Smt. D.M. Jayamma vs Smt. Muniyamma and Others

Hari Nath Tilhari, J.-This is plaintiff''s appeal arising from the judgment and decree dated 27th February, 1997, passed by Sri Sudhakar A. Pandit, I Additional Civil Judge, Bangalore Rural District, Bangalore, in Original Suit No. 76 of 1995, whereby the Trial Court had decreed the plaintiff''s suit holding that plaintiff-appellant has been entitled to 1/18th share in the properties of items 1 to 3, of plaint Schedule properties.

The Court further directed that the Deputy Commissioner to proceed under Section 54 of the CPC. In respect of item 4, the Trial Court held shall be determined in the suit when it is filed by either defendant 4, in view of Section 23 of the Hindu Succession Act, 1956.

The plaintiff in the suit claimed that the father of the plaintiff-appellant and respondents 2 to 5 and husband of respondent 1 i.e., Sri Mune Gowda, died sometimes in the year 1986-87. He had three wives one Jayamma and the other two wives bearing same name, namely Muniyamma. Plaintiff alleged that Jayamma died earlier to the filing of the suit. The plaintiff-appellant asserted that plaintiff''s mother Smt. Muniyamma had also died 30 years age, i.e., during the lifetime of Mune Gowda and the first wife Jayamma had also died during the lifetime of Mune Gowda. It was also stated that at the time of his death, Mune Gowda left the appellant and respondents 1 to 5, as heirs of Mune Gowda.

It has been the plaintiff''s case that the plaint ''A'' schedule properties and also ''B'' Schedule properties were ancestral properties and also self-acquired properties of Mune Gowda and plaintiff-appellant claimed to be entitled to 1/2 share therein. The plaintiff-appellant asserted that plaintiff claimed 1/2 share and demanded for the partition and separate possession of her share in suit properties, but defendant 1, refused to give her share, so the need for the filing of the suit did arose. The plaintiff claimed one half share and its separate possession out of the suit properties.

The defendants admitted the relationship and have submitted that properties in suit were the properties which their father Mune Gowda had got after partition between Mune Gowda and Mune Gowda''s brother, as they were all ancestral properties from grandfather.

Defendants denied that there was any self-acquired property of late Mune Gowda.

Defendants asserted that plaintiff-appellant having been married more than 25 years ago, she had no right or interest in or over the ancestral joint family properties. They also asserted that there is no such properties in existence as mentioned in B Schedule.

On the basis of the pleadings of the parties, the Trial Court framed the following issues:

(1) Whether the plaintiff proves that the plaint schedule properties are also self-acquired properties of the plaintiff''s father Sri late Mune Gowda?

(2) Whether the plaintiff proves that she is legally entitled to the share in any of the plaint schedule properties?

(3) Whether plaintiff proves that there exist B Schedule properties referred in the plaint schedule?

(4) Whether defendants prove that suit is bad for non-joinder of any necessary parties?

(5) Whether plaintiff is entitled for share in the plaint schedule properties?

(6) If so, what is the share for which the plaintiff is entitled?

(7) What order or decree?

The Trial Court after having appreciated the evidence, held that as per own admission of plaintiff in paragraphs 3 and 9 of her deposition, all the plaint schedule properties are and have been the ancestral property of Mune Gowda, since they were acquired by him through the grandfather and the plaintiff further stated that she did not know if her father had purchased any properties in his own right as self acquired ones.

Considering this evidence, the Trial Court held that all the properties in ''A'' Schedule were ancestral properties and not self-acquired properties, as there is no evidence to show that either or anyone in such properties of the plaintiff''s father is a self-acquired property, on the other hand plaintiff has affirmed that all the plaint schedule properties are ancestral properties and hence the Court held that ''A'' Schedule properties to be ancestral properties.

As regards Schedule ''B'' properties, the Court held that there is no evidence to prove that there exist Schedule B properties and it further opined that, in view of the memo dated 21-2-1997, filed by plaintiff stating that plaintiff is not claiming ''B'' Schedule properties and the Issue 3, was answered in the negative. The plaintiff had also given up her claim regarding mesne profits, so the issue regarding that was answered against the plaintiff.

