs.
Law Points
- Section 23 of the Hindu Succession Act
- 1956
- restriction on female heir's right to partition
- dwelling house
- only one male heir
- partition suit
- female heir's right
