The Act of 1956 has introduced simultaneous heirship for the first time. Thus, the sons, widowed daughter-in-law, daughter and mother can succeed together. It would be hard upon the sons if these female heirs are allowed to demand partition of dwelling house by metes and bounds. So s. 23 confers upon the female heirs a right of residence.
In the case of the daughters even this right is restricted to such of the female has are unmarried or are widows or have been deserted by or separated from the husband. So far as the right to partition is concerned the female heirs cannot demand that right but have to wait until the male heirs divide their respective share.
When the division takes place in that way, they too can secure their respective shares by partition. It may, however, be noted that if part of the house is let out to tenants, the restriction on the female heirs does not apply. The female heir can ask for partition at any time in such a case Usha v. Smriti, AIR 1988 Cal. 115.
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ADVERTISEMENTS:
A female heir (daughter) cannot seek partition of the dwelling house left by the deceased until the male heirs (sons) divide their shares. In Surjya Kumar v. Maya Dutta, AIR 1982 Cal. 222, the question arose whether this provision applies even when there is only one male heir.
It was held that in such a case also the Section applies and the female heirs cannot ask for partition. No doubt in such a case there is no prospect of the male heirs effecting a partition as there is only one male heir.
However when a son is born to the male heir there can be a partition between the male heirs and till then the female heir cannot ask for partition. It is doubtful whether the section intended such a result. The section uses the words “male heirs”. Though under the General Clauses Act plural includes the singular, that rule is applicable only if there is no repugnancy in the context.
ADVERTISEMENTS:
The Calcutta High Court, in Surjya Kumar v. Maya Dutta, AIR 1982 Cal. 222, invoked the rule that “plural includes the singular” and applied s. 23 even when there is only one son and daughters. The daughters cannot ask for partition of the dwelling house even in such a case.
This is the view also of the Madras High Court: Janabai v. Palani, AIR 1981 Mad. 62. The contrary view is taken by the Bombay High Court: Anant Gopalrao v. Janakibai, AIR 1984 Bom. 319 and the Orissa High Court: Hemalata Dei v. Umasankari, AIR 1975 Ori. 208.
In Narashimaha Murthy v. Susheelabai, AIR 1996 SC 1826, the court held that the prohibition under s. 23 over female heirs to claim partition of a dwelling house is not applicable in case only one male heir when the house was let out to a stranger and the male heir is not in possession.
The above case was followed in Purushottam Behera v. Rangapati Barik, AIR 1999 AIHC 4760 (Ori.).