Delhi High Court
Sunil Gupta vs Nargis Khanna on 6 September, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.139/2011
% 6th September, 2011
SUNIL GUPTA ...... Appellant
Through: Mr. Sanjay Jain, Sr. Adv. with
Mr. Vikram Kapoor, Mr.Pankaj Kapoor,
Ms. Ruchi Jain, Ms. Namisha Gupta,
Mr. Abhijit Mittal & Mr. Risabh Wadha,
Advs.
VERSUS
NARGIS KHANNA ...... Respondent
Through: Mr. Harkirat Sawhney, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned
judgment and decree dated 20.11.2010. By the impugned judgment and
decree, the suit of the respondent/plaintiff has been decreed. Though the
decree grants various forms of mandatory and perpetual injunctions, in
RFA No.139/2011 Page 1 of 23
effect, the relief of possession of the suit property has been granted to the
respondent/plaintiff. The suit has been decreed on an application of the
respondent/plaintiff under Order 12 Rule 6 CPC.
2. The suit has been decreed relying upon Section 44 of the
Transfer of Property Act, 1882 by holding that the property being N-47,
Panchsheel Park, New Delhi was an undivided dwelling-house of the family
and since the appellant/defendant no.2 was a stranger, he had been
wrongfully inducted into possession of the second floor of the property
along with certain other rights by the brother/Sh. Prem Kumar Dewan of
the respondent/plaintiff, Ms.Nargis Khanna. The decision in the present
appeal will therefore revolve around the meaning of the expression
"dwelling-house" as found in Section 44 of the Transfer of Property Act,
1882. Before however, we go to the meaning of the expression "dwelling-
house" it would be necessary to refer to the relevant facts of the case.
3. The subject property no. N-47, Panchsheel Park, New Delhi is
constructed on a plot admeasuring 800 square yards and which was
originally owned by late Sh. Jagan Gopal Dewan, father of the
respondent/plaintiff. The perpetual sub-lease rights in the property were
purchased by Sh.Jagan Gopal Dewan from the Delhi Development
Authority. Sh. Jagan Gopal Dewan died on 27.2.2001. He bequeathed the
subject property to his widow, Smt. Amrit Kala Dewan by his last Will and
RFA No.139/2011 Page 2 of 23
Testament dated 9.12.1972. Smt. Amrit Kala Dewan as an owner of the
property during her lifetime let out the first floor of the property to a
tenant, M/s. Win-Medicare Pvt. Ltd. Smt. Amrit Kala Dewan expired on
12.11.2005 leaving behind various properties including the subject
property. Smt. Amrit Kala Dewan by her last Will and Testament dated
6.10.2004 bequeathed the half share each in the subject property to her
daughter/plaintiff and her son Sh. Prem Kumar Dewan. As per the
paragraph 7 of the plaint, the respondent/plaintiff was in possession of the
ground floor, garage, servant quarter, rear courtyard, front lawn and
uninterrupted user of the drive ways of the subject premises. The second
floor of the subject property was in possession of the brother/Sh. Prem
Kumar Dewan and who by a registered sale deed dated 23.6.2008 sold
and transferred his 50% undivided interest in the property and also the
possession of the second floor of the subject property to both the
defendants in the suit. The defendant no.1 thereafter transferred his
interest in the property to the defendant no.2/appellant. Sh. Prem Kumar
Dewan since gave the possession of the second floor of the property to the
defendants in the suit along with the other rights inasmuch as the same
became the genesis of the dispute resulting in filing of the suit. The
subject suit thus came to be filed by the respondent/plaintiff on the basis
of Section 44 of the Transfer of Property Act, 1882 by stating that since
RFA No.139/2011 Page 3 of 23
the property was an undivided dwelling-house, the defendants in the suit
had no right to enter into possession, and possession of which by means of
different reliefs of perpetual and mandatory injunction was prayed for by
the respondent/plaintiff and against the defendants.
