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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:  1996 AIR 1826            1996 SCC  (3) 644  JT 1996 (4)   300        1996 SCALE  (3)625

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.RAMASWAMY,J.      One Narasoji Rao, died intestate leaving behind him the appellant,  the   only  son   and  the   respondents,  three daughters, after action at the latters’ 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  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. Hanumantappa mallurappa,[1984 Kar.L. J. 2731].      The only  question argued  before us  is:  whether  the dwelling house  is partible,  when Narasoji  Rao left 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:      "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

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    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  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."      The Orissa,  Karnatakas Bombay  and Gujarat High Courts have 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 met out  justice;  in  other  words,  to  prevent  injustice  or miscarriage of  justice. In  our  view,  the  interpretation should  be   consistent  with   justice,  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  partitions,  S.23  makes  a special provision  respecting partibility  of  the  dwelling house. When a Hindu intestate, whether male or female, has left surviving  him or  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 heirs choose to divide  their respective  shares therein,  but the female Class-I  heir,  like  unmarried  or  widow  or  deserted  or separated daughter  of the deceased, shall have the right of residence therein,  When  the  deceased  Hindu  left  behind him/hers, only  one male  heir and one or more female heirs, the  question   emerges:  whether   the  dwelling  house  is partible? By  operation of 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 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 quotation connotes 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

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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 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 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 daughter  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 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 file a suit for partition and possession of her  share in  the property.  In Janabi  Ammal v.  T.S.A. Palani  hudaliar   [AIR  1981  Madras  62],  one  Swaminatha Mudiliar died intestate owning extensive properties, leaving behind the Alaintiff and other three daughters and two sons. The  daughters   laid  suit   for  partition  of  properties including the  dwelling house. Subsequently, one of the sons died and  the sole  son was  in possession  of the  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 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  house      until  the  male  heirs  choose  to      divide  their   respective   shares      therein.  The  object  behind  this      section  seems  to  be  to  prevent      fragmentation or  disintegration 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

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    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 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  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 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 contingency of the  male heirs chosing to divide their respective shares therein,does not  adim of  being fulfilled  Section 23  gets attracted only  where an  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:      "Under  the   Act,  a  female  heir      succeeds to  the estate  of a Hindu      dying  intestate.  That  succession      cannot be  held in  abeyance, Under      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      happening  of  another  event.  The      conditions  that   make  the  right      imperfect are  referred to  in  the      first part  of S.23.  i.e. "that  a      Hindu 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

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    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      attracted only  if  the  conditions      contemplated in  the first  part of      the Section comes into existence."      If there  is only  one  male  heirs  the  circumstances envisaged in  the first part of the section do not come into existence and  the section  does not  come into operation at all. The  provisions of  this section cannot be applied to a case where 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 "heir" and "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  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 Class I      decide to  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, Purnawasi v.      Smt. Sukha  Devi,  under  agreement      has  been   expressed  with   these      views. Question  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   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

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    intestate from creating a situation      in which  partition of  the  family      house may  entail a  forced sale of      it or  otherwise cause  hardship to      the son  or sons  of the  intestate      where it  may not  be possible  for      the son  or sons  to  buy  off  the      share  of   the  female   heir  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 1 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      does  not   choose  to  divide  his      respective share  in  the  dwelling      houses It would seem that the right      of 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  then   before  such  time.  The      restriction will  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. 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  heir  choose  to  divide      their respective  shares therein is      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      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

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    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 sense to economise the word denoting  the  legislative  animation.  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 toÿpreserve the same to  perpetuate his/her  memory. Obviously  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  house and  get transplanted  into  matrimonial home. The  proviso to  S.23 visualizes certain contingencies and made  provision for right of residence to Class-I female heirs. In  the event  of the  male member  (s)  chose(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 mother  is not  the exclusive preserve of the son  alone.   Daughter  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  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 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 perpetuate the  memory of  the deceased-Hindu who died while remaining to  live in  the dwelling  house during his or her life. Thereby  the dwelling  house remains  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

