{"id":167091,"date":"1996-04-17T00:00:00","date_gmt":"1996-04-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/narashimaha-murthy-vs-smt-susheelabai-ors-on-17-april-1996"},"modified":"2017-08-30T01:41:42","modified_gmt":"2017-08-29T20:11:42","slug":"narashimaha-murthy-vs-smt-susheelabai-ors-on-17-april-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/narashimaha-murthy-vs-smt-susheelabai-ors-on-17-april-1996","title":{"rendered":"Narashimaha Murthy vs Smt. Susheelabai & Ors on 17 April, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Narashimaha Murthy vs Smt. Susheelabai & Ors on 17 April, 1996<\/div>\n
Equivalent citations: 1996 AIR 1826, \t\t 1996 SCC (3) 644<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: Ramaswamy, K.<\/div>\n
           PETITIONER:\nNARASHIMAHA MURTHY\n\n\tVs.\n\nRESPONDENT:\nSMT. SUSHEELABAI & ORS.\n\nDATE OF JUDGMENT:\t17\/04\/1996\n\nBENCH:\nRAMASWAMY, K.\nBENCH:\nRAMASWAMY, K.\nKULDIP SINGH (J)\nPUNCHHI, M.M.\n\nCITATION:\n 1996 AIR 1826\t\t  1996 SCC  (3) 644\n JT 1996 (4)   300\t  1996 SCALE  (3)625\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nK.RAMASWAMY,J.\n<\/p>\n
     One Narasoji Rao, died intestate leaving behind him the
\nappellant,  the\t  only\tson   and  the\t respondents,  three
\ndaughters, after action at the latters’ behest for partition
\nwas laid.  The courts  below granted  preliminary decree for
\npartition in equal shares of the schedule A properties which
\ninclude “the  dwelling house of Narasoji Rao”. The appellant
\ncanvassed its  illegality and  impartibility of the dwelling
\nhouse, by  operation of\t Section 23  of the Hindu Succession
\nAct  1956,  (for  short,  the  `Act’)  which  was  met\twith
\ndismissal in  limine by\t the High  Court in  S.A. No.1045\/91
\ndated February\t21, 1992. Thus this appeal by special leave.
\nthe decree  for partition  of dwelling house has its support
\nfrom the ratio of Kariyavva v. Hanumantappa mallurappa,[1984
\nKar.L. J. 2731].\n<\/p>\n
     The only  question argued\tbefore us  is:\twhether\t the
\ndwelling house\tis partible,  when Narasoji  Rao left behind
\nhis only  son and  three daughters?  That  the\thouse  is  a
\ndwelling house is not in dispute. So the need to go into the
\nmeaning of  the words “dwelling house” is obviated. There is
\na cleavage  of judicial\t opinion among\tHigh Courts on their
\ninterpretation of Section 23 of the Act which provides thus:\n<\/p>\n
     “23.Special  provision   respecting
\n     dwelling  houses.\t Where\ta  Hindu
\n     intestate has left surviving him or
\n     her  both\tmale  and  female  heirs
\n     specified\tin   Class  I\tof   the
\n     Schedule and  his or  her\tproperty
\n     includes a\t dwelling  house  wholly
\n     occupied by  members of  his or her
\n     family,\tthen,\t notwithstanding
\n     anything contained in this Act, the
\n     right of  any such\t female heir  to
\n     claim  partition  of  the\tdwelling
\n     house shall  not  arise  until  the
\n     made heirs\t choose to  divide their
\n     respective shares\ttherein; but the
\n     female heir  shall be entitled to a
\n     right of  residence therein.
\n\t  Provided   that   where   such
\n     female  heir  is  a  daughter,  she
\n     shall be  entitled to  a  right  of
\n     residence\tin  the\t dwelling  house
\n     only if  she is  unmarried\t or  has
\n     been deserted  by or  has separated
\n     from her husband or is a widow.”
\n     The object\t and  reasons  to  enact
\n     S.23 have been stated thus:-
\n\t  “This\t clause\t  restricts  the
\n     right of  a female\t heir  to  claim
\n     partition of  the\tfamily\tdwelling
\n     house so  long as the male heirs do
\n     not choose\t to effect  partition of
\n     the same  but expressly  recognises
\n     her right to reside in such house.”<\/p><\/blockquote>\n
     The Orissa,  Karnatakas Bombay  and Gujarat High Courts
\nhave adopted literal meaning holding that the dwelling house
\nis partible  whereas the Calcutta, Madras and Allahabad High
\nCourts have taken contra view. We are called upon to resolve
\nthe conflicting\t opinions. The\tpurpose of the law is to met
\nout  justice;  in  other  words,  to  prevent  injustice  or
\nmiscarriage of\tjustice. In  our  view,\t the  interpretation
\nshould\tbe   consistent\t with\tjustice,  equity   and\tgood
\nconscience. Section  8 of  the Act provides general rules of
\nsuccession in  the case\t of males,  When a  male Hindu\tdies
\nintestate, the\tproperty shall\tdevolve, firstly,  upon\t the
\nheirs, being  the relatives  specified\tin  class-I  of\t the
\nSchedule……. On  the death  of a Hindu, the succession to
\nhis property  is open.\tIn  its\t partitions,  S.23  makes  a
\nspecial provision  respecting partibility  of  the  dwelling
\nhouse. When a Hindu intestate, whether male or female, has
\nleft surviving\thim or\tboth male and female heirs specified
\nin Class-I  of the Schedule and his or her property includes
\na dwelling  house wholly  occupied by  members of his or her
\nfamily, then, notwithstanding anything contained in the Act,
\nthe right of any such female heir to claim partition of the
\ndwelling house\tshall not  arise until the male heirs choose
\nto divide  their respective  shares therein,  but the female
\nClass-I\t heir,\tlike  unmarried\t or  widow  or\tdeserted  or
\nseparated daughter  of the deceased, shall have the right of
\nresidence therein,  When  the  deceased\t Hindu\tleft  behind
\nhim\/hers, only\tone male  heir and one or more female heirs,
\nthe  question\temerges:  whether   the\t dwelling  house  is
\npartible? By  operation of non obstante clause, the dwelling
\nhouse gets excluded from the operation of the general law of
\nsuccession envisaged  in the  Act  and\ta  special  rule  of
\nsuccession  has\t been  engrafted  in  S.23.  The  claim\t for
\npartition by  female heir  shall not  arise ‘until  the male
\nheirs choose  to divide their respective shares therein”. In
\nother words,  the right\t of the female heir for partition of
\nthe dwelling  house is\tpostponed till\tthe happening  of  a
\ncontingent event,  i.e the  decision by\t the male  heirs  to
\npartition the  dwelling house  in occupation  of the family.