Issue 4: Whether defendants prove that suit is bad for non-joinder of any parties?

The issue has been answered in the negative and it has been held that defendants have failed to establish that there was any other person to be impleaded and has not been impleaded. The Trial Court held that the plaintiff was entitled to 1/18th share in the suit scheduled properties'' items 1 to 3, or plaint ''A'' Schedule properties and as regards Item 4, it being a dwelling or residential house, when the suit is filed later on, in view of Section 23, the partition thereof can be done.

Feeling aggrieved from the judgment and decree of the lower Appellate Court, the plaintiff-appellant has come up before this Court by this appeal.

Learned Counsel for the appellant raised two contentions, firstly the learned Counsel contended that the plaintiff''s share which has been held to be 1/18th is erroneous in law and the Court below wrongly applied Section 6-A of the Act to the present case. Appellant''s learned Counsel contended that the suit should have been decreed for one-half of the share or at least for share higher than 1/18th.

Learned Counsel further submitted that Court below illegally refused the decree in the suit for partition with respect to Item 4 and wrongly applied Section 23 of the Hindu Succession Act to the facts of the present case. Learned Counsel for the respondents contended that plaintiff has not been entitled to get one half share. Plaintiff-daughter cannot be treated to be co-parcener and Hindu Succession (Karnataka Amendment) Act of 1990, not being retrospective, in operation, plaintiff will only be entitled to a share in the share of the father, had there been a partition at the time or immediately before the death of Mune Gowda, with the co-parcener son, respondent 5. Learned Counsel for the respondents contended that plaintiff''s share will not be more than 1/12th in the property and the female heirs may get 1/12th each, only the defendants-respondents'' Counsel contended the share of respondent 5, may be 7/12th. Respondents'' Counsel submitted that the house is a dwelling house. The daughters have been entitled to a share in dwelling house, but daughters as female heirs cannot claim partition of the dwelling house till the male heir i.e. The respondent i.e., son decides to get the partition effected of dwelling house as per Section 23 of the Hindu Succession Act.

I have applied my mind to the above contentions raised by the learned Counsels for the parties.

The dispute confines between the parties, primarily with respect to shares, and also with reference to the question of right to seek partition of item 4 i.e., the house which is said to be dwelling house.

As regards the share, the inheritance takes place or opens on the death and the law as operating on the death is to govern and no amendment in the law will affect the inheritance, i.e., succession, unless amendment is retrospectively made, I mean to say that in the present case Mune Gowda had died sometimes in 1986-87, before the Karnataka Amendment Act, 1990, i.e., the Hindu Succession (Karnataka Amendment) Act, 1990 which was published in Gazette, Extraordinary on 30th July, 1994.

Sub-section (2) of Section 1 which deals with the commencement of the Act called the Hindu Succession (Karnataka Amendment) Act, 1990, reads as under:

Short title and commencement.-(1)........................;

(2) It shall come into force at once.

The amending section is 2, whereby Section 6-A to Section 6-C have been inserted in the Act, after Section 6 of the Hindu Succession Act, 1956.

The amending Section 2 reads as under:

"Insertion of new sections to Central Act XXX of 1956.-In the Hindu Succession Act, 1956 (Central Act XXX of 1956), after Section 6, the following shall be inserted and thereafter Sections 6-A, 6-B and 6-C have been provided". It is well-settled principle of law, that ordinarily an amendment of law effecting, substantive right is prospective, unless the Legislature expressly or by necessary implication makes it retrospective.

