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Punwasi v. Smt. Sukha Devi .
Structured Summary of the Opinion
Factual and Procedural Background
This appeal under Order XLIII Rule 1(u) Civil P.C. is directed against the order of the Additional District Judge, Varanasi dated 29 May 1984.
The respondent No. 1 (Smt. Sukha Devi) instituted Original Suit No. 63 of 1980 in the Court of Munsif City, Varanasi for partition of a dwelling house that allegedly belonged to Shiva Bhikh and devolved to his son Bhagelu, who died on 5 August 1979. Bhagelu left two sons (Punwasi — the appellant — and Banarasi — respondent No. 2) and one daughter (Smt. Sukha Devi — plaintiff/respondent No. 1). The plaintiff claimed one-third share and alleged she had given notice on 22 November 1979 but the defendants did not divide the house.
The trial court framed a preliminary issue whether the suit by the female heir was barred by Section 23 of the Hindu Succession Act, 1956, and decided that issue against the plaintiff. On appeal, the lower appellate court reversed that decision and remanded the case to trial on merits. The present appeal was preferred by the defendant No. 1 (the appellant) challenging the appellate court's order.
Legal Issues Presented
- Whether Section 23 of the Hindu Succession Act, 1956 operates to bar a female class I heir from maintaining a suit for partition of a dwelling house until the male heirs "choose to divide their respective shares therein", and if so, what is the meaning of the phrase "until the male heirs choose to divide their respective shares therein".
- Whether the female plaintiff's right to seek partition had arisen at the time of institution of the suit, given the facts that (a) there were two male heirs alive when succession opened, and (b) the plaintiff alleges she gave notice and the male heirs declined division.
- Whether the appellant (defendant No. 1) is entitled to have the trial court's decision (which held the suit barred by S. 23) restored, reversing the lower appellate court.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the respondent No. 1 plaintiff had no right to seek partition because Section 23 operates to defer the female heir's right to claim partition of the dwelling house until the male heirs choose to divide their respective shares, and the male heirs had not chosen to divide.
- It was argued that no choice to partition by the male heirs existed prior to institution of the suit and therefore the cause of action for partition had not accrued to the plaintiff.
Plaintiff-Respondent No. 1's Position
- The plaintiff alleged she had given notice to both defendants on 22 November 1979 to divide the house but they did not divide it; she claimed one-third share and instituted the partition suit.
- Implicitly, the plaintiff's case was that her right to claim partition was exercisable (or at least not barred) notwithstanding Section 23 because the male heirs had declined to divide.
Respondent No. 2 (Banarasi) / Defendant No. 2's Position
- In his written statement, respondent No. 2 stated the house was too small to admit of division by metes and bounds, but he added that in case it was partitioned his one-third share should also be separated — a conditional or qualified stance rather than an unequivocal choice to divide.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Arun Kumar Sanyal v. Jnanendra Nath Sanyal, AIR 1975 Cal 232 | Held that S. 13(2) General Clauses Act (singular/plural) could not be used to construe "male heirs" in S. 23 to include a single male heir; concluded the bar applies even where only one male heir exists. | The Court referenced this decision to describe one strand of judicial authority (Calcutta view) holding the restriction in S. 23 applies even with a single male heir; used as part of a discussion of conflicting authorities but did not apply it to decide the single-male issue in this case. |
| Surjyya Kumar Das v. Maya Dutta, AIR 1982 Cal 222 | Followed the Calcutta Division Bench view that S. 23's bar is attracted even where there is only one male heir. | Cited as a subsequent Calcutta Division Bench decision that followed Arun Kumar Sanyal; the Court noted this as part of the conflict of opinion but did not decide the single-male issue here. |
| Janabai Ammal v. T.A. Spalani Mudaliar, AIR 1981 Mad 62 | Madras Division Bench view aligning with Calcutta that the bar in S. 23 applies even with a single male heir. | Cited to show that Madras High Court took the same view as Calcutta. The Court recorded the conflict of opinion but did not decide in favour of either view because the present case involved two male heirs. |
| Hemalata Devi v. Umasankan Maharane, AIR 1975 Orissa 208 | Contrary view (Orissa High Court) that where there is a single male heir, the right to claim partition by a female heir is not excluded by S. 23. | Cited as the opposing view to the Calcutta/Madras line; the Court acknowledged this conflict but did not resolve it because the facts here involved two male heirs. |
| Katara v. Smt. Hoshiyari, 1967 All LJ 1031 | Interpretation that the expression "choose to divide" in S. 23 requires actual exercise of choice — e.g., evidence of partition among male heirs or institution of a suit by them; mere intention is insufficient. | The Court relied on this interpretation to hold that the plaintiff's cause of action had not arisen because there was evidence (the plaintiff's own allegation of notice and refusal) that the male heirs had not chosen to divide the house prior to suit. |
| Putti Ram v. Kota, AIR 1985 Orissa 70 | Referenced in support of the view that "choose to divide" requires evidence of partition or steps taken by male heirs. | Used as a supporting authority (the text says "See also") reinforcing the interpretation applied in Katara; cited to buttress the conclusion that the right had not arisen. |
Court's Reasoning and Analysis
The Court began by examining the text and purpose of Section 23 of the Hindu Succession Act, 1956, which makes a special provision respecting dwelling houses devolving on Class I heirs: a female heir's right to claim partition of a dwelling house "shall not arise until the male heirs choose to divide their respective shares therein", while entitling the female heir to a right of residence (with a proviso for daughters who are married, deserted, separated or widows).
