A.A. Desai, J.
1. This Letters Patent Appeal raises a question of substantial importance as to whether the right to claim partition of a dwelling house, accrued in favour of a Hindu widow under sub-section (3) of section 3 of the Hindu Woman's Right to Property Act of 1937 (hereinafter referred to as the Act of 1937') has been placed under suspension on coming into force section 23 of the Hindu Succession Act of 1956 (hereinafter referred to as the 'Act of 1956'). The facts giving rise to the question are as under :---
2. Late Mukundrao Deshpande was a member of a coparcenary. His coparcenary had inherited ancestral property including moveable and immoveable. Late Mukundrao died intestate in 1951 leaving behind his widow Menkabai (Plaintiff) and sons (defendants). They on 30-12-1954, vide Ex. 91, partitioned only agricultural land of the coparcenary and thereunder 1/5th share was allotted to the plaintiff. They, however, preferred to maintain the jointness of rest of the property.
3. The plaintiff on 20-8-1959 filed a suit claiming a declaration for setting aside the partition dated 30-12-1954. She alleged that her consent for partition was obtained by fraud. She further claimed partition of the entire properties of the joint family, described in Schedule A, B and C, by metes and bounds, and also claimed separate possession of her 1/5th share Schedule A to the plaint describes agricultural lands. Schedule B relates to moveable property and Schedule C pertains to the house properties. The learned trial Court by judgment and decree dated 19-12-1964 dismissed the entire claim of the plaintiff. The plaintiff, therefore, preferred first appeal under section 96 of the Code before this Court.
4. The respondents-original defendants in appeal resisted the claim of the plaintiff for partition of house properties as described in Schedule C, amongst others, on the ground of a bar as laid down under section 23 of the Act of 1956. The learned Single Judge observed that section 23 of the Act of 1956 has no application to the present case. According to the learned Single Judge no such plea has been raised in the written statement that the properties described in Schedule C were dwelling houses wholly occupied by members of the family. According to the learned Single Judge, the nature of the house and its use are essentially a question of fact. Both these houses at Paratwada and Chendkapur had been placed at the same level for purposes to attract section 23 by the respondents. It is further observed that even in the evidence there is not even a whisper that both or either of the houses are dwelling houses wholly occupied by the members of the family.
5. The learned Single Judge also held that section 23 is not applicable as the succession has opened in the year 1951 long before Hindu Succession Act came into force. The learned Single Judge in this behalf sought support from the decision in the case of Upendra Nath v. Chintamani Devi, : AIR1963Cal22 .
6. The learned Single Judge by judgment dated 10-2-82 rejected the claim of the plaintiff so far as the partition of agricultural land described in Schedule A was concerned. The learned Single Judge however, directed the partition of movables described in Schedule B and also of the house properties described in Schedule C.
7. This judgment has been impugned in this appeal. The challenge is confined only to the right of a Hindu Widow to claim partition of the house properties described in Schedule C.
8. Mr. Kaptan, the learned Counsel for the appellants-defendants, at the outset made a submission that the learned Single Judge has not appreciated the pleadings and evidence borne on record. According to Mr. Kaptan, the defendants have made specific pleadings and there is also evidence on record which is sufficient to attract the bar created by section 23 of the Act of 1956. With the assistance of the learned Counsel representing the parties before us, we have perused the pleadings and evidence on record.
9. The plaintiff in para 4(b) of the plaint has pleaded, that 'the house property mentioned in Schedule C was absolutely excluded for partition'. Schedule C describes the property as (1) Bungalow at Paratwada, taluqa Achalpur, (2) Bungalow by name 'Janaki Bhavan' situated at mouza Chandkapur, Taluqa Drayapur, District Amravati. It has three storeys and has 42 rooms on ground-floor and 7 rooms on first floor and a hall and there is a terrace on second floor.
10. The defendants-appellants pleaded in their written-statement in para 2 that she (plaintiff) had only the right of maintenance and residence, with the limited privilege under the Act 18 of 1937. In para 5 they have pleaded that 'the residential houses were not divided by the brothers to suit the residence of all and the convenience of all for all purposes and kept joint for residence and also making provisions for the separate maintenance and expenses with the consent of all, including the plaintiff'. They have further pleaded in para 11 that, 'It is denied that the plaintiff can get the houses partitioned or have separate share or possession at all. At least she cannot get it except by recourse to sections 22 and 23 of the new Succession Act of 1956.
