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PETITIONER:

NARASHIMAHA MURTHY

Vs.

RESPONDENT:

SMT. SUSHEELABAI & ORS.

DATE OF JUDGMENT: 17/04/1996

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

KULDIP SINGH (J)

PUNCHHI, M.M.

CITATION:

1996 AIR 1826 1996 SCC (3) 644

JT 1996 (4) 300 1996 SCALE (3)625

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

K.RAMASWAMY,J.

One Narasoji Rao, died intestate leaving behind him the

appellant, the only son and the respondents, three

daughters, after action at the latters' behest for partition

was laid. The courts below granted preliminary decree for

partition in equal shares of the schedule A properties which

include "the dwelling house of Narasoji Rao". The appellant

canvassed its illegality and impartibility of the dwelling

house, by operation of Section 23 of the Hindu Succession

Act 1956, (for short, the `Act') which was met with

dismissal in limine by the High Court in S.A. No.1045/91

dated February 21, 1992. Thus this appeal by special leave.

the decree for partition of dwelling house has its support

from the ratio of Kariyavva v. Hanumantappa mallurappa,[1984

Kar.L. J. 2731].

The only question argued before us is: whether the

dwelling house is partible, when Narasoji Rao left behind

his only son and three daughters? That the house is a

dwelling house is not in dispute. So the need to go into the

meaning of the words "dwelling house" is obviated. There is

a cleavage of judicial opinion among High Courts on their

interpretation of Section 23 of the Act which provides thus:

"23.Special provision respecting

dwelling houses. Where a Hindu

intestate has left surviving him or

her both male and female heirs

specified in Class I of the

Schedule and his or her property

includes a dwelling house wholly

occupied by members of his or her

family, then, notwithstanding

anything contained in this Act, the

right of any such female heir to

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claim partition of the dwelling

house shall not arise until the

made heirs choose to divide their

respective shares therein; but the

female heir shall be entitled to a

right of residence therein.

Provided that where such

female heir is a daughter, she

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."

The object and reasons to enact

S.23 have been stated thus:-

"This clause restricts the

right of a female heir to claim

partition of the family dwelling

house so long as the male heirs do

not choose to effect partition of

the same but expressly recognises

her right to reside in such house."

The Orissa, Karnatakas Bombay and Gujarat High Courts

have adopted literal meaning holding that the dwelling house

is partible whereas the Calcutta, Madras and Allahabad High

Courts have taken contra view. We are called upon to resolve

the conflicting opinions. The purpose of the law is to met

out justice; in other words, to prevent injustice or

miscarriage of justice. In our view, the interpretation

should be consistent with justice, equity and good

conscience. Section 8 of the Act provides general rules of

succession in the case of males, When a male Hindu dies

intestate, the property shall devolve, firstly, upon the

heirs, being the relatives specified in class-I of the

Schedule....... On the death of a Hindu, the succession to

his property is open. In its partitions, S.23 makes a

special provision respecting partibility of the dwelling

house. When a Hindu intestate, whether male or female, has

left surviving him or both male and female heirs specified

in Class-I of the Schedule and his or her property includes

a dwelling house wholly occupied by members of his or her

family, then, notwithstanding anything contained in the Act,

the right of any such female heir to claim partition of the

dwelling house shall not arise until the male heirs choose

to divide their respective shares therein, but the female

Class-I heir, like unmarried or widow or deserted or

separated daughter of the deceased, shall have the right of

residence therein, When the deceased Hindu left behind

him/hers, only one male heir and one or more female heirs,

the question emerges: whether the dwelling house is

partible? By operation of non obstante clause, the dwelling

house gets excluded from the operation of the general law of

succession envisaged in the Act and a special rule of

succession has been engrafted in S.23. The claim for

partition by female heir shall not arise 'until the male

heirs choose to divide their respective shares therein". In

other words, the right of the female heir for partition of

the dwelling house is postponed till the happening of a

contingent event, i.e the decision by the male heirs to

partition the dwelling house in occupation of the family.

The literal construction of the above quotation connotes

the existence of more than one male heir and so long as

their volition to remain in possession and enjoyment of the

dwelling house subsists or they do not decide to partition

it or part with possession, the female Class-I heirs are

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kept at a bay to claim partition except to the right of

residence in the enumerated events.

In Arun Kumar Sanyal v. Jnanendra Nath Sanyal [AIR 1975

Calcutta 232], the intestate Hindu left behind him one male

heir and one female heir. The daughter transferred her share

in the dwelling house to a stranger who laid the suit for

partition. The Calcutta High Court held that S.23 makes it

clear that the legislature does not approve of division of a

dwelling house at the behest of a female heir against the

'will' of the male member. The object is to prevent

fragmentation or disintegration of the family dwelling house

at the instance of the female heir to the hardship and

difficulties to which male heir may be put to. The bar is

removed only on the happening of the contingency, namely,

when the male heir chooses to divide the dwelling house. It

may be that there is one male heir and one female heir and

there may not be any chance of that contingency to happen,

but that will be no ground to say that the Section 23 is

inapplicable. The bar is not a personal bar and it does not

come to an end when the female heir loses her interest in

the dwelling house by transferring the same to another. The

case of a transferee of a female heir is completely

different and cannot be equated with that of the son of a

pre-deceased daughter The above ratio was followed by other

Division Benches of that court in Surya Kumar Das v. Smt.

