Judgment:
S.K. Phaujdar, J.
1. This second appeal is at the instance of one of the defendants in a suit for partition. The concerned suit was brought by Ramshree Devi, widow of Devi Prasad and the suit was registered as Suit No. 34 of 1977 and was heard by the Second Additional Civil Judge, AHgarh. The undisputed facts indicate that the suit-property originally belonged to Badri Prasad. After his death his son Devi Prasad and grand-son Ramesh got the property in equal shares as surviving co-sharers of a coparcenary property.
2. It was case of the plaintiff that she was a widow of Devi Prasad, while Ramesh was the son through a pre-deceased wife of Devi Prasad. It was stated that due to dispute between, the father and the son regarding management of the suit-property they had agreed in writing for separate possession of different parts of the property. It was stated that there was no partition by rretes and bounds and only separate management of the property was agreed upon. Devi Prasad executed a Will in favour of Ramshree and bequeathed his share in the suit property to her. He died in 1975 and Ramshree on the basis of the Will became the owner of his portion of the suit-property and was in occupation thereof in that capacity. Ramshree died during the pendency of the suit and her two daughters through Devi Prasad came on record in her place. Ramshree and her step-son, Ramesh, were not pulling on well with each other and, accordingly, a partition was sought for. In addition to Ramesh and his sister Rajeshwari there were other defendants who were tenants in the suit property. Ramesh was realising rent for more than share and accordingly a prayer was made to ask Ramesh to render account.
3. Ramesh Chandra contested the suit and accepted that the property in question was his paternal property, Devi Prasad being his father, Badri Prasad the grand-father and the plaintiff, Ramshree, the stop-mother. It was stated that the 1st wife of Devi Prasad, namely, Ganga Devi, had two children, Ramesh Chandra and Rajeshwari (present appellant). Devi Prasad married Ramshree only after the death of Ganga Devi and through Ramshree had two children, both daughters, who are the present substituted plaintiff-respondents. It was stated that on the death of Badri Prasad his son Devi Prasad and grand-son Ramesh Chandra got the family property on survivorship. It was therefore the ancestral property of Devi Prasad and Ramesh Chandra and an arrangement Was agreed upon between Devi Prasad and Ramesh Chandra to facilitate realisation of rent from the tenants, but there was no dispute between the father and the son nor did they ever live separately. There was no partition between them. It was stated that Devi Prasad had never executed a Will in favour of Ramshree. It was stated further that the so-called Will was agot-up one. The right of Ramshree and her two daughters on the suit property to the extent of share was denied. It was stated that Ramshree had only 1 /10 share in the suit property. It was further stated that Devi Prasad was ailing and had lost physical ability and mental balance and had no testamentary capacity to execute a Will. He was taken away by Ramshree on the pretext of treatment and his signature was obtained with the connivance of the scribe of the Will. In an alternative defence it was stated that even if the Will be acted upon, and it is accepted that Ramshree got the share of Devi Prasad, equalling share in the suit property, on her death her share would be equally inherited by Rarriesh Chandra, Rajeshwari and the two substituted plaintiffs. It was stated that the substituted plaintiffs, being female heirs to Devi Prasad, could not have claimed partition of the residential house under Section 23 of the Hindu Marriage Act.
4. Amongst other, one of the issues before the Trial Court was on the question of validity of the Will. The Trial Court accepted the Will as a genuine one being the last Will and testament of Devi Prasad and acted upon it. However, he found that the two substituted plaintiffs had l/8th share in the suit property and accordingly gave decree dated 21.11.1985. An.appeal was preferred by these two substituted plaintiffs and a cross-objection was preferred by the present appellant, Rajeshwari Devi. Civil Appeal No. 112 of 1986 and Cross-objection 54 of 1992 were heard together by the IXth Addl. District Judge, Aligarh, and the appeal was allowed, the cross-objection was dismissed and it was held that the two substituted plaintiffs, present respondents, had 1/4th share each in the suit-prop- erty. The Appellate Court also acted upon the Will.
