Chapter 6

Family and dwelling house

Introduction to undivided family

The expression "undivided family" used in the Section 4 of the Partition Act has wider interpretation and is not confined to Hindu undivided family. The expression is applicable to property enjoyed by members of family as co-owners. Neither the fact that the property is situated in a metropolitan city nor the circumstances that there are several commercial establishments near the house will destroy its character as a dwelling house.518

Female member

Section 23 of Hindu Succession Act, 1956 is a special provision in the Act restraining the partition of dwelling houses at the instance of the female heir. It does not restrict nor in any way affects the devolution or acquisition of the property by inheritance by a female heir. The question of partition of a dwelling house at the instance of the female heir would arise only after such female heir or heirs specified in Class-I acquire(s) interest therein simultaneously with male heir or heirs. The inheritance takes place simultaneously on the death of the last holder of the property and after acquiring an interest by such process, the female heir becomes entitled to exercise all acts of ownership, which includes the rights to claim partition against other co-owners who simultaneously inherit the properties. Section 23 postpones the right of a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. Postponement of exercise of such right seems to be to prevent fragmentation or disintegration of a family dwelling house at the instance of the female heirs until the male heirs choose to do so. It is pertinent to note that the postponement of a right to claim partition at the instance of the female heir does not affect her title and ownership in any manner whatsoever and in the event she dies before partition is effected, her right in the property passes on to her legal heirs. In other words, Section 23 is only a bar imposed on a female heir to claim partition of the property until a contingency happens, namely, the male heirs who had inherited along with her decide to partition the dwelling house.519

The right of a female heir to seek partition of a dwelling house does not arise until the male heirs have chosen to divide their respective shares in the dwelling house. The cause of action is founded upon the right to seek the relief. The cause of action is non-existent until the right has arisen. Partition is being sought, of the dwelling house, by the plaintiff, who is one of the male heirs, has got a right to seek partition. Since he has expressed his intention to partition the dwelling house the same has to be partitioned, in which case female heirs also will be entitled to get their respective shares.520 Thus by adoption of Section 23, right to claim partition by a female heir can be postponed only if there is more than one male heir.521

Single male heir

The restriction imposed by Section 23 of Hindu Succession Act, has been intended to prevent partition of a dwelling house wholly occupied by the members of the family until the male heirs choose to divide their respective sharers therein. The legislature by using the expression "male heirs" which is in plural and again using the expression "their respective shares" have rather expressed their intention not to apply the restriction in the case of single male heir inheriting along with one or more female heirs. The purpose of the legislature would rather be clear by approaching the matter from another angle. In case of a single male heir inheriting simultaneously with one or more female heirs it would not be a postponement of a right to claim partition at the instance of the female heir, but it would be a complete denial of such a right, as there would be no occasion for the male heir to claim share against any other male heir (as there are none) and in the event the male heir demands partition from the female heir or heirs, the question of claiming partition by the female heirs would not arise as they would be entitled to a share on partition at the instance of the male heir. The legislature having given the female heirs absolute right by inheritance by one hand could not have taken away the same by the other.522

In case of property descending on more than one male heir along with one or more female heirs, the female heir or heirs would get her or their shares partitioned as and when the male heirs choose to divide their respective shares in the dwelling house, whereas in case of a single male heir inheriting the dwelling house with one or more female heirs, the latter would remain as owner/owners in pen and paper but cannot exercise any act of ownership except residing therein which right in rare cases can be rarely exercised. Further complications may arise if the single male heir transfers the dwelling house to a stranger in which event the restrictions for joint possession on the part of the transferee may not apply in all cases, thus depriving the female heir to exercise her right of residence in such circumstances.523

Direction for sale

When two brothers were having equal shares in the immovable property but the property was incapable of being divided into two equal halves, it was ordered that the property be put to sale so that maximum amount could be realised which will be in the interest of both the brothers as they would be the recipients of one-half share each of such receipts.524