Madhavan Ezhuthasan v. Vellayappan — 1980 DIGILAW 350 (KER)

JUDGMENT P. Janaki Amma, J. 1. The appellant is the plaintiff in a suit for partition of fifteen cents of property with a building therein which according to the plaintiff was owned by Chami the father of the defendant in the case. Chami died after the coming into force of the Hindu Succession Act, leaving his widow, the defendant his ion and three daughters. The widow and the three daughters sold their rights. In the property in favour of the plaintiff appellant as per Ext. A1 dated 18th May, 1971. The plaintiff filed the suit for partition claiming that he was entitled to 4/5 share in the plaint schedule item by virtue of the assignment is his favour. 2. The defendant disputed the maintainability of the suit and contended that the assignment would not bind him, that the property belonged to the joint family of himself and his father and that he was entitled to a 6/10 share therein. 3. The Munsiff, Palghat, who disposed of the case, held that the property was joint family property of Chami and the defendant that Ext. A1 assignment was not binding on the defendant and that in view of S.23 of the Hindu Succession Act (hereinafter referred to as the Act) the plaintiff was not entitled to have a division of the property. The court, however, overruled the contention of the defendant that the assignment is hit by S.22 of the Act. The suit was accordingly dismissed. 4. The plaintiff filed A. S. No. 254 of 1974 before the District Judge, Palghat. The learned District Judge, held, that even assuming that the property belonged to the Hindu Joint Family consisting of the defendant and his father the share of the deceased father would devolve upon his heirs under the Act, and therefore, the widow and daughter of Chami were entitled to shares in the property. The court, however, held that the property sought to be divided was a dwelling house and therefore in View of S.23 of the Act the right of the female heirs who assigned their shares to the plaintiff to get it divided would stand postponed till a male heir residing the property sought partition. The contention that the bar under S.23 was personal to the female heirs and did not extend to their assignees did not appeal to the learned District Judge. The contention that the bar under S.23 was personal to the female heirs and did not extend to their assignees did not appeal to the learned District Judge. The dismissal of the suit was upheld by that Court. The present second appeal is filed against the above decision. 5. The point to be decided is whether S.23 of the Act would apply Jo the instant case. S.23 reads: "23. 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 the 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." The argument put forward on behalf of the appellant is that the section has application only in cases where there are more than one male heir. In other words, according to the appellant, in a case like the present one where the deceased left only one male heir the section has no application. Stress is made on the clause "until the male heirs choose to divide their respective shares thereon". Shri Balasubramoniam appearing for the appellant would argue that the expressions "male heirs" and "their respective shares" would go to show that S.23 has application only when there is plurality of male heirs. He would contend that S.13(2) of the General Clauses Act that the words in the singular shall include the plural and vice versa has no application. According to him the rule is repugnant in the context in that if it is given effect to the word "respective" in the section would become redundant. 6. He would contend that S.13(2) of the General Clauses Act that the words in the singular shall include the plural and vice versa has no application. According to him the rule is repugnant in the context in that if it is given effect to the word "respective" in the section would become redundant. 6. When the language of a statute, in its ordinary meaning and grammatical construction leads to some inconvenience or absurdity, a construction may be put upon it by departing from the rules of grammar, by giving an unusual meaning to particular words or by rejecting them altogether (See Maxwell Interpretation of Statute 10th Edition page 229). If adherence to the words of an enactment produces an absurdity it is the duty of the Court to ascertain the state of law at the time the Act was passed in order to find out the intention of the legislature. In India a dwelling house or the seat of the family, is always treated with hollowed respect, probably based on sentiment and tradition. The Partition Act of 1892 provides that where a share of a dwelling house belonging to an undivided family is transferred to a person who is not a member of the family, it is open to any member of the family, who is entitled to a share in the dwelling house, to buy the share of the transferee at a value fixed by the Court. S.44 of the Transfer of Property Act confers on the transferee of a share of a coowner of immovable property the right to enforce a partition; but the right is subject to restriction that if the transfer is of a share of a dwelling house belonging to an undivided family the transferee shall not be entitled to a joint possession or other common or part enjoyment of the house. The provision is not confined to Hindus. Under the Hindu Law till the intervention of the statute a female heir was not entitled