A.S. Venkatachalamoorthy, J.@mdashDefendants 1 to 3 in O.S. No. 103 of 1980 on the file of the Subordinate Judge, Tirupathur, are the
appellants herein.
2. The first respondent as plaintiff filed the said suit, praying the Court to pass a decree,
(a) directing partition of plaint ''A'' Schedule properties into 12 equal shares with reference to good and bad soil and put the plaintiff in separate
possession of one such share;
(b) directing partition of plaint ''B'' and ''C'' schedule properties into 4 equal shares and put the plaintiff in separate possession of one such share,
and for other reliefs.
3. Briefly it is the case of the plaintiff that her father Soundararajan died intestate leaving his wife viz., the mother of the plaintiff, plaintiff and
defendants 2 to 3, his sons as legal heirs. Out of the properties left by him, ''A'' schedule are the ancestral immovable properties; ''B'' schedule are
his self-acquired immovable properties and ''C'' schedule are his movable self-acquired properties. According to her, all the properties are in
management of defendants-1 to 3 and they are liable to render accounts of the income derived from the said properties. The plaintiff claims to be in
joint possession of the properties along with defendants-1 to 3 as co-owner and hence, she is entitled for partition and separate possession of her
share ie., 1/4th share in the self-acquired properties described in B and C schedules and 1/12th share in ancestral properties viz., ''A'' schedule.
It is the case of the plaintiff that her request to divide the properties has not yielded any result and that in fact, she was forced to issue a lawyer''s
notice on 1.8.1979, calling upon defendants-1 to 3 to have partition effected. But however, the defendants sent a reply dated 29.08.1979,
containing several allegations which are not true. The plaintiff sent a rejoinder notice dated 26.11.1979 to the counsel for defendants-1 to 3.
Defendants 4 and 5 are impleaded as they have lent monies on mortgages in respect of the immovable properties and the 6th defendant is
impleaded as he has given a loan on hypothecation of the Printing Press known as Sri Venkateswara Printing Press founded by the father of the
plaintiff from and out of his self-acquired funds. The plaintiff refuted the claim made in the reply notice that Sri Venkateswara Printing Press is the
self-acquired property of defendants-2 and 3. The suit for partition has been laid by the plaintiff, claiming 1/12th share in ''A'' schedule properties
and 1/4th share in plaint ''B'' and ''C'' schedule properties.
4. The 3rd defendant filed a written statement, wherein, he has admitted that both ''A'' and ''B'' schedule properties are ancestral properties. With
regard to item ''C'' schedule, it is pleaded that the same belongs to the 3rd defendant absolutely. The machineries were purchased by him with the
assistance of the 6th defendant under Hire Purchase scheme. In 1975, the 6th defendant paid Rs.2884/- and the ownership vests with the sixth
defendant till the entire dues are cleared. The 3rd defendant would claim that the business was started with loans obtained by him from the 2nd
defendant and others to the tune of Rs.5000/- and he has been clearing off the dues to the 6th defendant from and out of his earning from the
printing business and that a further sum of Rs.7500/- is still due. The 3rd defendant would contend that his father did not contribute any amount
towards the said business so also defendants-1 and 2.
With regard to the remaining item of ''C'' schedule properties, it is contended that the first defendant obtained the same from her mother and that
they are not ''Sridhana'' properties. The fact that the first defendant sold item-2 in 1969 for Rs.3,500/- and item-3 for Rs.25,000/- in the year
1974 are admitted. Out of the said sum ie., Rs.25,000/-, the vendees were directed to discharge the loan due to Land Development Bank and the
balance was utilised for purchasing the last item Survey No. 130 measuring 2.17 acres in Sankarapuram Village. Thereafter, out of the said 2.17
acres, an extent of 1.21 acres was sold by the first defendant. The remaining 0.96 cents was exchanged for another similar land in the end of 1979.
Item-4 of ''C'' schedule was sold on 3.6.1975 for Rs.1500/- and Item-5 for Rs.2700/- and the amounts realised were not given to late
Soundararajan. The first defendant alone is entitled for the amount. Neither the plaintiff nor defendants -2 and 3 can claim any share in it. It is
further contended in the written statement that during lifetime of the father, there was a family partition among him and defendants-2 and 3 and to
evidence separate possession of the shares allotted to each party, an unregistered partition deed dated 5.11.1978 was executed among them and
as per the same, items-1, 2 and 4 of ''A'' schedule were allotted in equal shares to the 3rd defendant and his brother 2nd defendant. Item-3 was
allotted for enjoyment for lifetime of 3rd defendant''s father and mother and after their life time, defendants-2 and 3 are entitled to the same in equal
share. The house detailed in ''B'' schedule in the plaint was divided into two portions as detailed in the deed. Defendants-2 and 3 were allotted one
such portion each. The parents of the 3rd defendant viz., Soundararajan and mother Janakiammal viz., the first defendant were entitled to
enjoyment for lifetime of one room each in the said portions. Defendants-2 and 3 have been in separate possession and enjoyment of their shares
since the date of partition ie., 5.11.1978 and the first defendant is in enjoyment of item-3 of the plaint ''A'' schedule as per terms of the said
partition. Out of the income from the ancestral properties and first defendant''s income, the plaintiff was presented by her parents at the time of
marriage with 40 sovereigns of gold jewels and ''Sirvarisai'' for Rs.3000/-. A sum of Rs.5,000/- was spent for marriage expenses.
