Narashimaha
Murthy Vs. Smt. Susheelabai & Ors [1996] INSC 560 (17 April 1996)
Ramaswamy,
K.Ramaswamy, K.Kuldip Singh (J) Punchhi, M.M. K.Ramaswamy,J.
CITATION:
1996 AIR 1826 1996 SCC (3) 644 JT 1996 (4) 300 1996 SCALE (3)625
ACT:
HEAD NOTE:
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 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 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 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 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
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 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 to˙preserve 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 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 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 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 V. Smt. Susheelabai & Ors. 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 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 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 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 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 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.
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