Maya Dutta [AIR 1982 Calcutta 221] and Smt. Usha Mazumdar

and Ors. v. Smt. Smriti Basu [AIR 1988 Calcutta 115]. In

Mookkammal v. Chitravadivammal [AIR 1980 Madras 243], the

Madras High Court held that S.23 is intended to respect one

of the ancient Hindu tenets which treasured the dwelling

house of the family as an impartible asset between a female

member and male member. Therefore, the dwelling house is not

liable to partition. But if the sole male member chooses to

sell his share in the dwelling house introducing a stranger,

the female heir can file a suit for partition and possession

of her share in the property. In Janabi Ammal v. T.S.A.

Palani hudaliar [AIR 1981 Madras 62], one Swaminatha

Mudiliar died intestate owning extensive properties, leaving

behind the Alaintiff and other three daughters and two sons.

The daughters laid suit for partition of properties

including the dwelling house. Subsequently, one of the sons

died and the sole son was in possession of the dwelling

house. When the question of the applicability of S.23 had

come up for consideration the Division Bench held thus:

"The above section is a special

provision dealing with the

partition of a dwelling house and

the right of the male and female

heirs of the intestate therein.

There can be no doubt that a female

heir specified in Class I of the

Schedule to the Act inherits a

share in dwelling house absolutely.

But, S.23 postulates the right of

such a female heir to claim

partition of the dwelling house

until the male heirs choose to

divide their respective shares

therein. The object behind this

section seems to be to prevent

fragmentation or disintegration of

a family dwelling house at the

instance of a female heir or heirs,

to the prejudice of the male heirs.

This is based on the principles

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embodied in S.44 of the Transfer of

Property Act. The contrary view

will cause gross injustice to the

single male heir and the object of

the section will be nullified. The

hardship to the female heir of

postponement of partition is

relatively less."

In Ponnuswamy v. Meenakshi Ammal and Ors., [1989 (2)

M.L.J. 506], another Division Bench reiterated the same

view. In Purnawari v. Sukhadevi, [AIR 1986 Allahabad 139],

the Court took the same view.

In Vanitaben Bhaisharker Pandya v. Divaliben Premji &

Ors. [1979 (2) G.L.R. 148], the Division Bench held that for

the application of S.23, the whole house must be the

dwelling house wholly occupied by the members of the family.

In that case the house consisted of residential portion in

the occupation of the family and the shop was let out. So,

S.23 was held to be not applicable.

In Hemalata Devi v. Umasankari Moharana, [AIR 1975

Orissa 208], the Division Bench held that if there are more

than one main heirs, there would be the possibility of

anyone of such heirs asking for a partition of the dwelling

house and the female heir in such a case cannot claim her

share. But where there is a single male heir, there is no

possibility of that male heir claiming any partition against

another male heir. Thus where there is a single male heir

and others are female heirs, the female heirs are entitled

to claim partition. Their right to claim partition of the

dwelling house is not excluded by S.23 of the Act. In

Kariyavva's case (supra) only son and daughter were the

class-I heirs of the intestate deceased father. The Bench,

while agreeing with the ratio in Orissa case, held that when

there is only one male heir quite obviously the conditions

envisaged by the special provision cannot be satisfied. The

succession cannot be kept in abeyance as indeed, first, the

intestate Hindu cannot be said to have left surviving him or

her both male and female heirs and, secondly,the contingency

of the male heirs chosing to divide their respective shares

therein,does not adim of being fulfilled Section 23 gets

attracted only where an intestate Hindu leaves surviving

both male and female heirs. The second part deals with a

position which becomes relevant only when the section itself

is attracted. The Court further observed thus:

"Under the Act, a female heir

succeeds to the estate of a Hindu

dying intestate. That succession

cannot be held in abeyance, Under

certain circumstances, the right to

a share vesting in an heir is

rendered an imperfect right in the

sense the remedy of reducing it

inessence by actual physical

partition is postponed till the

happening of another event. The

conditions that make the right

imperfect are referred to in the

first part of S.23. i.e. "that a

Hindu intestate has left both male

and female heirs and his property

includes a dwelling house wholly

occupied by the member of his

family." The non-obstanti clause

operates only upon the existence of

these conditions. The other event

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which renders the right, again, a

perfect right is the event by which

the male heirs choose to divide

their respective shares therein.

This would suggest that Section is

attracted only if the conditions

contemplated in the first part of

the Section comes into existence."

If there is only one male heirs the circumstances

envisaged in the first part of the section do not come into

existence and the section does not come into operation at

all. The provisions of this section cannot be applied to a

case where there is a single male heir without rewriting the

section and reading into it quite a few alterations of

language, structure and syntax. The expressions "heir" and

"male" heirs choose to divide their respective shares" would

then become wholly opposite in meaning. Both the literal

construction and the intendment would suggest that the

postponement of partition is conditional upon there being a

plurality of male heirs and not otherwise. Therefore, the

postponement of the right of female heirs to claim partition

respecting the family dwelling house was only where there

was a plurality of male heirs a situation which, in turn,

renders the satisfaction or the next condition, namely, that

they choose to divide their respective shares therein, a

possibility and a reality. Any other construction would lead

to this that while the section on its plain language,

prescribes a condition which admits of being fulfilled, we

would by construction,introduce into the section a condition

which does not admit of fulfillment at all. In Anant v.