Section 5 of the Karnataka General Clauses Act, 1899, reads as under:

"5. Coming into operation of enactments.-(1) Where any Mysore Act or Karnataka Act is not expressed to come into operation on a particular day, then.-

(i) in the case of a Mysore Act made before the commencement of the constitution, it shall be deemed to have come into operation on the day on which it received the assent of the Maharaja;

(ii) in the case of Mysore Act made after the commencement of the Constitution and before the commencement of the Mysore General Clauses (Amendment) Act, 1953, it shall be deemed to have come into operation on the day on which it received the assent of the Rajpramukh or the President, as the case may require;

(iii) in the case of a Mysore Act made after the commencement of the Mysore General Clauses (Amendment) Act, 1953, and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall be deemed to have come into operation on the day on which it received the assent of Rajpramukh or the President, as the case may require, is first published in the Official Gazette.

(iv) in the case of Karnataka Act, it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the Official Gazette.

(2) Unless the contrary is expressed, an Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.

(3) In every Act referred to in clause (iii) or clause (iv) of sub-section (1), the date of publication in the Official Gazette shall be printed either above or below the title of the Act and shall form part of the Act".

A reading of this Section 5, sub-section (1), per se reveals that the Act shall be deemed to come into operation on the day on which it has received the assent of the Rajpramukh or the President, as the case may, and in cases where a Mysore Act is made after the commencement of the Constitution; after the commencement of the Mysore General Clauses (Amendment) Act, 1953 and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall provide that this Act shall be deemed to come into operation on the day on which it received the assent thereby of the Rajpramukh or the President, as the case may require, is first published in the Official Gazette.

Under sub-section (1), clause (iv) of Section 5, it has been provided that Karnataka Act shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the Official Gazette. Sub-section (2) of Section 5, very clearly provides that unless the contrary intention is expressed, an act shall be construed to have come into operation only immediately on the expiration of the day preceding its commencement.

A reading of sub-section (2) of Section 5 of the Karnataka General Clauses Act, clearly reveals that, ordinarily an act is to be presumed to come into operation prospectively, except where a contrary intention is expressed by the legislature in the Act making it retrospective generally.

In the present case, firstly sub-section (2) does not provide that this Karnataka Act 23 of 1994, will come into operation retrospectively, it provides that it has come into operation prospectively.

Further Section 2 of the Hindu Succession (Karnataka Amendment) Act, 1990, by which Section 6-A, Section 6-B and Section 6-C, have been inserted in the principal Act, namely, Hindu Succession Act, 1956, clearly reveals and provides by use of expression ''the following sections shall be inserted'', that is, amendment introduced thereby is prospective and these sections will operate prospectively and not retrospectively. In this view of the matter, in my opinion the Trial Court erred in law in applying Section 6-A to the present case as the succession had opened prior to coming into force of this Act, i.e., Hindu Succession (Karnataka Amendment) Act of 1990 which is described as Karnataka Act 23 of 1994.

When the succession opened on the death of Mune Gowda, Section 6 of the principal Act was in operation and under Section 6 of the principal Act, it has been provided with reference to devolution of interest in co-parcenary properties, as how it will take place, i.e., mode or manner of its devolution. Section 6 of the principal Act reads as under:

"6. Devolution of interest in co-parcenary property.-When a male Hindu dies after the commencement of this act having at the time of his death an interest in a Mitakshara co-parcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara Coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestancy a share in the interest referred to the rein".

At the time of the death of Mune Gowda, his daughters were not the co-parceners and under Section 6, as regards the properties being ancestral one the legal fiction did apply to determine the share of the father. At that time there were two co-parceners, namely Mune Gowda and respondent 5 and Mune Gowda had left at the time of his death, in addition to the one male heir, i.e., respondent 5, five female heirs, namely plaintiff-appellant and respondents 1 to 4. In this situation, applying the legal fiction to the effect that there had been a partition either immediately before the death or at the time of death of Mune Gowda and one half share in coparcenary property did go to respondent 5, and other one half was taken to be share and interest in ancestral property of Mune Gowda the deceased. This one half which Mune Gowda had in Schedule ''A'' property or the ancestral properties had to be further divided amongst the heirs of Mune Gowda, viz., plaintiff-appellant and defendants-respondents in equal share, that is 1/6th of one half each which is equal to 1/12th each.