11. The plaintiff in her evidence has deposed that she, her husband and defendants 1 to 4 resided together when her husband was alive. She further stated that even after the death of her husband, all of them resided together. She further stated that 'all of us used to reside in the bungalow situated at Paratwada'. She also stated that 'the houses or other properties were not partitioned by that document. My husband owned 1000 acres land when he died. He owned one bungalow at Paratwada and one bungalow at Chandkapur. There were all the utensils and ornaments and pearls as given in the Schedule with the plaint in our house.' The defendant Manohar stated in his deposition that 'after partition we had given a room in the Paratwada bungalow to Menkabai (plaintiff) to reside and we brothers were jointly residing in the remaining bungalow.
12. The pleading and the evidence borne on record are sufficient and undisputed according to us, to arrive at a conclusion that the house properties described in Schedule C of the plaint, are a dwelling houses, as contemplated under section 23 of the Act of 1956. As such, the bar as imposed by the provisions of section 23, has an application to the properties described in Schedule C. After examination of the material, as discussed above, we are unable to agree with the learned Single Judge that there is no pleading or plea raised by the defendants in their written statement to attract section 23 of the Act of 1956. On the contrary, in our opinion, the plaintiff has not brought anything on record to suggest that the properties described in Schedule C are not the dwelling houses used for the residential purpose of the members of the joint family, and she is entitled to partition and separate possession. According to us, provisions of section 23 are applicable to the properties described in Schedule C.
13. Mr. Kaptan, made a submission before us that the view taken in the case of Upendra Nath (cited supra) by the Division Bench of Calcutta High Court is not based on correct interpretation of the relevant provisions. We have perused the decision. The Division Bench, after referring to the various provisions laid down under section 3(3) of the Act, 1937, and in section 3(f). Sections 4 and 23 of the Act of 1956 observed :---
'This section in its terms mentions 'female heirs specified in Class I of the Schedule ' and deals with 'the right of such female heir'. It does not provide for curtailment of any right that may have been acquired by her as an heir under any other law, to writ Act XVIII of 1937. In respect of such female heirs who have inherited by dint of Act XVIII of 1937 therefore, section 23 of Act 30 of 1956 does not make any provision affecting right to claim partition. That being so, in our view, section 4 of Act 30 of 1956 has not overridden the right that the plaintiff acquired by section 3(3) of Act XVIII of 1937 in respect of the dwelling houses she inherited from her husband under section 3(1) of that Act.
In this view, we are further confirmed because of the particular language used in the definition of 'heir' in section 3(f) of Act 30 of 1956 which I have already quoted above. The use of the words 'Under this Act' in that definition clearly indicates to our mind that 'hair' in section 23 must be understood to be these heirs who succeed by intestate death after the commencement of Act 30 of 1956. We may also mention that only other section in Act 30 of 1956 making provision for property possessed by a female Hindu is section 14. That section envisages property 'acquired before or after the commencement of this Act'. The right acquired by inheritance under Act XVIII of 1937 is thus clearly visualised by Act 30 of 1956 in section 14, yet in section 23 only 'female heirs specified in Class I of the Schedule' are mentioned and in the definition in section 3(f) 'heir' means a person entitled to succeed 'under this Act' only. We have, therefore, reached the conclusion that by combined effect of the definition in section 3(f) and the terms of section 23, the restriction imposed by section 23 of Act 30 of 1956 has no application to the female heir who has inherited under Act XVIII of 1937.'
14. Mr. Kaptan made a submission that right accrued in favour of a Hindu widow under the Act of 1937 has not been abrogated by the Act of 1956. According to Mr. Kaptan, enforceability of the right so accrued has merely been regulated by the Act of 1956. Mr. Kaptan made a submission that sub-section (3) of section 3 of the Act of 1937 provides for an absolute right for a Hindu Widow to claim partition-even of a dwelling house. Such right, it is submitted, is inconsistent with the provisions of section 23 of the Act of 1956. According to section 23, the right of any such female heir to claim partition of a dwelling house shall not arise until male heirs choose to divide their respective shares therein. Mr. Kaptan then inviting our attention to the provisions laid down in section 4(1)(b) of the Act of 1956 made a submission that right devolved on a widow to claim partition under the Act of 1937 cease to operate on commencement of the Act of 1956. In view of this, Mr. Kaptan made a submission that the plaintiff who filed suit on 20-8-1959 is prohibited from enforcing her right to claim partition for her separate share and possession in the dwelling house. Mr. Kaptan cited various rulings in support of his contentions, which we propose to deal at latter stage.