\nThe literal construction of the above quotation connotes
\nthe existence  of more\tthan one  male heir  and so  long as
\ntheir volition\tto remain in possession and enjoyment of the
\ndwelling house\tsubsists or  they do not decide to partition
\nit or  part with  possession, the  female Class-I  heirs are
\nkept at\t a bay\tto claim  partition except  to the  right of
\nresidence in the enumerated events.\n<\/p>\n
     In Arun Kumar Sanyal v. Jnanendra Nath Sanyal [AIR 1975
\nCalcutta 232],\tthe intestate Hindu left behind him one male
\nheir and one female heir. The daughter transferred her share
\nin the\tdwelling house\tto a  stranger who laid the suit for
\npartition. The\tCalcutta High  Court held that S.23 makes it
\nclear that the legislature does not approve of division of a
\ndwelling house\tat the\tbehest of  a female heir against the
\n‘will’\tof  the\t male  member.\tThe  object  is\t to  prevent
\nfragmentation or disintegration of the family dwelling house
\nat the\tinstance of  the female\t heir to  the  hardship\t and
\ndifficulties to\t which male  heir may  be put to. The bar is
\nremoved only  on the  happening of  the contingency, namely,
\nwhen the  male heir chooses to divide the dwelling house. It
\nmay be\tthat there  is one male heir and one female heir and
\nthere may  not be  any chance of that contingency to happen,
\nbut that  will be  no ground  to say  that the Section 23 is
\ninapplicable. The  bar is not a personal bar and it does not
\ncome to\t an end\t when the  female heir loses her interest in
\nthe dwelling  house by transferring the same to another. The
\ncase  of  a  transferee\t of  a\tfemale\their  is  completely
\ndifferent and  cannot be  equated with\tthat of the son of a
\npre-deceased daughter  The above ratio was followed by other
\nDivision Benches  of that  court in  Surya Kumar Das v. Smt.
\nMaya Dutta  [AIR 1982  Calcutta 221]  and Smt. Usha Mazumdar
\nand Ors.  v. Smt.  Smriti Basu\t[AIR 1988  Calcutta 115]. In
\nMookkammal v.  Chitravadivammal [AIR  1980 Madras  243], the
\nMadras High  Court held that S.23 is intended to respect one
\nof the\tancient Hindu  tenets which  treasured the  dwelling
\nhouse of  the family as an impartible asset between a female
\nmember and male member. Therefore, the dwelling house is not
\nliable to  partition. But if the sole male member chooses to
\nsell his share in the dwelling house introducing a stranger,
\nthe female heir can file a suit for partition and possession
\nof her\tshare in  the property.\t In Janabi  Ammal v.  T.S.A.
\nPalani\thudaliar   [AIR\t 1981  Madras  62],  one  Swaminatha
\nMudiliar died intestate owning extensive properties, leaving
\nbehind the Alaintiff and other three daughters and two sons.
\nThe  daughters\t laid  suit   for  partition  of  properties
\nincluding the  dwelling house. Subsequently, one of the sons
\ndied and  the sole  son was  in possession  of the  dwelling
\nhouse. When  the question  of the  applicability of S.23 had
\ncome up for consideration the Division Bench held thus:\n<\/p>\n
     “The above\t section  is  a\t special
\n     provision\t  dealing    with    the
\n     partition of  a dwelling  house and
\n     the right\tof the\tmale and  female
\n     heirs  of\tthe  intestate\ttherein.
\n     There can be no doubt that a female
\n     heir specified  in Class  I of  the
\n     Schedule  to  the\tAct  inherits  a
\n     share in dwelling house absolutely.
\n     But, S.23\tpostulates the\tright of
\n     such  a   female  heir   to   claim
\n     partition\tof  the\t dwelling  house
\n     until  the\t male  heirs  choose  to
\n     divide  their   respective\t  shares
\n     therein.  The  object  behind  this
\n     section  seems  to\t be  to\t prevent
\n     fragmentation or  disintegration of
\n     a\tfamily\tdwelling  house\t at  the
\n     instance of a female heir or heirs,
\n     to the prejudice of the male heirs.
\n     This is  based  on\t the  principles
\n     embodied in S.44 of the Transfer of
\n     Property  Act.  The  contrary  view
\n     will cause\t gross injustice  to the
\n     single male  heir and the object of
\n     the section  will be nullified. The
\n     hardship  to  the\tfemale\their  of
\n     postponement   of\t  partition   is
\n     relatively less.”<\/p><\/blockquote>\n
     In Ponnuswamy  v. Meenakshi  Ammal and  Ors., [1989 (2)
\nM.L.J. 506],  another Division\tBench  reiterated  the\tsame
\nview. In  Purnawari v.\tSukhadevi, [AIR 1986 Allahabad 139],
\nthe Court took the same view.\n<\/p>\n
     In Vanitaben  Bhaisharker Pandya  v. Divaliben Premji &
\nOrs. [1979 (2) G.L.R. 148], the Division Bench held that for
\nthe application\t of  S.23,  the\t whole\thouse  must  be\t the
\ndwelling house wholly occupied by the members of the family.
\nIn that\t case the  house consisted of residential portion in
\nthe occupation\tof the\tfamily and the shop was let out. So,
\nS.23 was held to be not applicable.\n<\/p>\n
     In Hemalata   Devi\t v. Umasankari\tMoharana, [AIR\t1975
\nOrissa 208],  the Division Bench held that if there are more
\nthan one  main heirs,  there would  be\tthe  possibility  of
\nanyone of  such heirs asking for a partition of the dwelling
\nhouse and  the female  heir in\tsuch a case cannot claim her
\nshare. But  where there\t is a  single male heir, there is no
\npossibility of that male heir claiming any partition against
\nanother male  heir. Thus  where there  is a single male heir
\nand others  are female\theirs, the female heirs are entitled
\nto claim  partition. Their  right to  claim partition of the
\ndwelling house\tis not\texcluded by  S.23  of  the  Act.  In
\nKariyavva’s   case (supra)   only  son and daughter were the
\nclass-I heirs  of the  intestate deceased father. The Bench,
\nwhile agreeing with the ratio in Orissa case, held that when
\nthere is  only one  male heir quite obviously the conditions
\nenvisaged by  the special provision cannot be satisfied. The
\nsuccession cannot  be kept in abeyance as indeed, first, the
\nintestate Hindu cannot be said to have left surviving him or
\nher both male and female heirs and, secondly,the contingency
\nof the\tmale heirs chosing to divide their respective shares
\ntherein,does not  adim of  being fulfilled  Section 23\tgets
\nattracted only\twhere an  intestate Hindu  leaves  surviving
\nboth male   and\t female heirs.\tThe second part deals with a
\nposition which becomes relevant only when the section itself
\nis attracted. The Court further observed thus:\n<\/p>\n
     “Under  the   Act,\t a  female  heir
\n     succeeds to  the estate  of a Hindu
\n     dying  intestate.\tThat  succession
\n     cannot be\theld in\t abeyance, Under
\n     certain circumstances, the right to
\n     a\tshare  vesting\tin  an\their  is
\n     rendered an  imperfect right in the
\n     sense the\tremedy\tof  reducing  it
\n     inessence\t by    actual\tphysical
\n     partition\tis  postponed  till  the
\n     happening\tof  another  event.  The
\n     conditions\t that\tmake  the  right
\n     imperfect are  referred to\t in  the
\n     first part\t of S.23.  i.e. “that  a
\n     Hindu intestate  has left both male
\n     and female\t heirs and  his property
\n     includes a\t dwelling  house  wholly
\n     occupied  by   the\t member\t of  his
\n     family.”  The  non-obstanti  clause
\n     operates only upon the existence of
\n     these conditions.\tThe other  event
\n     which renders  the right,\tagain, a
\n     perfect right is the event by which
\n     the male  heirs  choose  to  divide
\n     their  respective\tshares\ttherein.
