In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 3912 of 2008 Date of decision: April 29, 2009 Parbodh Chand Kapoor .. Petitioner Vs. Vijay Kapoor and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashok Gupta, Advocate for the petitioner. Mr. Harish Bhunger, Advocate for the respondents No.1 to 6. A.N. Jindal, J This regular second appeal filed by defendant No.1-appellant (herein referred as 'the defendant') is against the judgment dated 4.9.2008 passed by the learned Additional District Judge, Ambala, dismissing the appeal against the judgment and decree dated 5.3.2007 passed by the Civil Judge (Jr. Division), Ambala, whereby the suit for partition was decreed. The case has chequered history. Puran Chand Kapoor a resident of Ambala died leaving behind four sons namely Vijay Kapoor, Parbodh Chand Kapoor, Parkash Chand Kapoor and Prem Chand Kapoor, and three daughters namely Urmila, Bimla, Sudarshan Tara and wife Suhag Rani Kapoor. He was the owner of a House No. 4038/1, Opposite Municipal Council Office, Ambala Cantt. On the death of Puran Chand Kapoor, the plaintiffs-respondents No.1 to 5 and Suhag Rani his widow (herein referred as 'the plaintiffs') filed a suit for partition against Parbodh Chander Kapoor- defendant (now appellant), Parkash Chand (now performa respondent No.6) claiming 1/8th share each in the suit house and sought partition of the same by metes and bounds. In their written statement, Parbodh Chander Kapoor and the performa respondent No.6 (herein referred as the defendant No.1) denied the allegations while raising several preliminary and technical objections viz: regarding maintainability; suit being the result of collusion between the R.S.A. No. 3912 of 2008 -2- *** plaintiff and the defendant No.2; prior partition on the basis of family settlement; want of proper court fee; and concealment of material facts. While admitting the relationship between the parties, it was disclosed that after the family settlement between the parties including the husband of the plaintiff No.3 and plaintiffs No.4 to 6 and Suhag Rani had relinquished their shares in the property and the same fell to the share of plaintiff No.1 and the defendant No.1 to the extent of ½ share each. The husband of the plaintiff No.3 was settled at Madras with the funds of his share. Similarly, the defendant No.2 had also purchased a plot at Jodhpur, out of the share money with respect to the share of the house in dispute. Thus, the plaintiffs No.1 to 6 and the defendant No.2 had left with no share in the suit property. Now plaintiff No.1 has joined hands with the other plaintiffs and the defendant No.2, who have also colluded with each other to the detriment of the defendant No.1. As per understanding given by way of oral family settlement, the plaintiff No.1 had been looking after the complete requirement of their mother Suhag Rani Kapoor, who died in January, 1999, consequently, no dispute is left between the parties. Eventually, it was pleaded that the plaintiff No.1 and the defendant No.1 are in possession of ½ share each in the house in dispute and the remaining plaintiffs and the defendant No.2 have ceased to have any share in view of their categorical relinquishment. Thus, the suit was required to be dismissed. The defendant No.2 in his written statement admitted the claim of the plaintiff. Replication was filed wherein the plaintiffs reiterated the allegations. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiffs are entitled to possession by way of partition of the premises in dispute?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the suit is liable to be dismissed as partition has already been effected between the parties and they are in possession of their respective shares?OPD R.S.A. No. 3912 of 2008 -3- *** 4. Whether the suit is liable to be dismissed for want of proper court fee?OPP (Preliminary issue). 5. Relief. Both the parties led evidence and ultimately Civil Judge (Jr. Division), Ambala Cantt vide judgment dated 28.1.2003, decreed the suit of the plaintiffs to the effect that the defendant No.1 shall remain in possession of only 1/7th portion of the house in dispute and the remaining portion shall be divided amongst the remaining parties to the suit in equal share. The appeal was dismissed vide judgment dated 4.9.2008 passed by the learned Additional District Judge, Ambala Cantt. The substantial questions of law involved in the appeal could be formulated as under :- 1. Whether the parties were joint owners of the shop situated in Nichalson Road, Ambala Cantt running in the name and style of M/s Das Brothers and the present partition amounts to partial one, as the same has not been included in the present suit? 2. Whether the subsequent amendment in Section 23 of the Hindu Succession Act can be made applicable to the facts of the present case? 3. Whether the tenancy in a shop in Haryana is heritable and can be inherited by one or two sons exclusive of other legal heirs? 4. Whether any family partition took place in the year 1967, that too after the death of Puran Chand Kapoor in the year 1967. If so, then whether the same could be challenged after 21 years by filing a suit in the year 1988 and in that situation, whether the suit is barred by limitation? There is no denying a fact that parties are not at much variance with regard to factual position regarding property in dispute. It is also not disputed that all the parties are not the legal heirs of the deceased. The first point to be determined is regarding oral family settlement which came somewhere in the year 1967, that does not stand established from any oral R.S.A. No. 3912 of 2008 -4- *** or documentary evidence on the record. No date, time and place where such family settlement took place and how it was effected and acted upon has not come forth. Even the defendant No.2, who is stated to be beneficiary along with defendant No.1 as per family settlement, has not accepted the factum of family partition. The plaintiff No.1 who is alleged to have ½ share in the property has refuted the factum of alleged oral family settlement. It