15. Mr. Chandurkar, the learned Counsel appearing for the respondent-plaintiff, made a submission that Mukundrao died in 1951. The succession in favour of the plaintiff opened on the death of Mukundrao which is earlier to coming into force of the Act of 1956. According to Mr. Chandurkar, the succession does not remain in abeyance. Moreover, 1/5th share of the plaintiff was already settled in a partition of 1954. As such, it cannot be said that the share of the plaintiff was undetermined. The same was no more influctuation.
16. Mr. Chandurkar further made a submission that section 23 of the Act of 1956 does not affect the right devolved on Hindu widow earlier to 1956. According to Mr. Chandurkar, restriction imposed by section 23 relates to the heir specified in Class I of the Schedule. It is submitted that section 23 does not deal with the right which has been devolved on the Hindu widow under sub-section (3) of section 3 of the Act of 1937. As such according to Mr. Chandurkar, sub-section (3) of section 3 of the Act of 1937 is neither conflicting nor inconsistent with the provisions laid down under section 23 of the Act of 1956. In view of this, Mr. Chandurkar made a submission that the overriding effect given under section 4(1)(b) of the Act of 1956 does not operate in the case of the plaintiff. Mr. Chandurkar heavily placed reliance on the decision in the case of Upendra Nath (cited supra).
17. We feel it relevant to refer the object and scheme of both the Acts. Earlier no right to property was provided for a Hindu woman. The Act of 1937 has been enacted to make a change in the personal law and to provide a better right to property for a Hindu woman. This Act came into force with effect from 14th April, 1937. Section 3 shall apply where a Hindu dies intestate, notwithstanding any rule of Hindu Law or custom to the contrary. Sub-section (2) of section 3 provides that when a Hindu dies having an interest in the joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub-section (3) of section 3 says that the interest developing on a Hindu widow shall be the limited interest styled as a Hindu Woman's estate. However, this sub-section confers the right on the Hindu widow for claiming partition similar to that of a male owner.
18. The Parliament with a view to amend and codify the law relating to intestate succession amongst Hindus, has enacted the Hindu Succession Act of 1956. The Act is a complete Code in itself for the subject provided therein. This Act has substantially improved the right of Hindu Woman. The right to property of the woman was limited as provided under the earlier Act of 1937. However, this Act under section 14 has granted absolute right to female members to the property acquired by them either before or after the commencement of the Act of 1956. Thus, the female heirs are brought at par with male heirs. By section 3(f), this Act of 1956 has defined 'heir' means any person, male or female, who is entitled to succeed to the property of an intestate under this Act. Section 4(1)(b) provides the overriding effect of this Act. It lays down that any other law in force immediately before the commencement of this Act shall cease to apply to Hindu in so far it is inconsistent with any of the provisions contained in this Act. The Legislature has made their intention explicit by nullifying the effect of previous Statute which contains provisions to the contrary. As such, those incidents of the previous statutes which have been applied to Hindus and do not conflict with the provisions of the Act of 1956 are preserved.
19. It appears-visualising the consequences of a right devolved on Hindu widow under sub-section (3) of section 3 of the Act of 1937 to claim partition, section 23 of the Act of 1956 has been enacted. This section lays down special provisions relating to dwelling house. The intention as discernible there from is to withdraw the opinion of a female heir to disintegrate the dwelling house by enforcing right to partition.
20. In Lakshmi Perumallu v. Krishnavenamma, : [1965]1SCR26 and Satrughan Isser v. Sabujpari and others, : [1967]1SCR7 , it is held that the interest devolved in Hindu widow is neither by inheritance or survivorship, but the same is by statutory substitution. It is observed:
'A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenery. She is thereby introduced into the coparcenary and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener : though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property. The interest acquired by her under section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, as a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property.'
In Paruchuri Suryananrayana v. Paruchuri Sugunavathi, : AIR1961AP393 it is held that the right to which a widow is entitled under section 3(2) should be determined as on the date of her demand for partition, because until a partition is demanded, it is not possible to predicate the share to which she would be entitled under section 3. The interest which she takes on her husband's death under section 3(2) would be the same to which the husband was entitled on his death.
Mr. Kaptan, placing reliance on these authorities contended that there was no dissolution of coparcenary in 1951 on death of Mukundrao and plaintiff enjoyed community interest and joint possession of the dwelling house described in Schedule C and she demanded partition in 1961. Extent of right, therefore, would be considered on that date of demand. According to us, the submission is well founded. Interest devolved on a Hindu widow, since by statutory substitution, the right flowing therefrom is regulated by the statutory provisions as in vogue when she asserts the same by way of demand of partition.
