Shri Jitender Singh Bindra And ... vs Ms. Kewal Bindra And Others
2000 Latest Caselaw 1225 Del

ORDER

A.K. Sikri, J.

1. The appellants in this appeal were the defendants in Suit No. 3686 of 1991, which was filed by the respondents herein, as plaintiffs. Respondents 1 to 3 herein are the daughters and respondent no.4 is the widow of the Late Shri S.S.Bindra (hereinafter referred to as 'the deceased', for short). The appellants are the two sons of the deceased. The deceased was the owner of house no. 10-E/A, East Patel Nagar, New Delhi and he died intestate on 4th September, 1985. This is a double storeyed house built upon land measuring 200 sq. yards with the following constructions:-

i. Ground floor - Four rooms, two kitchens, two combined latrines and bath, front open verandah and back open verandah.

ii. First floor - Three rooms, two covered verandahs, one kitchen, one latrine, bath room, one store and balcony.

iii. Second floor - two rooms, store, latrine, bath room.

2. The appellants, both of whom are married, are living in the Suit premises Along with their families. Their mother-respondent no.4 as well as respondents 1 and 2 (two unmarried daughters), are also living in the Suit premises. Respondent no.3 who is a married daughter is staying with her husband in her matrimonial home. The parties are living on the first and second floor. However, the extent of occupation of the Suit premises by these parties is a matter of dispute. Admittedly ground floor of the property in question is let out to two different tenants namely, Mr. S.Krishnamurthy and Shri Michael Chirangoo.

3. The deceased died intestate. On the allegations that respondents 1, 2 and 4 have no source of income and are totally dependent upon rental income received from one of the tenants namely Shri S.Krishnamurthy and that the relations between the plaintiffs and defendants have not been very cordial for the last many years, the plaintiffs filed Suit No. 3686 of 1991 for partition of property in question. Appellants (defendants in the Suit) contested the Suit by filing written statement and disputing various averments made by the plaintiffs in the plaint. However, these disputed facts need not detain us inasmuch as the relevant facts for determining the controversy in the Suit, or for that matter in this appeal, stand admitted between the parties. It is an admitted case that the deceased was the owner of the Suit property. It is also an admitted fact that he died intestate. It is also admitted that the appellants and the respondents 1, 2 and 4 are staying in the Suit property. The letting out of the ground floor to the two tenants is also undisputed, although appellants case is that the two tenants were inducted by the deceased during his lifetime and the appellants wanted the tenanted portion to be got vacated through the Court of law by filing eviction petition and it is the respondents who are not cooperating.

Thus, it follows, as a consequence that the appellants and the respondents are Class I legal heirs of the deceased and have equal shares in the Suit property. However the bone of contention is as to whether the Suit property is impartible. Appellants maintain that it is impartible and for this purpose they are taking shelter of Section 23 of the Hindu Succession Act (hereinafter referred to as Act, for short). Section 23 reads as under:-

23. Special provision 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, 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 separate from her husband or is a widow.

4. It was the stand taken by the appellants in the written statement that all the respondents who are female heirs cannot claim partition until the male heirs i.e. the appellants choose to divide their respective shares therein. Since the appellants do not want any partition of the property, according to them the Suit filed by the respondents herein i.e. the female heirs for partition was not maintainable. By the impugned judgment dated 11th May, 1994, learned Single Judge rejected this plea of the appellants and passed preliminary decree for partition as prayed for. The provision of Section 28 of the Act are held to be not applicable as essential condition of the provisions of the Section are not complied with inasmuch as the property in question is "not wholly occupied" by the members of the family because as part of the premises is in occupation of tenants. The appellants have filed this appeal against the aforesaid judgment and preliminary decree passed by the learned Single Judge.

5. The main thrust of the argument of the learned counsel for the appellants is that Section 23 of the Act has to be given purposive interpretation. According to him, Section 23 of the Act is a special provision dealing with partition of a dwelling house and the right of the male and female heirs of the intestate therein. Even when female heir specified in Class I of the Schedule of the Act inherits a share in the dwelling house absolutely, Section 23 imposes an embargo upon her right to claim partition until the male heirs choose to divide their respective shares therein. Object is to prevent fragmentation or disintegration of a family dwelling house at the instance of female heir(s) to the prejudice of male heir(s) by allowing a female heir from creating a situation in which partition of a family house may entail a forced sale of it or otherwise may cause hardship to the son or sons of the intestate where it may not be possible for son(s) to buy off the share of the female heir who insists on actual partition of it. In the instant case, it was argued that, the appellants are the two male heirs who want to maintain the abode left by their deceased father. They are admittedly living in the Suit property, so are their two sisters and mother. It is not the appellants who had let out the part of the property namely, the ground floor to the two tenants and infact this letting out was done by their deceased father during his lifetime. Status quo in respect of the property is maintained as left by their deceased father in the same manner. In these circumstances, according to the appellants, protection of Section 23 should come to their rescue. For this the appellants relied upon the judgment of the Apex Court in the case of Narshimaha Murthy Versus Susheelabai .