has also not been disputed that father of the parties died intestate. Parbodh Chander Kapoor in his later statement tried to improve his subsequent statement (after remand) about the date, month and year of the family partition. It is well settled by now that in the property more than a value of Rs.100/-, could be relinquished only by way of registered deed. The defendant No.1 has also admitted that in lieu of the rights of the other co-sharers, they were never given any sum and rather he states that the other brothers and sisters had refused to take their shares in the property. He further admits that the property as per Municipal Records still exists in the name of his father Puran Chand Kapoor. Had there been any iota of truth in their statements regarding family settlement, then after the other brothers had left the house relinquishing their rights in the property, he in the ordinary course of nature, would have got changed the Municipal Records informing that the property had fallen to his share. Much has been discussed by both the courts below regarding the family settlement and it has consistently been held that no such family partition took place between the parties conferring rights of ownership upon the plaintiff No.1 and the defendant No.1 alone and the remaining plaintiffs and the defendant No.2 had relinquished their rights. Now coming to the issue of partial partition of the other property run in the name of M/s Das Brothers situated at Nichalson Road, Ambala Cantt, much has been observed by the trial court regarding the conduct of the appellant. The trial court has rightly observed that he has not spoken the truth and his version is a bundle of lies. In this regard, it may be observed that M/s Das Brothers was not in the name of Puran Chand Kapoor at any stage of time, it was run in a rented shop. The documents brought on record from the Registrar of Firms reveal that it was a partnership firm comprising of partners Parbodh Chander Kapoor, Parkash Chand Kapoor, Vijay Kapoor and Suhag Rani. No document indicating that R.S.A. No. 3912 of 2008 -5- *** they were inducted as partners after the death of Puran Chand Kapoor has also seen the light of the day. Notwithstanding the fact that this business was being run on the tenanted premises in a shop but in the absence of any proof that Puran Chand Kapoor was the sole proprietor of the firm or the sole tenant in the shop, during his life time, the said business could not be made subject of partition. In any case, assuming for the sake of argument, if the said business was in the name of joint partners i.e. Parbodh Chander Kapoor, Parkaksh Chand Kapoor, Vijay Kapoor and Suhag Rani, though there are no reasons at all to accept the same, in that situation in case of any dispute between them the partition was not the remedy but the parties could proceed for dissolution of the partnership deed and for rendition of accounts including their rights in the tenanted premises. Question of partition of inheritance in the tenanted premises, could be raised only if the premises were shown to be under the tenancy of only Puran Chand Kapoor. As regards the locus standi of the daughters to claim partition of a dwelling house, it is not only the daughters who are claiming partition of the property but the brothers too have plunged to claim the share after the death of their father. In any case, now after Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005) w.e.f. 9.9.2005, the daughters have also been conferred rights to get their share partitioned, therefore, this subsequent event arising out of the change of law obviously is to be applied and, therefore, the question of applying bar of Section 23 of the Act no longer arises for consideration. A similar question arose in case G.Sekar vs. Geetha and seven others 2007 (5) RCR (Civil) 118, wherein the Division Bench of Hon'ble Madras High Court observed as under :- “....... However, it is to be noticed that Section 23 has been omitted by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) with effect from 9.9.2005. It is no doubt true that such amendment has come into force during pendency of the Appeal. However, even assuming that there was any embargo at the time of filing the Suit for passing the judgment by the learned Single Judge as contemplated under Section 23 of the Act as it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after R.S.A. No. 3912 of 2008 -6- *** 9.9.2005. In other words, after 9.9.2005 any female heir can seek for partition even in respect of a dwelling house. This subsequent event arising out of change in law is obviously to be applied and, therefore, the question of applying bar under Section 23 of the Act no longer arises for consideration.” Similarly, Karnataka High Court in case Rathnakar Rao Sindhe vs. Smt. Leela Ashwath 2007 (5) RCR (Civil) 599 observed as under :- “5. It is true that as per Section 23 of the Act, when there is a male heir, unless he chooses to take out his share from the dwelling house, a female heir cannot claim partition against him. But Section 23 of the Act had been omitted during the pendency of the suit. It came to be omitted by the Hindu Succession (Amendment) Act, 2005 (No.39/2005) with effect from 9.9.2005. Hence, the restriction put on the right of a female heir to claim partition in respect of a dwelling house ceased to be effective from 9.9.2005. Therefore, question of enforcing the said restriction after it ceased to be in force does not arise at all. In my opinion, the effect of omission of Section 23 of the Act would apply to all proceedings whether original or appellate involving adjudication of the rights of the parties and pending as on 9.9.2005 or initiated after that date.” In the present case, the male members along with female members have also applied for partition, therefore, the bar created under Section 23 of the Act does not apply. As such, the substantial questions of law as formulated above, are answered against the appellant. Consequently, finding no merit in the appeal the same is dismissed. April 29, 2009 (A.N. Jindal) deepak Judge