21. In Punwasi v. Smt. Sukha Devi, : AIR1986All139 it is held :---
'The right does not arise until the male heirs choose to divide their respective shares in the dwelling house. The accrual of the right to seek partition has to precede the filling of the suit. The cause of action is founded upon the right to seek the relief. The cause of action is non-existent until the right has arisen. Section 23 does not mean that a right to demand partition of a dwelling house does not exist it would only mean that such a right will not be exercisable so long as the male heirs do not chose to exercise right of partition.'
Similarly, in Hari Singh v. Sireh kanwar and others, it is held that sub-section (3) of section 3 the Act of 1937 is inconsistent with section 23 of the Act of 1956.
22. In Vemavarapur Mallikarjuna Rao v. Chaturvedula Siva Sankara Prasad and others A.I.R. 1981 A.P. 64, it was held that the claim for partition under section 3(3) of the Act 1937 is barred by section 23 of the Act of 1956. In this decision, the Andhra Pradesh High Court also considered the rulings laid down in Upendra Nath's case (cited supra). The learned Judge dissented from the rulings and it is observed that the Act supersedes all prior law and the law of succession as laid down in the Act alone shall govern intestate succession among Hindus. It is also held in this case that the right conferred on a Hindu widow under section 3(3) of the Act of 1937 to seek partition of a dwelling house is inconsistent with the provisions of section 23 of the Act and so stands nullified.
23. Mr. Kaptan, relying on the ratio laid down in rulings referred to above, further submitted that right devolved on the plaintiff by section 3(3) of the Act of 1937 to claim partition does subsist even after commencement of the Act of 1956. However, such right is placed under suspension after 17-6-1956. i.e. the date of commencement till the event as envisaged by section 33. We find ourselves in complete agreement with the submission.
24. Section 23 refers to female heir in Class I of Schedule. This class includes a widow of a Hindu intestate. She is identifiable by the said class of heir. We are, therefore, unable to accept the submissions of Mr. Chandurkar that section 23 does not curtail the right or contemplate the right acquired by a Hindu widow under the Act of 1937.
The special provisions relating to the dwelling house as laid down in section 23 of the Act of 1956 has been enacted, according to us, with an intention to control the right of female heirs including of a Hindu widow who required the same through section 3(3) of the Act of 1937.
25. According to us, section 3(3) of the Act of 1937 granting absolute power to Hindu widow to claim partition of a dwelling house is inconsistent with the provisions of section 23 of the Act of 1956. Such right by virtue of the provisions of section 4(1)(b) cannot be put in execution after the commencement of the Act of 1956. We are unable to hold that section 23 affects the right of a Hindu widow which was accrued to her only after the commencement of the Act of 1956. It cannot be construed that the term heir under section 3(f) is referable and confined to only those under this Act of 1956 and does not take within its sweep Hindu widow referred to in the Act of 1947.
26. Section 14, as observed has improved the rights of a Hindu woman which was acquired before or after the commencement of the Act of 1956. Section 23 operates, notwithstanding anything contained in the Act of 1956. Section 3 thus prevails over section 14 which has improved the rights acquired even before the commencement of the Act of 1956. Section 23 though does not have similar phraseology like in section 14, its applicability cannot be confined to the rights devolved only after the commencement of the Act of 1956. Such construction would impair the legislative intention which is explicit. Further sub-section (2) of section 4 made an unequivocal declaration that the Act of 1956 shall not effect right and matters as regards to tenancy, fragmentation and ceiling. This has made crystally clear that the Legislature did not intend to save those right devolved by section 3(3) of the Act of 1937.
27. We, with respect, find ourselves difficult to record out conourrance with the view expressed by the Division Bench of Calcutta High Court in the case of Upendra Nath (cited supra). The plaintiff, we hold, is not entitled to claim partition of houses described in Schedule 'C' in view of section 23 of the Act of 1956.
28. Mr. Chandurkar lastly tried to make a submission that taking into account the words engaged as 'dwelling house' in section 23, indicate only one such house. Mr. Chandurkar, therefore, submitted that the Schedule C refers two bungalows and as such the bar of section 23 cannot be applied to both. It has an application only to one and as such for another bungalow the plaintiff is entitled to claim partition. We are unable to agree with this submission. As discussed above, the plaintiff has not ruled out a case that only one or either of the bungalows has been used as a dwelling house and other has been put to non-residential use.
29. In the result, in the suit filed in 1959. i.e. after the commencement of the Act of 1956, the plaintiff is not entitled to claim partition of a house property described in Schedule C appended with the plaint. The appeal succeed. The judgment and order of the learned Single Judge to the extent allowing the claim of the plaintiff to partition of a suit property described in Schedule C is set aside. However, no order as to costs.