Supreme Court of India
NARASHIMAHA MURTHYversusSMT. SUSHEELABAI & ORS.
- Citation
- 1996 INSC 537
- Decided
- 17 April 1996
- Disposal
- Dismissed
- Bench
- KULDIP SINGH
Holding
Section 23 of the Hindu Succession Act applies even with a sole male heir, making a dwelling house impartible until the male heir partitions, ceases to occupy, or lets it out; once the male heir introduces a stranger, the house ceases to be a dwelling house for Section 23, and partition is permissible.
Summary
Narasoji Rao died intestate leaving a sole son (the appellant) and five daughters (including the plaintiff). The daughter filed a suit for partition of the family house (Schedule A) and other property, alleging a one‑seventh share, later increased to one‑sixth after the mother’s death. The trial court granted a preliminary decree of partition, which the son appealed, contending that Section 23 of the Hindu Succession Act, 1956 makes the dwelling house impartible while a male heir remains in possession, even where only one male heir survives, and that the house was a dwelling house. The Supreme Court held that Section 23 does apply with a single male heir, rendering the house impartible until the male heir partitions, ceases occupation, or lets it out; however, because the house had been let to a stranger, the male heir lost animus possedendi and the house ceased to be a "dwelling house" for Section 23 purposes. Consequently, the house was partitionable and the preliminary decree stood. The appeal was dismissed.
Issues considered
- What is the meaning of "dwelling house" under Section 23 of the Hindu Succession Act, 1956?
- Does Section 23 apply when the intestate leaves a single male heir and one or more female Class‑I heirs?
- Is a house that has been let out to a tenant still a "dwelling house" for the purposes of Section 23?
- Can a female Class‑I heir claim partition of such a house under the Act?
Legislation cited
- General Clauses Act, 1897s. 13
- Hindu Succession Act, 1956s. 10, s. 23, s. 8, s. 9
- Partition Act, 1893s. 4
- Transfer of Property Act, 1882s. 44
Subjects
Hindu Succession ActSection 23dwelling housepartitionfemale heirmale heirimpartibilitytenancyanimus possedendiright of residenceintestate succession
Judgment
A NARASHIMAHA MURTHY
v.
SMT. SUSHEELABAI & ORS.
APRIL 17, 1996
B [KULDlP SINGH, K. RAMASWAMY AND M.M. PUNCHHI, JJ.]
Hindu Succession Act, 1956: Section 23 and proviso.
Dwelling house of Hindu dying intestate-Pmtition of-Female heir's
C light to claim-Held : to be defe17'ed or kept in abeyance dwing lifetime of
even a sole surviving male heir of deceased-Until he chose to separate his
share or ceased to occupy it or let it out-But till that contingency happens
female heirs, if daughter suffeling from any disabilities >pecified in proviso
would be entitled to reside as well as re-enter in dwelling house-Word
'daughter' included daughter or predeceased son, daughter of predeceased son
D of predeceased son and daughter of predeceased daughter.
Dwelling house-Did not include tenanted house-Must be wholly
occupied by family members of deceased an intestate-They must have
anilnus possedendi-The 1no111ent stranger was left into it, aninius dessidendi
E was exhibited by them-Iheir Temporary absence from house-Showed their
animus reveJtendi-Thereby the house did not cease to be dwelling house-In-
duction of strangers into dwelling house by male heir-S.23 could not be
invoked by him---<Jeneral Clauses Act, 1897, S.13(2)-Transfer of Propelty
Act, 1882, S.44-Partition Act, 1893, S.4(1).
F Words and Phrases :
"Dwelling House''-Meaning of in the context of Section 23 of Hindu
Succession Act, 1956.
The appellant-defendant and his father owned a joint family house
G and some self acquired property. He died leaving behind his son, the
appellant, his widow, and five daughters. Twelve years after his death, one
of his daughters, the respondent-plaintiff, filed a suit for partition for
obtaining one-seventh share in the properties of her father impleading her
brother, the appellant, her mother and four sisters as defendants. The
' defendant impleaded was the tenant of the house. The mother died
H seventh
414
N. MURTHYv. SUSHEELABAI 415
during the pendency of the suit, which made the plaintiff increase her claim A
to one-sixth share in the properties. The suit was resisted by the appellant
on grounds inter-a/ia that the respondent-Plaintiff could not seek partition
of the house, it being a joint dwelling house, as understood under Section
23 of Hindu Succession Act, 1956, which provision was otherwise not
attracted, when there was only one male heir among the heirs surviving. it
B
was otherwise not in dispute that the house in question stood rented out
to the seventh defendant but for the rate of rent. The Trial Court rejecting
the defence of the appellant, determined the share of the respondent-plain-
tiff in the house property as 1/12 (the intestate having half share in the
house and the other half being that of the son) and in self acquired
property as 1/6th. In accordance therewith the respondent-plaintilT was c
granted a preliminary decree for partition. The first as well as the second
appeal of the appellant to challenging the judgment and decree of the Trial
Court having been dismissed, the appellant filed the present appeal.
Dismissing the appeal, this Court
D
HELD : 1.1. (Per. Ramaswamy, J.) 1.1. When succession of a Hindu
intestate is open, his/her Class-I heirs specified in the Schedule to Hindu
Succession Act, 1956 are entitled at a partition to their respective shares.
The succession cannot be postponed. However, there is an exception to this
general rule. When a Hindu intestate, whether ,male or female, has left E
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 oc-
cupied by members of his or her family, then, by operation of the non
obstante clause, the dwelling house gets excluded from the operation of the
general law of succession envisaged in the Act and a special rule of F
succession has been engrafted in Section 23 of !he Act. The claim for
partition by female heir shall not arise "until the maie heirs choose to
divide their respective shares therein". 1'hus though the right to succession
devolves upon the female heir under Section 8 of the Act, being Class-I
heir to the Hindu intestate, in respect of the dwelling house, her right to
seek partition has been interdicted and deferred only till the happening of G
a contingency event, i.e. the decision by the male heir(s) to partition the
dwelling house in occupation of the family. So Long as the male heirs(s)
choose not to partition the Dwelling house, the female Class-I heir(s) has
been denied the right to claim its partition to a further exemption, namely,
the right to residence therein by the female Class-I heir(s) under specified H
416 SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.
A circumstances. Thus, the male heir(s) becomes entitled to perpetuate the
memory of the deceased-Hindu who died while remaining to live in the
dwelling house during his or her lifetime. Thereby the dwelling house
remains indivisible. The male heir(s) thereby evinces animns possedendi.
