The Chhattisgarh High Court dismissed the second appeal in a partition suit. The court held that the substantial question of law was not attracted and the appellant was not entitled to a residence right in the dwelling house as per Section 23 of the Hindu Succession Act, 1956.
Second appeal dismissed in limine without notice to the other side.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.303 of 2009
---- Appellant /Defendant No.4
Versus
---Respondents
| For Appellant | :Shri Shobhit Mishra, Advocate |
|---|---|
| For respondent No.4 | : Shri Atanu Ghosh, Advocate |
| For respondent No.5/State | : Shri Chandresh Shrivastava, Dy. Advocate General |
Hon’ble Shri Justice Sanjay K. Agrawal
Order on Board
06.8.2020.
through Video Conferencing.
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5 . The suit property was earlier recorded in the name of Balduram. Balduram had three sons i.e. plaintiff and defendants 1& 2 and two daughters i.e. defendant No.3 and the appellant/defendant No.4. Plaintiff Mansharam filed suit on the pleading that the suit property was
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ancestral property of his father in which he has ¼th share as shown in Schedule A and also 1/3rd share over a dwelling house as shown in Schedule B and decree for partition may be granted in his favour. The plea of the plaintiff was opposed by defendant No.4/appellant - Lagni Bai stating that the suit property is the self acquired property of their father, therefore, she is entitled for 1/5th share in the suit property shown in Schedule A and also entitled for share in the dwelling house. On appreciating the oral and documentary evidence, the trial Court held that the suit property held by Balduram was the ancestral property in his hands and on notional partition among Balduram and his sons, each son i.e. the plaintiff and defendants 1 & 2 will get ¼th share in the suit property except dwelling house and thereafter out of ¼th share of Balduram, the plaintiff and defendants 1 to 4 each will get 1/5th share in the property as mentioned in Schedule A and in the property i.e. dwelling house as mentioned in Schedule B, only the plaintiff and defendants 1 & 2 will get equal share, and defendants 4 & 5 will not get any share in the dwelling house, thereby decreed the suit, which has been maintained by the first appellate Court on an appeal preferred by the appellant/defendant No.4.
6 . The argument advanced on behalf of the appellant that the suit property was the self acquired property of Balduram is not established. The trial Court taking into consideration evidence of Mansharam (PW-
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1), Atal Singh (PW-2), Bela Bai (DW-3) and other evidence on record has clearly come to a conclusion that the property was ancestral property of Balduram in his hands and thereafter decreed the suit property firstly making notional partition among Balduram and his three sons namely Mansharam, Ajitram and Indalram and each of them will get ¼th share and thereafter ¼th share of Balduram will further be divided among his five children and each will get 1/5 share. The appellant/defendant No.4 will get only 1/5 share out of ¼th share of her father, is a finding of fact recorded by the trial Court by rightly appreciating the evidence available on record which has been rightly affirmed by the first appellate Court.
7 . Next submission of learned counsel for the appellant is that both the Courts below have committed illegality in not giving right of residence to her in the dwelling house as per provisions of Section 23 of the Hindu Succession Act, 1956 which was amended from 09.9.2005. Proviso to Section 23 of the said Act clearly provide that right of residence female heir would be entitled in the dwelling-house, only if she is unmarried or has been deserted by or has separated from her husband or is a widow. Learned counsel for the appellant/defendant No.4 has failed to demonstrate that the appellant fulfills condition as provided under proviso to Section 23 of the said Act. As such both the Courts below have rightly decreed the suit of the
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plaintiff holding that defendant No.4/appellant is entitled for only 1/5 share out of ¼th share in the property of her father in notional partition. The said finding is a finding of fact based on evidence available on record which is neither perverse nor contrary to the record and the appeal does not involve any substantial question of law for determination.
Sd/-
(Sanjay K. Agrawal) JUDGE
Bini
2 issues framed by the court
Whether substantial question of law arises regarding the classification of the suit property as ancestral.
Whether the appellant is entitled to a residence right in the dwelling house under Section 23 of the Hindu Succession Act, 1956.
1 provisions across 1 enactments
Lagni Bai
Mansharam
Ajitram
Indalram
Belabai
State of Chhattisgarh
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
