# NARASHIMAHA MURTHY v. SMT. SUSHEELABAI & ORS

- **Citation:** [1996] Supp. 1 S.C.R. 414
- **Court:** Supreme Court of India
- **Decided:** 1996-04-17
- **Case number:** Civil Appeal No. 2592 of 1996
- **Bench:** KULDlP SINGH, K. Ramaswamy, M.M. Punchhi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narashimaha-murthy-v-smt-susheelabai-ors-14086
- **Pages:** 28

## Headnote

Hindu Succession Act, 1956: Section 23 and proviso.
Dwelling house of Hindu dying intestate-Pmtition of-Female heir's
C light to claim-Held : to be defe17'ed or kept in abeyance dwing lifetime of
even a sole surviving male heir of deceased-Until he chose to separate his
share or ceased to occupy it or let it out-But till that contingency happens
female heirs, if daughter suffeling from any disabilities >pecified in proviso
would be entitled to reside as well as re-enter in dwelling house-Word
'daughter' included daughter or predeceased son, daughter of predeceased son
D of predeceased son and daughter of predeceased daughter.
Dwelling house-Did not include tenanted house-Must be wholly
occupied by family members of deceased an intestate-They must have
anilnus possedendi-The 1no111ent stranger was left into it, aninius dessidendi
E was exhibited by them-Iheir Temporary absence from house-Showed their
animus reveJtendi-Thereby the house did not cease to be dwelling house-Induction of strangers into dwelling house by male heir-S.23 could not be
invoked by him---<Jeneral Clauses Act, 1897, S.13(2)-Transfer of Propelty
Act, 1882, S.44-Partition Act, 1893, S.4(1).
F
Words and Phrases :
"Dwelling House''-Meaning of in the context of Section 23 of Hindu
Succession Act, 1956.
The appellant-defendant and his father owned a joint family house
G and some self acquired property. He died leaving behind his son, the
appellant, his widow, and five daughters. Twelve years after his death, one
of his daughters, the respondent-plaintiff, filed a suit for partition for
obtaining one-seventh share in the properties of her father impleading her
brother, the appellant, her mother and four sisters as defendants. The
'
H seventh defendant impleaded was the tenant of the house. The mother died
414
N. MURTHYv. SUSHEELABAI
415
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-a/ia that the respondent-Plaintiff could not seek partition
of the house, it being a joint dwelling house, as understood under Section
23 of Hindu Succession Act, 1956, which provision was otherwise not
attracted, when there was only one male heir among 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 respondent-plaintiff in the house property as 1/12 (the intestate having half share in the
house and the other half being that of the son) and in self acquired
property as 1/6th. In accordance therewith the respondent-plaintilT was
granted a preliminary decree for partition. The first as well as the second
appeal of the appellant to challenging the judgment and decree of the Trial
Court having been dismissed, the appellant filed the present appeal.
Dismissing the appeal, this Court
HELD : 1.1. (Per. Ramaswamy, J.) 1.1. When succession of a Hindu
intestate is open, his/her Class-I heirs specified in the Schedule to Hindu
Succession Act, 1956 are entitled at a partition to their respective shares.
A
B
c
D
The succession cannot be postponed. However, there is an exception to this
general rule. When a Hindu intestate, whether ,male or female, 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, by operation of the 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 Section 23 of !he Act. The claim for
partition by female heir shall not arise "until the maie heirs choose to
divide their respective shares therein". 1'hus though the right to succession
devolves upon the female heir under Section 8 of the Act, being Class-I

## Text

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A
NARASHIMAHA MURTHY
v.
SMT. SUSHEELABAI & ORS.
APRIL 17, 1996
B
[KULDlP SINGH, K. RAMASWAMY AND M.M. PUNCHHI, JJ.]
Hindu Succession Act, 1956: Section 23 and proviso.
Dwelling house of Hindu dying intestate-Pmtition of-Female heir's
C light to claim-Held : to be defe17'ed or kept in abeyance dwing lifetime of
even a sole surviving male heir of deceased-Until he chose to separate his
share or ceased to occupy it or let it out-But till that contingency happens
female heirs, if daughter suffeling from any disabilities >pecified in proviso
would be entitled to reside as well as re-enter in dwelling house-Word
'daughter' included daughter or predeceased son, daughter of predeceased son
D of predeceased son and daughter of predeceased daughter.