\n     This would\t suggest that Section is
\n     attracted only  if\t the  conditions
\n     contemplated in  the first\t part of
\n     the Section comes into existence.”<\/p><\/blockquote>\n
     If there  is only\tone  male  heirs  the  circumstances
\nenvisaged in  the first part of the section do not come into
\nexistence and  the section  does not  come into operation at
\nall. The  provisions of\t this section cannot be applied to a
\ncase where there is a single male heir without rewriting the
\nsection and  reading into  it quite  a\tfew  alterations  of
\nlanguage, structure  and syntax.  The expressions “heir” and
\n“male” heirs choose to divide their respective shares” would
\nthen become  wholly opposite  in meaning.  Both the  literal
\nconstruction and  the  intendment  would  suggest  that\t the
\npostponement of\t partition is conditional upon there being a
\nplurality of  male heirs  and not  otherwise. Therefore, the
\npostponement of the right of female heirs to claim partition
\nrespecting the\tfamily dwelling\t house was  only where there
\nwas a  plurality of  male heirs\t a situation which, in turn,
\nrenders the satisfaction or the next condition, namely, that
\nthey choose  to divide\ttheir respective  shares therein,  a
\npossibility and a reality. Any other construction would lead
\nto this\t that while  the  section  on  its  plain  language,
\nprescribes a  condition which  admits of being fulfilled, we
\nwould by construction,introduce into the section a condition
\nwhich does  not admit  of fulfillment  at all.\tIn Anant  v.
\nJanaki Bai [AIR 1984 Bombay 319], the Bombay High Court also
\ntook the same view.\n<\/p>\n
     In Mulla’s\t Hindu Law  (16th Edn.),  revised by Justice
\nS.T. Desai, it is stated thus :\n<\/p>\n
     “The  right   of  a   female   heir
\n     specified\tin   Class  I\tof   the
\n     Schedule to demand actual partition
\n     of the  family  dwelling  house  is
\n     deferred and kept in abeyance until
\n     the male heirs specified in Class I
\n     decide to\tpartition it, that is to
\n     divide it\tby metes  and bounds  or
\n     realise\tits    sale    proceeds.
\n     Reference\tmay   be  made\t to  the
\n     undermentioned  decision\tof   the
\n     Allahabad High  Court, Purnawasi v.
\n     Smt. Sukha\t Devi,\tunder  agreement
\n     has  been\t expressed  with   these
\n     views. Question  may perhaps  arise
\n     whether  the   Special  restriction
\n     enacted  in  this\tsection\t on  the
\n     right of  a female\t heir to  demand
\n     actual  partition\t of  the  family
\n     dwelling house  applies when  there
\n     is\t only\tone  male  heir\t of  the
\n     intestate\tunder  Class  I\t of  the
\n     Schedule. The words ‘until the male
\n     heirs  choose   to\t  divide   their
\n     respective\t shares\t  therein’   may
\n     suggest that there must be at least
\n     two  such\t male\theirs\tif   the
\n     restriction  is   to  operate.  The
\n     object of\tthe special provision is
\n     to\t  prevent   female   heirs   and
\n     particularly  a   daughter\t of  the
\n     intestate from creating a situation
\n     in which  partition of  the  family
\n     house may\tentail a  forced sale of
\n     it or  otherwise cause  hardship to
\n     the son  or sons  of the  intestate
\n     where it  may not\tbe possible  for
\n     the son  or sons  to  buy\toff  the
\n     share  of\t the  female   heir  who
\n     insists on\t actual partition of it.
\n     It\t is   submitted\t that  there  is
\n     nothing repugnant in the subject or
\n     context to prevent the operation of
\n     the rule  laid down in section 1 of
\n     the  General  Clauses  Act\t to  the
\n     effect  that   the\t  plural   shall
\n     include  the   singular   and   the
\n     restriction will  apply even  where
\n     there is  only one\t male  heir  who
\n     does  not\t choose\t to  divide  his
\n     respective share  in  the\tdwelling
\n     houses It would seem that the right
\n     of female\their to demand partition
\n     may  be   deferred\t and  remain  in
\n     abeyance under  this  section  till
\n     the  lifetime  of\tthe  male  heirs
\n     enumerated\t in   Class  I\t of  the
\n     Schedule or  the last  survivor  of
\n     them  unless  a  partition\t of  the
\n     dwelling house is sought by any one
\n     of\t then\tbefore\tsuch  time.  The
\n     restriction will  cease to\t operate
\n     on the  death of  the last\t of such
\n     male  heirs  of  the  intestate  or
\n     where there  are only one male heir
\n     and one  female heir  and the  male
\n     heir chooses  to sell his moiety in
\n     the dwelling house.”<\/p><\/blockquote>\n
     In Raghavachariar’s  Hindu Law  (8th Edn.)\t revised  by
\nProf. Venkataraman, it is stated thus:\n<\/p>\n
     “The provision  that in the case of
\n     a\tdwelling   house  left\t by  the
\n     intestate his  or her  female heirs
\n     can claim partition thereof only if
\n     the  male\their  choose  to  divide
\n     their respective  shares therein is
\n     a salutary\t provision  designed  to
\n     avoid  confusion\tshown  into  the
\n     family by\tthe female  members such
\n     as\t the  daughters\t and  daughter’s
\n     daughters\t whose\t  moorings   are
\n     elsewhere\ton   account  of   their
\n     marriage,\tseeking\t  to  take  away
\n     their shares  and\tthrow  the  male
\n     members  into   the  streets.   The
\n     disability of  female heir to claim
\n     a partition  when the  male members
\n     are  not\twilling\t to   effect   a
\n     partition is  an echo  of\tthe  law
\n     that prevailed  prior to  this  Act
\n     under the Mitakshara under which no
\n     female is\tentitled to a share on a
\n     partition could  claim a  partition
\n     except when the male members of the
\n     family  effect   a\t partition.  The
\n     restriction  has  been  imposed  to
\n     prevent the  fragmentation\t of  the
\n     dwelling house  at the  instance of
\n     female heirs.”<\/p><\/blockquote>\n
     When succession  of a  Hindu intestate is open, his\/her
\nClass-I heirs  specified in  the Schedule  is entitled\tat a
\npartition to  their respective shares. The succession cannot
\nbe postponed.  However, exception has been engrafted by S.23
\nrespecting tradition  of preserving family dwelling house to
\neffectuate family  unity and  prevent its  fragmentation  or
\ndisintegration by  dividing it\tby  metes  and\tbounds.\t The
\nprohibition gets  lifted when  male  heirs  have  chosen  to
\npartition it. The words specified in Class-I of the Schedule
\nand S.23,  are used  in a descriptive sense to economise the
\nword denoting  the  legislative\t animation.  The  expression
\n“dwelling house’  though not defined in the Act, the context
\nwould indicate that it is referable to the dwelling house in
\nwhich the  intestate Hindu was living at the time of his\/her
\ndeath; he\/she  intended that his\/her children would continue
\nto normally  occupy and\t enjoy it.  He or she regarded it as
\nhis or her permanent abode. On his or her death, the members
\nof the\tfamily can be said to have continued to\u00ffpreserve the