Janaki Bai [AIR 1984 Bombay 319], the Bombay High Court also

took the same view.

In Mulla's Hindu Law (16th Edn.), revised by Justice

S.T. Desai, it is stated thus :

"The right of a female heir

specified in Class I of the

Schedule to demand actual partition

of the family dwelling house is

deferred and kept in abeyance until

the male heirs specified in Class I

decide to partition it, that is to

divide it by metes and bounds or

realise its sale proceeds.

Reference may be made to the

undermentioned decision of the

Allahabad High Court, Purnawasi v.

Smt. Sukha Devi, under agreement

has been expressed with these

views. Question may perhaps arise

whether the Special restriction

enacted in this section on the

right of a female heir to demand

actual partition of the family

dwelling house applies when there

is only one male heir of the

intestate under Class I of the

Schedule. The words 'until the male

heirs choose to divide their

respective shares therein' may

suggest that there must be at least

two such male heirs if the

restriction is to operate. The

object of the special provision is

to prevent female heirs and

particularly a daughter of the

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intestate from creating a situation

in which partition of the family

house may entail a forced sale of

it or otherwise cause hardship to

the son or sons of the intestate

where it may not be possible for

the son or sons to buy off the

share of the female heir who

insists on actual partition of it.

It is submitted that there is

nothing repugnant in the subject or

context to prevent the operation of

the rule laid down in section 1 of

the General Clauses Act to the

effect that the plural shall

include the singular and the

restriction will apply even where

there is only one male heir who

does not choose to divide his

respective share in the dwelling

houses It would seem that the right

of female heir to demand partition

may be deferred and remain in

abeyance under this section till

the lifetime of the male heirs

enumerated in Class I of the

Schedule or the last survivor of

them unless a partition of the

dwelling house is sought by any one

of then before such time. The

restriction will cease to operate

on the death of the last of such

male heirs of the intestate or

where there are only one male heir

and one female heir and the male

heir chooses to sell his moiety in

the dwelling house."

In Raghavachariar's Hindu Law (8th Edn.) revised by

Prof. Venkataraman, it is stated thus:

"The provision that in the case of

a dwelling house left by the

intestate his or her female heirs

can claim partition thereof only if

the male heir choose to divide

their respective shares therein is

a salutary provision designed to

avoid confusion shown into the

family by the female members such

as the daughters and daughter's

daughters whose moorings are

elsewhere on account of their

marriage, seeking to take away

their shares and throw the male

members into the streets. The

disability of female heir to claim

a partition when the male members

are not willing to effect a

partition is an echo of the law

that prevailed prior to this Act

under the Mitakshara under which no

female is entitled to a share on a

partition could claim a partition

except when the male members of the

family effect a partition. The

restriction has been imposed to

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prevent the fragmentation of the

dwelling house at the instance of

female heirs."

When succession of a Hindu intestate is open, his/her

Class-I heirs specified in the Schedule is entitled at a

partition to their respective shares. The succession cannot

be postponed. However, exception has been engrafted by S.23

respecting tradition of preserving family dwelling house to

effectuate family unity and prevent its fragmentation or

disintegration by dividing it by metes and bounds. The

prohibition gets lifted when male heirs have chosen to

partition it. The words specified in Class-I of the Schedule

and S.23, are used in a descriptive sense to economise the

word denoting the legislative animation. 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/her

death; he/she intended that his/her children would continue

to normally occupy and enjoy it. He or she regarded it as

his or her permanent abode. On his or her death, the members

of the family can be said to have continued toÿpreserve the

same to perpetuate his/her memory. Obviously S.23 is an

exception to the general rule of succession and has been

engrafted for that purpose. Where there are only one male

heir and one or more female heirs are left surviving behind

the Hindu intestate, the members of the family would

continue to remain in occupation and in enjoyment of it as

dwelling house. Due to marriage, the daughter would leave

the parental house and get transplanted into matrimonial

home. The proviso to S.23 visualizes certain contingencies

and made provision for right of residence to Class-I female

heirs. In the event of the male member (s) chose(s) to

separate or cease (s) to reside or instead introduce a

stranger into family house, then the female heir gets the

right to a share in the dwelling house as well. The

reverence to preserve the ancestral house in the memory of

the father or mother is not the exclusive preserve of the

son alone. Daughter too would be anxious and more

reverential to preserve the dwelling house to perpetuate the

parental memory.