The Court observed the following analytical steps:
- Clarified that S. 23 does not abrogate a female heir's right to demand partition; it only defers the right until the male heirs "choose to divide". The legislative purpose is to prevent disintegration of the family dwelling and to preserve family occupancy.
- Noted a conflict of judicial opinion on whether the phrase "male heirs" and the surrounding words require there to be more than one male heir for the restriction to operate. Calcutta and Madras benches held the bar applies even with a single male heir; Orissa took the contrary view. Commentators are divided as well.
- Made clear that the present case did not require resolution of that conflict because, factually, there were two male heirs of Bhagelu alive when succession opened (Punwasi and Banarasi).
- Focused on the legal import of the phrase "choose to divide": following the reasoning in Katara v. Hoshiyari (and Putti Ram as supporting), the Court held that "choose to divide" requires actual exercise of choice such as evidence that male heirs had partitioned the house among themselves or that one of them had instituted proceedings for partition. Mere intention or conditional statements are insufficient.
- Applied the facts: the plaintiff herself alleged she gave notice and that both defendants declined to divide the house. Respondent No. 2's written statement did not unequivocally choose to partition; he described the house as too small to divide and only asked that, if the court ordered partition, his share be separated. The Court treated these facts as demonstrating that the male heirs had not chosen to divide prior to the institution of suit.
- Concluded that because the accrual of the right to seek partition must precede filing suit and the right had not arisen here (no exercise of choice by male heirs), the cause of action for partition was non-existent at the time of suit.
The Court therefore found the suit instituted by respondent No. 1 to be not maintainable at that stage under S. 23.
Holding and Implications
Holding:
APPEAL ALLOWED. The appeal succeeds. The judgment and decree passed by the lower appellate court are set aside and the decision of the trial court is restored. Costs were imposed on the parties.
Implications:
- The direct effect is that the partition suit filed by respondent No. 1 was held not maintainable at that stage because the right to claim partition under Section 23 had not arisen — the male heirs had not chosen to divide their respective shares prior to institution of the suit.
- The Court did not resolve the broader conflict of authorities concerning the effect of Section 23 where there is a single male heir; it expressly noted that the present facts involved two male heirs and therefore that specific question remained open.
- No new precedent was pronounced on the single-male-heir issue; the ruling is confined to the present factual matrix and the Court’s application of the principle that the right to claim partition under S. 23 accrues only upon an actual choice to divide by the male heirs (as interpreted following Katara and related authorities).
1. The question raised in this appeal under O. XLIII R. 1(u) Civil P.C directed against the order of the Additional District Judge, Varanasi, dated May 29, 1984, is short, but of some importance.
2. The respondent No. 1 (Smt. Sukha Devi) instituted Original Suit No. 63 of 1980 in the Court of Munsif City, Varanasi for partition in respect of a dwelling house, situate in a mohalla of that city. The house, it is alleged, belonged to Shiva Bhikh, who died leaving his son Bhagelu. The death of Bhagelu took place on Aug. S. 1979. He left behind two sons, namely Punwasi (the appellant) the respondent No. 2 (Banarasi) and one daughter, namely, Smt. Sukha Devi (plaintiff-respondent No. 10. The share claimed by the plaintiff in the house is one third. The averment in the plaint also is that she gave notice to the defendants on Nov. 22, 1979, but they did not divide the house and hence the action for partition. The defendants, arrayed to the suit, were the present appellant and the respondent No. 2. The appellant resisted the suit on ground, inter alia, that this was not maintainable at the instance of the plaintiff-respondent No. 1. The respondent No. 2 defendant filed a separate written statement wherein he said that the house is too small to admit of a division by metes and bounds, but that in case it is partitioned his one third share be also separated. The question arose before the trial Court whether the suit at the instance of the respondent No. 1 plaintiff lay in view of the bar created under S. 23 Hindu Succession Act, 1956. This was taken up as preliminary issue and decided against her. In the appeal filed by the respondent No. 1, the decision reached by the trial Court was reversed and the case remanded to the trial Court to proceed on merit in respect of the other issues. Aggrieved the defendant No. 1 has preferred this appeal.