5. After the death of Ramshree, her two daughters, on being substituted in her place, proposed to make an amendment in the plaint to the effect that in 1975 Devi Prasad had executed a Will bequathing his share to these two daughters. This prayer was opposed to by the contesting defendants and the prayer for ammendment was disallowed. The subsequent Will was never proved and the case of the plaintiffs was not based on it. In the present appeal the learned Counsel for the appellant submitted that although the amendment application was disallowed, there was an admission on the part of the two daughters of Ramshree about existence of another Will subsequent to that on which the suit was based. It was argued that the plaintiffs could not run away from this admission and on their own admission the Will proved in the case was not the last Will and testament of Devi Prasad and, accordingly, that Will could not have been acted upon. This argument, in my view, may not be accepted as the present appellant and other contesting defendants had opposed the amendment sought to be made by the substituted plaintiffs. The argument may not also be accepted for the reason that the amendment did not come on record as a part of the pleading and the Will spoken of in the proposed amendment was never brought on record and proved to be a valid testament. Unless a subsequent valid Will is brought on record, an earlier Will may not be deemed cancelled on that ground. The argument of the appellant that the statement in the amendment application amounted to an admission may not be accepted as the present appellant and other answering defendants cannot be allowed to blow hot and cold at the same time. They cannot be permitted on the one hand to oppose the amendment and, on the other, to rely on the averments as an admission of the plaintiffs.
6. It was argued that the Will dated 14.8.1973 on the basis of which Ramshree had laid her claim could not have been acted upon as natural heirs were excluded. This aspect is a question of fact and has been considered by the Courts below. In this second appeal this question of fact may not be reopened. Even if it is opened for reconsideration it can be found that the other heirs of Devi Prasad were Ramesh Chandra and Rajeshwari through his first wife, Ganga, and the two substituted plaintiffs daughters through Ramshree. The pleadings made it clear that Devi Prasad married Ramshree only after the death of Ganga and the plaintiff indicated that the father and the son had separated in the management of their property, atleast on the question of realisation of rent as admitted in the written statement. Rajeshwari (the present appellant) and Laxmi and Nirmala, plaintiff- respondents, were all married. Under these circumstances, the Will of Devi Prasad may not be disbelieved simply for the reason that only the surviving widow had been given the full share of Devi Prasad in his Will.
7. A point was raised on behalf of the appellant that on the death of Ramshree not only her natural daughters but also her step-children would succeed to her in her property. In this connection it was further stated that on the death of Ramshree the property would devolve on the heirs of her husband under Section 15 of the Hindu Succession Act. Section 15 speaks of general rules of succession in the case of a female Hindu. If a female Hindu leaves any sons and daughters and husband they would take the property to the exclusion of other heirs. A son or a daughter under this section should mean only the son or daughter born through the female Hindu and not her step-son or step-daughter. Thus, the children of Ganga cannot be deemed to be the children of Ramshree in the matter of succession to Ramshree. An alternative argument in this regard was based on Clause 2(b) of Section 15. It was stated that any property inherited by a female Hindu from her husband shall devolve in the absence of any son or daughter of the deceased, not upon the other heirs referred to in Sub-section (1) but upon the heirs of husband. In the present case, the property was not inherited by Ramshree from Devi Prasad under the provisions of Hindu Succession Act. She got it by means of a Will. Moreover, it was not a case that Ramshree left behind no son or daughter. Admittedly, she had two daughters, the present substituted plaintiff-respondents. Section 15(2)(b) could not, therefore, be applicable to determine the succession to Ramshree.
8. The last point on which the appeal was pressed by the learned Counsel for the appellant was that even if the plaintiffs could claim a share on the basis of the Will of Devi Prasad and on the basis of succession to Ramshree, they could not have claimed partition of the house-property in view of the provisions of Section 23 of the Hindu Succession Act. This Section 23 makes special provisions in respect of dwelling houses. Under this section, where a Hindu intestate has left surviving him or her both male and female heirs specified in class of the schedule and his or her property includes a dwelling house wholly occupied by members of his/her family, then, notwithstanding anything contained in the Hindu Succession Act, the right of any such female heirs to claim partition of the dwelling house shall not arise until the male heirs chose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein. The learned Counsel appears to have missed the key word 'intestate' in Section 23. This section would apply only when succession opens on the death of a Hindu dying intestate. Here is a case where Ramshree claimed and was allowed share by the two Courts below on the basis of a testament, the Will of Devi Prasad. Accordingly, Ramshree , did not get the property of Devi Prasad as a female heir specified in class I of the schedule and the bar to claim partition would not be applicable.
On the above considerations, I feel that there is no substantial question of law on which the appeal should be admitted. The appeal accordingly stands dismissed. The judgment and decree of the first Appellate Court stands confirmed. There shall be no orders as to costs.