4. By the impugned judgment and decree, the Trial Court has
held that since admittedly there was no partition of the subject property,
consequently, the property was an undivided property. It was further held
that the subject property was a "dwelling-house" within the meaning of
the expression in Section 44 of the Transfer of Property Act, 1882 and
therefore it was held that the defendants had come into illegal possession
of the house and which possession had to revert to the
respondent/plaintiff. The relevant portions of the judgment of the Trial
Court, and which could have been better on its discussion, are contained
in paras 4 to 7 of the judgment and which read as under:-
"4. Ld. Counsel for the plaintiff has stated that facts of
the case are not disputed and the suit can be decreed by
appreciation of legalities without going through the
rigmorale of a trial. To fortify his contention, he has relied
upon a catena of judgments and has led stress on the fact
that a transferee, not being a member of the family, is not
entitled to joint possession or enjoyment of any common
portion of the house. The said property is a dwelling house
and has never been partitioned by metes and bounds
between the plaintiff and her brother. The defendants
having purchased 50% undivided, unspecified and
unpartitioned stake in the said property of her brother are
complete strangers to the family and are liable to be
restrained from enjoying any possession. The only
RFA No.139/2011 Page 4 of 23
recourse open to a stranger/transferee is to sue for
partition, but till then remain out of possession. In support
of his arguments, reliance has been placed on the decision
of the Calcutta High Court in the matter of Boto Krishan
Ghose V. Akhoy Kumar Ghose, Air 1950 Cal 111. The
Hon‟ble High Court has clarified that the undivided family
simply means family not divided qua the dwelling house.
The emphasis is really on the undivided character of the
house. In such a state, if a member of the family transfers
his share in the dwelling house to a stranger, the
transferee does not become entitled to joint possession or
other common or part enjoyment of the house. His only
recourse is to seek partition of his share. Besides
reinforcing his arguments with citations on the legal
perspective of a stranger‟s right in joint property, Ld.
counsel for the plaintiff has also cited judgments to show
that a dwelling house does not cease to be a dwelling
house merely because of suspension of occupation or the
absence of the owner. As long as a house could be
occupied even at a future date, it did not matter whether it
was actually in use or not in constant occupation. The
absence of the owners or the occupation of the house by
tenants would not take away the effect of the property as a
dwelling unit. The creation of the tenancy does not
terminate the possibility of the owner of the house
returning to its occupation. The emphasis is on the
undivided character of the house and it is this attribute of
the house which imparts to the family its character of an
undivided family, even if they are separated in mess and
worship.
5. The proposition and law has also been reinforced in
the decision of the Apex Court in the matter of Gautam
Paul V. Debi Rani Paul (AIR 2001 SC 867). The law on the
point is clear and categorical. The buyer of a share of the
co-sharer cannot have the right to joint possession. If a
transferee gets into possession of a share in the dwelling
house, the possession becomes joint and is illegal. Courts
cannot countenance or foster illegal possession. The
citations relied upon make it amply clear that the
stranger/transferee to the suit property is not only liable to
the restrained but is also to be evicted from the possession
RFA No.139/2011 Page 5 of 23
therein. The only recourse for such a transferee is to seek
partition in the suit premises.
6. Ld. Counsel for the defendant has resisted the
application under Order 12 Rule 6 CPC on the ground that
facts of this case required trial inasmuch as it has to be
decided whether the plaintiff is a part of the undivided
family being a married daughter. This opposition does not
need trial. The decision in the matter Sulekha Ghosh &
Anr. Vs. Partha Sarathi Gosh reported in AIR 2002 SC 2500
settles this issue. A daughter after marriage does not lose
the status of a member of an undivided family of her father
and acquires in interest in the dwelling house.
7. I am unable to appreciate the resistance advance by
the Ld. Counsel for the defendant. It cannot be disputed
that the provisions of Section 44 of the Transfer of Property
Act are aptly applicable to the present case. The undivided
nature of the suit premises is not disputed. There is
nothing left for trial as the facts are not in dispute and the
law is clear and categorical and requires to be enforced in
the present case."
