Section 23 of the Hindu Succession Act does not apply to a case where there is only one male heir and female heirs specified in class-I of the schedule.

JUDGMENT - Waikar M.R. J. - This appeal raises an important question as to the interpretation, the scope and applicability of section 23 of the Hindu Succession Act (hereinafter called the Act) when a Hindu dying intestate leaves only a single male heir and female heirs specified in class-I of the schedule. There is a welter of judicial opinions on the point in the other High Courts. There is, however, no judicial pronouncement of this Court.

2. It is necessary at the outset Jo refer to section 23 of the Act which runs as follows :-

“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 devide their respective shares wherein; 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.”

3. The facts of the present case are very plain and simple; oner Gopalrao Shende died on 12-8-1968 leaving behind him his widow Jankihai (plaintiff) one son Anant (defendant No. 1) four married daughters-Rajni-bai, Pushpabai, Tarabai and Vijayabai (defendants Nos. 2 to 4 and 6) and one unmarried daughter Malini (defendant No. 5). The property left behind is only one double storied residential house which was the self-acquired property of deceased-Gopalrao. Jankibai resides on the ground-floor while her son Anant resides on the first floor. The married daughters are residing with their respective husbands elsewhere. Admittedly, the plaintiff and the defendants each has 1 /7th share in this dwelling house.

4. The claim of Jankibai for partition was resisted only by her sod Anant, mainly on the ground that she has no legal right to ask for her share by partition in the dwelling-house, in view of section 23 of the Act, as he is the sole male heir of class I and he does not want any division of partition.

5. This defence found favour with the learned trial Judge and he dismissed the suit, relying on one decision of the Calcutta High Court report ed in (Arun Kumar Sanyal v, Jnanendra Nath Sanyal and another)1 in which it is laid down:-

“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 sons 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 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 h

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