Section 23 thus limits the right of the Class-I female

heirs of a Hindu who died intestate while both male and

female heirs are entitled to a share in the property left by

the Hindu owner including the dwelling house. The marginal

note itself indicates that Section 23 is a special

provision: in other words, it is an exception to the general

partition. So long as the male heir(s) chose not to

partition the dwelling house, the female class-I heir(s) has

been denied the right to claim its partition subject to a

further exception, namely, the right to residence therein by

the female class-I heir(s) under specified circumstances. In

other words, the male heir (s) becomes entitled to

perpetuate the memory of the deceased-Hindu who died while

remaining to live in the dwelling house during his or her

life. Thereby the dwelling house remains indivisible. The

male heir(s) thereby evinces animus possedendi. But the

moment the sale heir(s) chooses to let out the dwelling

house to a stranger/third party, as a tenant or a licensee,

he or they exhibit (s) animus dessidendi and the dwelling

house thereby becomes partible. Here the conduct of the male

heir(s) is the cause and the entitlement of the female

Class-I heir(s) is the effect and the latter's claim for

partition gets ripened into right as she/they is/are to sue

for partition of the dwelling house, whether or not the

proviso comes into play. Here the female heir(s) becomes

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entitled to not only mere partition of the dwelling house

but also her right to residence after partition.

It is, therefore, clear that though the right to

succession devolves upon the female heir under S.8, being

Class-I heir to the Hindu intestate, in respect of the

dwelling house, her right to seek partition has been

interdicted and deferred only so long as the male heir(s)

decide to remain occupied therein as undivided or continue

to have it as a dwelling house. Though the words 'the male

heirs choose to divide their respective shares', suggest

that at least two such male heirs must exist and decide not

to partition the dwelling house in which event the right of

the female heir is postponed and kept in abeyance until the

male heir or heirs of the Hindu intestate decide to

partition it, it does not necessarily lead to the only

inevitable conclusion that the operation of S.23 must stand

excluded in the case of the Hindu intestate leaving behind

him/her surviving only son and daughter. Take the present

policy of family. planning to have only two children and

invariably preferring to have a son and daughter. More than

one son may not exist. The restriction is contingent and

conditional and will cease to operate on the death of the

sole male heir or the last of such male heirs of the

intestate or if he or they choose (s) to partition and

sell(s) his/their shares to a stranger or to let out to

others. Take a case of a Hindu male or female owning a flat

in metropolis or major cities like Bombay etc. with two room

tenengent left behind by a Hindu intestate. It may not be

feasible to be partitioned for convenient use and occupation

by both son and daughter and to be sold out. In that event

the son and his family will be thrown on streets and the

daughter would coolly walk away with her share to her

matrimonial hone causing great injustice to the son and

rendering them homeless/shelterless. With passage of time,

the female members having lost the moorings in the parental

family after marriage may choose to seek partition though

not voluntarily but by inescapable compulsions and

constrained to seek partition and allotment of her share in

the dwelling house of intestate father or mother. But the

son with his share of money may be Incapable to purchase a

dwelling house for his family and the decree for partition

would make them shelterless. Take yet another instance,

where two-room tenement flat was left by deceased father or

mother apart from other properties. There is no love lost

between brother and sister. The latter demands her pound of

flesh at an unacceptable price and the male heir would be

unable to buy off her share forcing the brother to sell the

dwelling flat or its lease-hold right or interest to see

that the brother and his family are thrown into the streets

to satisfy her ego. If the right to partition is acceded to,

the son will be left high and dry causing greatest

humiliation and justice.

Take an instance of a mansion. The entire mansion may

not be in use as a dwelling unit by the male heirs though

the father kept it. as a dwelling unit. To the extent

necessary for the use by the male member as a dwelling house

it can be preserved and the rest could be partitioned and

the fomer may be allotted to the son while working out the

equities in the partition. Take another illustration where

in addition to the dwelling house other properties are

available for partition which may be allotted to the share

of the sister or sisters, while the dwelling house at the

option of the son may be allotted towards his share. In

these events, the need to postpone succession may not arise.

Educational, job or avocational opportunities

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necessitate migration and settlement in another State or

abroad which are a common feature. Grace to give when he is

in affluent position and allows female he to wholly occupy

and enjoy parental home apart, in working out equities,

instead of fragmentation of it by metes and bounds, the

house may be allotted to the share of the female heir so

that she would perpetuate the money of the parental abode.

Take yet another instance where son due to being in service

is transferred to another place or places and consequently

he has to leave his dwelling house and join at the place

or places of his posting. Instead of keeping the house

locked, he may lease it out or grant leave or licence to a

tenant. The cessation of possession and enjoyment of the

dwelling house is not due to his own volition but due to

compulsion to eke out livelihood and this cause should

not give rise to a cause of action to a sister to file the

suit for partition.

Suppose 'A' and 'B' are brother and sister. 'A' is a

Judge of the High Court. He on elevation to the Supreme

Court shifted his residence to Delhi. Instead of keeping his

house vacant he lets out the house to a tenant. Does it mean

that 'A' had ceased to have intention to be in possession of

the house entitling 'S' to file a suit for partition. 'A'

has intention to retain possession but due to exigency of

office he holds, he temporarily ceases to - have occupation,

but his intention to return to his house and occupy the same

on superannuation still subsists and on return he would be

entitled to residence.

