Report No. 136

4.16.1. Whether section 23 of the Hindu Succession Act, 1956 is applicable where there is only one male heir of the intestate?-

There is a conflict of judicial opinion among the various High Courts about the precise scope and applicability of section 23 of Hindu Succession Act, 1956 in the context of the situation where a Hindu male or female, dies intestate leaving behind a family comprised of one male heir and one or more female heirs. The question is whether section 23 will be attracted in such a situation and whether a female heir will be denied the right of partition of the dwelling-house until the male heir chooses to claim partition of his share therein. The said provision runs this:-

"23. Special provision respecting dwelling-houses.-Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class 1 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."