[427-H; 428-C-D; 429-G-H]
B 1.2. The expression "dwelling house" though not defined in the Act,
the context would indicate that it is referable to the dwelling House in which
the intestate Hindu was living at the time of his/her death; he/she intended
that his/her children would continue to normally occupy and enjoy it. He
or she regarded it as his or her permanent abode. On his or her death, the
members of the family can be said to have continued to preserve the same
c to perpetuate his/her memory. The proviso to Section 23 of the Act
visualises certain contingencies and made provision for right of residence
to Class-I female heirs. In the event the male member(s) choose(s) to
separate or cease(s) to reside or instead introduce a stranger into family
house, then the female heir gets the right to a share in the dwelling house
D as well. The reverence to preserve the ancestral house in the memory of the
father or mother is not the exclusive preserve of the son(s) alone.
Daughter(s) too would be anxious and more reverential to preserve the
dwelling house to perpetuate the parental memory. Here the condnct of the
male heir(s) is the cause and the entitlement of the female Class-I heir(s)
in the effect, and the latter's claim for partition gets ripened into right as
E she is/they are to sue for partition of the dwelling house, whether or not the
proviso comes into play. Here the female heir(s) becomes entitled to not
only mere partition of the dwelling house bnt also her right to residence
after partition. Where there are only one male heir and one or more female
heirs are left surviving behind the Hindu Intestate, the members of the
F family would continue to remain in occupation and in enjoyment of it as a
dwelling house. [428-B-F; 429-A-B]
1.3. Though the words 'the male heirs choose to divide their respec·
tive shares', suggest that at least two such male heirs must exist and decide
not to partition the dwelling house in which event the right of the female
G heir is postponed and kept in abeyance until the male heir or heirs of the
Hindu intestate decide to partition it, it does not necessarily lead to the
only inevitable conclusion that the operation of Section 23 of the Act must
stand excluded in the case of the Hindu intestate leaving behind him/her
surviving only a son and a daughter. However, exception has been
H engrafted by Section 23 of the Act respecting tradition of preserving family
N.MURTIIYv. SUSHEELABAI 417
dwelling house to effectuate family unity and prevent its fragmentation or A
disintegration by dividing it by metes and bounds. The legislature intended
that during the lifetime of the surviving male heir(s) of the deceased Hindu
intestate, he/they should live in the parental dwelling house as partition
thereof at the behest of the female heir would render the male heir
homeless/shelterless. Obviously, to prevent such hardships and unjust
B
situations, special provisions was made in Section 23 of the Act for
impartibility of the dwelling house. Section 44 of the Transfer of Property
Act, 1882 and also Section 4(1) of the Partition Act, 1893 appear to prevent
such fragnentation of the ancestral dwelling house. Singular includes
plural under Section 13(2) of the General Clauses Act, 1897 and may be
applied to Section 23 of the Act as it is not inconsistent with the context c
or subject. Even without resorting to it or having its aid for interpretation,
by applying common sense, equity, justice and good conscience, injustice
would be mitigated. The purpose of law is to prevent brooding sense of
injustice. It is not the words of law but the spirit and internal sense of it
that makes the law meaningful. The letter of the law is the body but the D
sense and reason of the law is the soul. Therefore, pragmatic approach
would further the ends of justice and relieve the male or female heir from
hardship and prevent unfair advantage to each other. It would, therefore, be
just and proper for the Court to adopt common sense approach keeping at
the back of its mind, justice, equity and good conscience and consider the facts
and circumstances of the case on hand. The right of residence to the male E
member in the dwelling house of the Hindu intestate should be respected and
the dwelling house may he kept impartible during the lifetime of the sole male
heir of the Hindu intestate or until he chooses to divide and gives a share to
his sister or sisters or alienate his share to a stranger or lets it out to others,
etc. Until then, the right of the female heir or heirs under Section 8 of the Act F
is deferred and kept in abeyance. So, instead of adopting grammatical ap-
11roach to construe Section 23 of the Act, it must be held that Section 23
applies and prohibits partition of dwelling house of the deceased Hindu male
or female intestate, who left surviving sole male heir and female heir/heirs
and the right to claim partition by the female heir is kept in absence and
deferred during the lifetime of the male heir or till he partitions or ceases to G
occupy and enjoy it or lets it out or till at a partition action, equities are
worked out. [429-D-E; 427-H; 428-A; 432-A-G]
Arnn Kumar Sanyal v. Jnanendra Nath Sanyal, AIR (1975) Cal 232,
Surya Kumar Da.< v. Smt. Maya Dutta, AIR (1982) Cal 221; Usha Mazumdar H
418 SUPREME COURT REPORTS [1996} SUPP. I S.C.R.
A & Ors. v. Smt. Smriti Basu, AIR (1988) Cal 115; Mookkam111a/ v.
Chitravadivammal, AIR (1980) Mad 243; Janabi Ammal v. T.S.A. Palani
Mudalim; AIR (1981) Mad 62; Ponmrnvamy v. Meenakshi Amnwl and Ors.,
(I 989) 2 M.LJ. 506 and Pummvmi v. Suklwdevi, AIR '(1986) All 139,
approved.
B Hema!ata Devi v. Umasankwi, AIR (1975) Ori 208 and Anand v.
Janaki E'ai, AIR (1984) Bombay 319, overruled.
Kmiyavva v. Hanu111a11tappa Mal/urappa, (1984) Kar. L.J. 273 and
Vanitaben Bhaishankar Pandya v. Diva!iben Premji & Q,,., (1979) 2 G.L.R.
C 148, referred to.
Mu/la's Hindu Law (16th Edn.), revised by Justice S. T. Desai;
Raghavachwiar's Hindu Law (lith Edn.) revised by Prof Venkataraman,
referred to.
D 2. In the present case the appellant had inducted strangers into the
dwelling house and had not pleaded that the letting of the dwelling house
'"'as on any extenuating circumstances and it was not a voluntary one.
Therefore, it is clear that the appellant had inducted strangers into the
dwelling house and lost his animus possedendi. Accordingly, Section 23 of
the Ad became inapplicable to the facts of this case. [433-B-C]
E
(Per Punchhi, J. for himself, and Kuldip Singh, J. concurring):
l. In the legal world the word "dwelling house" is neither a term nor
just a word synonymous with a residential house, be it ancestral, joint
F family owned or self acquired, as understood in the law applicable to
Hindus. In the context of Section 23 of Hindu Succession Act, 1956,
therefore, when the legislature has choseuly employed the word "dwelling
house", it has done so \lith a purpose, which is to say that ~n the death of
the intestate, a lin1ited status quo should prevail and existing prior to his
or death. His or her abode, shared by him or her, with members of his or
G her family, indentiliable from Class I Heirs of the Schedule, should con-
tinue to be in enjoyment thereof, not partible at the instance of the female
heirs till the male heirs choose to effect partition thereof. [436-E-F]
Fatin1a Begu111 v. Sakina Begunz, 1 All 51; Conunissioner of Inconie
H Tax v. K.S. Ratnaswamy, [1980] 2 SCC 548; F01d v. Eames, 55 L.J.Q. 34;
N. MURTHYv. SUSHEELABAI 419
Lewin v. End, (1906) AC 299 and R. v.Allison, (1843) 2 LTOS 288, referred A
to.