5. The fifth defendant has filed a written statement, wherein, he has contended that loan was advanced to Soundararajan and defendants-2 and 3
for the purpose of establishing a Printing Press Industry at Vaniyambadi and that the said loan was availed by the 3rd defendant as sole proprietor
of Sri Venkateswara Printers at Vaniyambadi and to this loan, the defendants-2 and 3 and their father mortgaged the property for Rs.6000/- in
favour of the 5th defendant on 26.04.1974. Again, the 3rd defendant availed Rs.5000/- on 28.12.1976 from the fifth defendant and he also
executed a deed of hypothecation of the said Printing Machineries in favour of the 5th defendant on 28.12.1976 as an additional security for the
loan and a pronote dated 28.12.1976 for Rs.5000/-.
6. At the trial, the plaintiff examined herself and marked Exs.A1 to A6. On the defendants'' side, apart from defendants-2 and 3, four more
witnesses were examined and Exs.B1 to B10 were marked.
7. The trial Court found that ''B'' schedule properties as well as the Printing Press viz., one of the items in ''C'' schedule property are ancestral
properties. On the basis of the said findings, trial Court declared that the plaintiff would be entitled for 1/12th share in ''A'' and ''B'' schedule
properties and item No. 1 in ''C'' schedule property viz., the Printing Press.
8. Defendants 1 to 3 have filed the appeal questioning the correctness of the reliefs granted to the first respondent/plaintiff with reference to ''B''
and ''C'' schedule properties.
9. Two questions arise for consideration. Firstly, what is the relief to which the first respondent/plaintiff would be entitled to with reference to ''B''
schedule property and secondly, whether the claim of the third appellant/third defendant that he alone is the absolute owner of the Printing Press in
question has to be upheld.
10. Let us proceed to consider the first question. Admittedly ''B'' schedule property is a house. The trial Court has granted a decree in favour of
plaintiff''s 1/12th share in the said property. The submission that is made on behalf of the appellants is that by virtue of Section 23 of the Hindu
Succession Act, in the facts and circumstances of the case, plaintiff would not be entitled to any relief with reference to ''B'' Schedule property.
Section 23 of the Hindu Succession Act reads as under:
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.
11. A reading of the said provision would clearly show that Section 23 would apply only where the property in question is a dwelling house. Of
course, the words ''dwelling house'' have not been defined anywhere in the Act. Hence the ordinary meaning as understood in the common
parlance has to be applied. Those words mean, ''to reside'' or ''to inhabit'' or ''to live'' or ''have one''s abode''. The Section also contemplates that
the house must be wholly in the occupation by the members of his or her family. Or in other words, if the dwelling house has been rented out either
fully or partly, then this section would not stand in the way of a female heir filing a suit to get her share in the property to which she is entitled to. At
this juncture, it has to be pointed out, the word ''family'' also has not been defined anywhere in the Act and the word ''family'' occurring therein
should be understood to refer only to a class I heir. Similarly, if the occupants of the house are not the class I heirs, say for instance brother and
sister of the deceased, they being not class I heirs, would not in any way prevent a daughter from filing a suit for partition to get her share. Suppose
if one of the class I heir resides in the ground floor exclusively and brother and sister of the deceased resides in the first floor again exclusively, then
embargo of Section 23 for a female heir to ask for partition in respect of dwelling house cannot be there. There can be a case where along with
class I heir, some relatives may jointly live in the house and in such an event, the bar in section 23 for a female heir is bound to be there.
12. To sum up the legal position, a female heir cannot claim partition of the dwelling house, if the same is wholly occupied by any one of the Class I
heir, till the male heir choose to effect partition thereof. (See Narashimaha Murthy Vs. Smt. Susheelabai and others, ; Hari Singh Vs. Smt. Sireh
Kanwar and Others, ; Vanitaben Bhaisbankar Pandya Vs. Divaliben Premji and Others, ;and Smt. Usha Majumdar and Others Vs. Smt. Smriti
Basu, ).