Suppose 'A' is the father, 'B' is the son and 'C' is

the daughter. They reside at 'H' place. 'A' is the Judge of

the High Court, 'B' practices in the Supreme Court and 'C'

practices at 'H'. 'B' on account of his practice ceases to

have intention to reside at 'H' place and on demise of 'A',

'C' may be given the house for her residence to perpetuate

the memory of the parental abode or else it is liable to

partition at an action of 'C'. Take another instance where

'A' is a Clerk in a Bank. As per the policy of the

management on promotion to officer cadre, he shall be

compulsorily transferred at least for three years outside

the State. Suppose if he joins in the other State and if

S.23 is applied the moment he ceases to occupy the house. it

becomes liable to partition at a suit by his sister though

he returns on completing three years to his home State. To

avoid such a hardship, either he has to forego his future

promotions in career and remain as a Clerk or face the peril

of losing his right in his father's abode.

Take another illustration, where the sole male heir

with a view to prevent a female heir of her right to

residence in the dwelling house lets it out and occupies

another tenanted premises for himself and for the members of

his family. Female held cannot be expected to fight a

litigation against the tenant; instead she/they are entitled

to file a suit for general partition impleading tenant it

not already made party for partition of the dwelling house

let out at the general partition and seek for allotment of

her share therein for her residence and the tenant in that

event would be entitled to residence only to that part of

the premises allotted towards the share af his landlord,

though the tenancy was for the entire building. The conduct

of letting by the male heir leads to the fragmentation of

the dwelling house and he cannot have a cause to complain of

the female heir's claim for partition nor he has a right to

resist her demand for partition to workout her share in the

dwelling house.

The above consideration would indicate that the

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legislature intended that during the life-time of the

surviving male heir(s) of the deceased Hindu intestate,

he/they should live in the parental dwelling house as

partition thereof at the behest of the female heir would

render the male heir homeless/shelterless. Obviously, to

prevent such hardship and unjust situations special

provision was made in S.23 of impartibilty of the dwelling

house. Section 44 of the Transfer of Property Act and also

S.4(1) of the Partition Act appear to prevent such

fragmentation of the ancestral dwelling house. Singular

includes plural under S.13(2) of the General Clauses Act and

may be applied to S.23 as it is not inconsistent with the

context or subject. Even without resorting to it or having

its aid for interpretation by applying common sense, equity,

justice and good conscience, injustice would be mitigated.

After all, as said earlier, the to prevent brooding sense of

injustice. It is not the words of the law but the spirit and

internal sense of it that takes the law meaningful, The

letter of the law is the body but the sense and reason of

the law is the soul. Therefore pragmatic approach would

further the ends of justice and relieve the male or female

hair From hardship and prevent unfair advantage to each

other. It would therefore, be just and proper for the Court

to adopt common sense approach keeping at the back of its

mind, justice, equity and good conscious and consider the

facts and circumstances of the case on hand. The right of

residence to the male member in the dwelling house of the

Hindu intestate should be respected and the dwelling house

may be kept impartible during the life purpose of law is to

prevent brooding sense time of the sole male heir of the

Hindu intestate or until he chooses to divide and gives a

share to his sister or sisters or alienate his share to a

stranger or lets it out to others, etc. Until then, the

right of the female heir or heirs under S.8 is deferred and

kept in abeyance. So, instead of adopting grammatical

approach to construe S.23, se are of the considered view

that the approach of the Calcutta and its companion Courts

is consistent with justice, equity and good conscience and

we approve of it. We accordingly hold that S.23 applies and

prohibits partition of dwelling house of the deceased Hindu

male or female intestate, who left surviving sole male heir

and female heir/heirs and the right to claim partition by

female heir is kept in abeyance and deferred during the life

of the mate heir or till he partitions or ceases to occupy

and enjoy it or lets it out or till at a partition action,

equities are worked out.

Admittedly the suit was filed in 1980 when the High

Court had not ruled on 5.23. The Schedule 'A' dwelling house

was leased out to the 7th defendant. the appellant pleaded

in the written statement that he had spent around

Rs.1,24,000/- and odd on the marriage of the plaintiff-

respondent. The property was, thereby not partible. The

Munsif found that Schedule 'A' property is the ancestral

dwelling house and that the Schedule 'B' site is the self-

acquired property of the father which was affirmed by the

appellate Court. It would thus be clear that the appellant

had not pleaded that the letting of the Schedule 'A'

dwelling house was on any extenuating circumstances and it

was not a voluntary one. In other words, it is clear that

the appellant had inducted strangers into the dwelling house

and had lost his animus possedendi. Accordingly S.23 became

inapplicable to the facts of this case. In that view, though

for different reasons, the appeal needs no interference

which is accordingly dismissed. No costs.

Narashimaha Murthy

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V.

Smt. Susheelabai & Ors.

J U D G M E N T

Punchhi,J

The special and multiangular provision, Section 23 of

the Hindu Succession Act, 1956, emits two legal questions of

importance for determination, in this appeal by special

leave, against the order of the Karnataka High Court dated

21-2-1992 in R.S.A. No.1045 of 1991, affirming in limine the

appellate order of the CITY Judge, Ramanagaram dated 22

October 1990 in R.A. No. 31 of 1985 namely:

(i) What is a 'dwelling-house' on

which the provision confers the

cloak of impartibility? and

(ii) Where a Hindu intestate leaves

surviving him or her a single male

heir and one or more female heir or

heirs, specified in Class I of the

Schedule, is the provision

attracted?

