JUDGEMENT
K.RAMASWAMY -
(1.)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 impartiality 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 21/02/1992. 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) 1 Kant LJ 273.
(2.)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 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 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, Karnataka, Bombay and Gujarat High Court have adopted literal meaning holding that the dwelling house is partible whereas the Calcutta, Madras and Allahabad High Court have taken contra view. We are called upon to resolve the conflicting opinions. The purpose of the law is to meet 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 partition (sic), S. 23 makes a special provision respecting partibility of the dwelling house. When a Hindu intestate, whether male or female, has left surviving him 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/her, 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 heirs 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.
(3.)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 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 Surjya Kumar Das v. Smt. Maya Dutta, AIR 1982 Calcutta 222 and Smt. Usha Majumdar v. Smt. Smriti Basu, AIR 1988 Calcutta 225. 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. TAS Palani Mudliar, AIR 1981 Madras 62, one Swaminatha Mudliar died intestate owning extensive properties, leaving behind the plaintiff 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 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, (1989) 2 Mad LJ 506, another Division Bench reiterated the same view. In Punwasi v. Sukhdevi, AIR 1986 Allahabad 139, the Court took the same view.