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IN THE HIGH COURT OF ALLAHABAD
B. D. AGRAWAL
PUNWASI - Appellant
Versus
SUKHA DEVI - Respondents
F. A. F. O. 682 Of 1984
Decided On : 09/10/1985
HINDU SUCCESSION ACT, 1956 - SECTION 23 - INTERPRETATION - RIGHT OF FEMALE HEIR TO CLAIM PARTITION OF DWELLING HOUSE - BAR CREATED UNDER SECTION 23 - SCOPE AND APPLICABILITY - SINGLE MALE HEIR - WHETHER BAR APPLIES - CONFLICT OF JUDICIAL OPINION - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
The plaintiff, a female heir, filed a suit for partition of a dwelling house against her two brothers, the male heirs. The trial court dismissed the suit holding that it was not maintainable in view of the bar created under Section 23 of the Hindu Succession Act, 1956. On appeal, the lower appellate court reversed the trial court's decision and remanded the case for trial on merits. The defendant brother challenged the lower appellate court's decision in this appeal.
Finding of the Court:
The court held that the suit was not maintainable at the instance of the plaintiff as the male heirs had not chosen to divide their respective shares in the dwelling house. The court noted that there was a conflict of judicial opinion on the interpretation of the words "until the male heirs choose to divide their respective shares therein" in Section 23, with some courts holding that the bar applies even where there is only one male heir and others holding that it does not apply in such cases. The court declined to decide this issue as it was not necessary for the disposal of the appeal.
Issues: 1. Whether the suit for partition was maintainable at the instance of the plaintiff in view of the bar created under Section 23 of the Hindu Succession Act, 1956? 2. Whether the bar under Section 23 applies even where there is only one male heir?
Ratio Decidendi: 1. The court held that the suit was not maintainable as the male heirs had not chosen to divide their respective shares in the dwelling house. The court interpreted the words "until the male heirs choose to divide their respective shares therein" in Section 23 to mean that the right to seek partition does not arise until the male heirs actually exercise their choice to divide the house. 2. The court declined to decide the issue of whether the bar under Section 23 applies even where there is only one male heir as it was not necessary for the disposal of the appeal.
Final Decision: The appeal was allowed, the judgment and decree of the lower appellate court were set aside, and the judgment and decree of the trial court were restored.
( 1 ) THE question raised in this appeal under O. XLIII, R. 1 (u) Civil P. C. directed against the order of the Additional District Judge, Varanasi, dated May 29, 1984, is short, but of some importance.
( 2 ) THE respondent No. 1 (Smt. Sukha Devi) instituted Original Suit No. 63 of 1980 in the Court of Munsif City, Varanasi, for partition in respect of a dwelling house, situate in a mohalla of that city. The house, it is alleged, belonged to Shiva Bhikh, who died leaving his son Bhagelu. The death of Bhagelu took place on Aug. 5, 1979. He left behind two sons, namely, Punwasi (the appellant), the respondent No. 2 (Banarasi) and one daughter, namely, Smt. Sukha Devi (plaintiff-respondent No. 1 ). The share claimed by the plaintiff in the house is one third. The averment in the plaint also is that she gave notice to the defendants on Nov. 22, 1979, but they did not divide the house and hence the action for partition. The defendants, arrayed to the suit, were the present appellant and the respondent no. 2. The appellant resisted the suit on ground, inter alia, that this was not maintainable at the instance of the plaintiff-respondent No. 1. The respondent No. 2 defendant filed a separate written statement wherein he said that the house is too small to admit of a division by metes and bounds, but that in case it is partitioned his one third share be also separated.
( 3 ) THE question arose before the trial Court whether the suit at the instance of the respondent No. 1 plaintiff lay in view of the bar created under S. 23 Hindu Succession Act, 1956. This was taken up as preliminary issue and decided against her. In the appeal filed by the respondent No. 1, the decision reached by the trial Court was reversed and the case remanded to the trial Court to proceed on merit in respect of the other issues. Aggrieved the defendant No. 1 has preferred this appeal.
( 4 ) S. 23 Hindu Succession Act, 1956, provides as under : - s. 23. Special provision respecting dwelling house :- 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.
( 5 ) THIS section makes a special provision respecting dwelling houses when they devolve in accordance with the provisions of the Act. The section applies whether or not the dwelling house is the only property left by the deceased. There is no dispute that both the sons of Bhagelu deceased and the daughter, who is the respondent No. 1, are heirs specified in Class I of the Schedule to the Act. It is also not in controversy that the house in dispute is a dwelling house wholly in the occupation of the brothers of the plaintiff-respondent. S. 23 does not mean that a right to demand partition of a dwelling house does not exist, it would only mean that such a right will not be exercisable so long as the male heirs do not choose to exercise right of partition. This provision appears to have been made to prevent disintegration of a family house and to perpetuate to certain extent the ascendency of male heirs. Mulla : Hindu Law (Fifteenth Edition) 1982 at page 1031 observes that an objection raised against the right of a female to be recognised as an unqualified heir and to equal distribution of the property of a Hindu dying intestate used to be that in many cases the property might consist substantially of the family dwelling house and the allotment
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