6. When the matter came up for hearing, Mr. Pradeep Nandrajog, learned counsel made his submission on behalf of the appellants. However, there was no appearance on behalf of the respondents. We, therefore, did not have the benefit of arguments of the respondents. Accordingly, after the arguments were concluded, we took it upon ourselves to examine the question in detail by referring to the relevant material.

7. Before analysing the aforesaid judgment quoted by the learned counsel for the appellant let us first understand the core issue involved in this case. Section 23 of the Act which puts an embargo on female heirs to claim partition until the male heirs choose to divide their respective shares, does so in respect of the property which includes (a) "dwelling house wholly occupied by members" of the family of the deceased. Therefore, a rider on female heirs' right to claim partition is given only if all the ingredients of Section 23 of the Act are satisfied. In this case, according to the impugned order and decree passed by the learned Single Judge, the ingredient which is missing is that the Suit property namely, the dwelling house is not wholly occupied by the members of the family of the deceased. This is concluded on the basis of the fact that the ground floor of the Suit property is let out to two tenants. Therefore, the core question to be decided in this case is as to whether the dwelling house is wholly occupied by members of the deceased's family, notwithstanding the letting out of ground floor portion of the said property to two tenants.

8. After drawing the battle lines in this case, we now proceed to examine the ratio laid down by the Supreme Court in the case of Narashimaha Murthy (supra) case. For this purpose it would be appropriate to notice the facts of that case in the first instance. That was a case where one Mr. Narasoji Rao died intestate leaving behind him one son and three daughters. The three daughters had filed the Suit for partition and impleading their brother, i.e. only son of the deceased Mr. Narsoji Rao, as defendant. The house in question was in actual physical possession of the tenants and none of the heirs of Mr. Narasoji Rao, male or female, were in possession thereof. The defendant, the only son, challenged the maintainability of the Suit by pressing into service provisions of Section 23 of the Act. This challenge was, however, repelled and preliminary decree was passed by the Trial Court. Appeal of the son met with dismissal in liming by the High Court. In these circumstances, the son appealed to Supreme Court by Special Leave. Three member Bench of Supreme Court rendered the judgment which consisted of two concurring opinions. One by K.Ramaswamy, J and the other by M.M. Punchhi, J for his own behalf and on behalf of Kuldip Singh, J. Opening para of the judgment rendered by M.M.Punchhi, J formulated two legal questions which fell for determination in the said case. These were: (i) What is a "dwelling-house" on which the provision confers the cloak of impartibility? and (ii) Where a Hindu intestate leaves surviving him or her a single male heir and one or more female heir or heirs, specified in Class I of the Schedule, is the provision attracted?

9. Infact as per the judgment rendered by K.Ramaswamy, J. it was not in dispute that the house in question was a "dwelling house" and the only question argued before the Court was "whether the dwelling house is partible or not, when Narasoji Rao left behind his only son and three daughters?" (para 2 of the judgment). A reading of the two opinions also demonstrate that the main question answered is about the partibility of a dwelling house when deceased leaves behind only son i.e. one male member. This question arose for determination because Section 23 uses the expression "male heirs"" in plural sense and therefore the question as to whether provisions of Section 23 would still be attracted when only one male heir specified in Class I of the Schedule was left behind by the deceased. The Supreme Court answered this question in favor of the appellant holding that provisions of Section 23 of the Act would be applicable even if deceased had left behind only one son. However, admittedly in the present case we are not concerned with this aspect of the matter.

10. In so far as the other question is concerned, namely, what is a "dwelling house" on which the provision confers the cloak of impartibility, there is a detailed discussion in the said judgment of Supreme Court. However, what is "dwelling house" was not examined in the context in which it has arisen in the present case. The judgment noticed that the expression "dwelling house" has not been explained elsewhere than in Section 23 of the Act and there is no specific definition of the said expression. Various judicial dictionaries and judgments of English Courts are quoted which describe the expression "dwelling house". This can be seen from para 27 of the judgment and then in para 28 the term "dwelling house" is explained in the context of Section 23 in the following words:-

28. "From the aforequoted statements it is manifest that in the legal world the word "dwelling-house" is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self acquired, as understood in the law applicable to Hindus. In the context of Section 23 therefore when the legislature has chosenly employed the word "dwelling-house", it has done so with a purpose, which is to say that on the death of the intestate, a limited status quo should prevail as existing prior to his or her death. His or her abode, shared by him or her, with members of his or her family, identifiable from Class I Heirs of the Schedule, should continue to be in enjoyment thereof, not partible at the instance of the female heirs till the male heirs choose to effect partition thereof. (emphasis supplied)

11. Thereafter, the judgment proceeds to discuss Class I heirs in the Schedule and the right of the female heirs to claim partition of the "dwelling house" with limitations put thereon under Section 23 of the Act. Relevant observations which occur thereafter are reproduced below:-