The trial Court accordingly on the basis of the aforesaid
decreed the suit.
5. In order to decide the issue at hand as to whether the property
N-47, Panchsheel Park, New Delhi is or is not an undivided dwelling-house
as per Section 44 of the Transfer of Property Act, 1882, it is necessary
firstly to reproduce the said Section 44 and which reads as under:-
"44.Transfer by one co-owner.- Where one of two or
more co-owners of immoveable property legally
competent in that behalf transfers his share of such
property or any interest therein, the transferee acquires
as to such share or interest, and so far as is necessary to
give, effect to the transfer, the transferor‟s right to joint
possession or other common or part enjoyment of the
RFA No.139/2011 Page 6 of 23
property, and to enforce a partition of the same, but
subject to the conditions and liabilities affecting at the
date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house
belonging to an undivided family is not a member of the
family, nothing in this section shall be deemed to entitle
him to joint possession or other common or part
enjoyment of the house." (Emphasis is mine)
6. Section 44 of the Transfer of Property Act, 1882 is part of a
scheme of agnate and cognate statutes, and in which laws, the object was
that in a residential/dwelling-house of an undivided family, a stranger
should not be allowed to enter into possession. Of course, the stranger
could seek partition and thereafter take the possession of the property
allotted to him on partition, however, till the property was partitioned by
metes and bounds, the stranger could not come into possession of the
family dwelling-house. This provision of Section 44 has its foundation in
the customs and traditions of this country and its denizens wherein family
privacy in a dwelling-house was zealously guarded. People were traditional
and conservative. This was more so because the ladies of the family were
expected to avoid contact with strangers. In many communities „purdah'
system was prevalent. It was therefore required that the atmosphere and
the privacy of a joint family in a dwelling-house should be preserved
against the strangers though, the stranger, as stated above, could enforce
his right to possession through partition of the undivided family house.
RFA No.139/2011 Page 7 of 23
In the same scheme of the legislature which brought about
Section 44 of the Transfer of Property Act, 1882 there were also similar
provisions contained in Section 4 of the Partition Act, 1893 and Section 23
of the Hindu Succession Act, 1956, latter provision has since however
been repealed as now the daughters have been given rights equal to the
sons in the joint family property.
7. The direct judgment of the Supreme Court which considers the
meaning of the expression "dwelling-house" is the decision in the case of
Narashimaha Murthy vs. Susheelabai (Smt) and Ors. 1996 (3) SCC
644. Relevant paras of this judgment are para nos. 12, 13, 14, 20 (of the
judgment authored by K. Ramaswami, J.) and para nos. 22, 27, 28, 31 & 32
(of the judgment authored by Punchi, J. for himself and Kuldip singh J.) and
which read as under:-
"12. When succession of a Hindu intestate is open, his/her
Class-I heirs specified in the Schedule is entitled at a
partition to their respective shares. The succession cannot
be postponed. However exception has been engrafted by
Section 23 respecting tradition of preserving family
dwelling house to effectuate family unity and prevent its
fragmentation or disintegration by dividing it by metes
and bounds. The prohibition gets lifted when male heirs
have chosen to partition it. The words specified in Class-I
of the Schedule and Section 23, are used in a descriptive
sense to economise the words denoting the legislative
animation. The expression "dwelling house" though not
defined in the Act, the context would indicate that it is
referable to the dwelling house in which the intestate
Hindu was living at the time of his/her death; he/she
intended that his/her children would continue to normally
RFA No.139/2011 Page 8 of 23
occupy and enjoy it. He or she regarded it as his or her
permanent abode. On his or her death, the members of
the family can be said to have continued to preserve the
same to perpetuate his/her memory. Obviously Section 23
is an exception to the general rule of succession and has
been engrafted for that purpose. Where there are only
one male heir and one or more female heirs are left
surviving behind the Hindu intestate, the members of the
family would continue to remain in occupation and in
enjoyment of it as dwelling house. Due to marriage, the
daughter would leave the parental house and get
transplanted into matrimonial home. The proviso to
Section 23 visualises certain contingencies and made
provision for right of residence to Class-I female heirs. In
the event the male member(s) choose(s) to separate or
cease(s) to reside or instead introduce a stranger into
family house, then the female heir gets the right to a
share in the dwelling house as well. The reverence to
preserve the ancestral house in the memory of the father
or mother is not the exclusive preserve of the son(s)
alone. Daughter(s) too would be anxious and more
reverential to preserve the dwelling house to perpetuate
the parental memory.
