Widow having share in the property and right of residence, ousted by other co-sharers is entitled to an injunction in a suit brought by her - Section 23 of the Hindu Succession Act , bestows a valuable right upon the plaintiff in the matter of residence in the ancestral property which deserves to be enforced by issuing appropriate direction s.

In case the plaintiff was not in a position to have the benefit of residing in her own property during

her last days of life, no amount of compensation in terms of money would be adequate A female heir mentioned as Class I, is debarred from seeking partition unless other male heirs seek partition.

In the light of the provision of Sec. 23 of the Act, 1956, deceased Kesar Bai, original plaintiff, was entitled for residence/dwelling-house, as a widow daughter of Phannuram. alongwith other members, but she was not entitled for separate share. In this case, Kesar Bai also died and her son Derha, who is a male member specified in the Scheduled of the Act, 1956, has been impleaded as party, he is entitled for separate share of dwelling-house in accordance with the provisions of Secs. 8. 14, 15 and 23 of the Act. 1956.3

Section 23 of the Act curtails the rights of daughters to obtain a decree for partition in respect of dwelling-houses. Such restriction was to be put in operation only at the time of partition of the property by metes and bouds. 4

19. Male opposing partition, must be an heir of the deceased. A male heir on whose desire the right of the female heir to claim partition depends must be or shall be a male heir of the deceased intestate. If the dwelling house is possessed by male persons wherein the deceased was a copercener but those male persons are not the heirs of the deceased intestate then in that circumstance the female heirs are entitled to claim partition of the dwelling house and the bar or embargo provided in Sec. 23 of the Hindu Succession Act, 1956 will not apply.

After Amendment of Act of 2005, a female can also seek partition. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) has deleted Sec. 23 of the Act. No doubt the amendment Act shall have prospective effect but practically if the matter is viewed it is clear that as per the Hindu Succession (Amendment) Act, 2005 the plaintiff is entitled to partition of the dwelling- house property also and such an amendment has come into vogue during the pendency of the appeal. The appeal is deemed to be in continuation of the suit proceedings. It would be a mere hyper technicality if the appellant/plaintiff is driven to the extent of filing a fresh suit invoking the said recent Hindu Succession (Amendment) Act, 2005 (39 of 2005) and in such a case, there is no hesitation in construing that in this case the erstwhile

Sec. 23 is having no application and accordingly partition could be ordered in respect of the 1/8th share of the plaintiff.

A right of the son to keep away the right of the daughters of the last male owner to seek for partition of a dwelling-house is only a right of the male owner to keep the same in abeyance till the division takes place. Such a right is not one of enduring nature. It cannot be said to be an accrued right or a vested right.

A preliminary decree could be passed declaring th entitlement of each co-sharer in terms of the provisions of te ct, as to the rules of succession. What is barred is only actual partition by metes and bounds.

End Notes:

1. Sneh Lata Mathur v. Brij Raj Bahadur, 102(2003) D.L.T. 335 at p. 344.
2. Amrit Lal v. Nusrat, (2010-1) 157 P.L.R. 264 at p. 266 (P.&H.): A.I.R. 2010 P.&H. 48.
3. Vishal v. Derha, 2009(82) A.I.C. 282 at p. 289 (Chhatt.).
4. G. Sekar v. Geetha, 2009(5) Mh.L.J. 755 at pp. 762, 763 (S.C.): J.T. 2009(5) S.C. 496: 2009(3) A.W.C. 27 (S.C.): (2010)3 M.L.J. 589 (S.C.): A.I.R. 2009 S.C. 2649: 2010(2) K.L.T. S.N. 41 (C.No. 48) (S.C.); Jawahar v. Champa Devi, 2017(1) C.G.L.J. 588 at p. 592 (Chhatt.).
5. Fulsing v. Durgabai, 1996(2) Mah.L.J. 770 at p. 773: Nand Kishore v. Rukmani Devi, 2013(2) W.L.C. 69 p. 706 (Raj.): Thangavel v. Chidambaram, 2012(8) M.L.J. 787 at p. 796 (Mad.).
6. M. Revathi v. R. Alamelu, 2009(77) A.I.C. 812 at p. 813 (Mad.): (2009)5 M.L.J. 376 at p. 377 (Mad.).
7. Janardhanan v. Rugmini, 2010(2) K.H.C. 949 at pp. 951, 952 (Ker.) (D.B.).

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