Thus, the share in the suit properties devolved on these heirs in following proportion of shares on the death of Mune Gowda, namely, 7/12th upon the son of Mune Gowda, namely, respondent 5, while plaintiff-appellant and defendants-respondents 1 to 4 each inherited 1/12th share in those properties. In my opinion the Trial Court mis-applying the provisions of Section 6-A, illegally held that the share of plaintiff was 1/18th, in fact plaintiff-appellant''s share in the suit schedule property has been 1/12th and not 1/18th. The Trial Court''s finding as such is modified and it is held than plaintiff-appellants'' share will be 1/12th.

Thus considered I find the share of the plaintiff may not be one half, but it will not be 1/18th. The plaintiff''s-appellant share would be 1/12th in the suit schedule properties'' Items 1 to 4.

It has been contended on behalf of the plaintiff-appellant that the Trial Court erred in law in taking the view that the decree for partition cannot be granted with respect of item 4 of the plaint ''A'' schedule properties i.e., a residential house or dwelling house as according to it, Section 23 of the Hindu Succession Act, 1956 provides bar against the same to the effect that female heirs cannot claim partition of the dwelling house, nor will their right to claim partition of the dwelling house arise which is wholly occupied by members of his or her family until the male heirs choose to divide their respective shares therein and in ordering or directing that share in respect of item 4 of plaint ''A'' schedule properties shall be determined in partition suit to be filed by defendant 4 on the bar of Section 23 of the Hindu Succession Act, ceasing to operate and same is erroneous in law. The learned Counsel for the plaintiff-appellant contended that the application for bar of Section 23 of the Hindu Succession Act, it has to be shown among the items of the properties left by a Hindu male dyeing intestate there is dwelling house also and is wholly in occupation of the family of deceased, it has to be established as well that he left male and female heirs of Class I of the Schedule to the Hindu Succession Act and the male heirs must be in plural i.e., two or more and that the dwelling house should be shown to have been wholly occupied by members of the Hindu dyeing intestate. The learned Counsel for the plaintiff-appellant contended that even there is only one male heir and female heirs either one or more both of Class I, then bar under Section 23 of the Hindu Succession Act, will not apply. As in the present case, the male heir of Class I has been only one i.e., respondent 5. So, there being only one male heir and not being more than one male heir, there will be no question of male heirs choosing to divide their respective shares. So, the bar of Section 23 of the Hindu Succession Act, could not be applied and the Court below has wrongly applied the same.

The learned Counsel for the plaintiff-appellant, in this connection made reference to the following decisions viz., in

Hemalata Dei v Umasankari Moharana and Others, AIR 1975 Ori. 208;

Mahanti Matyalu v Oluru Appanama and Others, AIR 1993 Ori. 36 (FB);

Kariyavva and Another v Hanumantappa Mallurappa,1984(1) Kar. L.J. 273 (DB);

Basettappa Bangareppa Bangarshettar v Smt. Irawwa Kom. Totappa Pattanshetti and Others, AIR 1988 Kant. 174.

The learned Counsel for the plaintiff-appellant further contended that there is no proof that the dwelling house is wholly occupied by the members of the family of the deceased Hindu dyeing intestate.

The above contentions of the learned Counsel for the plaintiff-appellant have hotly been contested by the defendants-respondents particularly respondent 4.

The learned Counsel for the respondents contended that there is no dispute item 4 of the plaint ''A'' schedule properties is a residential house and as per the plaint allegations read with schedule and with reference to item 4, it is mentioned that it is a residential house or dwelling house. He contended that the plaintiff-appellant has no where asserted in the pleadings that it is not wholly occupied by the members of the family of the plaintiff''s father and the father of other defendants-respondents i.e., a person who died intestate. The case of the defendants-respondents is that item 4 is a residential house and is in occupation of the defendants in the suit i.e., the family member of the deceased. The learned Counsel further submitted that the plaintiff-appellant has no where pressed any issue, nor the plaintiff-appellant has asserted any where in the plaint that part of the house is in use and occupation of the strangers to the family. This being the position, the house in the suit is wholly in occupation of the members of the family of the deceased and none else. That being the position, the learned Counsel contended that even if there is only one male heir of Class I is alive, or being left by the deceased, Section 23 of the Hindu Succession Act will apply and has rightly been held to apply.

