A Bombay high court judgement in this regard is given here for your information which is relevant to your case and beneficial to your subject
Bombay High Court
Ananda @ Annasaheb Dnyanu Shinde vs Akkatai W/O Bhagwan Patil on 18 September, 1999
Equivalent citations: (2000) 102 BOMLR 36
Author: R Lodha
Bench: R Lodha
JUDGMENT R.M. Lodha, J.
1. This is a dispute between the daughter and adopted son of a Hindu widow Chandrabai in relation to a dwelling-house and the question involved in this appeal is whether the daughter can pray for partition of the dwelling-house as per her share in view of Section 23 of the Hindu Succession Act, 1956.
2. The brief facts are:-
One Dnyanu Keshav Shinde was the owner and in possession of a residential house situated at "E" Ward, Rajarampuri, Kolhapur city, details of which are given in para 1 of the plaint. He died leaving behind the widow Chandrabai and daughter Akkatai (original plaintiff). The widow Chandrabai adopted Ananda alias Annasaheb (original defendant) on 28.11.1946. Chandrabai had half share in the residential house left by Dnyanu Keshav Shinde. She died on 28.9.1975 leaving behind original plaintiff and the original defendant as her heirs. According to the original plaintiff, she demanded half share in the half share held by Chandrabai in residential house from the original defendant, but the original defendant did not accede to her request necessitating the filing of the suit by original plaintiff for 1/4th share in the suit house along with possession and decree for mesne profit.
3. The original defendant filed written statement and set up the defence that in view of his adoption as per the Hindu Law prevalent in the then Kolhapur State, he alone had become absolute owner of the suit property. According to him Chandrabai was not given half share in the suit property as owner and she had only a right of residence during her lifetime. The original defendant averred that the original plaintiff and her husband sold the suit property to one Shantinath Chandrappa on 6.6.1945. Chandrabai filed a suit bearing Reg. Civil Suit No. 32 of 1947 against the said Shantinath Chandrappa for recovery of possession. The said suit was decreed in favour of Chandrabai. Thereupon Shantinath filed appeal and that too was dismissed. The original defendant stated that he levied execution of the decree and got possession and therefore, the plaintiff has no right, title and interest in the suit property and she is not entitled to get partition and possession of any share in the suit property.
4. The Trial Court on the face of the pleadings of the parties framed five issues in all and after recording evidence and hearing the parties concluded that the original plaintiff has been able to prove that she has 1/4th share in the suit property. The Trial Court further held that the original defendant has 3/4th share in the property in question. However, the Trial Court held that the original plaintiff is not entitled to partition and separate possession of her share in view of Section 23 of the Hindu Succession Act. The judgment and decree passed by the Trial Court on 31.3.1980 dismissing the plaintiffs suit was challenged by the original plaintiff in appeal and the Second Extra Asstt. Judge, Kolhapur, by his judgment and decree dated 19.1.1982 allowed the appeal, set aside the judgment and decree passed by the Trial Court and passed decree declaring that the original plaintiff has got 1/4th share in the property and she is entitled to get partition and separate possession of her 1/4th share in the suit property. The Appeal Court accordingly ordered appointment of Commissioner to suggest partition of the suit property, and give original plaintiff separate possession according to her share. The Appellate Court also held that the original plaintiff is entitled to get mesne profits of her 1/4th share in the suit property.
5. It is the original defendant, aggrieved by the said judgment and decree passed by the Appellate Court, who has come in second appeal and the only contention advanced by the learned Counsel for the appellant is that it was not open to the original plaintiff as daughter to claim partition in the property left by Chandrabai in respect of the dwelling-house. According to Mr. Sawant, the learned Counsel for the original defendant, the original plaintiff has only right of residence and she cannot claim partition till such time the original defendant chooses to separate his share.
6. There is no challenge to the finding recorded by the first Appellate Court that the original plaintiff has proved that her mother Chandrabai was the owner of the half share in the suit property at the time of her death. There is also no challenge to the finding recorded by the two Courts below that the original plaintiff has got 1/4th share in the property. The only challenge is to the finding recorded by the Appellate Court that the original plaintiffs suit for partition and separate possession was not barred by Section 23 of the Hindu Succession Act. The property in question is a house property and parties seem to be ad idem that it was a dwelling-house. On facts, therefore, there is no dispute. The only legal question that needs to be considered and answered in this second appeal is whether the original plaintiff-daughter could claim partition and separate possession of dwelling-house from his brother, who has also share in the dwelling-house.
7. Section 23 of the Hindu Succession Act, 1956 carves out a special provision in respect of dwelling-house. It reads 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 1 of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, they, 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 family 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.
