Anoop Mirakhur and Others vs Mohan Lal Dhar and Another

S.K. Gupta, J.—This Civil Ist Misc. Appeal is preferred against the judgement and order dated 12.03.2001 propounded by the learned

District Judge, Jammu in File No. 8 Civil Original Suit Anoop Mirakhur and Ors. v. Mohan Lal Dhar and Anr. whereby the appellants/plaintiffs

application for ad interim injunction in a suit for partition was rejected.

The short controversy that arises between the parties revolves around a narrow compass. A dwelling house explicitly delineated in the title of the

plaint and further described in the rough sketch map annexed with the plaint stood, in the ownership of one Jia Lal Dhar, who died in the year

1979 leaving behind his two sons namely, Mohan Lal Dhar and Jawahar Lal Dhar and one daughter Suman Mirakhur. The daughter Suman

Mirakhur also died in the year 1997. She left behind her two sons and daughters plaintiffs No. 1 to 4 and husband plaintiff No. 5 as legal heirs. It is

also stated that the mother of plaintiffs No. 1 to 4 and wife plaintiff No. 5 became entitled to l/3rd share in the dwelling house alongwith defendants

No. 1 & 2, after the death of Jia Lal Dhar. It is further stated that the suit property is occupied by the Border Security Force and the rent thereof

has not been paid to the plaintiffs by the defendants. That initially the mother of the plaintiffs No. 1 to 4 and wife of plaintiff No. 5 many a times

asked the defendants to partition the property in claiming her l/3rd share in the dwelling house, but the defendants avoided to do so. It is further

stated that the house remained vacant after the death of Jia Lal Dhar. The Parties however, migrated in the year 1990 on account of un-favourable

conditions in the valley and the same remained unoccupied since then. Refusal of the defendants to accede to the request of the plaintiffs for

partition of the property and to give the share to the extent of l/3rd to the plaintiffs, led the plaintiffs to file the suit for partition by metes and bounds

of the residential house situate at Bagh-i-Sunder, Chattabal, Srinagar, with a further relief of permanent prohibitory injunction.

Simultaneously, with the launching of the suit for partition, an application supported by an affidavit also came to be initiated in invoking the

provisions of Order 39 Rules 1 & 2 and Section 151 CPC for grant of ad-interim injuction. Learned District Judge, after inviting objections from

the other side and hearing the parties found that the plaintiffs/Appellants having not succeeded to carve out a prima facie case and the balance of

convenience also does not lease in their favour, rejected the application vide order dated 12.03.2001, the correctness of which has been impugned

in this appeal.

I have heard the learned counsel appearing for the respective parties and also pursued the judgement/order in appeal in context with the material

on record meticulously.

It is not disputed that the dwelling house, the suit property belong to Jia Lal Dhar, who died leaving behind his two sons and a daughter namely,

Suman Mirakhur who also died in the year 1997 and left behind the plaintiffs No. 1 to 4 as her sons and daughters and plaintiff No. 5 her husband

as legal heirs. The plaintiffs have filed a suit for partition by metes and bounds claiming to be entitled to the extent of 1/3 rd share to which the

deceased Suman Mirakhur daughter of Jia Lal Dhar was entitled to being her legal heirs. The parties in litigation are undoubtedly Hindu by religion

and are, therefore, governed by the J&K Hindu Succession Act 1956. Section 20 of the Hindu Succession Act (hereinafter referred to as the Act)

in its plain language clearly contemplates that where a Hindu died intestate leaving behind both male and female heirs falling in class I heirs of the

schedule as his heirs, such female heir cannot claim partition of the property including the dwelling house. Until the male heirs falling in class I

choose to divide their respective shares therein, but the female heir shall be entitled to a right of residence therein. Right of residence in the dwelling

house of the female heir is however, not disputed provided such female heir is unmarried or has been deserted from her husband or is widow.

It appears that the Legislatures in its wisdom has chosenly employed the word ""dwelling house"". It has been done so with a purpose which is to

say that on the death of the intestate, a limited status quo should prevail as existing prior to his or her death. His or her abode, shared by him or

her, with members of his or her family, identifiable from Class I heirs of the schedule, should continue to be in enjoyment thereof, not partible at the

instance of the female heirs till the male heirs choose to effect partition thereof. The aforesaid provision silences the daughter in making partition,

but not their ownership denied. The expression ""dwelling house"" though not defined in the Act, the context would indicate that it is referable to the

dwelling house in which the intestate Hindu was living at the time of his death. This being the legal position explicit from the J&K Hindu Succession

Act. The appellants/plaintiffs could not show that Smt. Suman Mirakhur during her lifetime and after her death the plaintiffs/ appellants claiming

under her claimed partition of the dwelling house by metes and bounds. Such being the case, the view expressed by the Learned District Judge,

Jammu that the plaintiffs could not succeed to make out a prima facie case nor the balance of conveniences lies in their favour so as to sustain their

position to petition for ad-interim relief, cannot be faulted. I do not find any infirmity, legal or factual in the order impugned, warranting interference

in this appeal. What has been said and discussed above in my opinion, there is no merit in this appeal and is accordingly dismissed.

Any observation made hereinabove however, shall remain confined to the disposal of this appeal, having no bearing on the merit of this case.

The record shall be remitted back forthwith to the trial court, where the parties through their counsel are directed to cause their appearance on

14.6.2003.