to absolute share in the joint family property. Even now a daughter on marriage ceases to be a member of the family and becomes a member of the family of her husband. The innovation brought about by the Hindu Succession Act has to be interpreted in the above setting. Even now a daughter on marriage ceases to be a member of the family and becomes a member of the family of her husband. The innovation brought about by the Hindu Succession Act has to be interpreted in the above setting. S.23 of the Act is intended to see that the right of the male members to live in the family house and to have a common mess is not interfered with at the instance of the female members. The framers of the statute did not want fragmentation of the family dwelling house at the instance of a person who was riot entitled to a share in the family until a light was conferred by the statute itself. In the words of Blackstone "the most universal and effective way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislators to enact it." 7. "The provision that in the case of a dwelling house left by the intestate his or her female heirs can claim partition thereof only if the male heirs choose to divide their respective shares therein is a salutary provision designed to avoid confusion sown into the family by the female members such as the daughters and daughter's daughter whose moorings are elsewhere on account of their marriage, seeking to take away their shares and throw the male members into the streets. The disability of female heir to claim a partition when the male members are not willing to effect apparition is an echo of the law that prevailed prior to this Act under the Mitakshara under which no female entitled to share on a partition could claim a partition except when the male members of the family effect a partition. The restriction has been imposed to prevent the fragmentation of the dwelling house at the instance of female "heirs" Raghavachariar's Hindu Law, 7th Edn. Vol. II p. 935. 8. S.23 as already noted is not happily worded. The words "his or her share includes a dwelling house" and "his or her family" may lead to problems of interpretation. The restriction has been imposed to prevent the fragmentation of the dwelling house at the instance of female "heirs" Raghavachariar's Hindu Law, 7th Edn. Vol. II p. 935. 8. S.23 as already noted is not happily worded. The words "his or her share includes a dwelling house" and "his or her family" may lead to problems of interpretation. It is also pertinent to note that the restriction provided in the section does not affect the right of a son of a pre deceased daughter, who is one of the heirs specified in Class I of the Schedule to the Act to claim partition of the dwelling house. This is no doubt inconsistent with, the purpose underlying the provision viz., to conserve the dwelling house for the benefit of the members of the family. May be that the framers of the Act being aware of the special position of preference already occupied by the daughter's son wanted to give a more exalted position to him than the female heirs or may be that it was an omission due to oversight to treat the daughter's son on a par with female heirs. At any rate there is no scope for doubt that the legislature has put some restrictions on the right of the female heirs to claim partition of the dwelling house. The further question is whether the expression "until male members choose to divide their respective shares therein", contemplates the existence of a plurality of male heirs or whether the restriction imposed in S.23 has application when there is only a single male heir entitled to seek partition. The point is dealt within Hindu Law by Mulla (14th Edition page 943) as follows: "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 context 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 restriction will cease to operate on the death of the last of such male heirs of the intestate." 9. There is some difference of judicial opinion regarding the scope of the section in cases where there is only a single male member. Hemalata v. Umasankari, AIR 1975 Orissa 208, is a case disposed of by a Division Bench of the Orissa High Court. That case related to the division of certain properties belonging to a Hindu who died leaving his widow, a son and a daughter. The widow filed a suit for partition. While that was pending the widow and son died and their legal representatives were impleaded. The daughter got herself transposed as the plaintiff. A question arose whether the property which was a dwelling house could be divided in view of S.23 of the Hindu Succession Act. The High Court held: "Where there is a single male heir, the right to claim partition of the dwelling house by a female heir is not excluded. The expression "the male heirs" towards the last part of the main section furnishes the clue to the meaning of the section. If there are more than one male heir then there is a possibility of anyone 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 male heir, there is no possibility of that male heir claiming any partition against another male here. If there are more than one male heir then there is a possibility of anyone 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 male heir, there is no possibility of that male heir claiming any partition against another male here. We are therefore clearly of opinion that where there is a single male heir and others are female heirs then those female heirs are entitled to claim partition.' 