13. Section 23 thus limits the right of the Class-I female
heirs of a Hindu who died intestate while both male and
female heirs are entitled to a share in the property left by
the Hindu owner including the dwelling house. The
marginal note itself indicates that Section 23 is a special
provision: in other words, it is an exception to the general
partition. So long as the male heir(s) chose not to partition
the dwelling house, the female class-I heir(s) has been
denied the right to claim its partition subject to a further
exception, namely, the right to residence therein by the
female class-I heir(s) under specified circumstances. In
other words, the male heir(s) becomes entitled to
perpetuate the memory of the deceased-Hindu who died
while remaining to live in the dwelling house during his or
her life time. Thereby the dwelling house remains
indivisible. The male heir(s) thereby evinces animus
possedendi. But the moment the male heir(s) chooses to
let out the dwelling house to a stranger/third party, as a
tenant or a licensee, he or they exhibit(s) animus
RFA No.139/2011 Page 9 of 23
dissident and the dwelling house thereby becomes
partible. Here the conduct of the male heir(s) is the cause
and the entitlement of the female Class-I heir(s) is the
effect and the latter's claim for partition gets ripened into
right as she/they is/are to sue for partition of the dwelling
house, whether or not the proviso comes into play. Here
the female heir(s) becomes entitled to not only mere
partition of the dwelling house but also her right to
residence after partition.
xxxxxx xxxxx xxxxx
14. It is, therefore, clear that though the right to
succession devolves upon the female heir under Section
8, being Class-I heir to the Hindu intestate, in respect of
the dwelling house, her right to seek partition has been
interdicted and deferred only so long as the male heir(s)
decide to remain occupied therein as undivided or
continue to have it as a dwelling house. Though the words
'the male heirs choose to divide their respective shares',
suggest that at least two such male heirs must exist and
decide not to partition the dwelling house in which event
the right of the female heir is postponed and kept in
abeyance until the male heir or heirs of the Hindu
intestate decided to partition it, it does not necessarily
lead to the only inevitable conclusion that the operation of
Section 23 must stand excluded in the case of the Hindu
intestate leaving behind him/her surviving only a son and
a daughter. Take the present policy of family planning to
have only two children and invariably preferring to have a
son and daughter. More than one son may not exist. The
restriction is contingent and conditional and will cease to
operate on the death of the sole male heir or the last of
such male heirs of the intestate or if he or they choose(s)
to partition and sell(s) his/their shares to a stranger or to
let out to others. Take a case of a Hindu male or female
owning a flat in metropolis or major cities like Bombay
etc. with two room tenement left behind by a Hindu
intestate. It may not be feasible to be partitioned for
convenient use and occupation by both the son and the
daughter and to be sold out. In that event the son and his
family will be thrown on the street and the daughter
would coolly walk away with her share to her matrimonial
RFA No.139/2011 Page 10 of 23
home causing great injustice to the son and rendering
them homeless/shelterless. With passage of time, the
female members having lost the moorings in the parental
family after marriage, may choose to seek partition
though not voluntarily but by inescapable compulsions
and constrained to seek partition and allotment of her
share in the dwelling house of her intestate father or
mother. But the son with his share of money may be
incapable to purchase a dwelling house for his family and
the decree for partition would make them shelterless.
