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Report No. 136

4.16.3. A contrary view has been taken by the Bombay1, Karriataka2 and Orissa3 High Courts. Says Bombay High Court4.-

"Now, it is true that the object of section 23 is to prevent fragmentation and disintegration of a family dwelling-house at the instance of a female heir or heirs to the prejudice of the male heirs. True it is that it is in tended to repeat one of the ancient Hindu tenets to preserve a family dwelling-house as an impartible asset. It is a special provision meant to preserve and safeguard a family dwelling-house, when it devolves in accordance with provisions of this Act. It cannot be gainsaid that the female heirs specified in Class I inherit the share even in the dwelling-house absolutely.

The course of devolution of property under section 8 of the Act, however, is restricted, so far as female heirs are concerned, and this restriction is to operate only till the happening of an event envisaged under section 23 of the Act. Their right is only kept in abeyance until the male heirs choose to divide their respective shares in the family house. When there are more than one heir of the intestate residing jointly together and forming a joint Hindu family, it is in the fitness of things and as intended by the legislature that at the instance of female heirs who are strangers, their joint abode should not be disrupted and their joint status impaired.

But this object no longer survives when there is no joint Hindu family with male members residing together in a family house on one hand, and female heir on the other. With a sole surviving coparcener or a lone male heir with other female heir or heirs on whom the property (including the dwelling-house) devolves as per the provisions of section 8 of the Act and who all take simultaneously, they are all tenants-in-common. To restrict their rights in such situation also is not merely to postpone that restriction till the happening of any event (as that event can never occur) but practically destroy and deny that right for ever."

1. Anant Gopalrao v. Jankibai Gopalrao, AIR 1984 Bom 319.

2. B. Bangarappa v. I.K.T. Pattanshetti, AIR 1988 Kam 174.

3. Hemalata v. Umashankari Maharana, AIR 1975 Ori 208.

4. Anant Gopalrao v. Jankibai Gopalrao, AIR 1984 Bom 319.

Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back

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