Webster's Comprehensive Dictionary, Black's Law Dictio11a1y
Stroud's Judicial Dictio1101y (Fifth Edn.), Words and Phrases (17iird Edn.),
T.P. Mukhcrjce's 77ic Law Lexicon (Volume I) 1989 and Aiyar's Judicial
B
Dictionary (11th Edn.), referred to.
2. What is meant to be covered in Section 23 of the Act is a dwelling
house or houses, (for the singular wonld include the plural, as the caption
and the section is suggestive to that effect) fully occupied by the members
of the intestate's family and not a house or houses let out to tenants, for c
then it or those would not be dwelling house/houses but merely in descrip-
tion as residential houses. The section protects only a dwelling house,
which means a house wholly inhabited by one or more members of the
family of the intestate, where some or all of the family members, even if
absent for some temporary reason, have the animus revertendi. A dwelling D
house is that house which is in actual, physical, inhabited possession of
one or the other members of the family in stricto sensu, and if some are
absent due to exigencies of service or vocations, the dwelling house remains
available for them to re-enter without any obstruction or hindrance and
on that premise enabling the female heir to assert a right of entry and E
residence therein. A tenanted house does not fit into this description. It
may be a dwelling house in the structural sense but it cannot be said to be
a dwelling house in habitation by the members of the intestate's family. In
that twin sense, when the female heirs are entitled to a right of residence
therein, which right is enforceable against the male heirs, that right
militates against the created or creating of tenancy by the male heir or
F
heirs and deprive them of their right to residence therein as also their right
to partition, and incidence normal to the opening of succession. If the male
heirs derive the right under the provision to resist partition of the dwelling
house unless they chose to divide their respective shares therein cor-
respondingly it is incumbent on the male heirs to keep the property well G
arranged, inhabited or occupied by themselves keeping the property avail-
able 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 contrac-
tual or statutory tenancy, there remains no right with the males to resist
partition. (438-G-H; 439-A; E-F; B-D] H
420 SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.
A 3. The proviso to Section 23 of the Act makes it amply clear that
where such female heir is a daughter, she shall be entitled to a right of
residence in the dwelling-house only if she is unmarried or has been
deserted by or bas separated from her husband or is a widow. The proviso
covered the cases of all daughters, which means all kinds of daughters, by
employment of the words "where such female heir is a daughter" and not
B
''where such female heir is the daughter". The word "daughter" in the
proviso is meant to include daughter of a predeceased son, daughter of a
predeceased son of a predeceased son and daughter of a predeceased
daughter, Disabled daughters need instant succour, not litigation. They
need doors of the dwelling-house always wide open, not sloney-eyed respon-
c ses of strangers. The provision silences them in seeking partition, but not
their ownership extinct. If marriage has the inescapable consequence of
displacement of the daughter from the parental roof, her interests forever
cannot be sacrificed on the alter of matrimony. Her distress revertendi is
of equal importance standing alongside the qualified defence of impar-
D tibility by the male heir. (438-B; E-F; 439-G-HJ
4. The emphasis on Section 23 of the Act is to preserve a dwelling
house as long as it is wholly occupied by some or all members of the
intestate's family which includes male or males. Understood in this man-
ner, the language in plural with reference to male heirs would have to be
E read in singular with the aid of the provisions of the General Clauses Act,
1897. It would thus read to mean that when there is a single male heir,
unless he chooses to take out his share from the dwelling house, the female
heirs cannot claim partition against him. The provision would have to be
interpreted in such manner that it carries forward the sprit behind it. Thus
F where a Hindu intestate leaves surviving him a single male heir and one
or more female heirs specified in Class I of the Schedule, the provisions
of Section 23 of the Act keep attracted to maintain the dwelling house
impartible as in the case of more than one male heir, subject to the right
of re-entry and residence of the female heirs so entitled, till snch time the
single male heir chooses to separate his shares; this right of his being
G personal to him, it is neither transferable nor heritable. [440-D-G]
5. When the house in question is tenanted, it is not a dwelling-house
in the sense the word is used in section 23 of the Act and therefore it has
no protection of its being impartible. The suit of the respondent-plaintiff
H could not have been resisted by the appellant-defendant on the basis that
N.MURTHYv. SUSHEELABAI [K. RAMASWAMY,J.] 421
it was a family house. Equally the suit could not have been resisted by the A
appellant-defendant on the ground that being the sole male heir of the
intestate, Section 23 of the Act was inapplicable, because then the suit for
partition wouid otherwise have been maintainable. Had the finding been
that the house in question was a dwelling house the suit could have been
resisted by him even as a single male heir on the basis of Section 23 of the B
Act. [441-A·C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2592 of
1996. •
From the Judgment and Order dated 21.2.92 the Karnataka High C
Court in R.S.A. No. 1045 of 1991.
G.V. Chandra Shekhar, Girish Anantha Murthy and P. Mahale (NP)
for the Appellant.
R. Jaganth Goulay, Arnn K. Sharma, Ms. Neelam Sharma and T.C. D
Sharma (NP) for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. One Narasoji Rao, died intestate leaving E
behind him the appellant, the only son and the respondents, three
daughters, after action at the latter's behest for partition was laid. The
courts below granted preliminary decree for partition in equal shares of
the Schedule A properties which include "the dwelling house of Narasoji
Rao". The appellant canvassed its illegality and impartibility of the dwelling
house, by operation of Section 23 of the Hindu succession Act, 1956, (for F
short, the 'Act') which was met with dismissal in limine by the High Court
in S.A. No. 1045/91 dated February 21, 1992. Thus this appeal by special
leave. The decree for partition of dwelling house has its support from the
ratio of Kariyavva v. Hmmmantappa Mal/urappa, (1984) Kar. L. J. 273.
The only question argued before us is : whether the dwelling house G
is partible, when Narasoji Rao died leaving behind his only son and three
daughters? That the house is a dwelling house is not in dispute. So the
need to go into the meaning of the words "dwelling house" is obviated.
There is a cleavage of judicial opinion among High Courts on their
interpretation of Section 23 of the Act which provides thus : H
422 SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.
A "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
B 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
c be entitled to a right of residence in the dwelling house only if she
is unmarried or has been deserted by or has separated from her
husband or is a widow. 11
The object and reasons to enact S.23 have been stated thus :-
D "This clause restricts the right of a female heir to claim partition
of the family dwelling house so long as the male heirs do not choose
to effect partition of the same but expressly recognises her right
to reside in such house.Tl
The Orissa, Karnataka, Bombay and Gujarat High Courts have
E adopted literal meaning holding that the dwelling house is partible whereas
the Calcutta, Madras and Allahabad High Courts have taken contra view.
