IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.08.2011 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.1363 of 2007 and M.P.No. 2 of 2007 1. Ekambaram 2. Kokila 3. Dhakshyani 4. Dhanam 5. Kasi .. Appellants 1 to 5/ Defendants 1,3 to 6 6. V.Sankaran 7. S.Elanchezhian 8. S.Elango 9. M.Parimala 10.S.Shanmugham 11.S.Babu 12.Valarmathi .. Appellants 6 to 12/ L.Rs of deceased Gaja the 2nd defendant . (Cause title accepted vide order of Court dated 6.1.2007 made in M.P.No.1 of 2007 in S.A.SR. No.18454 of 2006.) Vs. V. Jothi ..Respondent/Plaintiff Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 26.10.2005 made in A.S.No.19 of 2004 on the file of the Subordinate Court, Tiruvallur, by confirming the Judgement and Decree, dated 23.4.2003, made in O.S.No.430 of 1991 on the file of the District Munsif Court, Tiruthani. For Appellants : Mr. V. Nicholas For Respondent : Mr. R. Dhasarathan J U D G E M E N T The defendants 1, 3 to 6 and the Legal Representatives of the 2nd defendant in O.S.No.430 of 1991 on the file of the District Munsif Court, Tiruthani, are the appellants. https://hcservices.ecourts.gov.in/hcservices/ 2. The respondent / plaintiff filed the suit for partition of 1/10th share in the suit properties. The case of the respondent/ plaintiff was that the suit properties originally belonged to her father A.K.Jayarama Reddy and the properties were ancestral properties in his hands. The said Jayarama Reddy had five daughters and a son and the 1st defendant is the son of Jayarama Reddy and the plaintiff, defendants 2, 5 and 6 are the daughters of Jayarama Reddy and the defendants 3 and 4 are the daughters of the deceased Lokanayaki, the deceased daughter of Jayarama Reddy and therefore in the suit properties the plaintiff is entitled to 1/10th share and filed a suit for partition. 3. The 1st defendant /1st appellant contested the suit stating that all the properties were not separate properties and some of the properties were purchased by him out of his own earnings and that cannot be divided among the legal heirs of Jayarama Reddy and he has also spent huge money on the properties and the plaintiff was given in marriage and she was sufficiently provided with jewels and other articles and therefore she is not entitled to any share in the suit properties. 4. The trial Court held that the properties covered under Exs.B1 to B6 are the separate properties of the 1st defendant and the plaintiff cannot claim any share in those properties and in respect of other properties the plaintiff is entitled to 1/12th share and decreed the suit for partition and passed a preliminary decree holding that the plaintiff is entitled to 1/12th share in the suit properties except the properties covered under Exs.B1 to B6. The defendants filed an appeal in A.S.No.19 of 2004 and the lower appellate Court has also confirmed the Judgement and Decree of the lower Court and hence the Second Appeal. 5. The following substantial question of law was framed by this Court at the time of admission of the Second Appeal: " When Section 23 of the Hindu Succession Act, which is a special provision dealing with the partition of a dwelling house and the right of the male and female heir postpones the right of a female heir to claim partition of the said dwelling house until the male heir chooses to divide it whether the Courts below are correct in granting the relief of partition to the plaintiff in respect of the second item of the suit properties which is a dwelling house wholly in occupation of the 1st defendant ? " 6. It is submitted by the learned counsel for the appellants that admittedly Items 2 and 3 of the schedule properties are the dwelling house and a house site. Under Section 23 of the Hindu Succession Act 1956, the female members are not entitled to claim any partition of the dwelling house until the male heir chooses to divide his respective shares and in this case he is the only male legal heir and he has not filed the suit for partition and therefore the Courts below erred in granting the decree in respect of the dwelling house namely Items 2 and 3 in the suit schedule. https://hcservices.ecourts.gov.in/hcservices/ 7. On the other hand, the learned counsel for the respondent submitted that after the Hindu Succession (Amendment) Act,2005 (39 of 2005), Section 23 of the Hindu Succession Act 1956 was omitted and therefore there is no bar for a daughter to claim partition in respect of the dwelling house even in the absence of any partition suit filed by the son. 8. The learned counsel for the appellants submitted that the Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force from 9.9.2005 and the suit was filed in the year 1991 and therefore on the date of suit the respondent was not entitled to claim partition of the dwelling house and therefore the Courts below erred in granting the decree except the dwelling house namely Item 2 of the suit property. 9. I am unable to accept the contention of the learned counsel for the appellants. The learned counsel for the appellants may be right in submitting that having regard to the provision of Section 23 of the Hindu Succession Act 1956 prior to the Hindu Succession (Amendment) Act, 2005 (39 of 2005), a daughter was not entitled to file a suit for partition in respect of the dwelling house in the absence of any partition suit filed by a male member. It is also true that the Hindu Succession (Amendment) Act,2005 (39 of 2005) is only prospective in nature. Nevertheless, having regard to the provision of Section 23 of the Hindu Succession Act 1956, it only deals with the procedure and it is not creating any substantive right and under the provision of Section 23 of the said Act a bar was created for the woman to apply for partition of the dwelling house so long as the male heir does not choose for partition. Section 23 of the Hindu Succession Act, 1956 did not deny the right of the female heirs to claim partition in respect of the dwelling house and their right is postponed till the son files the suit for partition. 10. Therefore, according to me, Section 23 of the Hindu Succession Act, 1956 only deals with the procedure in claiming the relief of partition in respect of the dwelling house. It does not extinguish or create any right in respect of dwelling house and being procedural in nature the same can be applied even to a pending suit and admittedly after coming into force of Hindu Succession (Amendment) Act,2005 (39 of 2005), certain rights were given to female members in the ancestral property and on that basis Section 23 of the Hindu Succession Act 1956 was deleted. The result is that a female member is entitled to claim partition even in respect of the dwelling house even in the absence of any partition suit filed by the male member. Therefore, having regard to the omission of Section 23 of the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act,2005 (39 of 2005) the bar which was operative against the female members to claim partition of the dwelling house was removed and the female members are entitled to claim partition in respect of the dwelling house also along with other members. Hence, the Courts below were right in granting the https://hcservices.ecourts.gov.in/hcservices/ decree of partition. Therefore, the substantial question of law is answered against the appellants. 11. In the result, the Judgement and Decree of the Courts below are confirmed and the Second Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar kr To 1. The Subordinate Judge, Thiruvallur. 2. The District Munsif, Tiruthani. 1 cc To Mr.V.Nicholas, Advocate, SR.50598 1 cc To Mr.C.R.Dhasarathan, Advocate, SR.51047 S.A.No.1363 of 2007 UG(CO) RH (16.9.11) https://hcservices.ecourts.gov.in/hcservices/