LAW FOR ALL

Sec.23 before and after amendment of Hindu Succession Act 2005 - Self acquired property of deceased father - daughter is entitled for partition and also for injunction - change in law makes no difference but helps the case of plaintiff for partition by metes and bounds = Is the suit not hit by Section 23 of the Hindu Succession Act when the plaintiff being the female member is prohibited from claiming partition of loan dwelling house being the only property for his family?= 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 coparcenary 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. 27. 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 dependent 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 to 1/5 th 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. 32. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, whereupon reliance has been placed by Mr.Viswanathan, could have been applied provided it takes away somebody's vested right. Restrictive right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act. 48. As indicated hereinbefore, the institution of a suit is not barred. What is barred is actual partition by metes and bounds." Now that bar also removed ; Does the Civil Court have any jurisdiction to grant the relief of permanent injunction as between the co-owners restraining each other from interfering with the others' alleged possession when the plaintiff has filed suit on the case of joint possession?= This is really a ticklish problem. Even in the undivided property after putting some structure, if one co-owner is in occupation of a portion exclusively, the privacy and the belongings of such co-sharer should be protected. No doubt, the principle "all for each and each for all" does not mean that if one co-owner is occupying one room and another co-owner is occupying another room in a joint property and all of a sudden one co-owner could barge into another co-owner's room and that would lead to precarious situation. It is one thing to say that one co-owner cannot get injunction against another co-owner from enjoying the property; but yet it is another proposition to say that one co-owner pending settlement of disputes before the court, should not dispossess the other co-owner. Certainly, one co-owner cannot physically prevent the other co-owner the right of ingress and egress over the suit property.