BLSHAL ALIAS GUDAWALA Vs. GOURLSHANKAR
HIGH COURT OF MADHYA PRADESH
BLSHAL ALIAS GUDAWALA
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(1.) THIS is an appeal by the defendants against the decree of the District Judge, Chhatarpur, dated 6 th April 1967, reversing the decree of the Civil Judge, Class II, Chhatarpur, dated 23rd March 1966.
(2.) THE facts giving rise to this appeal are as follows: THE plaintiff Gouiishanker brought a suit against his sister Mst. Mathura and her husband for possession of a house left by his father Bhairon, alleging that after his death the occupation of the defendants was that of licensees. Bhairon admittedly died after the Hindu Succession Act came into force. THE First Court nonsuited the plaintiff, but the decree has been reversed in appeal.
The main question for consideration in this appeal is: whether a married daughter who is one of the heirs of her father's estate under section 9 of the Hindu Succession Act, 1966, can retain possession of the family dwelling house after his death.
Shri J. S. Verma, learned counsel for the appellants, contends that Mst. Mathura is a co-owner in possession and not a mere licensee and the suit must, therefore, fail. Shri Rameshwar Prasad Verma, learned counsel for the respondent, urges that the suit was based on a licence, and, therefore, any question of title was extraneous; and, alternatively, that under section 23 of the Hindu Succession Act, Mst. Mathura has no right of residence in the family dwelling house.
(3.) THE contention that Mst. Mathura was a licensee must be rejected. Under section 8 of the Hindu Succession Act, a daughter, whether married or unmarried, inherits simultaneously with a son and takes a share equal to that of a son. THErefore, even though Mst. Mathura was in permissive possession of the house during the life time of her father Bhairon, she, immediately upon his death, succeeded to the property as an heir. A fortiori, it must be held that she acquired half share in the house. Mst. Mathura, accordingly, is a co-owner in possession and not a mere licensee.
There is no manner of doubt that the house in dispute is a "dwelling house" within the meaning of section 23 of the Hindu Succession Act. The house was admittedly in the residential use of Bhairon's brother Girdhari, who was blind, and afterwards by Mst. Mathura and her husband Bishal. It was, therefore, wholly occupied by members of Bhairon's famsly. Although Mst. Mathura is a co-owner in possession, nevertheless, she has no right of residence in the family dwelling house. The right of a female heir as regards residence in the family dwelling house is restricted by proviso to section 23 of the Hindu Succession Act. Whtre such female heir is a daughter, sne shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow. A married daughter has no right of residence in the family dwelling house because het home is in her husband's place. There is a reason why a married daughter has been deprived of this rght.;
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