ANNAT GOPALRAO SHENDE Vs. JANKIBAI GOPALRAO SHENDE

JUDGEMENT

(1.) This appeal raises an important question as to the interpretation,the scope and applicability of s. 23 of the Hindu Succession Act (herinafter called the Act ) when a Hindu dying intestate leaves only a single male heir and female heirs specified in class I of the sehedule. There is a welter of judicial opinions on the point in the oother High Court. There is however, no judicial opinions on the point in the other judicial pronouncement of this Court.

(2.) It is necessary at the outsets to refer to s. 23 of the Act which runs as follows :- 23. Special provisions respecting dwelling houses. - where a Hindu intestate has left surviving him orher both malw and female heirs specified in Class I of the schedule and his or her both male and female heirs specified in class I of the schedule and his or her property in by members of his family, them notwithstanding anything contained in this Act, the right of any such female heir to claim partition ofthe dwelling house shall not arise untill the male heirs choose to divide their respective shares therein but the female heir shall be entitiled 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.

(3.) The facts of the present case are very plain and simple one Gopalrao Sehnde dieid on 12-6-1966 leaving behind him his widow Jankibai (plaintiff) one son Annt (Def No 1) four married daughter - Rajionibai, Puhspabai, TArabai and Vijayabai (defendants Nos. 2 to 4 and 6) and the one (unmarried daughter) Malini (defendant No. 5 ). The property left behind is only one double storied residential house which was the self-acquired property of deceased - Gopalrao, Jankibai resides on the ground flour while her son Anant resides on the first flour. The married daughter are residing with their respective husband elshwere. Admittedly, the plaintiff and the defendants each has 1|7th share in this dwelling house.