Take yet another instance, where two-room tenement flat
was left by deceased father or mother apart from other
properties. There is no love lost between brother and
sister. The latter demands her pound of flesh at an
unacceptable price and the male heir would be unable to
buy off her share forcing the brother to sell the dwelling
flat or its lease-hold right or interest to see that the
brother and his family are thrown into the streets to
satisfy her ego. If the right to partition is acceded to, the
son will be left high and dry causing greatest humiliation
and injustice.
xxxxxx xxxxxx xxxxxx
20. The above consideration would indicate that the
legislature intended that during the life-time of the
surviving male heir(s) of the deceased Hindu intestate,
he/they should live in the parental dwelling house as
partition thereof at the behest of the female heir would
render the male heir homeless/shelterless. Obviously, to
prevent such hardship and unjust situation, special
provision was made in Section 23 of impartibility of
the dwelling house. Section 44 of the Transfer of
Property Act and also Section 4(1) of the Partition
Act appear to prevent such fragmentation of the
ancestral dwelling house. Singular includes plural
under S 13(2) of the General Clauses Act and may be
applied to Section 23 as it is not inconsistent with the
context or subject. Even without resorting to it or having
its aid for interpretation, by applying common sense,
equity, justice and good conscience, injustice would be
mitigated. After all, as said earlier, the purpose of law is to
prevent brooding sense of injustice. It is not the words of
RFA No.139/2011 Page 11 of 23
the law but the spirit and internal sense of it that makes
the law meaningful. The letter of the law is the body but
the sense and reason of the law is the soul. Therefore,
pragmatic approach would further the ends of justice and
relieve the male or female heir from hardship and prevent
unfair advantage to each other. It would, therefore, be
just and proper for the Court to adopt common sense
approach keeping at the back of its mind, justice, equity
and good conscience and consider the facts and
circumstances of the case on hand. The right of residence
to the male member in the dwelling house of the Hindu
intestate should be respected and the dwelling house may
be kept impartible during the life time of the sole male
heir of the Hindu intestate or until he chooses to divide
and gives where to his sister or sisters or alienate his
share to a stranger or lets it out to others, etc. Until then,
the right of the female heir or heirs under Section 8. is
deferred and kept in abeyance. So, instead of adopting
grammatical approach to construe Section 23, we are of
the considered view that the approach of the Calcutta
High Court and its companion Courts is consistent with
justice, equity and good conscience and we approve of it.
We accordingly hold that Section 23 applies and prohibits
partition of dwelling house of the deceased Hindu male or
female intestate, he left surviving sole male heir and
female heir/heirs and the right to claim partition by the
female heir is kept in abeyance and deferred during the
life time of the male heir or till he partitions or ceases to
occupy and enjoy it or lets it out or till at a partition
action, equities are worked out.
xxxxx xxxxx xxxxx
Punchhi, J.
22. The special and multi angular provision, Section 23 of
the Hindu Succession Act, 1956, emits two legal questions
of importance for determination, in this appeal by special
leave, against the order of the Karnataka High Court
dated 21-2-1992 in R.S.A. No. 1045 of 1991, affirming in
limine the appellate order of the Civil judge,
Ramanagaram dated 22 October 1990 in R.A. No. 31 of
1985, namely :
(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?
xxxxx xxxxx xxxxx
27. The expression "dwelling-house" has not been
explained elsewhere then in the Section 23 itself. There is
no specific definition of the expression in the Act as such.
