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

2. It is necessary at the outset 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 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, them, 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.

3. The facts of the present case are very plain and simple one Gopalrao Shende died on 12-6-1966 leaving behind him his widow Jankibai (Plaintiff) one son Anant (Def. No. 1) four married daughters Rajnibai, Pushpabai, Tarabai and Vijayabai (defendants Nos. 2 to 4 and 6) and 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 daughters are residing with their respective husbands elswhere. Admittedly, the plaintiff and the defendants each has 1/7th share in this dwelling-house.

4. The claim of Jankibai for partition was resisted only by her son Anant, mainly on the ground that she has no legal right to ask for her share by partition in the dwelling-house, in view of S. 23 of the Act, as he is the sole male heir of class-I and he does not want any division or partition.

5. This defence found favour with the learned trial Judge and he dismissed the suit, relying on one decision of the Calcutta High Court reported in AIR 1975 Cal 232, (Arun Kumar Sanyal v. Jnanendra Nath Sanyal) in which it is laid down (para 8):—

“It is clear from the section that the legislature does not approve of division of a dwelling-house at the instance of a female heir against the will of the male heir. This restriction which has been imposed by S. 23 prevents fragmentation or disintegration of a family dwelling-house at the instance of the female heirs to the hardship and difficulties to which the male heirs may be put. A Hindu may the leaving a son and a number of daughters. If at the instance of any such daughters the dwelling-house is allowed to be partitioned against the wish of the son, he may be put to great hardship. The house may hot be capable of partition and in that case it will have to be sold. If, in such a case, it is held that S. 23 is inapplicable because of the absence of male heirs as contended on behalf of the appellant, in our view, it will defeat and frustrate the very purpose, for which the section has been enacted. In the first instance, the section imposes a bar when it provides “the right of any such female heir to claim partition of the dwelling-house shall not arise”, but the bar is removed only on the happening of the contingency, namely, when the male heirs choose to divide their respective shares therein. 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 the section is inapplicable. The rule which has been laid down by S. 23 clearly indicate the intention of the legislature that female heirs should not be allowed to divide the dwelling-house against the will of the male heirs and, on a proper construction of the section, we are of the view that it is also the intention of the legislature when these is only one male heir. If the male heir chooses to divide the dwelling-house, undoubtedly the female heir or heirs will be entitled to claim partition, but so long as no such choice is actually exercised the female heirs are debarred from claiming partition”.

6. The lower appellate Court reversed this finding and decreed the claim, having opted to follow the decision of the Orissa High Court reported in AIR 1975 Orissa 208 (Hemlata Devi v. Umashankari).

The contrary view is expressed by this decision thus:—

“When a Hindu male dies intestate, a female heir is not entitled to enforce her right of partition of dwelling-house, under S. 23 unless the male heirs exercise their right. 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 case can claim her legitimate share. But where there is a single male heir, there is no possibility of that male heir claiming any partition against another male heir. Thus where there is a single male heir and others are female heirs, then those female heirs are entitled to claim partition. Their right to claim partition of the dwelling-house is not excluded by S. 23”.

7. The view of the Calcutta High Court (AIR 1975 Cal 232) is also shared by the Madras High Court in Janabai v. T.A.S Palani (AIR 1981 Mad 62). The decision of the Orissa High Court is dissented from and what is observed is this:—

“Even in cases where there is only one male heir and one or more female heirs of the intestate in a Hindu joint family, the female heirs cannot claim partition of the dwelling-house until that male heir chooses to divide the respective shares therein. Parliament, by using the expression “until the male heirs choose to divide their respective shares therein” in S. 23, cannot be deemed to have intended that the restriction is to operate only if there are two or more male heirs in the family of the intestate and not when there is only a single male heir.

Acceptance of contrary view will cause gross injustice to the single male heir and the very object with which the section has been enacted would be completely nullified. In such cases, the hardship that would be caused to the female heirs in not being able to claim partition is certainly relatively less than the injustice that could be done to the single male member”.

8. Thus, the High Courts of Calcutta and Madras extend the application of S. 23 even to a case where there is only one male heir though, apparently in such a case the female, heir has hot the ghost of a chance to take her share? Said Lowell:—

“They are slaves who dare not be in the right with two or three”.