\nsame to\t perpetuate his\/her  memory. Obviously\tS.23  is  an
\nexception to  the general  rule of  succession and  has been
\nengrafted for  that purpose.  Where there  are only one male
\nheir and  one or more female heirs are left surviving behind
\nthe  Hindu  intestate,\tthe  members  of  the  family  would
\ncontinue to  remain in\toccupation and in enjoyment of it as
\ndwelling house.\t Due to\t marriage, the\tdaughter would leave
\nthe parental  house and\t get transplanted  into\t matrimonial
\nhome. The  proviso to  S.23 visualizes certain contingencies
\nand made  provision for right of residence to Class-I female
\nheirs. In  the event  of the  male member  (s)\tchose(s)  to
\nseparate or  cease (s)\tto reside  or  instead\tintroduce  a
\nstranger into  family house,  then the\tfemale heir gets the
\nright to  a  share  in\tthe  dwelling  house  as  well.\t The
\nreverence to  preserve the  ancestral house in the memory of
\nthe father  or mother  is not  the exclusive preserve of the
\nson  alone.   Daughter\ttoo   would  be\t  anxious  and\tmore
\nreverential to preserve the dwelling house to perpetuate the
\nparental memory.\n<\/p>\n
     Section 23\t thus limits the right of the Class-I female
\nheirs of  a Hindu  who died  intestate while  both male\t and
\nfemale heirs are entitled to a share in the property left by
\nthe Hindu  owner including  the dwelling house. The marginal
\nnote  itself   indicates  that\t Section  23  is  a  special
\nprovision: in other words, it is an exception to the general
\npartition.  So\tlong  as  the  male  heir(s)  chose  not  to
\npartition the dwelling house, the female class-I heir(s) has
\nbeen denied  the right\tto claim  its partition subject to a
\nfurther exception, namely, the right to residence therein by
\nthe female class-I heir(s) under specified circumstances. In
\nother  words,\tthe  male   heir  (s)  becomes\tentitled  to
\nperpetuate the\tmemory of  the deceased-Hindu who died while
\nremaining to  live in  the dwelling  house during his or her
\nlife. Thereby  the dwelling  house remains  indivisible. The
\nmale heir(s)  thereby evinces  animus  possedendi.  But\t the
\nmoment the  sale heir(s)  chooses to  let out  the  dwelling
\nhouse to  a stranger\/third party, as a tenant or a licensee,
\nhe or  they exhibit  (s) animus\t dessidendi and the dwelling
\nhouse thereby becomes partible. Here the conduct of the male
\nheir(s) is  the cause  and the\tentitlement  of\t the  female
\nClass-I heir(s)\t is the\t effect and  the latter’s  claim for
\npartition gets\tripened into right as she\/they is\/are to sue
\nfor partition  of the  dwelling house,\twhether or  not\t the
\nproviso comes  into play.  Here the  female heir(s)  becomes
\nentitled to  not only  mere partition  of the dwelling house
\nbut also her right to residence after partition.\n<\/p>\n
     It is,  therefore,\t clear\tthat  though  the  right  to
\nsuccession devolves  upon the  female heir  under S.8, being
\nClass-I heir  to the  Hindu intestate,\tin  respect  of\t the
\ndwelling  house,  her  right  to  seek\tpartition  has\tbeen
\ninterdicted and\t deferred only\tso long\t as the male heir(s)
\ndecide to  remain occupied  therein as undivided or continue
\nto have\t it as\ta dwelling house. Though the words ‘the male
\nheirs choose  to divide\t their respective  shares’,  suggest
\nthat at\t least two such male heirs must exist and decide not
\nto partition  the dwelling house in which event the right of
\nthe female  heir is postponed and kept in abeyance until the
\nmale  heir  or\theirs  of  the\tHindu  intestate  decide  to
\npartition it,  it does\tnot necessarily\t lead  to  the\tonly
\ninevitable conclusion  that the operation of S.23 must stand
\nexcluded in  the case  of the Hindu intestate leaving behind
\nhim\/her surviving  only son  and daughter.  Take the present
\npolicy of  family. planning  to have  only two\tchildren and
\ninvariably preferring  to have a son and daughter. More than
\none son\t may not  exist. The  restriction is  contingent and
\nconditional and\t will cease  to operate\t on the death of the
\nsole male  heir or  the last  of  such\tmale  heirs  of\t the
\nintestate or  if he  or they  choose (s)  to  partition\t and
\nsell(s) his\/their  shares to  a stranger  or to\t let out  to
\nothers. Take  a case of a Hindu male or female owning a flat
\nin metropolis or major cities like Bombay etc. with two room
\ntenengent left\tbehind by  a Hindu  intestate. It may not be
\nfeasible to be partitioned for convenient use and occupation
\nby both\t son and  daughter and to be sold out. In that event
\nthe son\t and his  family will  be thrown  on streets and the
\ndaughter would\tcoolly walk  away  with\t her  share  to\t her
\nmatrimonial hone  causing great\t injustice to  the  son\t and
\nrendering them\thomeless\/shelterless. With  passage of time,
\nthe female  members having lost the moorings in the parental
\nfamily after  marriage may  choose to  seek partition though
\nnot  voluntarily   but\tby   inescapable   compulsions\t and
\nconstrained to\tseek partition and allotment of her share in
\nthe dwelling  house of\tintestate father  or mother. But the
\nson with  his share  of money may be Incapable to purchase a
\ndwelling house\tfor his\t family and the decree for partition
\nwould make  them shelterless.  Take  yet  another  instance,
\nwhere two-room\ttenement flat was left by deceased father or
\nmother apart  from other  properties. There  is no love lost
\nbetween brother\t and sister. The latter demands her pound of
\nflesh at  an unacceptable  price and  the male heir would be
\nunable to  buy off her share forcing the brother to sell the
\ndwelling flat  or its  lease-hold right\t or interest  to see
\nthat the  brother and his family are thrown into the streets
\nto satisfy her ego. If the right to partition is acceded to,
\nthe  son   will\t be  left  high\t and  dry  causing  greatest
\nhumiliation and justice.\n<\/p>\n
     Take an  instance of  a mansion. The entire mansion may
\nnot be\tin use\tas a  dwelling unit by the male heirs though
\nthe father  kept it.  as a  dwelling  unit.  To\t the  extent
\nnecessary for the use by the male member as a dwelling house
\nit can\tbe preserved  and the  rest could be partitioned and
\nthe fomer  may be  allotted to the son while working out the
\nequities in  the partition.  Take another illustration where
\nin addition  to the  dwelling  house  other  properties\t are
\navailable for  partition which\tmay be allotted to the share
\nof the\tsister or  sisters, while  the dwelling house at the
\noption of  the son  may be  allotted towards  his share.  In
\nthese events, the need to postpone succession may not arise.\n<\/p>\n
     Educational,   job\t   or\tavocational    opportunities
\nnecessitate migration  and settlement  in another  State  or
\nabroad which  are a common feature. Grace to give when he is
\nin affluent   position and allows female he to wholly occupy
\nand enjoy  parental home  apart, in  working  out  equities,
\ninstead of  fragmentation of  it by  metes and\tbounds,\t the
\nhouse may  be allotted\tto the\tshare of  the female heir so
\nthat she  would perpetuate  the money of the parental abode.
