TMI Blog1996 (4) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... y son and three daughters? That the house is a dwelling house is not in dispute. So the need to go into the meaning of the words dwelling house is obviated. There is a cleavage of judicial opinion among High Courts on their interpretation of Section 23 of the Act which provides thus: 23.Special provision respecting dwelling houses. Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the made heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein. Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow. The object and reasons to enact S.23 have been stated thus:- This clause restricts the right of a female heir to claim partition of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of more than one male heir and so long as their volition to remain in possession and enjoyment of the dwelling house subsists or they do not decide to partition it or part with possession, the female Class-I heirs are kept at a bay to claim partition except to the right of residence in the enumerated events. In Arun Kumar Sanyal v. Jnanendra Nath Sanyal [AIR 1975 Calcutta 232], the intestate Hindu left behind him one male heir and one female heir. The daughter transferred her share in the dwelling house to a stranger who laid the suit for partition. The Calcutta High Court held that S.23 makes it clear that the legislature does not approve of division of a dwelling house at the behest of a female heir against the 'will' of the male member. The object is to prevent fragmentation or disintegration of the family dwelling house at the instance of the female heir to the hardship and difficulties to which male heir may be put to. The bar is removed only on the happening of the contingency, namely, when the male heir chooses to divide the dwelling house. It may be that there is one male heir and one female heir and there may not be any chance of that contingency t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object of the section will be nullified. The hardship to the female heir of postponement of partition is relatively less. In Ponnuswamy v. Meenakshi Ammal and Ors., [1989 (2) M.L.J. 506], another Division Bench reiterated the same view. In Purnawari v. Sukhadevi, [AIR 1986 Allahabad 139], the Court took the same view. In Vanitaben Bhaisharker Pandya v. Divaliben Premji Ors. [1979 (2) G.L.R. 148], the Division Bench held that for the application of S.23, the whole house must be the dwelling house wholly occupied by the members of the family. In that case the house consisted of residential portion in the occupation of the family and the shop was let out. So, S.23 was held to be not applicable. In Hemalata Devi v. Umasankari Moharana, [AIR 1975 Orissa 208], the Division Bench held that if there are more than one main heirs, there would be the possibility of anyone of such heirs asking for a partition of the dwelling house and the female heir in such a case cannot claim her share. But where there is a single male heir, there is no possibility of that male heir claiming any partition against another male heir. Thus where there is a single male heir and others are female h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares would then become wholly opposite in meaning. Both the literal construction and the intendment would suggest that the postponement of partition is conditional upon there being a plurality of male heirs and not otherwise. Therefore, the postponement of the right of female heirs to claim partition respecting the family dwelling house was only where there was a plurality of male heirs a situation which, in turn, renders the satisfaction or the next condition, namely, that they choose to divide their respective shares therein, a possibility and a reality. Any other construction would lead to this that while the section on its plain language, prescribes a condition which admits of being fulfilled, we would by construction,introduce into the section a condition which does not admit of fulfillment at all. In Anant v. Janaki Bai [AIR 1984 Bombay 319], the Bombay High Court also took the same view. In Mulla's Hindu Law (16th Edn.), revised by Justice S.T. Desai, it is stated thus : The right of a female heir specified in Class I of the Schedule to demand actual partition of the family dwelling house is deferred and kept in abeyance until the male heirs specified in Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as the daughters and daughter's daughters whose moorings are elsewhere on account of their marriage, seeking to take away their shares and throw the male members into the streets. The disability of female heir to claim a partition when the male members are not willing to effect a partition is an echo of the law that prevailed prior to this Act under the Mitakshara under which no female is entitled to a share on a partition could claim a partition except when the male members of the family effect a partition. The restriction has been imposed to prevent the fragmentation of the dwelling house at the instance of female heirs. When succession of a Hindu intestate is open, his/her Class-I heirs specified in the Schedule is entitled at a partition to their respective shares. The succession cannot be postponed. However, exception has been engrafted by S.23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration by dividing it by metes and bounds. The prohibition gets lifted when male heirs have chosen to partition it. The words specified in Class-I of the Schedule and S.23, are used in a descriptive s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s indivisible. The male heir(s) thereby evinces animus possedendi. But the moment the sale heir(s) chooses to let out the dwelling house to a stranger/third party, as a tenant or a licensee, he or they exhibit (s) animus dessidendi and the dwelling house thereby becomes partible. Here the conduct of the male heir(s) is the cause and the entitlement of the female Class-I heir(s) is the effect and the latter's claim for partition gets ripened into right as she/they is/are to sue for partition of the dwelling house, whether or not the proviso comes into play. Here the female heir(s) becomes entitled to not only mere partition of the dwelling house but also her right to residence after partition. It is, therefore, clear that though the right to succession devolves upon the female heir under S.8, being Class-I heir to the Hindu intestate, in respect of the dwelling house, her right to seek partition has been interdicted and deferred only so long as the male heir(s) decide to remain occupied therein as undivided or continue to have it as a dwelling house. Though the words 'the male heirs choose to divide their respective shares', suggest that at least two such male heirs m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire mansion may not be in use as a dwelling unit by the male heirs though the father kept it. as a dwelling unit. To the extent necessary for the use by the male member as a dwelling house it can be preserved and the rest could be partitioned and the fomer may be allotted to the son while working out the equities in the partition. Take another illustration where in addition to the dwelling house other properties are available for partition which may be allotted to the share of the sister or sisters, while the dwelling house at the option of the son may be allotted towards his share. In these events, the need to postpone succession may not arise. Educational, job or avocational opportunities necessitate migration and settlement in another State or abroad which are a common feature. Grace to give when he is in affluent position and allows female he to wholly occupy and enjoy parental home apart, in working out equities, instead of fragmentation of it by metes and bounds, the house may be allotted to the share of the female heir so that she would perpetuate the money of the parental abode. Take yet another instance where son due to being in service is transferred to another place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it out and occupies another tenanted premises for himself and for the members of his family. Female held cannot be expected to fight a litigation against the tenant; instead she/they are entitled to file a suit for general partition impleading tenant it not already made party for partition of the dwelling house let out at the general partition and seek for allotment of her share therein for her residence and the tenant in that event would be entitled to residence only to that part of the premises allotted towards the share af his landlord, though the tenancy was for the entire building. The conduct of letting by the male heir leads to the fragmentation of the dwelling house and he cannot have a cause to complain of the female heir's claim for partition nor he has a right to resist her demand for partition to workout her share in the dwelling house. The above consideration would indicate that the legislature intended that during the life-time of the surviving male heir(s) of the deceased Hindu intestate, he/they should live in the parental dwelling house as partition thereof at the behest of the female heir would render the male heir homeless/shelterless. Obviously, to preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court had not ruled on 5.23. The Schedule 'A' dwelling house was leased out to the 7th defendant. the appellant pleaded in the written statement that he had spent around ₹ 1,24,000/- and odd on the marriage of the plaintiff- respondent. The property was, thereby not partible. The Munsif found that Schedule 'A' property is the ancestral dwelling house and that the Schedule 'B' site is the self- acquired property of the father which was affirmed by the appellate Court. It would thus be clear that the appellant had not pleaded that the letting of the Schedule 'A' dwelling house was on any extenuating circumstances and it was not a voluntary one. In other words, it is clear that the appellant had inducted strangers into the dwelling house and had lost his animus possedendi. Accordingly S.23 became inapplicable to the facts of this case. In that view, though for different reasons, the appeal needs no interference which is accordingly dismissed. No costs. Punchhi,J The special and multiangular provision, Section 23 of the Hindu Succession Act, 1956, emits two legal questions of importance for determination, in this appeal by special leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants. The seventh defendant impleaded was the tenant of Schedule A property occupying it on a monthly rent of ₹ 75/- The mother Nagubai died during the pendency of the suit, which