10. A different view however is taken by the Calcutta High Court in Arun Kumar v. Jnanendra, AIR 1975 Calcutta 232. In that case also the point involved was whether a transferee of the female heirs is entitled to claim partition of the dwelling house where the members of the family lived when the male heir does not choose to divide his share therein. The deceased in that case has two sons and three daughters. The appellant, one of the sons and his mother transferred their respective shares to the first respondent, the other son of the deceased who thus, became entitled to a 1/2 share in the dwelling house. The two daughters gifted their respective 1/6 shares in the dwelling house to the appellant. The appellant who thus got 1/3 share in the property of the deceased instituted a suit for partition. The first respondent and his younger sister the second respondent contended that the appellant had no right to claim partition of the dwelling house and as such the suit was not maintainable. The matter finally came before the High Court. A Division Bench of the High Court held that eventhough a daughter has a transferable interest in the property of her father and the transferee is entitled to bring a suit for partition, S.23 placed some restriction regarding the right of the daughter to claim her share in the dwelling house. The following observations are pertinent: "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 heirs. 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. 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 die 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 not 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 that the section is inapplicable. The rule which has been laid down by S.23 clearly indicates 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 there is only one male heir. If the male heir chooses to divide the dwelling house, undoubtedly the female heir or heirs will he entitled to claim partition, but so long as no such choice is actually exercised the female heirs are debarred from claiming partition." 11. In a recent case decided by the Madras High Court, Mookkammal v. Chitravadiyammal, AIR 1980 Madras 243, the deceased died leaving a son and a daughter. The male member sold his right to a stranger. In a suit for partition filed by the daughter against the stranger, the bar of S.23 of the Act was put forward as a defence. In a recent case decided by the Madras High Court, Mookkammal v. Chitravadiyammal, AIR 1980 Madras 243, the deceased died leaving a son and a daughter. The male member sold his right to a stranger. In a suit for partition filed by the daughter against the stranger, the bar of S.23 of the Act was put forward as a defence. Dealing with the section Ramaprasad Rao C. J. observed: "S.23 of the Hindu Succession Act 1956 appearing in the chain of sections of the codified Hindu Law is intended to respect one of the ancient Hindu tenants which treasured the dwelling house of the family as an impartible asset as between a female member and a male member. In order to perpetuate that memorable intention of Hindu families, Parliament took that auspicious aspect also into consideration while codifying the Hindu Law. It is only in this perspective that S.23 of the Hindu Succession Act 1956 has to be understood." 12. It was however held in that case that since the sole male member sold his moiety in the dwelling house by introducing a stranger into it, the building lost its characteristics as a dwelling house and became an ordinary property. S.23 would not in such cases be a bar for the female member from suing for partition. 13. In the foregoing paragraphs I have dealt with the principles underlying S.23 of the Act and referred to the decisions dealing with the section. In my view the reasoning in Hemalata v. Umasankari, AIR 1975 Orissa 208, does not take into account that S.23 of the Act was enacted out of respect for the sentiments of the male heirs and to make the family house available for their residence. Considering the background of the section, it does not matter that there is only a single male heir. So long as he chooses to live in the dwelling house the female heirs may not be entitled to seek partition. It is noted that under S.23 the option to keep the property as a dwelling house is personal to the male heirs and therefore it is available only till their death. The right ceases if the male heirs or their families cease to use the whole property as a dwelling house and permit a stranger to occupy any portion of it. The right ceases if the male heirs or their families cease to use the whole property as a dwelling house and permit a stranger to occupy any portion of it. On the death of the male heirs of the deceased or on the dwelling house ceasing to be wholly occupied by the male heirs and the members of their family or on the male heirs choosing to divide the dwelling house, the female heirs or their transferees become entitled to their share therein. The interpretation given to the section in the treatises on Hindu Law referred to and by the Calcutta High Court in Arun Kumar v. Jnanendra, AIR 1975 Calcutta 232, is in the context more reasonable. The plaintiff's suit for a division of the plaint schedule property being premature is not maintainable. It was rightly dismissed by the courts below. The Second Appeal will also stand dismissed. In the circumstances the parties will bear their respective costs.