Section 23 SYN. No. 3

Special Provision Respecting Dwelling House

Section 23 When the deceased leaves behind a single male and female heir:

In the case of Arun Kumar Sanyal v. Jnandera Nath Sanyal, the intestate Hindu left behind one male heir and one female heir. The daughter transferred her share in the dwelling house to a stranger, who then filed a suit for partition. The Calcutta High Court held that Section 23 makes it clear that the legislature does not favor the fragmentation or disintegration of a family dwelling house at the instance of a female heir, as it could cause hardships to the male heir. The bar on partition is removed only when the male heir chooses to divide the dwelling house.

Even in cases where there is only one male heir and one female heir, and the contingency for division seems unlikely, Section 23 remains applicable. The bar is not a personal one and does not cease to exist if the female heir loses her interest in the dwelling house by transferring it to another. The case of a transferee of a female heir is entirely different and cannot be equated with that of a son of a predeceased daughter. This ratio was followed in subsequent cases, including Kumar Das v. Smriti Basu.

In Mookkammal v. Chitravadivammal, the Madras High Court emphasized that Section 23 is intended to uphold an ancient Hindu tenet, which treasures the family dwelling house as an impartible asset between male and female members. Therefore, a dwelling house is generally not liable for partition. However, if the sole male member sells his share in the dwelling house to a stranger, the female heir may file a suit for partition and possession of her share in the property.

Section 23 respects the ancient Hindu principle of treating the family dwelling house as an indivisible asset. However, when the sole male member introduces a stranger by selling his share, the dwelling house loses its character and becomes ordinary property. In such circumstances, Section 23 does not bar the female member from seeking partition and possession of her share.

Where there is only one male heir of a Hindu intestate, the right of a female heir to claim partition of the dwelling house is not postponed until the male heir chooses to file a suit for partition. Section 23 postpones the right to claim partition by a female heir only if there is more than one male heir.

In a Rajasthan High Court case, the house in dispute was continuously used as a dwelling house, with no evidence to suggest it was not intended for family residence. The plaintiffs, despite having shares as determined by the trial court, could seek partition of the dwelling house.

When a Hindu intestate leaves behind a single male heir and one or more female heirs as specified in Clause 1 of the Schedule, Section 23 applies. Partition of the dwelling house cannot be sought, but the female heir retains a right of residence until the single male heir chooses to separate his share.

In the case of Smt.Juthika Das Gupta, a suit under Section 23 of the Hindu Succession Act, 1956, was filed against her three sons. Defendants 2 and 4 applied to be transposed as plaintiffs. The court found that transposing the defendants as plaintiffs did not introduce a new cause of action or alter the nature of the suit.

Note:
Section 23 was deleted during the pendency of appeals in some cases. This deletion grants daughters the right to share in dwelling houses, which was taken into account when deciding appeals under the amended Act.

Notable Case Laws:

• A.I.R. 1982 Cal. 221
• A.I.R. 1988 Cal. 115
• A.I.R. 1980 Mad. 243
• Narshimha Murthy v. Susheelabai, (1996 2) 113 P.L.R. 376
• Moti Chand v. Lakhanbai, 1955(2) H.L.R. 459
• Nalla Venkateshwarlu v. Porise Pulliamma, 194(1) H.L.R. 70
• Ramanlal v. Heeramani, 2002(3) R.C.R. (Civil) 361
• Ananda v. Akkatai, 2000 (1) Bom.L.R. 36
• Dog Gupta, 2006(38) ALC. 868

Written By: S Kundu & Associates
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• Special Provision Respecting Dwelling-Houses