We are called upon to resolve the conflicting opinions. The purpose of the
law is to meet out justice; in other words, to prevent injustice or miscarriage
of justice. In our view, the interpretation should be consistent with justice.
F equity and good conscience. Section 8 of the Act provides general rules of
succession in the case of males. When a male Hindu dies intestate, the
property shall devolve, firstly, upon the heirs, being the relatives specified
in class-I of the Schedule...... On the death of a Hindu, the succession to
his property is open. In its partition, S. 23 makes a special provision
respecting partibility of the dwelling house. When a Hindu intestate,
G whether male or female, has left surviving him or her both male and female.
heirs specified in Class-I of the Schedule and his or her property includes
a dwelling house wholly occupied by members of his or her family, then,
notwithstanding anything contained in the Act, the right of any such female
heir to claim partition of the dwelling house shall not arise until the male
H heirs choose to divide their respective shares therein; but the female Ciaos-I
N. MURTIIYv. SUSHEELAIJAI [K. RAMASWAMY, J.] 423
heir, like unmarried or widow or deserted or separated daughter of the A
deceased, shall have the right of residence therein. When the deceased
Hindu left behind him/her, only one male heir and one or more female
heirs, the question emerges: whether the dwelling house is partiblc? By
operation of nail obstante clause, the dwelling house gets excluded from
the operation of the general law of succession envisaged in the Act and a
B
special rule of succession has been engrafted in S.23. The claim for
partition by female heir shall not arise "until the male heirs choose to divide
their respective shares therein". In other words, the right of the female heir
for partition of the dwelling house is postponed till the happening of a
_contingent event, i.e. the decision by the male heirs to partition the dwelling
house in occupation of the family. The literal construction of the above c
quotation connotes the existence of more than one male heirs and so long
as their volition to remain in possession and enjoyment of the dwelling
house subsists or they do not decide to partition it or part with possession,
... the female Class-I heirs are kept at a bay to claim partition except to the
right of residence in the enumerated events.
D
lnAntn Kumar Sanyal v. Jna11e11dra Nath Sa11yal, AIR (1975) Calcut-
ta 232, the intestate Hindu left behind him one male heir and one female
heir. The daughter transferred her share in the dwelling house to a stranger
who laid the suit for partition. The Calcutta High Court held that S.23
makes it clear that the legislature does not approve of division of a dwelling E
house at the behest of a female heir against the 'will' of the male member.
The object is to prevent fragmentation or disintegration of the family
dwelling house at the instance of the female heir to the hardship and
difficulties to which male heir may he put. to. The bar is removed only on
the happening of the contingency, namely, when the male heir chooses to F
divide the dwelling house. It may be that there is one male heir and one
'
female heir and there may not be any chance of that contingency to happen,
but that will be no ground to say that the Section 23 is inapplicable. The
bar is not a personal bar and it does not come to an end when, the female
heir loses her interest in the dwelling house by transferring the same to G
another. The case of a transferee of a female heir is completely different
and cannot be equated with that of the son of a pre-deceased claughter.
The above ratio was followed by other Division Benches of that court in
Surya Kumar Das v. Smt. Maya Dutta AIR (1982) Calcutta 221 and Smt.
Usha Mazumdar and Ors. v. Smt. Smriti Basu, AIR (1988) Calcutta 115. In
Mookkammal v. Chitravadivammal, AIR (1980) Madras 243, the Madras H
424 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A High Court held that S.23 is intended to respect one of the ancient Hindu
tenets which treasured the dwelling house of the family as an impartible
asset between a female member and male member. Therefore, the dwelling
house is not liable to partition. But if the sole male member chooses to sell
his share in the dwelling house introducing a stranger, the female heir can
B file a suit for partition and possession of her share in the property. In
Jana bi Ammal v. T.SA. Palani Mudaliar, AIR (1981) Madras 62, one
Swaminatha Mudiliar died intestate owning extensive properties, leaving
behind the plaintiff and other three daughters and two sons. The daughters
laid suit for partition of properties including the dwelling house. Sub-
sequently, one of the sons died and the sole son was in possession of the
C dwelling house. When the question of the applicability of S.23 had come
up for consideration, the Division Bench held thus :
"The above section is a special provision dealing with the partition
of a dwelling house and the right of the male and female heirs of
the intestate therein. There can be no doubt that a female heir
D specified in Class I of the Schedule to the Act inherits a share in
dwelling house absolutely. But, S.23 postulates the right of such a
female heir to claim partition of the dwelling housing until the male
heirs choose to divide their respective shares therein. The object
behind this section seems to be to prevent fragmentation or disin-
E tegration of a family dwelling house at the instance of a female
heir or heirs, to the prejudice of the male heirs. This is based on
the principles embodied in S.44 of the Transfer of Property Act.
The contrary view will cause gross injustice to the single male heir
and the object of the section will be nullified. The hardship to the
female heir of postponement of partition is relatively Jess."
F
In Ponnuswamy v. Meenakshi Ammal and Ors., (1989) 2 M.L.J. 506,
another Division Bench reiterated the same view. In Pumawari v. Suk-
/ladevi, AIR (1986) Allahabad 139, the Court took the same view.
G In Vanitaben Bhaishanker Pandya v. Divaliben Premji & Ors., (1979)
2 G.L.R. 148, the Division Bench held that for the application of S.23, the
the whole house must be the dwelling house wholly occupied by the
members of the family. In that case the house consisted of residential
portion in the occupation of the family and the shop was let out. So, S.23
H was held to be not applicable.
N. MURTHYv. SUSHEELABAI [K RAMASWAMY, J.] 425
In Hemalata Devi v. Umasankmi Moharana, AIR (1975) Orissa 208, A
the Division Bench held that if there are more than one main heirs, there
would be the possibility of anyone of such heirs asking for a partition of
the dwelling house and the female heir in such a case cannot claim her
share. But where there is a single male heir, there is no possibility of that
male heir claiming any partition against another male heir. Thus where
B
there is a single male heir and others are female heirs, the female heirs are
entitled to claim partition. Their right to claim partition of the dwelling
house is not excluded by S.23 of the Act. In Kariyavva's case (supra) only
son and daughter were the class-I heirs of the intestate deceased father.
