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Issues Involved:
1. Whether the dwelling house is partible under Section 23 of the Hindu Succession Act, 1956. 2. Definition and scope of "dwelling house" under Section 23. 3. Applicability of Section 23 when there is a single male heir and one or more female heirs. Summary: Issue 1: Partibility of the Dwelling House u/s 23 of the Hindu Succession Act, 1956 The court examined whether the dwelling house left by Narasoji Rao is partible when he left behind one son and three daughters. Section 23 of the Act was scrutinized, which states that the right of a female heir to claim partition of the dwelling house does not arise until the male heirs choose to divide their shares. The court noted that the literal meaning of Section 23 suggests the existence of more than one male heir. However, the court emphasized that the purpose of the law is to prevent injustice and should be interpreted in a manner consistent with justice, equity, and good conscience. Issue 2: Definition and Scope of "Dwelling House" The term "dwelling house" is not explicitly defined in the Act. Various interpretations from different High Courts were considered. The court concluded that a dwelling house refers to a house wholly occupied by members of the intestate's family. The court also noted that if the house is let out to tenants, it ceases to be a "dwelling house" for the purposes of Section 23. The court cited multiple cases to support this interpretation, including Arun Kumar Sanyal v. Jnanendra Nath Sanyal and Mookkammal v. Chitravadivammal. Issue 3: Applicability of Section 23 with a Single Male Heir The court addressed whether Section 23 applies when there is only one male heir and one or more female heirs. The court held that the section is applicable and the right to claim partition by female heirs is deferred until the male heir chooses to partition the dwelling house. The court reasoned that the intention behind Section 23 is to prevent fragmentation of the family dwelling house and to maintain family unity. The court also discussed the implications of modern family planning policies where families might have only one son and one daughter, emphasizing that the section should still apply to prevent hardship and injustice. Conclusion: The court concluded that Section 23 applies and prohibits the partition of the dwelling house of a deceased Hindu intestate who left behind a sole male heir and female heirs. The right to claim partition by female heirs is deferred during the lifetime of the male heir or until he chooses to partition or ceases to occupy the dwelling house. The appeal was dismissed as the appellant had let out the dwelling house to a tenant, losing the protection of Section 23. The court approved the approach of the Calcutta High Court and its companion courts, emphasizing a pragmatic approach consistent with justice, equity, and good conscience.
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