1996 Supreme(SC) 801

1996(3) Supreme 611
SUPREME COURT OF INDIA
Kuldip Singh, Madan Mohan Punchhi & K. Ramaswamy, JJ.
Narashimaha Murthy -Appellant
versus
Smt. Susheelabai & Ors. -Respondents
Civil Appeal No. 2592 of 1992
Decided on 17-4-1996

VERY IMPORTANT POINTS
1. When the house in question is tenanted, it is not a dwelling-house in the sense the word is used in Section 23 of the Hindu Succession Act and therefore it has no protection of its being impartable.
2. Where a Hindu intestate leaves surviving him a single male heir and one or more female heirs specified in Class I of the Schedule to the Hindu Succession Act, the provisions of Section 23 keep attracted to maintain the dwelling house impartable as in the case of more than one male heir, subject to the right of re-entry and residence of the female heirs so entitled, till such time the single male heir chooses to separate his share.
3. 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 impartable during the life time of the sole male heir or until he chooses to divide and gives a share to his sister or alienate his share to a stranger or lets it out to others.
4. While deciding right of a female heir to claim partition of a dwelling house, it would be just and proper for the Court to adopt common sense approach keeping at the back of its mind, justice, equity and good conscious and consider the facts and circumstances of the case on hand.

Headnote:Hindu Law--Hindu Succession Act, 1956--Section 23--Interpretation of--Dwelling houses--Meaning--A tenanted house is not a dwelling house--Protection of Section 23 not available to males in such cases.

       Held that in the legal world the word "dwelling-house" is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self acquired, as understood in the law applicable to Hindus. In the context of Section 23 therefore when the legislature has chosenly employed the word "dwelling-house", it has done so with a purpose, which is to say that on the death of the intestate, a limited status quo should prevail as existing prior to his or her death. His or her abode, shared by him or her, with members of his or her family, identifiable from Class I Heirs of the Schedule, should continue to be in enjoyment thereof, not partible at the instance of the female heirs till the male heirs choose to effect partition thereof. (Para 6)

       Further held : The right of residence of the female heirs specified in Class I of the Schedule, in order to be real and enforceable, pre-supposes that their entitlement cannot be obstructed by any act of the male heirs or rendered illusory such as in creating third party rights therein in favour of others or in tenanting it, creating statutory rights against dispossession or eviction. What is meant to be covered in Section 23 is a dwelling-house or houses, (for the singular would include the plural, as the caption and the section is suggestive to that effect) fully occupied by the members of the intestate s family and not a house or houses let out to tenants, for then it or those would not be dwelling house/houses but merely in description as residential houses. The section protects only a dwelling-house, which means a house wholly inhabited by one or more members of the family of the intestate, where some or all of the family members, even if absent for some temporary reason, have the animus revertendi. In our considered view, a tenanted house therefore is not a dwelling-house, in the sense in which the word is used in Section 23. It may be a dwelling-house in the structural sense but it cannot be said to be a dwelling-house in habitation by the members of the intestate s family. In that twin sense, when the female heirs are entitled to a right of residence therein, which right is enforceable against the male heirs, that right militates against the created or creating of tenancy by the male heir or heirs and deprive them of their right to residence therein as also their right to partition; an incidence normal to the opening of succession. Thus it appears to us that if the male heirs derive the right under the provision to resist partition of the dwelling-house unless they chose to divide their respective shares therein, then correspondingly it is incumbent on the male heirs to keep the property well arranged, inhabited or occupied by themselves keeping the property available for the female heirs to enforce the right of residence therein. But if the latter right is frustrated on creation of third party rights or a contractual or statutory tenancy, there remains no right with the males to resist partition. (Para 8)

       Every right has a corresponding duty. This principle vigorously applies in this multiangular provision. A house tenanted brings in strangers and it ceases to be a dwelling-house inhabited by members of the family. The protection of Section 23 is thus not available to the males. It is in this light that question No. 1 need be answered to say that a dwelling-house is that house which is in actual, physical, inhabited possession of one or the other members of the family in stricto sensu, and if some are absent due to exigencies of service or vocations, the dwelling-house remains available for them to re-enter without any obstruction or hindrance and on that premise enabling the female heir to assert a right of entry and residence therein. A tenanted house does not fit into this description. Disabled daughters need instant succour, not litigation. They need doors of the dwelling-house always wide open, not stoney-eyed responses of strangers. The provision silences them in seeking partition, but not their ownership extinct. If marriage has the inescapable consequence of displacement of the daughter from the parental roof, her interests forever cannot be sacrificed on the alter of matrimony. Her distress revertendi is of equal importance standing alongside the qualified defence of impartibility by the male heir as afore-explained. (Para 9)

       (ii) Hindu Law--Hindu Succession Act, 1956--Section 23--Dwelling house--Hindu intestate leaving surviving him or her a single male heir and one or more female heir or heirs specified in Class I of Schedule--Whether dwelling house is partible ?--(No)--Whether Section 23 is attracted ?--(Yes)

       As per Kuldip Singh & Madan Mohan Punchhi, JJ.