3. S. 23 Hindu Succession Act. 1956, provides as under:—
4. S. 23. Special provision respecting dwelling house:—
Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled 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.
5. This section makes a special provision respecting dwelling houses when they devolve in accordance with the provisions of the Act. The section applies whether or not the dwelling house is the only property left by the deceased. There is no dispute that both the sons of Bhagelu deceased and the daughter, who is the respondent No. 1, are heirs specified in Class I of the Schedule to the Act. It is also not in controversy that the house in dispute is a dwelling house wholly in the occupation of the brothers of the plaintiff-respondent. S. 23 does not mean that a right to demand partition of a dwelling house does not exist, it would only mean that such a right will not be exercisable so long as the male heirs do not choose to exercise right of partition. This provision appears to have been made to prevent disintegration of a family house and to perpetuate to certain extent the ascendency of male heirs.
6. Mulla: Hindu Law (Fifteenth Edition) 1982 at page 1031 observes that an objection raised against the right of a female to be recognised as an unqualified heir and to equal distribution of the property of a Hindu dying intestate used to be that in many cases the property might consist substantially of the family dwelling house and the allotment of a share to a daughter and particularly a married daughter in such a case would be fraught with serious consequences to the sons of the intestate. The note of the Joint Committee said that this section restricts the right of a female heir to claim partition of a dwelling house so long as the male heirs do not choose to effect partition of the same, but it expressly recognised her right to reside in such house. The right of a female heir covered in the Class I of the Schedule to demand actual partition of the family dwelling house is deferred and kept in abeyance until the male heirs specified in Class I decide to divide it by metes and bounds or realise its sale proceeds. The contention raised for the appellant before me by the learned counsel is that the right to seek partition did not arise to the respondent No. 1 plaintiff because the male heirs did not at any stage agree to partition their respective shares in the house.
7. Conflict exists on the interpretation of the words “until the male issues choose to divide their respective shares therein.” The view taken by the Calcutta and the Madras High Courts is that this bar is attracted even where there is only one male heir. In Arun Kumar Sanyal v. Jnanendra Nath Sanyal, AIR 1975 Cal 232 it was held by a Division Bench that S. 13(2) General Clauses Act, 1897 wherein it is mentioned that “words in the singular shall include the plural and vice versa”, could not be made applicable for the purpose of construing the words “male heirs” as used in S. 23 of the Act as to include “a single male heir”. The reasons assigned by the Calcutta High Court are:—
Prima facie it does not appear that there is anything repugnant in the subject or context to the applicability of S. 13(2). But, a further difficulty has been created by the word “respective” which apparently stands in the way of the applicability of S. 13(2). Even if the words “male heir”, also include a singular, that is, male heir, no effect can be given to it in the presence of the word “respective.” It is beyond the purview of the Court to omit the said word from the section for the purpose of giving effect to the provision of S. 13(2). If S. 13(2) could be applied, there would not have been any difficulty. But, as it is inapplicable it is necessary to ascertain the intention of the legislature.”
8. This was followed by another Division Bench of the Calcutta High Court in Surjyya Kumar Das v. Maya Dutta, AIR 1982 Cal 222.
9. This is also the view taken by the Division Bench of Madras High Court in Janabai Ammal v. T.A Spalani Mudaliar, AIR 1981 Mad 62. The Onssa High Court has taken the contrary view in Hemalata Devi v. Umasankan Maharane, AIR 1975 Orissa 208 which is to the effect that where there is a single male heir, the right to claim partition of the dwelling house by a female heir is not excluded. If there are more than one male heir then there is a possibility of any one of such heirs asking for a partition of the dwelling house and the female heir in such a case can claim partition. But where there is a single mate heir, there is no possibility of that male heir claiming any partition against another male heir. The unhappy expression appearing in S. 23 is also taken note of by the commentators. In Mulla: Hindu Law, (Fifteeth Edition) page 1034 we find it said:—
“The words ‘until the male heirs choose to divide their respective shares therein’ may suggest that there must be at least two such male heirs if the restriction is to operate. The object of the special provision is to prevent female heirs and particularly a daughter of the intestate from creating a situation in which partition of the family house may entail a forced sale of it or otherwise cause hardship to the son or sons of the intestate where it may not be possible for the son or sons to buy off the share of the female heir who insists on actual partition of it. It is submitted that there is nothing repugnant in the subject or contest to prevent the operation of the rule laid down in S. 13(2) of the General Clauses Act to the effect that the plural shall include the singular and the restriction will apply even where there is only one male heir who does not choose to divide his respective share in the dwelling house. It would seem that the right of a female heir to demand partition may be deferred and remain in abeyance under this section till the lifetime of the male heirs enumerated in class I of the Schedule or the last survivor of them unless a partition of the dwelling house is sought by any one of them before such time. The restricion will cease to operate on the death of the last of such male heirs of the intestate.
