JUDGMENT
Ajoy Nath Ray, J.
1. This is an appeal from a final decree of partition. The appeal is urged only with regard to the dwelling house, now wholly occupied by the parties, i.e. the appellant brother and the respondent sister.
2. Their ancestor, i.e, their father died on the 10th June, 1973, leaving him surviving, his then alive widow and the two parties herein.
3. Each of them had undivided 1/3rd share in the house at that time, which was also partly tenanted. Paragraph 8 of the plaint states the fact of such tenancy.
4. The partition suit was filed by the widow. Subsequently her 1/3rd share came to the respondent daughter who became the plaintiff and now supports the decree which gives her 2/3rd allotment by way of separation and possession of the partitioned allotment.
5. The point urged is Section 23 of the Hindu Succession Act, 1956. The said Section is set out below :
“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”.
6. At the time the suit was instituted, a tenant being in possession of a part of the house, it was not a dwelling house wholly occupied by the members of the family of the deceased. No question arises about the applicability of Section 23 in the beginning.
7. However, after the passing of the preliminary decree on 21st December, 1979 the only tenant of the house happened to leave it on the,4th of July, 1982.
8. The appellant, even thereafter, continued to participate in the proceedings before the Commissioner of Partition, filing a valuation statement on the 17th August, 1985 and even suggesting ways of allotment on the 1st July, 1989.
9. Thereafter, nearly 9 years after the tenant had vacated, on the 11th April, 1991, the appellant made an application in the Court below for taking into account the subsequent fact of the tenant’s departure. The application was made for taking into account Section 23 also, and for not passing any final decree of partition as, by that time, the property had become a wholly occupied dwelling house.
10. The Court refused to accede to the application. A revisional application to the District Court filed. An application made under Article 227 of the Constitution of India was disposed of only after the final decree of partition had been passed on the 15th December, 1998 and amended on the 22nd July, 1999.
11. The Court ordered that notwithstanding the passing of the final decree, the points taken by the appellant would be considered in appeal. We are considering these points in appeal today, not because of the order in the Article 227 application, but in the interest of justice.
12. Mr. Ghoshal for the appellant gave us two Supreme Court Cases, namely, those of Laxmi & Co. & Rajesh D. Darbar & Ors., reported respectively at and .
13. These were cited to persuade us to take into consideration the subsequent facts which might well have a crucial bearing on the adjudication of the rights of the parties. We are satisfied that we cannot shut our eyes to the subsequent facts of so important in nature.
14. The preliminary decree has not been appealed from. It was argued that nonetheless the final decree is challengeable as the preliminary decree does not ever tie up finally the hands of the Court before the suit is finally disposed of by the passing of the final decree.
15. The case of Indra Narayan Bera, reported at 78 CWN 712, a judgment of an Hon’ble Single Judge of our High Court was cited for the proposition that there can be more than one preliminary decree in a partition suit.
16. We respectfully agree with that proposition and there are even higher authorities laying down the same thing.
17. The argument is that since there can be two preliminary decrees, surely the first preliminary decree can in no way be final. Although Mr. Banerjee appearing for the respondent tried to persuade us to hold otherwise, we find ourselves unable to do so.
18. On the main issue, Mr. Banerjee’s simple submission was that upto the passing of the preliminary decree, nobody contested the right of the female heir to claim partition. This was because such right had already ‘arisen’ as per the wording of Section 23. The ancestor having died and the house in question being for a considerable time of about 9 years, not wholly occupied by the members of the family (10.6.73 to 4.7.82) the right to claim partition in favour of the female heirs had doubtless arises at that time and had remained so arisen for all that period.
19. According to Mr. Banerjee if the Court should now opine that on the vacating of the tenant, the right which had arisen, had collapsed, then such interpretation would introduce a most undesirable uncertainty in the wording of Section 23. The tenants might vacate after the passing of the preliminary decree, after the passing of the final decree, while the first appeal is pending, or may be when the second appeal is pending; the story almost never ends.
20. Mr. Ghosal submitted, on the other hand, that the purpose of Section 23 is to prevent fragmentation of a wholly occupied dwelling house at the instance of the female heir. According to him, the uncertainty envisaged by Mr. Banerjee is more of a theoretical than of a practical nature. Tenants, in practical life, simply do not walk in and out of the house. Moreover, once the final decree is affirmed, whatever be the stage of affirmation, and the properties are split, the matter ends there. But according to him, it does not, and should not in justice and before that time.