       Held : 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 been resorting to adoption, 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 25 keep attracted to maintain the dwelling-house impartable as in the case of more than one male heir, subject to the right of 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 not heritable. (Para 10)

       Further held : Now applying the ratio above evolved on the facts of this case, it is evident that when the house in question is tenanted, it is not a dwelling-house in the sense the word is used in Section 23 of the Hindu Succession Act and therefore it has no protection of its being impartable. The suit of the plaintiff-respondent could not have been resisted by the defendant-appellant on the basis that it was a family house. Equally the suit could not have been resisted by the defendant-appellant on the ground that being the sole male heir of the intestate, Section 23 was inapplicable, because then the suit for partition would otherwise have been maintainable. Had the finding been that the house in question was a dwelling-house the suit could have been resisted by him even as a single male heir on the basis of Section 23 of the Act. (Para 11)

       As Per K. Ramaswamy, J. (Concurring)

       Held : The expression "dwelling house" though not defined in the Act, the context would indicate that it is referable to the dwelling house in which the intestate Hindu was living at the time of his/her death; he/she intended that his/her children would continue to normally occupy and enjoy it. He or she regarded it as his or her permanent abode. On his or her death, the members of the family can be said to have continued to preserve the same to perpetuate his/he memory. Obviously Section 23 is an exception to the general rule of succession and has been engrafted for that purpose. Where there are only one male heir and one or more female heirs are left surviving behind the Hindu intestate, the members of the family would continue to remain in occupation and in enjoyment of it as dwelling house. Due to marriage, the daughter would leave the parental house and get transplanted into matrimonial home. The proviso to Section 23 visualises certain contingencies and made provision for right of residence to Class-I female heirs. In the event of the male member(s) chose(s) to separate or cease(s) to reside or instead introduce a stranger into family house, then the female heir gets the right to a share in the dwelling house as well. The reverence to preserve the ancestral house in the memory of the father or mother is not the exclusive preserve of the son alone. Daughter too would be anxious and more reverential to preserve the dwelling house to perpetuate the parental memory. (Para 18)

       Further held : Section 23 thus limits the right of the Class-I female heirs of a Hindu who died intestate while both male and female heirs are entitled to a share in the property left by the Hindu owner including the dwelling house. The marginal note itself indicates that Section 23 is a special provision : in other words, it is an exception to the general partition. So long as the male heir(s) chose not to partition the dwelling house, the female Class-I heir(s) has been denied the right to claim its partition subject to a further exception, namely, the right to residence therein by the female Class-I heir(s) under specified circumstances. In other words, the male heir(s) becomes entitled to perpetuate the memory of the deceased-Hindu who died while remaining to live in the dwelling house during his or her life time. Thereby the dwelling house remains indivisible. The male heir(s) thereby evinces animus possedendi. But the moment the male heir(s) chooses to let out the dwelling house to a stranger/third party, as a tenant or a licensee, he or they exhibit(s) animus dessidendi and the dwelling house thereby becomes partible. Here the conduct of the male heir(s) is the cause and the entitlement of the female Class-I heir(s) is the effect and the latter s claim for partition gets ripened into right as she/they is/are to sue for partition of the dwelling house, whether or not the proviso comes into play. Here the female heir(s) becomes entitled to not only mere partition of the dwelling house but also her right to residence after partition. (Para 19)

       Consequently held that the legislature intended that during the life-time 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 hair 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 conscious 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 grammartical 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. (Para 24)

       Educational, job or avocational opportunities necessitate migration and settlement in another State or abroad which are a common feature. Grace to give when he is in affluent position and allows female heir to wholly occupy and enjoy parental home apart, in working out equities, instead of fragmentation of it by metes and bounds, the house may be allotted to the share of the female heir so that she would perpetuate the money of the parental abode. Take yet another instance where son due to being in service is transferred to another place or places and consequently he has to leave his dwelling house and join at the place or places of his posting. Instead of keeping the house locked, he may lease it out or grant leave or licence to a tenant. The cessation of possession and enjoyment of the dwelling house is not due to his own volition but due to compulsion to eke out livelihood and this cause should not give rise to a cause of action to a sister to file the suit for partition. (Para 22)

       Admittedly the suit was filed in 1980 when the High Court had not ruled on Section 23. The Schedule A dwelling house was leased out to the 7th defendant. The appellant pleaded in the written statement that he had spent around Rs. 1,24,000/- and odd on the marriage of the plaintiff-respondent. The property was, thereby not partible. The Munsif found that Schedule A property is the ancestral dwelling house and that the Schedule B site is the self-acquired property of the father which was affirmed by the appellate Court. It would thus be clear that the appellant had not pleaded that the letting of the Schedule A dwelling house was on any extenuating circumstances and it was not a voluntary one. In other words, it is clear that the appellant had inducted strangers into the dwelling house and had lost his animus possedendi. Accordingly Section 23 became inapplicable to the facts of this case. (Para 25)

       (iii) Hindu Law--Hindu Succession Act, 1956--Section 23, proviso- Dwelling House--A female heir s right to claim partition--Word daughter in the proviso--It is meant to include all daughters.

       Held : On first impression the provision may appear conflicting with the proviso but on closer examination the conflict disappears. A female heir s right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a court of law. The proviso makes it amply clear 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. On first impression, it appears that when the female heir is the daughter, she is entitled to a right of residence in the dwelling-house so long as she suffers from any one of the four disabilities i.e. (1) being unmarried; (2) being a deserted wife; (3) being a separated wife; and (4) being a widow. It may appear that female heirs other than the daughter are entitled without any qualification to a right of residence, but the daughter only if she suffers from any of the aforementioned disabilities. If this be the interpretation, as some of the commentators on the subject have thought it be, it would lead to an highly unjust result for a married grand-daughter as a Class I heir may get the right of residence in the dwelling-house, and a married daughter may not. This incongruous result could never have been postulated by the legislature. Significantly, the proviso covered the cases of all daughters, which means all kinds of daughters, by employment of the words "where such female heir is a daughter" and not "where such female heir is the daughter". The proviso thus is meant to cover all daughters, the description of which has been given in the above table by arrangement. The word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased daughter. (Para 8)

       (iv) Interpretation of Statutes--It is not words of law but spirit and internal sense of it that makes the law meaningful--A female heir s right to claim partition of dwelling house- Court to adopt common sense approach considering facts and circumstances of the case on hand. (Para 24)