The Bench, while agreeing with the ratio in Orissa case, held that when
there is only one male heir quite obviously the conditions envisaged by the c
special provision cannot be satisfied. The succession cannot be kept in
abeyance as indeed, first, the intestate Hindu cannot be said to have left
surviving him or her both male and female heirs and, secondly, the contin-
gency of the male heir choosing to divide their respective shares therein,
. does not admit of being fulfilled. Section 23 gets attracted only where an D
intestate Hindu leaves surviving both male and female heirs. The second
part deals with a position which becomes relevant only when the section
itself is attracted. The Court further observed thus :
j '
"Under the Act, a female heir succeeds to the estate of a Hindu
dying intestate. That succession cannot be held in abeyar.ce. Under E
certain circumstances, the right to a share vesting in an heir is
rendered an imperfect right in the sense the remedy of reducing
it inessence by actual physical partition is postponed till the hap-
pening of another event. The conditions that make the right im-
perfect are referred to in the first part of S. 23, i.e. "that a Hindu F
intestate has left both male and female heirs and his property
includes a dwelling house wholly occupied by the member of his
family." The non-obstanti clause operates only upon the existence
of these conditions. The other event which renders the right, again
a perfect right is the event by which the male heirs choose to divide
their respective shares therein. This would suggest that Section is G
attracted only if the conditions contemplated in the first part of
the Section comes into existence."
If there is only one male heir, the circumstances envisaged in the first
part of the Section do not come into existence and the section does not H
426 SUPREME COURT REPORTS [1996J SUPP. l S.C.R.
A come into operation at all. The provisions of this section cannot be applied
to a case \vhcre there is a single male heir without rewriting the section
and reading into it quite a few alterations of language, structure and syntax.
The expressions "heirs 11 and 11 male heirs choose to divide their respective
shares" would then become wholly opposite in meaning. Both the literal
construction and the intendment would suggest that the postponement of
B
partition is conditional upon there being a plurality of male heirs and not
otherwise. Therefore, the postponement of the right of female heirs to
claim partition respecting the family dwelling house was only where there
was a plurality of male heirs, a situation which, in turn, renders the
satisfaction of the next condition, namely, that they choose to divide their
c respective shares therein a possibility and a reality. Any other construction
would lead to this that while the section, on its plain language, prescribes
a condition which admits of being fulfilled, we would, by construction,
introduce into the section a condition which does not admit of fulfilment
at all. In Anand v. Janaki Bai, AIR (1984) Bombay 319, the Bombay High
D Court also took the same view.
In Mu!la's Hindu Law (16th Edn.), revised by Justice S.T. Desai, it
is stated thus:
"The right of a female heir specified in Class I of the Schedule to
E demand actual partition of the family dwelling house is deferred
and kept in abeyance until the male heirs specified in Class I decide
the partition it, that is to divide it by metes and bounds or realise
its sale proceeds. Reference may be made to the undermentioned
decision of the Allahabad High Court, Pumawasi v. Smt. Sukha
F Devi, under agreement has been expressed with these views. Ques-
tion may perhaps arise whether the Special restriction enacted in
this section on the right of a female heir to demand actual
partition of the family dwelling house applies when there is only
one male heir of the intestate under Class I of the Schedule. The
words 'until the male heirs choose to divide their respective shares
G therein' may suggest that there must be at least two such male
heirs if the restriction is to operate. The object of the special
provision is to prevent female heirs and particularly a daughter
of the intestate from creating a situation in which partition of the
family house may entail a forced sale of it or otherwise cause
H hardship to the son or sons of the intestate where' it may not be
N. MURTIIY v. SUSHEELABAI [K. RAMASWAMY, J.] 427
possible for the son or sons to buy off the share of the female heir A
who insists on actual partition of it. It is submitted that there is
nothing repugnant in the subject or context to prevent the operation
of.the rule laid down in section 13(2) of the General Clauses Act
to the effect that the plural shall include the singular and the
restriction will apply even where there is only one male heir who
B
does not choose to divide his respective share in the dwelling house.
It would seem that the right of a female heir to demand partition
may be deferred and remain in abeyance under this section till the
lifetime of the male heirs enumerated in Class I of the Schedule or
the last survivor of them unless a partition of the dwelling house is
sought by any one of them before such time. The restriction will C
cease to operate on the death of the last of such male heirs of the
intestate or where there are only one male heir and one female
heir and the male heir chooses to sell his moiety in the dwelling
house."
In Raghavachariar's Hindu Law, (8th Edn.) revised by Prof. D
Venkataraman, it is stated thus :
"The provision that in the case of a dwelling house left by the
intestate his or her female heirs can claim partition thereof only if
the male heirs choose to divide their respective shares therein is E
a salutary provision designed to avoid confusion shown into the
family by the female members such as the daughters and daughter's
daughters whose moorings are elsewhere on account of their
marriage, seeking to take away their shares and throw the male
members into the streets. The disability of female heir to claim a
partition when the male members are not willing to effect a F
partition is an echo of the law that prevailed prior to this Act under
the Mitakshara under which no female is entitled to a share on a
partition could claim a partition except when the male members
of the family effect a partition. The restriction has been imposed
to prevent the fragmentation of the dwelling house at the instance G
of female heirs."
When succession of a Hindu intestate is open, his/her Class-I heirs
specified in the Schedule is entitled at a partition to their respective shares.
The succession cannot be postponed. However exception has been
engrafted by S.23 respecting tradition of preserving family dwelling house H
428 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A to effectuate family unity and prevent its fragmentation or disintegration
by dividing it by metes aml bounds. The prohibition gets lifted when male
heirs have chosen to partition it. The words specified in Class-I of the
Schedule and S.23, are used in a descriptive sense to economise the words
denoting the legislative animation. The expression "dwelling house" though
not defined in the Act, the context would indicate that it is referable to the
B
dwelling house in which the intestate Hindu was living at the time of his/her
death; he/she intei.ded that his/her children would continue to normally
occupy and enjoy it. He or she regarded it as his or her permanent abode.
On his or her death, the members of the family can be said to have
continued to preserve the same to perpetuate his/her memory . Obviously
c S.23 is an exception to the general rule of succession and has been engrafted
for that purpose. Where there are only one male heir and one or more
female heirs are left surviving behind the Hindu intestate, the members of
the family would continue to remain in occupation and in enjoyment of it
as dwelling house. Due to marriage, the daughter would leave the parental
D house and get transplanted into matrimonial home. The proviso to S.23
visualises certain contingencies and made provision for right of residence to
Class-I female heirs. In the event the male membcr(s) choose(s) to separate
or cease(s) to reside or instead introduce a stranger into family house, then
the female heir gets the right to a share in the dwelling house as well. The
reverence to preserve the ancestral house in the memory of the father or
E mother is not the exclusive preserve of the son(s) alone. Daughter(s) too
would be anxious and more reverential to preserve the dwelling house to
perpetuate the parental memory.