Dwelling house-Did not include tenanted house-Must be wholly
occupied by family members of deceased an intestate-They must have
anilnus possedendi-The 1no111ent stranger was left into it, aninius dessidendi
E was exhibited by them-Iheir Temporary absence from house-Showed their
animus reveJtendi-Thereby the house did not cease to be dwelling house-Induction of strangers into dwelling house by male heir-S.23 could not be
invoked by him---<Jeneral Clauses Act, 1897, S.13(2)-Transfer of Propelty
Act, 1882, S.44-Partition Act, 1893, S.4(1).
F
Words and Phrases :
"Dwelling House''-Meaning of in the context of Section 23 of Hindu
Succession Act, 1956.
The appellant-defendant and his father owned a joint family house
G and some self acquired property. He died leaving behind his son, the
appellant, his widow, and five daughters. Twelve years after his death, one
of his daughters, the respondent-plaintiff, filed a suit for partition for
obtaining one-seventh share in the properties of her father impleading her
brother, the appellant, her mother and four sisters as defendants. The
'
H seventh defendant impleaded was the tenant of the house. The mother died
414
N. MURTHYv. SUSHEELABAI
415
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-a/ia that the respondent-Plaintiff could not seek partition
of the house, it being a joint dwelling house, as understood under Section
23 of Hindu Succession Act, 1956, which provision was otherwise not
attracted, when there was only one male heir among 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 respondent-plaintiff in the house property as 1/12 (the intestate having half share in the
house and the other half being that of the son) and in self acquired
property as 1/6th. In accordance therewith the respondent-plaintilT was
granted a preliminary decree for partition. The first as well as the second
appeal of the appellant to challenging the judgment and decree of the Trial
Court having been dismissed, the appellant filed the present appeal.
Dismissing the appeal, this Court
HELD : 1.1. (Per. Ramaswamy, J.) 1.1. When succession of a Hindu
intestate is open, his/her Class-I heirs specified in the Schedule to Hindu
Succession Act, 1956 are entitled at a partition to their respective shares.
A
B
c
D
The succession cannot be postponed. However, there is an exception to this
general rule. When a Hindu intestate, whether ,male or female, 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, by operation of the 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 Section 23 of !he Act. The claim for
partition by female heir shall not arise "until the maie heirs choose to
divide their respective shares therein". 1'hus though the right to succession
devolves upon the female heir under Section 8 of the Act, 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 till the happening of G
a contingency event, i.e. the decision by the male heir(s) to partition the
dwelling house in occupation of the family. So Long as the male heirs(s)
choose not to partition the Dwelling house, the female Class-I heir(s) has
been denied the right to claim its partition to a further exemption, namely,
E
F
the right to residence therein by the female Class-I heir(s) under specified H
A
B
c
D
E
F
416
SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.
circumstances. Thus, 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 lifetime. Thereby the dwelling house
remains indivisible. The male heir(s) thereby evinces animns possedendi.
[427-H; 428-C-D; 429-G-H]
1.2. 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 to preserve the same
to perpetuate his/her memory. The proviso to Section 23 of the Act
visualises certain contingencies and made provision for right of residence
to Class-I female heirs. In the event the male member(s) choose(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(s) alone.