13. Coming to the present case, if one looks at para 1 of the plaint, the plaintiff has given her address as residing at Vayalveedhi, Thimmampettai
Road, Chikkananguppam. But in para 7 it is stated that the plaintiff is in joint possession of the properties along with defendants 1 to 3, as she is a
co-owner, entitled to partition and separate possession of her 1/4th share in the self-acquired properties described in ''B'' and ''C'' schedules.
Before Court, at the trial, she has stated as under,
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From the above, two things are clear. Firstly, plaintiff was not residing in the suit property on the date of filing of the suit and secondly, item ''B''
schedule property is wholly in the occupation of defendants 1 to 3, which is a dwelling house. In view of the admitted case of the plaintiff, this
Court has no difficulty to hold that the plaintiff cannot demand that her share should be divided with reference to ''B'' schedule property and she
must be put in possession.
14. A question may arise as to whether the very suit is not maintainable with reference to item ''B'' schedule property. As far as the present case is
concerned, not only the plaintiff has claimed a share in ''B'' schedule but also in ''A'' schedule, which is admittedly an ancestral property. That apart,
we do not find any bar in Section 23 for the Court to only declare the share of the female heir, which is only a lesser relief. That being so, this court
can declare the share of the plaintiff and further make it clear that she can enforce her right for division of the share in ''B'' schedule property, when
the contingency contemplated u/s 23 is satisfied. A similar view has been taken by a Division Bench of this Court way back in the year 1980 in a
case reported in Janabai Ammal Vs. T.A.S. Palani Mudaliar, .
15. In the result, we hold that the plaintiff would be entitled to 1/12th share in ''B'' Schedule property, but she can enforce her right for division of
her share and possession when the contingency contemplated in Section 23 of the Hindu Succession Act is satisfied.
16. The next question that has to be considered is as to whether the Printing Press in question is the property of Hindu undivided Family or one
exclusively belonging to third defendant. The claim of the plaintiff is that the said business was started by her father i.e., husband of the first
defendant and father of defendants 2 and 3, out of the income from the joint family property viz., item ''A'' schedule property. To substantiate the
same, she has examined herself and so deposed. On the other hand, the case of the third defendant is, it was the business started by him
exclusively by making borrowings and that it is his own business and nobody has got any right or interest in the said business. To prove the same,
third defendant, apart from examining himself, examined his brother viz., second defendant and filed Exs.B-5, B-6, B-7, B-9 and B-10.
17. Ex.B-6 is a pronote executed by the third defendant in favour of Union Bank of India, which is dated 28.12.1976. It is evident from the said
document that on that day, the third defendant borrowed a sum of Rs.5,000/-. It has to be noted that the said document has been signed only by
the third defendant. Ex.B-5 is a letter of guarantee executed by the first defendant and her husband late Soundararajan. For the borrowing by the
third defendant, these two persons obviously stood as guarantors. Ex.B-7 is a simple mortgage executed by D-1 to D-3 in favour of Union Bank
of India with reference to the said borrowal. The materials available on record in this case would amply show that this document was executed by
D-1 to D-3, as they are the owners of the property in question. Certainly from these documents, it cannot be inferred that the borrowings was by
the Joint family as otherwise, the pronote would have been executed by D-2, D-3 and their father. Ex.B-9 is a copy of the application form
submitted to the Tamilnadu State Industries Development Corporation Ltd., by the third defendant alone as a sole applicant for obtaining machines
under Hire Purchase Scheme. This application was accepted by the said Corporation and the third defendant obtained machineries used for
printing. Here again, it has to be noted that the sole applicant is third defendant and that second defendant, their father have not joined. Pursuant to
this, the third defendant also entered into a Hire Purchase agreement and here again the parties to the document are the Corporation on the one
hand and the third defendant on the other hand. Along with the agreement, he has also executed necessary pronotes as required by the
Corporation and the said pronotes are signed only by the third defendant.
18. Thus, the above documentary evidence, when considered in the light of oral evidence of second and third defendants, would amply prove that
the joint family business viz., the Printing Press that is being run under the name and style ''Venkateswara Printing Press'' is the exclusive business of
the third defendant and it is certainly not the joint family business. Apart from the interested oral testimony of plaintiff, there is no other evidence to
substantiate the claim that it is a joint family business.
19. In the result, we hold,
(a) ''A'' Schedule property is joint family property, which will be available for partition and the plaintiff would be entitled for 1/12th share.
(b) ''B'' Schedule property is a dwelling house and as admittedly, defendants 2 and 3 are wholly in occupation. The Court only declares the share
of plaintiff and the same is declared as 1/12th share and she will be able to proceed further to get her share/ possession only when the
contingencies contemplated u/s 23 of the Hindu Succession Act are satisfied.
(c) The Printing Press, which is one of the item of ''C'' schedule property is the exclusive property of the third defendant and plaintiff would not be
entitled for any share in it.
20. The above appeal is allowed in part as indicated above. No costs.