\nTake yet  another instance where son due to being in service
\nis transferred\tto another  place or places and consequently
\nhe has\tto leave his dwelling house  and join  at the  place
\nor   places  of\t his posting. Instead  of keeping  the house
\nlocked, he  may lease it out  or grant leave or licence to a
\ntenant. The  cessation of  possession and  enjoyment of\t the
\ndwelling house is not due to his  own volition\tbut  due  to
\ncompulsion   to\t  eke\tout livelihood and this cause should
\nnot give  rise to  a cause of action to a sister to file the
\nsuit for partition.\n<\/p>\n
     Suppose ‘A’  and ‘B’  are brother\tand sister. ‘A’ is a
\nJudge of  the High  Court. He  on elevation  to the  Supreme
\nCourt shifted his residence to Delhi. Instead of keeping his
\nhouse vacant he lets out the house to a tenant. Does it mean
\nthat ‘A’ had ceased to have intention to be in possession of
\nthe house  entitling ‘S’  to file  a suit for partition. ‘A’
\nhas intention  to retain  possession but  due to exigency of
\noffice he holds, he temporarily ceases to – have occupation,
\nbut his intention to return to his house and occupy the same
\non superannuation  still subsists  and on return he would be
\nentitled to residence.\n<\/p>\n
     Suppose ‘A’  is the  father, ‘B’  is the son and ‘C’ is
\nthe daughter.  They reside at ‘H’ place. ‘A’ is the Judge of
\nthe High  Court, ‘B’  practices in the Supreme Court and ‘C’
\npractices at  ‘H’. ‘B’\ton account of his practice ceases to
\nhave intention\tto reside at ‘H’ place and on demise of ‘A’,
\n‘C’ may\t be given  the house for her residence to perpetuate
\nthe memory  of the  parental abode  or else  it is liable to
\npartition at  an action\t of ‘C’. Take another instance where
\n‘A’ is\ta Clerk\t in  a\tBank.  As  per\tthe  policy  of\t the
\nmanagement on  promotion  to  officer  cadre,  he  shall  be
\ncompulsorily transferred  at least  for three  years outside
\nthe State.  Suppose if\the joins  in the  other State and if
\nS.23 is applied the moment he ceases to occupy the house. it
\nbecomes liable\tto partition  at a suit by his sister though
\nhe returns  on completing  three years to his home State. To
\navoid such  a hardship,\t either he  has to forego his future
\npromotions in career and remain as a Clerk or face the peril
\nof losing his right in his father’s abode.\n<\/p>\n
     Take another  illustration, where\tthe sole  male\their
\nwith a\tview to\t prevent a  female  heir  of  her  right  to
\nresidence in  the dwelling  house lets\tit out\tand occupies
\nanother tenanted premises for himself and for the members of
\nhis family.  Female held  cannot  be  expected\tto  fight  a
\nlitigation against the tenant; instead she\/they are entitled
\nto file\t a suit\t for general  partition impleading tenant it
\nnot already  made party\t for partition of the dwelling house
\nlet out\t at the\t general partition and seek for allotment of
\nher share  therein for\ther residence and the tenant in that
\nevent would  be entitled  to residence\tonly to that part of
\nthe premises  allotted towards\tthe share  af his  landlord,
\nthough the  tenancy was for the entire building. The conduct
\nof letting  by the  male heir  leads to the fragmentation of
\nthe dwelling house and he cannot have a cause to complain of
\nthe female  heir’s claim for partition nor he has a right to
\nresist her  demand for partition to workout her share in the
\ndwelling house.\n<\/p>\n
     The  above\t  consideration\t would\t indicate  that\t the
\nlegislature  intended  that  during  the  life-time  of\t the
\nsurviving male\their(s) of  the\t deceased  Hindu  intestate,
\nhe\/they should\tlive  in  the  parental\t dwelling  house  as
\npartition thereof  at the  behest of  the female  heir would
\nrender the  male heir  homeless\/shelterless.  Obviously,  to
\nprevent\t such\thardship  and\tunjust\tsituations   special
\nprovision was  made in\tS.23 of impartibilty of the dwelling
\nhouse. Section\t44 of the  Transfer of Property Act and also
\nS.4(1)\tof   the  Partition   Act  appear  to  prevent\tsuch
\nfragmentation of  the  ancestral  dwelling  house.  Singular
\nincludes plural under S.13(2) of the General Clauses Act and
\nmay be\tapplied to  S.23 as  it is not inconsistent with the
\ncontext or  subject. Even  without resorting to it or having
\nits aid for interpretation by applying common sense, equity,
\njustice and  good conscience,  injustice would be mitigated.
\nAfter all, as said earlier, the to prevent brooding sense of
\ninjustice. It is not the words of the law but the spirit and
\ninternal sense\tof it  that takes  the law  meaningful,\t The
\nletter of  the law  is the  body but the sense and reason of
\nthe law\t is the\t soul. Therefore  pragmatic  approach  would
\nfurther the  ends of  justice and relieve the male or female
\nhair From  hardship and\t prevent unfair\t advantage  to\teach
\nother. It  would therefore, be just and proper for the Court
\nto adopt  common sense\tapproach keeping  at the back of its
\nmind, justice,\tequity and  good conscious  and consider the
\nfacts and  circumstances of  the case  on hand. The right of
\nresidence to  the male\tmember in  the dwelling house of the
\nHindu intestate\t should be  respected and the dwelling house
\nmay be\tkept impartible during the life purpose of law is to
\nprevent brooding  sense time  of the  sole male\t heir of the
\nHindu intestate\t or until  he chooses  to divide and gives a
\nshare to  his sister  or sisters  or alienate his share to a
\nstranger or  lets it  out to  others, etc.  Until then,\t the
\nright of  the female heir or heirs under S.8 is deferred and
\nkept  in  abeyance.  So,  instead  of  adopting\t grammatical
\napproach to  construe S.23,  se are  of the  considered view
\nthat the  approach of  the Calcutta and its companion Courts
\nis consistent  with justice,  equity and good conscience and
\nwe approve  of it. We accordingly hold that S.23 applies and
\nprohibits partition  of dwelling house of the deceased Hindu
\nmale or\t female intestate, who left surviving sole male heir
\nand female  heir\/heirs and  the right  to claim partition by
\nfemale heir is kept in abeyance and deferred during the life
\nof the\tmate heir  or till he partitions or ceases to occupy
\nand enjoy  it or  lets it out or till at a partition action,
\nequities are worked out.\n<\/p>\n
     Admittedly the  suit was  filed in\t 1980 when  the High
\nCourt had not ruled on 5.23. The Schedule ‘A’ dwelling house
\nwas leased  out to  the 7th defendant. the appellant pleaded
\nin  the\t  written  statement   that  he\t  had  spent  around
\nRs.1,24,000\/- and  odd on  the marriage\t of  the  plaintiff-