Because of that, various commentators of the subject
have foreseen that the courts were likely to face a
problem in defining it. According to Webster
Comprehensive Dictionary, the expression "dwelling
house" means a house built for habitation, a domicile. In
law it may embrace the dwelling itself and such buildings
as are used in connection with it. According to Black's Law
Dictionary (sixth edition), under statute prohibiting
breaking and entering a "dwelling-house", the test for
determining if a building is such a house is whether it is
used regularly as a place to sleep. In Stroud's judicial
Dictionary (fifth edition), the expression" dwelling-house"
has been described as a house with the super-added
requirement that it is dwelt in or the dwellers in which are
absent only temporarily, having animus revertendi and
the legal ability to return Ford v. Barnes, . It is described
that the word "inhabitant" would seem to bring about
more fully the meaning of the word "dwelling-house". In
Words and Phrases (Third Edition) a quotation is available
from Lewin v. End, attributed to Lord Atkinson in whole
words a "dwelling-house" as understood by him was "a
house in which people live or which is physically capable
of being used for human habitation". Another quotation
from R. v. Allison, is available of Maule, J. saying that a
house, as soon as built and fitted for residence, does not
become of dwelling-house until some person dwells in it.
In I.P. Mukherjee's The Law Lexicon (Volume I) 1989, it is
stated at page 565 that a dwelling-house, as the words
imply, projects the meaning that the house or a portion
thereof is an abode of his, available to him at all times
without any let or hindrance by others. Further thereat is
stated that a dwelling place is one where a person
inhabits and in law should be his domus mansionalis. In
Aiyar's Judicial Dictionary (11th Edition), an old decision of
the Allahabad High Court in Fatima Begum v. Sakina
Begum, has been mentioned in which it has been held
that the words "dwelling" or "residence" are synonymous
with domicile or home and mean that place where a
person has his fixed permanent home to which whenever
he is absent, he has the intention of returning. An
extraction from Commissioner of Income Tax v. K.S.
Ratanaswamy, MANU/SC/0298/1979 :
[1980]122ITR217(SC) is also quotable saying that
primarily the expression "dwelling place" means
'residence", "abode" or "home" where an individual is
supposed usually to live and sleep and in the context of a
taxing provision which lays down a technical test of
territorial connection amounting to residence, the concept
of an "abode" or "home" would be implicit in it. In other
words, a dwelling place must be a house or portion
thereof which could be regarded as an abode or home of
the assessee in taxable territories.
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 with the legislature has
closely 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.
xxxxx xxxxx xxxxx
31. Attention may now be invited to the last sentence in
the provision and the proviso, for there lies the clue to get
to the heart of the matter. On first impression the
provision may appear conflicting with the proviso but on
closer examination the conflict disappears. A female heir's
right to claim partition of the dwelling-house does not
arise until the male heirs chose to divide their respective
shares therein, but till that happens the female heir is
entitled to the right to reside therein. The female heir
already residing in the dwelling-house has a right to its
continuance but in case she is not residing, she has a
right to enforce her entitlement of residence in a court of
law. The proviso makes it amply clear 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. On first impression, it appears that
when the female heir is the daughter, she is entitled to a
right of residence in the dwelling-house so long as she
suffers from any one of the four disabilities i.e. (1) being
unmarried; (2) being a deserted wife; (3) being a
separated wife; (4) being a widow. It may appear that
female heirs other than the daughter are entitled without
any qualification to a right of residence, but the daughter
only if she suffers from any of the aforementioned
disabilities. If this be the interpretation, as some of the
commentators on the subject have through it be, it would
lead to an highly unjust result for a married grand-
daughter as a Class-I heir may get the right of residence
in the dwelling-house, and a married daughter may not.
This incongruous result could never have been postulated
by the legislature. Significantly, the proviso covered the
cases of all daughters, which means all kinds of
daughters, by employment of the words "where such
female heir is a daughter" and not "where such female
heir is the daughter". The proviso thus is meant to cover
all daughters, the description of which has been given in
the above table by arrangement. The word "daughter" in
the proviso is meant to include daughter of a predeceased
son, daughter of a predeceased son of a predeceased son
and daughter of a predeceased daughter. 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 favour 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 section 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 of 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. It
may be a dwelling-house in the structural sense but it
cannot be said to be a dwelling-house in habitation by the
members of the intestate's family. In that twin sense,
when the female heirs are entitled to a right of residence
therein, which right is enforceable against the male heirs,
that right militates against the created or creating of
tenancy by the male heir or heirs and deprive them of
their right to residence therein as also their right to
partition; an incidence normal to the opening of
succession. Thus it appears to us that if the male heirs
derive the right under the provision to resist partition of
the dwelling-house unless they chose to divide their
respective shares therein, then correspondingly it is
incumbent on the male heirs to keep the property well
arranged, inhabited or occupied by themselves keeping
the property available for the female heirs to enforce the
right of residence therein. But if the latter right is
frustrated on creation of third party rights or a contractual
or statutory tenancy, there remains no right with the
males to resist partition.