Likewise these decisions tell a female heirs:—

“Unless with male heirs two or three your interest here is not to be”.

9. I must say at the outset that S. 13(2) of the General Clauses Act, which mentions that “words in the singular shall include the plural and vice versa”, cannot be made applicable for construing the words “male heirs” occurring in section as to include “a single male heir”, S. 13 opens with the expression, “unless there is anything repugnant in the subject or context”. The expression “respective” appearing in S. 23 of the Act cannot be given any effect, if we are to construe “male heirs” as to include “male heir” with the aid of S. 13 of the General Clauses Act. Thus, in the context in which the word “male heirs” is used in S. 23, it would not, in my opinion, include a singular. Again, the General Rule of interpretation of statute is that one must not vary the word of a statute “verbis legis non est recedendum”. It is, therefore, necessary to ascertain the intention of the legislature.

10. Now, it is true that the object of S. 23 is to prevent fragmentation and disintegration of a family dwelling-house at the instance of a female heir or heirs to the prejudice of the male heirs. True it is that it is intended to repeat one of the ancient Hindu tenets to preserve a family dwelling house as an impartible asset. It is a special provision meant to preserve and safeguard a family dwelling-house, when it devolves in accordance with provisions of this Act. It cannot be gainsaid that the female heirs specified in class-I inherit the share even in the dwelling-house absolutely. The course of devolution of property under S. 8 of the Act, however, is restricted, so far as female heirs are concerned and this restriction is to operate only till the happening of an event envisaged under S. 23 of the Act. Their right is only kept in abeyance until the male heirs choose to divide their respective shares in the family house. When there are more than one heir of the intestate residing jointly together and forming a joint Hindu family, it is in the fitness of things and as intended by the legislature that at the instance of female heirs who are strangers, their joint abode should not be disrupted and their joint status impaired. But this object no longer survives when there is no joint Hindu family with male members residing together in a family house on one hand, and female heir on the other. With a sole surviving coparcener or a lone male heir with other female heir or heirs on whom the property (including the dwelling-house) devolves as per the provisions of S. 8 of the Act and who all take simultaneously, they are all tenants-in-common. To restrict their rights in such situation also is not merely to postpone that restriction till the happening of any event (as that event can never occur) but practically destroy and deny that right for ever.

11. The statutory rights bestowed and conferred by S. 8 on the female heirs are restricted or curtailed respecting dwelling-houses only under the circumstances envisage under S. 23, the purpose being to defer actual partition of the family dwelling-house which is actually in occupation of the members of the family of the intestate until the male members themselves choose to distruct their joint status. This exception and restriction must be construed strictly and strongly and it is, in fact, implied that no other exceptions are contemplated by the legislature. Firstly, therefore, as already stated, in the case of single or sole male heir, there is no joint family, no joint family dwelling of joint family members and, therefore, there is no object and no purpose, that is calculated, to be served by keeping the devolution of female heirs in abeyance. Secondly, to construe this section to mean that the restriction applies even in cases where there is only one heir of the intestate, would be to construe it beyond the purpose plainly indicated and to forfeit, verily, the established and vested rights of the female, heirs, when they take as tenants-in-common with the single male heir.

12. Again, in determining the true scope and applicability of S. 23, the consideration of comparative hardship between the single male heir and the female heirs, as sought to be pointed out in AIR 1981 Mad 62, in my view, is out of place and has no relevance. Now, when there are only two male heirs and a comparatively large number of female heirs prejudice and hardship is bound to be caused to them also, in the event of their choosing to sever and divide. On the other hand, where a male heir and his step-sister or his niece (deceased's brother's daughter) are the only two heirs of class-I, hardship and prejudice to him would be less as compared to that caused to such a female heir, if she is to be perpetually deprived of her right of succession bestowed on her by law. Hardship and prejudice, in my view, therefore, is no good consideration. In case of a single male heir, there is no question of any object being nullified and one cannot read in S. 23 more than what it enacts and anything more than what the legislature really intended. With respect therefore, I am unable to record my accord to the view taken by the Madras and the Calcutta High Courts. The view taken by the High Court of Orissa is more consistent with the text of S. 23 and the intendment of their legislature.

13. In the result, therefore, this second appeal is dismissed with cost.

Appeal dismissed.