MAHANTI MATYALU Vs. OLURU APPANAMAFB

JUDGEMENT

(1.) This appeal has been referred to be heard by a Full Bench on the following question :-

(2.) The Hindu Succession Act, 1956 (hereinafter referred to as 'the Act') was enacted to amend and codify the law relating to intestate succession. The Act has brought about some fundamental and radical changes in the law of succession previously applied to Hindus. This Act seeks to repeal all existing laws which are inconsistent with the provisions of the Act. In other words, immediately on coming into operation of this Act, the law of succession applicable to Hindus by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having the force of law ceases to have effect with respect to all matters expressly dealt with by this Act. Under the old law in force before 1937 simultaneous heirs of male intestate consisted only of the son, the son of a pre-deceased son and son of a predeceased son of a pre-deceased son. This was enlarged by the Hindu Women's Right to Property Act, 1937 by adding three more heirs i.e. widow of the intestate, widow of the pre-deceased son and widow of the predeceased son of the pre-deceased son. Thus, after 1937 Act all the six heirs succeeded was simultaneously. The rule relating to succession was radically by the provisions of this Act, which provided a different mode of succession. S. 8 of the Act provides that the property of a male Hindu dying intestate shall devolve (a) firstly, upon the heirs being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. S. 15 of the Act propounds the scheme of succession to the property of a female Hindu, who dies intestate after the commencement of the Act. The order of succession amongst the heirs in the Schedule and the distribution of the property inter se among the heirs specified in different classes in the Schedule are regulated by specific provisions contained in the Act. It is thus clear that under the provisions of this Act, male and female heirs may succeed simultaneously to the property of an intestate on his death. S. 23 of the Act is a special provision respecting dwelling houses and imposes some restrictions on the rights of a female heir to claim for its partition. This Section would have no application where all the heirs specified in Class I of the Schedule of a deceased male or a female consisted exclusively of males or females. A close reading of the Section would make it clear that this Section has application only when :

(3.) Before we proceed to interprete Section 23 keeping in view the observations made by different High Courts, we would like to emphasise that one of the fundamental and radical changes that was brought about by the Hindu Succession Act was that in succession there should be equitable distribution between male and female heirs and the Hindu Women's limited estate would be enlarged into full ownership. Section 14 of the Act lays down that any property possessed by a female Hindu whether acquired before or after commencement of the Act shall be held by her as full owner thereof and not as a limited owner. In the explanation appended to the Section, the word "property" has been given an expanded meaning which includes both moveable and immoveable property acquired by a female Hindu by inheritance etc. or in any other manner whatsoever. Thus, the effect of this Section is that it removes the disability of a female to acquire and hold the property as an absolute owner and to transform any estate already held and possessed by a female on the date of commencement of the Act as a limited owner into an absolute estate. Section 23 is a special provision in the Act restraining the partition of dwelling houses at the instance of the female heir. It does not restrict nor in any way affects the devolution or acquisition of the property by inheritance by a female heir. The question of partition of a dwelling house at the instance of the female heir would arise only after such female heir or heirs specified in Class I acquire(s) interest therein simultaneously with male heir or heirs. The inheritance takes place simultaneously on the death of the last holder of the property and after acquiring an interest by such process, the female heir becomes entitled to exercise all acts of ownership, which includes the rights to claim partition against other co-owners who simultaneously inherit the properties. Section 23 postpones. the right of a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. Postponement of exercise of such right seems to be to prevent fragmentation or disintegration of a family dwelling house at the instance of the female heirs until the male heirs choose to do so. It is pertinent to note that the postponement of a right to claim partition at the instance of the female heir does not affect her title and ownership in any manner whatsoever and in the event she dies before partition is effected, her right in the property passes on to her legal heirs. In other words, Section 23 is only a bar imposed on a female heir to claim partition of the property until a contingency happens, namely, the male heirs who had inherited along with her decide to partition the dwelling house. The expression "until the male heirs choose to divide their respective shares therein" is not happily worded for which the legal controversy arises on the interpretation of the said expression. It has been argued on one side that where a Hindu dies intestate leaving a male heir and one or more female heirs of Class I of the Schedule the restrictions imposed by S. 23 will not apply, as in the absence of "male heirs" there is no chance of such contingency to happen. On the other hand, it is argued on the other side that applying provisions of S. 13(2) of the General Clauses Act the male heirs should be read as 'male heir' as the said provision in the General Clauses Act expresses that unless there is anything repugnant in the subject or context, the words in the singular shall include plural and vice versa. The words "their respective shares" occurring in the said Section make it clear that the words "male heirs" would not include the singular, i.e. "male heir" as in such event it would be repugnant to the context in which the said words are used. The decisions which take the view that Section 23 offers a bar to a female heir to claim for partition even when there is a single male co-heir have not accepted the argument that the words "male heirs" shall be read to include singular by application of Section 13(2) of the General Clauses Act. Their Lordships in the aforesaid decisions appear to have been inclined to take the aforesaid view analysing the intention of the legislature which, in their opinion, was justified for preservation of the dwelling house of the family from being fragmented or disintegrated. As already stated, the restriction imposed by Section 23 has been intended to prevent partition of a dwelling house wholly occupied by the members of the family until the male heirs choose to divide their respective shares therein. The legislature by using the expression "male heirs" which is in plural and again using the expression "their respective shares" have rather expressed their intention not to apply the restriction in the case of single male heir inheriting along with one or more female heirs. The purpose of the legislature would rather be clear by approaching the matter from another angle. In case of a single male heir inheriting simultaneously with one or more female heirs it would not be a postponement of a right to claim partition at the instance of the female heir, but it would be a complete denial of such a right, as there would be no occasion for the male heir to claim share against any other male heir (as there are none) and in the event the male heir demands partition from the female heir or heirs, the question of claiming partition by the female heirs would not arise as they would be entitled to a share on partition at the instance of the male heir. The legislature having given the female heirs absolute right by inheritance by one hand could not have taken away the same by the other. Their Lordships in support of the view taken in those cases have expressed the opinion that gross injustice would be done to the single male heir and the very object with which the Section has been enacted would be completely nullified if in case of a single male heir the female heir or heirs would have the right to claim partition. With all respect to the learned Judges, who had expressed such a view, we are unable to support the same as in our opinion, the hardship in such a case to the male heir is far less than the permanent postponement of exercise of a right by a lawful owner, who was ultimately deprived of enjoying the property she had inherited. In case of property descending on more than one male heir along with one or more female heirs, the female heir or heirs would get her or their shares partitioned as and when the male heirs choose to divide their respective shares in the dwelling house, whereas in case of a single male heir inheriting the dwelling house with one or more female heirs, the latter would remain as owner/owners in pen and paper but cannot exercise any act of ownership except residing therein which right in rare cases can be rarely exercised. Further complications may arise if the single male heir transfers the dwelling house to a stranger in which event the restrictions for joint possession on the part of the transferee may not apply in all cases, thus depriving the female heir to exercise her right of residence in such circumstances.