32. Every right has a corresponding duty. This principle
vigorously applies in this multi angular 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 or 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 succor, not litigation. They need doors of the
dwelling-house always wide open, not stony-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 alter of
matrimony. Her distress revertendi is of equal importance
standing alongside the qualified defence of impartibility
by the male heir as afore-explained. The first question is
answered accordingly." (Emphasis added)
8. The emphasized portions of the judgment, and which
underlining has been provided by me, show that the Supreme Court has
inter alia, held as under:-
i) A dwelling-house is a residential house of a family which is
exclusively occupied by and lived in by members of a family.
ii) Except the members of the family, no one else has resided in
the dwelling-house, i.e. a stranger has not come into possession of
whole or part of the dwelling-house.
iii) Once a stranger comes into possession of a dwelling-house,
then in such circumstances, the dwelling-house loses the character of
a family dwelling-house considering the object that the sanctity of a
family dwelling-house was required to be preserved till a stranger did
not come into possession of the same.
iv) the provisions of Section 23 of the Hindu Succession Act, 1956
and provisions of agnate and cognate acts being Section 4 of the
Partition Act, 1893 and Section 44 of the Transfer of Property Act,
1882 are part and parcel of the same scheme and the intention of the
legislature and therefore, the meaning which has to be ascribed to
the expression "dwelling-house" in all the three provisions of the
three Acts has to be similar.
9. To the aforesaid, I must add that, though the basic foundation
of the provisions of Section 44 of the Transfer of Property Act, 1882,
Section 4 of the Partition Act, 1893 and Section 23 of the Hindu Succession
Act, 1956 still continues to protect a dwelling-house of an undivided
family, however, one cannot be oblivious to the fact that the society has
moved on. Today in metropolitan cities and megapolises, such as the
capital of this country, traditions and conservative attitude of the ladies
not coming into contact with strangers is more or less a thing of the past.
A family dwelling house is mostly non-existent because people live in flats
in high rises or in small buildings having three or four or about these many
number of flats. Privacy of course is zealously guarded, however, when
properties are built on a plot of land which are in the form of flats and
which can be occupied by different persons/families/entities, the
traditional concept of an undivided family house has almost vanished. It is
in accordance with the contemporary situations and ground realities which
exist today that the expression "dwelling-house" as found in Section 44
must be interpreted, of course, keeping in mind the peculiar facts and
circumstances as would be found in the facts of each case. A very
important aspect to be borne in mind while interpreting the expression
„dwelling house‟ is that it is one whole house used as a dwelling as
distinguished from part of the house used as a dwelling house and thus
there does not live therein any person other than the family member.
Once in part of the dwelling house there is a stranger then it results in the
fact that the whole dwelling house is not with the family and then in such
situation it cannot be said that an additional stranger cannot come in. In
the facts of the present case admittedly it is the case that the whole
property N-47 is the dwelling house, but, in the first floor portion of which
there is already a tenant and thus there is already a stranger in the
dwelling house. Further it must always be borne in mind that the
interpretation of Section 44 of Transfer of Property Act,1882 must take
into account the aspect that it is not as if the dwelling house is
permanently impartible. The stranger who purchases the share of the co-
owner can always get his share separated and thereafter possess and
enjoy his share. Thus the disability to take possession is only temporary
till partition and therefore if there is already living a stranger in the house
factually there is separation of a share of the dwelling house in which the
tenant/stranger lives, though in law a partition by metes and bounds
between co-owners has to take place. Therefore there has to be a
balanced interpretation of Section 44 of Transfer of Property Act,1882
keeping in view the fact that the inability to take possession by a stranger-
purchaser is only temporary till the interest purchased is separated and
bound to be separated by partition.