Daughter(s) too would be anxious and more reverential to preserve the
dwelling house to perpetuate the parental memory. Here the condnct of the
male heir(s) is the cause and the entitlement of the female Class-I heir(s)
in the effect, and the latter's claim for partition gets ripened into right as
she is/they are to sue for partition of the dwelling house, whether or not the
proviso comes into play. Here the female heir(s) becomes entitled to not
only mere partition of the dwelling house bnt also her right to residence
after partition. 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 a
dwelling house. [428-B-F; 429-A-B]
1.3. Though the words 'the male heirs choose to divide their respec·
tive 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
G 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 Section 23 of the Act must
stand excluded in the case of the Hindu intestate leaving behind him/her
surviving only a son and a daughter. However, exception has been
H
engrafted by Section 23 of the Act respecting tradition of preserving family
N.MURTIIYv. SUSHEELABAI
417
dwelling house to effectuate family unity and prevent its fragmentation or A
disintegration by dividing it by metes and bounds. The legislature intended
that during the lifetime 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 hardships and unjust
situations, special provisions was made in Section 23 of the Act for
impartibility of the dwelling house. Section 44 of the Transfer of Property
Act, 1882 and also Section 4(1) of the Partition Act, 1893 appear to prevent
such fragnentation of the ancestral dwelling house. Singular includes
plural under Section 13(2) of the General Clauses Act, 1897 and may be
applied to Section 23 of the Act as it is not inconsistent with the context
or subject. Even without resorting to it or having its aid for interpretation,
B
c
by applying common sense, equity, justice and good conscience, injustice
would be mitigated. The purpose of law is to prevent brooding sense of
injustice. It is not the words of law but the spirit and internal sense of it
that makes the law meaningful. The letter of the law is the body but the D
sense and reason of the law is the soul. Therefore, pragmatic approach
would further the ends of justice and relieve the male or female heir 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 conscience and consider the facts
and circumstances of the case on hand. The right of residence to the male E
member in the dwelling house of the Hindu intestate should be respected and
the dwelling house may he kept impartible during the lifetime 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 Section 8 of the Act F
is deferred and kept in abeyance. So, instead of adopting grammatical ap11roach to construe Section 23 of the Act, it must be held that Section 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 the female heir is kept in absence and
deferred during the lifetime of the male heir or till he partitions or ceases to G
occupy and enjoy it or lets it out or till at a partition action, equities are
worked out. [429-D-E; 427-H; 428-A; 432-A-G]
Arnn Kumar Sanyal v. Jnanendra Nath Sanyal, AIR (1975) Cal 232,
Surya Kumar Da.< v. Smt. Maya Dutta, AIR (1982) Cal 221; Usha Mazumdar H
418
SUPREME COURT REPORTS [1996} SUPP. I S.C.R.
A
& Ors. v. Smt. Smriti Basu, AIR (1988) Cal 115; Mookkam111a/ v.
B
Chitravadivammal, AIR (1980) Mad 243; Janabi Ammal v. T.S.A. Palani
Mudalim; AIR (1981) Mad 62; Ponmrnvamy v. Meenakshi Amnwl and Ors.,
(I 989) 2 M.LJ. 506 and Pummvmi v. Suklwdevi, AIR '(1986) All 139,
approved.
Hema!ata Devi v. Umasankwi, AIR (1975) Ori 208 and Anand v.
Janaki E'ai, AIR (1984) Bombay 319, overruled.
Kmiyavva v. Hanu111a11tappa Mal/urappa, (1984) Kar. L.J. 273 and
Vanitaben Bhaishankar Pandya v. Diva!iben Premji & Q,,., (1979) 2 G.L.R.
C
148, referred to.
Mu/la's Hindu Law (16th Edn.), revised by Justice S. T. Desai;
Raghavachwiar's Hindu Law ( lith Edn.) revised by Prof Venkataraman,
referred to.
D
2. In the present case the appellant had inducted strangers into the
E
dwelling house and had not pleaded that the letting of the dwelling house
'"'as on any extenuating circumstances and it was not a voluntary one.
Therefore, it is clear that the appellant had inducted strangers into the
dwelling house and lost his animus possedendi. Accordingly, Section 23 of
the Ad became inapplicable to the facts of this case. [433-B-C]
(Per Punchhi, J. for himself, and Kuldip Singh, J. concurring):
l. In the legal world the word "dwelling house" is neither a term nor
just a word synonymous with a residential house, be it ancestral, joint
F
family owned or self acquired, as understood in the law applicable to
Hindus. In the context of Section 23 of Hindu Succession Act, 1956,
therefore, when the legislature has choseuly employed the word "dwelling
house", it has done so \lith a purpose, which is to say that ~n the death of
the intestate, a lin1ited status quo should prevail and existing prior to his
G
or death. His or her abode, shared by him or her, with members of his or
her family, indentiliable 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. [ 436-E-F]
Fatin1a Begu111 v. Sakina Begunz, 1 All 51; Conunissioner of Inconie
H
Tax v. K.S. Ratnaswamy, [1980] 2 SCC 548; F01d v. Eames, 55 L.J.Q. 34;
N. MURTHYv. SUSHEELABAI
419
Lewin v. End, (1906) AC 299 and R. v.Allison, (1843) 2 LTOS 288, referred A
to.