It would be worthwhile to reproduce hereafter the

provision engaging attention as also the relevant part of

the Schedule:

"23. SPECIAL PROVISIONS RESPECTING DWELLING-HOUSES - Where a

Hindu intestate has left surviving him or her both male and

female heirs specified in Class I of the Schedule and his or

her property includes a dwelling-house wholly occupied by

members of his or her family, then, notwithstanding anything

contained in this Act, the right of any such female heir to

claim partition of the dwelling-house shall not arise until

the male heirs choose to divide their respective shares

therein; but the female heir shall be entitled to a right of

residence therein:

Provided that where such female heir is a daughter, she

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."

THE SCHEDULE

HEIRS IN CLASS I

"Son; daughter; widow; mother; son of a predeceased

son; daughter of a predeceased son; son of a

predeceased daughter; daughter of a predeceased

daughter; widow of a predeceased son; son of a

predeceased son of a predeceased son; daughter of a

predeceased son of a predeceased son; widow of a

predeceased son of a predeceased son"

Some facts may now be noted.

The appellant. Narashimaha Murthy and his father

Narasoji Rao owned a joint family house, Schedule A

property. Besides that Narasoji Rao owned some self acquired

property, Schedule B property. He died somewhere in the year

1968 leaving behind his son, the appellant, Nagubai his

widow, and five daughters. Twelve years after the death of

Narasoji Rao, one of his daughters, Smt. Susheelabai,

Plaintiff- respondent herein filed a suit for partition for

obtaining one seventh share in the properties of Narasoji

Rao impleading her brother, the appellant, her mother and

four sisters as defendants. The seventh defendant impleaded

was the tenant of Schedule A property occupying it on a

monthly rent of Rs.75/- The mother Nagubai died during the

pendency of the suit, which made the plaintiff increase her

claim to one-sixth share in the properties. The suit was

resisted by the appellant on grounds inter-alia that the

plaintiff-respondent could not seek partition of Schedule A

property, it being a joint dwelling-house, as understood

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under section 23 of the Hindu Succession Act, 1956, which

provision was otherwise not attracted, when there was only

one male heir amongst the heirs surviving. It was otherwise

not in dispute that the house in question stood rented out

to the seventh defendant but for the rate of rent. The Trial

Court rejecting the defence of the appellant, determined the

share of the plaintiff-respondent in Schedule A property

as 1/12 (the intestate having half share in the house

and the other half being that of the son) and in Schedule B

property as 1/6th. In accordance therewith the plaintiff-

respondent was granted a preliminary decree for partition on

October 31, 1985. A separate enquiry was kept by the Trial

Court for determining the mesne profits from the date of the

suit till the date of

actual handing over of possession. The first as well as the

second appeal of the appellant to challenge the judgment and

decree of the Trial Court having been dismissed, has given

him cause to bring the dispute to this Court for resolution.

The admitted fact-situation now is that the house in

question is in the actual physical possession of the tenant

and none of the heirs of Narasoji Rao, male or female, are

in possession thereof. It has now to be determined whether

the suit of the plaintiff-respondent could successfully be

resisted by the appellant in the light of the afore-posed

questions, on the anvil of Section 23 of the Hindu

Succession Act.

The expression "dwelling-house" has not been explained

elsewhere than in the Section 23 itself. There is no

specific definition of the expression in the Act as such.

Because of that, various commentators of the subject have

foreseen that the courts were likely to face a problem in

defining it. According to Webster Comprehensive Dictionary,

the expression "dwelling-house" means a house built for

habitations a domicile. In law it may embrace the dwelling

itself and such buildings as are used in connection with it.

According to Black's Law Dictionary (sixth edition), under

statute prohibiting breaking and entering a "dwelling-

house", the test for determining if a building is such a

house is whether it is used regularly as a place to sleep.

In Stroud's judicial Dictionary (fifth edition), the

expression "dwelling-house" has been described as a house

with the super-added requirement that it is dwelt in or the

dwellers in which are absent only temporarily, having animus

revertendi and the legal ability to return Ford v. Barnes,

[55 L.J.Q.B.34]. It is described that the word "inhabitant"

would seem to bring about more fully the meaning of the word

"dwelling-house". In Words and Phrases (Third Edition)] a

quotation is available from Lewin v. End [1906 AC 299 at

304] attributed to Lord Atkinson in whose words a "dwelling-

house" as understood by him was "a house in which people

live or which is physically capable of being used for human

habitation". Another quotation from R. v. Allison [1843 (2)