Section 23 thus limits the right of the Class-I female heirs of a Hindu
F who died intestate while both male and female heirs are entitled to a share
in the property left by the Hindu owner including the dwelling house. The
marginal note itself indicates that Section 23 is a special provision: in other
words, it is an exception to the general partition. So long as the male heir(s)
chose not to partition the dwelling house, the female class-I heir(s) has been
G denied the right to claim its partition subject to a further exception, namely,
the right to residence therein by the female class-I heir(s) under specified
circumstances. In other words, the male heir(s) becomes entitled to per-
petuate the memory of the deceased-Hindu who died while remaining to
live in the dwelling house during his or her life time. Thereby the dwelling
house remains indivisible. The male heir(s) thereby evinces animus pos-
H sedendi. But the moment the male heir(s) chooses to let out the dwelling
N. MURTI1Yv. SUSHEELABAI [K. RAMASWAMY, J.] 429
house to a stranger/third party, as a tenant or a licensee, he or they A
exhibit(s) animus dessidendi and the dwelling house thereby becomes
partible. Here the conduct of the male heir(s) is the cause and the
entitlement of the female Class-I heir(s) is the effect and the latter's claim
for partition gets ripened into right as she/they is/are to sue for partition
of the dwelling house, whether or not the proviso comes into play. Here B
the female heir(s) becomes entitled to not only mere partition of the
dwelling house but also her right to residence after partition.
It is, therefore, clear that though the right to succession devolves
upon the female heir under S.8, being Class-I heir to the H;ndu intestate,
in respect of the dwelling house, her right to seek partition has been C
interdicted and deferred only so long as the male heir(s) decide to remain
occupied therein as undivided or continue to have it as a dwelling house.
Though the words 'the male heirs choose to divide their respective shares',
suggest that at least two such male heirs must exist and decide not to
partition the dwelling house in which event the right of the female heir is D
postponed and kept in abeyance until the mele heir or heirs of the Hindu
intestate decided to partition it, it does not necessarily lead to the only
inevitable conclusion that the op~ration of S.23 must stand excluded in the
case of the Hindu intestate leaving behind him/her surviving only a son and
a daughter. Take the present policy of family planning to have only two
children and invariably preferring to have a son and daughter. More than E
one son may not exist. The restriction is contingent and conditional and
will cease to operate on the death of the sole male heir or the last of such
male heirs of the intestate or if he or they choose(s) to partition and sell(s)
his/their shares to a stranger or to let out to others. Take a case of a Hindu
male or female owning a flat in metropolis or major cities like Bombay etc. F
with two room tenement left behind by a Hindu intestate. It may not be
feasible to be partitioned for convenient use and occupation by both the
son and the daughter and to be sold out. In that event the son and his
family will be thrown on the street and the daughter would coolly walk
away with her share to her matrimonial home causing great injustice to the G
son and rendering them homeless/shelterless. With passage of time, the
female members having lost the moorings in the parental family after
marriage, may choose to seek partition though not voluntarily but by
inescapable compulsions and constrained to seek partition and allotment
of her share in the dwelling house of her intestate father or mother. But
the son with his share of money may be incapable to purchase a dwelling H
430 SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.
A house for his family and the decree for partition would make them shel-
terless. Take yet another instance, where two-room tenement flat was left
by deceased father or mother apart from other properties. There is no love
lost between brother and sister. The latter demands her pound of flesh at
an unacceptable price and the male heir would be unable to buy off her
share forcing the brother to sell the dwelling flat or its lease-hold right or
B
interest to see that the brother and his family are thrown into the streets
to satisfy her ego. If the right to partition is acceded to, the son will be left
high and dry causing greatest humiliation and injustice.
Take an instance of a mansion. The entire mansion may not be in
C use as a dwelling unit by the male heir, 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 former may be allotted to the son while working out the equities in the
partition. Take another illustration where in addition to the dwelling house
D 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
E and settlement in another State or abroad which are a common feature. •
Grace to give when he is in afflnent position and allows female heir 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
F memory of the parental abode. Take yet another instance where son due
to being in service is transferred to another place or places and conse-
quently he has to leave his dwelling house and join at the place or places
of his posting. Instead of keeping the house locked, he may lease it out or
grant leave or licence to a tenant. The cessation of possession and enjoy-
ment of the dwelling house is not due to his own volition but due to
G compulsion to eke out livelihood and this cause should not give rise to a
cause of action to a sister to file the suit for partition.
Suppose 'A' and 'B' are brother and sister. 'A' is a Judge of the High
Court. He on elevation to the Supreme Court shifted his residence to
H Delhi. Instead of keeping his house vacant he lets out the house to a tenant.
N. MURTHYv. SUSHEELABAI [K RAMASWAMY, J.] 431
Does it mean that 'A' had ceased to have intention to be in possession of A
the house entitling 'B' to file a suit for partition. 'A' has intention to retain
possession but due to exigency of office he holds, he temporarily ceases to
have occupation, but his intention to return to his house and occupy the
same on superannuation still subsists and on return he would be entitled
to residence.
B
Suppose 'A' is the father, 'B' is the son and 'C' is the daughter. They
reside at 'H' place. 'A' is the Judge of the High Court, 'B' practices in the
Supreme Court and 'C' practices at 'H'. 'B' on account of his practice
ceases to have intention to reside at 'H' place and on demise of 'A', 'C'
may be given the house for her residence to perpetuate the memory of the C
parental abode or else it is liable to partition at an action of 'C'. Take
another instance where 'A' is a Clerk in a Bank. As per the policy of the
management, on promotion to officer cadre, he shall he compulsorily
transferred at least for three years out side the State. Suppose if he joins
in the other State and if S.23 is applied the moment he ceases to occupy D
the house, it becomes liable to partition at a suit by his sister though he
returns on completing three years to his home State. To avoid such a
hardship, either he has to forego his future promotions in career and
remain as a Clerk or face the peril of losing his right in his father's abode.
Take another illustration, where the sole male heir with a view to E
prevent a female heir of her right to residence in the dwelling house lets
it out and occupies another tenanted premises for himself and for the
members of his family. Female heir cannot be expected to fight a litigation
against the tenant; instead she/they are entitled to file a suit for general
partition impleading tenant if not already made party for partition of the F
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
snare of 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 G
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 H
432 SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.
A Hindu intestate, he/they should live in the parental dwelling house as
partition thereof at the behest of the female heir would render the male
heir homeless/shelterless. Obviously, to prevent such hardship and unjust •
situation, special provision was made in S.23 of impartibility of the dwelling
house. Section 44 of the Transfer of Property Act and also S.4(1) of the
Partition Act appear to prevent such fragmentation of the ancestral dwell-
B
ing house. Singular includes plural under S13(2) of the General Clauses
Act and may be applied to s.23 as it is not inconsistent with the context or
subject. Even without resorting to it or having its aid for interpretation, by
applying common sense, equity, justice and good conscience, injustice
would be mitigated. After all, as said earlier, the purpose of law is to
c prevent brooding sense of injustice. It is not the words of the law but the
spirit and internal sense of it that makes the law meaningful. The letter of
the law is the body but the sense and reason of the law is the soul.