10. In the present case, it is undisputed that the property is built
in the form of independent flats on different floors, and it is because of
that reason, that the flat on the first floor was let out by the mother of the
respondent/plaintiff to a company, M/s. Win-Medicare Pvt. Ltd. I
understand M/s. Win-Medicare Pvt. Ltd. failed to vacate the premises after
expiry of the lease and litigation is pending with the tenant though the
keys of the property in that civil suit have been deposited in the Court.
What is however important is that the property bearing no. N-47,
Panchsheel Park, New Delhi since long lost the character of a typical
dwelling-house which is envisaged as per the provisions of Section 44 of
the Transfer of Property Act, 1882. Once a stranger comes in, in view of
the decision in the case of Narashimaha Murthy (supra), there does not
arise the scope for applicability of the provisions of Section 44 of the
Transfer of Property Act, 1882. In the facts of the present case therefore
the appellant/defendant no.2 cannot/ought not be ousted from the second
floor of the property and the related rights which were purchased by him
with the defendant no.1 in the suit for valuable consideration through a
registered sale deed and the registered sale deed is final as regards the
transfer of title.
11. Learned counsel for the respondent argued that merely
because the tenant had been inducted in the first floor of the property
would not mean that the property ceased to be a dwelling-house. Learned
counsel for the respondent/plaintiff in support of his arguments placed
reliance upon a decision of learned Single Judge of this Court in the case of
Shri Brahm Dev Narang vs. Mr. Satyajeet Narang & Anr. 82(1999)
DLT 979. Of course, this judgment does help the respondent/plaintiff
inasmuch as it lays down that a property does not cease to be a dwelling-
house for the purpose of Section 44 of the Transfer of Property Act,1882
merely because the property had been tenanted, however, I note that the
said judgment does not deal with the binding precedent of the Supreme
Court in the case of Narashimaha Murthy (supra), and therefore in my
opinion, the decision in the case of Shri Brahm Dev Narang (supra)
does not lay down the correct law. I am bound to follow the decision in the
case of Narashimaha Murthy (supra) of the Supreme Court in
preference to the decision of a Single Judge of this Court though the same
may have been rendered later in the year 1999 and the decision of the
Supreme Court is earlier being of the year 1996. I also in view of the
binding precedent of the Supreme Court in the case of Narashimaha
Murthy (supra) need not refer to certain other judgments of other High
Courts which were sought to be relied upon by learned counsel for the
respondent/plaintiff.
12. I am informed that the respondent/plaintiff has already taken
physical possession of the second floor of the subject property which was
purchased by the defendants (including the appellant) in execution
proceedings of the impugned judgment and decree. I therefore while
setting aside the impugned judgment and decree hold that the suit of the
respondent/plaintiff was liable to be dismissed inasmuch as the provision
of Section 44 of the Transfer of Property Act, 1882 has no application in
the facts as found in the present case. The appellant, who was
dispossessed from the property, even before the period of limitation
expired for filing of the appeal, will be after a period of 2 weeks from the
passing of the present judgment entitled to immediate possession of the
property purchased by him from Sh. Prem Kumar Dewan under the sale
deed dated 23.6.2008 by applying for execution of this judgment and
decree and by way of restitution on principle of Section 144 CPC.
13. In view of the above, the appeal is accepted. The impugned
judgment and decree is set aside. Suit of the respondent/plaintiff stands
dismissed. Decree sheet be prepared. Trial Court record be sent back.
SEPTEMBER 06, 2011 VALMIKI J. MEHTA, J.
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