LTOS 288 at 289] is available of Maule, J. saying that a

house, as soon as built and fitted for residence, does not

become a dwelling-house until some person dwells in it. In

T.P. Mukherjee's The Law Lexicon (Volume I) 1989, it is

stated at page 565 that a dwelling-house, as the words

imply, projects the meaning that the house or a portion

thereof is an abode of his, available to him at all times

without any let or hindrance by others. Further thereat is

stated that a dwelling place is one where a person inhabits

and in law should be his domus mansionalis. In Aiyar's

Judicial Dictionary (11th Edition), an old decision of the

Allahabad High Court in Fatime Begum v. Sakina Begum [1 All

51] has been mentioned in which it has been held that the

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words "dwelling or "residence" are synonymous with domicile

or home and mean that place where a person has his fixed

permanent home to which whenever he is absent, he has the

intention of returning. An extraction from Commissioner of

Income Tax v. K.S. Ratanaswamy [1980 (2) SCC 548 at 553] is

also quotable saying that primarily the expression "dwelling

place" means "residence", "abode" or "home" where an

individual is supposed usually to live and sleep and in the

context of a taxing provision which lays down a technical

test of territorial connection amounting to residence, the

concept of an "abode" or "home" would be implicit in it. In

other words, a dwelling place must be a house or portion

thereof which could be regarded as an abode or home of the

assessee in taxable territories.

From the aforequoted statements it is manifest that in

the legal world the word "dwelling-house" is neither a term

of art nor just a word synonymous with a residential house,

be it ancestral, joint family owned or self acquired, as

understood in the law applicable to Hindus. In the context

of section 23 therefore when the legislature has chosenly

employed the word "dwelling-house", it has 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.

There are twelve Class I heirs in the Schedule. They

may be arranged in the following manner:

MALES FEMALES OTHER FEMALES WHO ARE

DAUGHTERS DAUGHTERS

--------- ---------

i) son i) mother i) daughter

ii) son of ii) widow ii) daughter of pre-

predece- deceased son

ased son

iii) son of iii)widow of pre- iii)daughter of pre-

predece- deceased son deceased son of

ased son pre-deceased son

of pre-

deceased

son

iv) son of iv)widow of pre- iv)daughter of pre-

predea- deceased son deceased daughter

sed daughter of predeceased

son

The order of succession of a male intestate given in

Section 9, is that the heirs in Class-I take simultaneously

to the exclusion of all other heirs, and the distribution of

the property is made in accordance with the provisions of

section 10, Rules of succession of a female intestate are

available in sections 15 and 16 of the Act and they

sometimes vary or overlap upon the rules of succession

applicable to the male intestate. But, seemingly, for the

purpose of the special provision section 23, male and female

heirs specified/identified in Class I of the Schedule, alone

have been conferred certain rights irrespective of the

operation of differing rules of succession applicable to

Hindu male and female intestates. This distinguishing

feature has to be borne in mind because the rights whatever

they be, are meant only for Class I Heirs of the Schedule.

In other words, members of the family of the intestate

unless they happen to be heirs specified in Class I of the

Schedule have neither been conferred any right to defer

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partition nor any claim to residence in the dwelling-house.

To illustrate the point take the case of a other-in-law

living with a male Hindu or for that matter his brother or

sister. On his death since his mother-in-law, other or

sister are not Class I heirs, they if have neither the right

to have the partition among Class I Heirs deferred, nor the

right to reside therein. though they may be members of the

intestate's family as widely understood in its. concept.

Attention may now be invited to the last sentence in

the provision and the proviso, for there lies the clue to

get to the heart of the matter. On first impression the

provision may appear conflicting with the proviso but on

closer examination the conflict disappears. A female heir's

right to claim partition of the dwelling-house does not

arise until the male heirs chose to divide their respective

shares therein, but till that happens the female heir is

entitled to the right to reside therein. The female heir

already residing in the dwelling-house has a right to its

continuance but in case she is not residing, she has a right

to enforce her entitlement of residence in a court of taw.

The proviso makes it amply clear that where such female heir

is a daughter, she 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.

On first impression, it appears that when the female heir is

the daughter, she is entitled to a right of residence in the

dwelling-house so long as she suffers from any one of the

four disabilities i.e. (1) being unmarried; (2) being a

deserted wife; (3) being a separated wife; and (4) being a

widow. It may appear that female heirs other than the

daughter are entitled without any qualification

to a right of residence, but the daughter only if she

suffers from any of the aforementioned disabilities. If this

be the interpretation, as some of the commentators on the

subject have thought it be, it would lead to an highly

unjust result for a married grand-daughter as a Class I heir

may get the right of residence in the dwelling-house, and a

married daughter may not. This incongruous result could

never have been postulated by the legislature.

Significantly, the proviso covered the cases of all

daughters, which means all kinds of daughters, by employment

of the words "where such female heir is a daughter" and not

"where such female heir is the daughter". The proviso thus

is meant to cover all daughters, the description of which

has been given in the above table by arrangement. The word

"daughter" in the proviso is meant to include daughter of a

predeceased son, daughter of a predeceased son of a

predeceased son and daughter of a predeceased daughter. The

right of residence of the female heirs specified in Class I

of the Schedule, in order to be real and enforceable, pre-

supposes that their entitlement can not be obstructed by any

act of the male heirs or rendered illusory such as in

creating third party rights therein in favour of others or

in tenanting it, creating statutory rights against

dispossession or eviction. What is meant to be covered in

Section 23 is a dwelling house or houses, (for the singular

would include the plural, as the caption and the section is

suggestive to that effect) fully occupied -by the members of

the intestates family and not a house or houses let out to

tenants, for then it or those would not be dwelling house

houses but merely in description as residential houses. The

section protects only a dwelling-house, which means a house

wholly inhabited by one or more members of the family of the

intestate, where some or all of the family members, even if

absent for some temporary reason, have the animus

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revertendi. In our considered view, a tenanted house