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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 must exist and decide not to partition  the dwelling house in which event the right of the female  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 S.23 must stand excluded in  the case  of the Hindu intestate leaving behind him/her surviving  only son  and daughter.  Take the present policy of  family. planning  to have  only two  children and invariably preferring  to have a son and daughter. More than 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. with two room tenengent left  behind by  a Hindu  intestate. It may not be feasible to be partitioned for convenient use and occupation by both  son and  daughter and to be sold out. In that event the son  and his  family will  be thrown  on streets and the daughter would  coolly walk  away  with  her  share  to  her matrimonial hone  causing great  injustice to  the  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  intestate father  or mother. But the son with  his share  of money may be Incapable to purchase a dwelling house  for his  family and the decree for partition would make  them shelterless.  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 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 justice.      Take an  instance of  a mansion. The entire 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

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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 or places and consequently 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  enjoyment of  the dwelling house is not due to his  own volition  but  due  to 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 Delhi. Instead of keeping his house vacant he lets out the house to a tenant. Does it mean that ’A’ had ceased to have intention to be in possession of the house  entitling ’S’  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.      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  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  be compulsorily transferred  at least  for three  years outside the State.  Suppose if  he joins  in the  other State and if S.23 is applied the moment he ceases to occupy 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  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 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

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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 prevent  such   hardship  and   unjust  situations   special provision was  made in  S.23 of impartibilty 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  dwelling  house.  Singular includes plural under S.13(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 to prevent brooding sense of injustice. It is not the words of the law but the spirit and internal sense  of it  that takes  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 hair 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 conscious  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 purpose of law is to prevent brooding  sense time  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 S.8 is deferred and kept  in  abeyance.  So,  instead  of  adopting  grammatical approach to  construe S.23,  se are  of the  considered view that the  approach of  the Calcutta 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, who left surviving sole male heir and female  heir/heirs and  the right  to claim partition by female heir is kept in abeyance and deferred during the life of the  mate heir  or till he partitions or ceases to occupy and enjoy  it or  lets 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 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 Rs.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. Narashimaha Murthy

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V. Smt. Susheelabai & Ors.                       J U D G M E N T 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, against  the order  of the Karnataka High Court dated 21-2-1992 in R.S.A. No.1045 of 1991, affirming in limine the appellate order  of the  CITY 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      (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 engaging  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 by members of his or her family, then, notwithstanding anything contained in  this Act, the right of any such female heir to claim partition  of the dwelling-house shall not arise until the male  heirs choose  to divide  their  respective  shares therein; but the female heir shall be entitled to a right of residence therein:      Provided that where such female heir is a daughter, she shall be  entitled to  a right of residence in the dwelling- house only  if she  is unmarried  or has been deserted by or has separated from her husband or is a widow."                         THE SCHEDULE                       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      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.      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 somewhere in the year 1968 leaving  behind his  son, the  appellant,  Nagubai  his widow, and  five daughters.  Twelve years after the death of Narasoji  Rao,  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 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

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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 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 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 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 than  in  the  Section  23  itself.  There  is  no specific definition  of the  expression 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 habitations 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  prohibiting  breaking  and  entering  a  "dwelling- house", the  test for  determining 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 expression "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 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 whose words a "dwelling- house" as  understood by  him was  "a house  in which people live 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 a  dwelling-house until  some person dwells in it. In 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

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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" would be implicit in it. In other words,  a dwelling  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 self  acquired, as understood in  the law  applicable to Hindus. In the context of section  23 therefore  when 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 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 in the following manner:      MALES         FEMALES OTHER        FEMALES WHO ARE                    DAUGHTERS            DAUGHTERS                    ---------            --------- i)   son           i) mother            i) daughter ii)  son of        ii) widow            ii) daughter of pre-      predece-                           deceased son      ased son iii) son of        iii)widow of pre-    iii)daughter of pre-      predece-      deceased son         deceased son of      ased son                           pre-deceased son      of pre-      deceased      son iv)  son of        iv)widow of pre-    iv)daughter of pre-      predea-       deceased son        deceased daughter      sed daughter  of predeceased                    son      The order  of succession  of a  male intestate given in Section 9,  is that the heirs in Class-I take simultaneously to the exclusion of all other 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,  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  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