21. He drew a parallel with cases whether the landlord sues on the ground of reasonable requirement of the premises for himself. He said that such requirement must continue upto the time of the passing of the decree. If the reasonable requirement is proved, and then the requirement disappears, a decree for eviction cannot be passed.
22. Mr. Banerjee showed us from the wording of the tenancy laws that the bar in such cases is against the Court itself from passing a decree. But according to him, such a bar is not created with similar words in Section 23, Here, the right arises once Section 23 becomes inapplicable. Once the right arises there is nothing in the Act to indicate that such right can collapse once again.
23. As we see the issue, it is one of wise and judicious interpretation only. See how both the arguments can come to the extreme, in different theoretical possibilities which, though theoretical, are in no way absurd.
24. Take a case where a house is tenanted on the date of death of the ancestor. Suppose the tenant walks out the next day. According to Mr. Banerjee’s arguments, the right to partition has accrued to the female heir on the date of death and if on the very next date the tenant walks out and the members of the family of the deceased continue to occupy the house wholly, even then, the female heir can enforce partition. This will be so on the 2nd day after death, and even 20 years after death, even if the members have retained the wholly occupied nature and status of the family dwelling house. Should the Court, on these supposed facts be persuaded to hold that the property should not be a wholly occupied family dwelling house on the date of partition, whatever might have been the status before?
25. Now take the second possibility. The ancestor dies leaving a dwelling house, which the members of the family occupy, but which is partly tenanted. A partition suit is filed by a daughter. It succeeds. After the first decree, the tenant walks out. Since the right has now collapsed, the first appeal succeeds. After the first appeal it so happens that the tenant wins in a very chancy litigation and again walks into the house. The second appeal is decided in favour of the female heir. Then, when the sons are planning a trip to Delhi, the tenant serves a letter stating that he has tentative intentions of vacating three months hence. We ask the question, where do the parties stand in such a situation? Surely an uncertainty of this nature is more appropriate on a children’s playground rather in Courts of law.
26. We appreciate that both these sets of theoretical circumstances are far remote from what has actually happened in this case. But when one considers the logical interpretation of a section, one has to consider these extreme possibilities.
27. The extreme possibilities show that logic is not the answer to the interpretation of this section. It hardly ever is the lawyer and the Judge are not so much in need of logical intelligence as practical wisdom and common sense.
28. A look at Section 23 and a brief recapitulation of the incidents of ownership of property in general law, will show one in a moment, that this Section carves out a very odd legal estate. Generally speaking, transfer of property with serious curtailment of right of enjoyment, keeps the transfer valid, but the curtailments are all void. The principle is, that property conveyed should be free to be reconveyed. The modern law is not in favour of locked up property or property hedged in by complicated personal restrictions or liabilities.
29. In Section 23 a female heir gets her undivided share as much as any male heir, but she cannot claim partition of the family dwelling house. This is a restriction upon her ownership of the undivided share. This restriction on ownership only Parliament can enact. By enacting this, Parliament has created a special type of estate, the exact like of which was not known to law before 1956, although women’s limited enjoyment was well known. It is quite clear that this special type of estate should be allowed to arise only in those cases which satisfy the requirements of Section 23 and not in any others.
30. This is why the requirements of Section 23 are so stringent. If there is a very large dwelling house with but a single small tenant in one room and the resident members of the family are all agreed amongst the males that the house should remain as it is, the female member can claim partition nonetheless. It is that tenant in the single room who makes Section 23 inapplicable.
31. When conditions are this stringent, it cannot be the policy of the legislature, as made explicit in the section, as well as the general policy of the law, to restrain the hands of female heirs from exercising the full rights, even after those have once arises according to Section 23, because of some circumstances which purportedly seek to put the clock back.
32. We would not base our judgment on principles of waiver, brought into play by the continuing participation of the appellant before the Commissioner. If the right of the female heir could arise and collapse, if it could wax and wave, then it would be a question of the estate itself, changing from one type into another operation of statute. Waiver is too weak a shield to afford any protection against such a strong weapon.
33. We would base our judgment on the broad reason which, simply put indicates that if the right to partition has once arisen in favour of a female heir, in spite of the wording of Section 23, it can thereafter never collapse again.
34. As such, the appeal is dismissed with costs.
Tapan Kumar Dutt, J.
35. I agree.