\nrespondent. The\t property was,\tthereby\t not  partible.\t The
\nMunsif found  that Schedule  ‘A’ property  is the  ancestral
\ndwelling house\tand that  the Schedule ‘B’ site is the self-
\nacquired property  of the  father which\t was affirmed by the
\nappellate Court.  It would  thus be clear that the appellant
\nhad not\t pleaded  that\tthe  letting  of  the  Schedule\t ‘A’
\ndwelling house\twas on\tany extenuating circumstances and it
\nwas not\t a voluntary  one. In  other words, it is clear that
\nthe appellant had inducted strangers into the dwelling house
\nand had\t lost his animus possedendi. Accordingly S.23 became
\ninapplicable to the facts of this case. In that view, though
\nfor different  reasons, the  appeal  needs  no\tinterference
\nwhich is accordingly dismissed. No costs.\n<\/p>\n
<\/p>\n
Narashimaha Murthy
\nV.\n<\/p>\n
Smt. Susheelabai & Ors.\n<\/p>\n
\t\t      J U D G M E N T
\nPunchhi,J
\n     The<\/p>\n
<\/a> special  and multiangular  provision, Section 23 of
\nthe Hindu Succession Act, 1956, emits two legal questions of
\nimportance for\tdetermination, in  this\t appeal\t by  special
\nleave, against\tthe order  of the Karnataka High Court dated
\n21-2-1992 in R.S.A. No.1045 of 1991, affirming in limine the
\nappellate order\t of the\t CITY Judge,  Ramanagaram  dated  22
\nOctober 1990 in R.A. No. 31 of 1985 namely:<\/p>\n
     (i) What  is a  ‘dwelling-house’ on
\n     which  the\t provision  confers  the
\n     cloak of impartibility? and\n<\/p><\/blockquote>\n
     (ii) Where a Hindu intestate leaves
\n     surviving him  or her a single male
\n     heir and one or more female heir or
\n     heirs, specified  in Class I of the
\n     Schedule,\t  is\tthe    provision
\n     attracted?<\/p><\/blockquote>\n
     It would  be  worthwhile  to  reproduce  hereafter\t the
\nprovision engaging  attention as  also the  relevant part of
\nthe Schedule:\n<\/p>\n
“23. SPECIAL PROVISIONS RESPECTING DWELLING-HOUSES – Where a
\nHindu intestate\t has left surviving him or her both male and
\nfemale heirs specified in Class I of the Schedule and his or
\nher property  includes a  dwelling-house wholly\t occupied by
\nmembers of his or her family, then, notwithstanding anything
\ncontained in  this Act, the right of any such female heir to
\nclaim partition\t of the dwelling-house shall not arise until
\nthe male  heirs choose\tto divide  their  respective  shares
\ntherein; but the female heir shall be entitled to a right of
\nresidence therein:\n<\/p>\n
     Provided that where such female heir is a daughter, she
\nshall be  entitled to  a right of residence in the dwelling-
\nhouse only  if she  is unmarried  or has been deserted by or
\nhas separated from her husband or is a widow.”\n<\/p>\n
\t\t\tTHE SCHEDULE
\n\t\t      HEIRS IN CLASS I
\n     “Son; daughter;  widow; mother;  son of  a\t predeceased
\n     son;  daughter   of  a   predeceased  son;\t  son  of  a
\n     predeceased  daughter;   daughter\tof   a\t predeceased
\n     daughter;\twidow\tof  a  predeceased  son;  son  of  a
\n     predeceased son  of a  predeceased son;  daughter of  a
\n     predeceased son  of  a  predeceased  son;\twidow  of  a
\n     predeceased son of a predeceased son”
\n     Some facts may now be noted.<\/p><\/blockquote>\n
     The  appellant.   Narashimaha  Murthy  and\t his  father
\nNarasoji  Rao\towned  a  joint\t family\t house,\t Schedule  A
\nproperty. Besides that Narasoji Rao owned some self acquired
\nproperty, Schedule B property. He died somewhere in the year
\n1968 leaving  behind his  son, the  appellant,\tNagubai\t his
\nwidow, and  five daughters.  Twelve years after the death of
\nNarasoji  Rao,\tone  of\t his  daughters,  Smt.\tSusheelabai,
\nPlaintiff- respondent  herein filed a suit for partition for
\nobtaining one  seventh share  in the  properties of Narasoji
\nRao impleading\ther brother,  the appellant,  her mother and
\nfour sisters  as defendants. The seventh defendant impleaded
\nwas the\t tenant of  Schedule A\tproperty occupying  it on  a
\nmonthly rent  of Rs.75\/-  The mother Nagubai died during the
\npendency of  the suit, which made the plaintiff increase her
\nclaim to  one-sixth share  in the  properties. The  suit was
\nresisted by  the appellant  on grounds\tinter-alia that\t the
\nplaintiff-respondent could not seek partition of Schedule A
\nproperty, it  being a  joint dwelling-house,  as  understood
\nunder section  23 of  the Hindu\t Succession Act, 1956, which
\nprovision was  otherwise not  attracted, when there was only
\none male  heir amongst the heirs surviving. It was otherwise
\nnot in\tdispute that  the house in question stood rented out
\nto the seventh defendant but for the rate of rent. The Trial
\nCourt rejecting the defence of the appellant, determined the
\nshare of the plaintiff-respondent in Schedule A property
\nas 1\/12 (the intestate having half share in the house
\nand the\t other half being that of the son) and in Schedule B
\nproperty as  1\/6th. In\taccordance therewith  the plaintiff-
\nrespondent was granted a preliminary decree for partition on
\nOctober 31,  1985. A  separate enquiry was kept by the Trial
\nCourt for determining the mesne profits from the date of the
\nsuit till the date of
\nactual handing\tover of possession. The first as well as the
\nsecond appeal of the appellant to challenge the judgment and
\ndecree of  the Trial  Court having been dismissed, has given
\nhim cause to bring the dispute to this Court for resolution.\n<\/p>\n
     The admitted  fact-situation now  is that\tthe house in
\nquestion is  in the actual physical possession of the tenant
\nand none  of the  heirs of Narasoji Rao, male or female, are
\nin possession  thereof. It  has now to be determined whether
\nthe suit  of the  plaintiff-respondent could successfully be
\nresisted by  the appellant  in the  light of the afore-posed
\nquestions,  on\t the  anvil  of\t Section  23  of  the  Hindu
\nSuccession Act.\n<\/p>\n
     The expression  “dwelling-house” has not been explained
\nelsewhere than\tin  the\t Section  23  itself.  There  is  no
\nspecific definition  of the  expression in  the Act as such.
\nBecause of  that, various  commentators of  the subject have
\nforeseen that  the courts  were likely\tto face a problem in
\ndefining it.  According to Webster Comprehensive Dictionary,
\nthe expression\t“dwelling-house” means\ta  house  built\t for
\nhabitations a  domicile. In  law it may embrace the dwelling
\nitself and such buildings as are used in connection with it.
\nAccording to  Black’s Law  Dictionary (sixth edition), under
\nstatute\t prohibiting  breaking\tand  entering  a  “dwelling-
\nhouse”, the  test for  determining if  a building  is such a
\nhouse is  whether it  is used regularly as a place to sleep.