Webster's Comprehensive Dictionary, Black's Law Dictio11a1y
Stroud's Judicial Dictio1101y (Fifth Edn.), Words and Phrases (17iird Edn.),
T.P. Mukhcrjce's 77ic Law Lexicon (Volume I) 1989 and Aiyar's Judicial
Dictionary (11th Edn.), referred to.
2. What is meant to be covered in Section 23 of the Act is a dwelling
house or houses, (for the singular wonld include the plural, as the caption
and the section is suggestive to that effect) fully occupied by the members
of the intestate's 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 descripB
c
tion 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 revertendi. A dwelling D
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 E
residence therein. A tenanted house does not fit into this description. 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
F
to partition, and incidence normal to the opening of succession. If the male
heirs derive the right under the provision to resist partition of the dwelling
house unless they chose to divide their respective shares therein correspondingly it is incumbent on the male heirs to keep the property well G
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. (438-G-H; 439-A; E-F; B-D]
H
A
B
c
420
SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.
3. The proviso to Section 23 of the Act 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 bas separated from her husband or is a widow. 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 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, Disabled daughters need instant succour, not litigation. They
need doors of the dwelling-house always wide open, not sloney-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 imparD tibility by the male heir. (438-B; E-F; 439-G-HJ
E
4. The emphasis on Section 23 of the Act is to preserve a dwelling
house as long as it is wholly occupied by some 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 aid of the provisions of the General Clauses Act,
1897. 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. The provision would have to be
interpreted in such manner that it carries forward the sprit behind it. Thus
F
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 of the Act keep attracted to maintain the dwelling house
impartible 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 snch time the
single male heir chooses to separate his shares; this right of his being
G personal to him, it is neither transferable nor heritable. [ 440-D-G]
5. 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 Act and therefore it has
no protection of its being impartible. The suit of the respondent-plaintiff
H could not have been resisted by the appellant-defendant on the basis that
N.MURTHYv. SUSHEELABAI [K. RAMASWAMY,J.]
421
it was a family house. Equally the suit could not have been resisted by the A
appellant-defendant on the ground that being the sole male heir of the
intestate, Section 23 of the Act was inapplicable, because then the suit for
partition wouid 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 B
Act. [441-A·C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2592 of
1996.
•
From the Judgment and Order dated 21.2.92 the Karnataka High C
Court in R.S.A. No. 1045 of 1991.
G.V. Chandra Shekhar, Girish Anantha Murthy and P. Mahale (NP)
for the Appellant.
R. Jaganth Goulay, Arnn K. Sharma, Ms. Neelam Sharma and T.C. D
Sharma (NP) for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. One Narasoji Rao, died intestate leaving E
behind him the appellant, the only son and the respondents, three
daughters, after action at the latter's 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 F
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. Hmmmantappa Mal/urappa, (1984) Kar. L. J. 273.
The only question argued before us is : whether the dwelling house G
is partible, when Narasoji Rao died leaving 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 :
H
A
B
c
D
E
F
422
SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.
"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 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.
11
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.Tl
The Orissa, Karnataka, 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 meet 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 partition, S. 23 makes a special provision
respecting partibility of the dwelling house. When a Hindu intestate,
G whether male or female, 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 the Act, the right of any such female
heir to claim partition of the dwelling house shall not arise until the male
H heirs choose to divide their respective shares therein; but the female Ciaos-I
...
