1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 699 OF 2007 WITH CIVIL APPLICATION NO. 647 OF 2005 Shri Balkrishna Ganparao Jadhav ) (since deceased represented by his ) L.Hs. And L.Rs. ) 1(A) Smt.Ranjana Balkrishna Jadha ) 1(B) Mrs. Vijaya Subash Ingawale ) 1(C) Mrs. Rohini Dattatray Dagade ) 1(D) Mrs. Chitalekha Ashok Sanas ) 1(E) Mrs. Hemlata Kisan Mhaske ) 1(F) Mrs. Meghna Surendra Tapkir )..Appellants (being legal heirs and representatives of the deceased Appellant. Vs.. 1. Smt. KamaladeviBalasaheb Rote ) 2. Shri Chandrakant Baburao Sanas ) 3. Shri Prafulla Ramchandra Kulkarni ) 4. Shri Tarachand Ramchandra ) Kothavale ) 5. Shri Neminath Marsute ) 6. Shri Kaustabh Vaidya ) 7. Shri Pramod Dhumal )..Respondents Mr.S.J.Raikar,Advocate, for the appellant. Mr.Vilas B.tapkir Advocate for the respondent. CORAM: J.H.BHATIA,J. DATE: 4th August, 2009. JUDGMENT: 2 1. The appellant before this Court is the original defendant No.1 and the respondent No.1 is the original plaintiff. The other respondents are the tenants. Admittedly, the suit property consists of the residential house which originally belonged to the mother of the plaintiff and the defendant. Their mother died sometime in 1977 and since then the house was in possession of the defendant No.1/present appellant. The plaintiff filed Special Civil Suit No.657 of 1996 seeking partition and separate possession to the extent of her half share in the suit property. According to defendant No.1, he had spent Rs.50,000/- on certain additions and alterations in the house and secondly it is a residential house an therefore the plaintiff is not entitled to get partition and separate possession. The suit was decreed and the plaintiff was held entitled to the half share in the property. The trial Court found that the defendant No.1 had spent Rs.50,000/- on additions and alterations and accordingly, the trial Court directed the plaintiff to pay Rs.25,000/- as her share towards construction of first floor. Against that judgment and decree, the plaintiff and defendant No.1 both filed appeals which came to be disposed of by a common judgment dated 6.11.2004. The appeal preferred by the defendant No.1 was dismissed. The appeal filed by the plaintiff to the extent of direction to contribute Rs.25,000/- was allowed and that part of the decree was set aside. The appellate Court also directed enquiry under Order XX Rule 12 of C.P.C. for past and future mesne profits. The 3 defendant No.1 has challenged the said judgment in the Second Appeal. 2. The learned Counsel for the defendant No.1 contended that in view of the provisions of Section 23 of the Hindu Succession Act, 1956, as it stood during the relevant period prior to the Amendment in 2005, when a Hindu died intestate leaving behind a male as well as female heirs of Class I and only property was dwelling house, it could not be put to partition. However, this bar to the partition was applicable only to dwelling house wholly occupied by the members of the family of the legal heir. In the present case, admittedly, the suit house was a dwelling house but is not wholly occupied by the defendant No.1 or his family members. Some part is occupied by him and some part is let out to the tenants and he is getting rent. Therefore, Section 23 could not be applied to the same. 3. The Courts below came to conclusion that defendant No.1 had spent Rs.50,000/-. The construction of the same has been done sometime in 1978-79. The trial Court directed the plaintiff to pay half share i.e. Rs.25,000/- for cost of construction as she wanted half share in the property. The appellate Court set aside that part of decree. It could be justified if the past and future mesne profits would not be granted to the plaintiff. However, the appellate 4 Court directed Enquiry under Order XX Rule 12 of C.P.C. for past as well as future mesne profits. To that extent, the order of the appellate Court does not appear to be correct. At this stage, the learned Counsel for the plaintiff/respondent No.1 makes a statement that the plaintiff will not claim mesne profits for any period prior to the filing of the suit. The suit was filed in 1996. The construction was made in 1978-79 and admittedly the defendant no.1 was getting rent from the tenants and thus if past mesne profit is not claimed by the plaintiff, the defendant No.1 will be fully compensated by the rent which he has received in respect of the cost of construction. 4. Therefore, while the Second Appeal challenging the partition and separate possession being without any merit stands dismissed, with consent, the order passed by the appellate Court shall stand modified to the effect that the plaintiff shall not be entitled to mesne profits prior to the date of filing the suit. The Appeal stands partly allowed to that extent. 5. As the Second Appeal itself is disposed of, the C.A. does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)