The learned Counsel for the defendants-respondents, in this connection, made reference to the following decisions viz., in

Surjya Kumar Das v Smt. Maya Dutta, AIR 1982 Cal. 222;

Janabai Ammal alias Gunabooshani v T.A.S. Palani Mudaliar and Others, AIR 1981 Mad. 62;

Punwasi v Smt. Sukha Devi, AIR 1986 All. 139.

The learned Counsel submitted that the above decisions clearly establish that restriction under Section 23 of the Hindu Succession Act, is applicable even to cases where there is only one male heir of Class I of the Hindu intestate.

After the case was taken up for being spoken to further on this point and the decision in the case of Narashimaha Murthy v Smt. Susheelabai and Others, AIR 1996 SC 1826, was brought to the notice of the learned Counsels appearing for the parties.

The learned Counsel for the plaintiff-appelalnt relying on the observations made in paragraph 15 of the judgment of their Lordships of the Supreme Court contended and tried to contend that if there are morethan one member as in the present case, then there are other items of properties in addition to the dwelling house. The said dwelling house in entirety may be allotted to respondent 5 or the share of the plaintiff-appellant in the dwelling house may be adjusted with the share of the male members or other members in other properties other than the dwelling house and the entire dwelling house may be allotted to the share of the son by way of adjustment or by way of some adjustment inter se of the parties by agreement inter se, at the time of final decree proceedings and in that case there will be no question of actual division or partition by meets and bound of item 4 of the plaint ''A'' schedule properties i.e., the dwelling house. In case of adjustment of shares of the female members with the share of male member in the other properties, then in that case, the whole dwelling house may go to the male member. In that event, there is nothing and there appears no intention of the framers of legislation to postpone the benefit of inheritance to the female heirs. With reference to all the items of the properties mentioned in the plaint as there will be no need for actual partition or division of the dwelling house itself. The learned Counsel contended that even female heirs are not debarred from transferring or selling their shares in the property succeeded by them including the dwelling house. So, if the male heir or heirs agree will be made to agree to purchase the share of the female heir in the dwelling house there will arise no occasion for postponement of female heir''s right to enjoy the benefit of succession to the share, as there will be no need to divide the residential or dwelling house on the one hand and amity of relationship will continue and in practical sense female heir may not be deprived of the right to enjoy the benefit of succession or share in the properties left by the Hindu dyeing intestate and then it will be in consonance with the principle of justice, equity and good conscience on the one hand and on the other hand it may preserve the dwelling house as undivided and belonging to the male heir.

I have applied my mind to the above contentions advanced by the learned Counsels appearing for the parties.

As regards the principle of law and bar of Section 23, it will be appropriate to quote Section 23 of the Hindu Succession Act, 1956 which reads as under:

"23. Special provision respecting dwelling houses.-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 this 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".

Section 23 of the Hindu Succession Act, 1956 will apply or be made to apply to the cases where a Hindu dyeing intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and among the properties left by him or her is also dwelling house and further that dwelling house is wholly occupied by members of his or her family, then in that case the Section 23 of the Act provides that even though female heirs are entitled to a share in the properties left by him or her, but so far as the dwelling house wholly occupied by the members of the family of the Hindu intestate is concerned irrespective of the entitlement of share and right in the property, the section provides that female heir as mentioned above her right to claim partition of the dwelling house will not arise and remains suspended until the male heirs choose to divide their respective shares therein. No doubt, the female heir has been held to be entitled to a right of residence in the dwelling house only and in case she is a daughter she may have right of residence therein only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

So far as the question whether Section 23 or bar under Section 23 of the Hindu Succession Act, will apply to cases where a Hindu dyeing intestate has left surviving him one male heir and more than one female heirs of Class I there has been conflict of opinion and controversy and there have been two sets of opinions among the High Courts in India. It was held by the High Courts of Orissa, Karnataka, Bombay and Gujarat relying on literal construction that bar shall apply only if there is plurality of male heirs of Class I left by a Hindu intestate along with the female heirs and it will not apply where there is only one male heir as contended by Sri T.H. Chikkavenkate Gowda, learned Counsel for the plaintiff-appellant.