10. S.V Gupte Hindu Law (Vol. I) 1981 (Third Edition) at page 543 is of different opinion as appearing from the following:—
11. What is to happen if there is only one male heir or when, among the many, only one male heir chooses to divide his share in the property? It has been held that if there is only one male heir in the family the right of any female to claim partition is not taken away by this section. The Calcutta High Court has taken a contrary view. Madras High Court has also now taken the same view. The use of the word “respective” is open to grave objection. The intention appears to be that no female heir shall claim partition of the house until all the male heirs come to a division of the property by metes and bounds. It also appears that if there is only one male heir, the female heirs cannot claim partition of the dwelling house during his lifetime unless he voluntarily agrees to partition the same between himself and the female heirs. It is also submitted that the object of preventing disintegration of the joint residence in a family house at the instance of a female heir who may become an outsider by marriage is not fully achieved as the son of a predeceased daughter who is a Class I heir but who would be an outsider to the family of the deceased, can claim partition of a dwelling house. But a transferee of a female heir cannot claim a right of partition under this section, though her right to transfer her share is not taken away by this section.
12. In the instant case the Court is not called upon to decide this issue the reason being that the male heirs left by Bhagelu are two and not one. It was felt necessary to refer to the conflict of judicial opinion above since it was urged for the respondent No. 1 that in Mew of the claim made by Banarasi (respondent No. 2) for partition of his share, this be taken to be a case where there is only one male heir in the picture. It is not possible to accede to this proposition. There can be no denial that when Bhagelu died on 5th Aug. 1979 and the succession opened, there were two male heirs of Class I of the Schedule and both of them survive till date. Respondent No. 1 is married and it is not her case that she has been deserted or has separated from her husband or is a widow.
13. In S. 23 the emphasis is upon the right to arise. The substance of the provision is that the right does not arise until the male heirs choose to divide their respective shares in the dwelling house The accrual of the right to seek partition has to precede the filing of the suit The cause of action is founded upon the right to seek the relief. The cause of action is non-existent until the right has arisen. In Katara v. Smt. Hoshiyari 1967 All LJ 1031 a learned single Judge of this Court has taken the view that the expression “choose to divide” in S. 23 must be interpreted to mean actual exercising their choice of getting dwelling house divided. Even if there be the intention on their part to seek partition, the requirement is not fulfilled unless there is evidence before the Court that they had partitioned the house between themselves or any one of them had instituted any suit to get the dwelling house partitioned that is the condition precedent. (See also Putti Ram v. Kota AIR 1985 Orissa 70). In the present case, according to the respondent No. 1 herself she had given notice to both the defendants prior to the institution of the suit and she alleges that both of them including Banarasi declined to have the division made This means clearly that before the institution of the suit aforementioned the male heirs had not chosen to divide this house
14. Assuming that the Court could take notice of a subsequent readiness on the part of one of the male heirs to divide the house and accepting further for the sake of argument that the bar is removed where one of the male heirs accedes to partition it cannot be overlooked that in the written statement filed by him. Banarasi did not seek partition unequivocally.
15. He pleaded on the other hand that the house is too small to admit of actual division but in case the decision is made meaning thereby that in the event of the Court accepting the claim of the plaintiff for partition, his share be divided as well. In a partition suit it is open, no doubt, to a defendant to seek a division of his share on payment of the required court fee, but what is material for the purposes of S. 23 and the argument raised for the respondent No. 1 is that even at the stage of filing the written statement the defendant No. 2 Banarasi had not chosen in unambiguous terms for a division of the house and certainly there was no such choice exercised by the two male heirs to divide their respective shares.
16. For the above the conclusion is inevitable that the suit at the instance of the respondent No. 1 did not lie at this stage.
17. The appeal, for these reasons succeeds and is allowed. Judgment and decree passed by the lower appellate court are set aside and that of the trial court restored. Costs on parties.
18. Appeal allowed.
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