therefore is not a dwelling-house in the sense in which the

word is used in section 23. It may be a dwelling-house in

the structural sense but it cannot be said to be a dwelling-

house in habitation by the members of the intestate's

family. In that twin sense, when the female heirs are

entitled to a right of residence therein, which right is

enforceable against the male heirs, that right militates

against the created or creating of tenancy by the male heir

or heirs and deprive them of their right to residence

therein as also their right to partition; an incidence

normal to the opening of succession. Thus it appears to us

that if the male heirs derive the right under the provision

to resist partition of the dwelling-house unless they chose

to divide their respective 12 shares therein, then

correspondingly it is incumbent on the male heirs to keep

the property well arranged, inhabited or occupied by

themselves keeping the property available for the female

heirs to enforce the right of residence therein. But if the

latter right is frustrated on creation of third party rights

or a contractual or statutory tenancy, there remains no

right with the males to resist partition.

Every right has a corresponding duty. This principle

vigorously applies in this multiangular provision. A house

tenanted brings in strangers and it ceases to be a dwelling-

house inhabited by members of the family. The protection of

section 23 is thus not available to the males. It is in this

light that question no. 1 need be answered to say that 8

dwelling house is that house which is in actual, physical,

inhabited possession of one or the other members of the

family in stricto sensu, and if some are absent due to

exigencies of service or vocations, the dwelling-house

remains available for them to re-enter without any

obstruction or hindrance and on that premise enabling the

female heir to assert a right of entry and residence

therein. A tenanted house does not fit into this

description. Disabled daughters need instant succour, not

litigation. They need doors of the dwelling-house always

wide open, not stoney-eyed responses of strangers. The

provision silences them in seeking partition, but not their

ownership extinct. If marriage has the inescapable

consequence of displacement of the daughter from the

parental roof, her interests forever cannot be sacrificed on

the alter of matrimony. Her distress revertendi is of equal

importance standing alongside the qualified defence of

impartibility by the male heir as afore-explained. The first

question is answered accordingly.

The second question does not present much difficulty.

On literal interpretation the provision refers to male heirs

in the plural and unless they chose to divide their

respective shares in the dwelling-house, female heirs have

no right to claim partition. In that sense there cannot be a

division even when there is a single male. It would always

be necessary to have more than one male heir. One way to

look at it is that if there is one male heir, the section is

inapplicable, which means that a single male heir cannot

resist female heir's claim to partition. This would

obviously bring unjust results, an intendment least

conceived of as the underlying idea of maintenance of status

quo would go to the winds. This does not seem to have been

desired while enacting the special provision. It looks

nebulous that if there are two males, partition at the

instance of female heir could be resisted, but if there is

one male, it would not. The emphasis on the section is to

preserve a dwelling-house as long as it is wholly occupied

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by size or all members of the intestate's family which

includes male or males. Understood in this manner, the

language in plural with reference to male heirs would have

to be read in singular with the and of the provisions of the

General Clauses Act. It would thus read to mean that when

there is a single male heir, unless he chooses to take out

his share from the dwelling-house, the female heirs cannot

claim partition against him. It cannot be forgotten that in

the Hindu male oriented society, where begetting of a son

was a religious obligation, for the fulfillment of which

Hindus have even been resorting to adoptions, it could not

be visualized that it was intended that the single male heir

should be worse off, unless he had a supportive second male

as a class I heir. The provision would have to be

interpreted in such manner that it carries forward the

spirit behind it. The second question would thus have to be

answered in favour of the proposition holding that where a

Hindu intestate leaves surviving him a single male heir and

one or more female heirs specified in Class I of the

Schedule, the provisions of section 23 keep attracted to

maintain the dwelling-house impartable as in the case of

more than one male heir, subject to the right of re-entry

and residence of the female heirs so entitled, till such

time the single male heir chooses to separate his share;

this right of his being personal to him, neither

transferable nor heritable.

Now applying the ratio above evolved on the facts of

this case, it is evident that when the house in question is

tenanted, it is not a dwelling-house in the sense the word

is used in section 23 of the Hindu Succession Act and

therefore it has no protection of its being impartable. The

suit of the plaintiff-respondent could not have been

resisted by the defendant-appellant on the basis that it was

a family house. Equally the suit could not have been

resisted by the defendant-appellant on the ground that being

the sole male heir of the intestate, section 23 was

inapplicable, because then the suit for partition would

otherwise have been maintainable. Had the finding been that

the house in question was a dwelling-house the suit could

have been resisted by him even as a single male heir on the

basis of Section 23 of the Act.

As a result of the above discussion, the preliminary

decree for partition in favour of the plaintiff-respondent

cannot be upset. The judgments and orders of the courts

below would have to be maintained. In partitioning the

properties the trial court would bear in mind,as it is bound

to, the provisions of the Partition Act. The appeal, in

these circumstances, fails but without any order as to

costs.