\nIn  Stroud’s   judicial\t Dictionary   (fifth  edition),\t the
\nexpression “dwelling-house”  has been  described as  a house
\nwith the  super-added requirement that it is dwelt in or the
\ndwellers in which are absent only temporarily, having animus
\nrevertendi and\tthe legal  ability to return Ford v. Barnes,
\n[55 L.J.Q.B.34].  It is described that the word “inhabitant”
\nwould seem to bring about more fully the meaning of the word
\n“dwelling-house”. In  Words and\t Phrases (Third\t Edition)] a
\nquotation is  available from  Lewin v.\tEnd [1906  AC 299 at
\n304] attributed to Lord Atkinson in whose words a “dwelling-
\nhouse” as  understood by  him was  “a house  in which people
\nlive or\t which is physically capable of being used for human
\nhabitation”. Another  quotation from R. v. Allison [1843 (2)
\nLTOS 288  at 289]  is available\t of Maule,  J. saying that a
\nhouse, as  soon as  built and fitted for residence, does not
\nbecome a  dwelling-house until\tsome person dwells in it. In
\nT.P. Mukherjee’s  The Law  Lexicon (Volume  I) 1989,  it  is
\nstated at  page 565  that a  dwelling-house,  as  the  words
\nimply, projects\t the meaning  that the\thouse or  a  portion
\nthereof is  an abode  of his,  available to him at all times
\nwithout any  let or  hindrance by others. Further thereat is
\nstated that  a dwelling place is one where a person inhabits
\nand in\tlaw should  be his  domus  mansionalis.\t In  Aiyar’s
\nJudicial Dictionary  (11th Edition),  an old decision of the
\nAllahabad High\tCourt in Fatime Begum v. Sakina Begum [1 All
\n51] has\t been mentioned\t in which  it has been held that the
\nwords “dwelling\t or “residence” are synonymous with domicile
\nor home\t and mean  that place  where a\tperson has his fixed
\npermanent home\tto which  whenever he  is absent, he has the
\nintention of  returning. An  extraction from Commissioner of
\nIncome Tax  v. K.S. Ratanaswamy [1980 (2) SCC 548 at 553] is
\nalso quotable saying that primarily the expression “dwelling
\nplace”\tmeans\t“residence”,  “abode”  or  “home”  where  an
\nindividual is  supposed usually to live and sleep and in the
\ncontext of  a taxing  provision which  lays down a technical
\ntest of\t territorial connection\t amounting to residence, the
\nconcept of  an “abode” or “home” would be implicit in it. In
\nother words,  a dwelling  place must  be a  house or portion
\nthereof which  could be\t regarded as an abode or home of the
\nassessee in taxable territories.\n<\/p>\n
     From the  aforequoted statements it is manifest that in
\nthe legal  world the word “dwelling-house” is neither a term
\nof art\tnor just a word synonymous with a residential house,
\nbe it  ancestral, joint\t family owned  or self\tacquired, as
\nunderstood in  the law\tapplicable to Hindus. In the context
\nof section  23 therefore  when the  legislature has chosenly
\nemployed the  word “dwelling-house”,  it has  done so with a
\npurpose, which is to say that on the death of the intestate,
\na limited status quo should prevail as existing prior to his
\nor her\tdeath. His  or her abode, shared by him or her, with
\nmembers of his or her family identifiable from Class I Heirs
\nof the Schedule, should continue to be in enjoyment thereof,
\nnot partible  at the  instance of  the female heirs till the
\nmale heirs choose to effect partition thereof.\n<\/p>\n
     There are\ttwelve Class  I heirs  in the Schedule. They
\nmay be arranged in the following manner:\n<\/p>\n
     MALES\t   FEMALES OTHER\tFEMALES WHO ARE\n\t\t   DAUGHTERS\t\tDAUGHTERS\n\t\t   ---------\t\t---------\ni)   son\t   i) mother\t\ti) daughter\nii)  son of\t   ii) widow\t\tii) daughter of pre-\n     predece-\t\t\t\tdeceased son\n     ased son\niii) son of\t   iii)widow of pre-\tiii)daughter of pre-\n     predece-\t   deceased son\t\tdeceased son of\n     ased son\t\t\t\tpre-deceased son\n     of pre-\n     deceased\n     son\niv)  son of\t   iv)widow of pre-    iv)daughter of pre-\n     predea-\t   deceased son\t       deceased daughter\n     sed daughter  of predeceased\n\t\t   son\n<\/pre>\n
     The order\tof succession  of a  male intestate given in
\nSection 9,  is that the heirs in Class-I take simultaneously
\nto the exclusion of all other heirs, and the distribution of
\nthe property  is made  in accordance  with the provisions of
\nsection 10,  Rules of  succession of  a female intestate are
\navailable in  sections\t15  and\t 16  of\t the  Act  and\tthey
\nsometimes vary\tor overlap  upon  the  rules  of  succession
\napplicable to  the male\t intestate. But,  seemingly, for the
\npurpose of the special provision section 23, male and female
\nheirs specified\/identified in Class I of the Schedule, alone
\nhave been  conferred  certain  rights  irrespective  of\t the
\noperation of  differing rules  of succession  applicable  to
\nHindu  male   and  female  intestates.\tThis  distinguishing
\nfeature has  to be borne in mind because the rights whatever
\nthey be,  are meant  only for Class I Heirs of the Schedule.
\nIn other  words, members  of the  family  of  the  intestate
\nunless they  happen to\tbe heirs specified in Class I of the
\nSchedule have  neither been  conferred any  right  to  defer
\npartition nor  any claim to residence in the dwelling-house.
\nTo illustrate  the point  take the  case of  a\tother-in-law
\nliving with  a male  Hindu or for that matter his brother or
\nsister. On  his death  since  his  mother-in-law,  other  or
\nsister are not Class I heirs, they if have neither the right
\nto have\t the partition among Class I Heirs deferred, nor the
\nright to  reside therein.  though they may be members of the
\nintestate’s family as widely understood in its. concept.\n<\/p>\n
     Attention may  now be  invited to\tthe last sentence in
\nthe provision  and the\tproviso, for  there lies the clue to
\nget to\tthe heart  of the  matter. On  first impression\t the
\nprovision may  appear conflicting  with the  proviso but  on
\ncloser examination  the conflict disappears. A female heir’s
\nright to  claim partition  of the  dwelling-house  does\t not
\narise until  the male heirs chose to divide their respective
\nshares therein,\t but till  that happens\t the female  heir is
\nentitled to  the right\tto reside  therein. The\t female heir
\nalready residing  in the  dwelling-house has  a right to its
\ncontinuance but in case she is not residing, she has a right
\nto enforce  her entitlement  of residence in a court of taw.
\nThe proviso makes it amply clear that where such female heir
\nis a daughter, she shall be entitled to a right of residence
\nin the\tdwelling-house only  if she is unmarried or has been
\ndeserted by or has separated from her husband or is a widow.
\nOn first impression, it appears that when the female heir is
\nthe daughter, she is entitled to a right of residence in the
\ndwelling-house so  long as  she suffers\t from any one of the
\nfour disabilities  i.e. (1)  being unmarried;  (2)  being  a
\ndeserted wife;\t(3) being  a separated wife; and (4) being a
\nwidow. It  may appear  that  female  heirs  other  than\t the
\ndaughter are entitled without any qualification
\nto a  right of\tresidence, but\tthe  daughter  only  if\t she
\nsuffers from any of the aforementioned disabilities. If this
\nbe the\tinterpretation, as  some of  the commentators on the
\nsubject have  thought it  be, it  would lead  to  an  highly
\nunjust result for a married grand-daughter as a Class I heir
\nmay get\t the right of residence in the dwelling-house, and a
\nmarried daughter  may not.  This  incongruous  result  could
\nnever\thave\tbeen   postulated    by\t  the\tlegislature.