8. Section 23 has come up for consideration before various High Courts including this Court as well as the Apex Court. A Division Bench of the Orissa High Court in Hemalata Devi v. Umasankari Maharana held that if there are more than one male heir then there is possibility of anyone of such heirs asking for partition of dwelling-house and the female heir in such a case can claim her legitimate share. But where there is a single male heir, there is no possibility of that male heir claiming any partition against another male heir and thus where there is a single male heir and others are female heir, then those female heirs are entitled to claim partition. While considering the expression "male heir" occurring towards last part of the main section, the Orissa High Court in para 4 of the report held thus:-
4. The main part of the section requires consideration. Mr. B.B. Mohanty contends that the plaintiff as a female heir shall be entitled to a right of residence in the disputed houses, but she has no right of partition. A bare perusal of the section indicates that a female heir is not entitled to enforce her right of partition unless the male heirs exercise their right. If the male heirs ask for partition, the female heir can claim her legitimate share so far as the dwelling-house is concerned. In this case the only male heir of Hadibandhu is Dinabandhu. There are no plurality of male heirs. Consequently the question of any other male heir claiming a partition with Dinabandhu does not arise. Where there is a single male heir, the right to claim partition of the dwelling-house by a female heir is not excluded. The expression "the male heirs" towards the last part of the main section furnishes the clue to the meaning of the section. If there are more than one male heir than there is a possibility of anyone of such heirs asking for a partition of the dwelling-house and the female heir in such a case can claim partition. But where there is a single male heir, there is no possibility of that male heir claiming any partition against another male heir. We are therefore clearly of the opinion that where there is a single male heir and others are female heirs then those female heirs are entitled to claim partition.
9. On the other hand a Division Bench of the Calcutta High Court, in Arun Kumar Sanyal v. Jnanendra Nath Sanyal and Anr. AIR 1975 Cal. 232 : 79 C.W.N. 365 held otherwise and it was ruled by the Division Bench through M.M. Dutt, J. (as he then was) ruled that even where there is one male heir and one female heir of a Hindu, the bar under Section 23 in respect of dwelling-house come into play; the object is to prevent fragmentation or disintegration of a family dwelling-house at the instance of the female heirs of the hardship and difficulties to which the male heirs may be put. In paras 8 and 9 of the report, the Division Bench of the Calcutta High Court held thus :
8. If Section 13(2) could be applied there would not have been any difficulty. But as it is inapplicable it is necessary to ascertain the intention of the legislature. It is clear from the section that the legislature does not approve of division of a dwelling-house at the instance of a female heir against the Will of the male heirs. This restriction which has been imposed by Section 23 prevents fragmentation or disintegration of a family dwelling-house at the instance of the female heirs to the hardship and difficulties to which the male heirs may be put. A Hindu may die leaving a son and a number of daughters. If at the instance of any such daughters the dwelling-house is allowed to be partitioned against the wish of the son, he may be put to great hardship. The house may not be capable of partition and in that case it will have to be sold. If, in such a case, it is held that Section 23 is inapplicable because of the absence of male heirs as contended on behalf of the appellant in our view, it will defeat and frustrate the very purpose for which the section has been enacted. In the first instance, the section imposes a bar when it provides "the right of any such female heir to claim partition of the dwelling-house shall not arise", but the bar is removed only on the happening of the contingency, namely when the male heirs choose to divide their respective shares therein. 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 is inapplicable. The rule which has been laid down by Section 23 clearly indicates the intention of the legislature female heirs should not be allowed to divide the dwelling-house against the Will of the male heirs and, on a proper construction of the section, we are of the view that it is also the intention of the legislature when there is only one male heir. If the male heir choose to divide the dwelling house, undoubtedly the female heir or heirs will be entitled to claim partition, but so long as no such choice is actually exercised the female heirs are debarred from claiming partition.
9. It is argued on behalf of the appellant that the bar imposed by Section 23 on a female heir is only a personal bar and is removed when a female heir looses her share or interest in the dwelling-house for any reason including that when she transfers the same to another. It is said that the appellant being the transferee of his sisters, the bar which was on them will not apply to the appellant, for the bar was only a personal bar. It is said that the contention finds support from the proviso to the section providing for the right of residence of the female heir, when she is a daughter, under certain circumstances. Our attention has also been drawn to Section 22 of the Act which confers a right similar to a right to pre-emption on the heirs specified in class I when one of such heirs proposes to transfer his or her interest in the property or business. The right of pre-emption which is conferred by Section 22 and the right of residence under the proviso to Section 23 are no doubt personal rights, but we fail to see how the same have any bearing with the question whether or not the bar under Section 23 is a personal bar. We are not at all impressed with the contention that the bar is only a personal bar and it conies to an end when the female heir loses her interest in the dwelling-house by transfer of the same to another. It is contended that inasmuch as a son of a pre-deceased daughter is an heir under class I and is undoubtedly entitled to claim partition of the family dwelling-house. It should be held that the bar imposed under Section 23 is only a personal bar. A son of a pre-deceased daughter is a class I heir. He does not inherit as an heir of the daughter, but he has been made an independent heir of the Hindu intestate. The case of a transferee of a female heir is completely different and cannot be equated with that of the son of a predeceased daughter. A transferee claims through the female heir; he steps into the shoes of the female heir and has no right independent of the right of the female heir which he has acquired by the transfer. In our view, a transferee of a female heir will be subject to the same restriction and prohibition as imposed by Section 23, namely, that he will be precluded from claiming partition of the dwelling-house until the male heirs chose to divide the same.