N. MURTIIYv. SUSHEELAIJAI [K. RAMASWAMY, J.]
423
heir, like unmarried or widow or deserted or separated daughter of the A
deceased, shall have the right of residence therein. When the deceased
Hindu left behind him/her, only one male heir and one or more female
heirs, the question emerges: whether the dwelling house is partiblc? By
operation of nail 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 heirs 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 kept at a bay to claim partition except to the
right of residence in the enumerated events.
lnAntn Kumar Sanyal v. Jna11e11dra Nath Sa11yal, AIR (1975) CalcutB
c
D
ta 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 E
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 he put. to. The bar is removed only on
the happening of the contingency, namely, when the male heir chooses to
F
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 G
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 claughter.
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 H
424
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A
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
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file a suit for partition and possession of her share in the property. In
Jana bi Ammal v. T.SA. Palani Mudaliar, AIR (1981) Madras 62, one
Swaminatha Mudiliar died intestate owning extensive properties, leaving
behind the plaintiff 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
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dwelling house. When the question of the applicability of S.23 had come
up for consideration, the Division Bench held thus :
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"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 housing 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 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 Jess."
In Ponnuswamy v. Meenakshi Ammal and Ors., (1989) 2 M.L.J. 506,
another Division Bench reiterated the same view. In Pumawari v. Suk-
/ladevi, AIR (1986) Allahabad 139, the Court took the same view.
In Vanitaben Bhaishanker Pandya v. Divaliben Premji & Ors., (1979)
2 G.L.R. 148, the Division Bench held that for the application of S.23, the
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
H was held to be not applicable.
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N. MURTHYv. SUSHEELABAI [K RAMASWAMY, J.]
425
In Hemalata Devi v. Umasankmi Moharana, AIR (1975) Orissa 208, A
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 heir choosing to divide their respective shares therein,
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. does not admit of being fulfilled. Section 23 gets attracted only where an D
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 abeyar.ce. Under E
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
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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 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 G
attracted only if the conditions contemplated in the first part of
the Section comes into existence."
If there is only one male heir, the circumstances envisaged in the first
part of the Section do not come into existence and the section does not H
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SUPREME COURT REPORTS [1996J SUPP. l S.C.R.
come into operation at all. The provisions of this section cannot be applied
to a case \vhcre 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 "heirs
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11male 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 of 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 fulfilment
at all. In Anand v. Janaki Bai, AIR (1984) Bombay 319, the Bombay High
D Court also took the same view.
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In Mu!la'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
the 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, Pumawasi 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 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
N. MURTIIY v. SUSHEELABAI [K. RAMASWAMY, J.]
427
possible for the son or sons to buy off the share of the female heir A
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 13(2) 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 house.
It would seem that the right of a 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
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the last survivor of them unless a partition of the dwelling house is
sought by any one of them before such time. The restriction will
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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. D
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 heirs choose to divide their respective shares therein is E
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 F
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 prevent the fragmentation of the dwelling house at the instance G
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 H
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SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
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to effectuate family unity and prevent its fragmentation or disintegration
by dividing it by metes aml 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 words
denoting the legislative animation. The expression "dwelling house" though
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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 intei.ded 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 to preserve 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
D house and get transplanted into matrimonial home. The proviso to S.23
visualises certain contingencies and made provision for right of residence to
Class-I female heirs. In the event the male membcr(s) choose(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
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reverence to preserve the ancestral house in the memory of the father or
mother is not the exclusive preserve of the son(s) alone. Daughter(s) 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
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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
G 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 time. Thereby the dwelling
house remains indivisible. The male heir(s) thereby evinces animus posH sedendi. But the moment the male heir(s) chooses to let out the dwelling
N. MURTI1Yv. SUSHEELABAI [K. RAMASWAMY, J.]
429
house to a stranger/third party, as a tenant or a licensee, he or they A
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 B
the female heir(s) becomes 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 H;ndu intestate,
in respect of the dwelling house, her right to seek partition has been C
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 D
postponed and kept in abeyance until the mele heir or heirs of the Hindu
intestate decided to partition it, it does not necessarily lead to the only
inevitable conclusion that the op~ration of S.23 must stand excluded in the
case of the Hindu intestate leaving behind him/her surviving only a son and
a daughter. Take the present policy of family planning to have only two
children and invariably preferring to have a son and daughter. More than E
one son may not exist.