\nSignificantly,\tthe   proviso  covered\t the  cases  of\t all
\ndaughters, which means all kinds of daughters, by employment
\nof the\twords “where such female heir is a daughter” and not
\n“where such  female heir  is the daughter”. The proviso thus
\nis meant  to cover  all daughters,  the description of which
\nhas been  given in  the above table by arrangement. The word
\n“daughter” in  the proviso is meant to include daughter of a
\npredeceased  son,   daughter  of  a  predeceased  son  of  a
\npredeceased son\t and daughter of a predeceased daughter. The
\nright of  residence of the female heirs specified in Class I
\nof the\tSchedule, in  order to be real and enforceable, pre-
\nsupposes that their entitlement can not be obstructed by any
\nact of\tthe male  heirs or  rendered  illusory\tsuch  as  in
\ncreating third\tparty rights  therein in favour of others or
\nin  tenanting\tit,  creating\tstatutory   rights   against
\ndispossession or  eviction. What  is meant  to be covered in
\nSection 23  is a dwelling house or houses, (for the singular
\nwould include  the plural, as the caption and the section is
\nsuggestive to that effect) fully occupied -by the members of
\nthe intestates\tfamily and  not a house or houses let out to
\ntenants, for  then it  or those\t would not be dwelling house
\nhouses but  merely in description as residential houses. The
\nsection protects  only a dwelling-house, which means a house
\nwholly inhabited by one or more members of the family of the
\nintestate, where  some or all of the family members, even if
\nabsent\tfor   some  temporary\treason,\t have\tthe   animus
\nrevertendi.  In\t  our  considered  view,  a  tenanted  house
\ntherefore is  not a dwelling-house in the sense in which the
\nword is\t used in  section 23.  It may be a dwelling-house in
\nthe structural sense but it cannot be said to be a dwelling-
\nhouse in  habitation  by  the  members\tof  the\t intestate’s
\nfamily. In  that twin  sense,  when  the  female  heirs\t are
\nentitled to  a right  of residence  therein, which  right is
\nenforceable against  the male  heirs, that  right  militates
\nagainst the  created or creating of tenancy by the male heir
\nor heirs  and deprive  them  of\t their\tright  to  residence
\ntherein as  also their\tright  to  partition;  an  incidence
\nnormal to  the opening\tof succession. Thus it appears to us
\nthat if\t the male heirs derive the right under the provision
\nto resist  partition of the dwelling-house unless they chose
\nto  divide   their  respective\t 12  shares   therein,\tthen
\ncorrespondingly it  is incumbent  on the  male heirs to keep
\nthe  property\twell  arranged,\t inhabited  or\toccupied  by
\nthemselves keeping  the property  available for\t the  female
\nheirs to  enforce the right of residence therein. But if the
\nlatter right is frustrated on creation of third party rights
\nor a  contractual or  statutory tenancy,  there\t remains  no
\nright with the males to resist partition.\n<\/p>\n
     Every right  has a\t corresponding duty.  This principle
\nvigorously applies  in this  multiangular provision. A house
\ntenanted brings in strangers and it ceases to be a dwelling-
\nhouse inhabited\t by members of the family. The protection of
\nsection 23 is thus not available to the males. It is in this
\nlight that  question no.  1 need  be answered  to say that 8
\ndwelling house\tis that\t house which is in actual, physical,
\ninhabited possession  of one  or the  other members  of\t the
\nfamily in  stricto sensu,  and if  some are  absent  due  to
\nexigencies  of\tservice\t or  vocations,\t the  dwelling-house
\nremains\t available   for  them\t to  re-enter\twithout\t any
\nobstruction or\thindrance and  on that\tpremise enabling the
\nfemale heir  to\t assert\t a  right  of  entry  and  residence
\ntherein.  A   tenanted\thouse\tdoes  not   fit\t into\tthis
\ndescription. Disabled  daughters need  instant succour,\t not
\nlitigation. They  need doors  of the  dwelling-house  always
\nwide open,  not\t stoney-eyed  responses\t of  strangers.\t The
\nprovision silences  them in seeking partition, but not their
\nownership  extinct.   If  marriage   has   the\t inescapable
\nconsequence  of\t  displacement\tof  the\t daughter  from\t the
\nparental roof, her interests forever cannot be sacrificed on
\nthe alter  of matrimony. Her distress revertendi is of equal
\nimportance  standing  alongside\t the  qualified\t defence  of
\nimpartibility by the male heir as afore-explained. The first
\nquestion is answered accordingly.\n<\/p>\n
     The second\t question does\tnot present much difficulty.
\nOn literal interpretation the provision refers to male heirs
\nin  the\t plural\t and  unless  they  chose  to  divide  their
\nrespective shares  in the  dwelling-house, female heirs have
\nno right to claim partition. In that sense there cannot be a
\ndivision even  when there  is a single male. It would always
\nbe necessary  to have  more than  one male  heir. One way to
\nlook at it is that if there is one male heir, the section is
\ninapplicable, which  means that\t a single  male heir  cannot
\nresist\tfemale\t heir’s\t claim\t to  partition.\t This  would
\nobviously  bring   unjust  results,   an  intendment   least
\nconceived of as the underlying idea of maintenance of status
\nquo would  go to  the winds. This does not seem to have been
\ndesired while  enacting\t the  special  provision.  It  looks
\nnebulous that  if there\t are two  males,  partition  at\t the
\ninstance of  female heir  could be resisted, but if there is
\none male,  it would  not. The  emphasis on the section is to
\npreserve a  dwelling-house as  long as it is wholly occupied
\nby size\t or all\t members of  the  intestate’s  family  which
\nincludes male  or males.  Understood  in  this\tmanner,\t the
\nlanguage in  plural with  reference to male heirs would have
\nto be read in singular with the and of the provisions of the
\nGeneral Clauses\t Act. It  would thus  read to mean that when
\nthere is  a single  male heir, unless he chooses to take out
\nhis share  from the  dwelling-house, the female heirs cannot
\nclaim partition\t against him. It cannot be forgotten that in
\nthe Hindu  male oriented  society, where  begetting of a son
\nwas a  religious obligation,  for the  fulfillment of  which
\nHindus have  even been\tresorting to adoptions, it could not
\nbe visualized that it was intended that the single male heir
\nshould be  worse off, unless he had a supportive second male
\nas  a\tclass  I  heir.\t The  provision\t would\thave  to  be
\ninterpreted in\tsuch manner  that  it  carries\tforward\t the
\nspirit behind  it. The second question would thus have to be
\nanswered in  favour of\tthe proposition holding that where a
\nHindu intestate\t leaves surviving him a single male heir and
\none or\tmore female  heirs  specified  in  Class  I  of\t the
\nSchedule, the  provisions of  section 23  keep attracted  to
\nmaintain the  dwelling-house impartable\t as in\tthe case  of
\nmore than  one male  heir, subject  to the right of re-entry
\nand residence  of the  female heirs  so entitled,  till such
\ntime the  single male  heir chooses  to separate  his share;
\nthis  right   of  his\tbeing  personal\t  to  him,   neither
\ntransferable nor heritable.\n<\/p>\n
     Now applying  the ratio  above evolved  on the facts of
\nthis case,  it is evident that when the house in question is
\ntenanted, it  is not  a dwelling-house in the sense the word
\nis used\t in section  23 of  the\t Hindu\tSuccession  Act\t and
\ntherefore it  has no protection of its being impartable. The
\nsuit  of   the\tplaintiff-respondent  could  not  have\tbeen
\nresisted by the defendant-appellant on the basis that it was
\na family  house.  Equally  the\tsuit  could  not  have\tbeen
\nresisted by the defendant-appellant on the ground that being
\nthe  sole  male\t heir  of  the\tintestate,  section  23\t was
\ninapplicable, because  then the\t suit  for  partition  would
\notherwise have\tbeen maintainable. Had the finding been that
\nthe house  in question\twas a  dwelling-house the suit could
\nhave been  resisted by him even as a single male heir on the
\nbasis of Section 23 of the Act.\n<\/p>\n
     As a  result of  the above\t discussion, the preliminary
\ndecree for  partition in  favour of the plaintiff-respondent
\ncannot be  upset. The  judgments and  orders of\t the  courts
\nbelow would  have to  be  maintained.  In  partitioning\t the
\nproperties the trial court would bear in mind,as it is bound
\nto, the\t provisions of\tthe Partition  Act. The\t appeal,  in
\nthese circumstances,  fails but\t without  any  order  as  to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Narashimaha Murthy vs Smt. Susheelabai & Ors on 17 April, 1996 Equivalent citations: 1996 AIR 1826, 1996 SCC (3) 644 Author: K Ramaswamy Bench: Ramaswamy, K. 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-167091","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNarashimaha Murthy vs Smt. 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