Right of female coparcener to claim partition in dwelling house
Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto.Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. We may notice Sub- section (5) of the 2005 Act, which reads as under: "(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December,2004 Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court." Thus, where a partition has not taken place, the said provision shall apply .Reliance has also been placed by Mr. Viswanathan on Eramma v.Verrupanna & ors. [(1966) 2 SCR 626], wherein it was held-
Bombay High Court
Rajaram Dadu Kabnure vs Gunwanti Dhulappa Ketkale & Ors on 23 September, 2011
Bench: G. S. Godbole
