NARASHIMAHAMURTHY Vs. SUSHEELABAI

JUDGEMENT

(1.) ONE Narasoji Rao, died intestate leaving behind him the appellant, the only son and the respondents, three daughters, after action at the latters behest for partition was laid. The Courts below granted preliminary decree for partition in equal shares of the schedule A properties which include " the dwelling house of Narasoji Rao." The appellant canvassed its illegality and impartiality of the dwelling house, by operation of Section 23 of the Hindu Succession Act, 1956, (for short, the 'Act') which was met with dismissal in limine by the High Court in S.A. No. 1045.91 dated 21/02/1992. Thus this appeal by special leave. The decree for partition of dwelling house has its support from the ratio of Kariyavva v. Hanumantappa Mallurappa, (1984) 1 Kant LJ 273.

(2.) THE only question argued before us is: Whether the dwelling house is partible, when Narasoji Rao left behind his only son and three daughters? That the house is a dwelling house is not in dispute. So the need to go into the meaning of the words "dwelling house" is obviated. THEre is a cleavage of judicial opinion among High Courts on their interpretation of Section 23 of the Act which provides thus:

(3.) IN Arun Kumar Sanyal v. Jnanendra Nath Sanyal, AIR 1975 Calcutta 232, the intestate Hindu left behind him one male heir and one female heir. The daughter transferred her share in the dwelling house to a stranger who laid the suit for partition. The Calcutta High Court held that S. 23 makes it clear that the legislature does not approve of division of a dwelling house at the behest of a female heir against the 'will' of the male member. The object is to prevent fragmentation or disintegration of the family dwelling house at the instance of the female heir to hardship and difficulties to which male heir may be put to. The bar is removed only on the happening of the contingency, namely, when the male heir chooses to divide the dwelling house. It may be 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 23 is inapplicable. The bar is not a personal bar and it does not come to an end when the female heir loses her interest in the dwelling house by transferring the same to another. The case of a transferee of a female heir is completely different and cannot be equated with that of the son of a pre-deceased daughter. The above ratio was followed by other Division Benches of that Court in Surjya Kumar Das v. Smt. Maya Dutta, AIR 1982 Calcutta 222 and Smt. Usha Majumdar v. Smt. Smriti Basu, AIR 1988 Calcutta 225. IN Mookkammal v. Chitravadivammal, AIR 1980 Madras 243, the Madras High Court held that S. 23 is intended to respect one of the ancient Hindu tenets which treasured the dwelling house of the family as an impartible asset between a female member and male member. Therefore, the dwelling house is not liable to partition. But if the sole male member chooses to sell his share in the dwelling house introducing a stranger, the female heir can file a suit for partition and possession of her share in the property. IN Janabi Ammal v. TAS Palani Mudliar, AIR 1981 Madras 62, one Swaminatha Mudliar died intestate owning extensive properties, leaving behind the plaintiff and other three daughters and two sons. The daughters laid suit for partition of properties including the dwelling house. Subsequently, one of the sons died and the sole son was in possession of the dwelling house. When the question of the applicability of S. 23 had come up for consideration, the Division Bench held thus :