Partition of Dwelling Houses:
A will, like any other document, is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the will must provide satisfactory evidence that the will was signed by the testator, that the testator was of sound mind at the relevant time, that the testator understood the nature and effect of the disposition, and that the testator affixed their signature to the document of their own free will. The document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act. This requirement remains the same even if the opposite party does not specifically deny the execution of the document in the written statement.

There was no finality to the decision, and the right under the earlier provision in the Act was exercisable upon the happening of certain eventualities. Female heirs, having been previously denied, can now file for partition again in light of the omission of the earlier provision from the statute. They can obtain a decree if permissible under the law, even without meeting the earlier omitted pre-condition for granting a decree for partition of the dwelling house at the instance of female heirs.

Even in the present suit, assuming for the sake of argument that the plaintiff, being a female heir, is not entitled to exercise the right of partition over the dwelling house, the omission of the provision in the statute allows her to file for the same relief immediately after the disposal of the suit or at any time thereafter. Since the present case is still under appeal, and the Court has found that the provision temporarily barring the right has been omitted, there is no legal objection or impediment to granting the plaintiff the right to seek partition of the dwelling house according to her share as a Class-1 heir of Satyabadi against Defendant No.2, the other Class-1 heir of Satyabadi.

The restriction on a daughter’s ability to claim partition applies only if the house in question is being used as a dwelling by the brothers for their residence, and not if any portion or substantial part of the house has been let out to tenants. In this case, it is undisputed that a substantial portion of the suit property is under tenancy to third parties. Furthermore, with the enactment of Act 19 of 2005, Section 23 of the Hindu Succession Act was deleted, effective from 9th September 2005.

The necessary effect of this deletion is that any pending matter involving questions previously covered by Section 23 of the Hindu Succession Act will no longer impose a bar on the daughter's right to claim partition in respect of the dwelling unit. After the amendment, a daughter is now entitled to claim partition alongside her brother concerning property inherited by siblings. Therefore, there was no infirmity in either the judgment and decree dated 11th March 2003 passed by the Trial Court or the order dated 12th October 2009 passed by the first Appellate Court.

If possession of the dwelling house is given to strangers or tenants, the protection under Section 23 of the Hindu Succession Act is not applicable, and the dwelling house becomes subject to partition. The Trial Court concluded that Jeet Ram has resided in the dwelling house since 1984 and that since a stranger was introduced into the dwelling house, the protection under Section 23 of the Act is not available to male heirs.

Suit for Partition and Permanent Injunction of Dwelling House:
Bare perusal of Section 23 reveals that it pertains to disputes regarding partition among family members, and it mandates that any female heir has no right to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. However, the provision of this section is wholly inapplicable in the present case, as neither of the parties in the suit are members of a Joint Hindu Family, and both are transferees.

End Notes:

• Ramesh Verma v. Lajesh Saxena, 2017(170) A.I.C. 242 at p. 246 (S.C.): (2017)1 S.C.C. 257: 2017(3) A.L.R. 2017 S.C. 494
• Lucy Thadikkaran Chacku v. Baby Thadikkaran Ouseph, A.I.R. 2017 (N.O.C.) 4
• Krishan Sharma v. Raj Rani Bhardwaj, A.I.R. 2013 Delhi 136 at p. 13
• Mad. 82 at p. 83
• Ader Kumar Chona v. Vijay Singh Jandrotia, 2012(1) H.L.R. 229 at p. 233 (H.P.)
• Singh v. Nizamul Islam alias Musa, 2005(3) A.W.C. 2086 at p. 2089 (All.)
• Somanath pi) v. Ujjawala Sudhakar Pawar, 2013(1) Mh.L.J. 709

Written By: S Kundu & Associates
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