Therefore, pragmatic approach would further the ends of justice and
relieve the male or female heir from hardship and prevent unfair advantage
D to each other. It would, therefore, be just and proper for the Court to adopt
common sense approach keeping at the back of its mind, justice, equity
and good conscience and consider the facts and circumstances of the case
on hand. The right of residence to the male member in the dwelling house
of the Hindu intestate should be respected and the dwelling house may be
kept impartible during the life time of the sole male heir of the Hindu
E intestate or until he chooses to divide and gives where to his sister or sisters
or alienate his share to a stranger or lets it out to others, etc. Until then,
the right of the female heir or heirs under S.8. is deferred and kept in
abeyance. So, instead of adopting grammatical approach to construe S.23,
we are of the considered view that the approach of the Calcutta High Court
F and its companion Courts is consistent with justice, equity and good
conscience and we approve of it. We accordingly hold that s.23 applies and
prohibits partition of dwelling house of the deceased Hindu male or female
intestate, he left surviving sole male heir and female heir/heirs and the right
to claim partition by the female heir is kept in abeyance and deferred
during the life time of the male heir or till he partitions or ceases to occupy
G and enjoy it or Jets it out or till at a partition action, equities are worked
out.
Admittedly the suit was filed in 1980 when the High Court had not
ruled on S.23. The Schedule 'A' dwelling house was leased out to the 7th
H defendant. The appellant pleaded in the written statement thai he had
-
N. MURTIIY v. SUSHEELABAI [PUNCHHI, J.] 433
spent around Rs. 1, 24,000 and odd on the marriage of the plaintiff-respon- A
dent. 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
B
extenuating circun1stances 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.
c
PUNCHHI, J.
The special and multiangular proVIston, Section 23 of the Hindu
Succession Act, 1956, emits two legal questions of importance for deter-
mination, in this appeal by special leave, against the order of the Karnataka
High Court dated 21-2-1992 in R.S.A. No. 1045of1991, affirming in limine D
the appellate order of the Civil judge. Ramanagaram dated 22 October
1990 in R.A. No. 31 of 1985, namely :
(i) What is a 'dwelling-house' on which the provision confers the
cloak of impartibility? and E
(ii) Where a Hindu intestate leaves surviving him or her a single
male heir and one or more female heir or heirs, specified in Class
I of the Schedule, is the provision attracted?
It would be worthwhile to reproduce hereafter the provision engag- F
ing attention as also the relevant part of the Schedule :
"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 G
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
chose to divide their respective shares therein; but the female heir
shall be entitled to a right of residence therein : H
434 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
A 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 the
husband or is a widow."
THE SCHEDULE
B
HEIRS IN CLASS I
"Son; daughter; widow; mother; son of a predeceased son; daughter
of a predeceased son; son of a predeceased daughter; daughter of
a predeceased daughter; widow of a predeceased son; son of a
c predeceased son of a predeceased son; daughter of a predeceased
son of a predeceased son; widow of a predeceased son of a
predeceased son"
some facts may now be noted.
D
The appellant, Narashimaha Murthy and his father Narasoji Rao
owned a joint family house, Schedule a property. Besides that Narasoji Rao
owned some self acquired property, Schedule B property. He died some-
where in the year 1968 leaving behind his son, the appellant, Nagubai his
widow, and five daughters. Twelve years after the death of Narasoji Rao,
E one of his daughters, Smt. Susheelabai, Plaintiff-respondent herein filed a
suit for partition for obtaining one-seventh share in the properties of
Narasoji Rao impleading her brother, the appellant, her mother and four
sisters as defendants. The seventh defendant impleaded was the tenant of
Schedule A property occupying it on a monthly rent of Rs. 75. The mother
F 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 dwclling-
house, as understood under section 23 of the Hindu succession Act, 1956,
which provision was otherwise not attracted, when there was only one male
G 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
H that of the son) and in Schedule B property as 1J6th. In accordance
N. MURTHYv. SUSHEELABAI [PUNCHHI, J.] 435
therewith the plaintiff-respondent was granted a preliminary decree for A
partition on October 31, 1985. A separate enquiry was kept by the Trial
Court for determining the mesne profits from the date of the suit till the
date of actual handing over of possession. The first as well as the second
appeal of the appellant.to challenge the judgment and decree of the Trial
Court having been dismissed, has given him cause to bring the dispute to B
this Court for resolution.
The admitted fact-situation now is that the house in question is in
the actual physical possession of the tenant and none of the heirs of
Narasoji Rao, male or female, are in possession thereof. It has now to be
determined whether the suit of the plaintiff-respondent could successfully C
be resisted by the appellant in the light of the afore-posed questions, on
the anvil of Section 23 of the Hindu Succession Act.
The expression "dwelling-house" has not been explained elsewhere
then in the Section 23 itself. There is no specific definition of the expression D
· in the Act· as such. Because of that, various commentators of the subject
have foreseen that the courts were likely to face a problem in defining it.
According to Webster Comprehensive Dictionary, the expression "dwelling-
house" means a house built for habitation, a domicile. In law it may
embrace the dwelling itself and such buildings as are used in connection
with it. According to Black's Law Dictionary (sixth edition), under statute E
prohibiting breaking and entering a "dwelling-house", the test for determiii-
ing if a building is such a house is whether it is used regularly as a place
to sleep. In Stroud's judicial Dictionary (fifth edition), the expres-
sion"dwelling-house" has been described as a house with the super-added
requirement that it is dwelt in or the dwellers in which are absent only F
temporarily, having animus revertendi and the legal ability to return Ford v.
Barnes, (55 L.J.Q.B. 34). It is described that the word "inhabitant" would
seem to bring about more fully the meaning of the word "dwelling-house".
In Words and Phrases (Third Edition) a quotation is available from Lewin
v. End, (1906) AC 299 at 304 attributed to Lord Atkinson in whole words
a "dwelliog-house" as understood by him was "a house in which people live G
or which is physically capable of being used for human habitation". Another
quotation from R v. Allison, (1843) 2 LTOS 288 at 289 is available of
Maule, J. saying that a house, as soon as built and fitted for residence, does
not become of dwelling-house until some person dwells in it. In J.P.
1 Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that H
436 SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.
A 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 Fatima Begum v. Sakina Begum, 1 All 51
B 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
c quotable saying that primarily the expression "dwelling place" means
'residence", ''abode'' or 11 home'1 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 11 home 11 would be implicit in it. In other words, a dwelling
D place must be a house or portion thereof which could be regarded as an
abode or home of the assessee in taxable territories.
From the aforequoted statements it is manifest that in the legal world
the word "dwelling-house" is neither a term of art nor just a word
synonymous with a residential house, be it ancestral, joint family owned or
E self acquired, as understood in the law applicable to Hindus. In the context
of section 23 therefore with the legislature has chosenly employed the word
"dwelling-house", it has done so with a purpose, which is to say that on the
death of the intestate, a limited status quo should prevail as existing prior
to his or her death. His or her abode, shared by him or her, with members
F of his or her family, identifiable from Class I Heirs of the Schedule, should
continue to be in enjoyment thereof, not partible at the instance of the
female heirs till the male heirs choose to effect partition thereof.