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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 partition  of the  dwelling-house  does  not arise until  the male heirs chose to divide their respective shares therein,  but till  that happens  the female  heir is entitled to  the right  to reside  therein. The  female heir already residing  in the  dwelling-house has  a right to its continuance but in case she is not residing, she has a right to enforce  her entitlement  of residence in a court of taw. 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  dwelling-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 in the dwelling-house so  long as  she suffers  from any one of the four disabilities  i.e. (1)  being unmarried;  (2)  being  a deserted wife;  (3) being  a separated wife; and (4) being a widow. It  may appear  that  female  heirs  other  than  the daughter are entitled without any qualification to a  right of  residence, but  the  daughter  only  if  she suffers from any of the aforementioned disabilities. If this be the  interpretation, as  some of  the commentators on the subject have  thought it  be, it  would lead  to  an  highly unjust result for a married grand-daughter as a Class I heir may get  the right of residence in the dwelling-house, and a married daughter  may not.  This  incongruous  result  could never   have    been   postulated    by   the   legislature. Significantly,  the   proviso  covered   the  cases  of  all daughters, which means all kinds of daughters, by employment of the  words "where such female heir is a daughter" and not "where such  female heir  is the daughter". The proviso thus is meant  to cover  all daughters,  the description of which has been  given in  the above table by arrangement. The word "daughter" in  the proviso is meant to include daughter of a predeceased  son,   daughter  of  a  predeceased  son  of  a predeceased son  and daughter of a predeceased daughter. The right of  residence of the female heirs specified in Class I of 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, (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

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revertendi.  In   our  considered  view,  a  tenanted  house therefore is  not a dwelling-house in the sense in which the word is  used in  section 23.  It may be a dwelling-house in the structural sense but it cannot be said to be a dwelling- house in  habitation  by  the  members  of  the  intestate’s family. In  that twin  sense,  when  the  female  heirs  are entitled to  a right  of residence  therein, which  right is enforceable against  the male  heirs, that  right  militates against the  created or creating of tenancy by the male heir or heirs  and deprive  them  of  their  right  to  residence therein as  also their  right  to  partition;  an  incidence normal to  the opening  of succession. Thus it appears to us that if  the male heirs derive the right under the provision to resist  partition of the dwelling-house unless they chose to  divide   their  respective   12  shares   therein,  then correspondingly it  is incumbent  on the  male heirs to keep the  property   well  arranged,  inhabited  or  occupied  by themselves keeping  the property  available for  the  female heirs to  enforce the right of residence therein. But if the latter right is frustrated on creation of third party rights or a  contractual or  statutory tenancy,  there  remains  no right with the males to resist partition.      Every right  has a  corresponding duty.  This principle vigorously applies  in this  multiangular provision. A house tenanted brings in strangers and it ceases to be a dwelling- house inhabited  by members of the family. 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 8 dwelling 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  residence therein.  A   tenanted  house   does  not   fit  into   this description. Disabled  daughters need  instant succour,  not litigation. They  need doors  of the  dwelling-house  always wide open,  not  stoney-eyed  responses  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 impartibility by the male heir as afore-explained. The first question is answered accordingly.      The second  question does  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-house, female heirs have no right to claim partition. In that sense there cannot be a division even  when there  is a single male. It would always be necessary  to have  more 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

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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  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  a   class  I  heir.  The  provision  would  have  to  be interpreted in  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 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.      Now applying  the ratio  above evolved  on the facts of this case,  it is evident that 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  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-appellant 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  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  resisted by him even as a single male heir on the basis of Section 23 of the Act.      As a  result of  the above  discussion, the preliminary decree for  partition in  favour of the plaintiff-respondent cannot be  upset. The  judgments 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,  fails but  without  any  order  as  to costs.