While according to the other set of cases relied on by Sri Purushotham for M/s. Mylaraiah Associates, learned Counsel for the defendants-respondents viz., the High Courts of Allahabad, Calcutta and Madras have no doubt laid down that the section will apply even in cases where a Hindu dyeing intestate-leaving any dwelling house or leaving the properties including the dwelling house occupied by the members of the family of the deceased, leaves along with the female heirs of Class I, a single male heirs of Class I, and unless he does not exercise choise for partition of the dwelling house, bar of Section 23 of the Hindu Succession Act, will apply. In other words, where there is single male heir or more than one male heir along with the female heir or heirs the bar under Section 23 of the Hindu Succession Act will apply in both the cases. Thus, this set of cases referred in the earlier part of the judgment have been referred by the learned Counsel for the defendants-respondents. This controversy appears to have been settled by their Lordships of the Supreme Court declaring the law on the point in the case of Narashimaha Murthy. In this case, the Supreme Court appears to have adopted and approved the approach to Section 23 of the Hindu Succession Act, as made by the High Courts of Allahabad, Calcutta and Madras as observed instead of approving the view expressed by this Court (i.e., Karnataka) or Bombay, Orissa or Gujarat High Courts.

After detail consideration of the provisions of law and the cases decided by different High Courts on the point, as well as after taking into consideration Section 13(2) of the General Clauses Act, 1897, their Lordships of the Supreme Court in paragraph 20 of the report laid down as under:

"20. The above consideration would indicate that the Legislature intended that during the lifetime of the surviving male heir(s) of the deceased Hindu intestate, he/they should live in the parental dwelling house as partition thereof in the behest of the female heir would render the male heir homeless shelterless. Obviously to prevent such hardship and unjust situations, 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 Section 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 reserving 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 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 lifetime of the sole male heir of the Hindu intestate or until he chooses to divide and gives a share 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 and its companion Courts is consistent with justice, equity, and good conscience and we approve of it. We accordingly held that Section 23 applies and prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life 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".

In paragraph 33 of the said report, Hon''ble Mr. Justice Punchhi has been pleased to observe as under:

"The literal interpretation the provision refers to male heirs in the plural and unless they chose to divide their respective shares in the dwelling house, female heirs have no right to claim partition. In that sense there cannot be a division even when their is a single male. It would always be necessary to have more than one male heir. One way to look at it is that if there is one male heir, the section is inapplicable, which means that a single male heir cannot resist female heir''s claim to partition. This would obviously bring unjust results an intendment least conceived of as the underlying idea of maintenance of status quo would go to the winds. This does not seem to have been desired while enacting the special provision. It looks nebulous that if there are two males partition at the instance of female heir could be resisted, but if there is one male, it would not. The emphasis on the section is to preserve a dwelling house as long as it is wholly occupied by some or all members of the intestate''s family which includes male or males. Understood in this manner, the language in plural with reference to male heir would have to be read in singular with the aid of the provisions of the General Clauses Act. It would thus read to mean that when there is a single male heir, unless he chooses to take out his share from the dwelling house, the female heirs cannot claim partition against him. It cannot be forgotten that in the Hindu male oriented society, where be getting of a son was a religious obligation for the fulfillment of which Hindus have even been resorting to adoptions, it could not be visualized that it was intended that the single male heir should be worse off unless he had a supportive second male as a Class I heir. The provision would have to be interpreted in such manner that it carries forward the spirit behind it. The second question would thus have to be answered in favour of the proposition holding that where a Hindu intestate leaves surviving him a single male heir and one or more female heirs specified in Class I of the Schedule, the provisions of Section 23 keep attracted to maintain the dwelling house impartible as in the case of more than one male heir, subject to the right of re-entry and residence of the female heirs so entitled, till such time the single male heirs chooses to separate his share; this right of his being personal to him, neither transferable nor heritable".