"Every right has a corresponding duty. This principle vigourously applies in this multiangular provision. A house tenanted brings in strangers and it ceases to be a dwelling-house inhabited by members of the family. The protection of section 23 is thus not available to the males. It is in this light that question No.1 need be answered to say that a dwelling-house is that house which is in actual, physical, inhabited possession of one or the other members of the family in stricto sensu, and if some are absent due to exigencies of service or vocations, the dwelling-house remains available for them to re-enter without any obstruction or hindrance and on that premise enabling the female heir to assert a right of entry and residence therein. A tenanted house does not fit into this description. Disabled daughters need instant succour, not litigation. They need doors of the dwelling-house always wide open, not stoney-eyed responses of strangers. The provision silences them in seeking partition, but not their ownership extinct. If marriage has the inescapable. consequence of displacement of the daughter from the parental roof, her interests forever cannot be sacrificed on the altar of matrimony. Her distress revertendi is of equal importance standing alongside the qualified defense of impartibility by the male heir as afore-explained. The first question is answered accordingly." (emphasis suuplied)

12. The aforesaid discussion would reveal that although in the said case, Court came into conclusion that even when deceased is survived by the only son, provisions of Section 23 would be applicable but in order to qualify to be a "dwelling house" under Section 23 of the Act, the house should be occupied by the members of the intestate family and not a house or houses let out to tenants. On the facts of that case where the entire house was let out to tenants, the Court concluded that protection of Section 23 was not available to the appellant. It was not a case where partly the house was occupied by the legal heirs of the deceased and partly let out to tenants. The question as to what would be the meaning of the expression " wholly" occupied by the members of the family of the deceased did not come for consideration directly in that case. As pointed out above, the house in that case was let out to the tenants and no members of the family of the deceased were inhabited therein.

13. Undoubtedly, Section 23 uses the expression " wholly" occupied by members of the family of the deceased/intestate. This expression has directly come up for interpretation in various cases decided by different High Courts. Division Bench of Calcutta High Court in Smt. Usha Majumdar and others versus Smt. Smriti Basu held that the word " wholly" appearing in Section 23 means entirely, completely, fully and totally in every respect and in that case where the dwelling house was partly tenanted the Court held that the exclusive domain of male heir was lost and the female heir was entitled to partition in respect of her share. This judgment was followed by division bench of the same High Court in Gita Banerjee versus Probhat Kumar Dutta reported in AIR 1989 NOC 167 (Cal.). To the same effect is the judgment of Rajasthan High Court in Hari Singh versus Smt. Sireh Kanwar and others and of the Gujarat High Court in the case of Vanitaben Bhaishankar Pandya versus Divaliben Premji and others Gujarat Law Reporter 148). We could not come across any judgment taking contrary view. Infact, the learned counsel for the appellant wanted to draw sustenance from the case of Narashimaha Murthy (supra) by submitting that the Court had accepted that the intention of the legislature was to prevent fragmentation or disintegration of a family dwelling house at the instance of female heir(s) and as in the instant case there was no letting out by the appellant but ground floor portion was let out by the deceased himself, the house should be treated as "dwelling house". No such inference is possible in view of the clear and unambiguous language employed in Section 23 of the Act which exempts only those houses which are " fully" inhabited by the members of the family of the deceased. It will not make any difference whether part of the estate of the deceased was let out by the deceased during his lifetime or whether it is let out by the male legal heirs of the owner of the house who died intestate. It may also be significant to point out that even in Narashimaha Murthy (supra) case, heavily relied upon by the appellants Supreme Court has itself used the expressions " fully occupied" and " wholly inhabited" by the members of the intestate's family. These expressions are used in the following context:-

"The right of residence of the female heirs specified in Class I of the Schedule, in order to be real and enforceable, pre-supposes that their entitlement cannot be obstructed by any act of the male heirs or rendered illusory such as in creating third party rights therein in favor of others or in tenanting it, creating statutory rights against dispossession or eviction. What is meant to be covered in Section 23 is a dwelling-house or houses, (for the singular would include the plural, as the caption and the second is suggestive to that effect) fully occupied by the members of the intestate's family and not a house or houses let out to tenants, for then it or those would not be dwelling-house/houses but merely in description as residential houses. The section protects only a dwelling-house, which means a house wholly inhabited by one or more members of the family of the intestate, where some or all of the family members, even if absent for some temporary reason, have the animus revertendi. In our considered view, a tenanted house therefore is not a dwelling-house, in the sense in which the word is used in section 23." (emphasis supplied)

14. Therefore, in this case Court was conscious of the expression " wholly" used in Section 23 of the Act and thus protected only those dwelling houses fully occupied by the members of the family. Thus the support which the learned counsel for the appellant wanted from the aforesaid judgment is not available to him in the instant case and on the contrary if anything, indication which is given in the judgment is that, before a house becomes a "dwelling house" within the meaning of Section 23 of the Act, it should be wholly inhabited by one or more members of the family of the intestate.

15. In view of the aforesaid interpretation given by us to Section 23 of the Act and the fact that the house in question admittedly is not " fully" or " wholly" occupied by the legal heirs of the deceased, the house in question cannot be treated as a "dwelling-house" within the meaning of Section 23 of the Act. Learned Single Judge, therefore, rightly passed the preliminary decree of partition.

16. This appeal thus fails and is hereby dismissed.

17. Since nobody appeared on behalf of the respondents at the time of arguments there shall be no order as to costs.

18. Matter to be listed before the learned Single Judge for further proceedings in accordance with law.