LexNARASHIMAHA MURTHY versus SMT. SUSHEELABAI & ORS.
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A NARASHIMAHA MURTHY v. SMT. SUSHEELABAI & ORS. APRIL 17, 1996 B [KULDlP SINGH, K. RAMASWAMY AND M.M. PUNCHHI, JJ.] Hindu Succession Act, 1956: Section 23 and proviso. Dwelling house of Hindu dying intestate-Pmtition of-Female heir's C light to claim-Held : to be defe17'ed or kept in abeyance dwing lifetime of even a sole surviving male heir of deceased-Until he chose to separate his share or ceased to occupy it or let it out-But till that contingency happens female heirs, if daughter suffeling from any disabilities >pecified in proviso would be entitled to reside as well as re-enter in dwelling house-Word 'daughter' included daughter or predeceased son, daughter of predeceased son D of predeceased son and daughter of predeceased daughter. Dwelling house-Did not include tenanted house-Must be wholly occupied by family members of deceased an intestate-They must have anilnus possedendi-The 1no111ent stranger was left into it, aninius dessidendi E was exhibited by them-Iheir Temporary absence from house-Showed their animus reveJtendi-Thereby the house did not cease to be dwelling house-In- duction of strangers into dwelling house by male heir-S.23 could not be invoked by him---<Jeneral Clauses Act, 1897, S.13(2)-Transfer of Propelty Act, 1882, S.44-Partition Act, 1893, S.4(1). F Words and Phrases : "Dwelling House''-Meaning of in the context of Section 23 of Hindu Succession Act, 1956. The appellant-defendant and his father owned a joint family house G and some self acquired property. He died leaving behind his son, the appellant, his widow, and five daughters. Twelve years after his death, one of his daughters, the respondent-plaintiff, filed a suit for partition for obtaining one-seventh share in the properties of her father impleading her brother, the appellant, her mother and four sisters as defendants. The ' H seventh defendant impleaded was the tenant of the house. The mother died 414 N. MURTHYv. SUSHEELABAI 415 during the pendency of the suit, which made the plaintiff increase her claim to one-sixth share in the properties. The suit was resisted by the appellant on grounds inter-a/ia that the respondent-Plaintiff could not seek partition of the house, it being a joint dwelling house, as understood under Section 23 of Hindu Succession Act, 1956, which provision was otherwise not attracted, when there was only one male heir among the heirs surviving. it was otherwise not in dispute that the house in question stood rented out to the seventh defendant but for the rate of rent. The Trial Court rejecting the defence of the appellant, determined the share of the respondent-plain- tiff in the house property as 1/12 (the intestate having half share in the house and the other half being that of the son) and in self acquired property as 1/6th. In accordance therewith the respondent-plaintilT was granted a preliminary decree for partition. The first as well as the second appeal of the appellant to challenging the judgment and decree of the Trial Court having been dismissed, the appellant filed the present appeal. Dismissing the appeal, this Court HELD : 1.1. (Per. Ramaswamy, J.) 1.1. When succession of a Hindu intestate is open, his/her Class-I heirs specified in the Schedule to Hindu Succession Act, 1956 are entitled at a partition to their respective shares. A B c D The succession cannot be postponed. However, there is an exception to this general rule. When a Hindu intestate, whether ,male or female, 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 oc- cupied by members of his or her family, then, by operation of the 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 Section 23 of !he Act. The claim for partition by female heir shall not arise "until the maie heirs choose to divide their respective shares therein". 1'hus though the right to succession devolves upon the female heir under Section 8 of the Act, being Class-I heir to the Hindu intestate, in respect of the dwelling house, her right to seek partition has been interdicted and deferred only till the happening of G a contingency event, i.e. the decision by the male heir(s) to partition the dwelling house in occupation of the family. So Long as the male heirs(s) c
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