There are twelve Class I heirs in the Schedule. They may be arranged
G in the following manner :
FEMALES FEMALES WHO
MALES OTHER THAN ARE
DAUGHTERS DAUGHTERS
i son i mother i daughter
H
N. MURTHY v. SUSHEELABAI [PUNCHHI, J.] 437
11 son of 11 . widow 11 daughter of pre- A
predeceased son deceased son
lll son of lll widow of pre- lll da11ghter of pre-
predeceased son deceased son deceased son of
of pre-deceased pre-deceased son
son B
IV son of IV widow of pre- IV da11ghter of pre-
predeceased deceased son of deceased
da11ghter predeceased son daughter
The order of succession of a male intestate given in Section 9, is that c
the heirs in Class-I take simultaneously to the exclusion of all othe.r heirs,
and the distribution of the property is made in accordance with the
provisions of section 10. Rules of succession of a female intestate are
available in sections 15 and 16 of the Act and they sometimes vary or
overlap upon the rules of succession applicable to the male intestate. But, D
seemingly, for the purpose of the special provision section 23, male and
female heirs specified/identified in Class I of the Schedule, alone have been
conferred certain rights irrespective of the operation of differing rules of
succession applicable to Hindu male and female intestates. This distin-
guished 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, E
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 mother-in-law living with a male
Hindu or for that matter his brother or sister. On his death since his
F
mother-in-law, brother or sister are not Class-I heirs, they 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 G
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 nntil the male heirs
chose to divide their respective shares therein, but till that happens the H
438 SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.
A 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 er.titlement of residence in a
court of law. The proviso makes it amply clear that where such female heir
is a daughter, she shall be entitled to a right of residence in the dwclling-
B house only if she is unmarried or has been deserted by or has separated
from her husband or is a widow. On first impression, it appears that when
the female heir is the daughter, she is entitled to a right of residence io the
dwelliog-house so long as she suffers from any one of the four disabilities
i.e. (1) beiog unmarried; (2) being a deserted wife; (3) being a separated
C wife; ( 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 through! it be, it would lead to an highly unjust result for a married
D 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
E 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 a predeceased
daughter. The right of residence of the female heirs specified in Class-I of
F the Schedule, in order to be real and enforceable, pre-supposes that their
entitlement can not 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,
G (for the singular would inclnde 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
H wholly inhabited by one or more members of the family of the intestate,
N. MURTIIYv. SUSHEELABAI [PUNCHHl,J.] 439
where some of all of the family members, even if absent for some temporary A
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 B
to a r_ight 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 succes-
sion. Thns it appears to us that if the male heirs derive the right under the C
provision to resist partition of the dwelling-house unless they chose to
divide their respective shares therein, then correspondingly it is inrambent
on the male heirs to keep the property well arranged, inhabited or oc-
cupied by themselves keeping the property available for the female heirs
to enforce the right of residence therein. But if the latter right is frustrated D
on creation of third party rights or a contractual or statutory tenancy, there
remains no right with the males to resist partition.
Every right has a corresponding duty._ This principle vigorously ap-
plies in this multiangular provision. A house tenanted brings in stranger;;
and it ceases to be a dwelling-house inhabited by members of the family~ E
The protection of section 23 is thus not available to the males. It is in this
light that question no. 1 need be answered to say that a dwelling-house is
that house which is in actual, physical, inhabited possession of oue or the
other members or the family in stricto sensu, and if some are absent due
to exigencies of service or vocations, the dwelling- house remains available F
for them to re-enter without any obstruction or hindrance and on that
premise enabling the female heir to assert a right of entry and residence
therein. A tenanted house does not fit into this description. Disabled
daughters need instant succor, not litigation. They need doors of the
dwelling- house always wide open, not stoney-eyed responses of strangers. G
The provision silences them in seeking partition, but not their ownership
extinct. If marriage has the inescapable consequence of displacement of
the daughter from the parental roof, .her interests forever cannot be
sacrificed on the alter of matrimony. Her distress revertendi is of equal
importance standing alongside the qualified defence of impartibility by the H-
440 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A male heir as afore-explained. The first question is answered accordingly.
The second question docs not present much difficulty. On literal
interpretation the provision refers to male heirs in the plural and unless
they chose to divide their respective shares in the dwelling-houses, female
heirs have no right to claim partition. In that sense there cannot be a
B
division even when there is a single male. It would always be necessary to
have more than one male heir. One way lo 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
c 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 their 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
D some or all members of the intestate's family which includes male or males.
Understood in this manner, the language in plural with reference to male
heirs would have to be read in singular with the aid of the provisions of
the General clauses Act. It would thus read to mean that when there is a
single male heir, unless he chooses to take out his share from the dwell-
E ing-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 religious obligation, for the fulfillment of which Hindus have even
been resorting to adoptions; it could not be visualized that it was intended
that the single male heir should be worse off. unless he had a supportive
second male as Class I heir. The provision would have to be interpreted in
F such manner. that it carries forward the spirit behind it. The second
question would thus have to be answered in favour of the proposition
holding that where a Hindu intestate leaves surviving him a single male heir
and one or more female heirs specified in Class I of the Schedule, the
provisions of section 23 keep attracted to maintain the dwelling-house
G impartable as in the case of more than one male heir, subject to the right
of re-entry and residence of the female heirs so entitled, till such time the
single male heir chooses to separate his share; this right of his being
personal to him, neither transferable nor heritable.
H Now applying the ratio above evolved on the facts of this case, it is
N. MURTHYv. SUSHEELABAJ [PUNCHHI,J.] 441
evident that when the house in question is tenanted, it is not a dwelling- A
house in the sense the word is used in section 23 of the Hindu Succession
Act and therefore it has no protection of its being impartable. The suit of
the plaintiff-respondent could not have been resisted by the defendant-ap-
pellant on the basis that it was a family house. Equally the suit could not
have been resisted by the defendant-appellant on the ground that being the
B
sole male heir of the intestate, section 23 was inapplicable, because then
the suit for partition would otherwise have been maintainable. Had the
finding been that the House in question was a dwelling-house the suit could
have been re<isted by him even as a single male heir on the basis of Section
23 of the Act.
c
As a result of the above discussion, the preliminary decree for
partition in favour of the plaintiff-respondent cannot be upset. The Judg-
ments and orders of the courts below would have to be maintained. In
partitioning the properties the trial court would bear in mind, as it is bound
to, the provisions of the Partition Act. The appeal, in these circumstances, D
fails but without any order as to costs.
v.s.s. Appeal dismissed.
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