10. In Janabai Ammal alias Gunabooshani v. T.A.S. Palani Mudaliar and Ors. a Division Bench of the Madras High Court (Division Bench comprising of Ratnaval Pandian, J. as he then was, and Venugopal, J.) while considering the question whether restriction provided under Section 23 of the Hindu Succession Act apply in cases where there is only one male heir of intestate, dissented with the Division Bench Judgment of the Orissa High Court in Hemalata Devi's case and held that even in cases where there is only one male heir and one or more female heir of an intestate in Hindu Joint Family, the female heir/s cannot claim partition of the dwelling-house until that the male heir chooses to divide the respective shares thereof. In paragraph 23 of the report, the Division Bench of the Madras High Court considered the judgment of the Orissa High Court in Hemalata Devi's case and the judgment of the Calcutta High Court in Arun Kumar Sanyal's case and after considering the said judgments, in paragraphs 28 and 29 of the report held thus:-
28. We may also add that if the Parliament had intended that Section 23 would not apply to the case of a single male heir, and that the female heirs in such cases could seek division of the dwelling-house, it would have certainly made a specific provision respecting that contingency by atleast adding a proviso to that effect to Section 23. As pointed out by Mulla. at p. 942 of the Hindu Law, 14th Edition, this section is intended to ensure the easement of disruptive influences which would operate if the right of a female heir to claim partition of the family dwelling-house were left unrestricted.
29. 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 share 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 forever. 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 Padmanabha, 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 for different interpretation. In our view, Section 23 deserves modification so as to avoid difficulties of interpretation leading to divergent views and consequent anomaly.
11. The learned Single Judge of this Court in Anant Gopalrao Shende v. Jankibai Gopalrao Shende and Ors. was concerned with the question to the interpretation, scope and applicability of Section 23 of the Hindu Succession Act where a Hindu dying intestate leaves only single male heir and other female heirs, specified in Clause 1 of the Schedule. The learned Single Judge observed that there is differing judicial opinion on the point in the other High Courts and after considering the judgment of the Calcutta High Court in Ashok Kumar Sanyal, judgment of the Orissa High Court in Hemalata Devi, and the judgment of the Madras High Court in Janabai, found himself persuaded by the view taken by the Orissa High Court in Hemalata Devi and recorded his inability to agree to the view taken by the Calcutta and Madras High Courts. In paras 11 and 12 of the report, the learned Single Judge of this Court held thus:-
11. The statutory rights bestowed and conferred by Section 8 on the female heirs are restricted or curtailed respecting dwelling-houses only under the circumstances evisage under Section 23, the purpose being to defer actual partition of the family dwelling house which is actually in occupation of the members of the family of the intestate until the male members themselves choose to district their joint status. This exception and restriction must be construed strictly and strongly and it is, in fact, implied that no other exceptions are contemplated by the legislature. Firstly, therefore, as already stated, in the case of single or sole male heir, there is no joint family, no joint family dwelling of joint family members and, therefore, there is no object and no purpose, that is calculated, to be served by keeping the devolution of female heirs in abeyance. Secondly to construe this section to mean that the restriction applies even in cases where there is only one heir of the intestate, would be to construe it beyond the purpose plainly indicated and to forfeit, verily, the established and vested rights of the female heirs, when they take as tenants-in-common with the single male heir.
12. Again, in determining the true scope and applicability of Section 23, the consideration of comparative hardship between the single male heir and the female heirs, as sought to be pointed out in AIR 1981 Mad. 62, in my view, is out of place and has no relevance. Now, when there are only two male heirs and a comparatively large number of female heirs prejudice and hardship is bound to be caused to them also, in the event of their choosing to sever and divide. On the other hand, where a male heir and his step-sister or his niece (deceased's brother's daughter) are the only two heirs of Class-I. hardship and prejudice to him would be less as compared to that caused to such a female heir, if she is to be perpetually deprived of her right of succession bestowed on her by law. Hardship and prejudice, in my view, therefore, is no good consideration. In case of a single male heir, there is no question of any object being nullified and one cannot read in Section 23 more than what is enacts and anything more than what the legislature really intended. With respect, therefore, I am unable to record my accord to the view taken by the Madras and the Calcutta High Courts. The view taken by the High Court of Orissa is more consistent with the text of Section 23 and the intendment of their legislature.
