Report No. 136
4.16.2. The Calcutta1-2, Gujarat3, Kerala4 and Madras5, High Courts have held that section 23 of the Act will be attracted even in such a situation and a female heir cannot claim partition of the dwelling-house until the male heir chooses to claim partition of his share therein.-
The reasoning of the Madras High Court6, which concurs with the Calcutta High Court, is unfolded in the passage extracted from its judgment:-
"We are of the opinion that the Parliament, while enacting this section should have felt that the dwelling-house of a Hindu joint family should be regarded as an impartible asset treasured by the ancient Hindu tenants and as such the dwelling-house should be allowed to be preserved by the family until the male heir or male heirs, as the case may be, mentioned in Class I of the Schedule, opted for dividing the same and to that extent the Parliament wanted to recognise the traditions and sentiments so cherished by the ancient Hindu families from time immemorial.
If the male members choose to divide the family house among themselves, or if a single male member chooses to divide it among the respective shares or alienates his share to a stranger, then it would mean that the contingency has arisen whereby the male members are no longer capable of preserving the dwelling-house. That is why the Parliament has, under the section, allowed the female members to claim partition in case the male members choose to divide their respective shares in the house. At this juncture, we may point out that the Parliament has not in any way restricted the right of the female member to claim partition in the other properties left by the intestate.
In our opinion, so longer the male members do not choose to divide their respective shares in the dwelling-house, the dwelling-house is in a way excluded from division, subject to the right of the female members to a share therein and the right of residence of the unmarried female members, etc. While doing so, the Parliament should have taken into account the fact that the female members after their marriage naturally live with their husbands in their houses.
If at the instance of any such female members, the dwelling-house is allowed to be partitioned against the wishes of the male heir, he may be put to great hardship and be compelled to alienate the house if it is incapable of division. Therefore it was but just that the family dwelling-house should be allowed to be kept by the male members till they chose to divide it, and the female members should not be the persons responsible for the disintegration and fragmentation of the dwelling-house.
In fact, section 23 has been introduced as a special provision respecting dwelling-houses, as clearly seen from the heading of the section itself, thereby laying emphasis on the preservation of the dwelling-house. It was for these reasons, in our opinion, the Parliament has given the male members an edge over the female members in the matter of the option for partition of the dwelling-house. But, at the same time, it is significant to note that the proviso to section 23 preserves the right of residence of a female heir who is unmarried or is deserted by or has separated from her husband, or is a widow."
The Madras High Court realised that great hardship would ensure to the female heirs but argued that it was a lesser evil than the resultant injustice to the male heir:
"We are conscious of the fact that there are certain hard cases where for instance, the intestate has left only a big mansion in the form of a dwelling-house and no other property, (and is) survived by a single male heir and one or more female heirs. In such cases even though the female heirs are entitled to a share in the property of the intestate under the Act, such right would practically be defeated and frustrated since there is no possibility of the single male heir choosing to divide the shares in the property of the intestate, and thus the right of the female co-heirs to have a partition of their shares is likely to be successfully obstructed for ever.
In such cases, the right to demand partition, vested in the female heir, will be permanently postponed and ultimately, frustrated. Such hard contingencies would cause great hardship to the female heirs; but that cannot be avoided. In our opinion, if the view of the Orissa High Court, followed by Padmanabhan, J. is to be accepted, then, in our opinion, gross injustice would be done to the single male heir and the very object with which the section has been enacted would be completely nullified.
In our view, the hardship that would be caused to the female heirs in not being able to claim partition is certainly relatively less than the injustice that could be done to the single male member. Despite the above opinion held by us, we cannot help observing that it is very unfortunate that section 23 is not very carefully and lucidly worded in a particularity of language, avoiding the scope of different interpretations. In our view, section 23 deserves modification so as to avoid difficulties of interpretation leading to divergent views and consequent anomaly."
1. Arun Kumar v. Jnanendra Nath, AIR 1975 Cal 232.
2. Surjya Kumar v. Smt. Maya Dutta, AIR 1982 Cal 223.
3. Vidyaben v. J.N. Bhatt, AIR 1974 Guj 23.
4. Madhavan Ezhuthassan v. Vellayyappan, 1981 HLR 594 (Ker).
5. Janabai Amoral v. T.A.S. Palani Muduliar, AIR 1981 Mad 62.