JUDGMENT
S.B. Sinha, J.
1. This appeal is directed against an order dated 9-2-99 passed by a learned single Judge of this Court in W.P. No. 345(W) of 1999, whereby and whereunder the writ application filed by the respondent No. 1 herein has been allowed.
2. Admittedly, the parties are brother and sister. It is also admitted that the writ petitioner/ respondent No. 1 is married. She filed an application for grant of electrical connection in terms of Section 22 of the Indian Electricity Act. As no order thereupon had been passed, the writ application had been filed. The allegations made in the writ application were traversed by the appellant herein by filing an affidavit-in-opposition.
3. It appears from the impugned order that, a contention was raised that in terms of the provisions of the Hindu Succession Act, the respondent No. 1 being a married lady, had no right of residence, and in that view of the matter, she cannot be said to be a bona fide occupier as envisaged under Sub-section (6) of Section 12 of the Indian Electricity Act. The learned trial Judge, however, repelled the-said contention stating
“This is an application filed by the petitioner, inter alia, for having the supply of electricity at the premises in question. The only dispute sought to be raised here by the private respondent who appears though learned Advocate before me and contended that in accordance with Hindu Law, the sister has no right in the property of his late father, I am astonished after hearing such submission on behalf of such private respondent. Learned Advocate failed to produce any law or the provisions of Hindu Law before me in support of his contentions. I am, however, afraid of hearing such submissions. I do not know whether such amendment will take place in near future or ought to have been done as the submissions have been made by the learned Advocate. But, as it stands today, on the basis of law prevailing in. this country, the sister or the daughter must have a right in joint property until and unless she is debarred by way of any Will or otherwise. No documents were also produced before me to show that the father has gifted or bequeathed the said property in favour of the private respondent setting aside the right of the daughter. In view of that, I am of the opinion that the attitude of the private respondent is nothing but obnoxious and should not be accepted by any Court of law. I direct the CESC Limited to take immediate steps to effect supply of electricity to the petitioner upon compliance of all the formalities by her within three weeks from the date of such compliance. I further direct that all the parties including the private respondent must comply with this order and if any obstruction is being created by any persons or by private respondent, CESC will be at liberty to take police help at the cost of the petitioner and give effect to this order.
The writ application is thus disposed of.”
4. Mr. Das appearing on behalf of the appellant has raised a short question in support of this appeal. Learned Counsel submits that a bare perusal of Section 23 of the Hindu Succession Act, would show that the respondent No. 1 had no legal right of residence in the dwelling house in question. In support of the said contention, reliance has been placed on Narashimaha Murthy v. Sm. Susheelabai, reported in 1997 WBLR (SC) 23. It has been further submitted that a learned single Judge of this Court in Surajbali Pahdey & Co. v. CESC Ltd., reported in 1995 (1) CHN 533, has clearly held that unless a person is in lawful occupation of a premises, he has no legal right to demand electric connection in terms of the Indian Electricity Act.
5. Mr. Halder, learned Counsel appearing on behalf of the writ petitioner/respondent No. 1 faced up with the aforementioned situation, has made an attempt to draw our attention to the statements made in the affidavit-in-opposition, and submitted that the writ petitioner/respondent No. 1 had been residing in the premises in question for a long time. According to the learned Counsel, the bill annexed to the writ application would show that the said premises is being used for commercial purpose and in view of the fact that the appellant herein had disconnected the electrical energy in respect thereof, an application for grant of separate connection had been filed by the writ petitioner. Unfortunately, the statements made in the affidavit-in-opposition before this Court, had not been stated in the writ application. The writ application had proceeded on the basis that the writ petitioner was co-sharer, she had a right to obtain a separate electrical connection. Section 23 of the Hindu Succession Act reads thus :
“23. 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.”
6. A bare perusal of the aforementioned, provision would clearly show that a married lady does not have a right of residence. This aspect of the matter has been also considered in Narashimha Murthy (supra), wherein the Apex Court clearly held:
“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 choose 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 to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has been separated from her husband or is a widow. On first impression, it appear 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 to be, it would lead to a 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 predeceased daughter. The right of residence of the female heirs specified in Class I of the Schedule, in order to be real and enforceable, presupposes that their entitlement cannot 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 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 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 in testate, where some or all of the family members, even if absent for some temporary reason, have the animus 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 choose to divide their respective 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.”
7. Furthermore, the provision of subsection (6) of Section 12 of the Indian Electricity Act, states that occupier of any building or land means a person in lawful occupation of building or land. The question as to whether despite the fact that the writ petitioner/respondent No. 1 had no legal right of residence, would be an occupier being in lawful occupation of the building or land, either by way of arrangement or otherwise, is essentially a question which can be gone into by the learned trial Judge, or by an appropriate authority or Court on the basis of materials placed by the parties. As indicated hereinbefore, the writ petitioner has not produced any such materials before the learned trial Judge in her writ application. In that view of the matter, we are of the opinion that as in law, the impugned order cannot be sustained, keeping in view the fact that the writ petitioner/respondent No. 1 has filed an application for grant of electrical connection on the ground that she has been deprived therefrom by reason of act committed by the appellant herein, an opportunity should be granted to the writ petitioner/respondent No. 1 herein. For the aforementioned purpose, the writ petitioner/respondent No. 1 may file an application for amendment of the writ application before the learned trial Judge, which may be considered on its own merits.
8. For the reasons aforementioned, the impugned order cannot be sustained and the same is set aside. The appeal is allowed and the matter is remitted to the learned trial Judge for fresh consideration of the matter in the light of the observations made above.
9. Xerox certified copy of the order be supplied with utmost priority.
S.N. Bhattacharjee, J.
10. I agree.