12. This Court has, therefore, taken the view that in case of a single male heir, the object of Section 23 is not nullified and in that event the female heir can claim partition in dwelling-house.
13. The legal position as regards applicability, scope and ambit of Section 23 of the Hindu Succession Act is no more res integra in view of the authoritative pronouncement by three Judge Bench of the Apex Court in Narashimaha Murthy v. Smt. Susheelabai and Ors. . In the case before the Apex Court, the facts were:-
One Narasoji Rao died intestate leaving behind him Narashimaha - the only son and three daughters. The estate of the deceased included the dwelling house. A preliminary decree for partition In equal shares including the dwelling-house was passed by the Courts below. The matter was carried in appeal in the Supreme Court by the only son challenging partition of the dwelling-house, relying upon Section 23 of the Hindu Succession Act. The question before the Apex Court was whether the dwelling-house was partible when Narasoji Rao left behind his only son and three daughters. K. Ramaswamy, J. after considering Section 23 of the Hindu Succession Act, object and reasons for introduction of Section 23, the view taken by various High Courts, viz. the Orissa, Karnataka, Bombay, Gujarat, Calcutta, Madras and Allahabad, though differently, and Mulla's Hindu Law (16th edition) revised by Justices. I. Desai, and Raghauachariar's Hindu Law (8th edition) revised by Prof. Venkataraman, and after giving various illustrations ultimately in para 20 of the report held thus :
20. The above consideration would indicate that the legislature intended that during the lifetime 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 Section 23 of impartibility of the dwelling-house. Section 44 of the Transfer of Property Act and also Section 4(1) of the Partition Act appear to prevent such fragmentation of the ancestral dwelling-house. Singular includes plural under Section 13(2) of the General Clauses Act and may be applied to Section 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 purpose of law is to prevent brooding sense of injustice. It is not the words of the law but the spirit and internal sense of it that makes 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 heir 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 conscience 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 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 Section 8 is deferred and kept in abeyance. So, instead of adopting grammatical approach to construe Section 23, we 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 Section 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 male 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.
14. M.M. Punchhi, J. as he then was, speaking for himself and on behalf of Kuldip Singh, J. in his separate but concurrent judgment in paragraph 33 of the report held thus:-
33. The second question does not present much difficulty. On literal interpretation the provision refers to make 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 their is a single male. It would always be necessary to have more than one male heirs. 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 some 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 aid 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 impartial as in the case of more than one male heir, subject to the right to 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.
15. The Apex Court has, thus, in unequivocal terms held that where a Hindu intestate leaves surviving him single male heir and one or more female heirs specified in Clause 1 of the Schedule, the provisions of Section 23 are attracted and no partition can be sought for dwelling-house and the female heir has a right of re-entry and residence till such time the single male heir choose to separate his share. It is not required of, me to add anything to what the Apex Court has already said and it is, thus, clear that in view of the judgment of the Apex Court in Narashimaha Murthy, the view taken by this Court in Anant Copal Shende (supra) is no longer a good law and stands overruled by the judgment of the Apex Court.
16. As a necessary corollary the view taken by the Lower Appellate Court which is contrary to the judgment of the Apex Court in Narashimaha Mar thy cannot be upheld and has to be set aside. The Appellate Court misread the judgment of the Calcutta High Court in Ashok Kumar Sanyal's case when it observed that in order to attract provisions of Section 23, there must be more than one male heir. The view of the Calcutta High Court in Ashok Kumar Sanyal's case on the other hand is otherwise, which I have already referred to hereinabove. The Appellate Court considered the judgment of the Orissa High Court in Hemalata Devi's case and applied the same which is no longer a good law in view of the judgment of the Apex Court in Narashimaha Murthy. The findings recorded by the Appellate Court, therefore, that since the original defendant is the only male heir of Hindu widow Chandrabai, the suit for partition filed by the daughter (female heir) of Chandrabai is not barred by Section 23 of the Hindu Succession Act, 1956, is erroneous and unsustainable in law. Consequently the second appeal is allowed. The judgment and decree passed by the Second Extra Assistant Judge, Kolhapur. On 19.1.1982 is set aside. The judgment and decree passed by the Trial Court on 31.3.1980 is restored subject to the clarification that the original plaintiff is entitled to the right of re-entry and residence in the suit property and that her right of partition stands deferred till such time the original defendant chooses to separate his share. It is further clarified that the right of the original defendant to have the dwelling-house impartial is a right personal to him and is neither transferable nor heritable.
17. No costs.