made the plaintiff increase her claim to one-sixth share in the properties. The suit was resisted by the appellant on grounds inter-alia that the plaintiff-respondent could not seek partition of Schedule A property, it being a joint dwelling-house, as understood under section 23 of the Hindu Succession Act, 1956, which provision was otherwise not attracted, when there was only one male heir amongst the heirs surviving. It was otherwise not in dispute that the house in question stood rented out to the seventh defendant but for the rate of rent. The Trial Court rejecting the defence of the appellant, determined the share of the plaintiff-respondent in Schedule A property as 1/12 (the intestate having half share in the house and the other half being that of the son) and in Schedule B property as 1/6th. In accordance therewith the plaintiff- respondent was granted a preliminary decree for partition on October 31, 1985. A separate enquiry was kept by the Trial Court for determining the mesne profits f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T.P. Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that a dwelling-house, as the words imply, projects the meaning that the house or a portion thereof is an abode of his, available to him at all times without any let or hindrance by others. Further thereat is stated that a dwelling place is one where a person inhabits and in law should be his domus mansionalis. In Aiyar's Judicial Dictionary (11th Edition), an old decision of the Allahabad High Court in Fatime Begum v. Sakina Begum [1 All 51] has been mentioned in which it has been held that the words dwelling or residence are synonymous with domicile or home and mean that place where a person has his fixed permanent home to which whenever he is absent, he has the intention of returning. An extraction from Commissioner of Income Tax v. K.S. Ratanaswamy [1980 (2) SCC 548 at 553] is also quotable saying that primarily the expression dwelling place means residence , abode or home where an individual is supposed usually to live and sleep and in the context of a taxing provision which lays down a technical test of territorial connection amounting to residence, the concept of an abode or home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective of the operation of differing rules of succession applicable to Hindu male and female intestates. This distinguishing feature has to be borne in mind because the rights whatever they be, are meant only for Class I Heirs of the Schedule. In other words, members of the family of the intestate unless they happen to be heirs specified in Class I of the Schedule have neither been conferred any right to defer partition nor any claim to residence in the dwelling-house. To illustrate the point take the case of a other-in-law living with a male Hindu or for that matter his brother or sister. On his death since his mother-in-law, other or sister are not Class I heirs, they if have neither the right to have the partition among Class I Heirs deferred, nor the right to reside therein. though they may be members of the intestate's family as widely understood in its. concept. Attention may now be invited to the last sentence in the provision and the proviso, for there lies the clue to get to the heart of the matter. On first impression the provision may appear conflicting with the proviso but on closer examination the conflict disappears. A female heir's right to claim partitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 23 is a dwelling house or houses, (for the singular would include the plural, as the caption and the section is suggestive to that effect) fully occupied -by the members of the intestates family and not a house or houses let out to tenants, for then it or those would not be dwelling house houses but merely in description as residential houses. The section protects only a dwelling-house, which means a house wholly inhabited by one or more members of the family of the intestate, where some or all of the family members, even if absent for some temporary reason, have the animus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than one male heir. One way to look at it is that if there is one male heir, the section is inapplicable, which means that a single male heir cannot resist female heir's claim to partition. This would obviously bring unjust results, an intendment least conceived of as the underlying idea of maintenance of status quo would go to the winds. This does not seem to have been desired while enacting the special provision. It looks nebulous that if there are two males, partition at the instance of female heir could be resisted, but if there is one male, it would not. The emphasis on the section is to preserve a dwelling-house as long as it is wholly occupied by size or all members of the intestate's family which includes male or males. Understood in this manner, the language in plural with reference to male heirs would have to be read in singular with the and of the provisions of the General Clauses Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his share from the dwelling-house, the female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu male oriented society, where begetting of a son was a r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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