In view of this decision, the earlier decisions of the other High Courts viz., that of Karnataka High Court, Orissa High Court, Bombay High Court, Gujarat High Court and others taking a contrary view appears to have been overruled as per paragraph 20 of that judgment and that being the law declared by the Hon''ble Supreme Court, it is now settled that bar of provisions of Section 23 creating bar against the claim of partition of the dwelling house will apply even to cases where there is single male heir left by Hindu intestate along with female heir/heirs.

In the present case, as pleadings of the plaintiff and defendants reveal that item 4 of the plaint schedule properties is a residential building constructed in stone slabs and Mangalore tiles to an extent of 15 ankanas in Sy. No. 73, Katha No. 31 situated at Dasagondanahalli Village, Rajaghatta Post, Doddaballapur Taluk. So, according the plaintiff''s case it is a residential house. In the written statement at paragraph 6 also, it has been stated that there is only residential house where the defendants are residing. Thus, the pleadings indicate that the house in Sy. No. 73 is a residential house admittedly the defendants do reside. The position of the house appears to be from the statement of D.W. 1 -where he is residing measures 15'' x 20'' and it is situated in Sy. No. 73. D.W. 2 has deposed about the house as under:

"The said house belonged to the said Mune Gowda measures 20 ft. x 12 ft.".

Looking to the situation of the house and the averments in the plaint and written statement as well as the depositions of D.Ws. 1 and 2 clearly reveal that item 4 of the plaint schedule properties is a residential house used by the heirs of Mune Gowda. That being the position and in view of the position of law as laid in Narashimaha Murthy''s case, even if one male heir of the deceased Hindu intestate along with the female heir/heirs right to share or inheritance has not been suspended. The shares will devolve on the heirs as per law, but so far as the dwelling house is concerned the female heir/heirs right to claim partition of their shares in the residential house has been suspended or has been kept in abeyance and the dwelling house can''t be partitioned at the instance of female heirs, until male heir/heirs choose to partition.

The learned Counsel for the plaintiff-appellant contended that if the female heir can sell her share, the Trial Court may be directed to consider the question of adjustment of share or equity of share of the female heir in the dwelling house by exchange in share of the male heir in other properties i.e., by way of adjustment and reference has been made in this connection to the following passage in Narashimaha Murthy''s case:

"Take another illustration where in addition to the dwelling house other properties are available for partition which may, be allotted to the share of the sister or sisters, while the dwelling house at the option of the son may be allotted towards his share. In these events, the need to postpone succession may not arise".

As regards this last contention, there does not appear to be any specific provision debarring the female heir from getting her share in the dwelling house or its equity adjusted with the agreement of male or other heirs. No doubt for the parties to the partition of the properties including the dwelling house, it always open to them if they agree to adjust the female heir''s share in the dwelling house from the share of male heir in the other properties by mutual agreement and if any such mutual agreement is arrived at and it does not affect the actual division of the dwelling house, then that will always been open. Any adjustment of interest of the parties in the dwelling house or other properties without destroying the dwelling house as a unit itself and its identity cannot be said to be barred by Section 23, because in that case actually the dwelling house will not be partitioned. Where such adjustment or agreement can''t be arrived at and the female heir wants the instrumentality of the Court to divide the dwelling or residential house female heir can''t claim and get partition of her share in the dwelling house till the male heir chooses to partition it. In this view of the matter, the appeal is liable to be allowed and is hereby allowed.

It is held that the plaintiff-appellant''s share in all the properties i.e., items 1 to 4 of the plaint schedule properties will be 1/12th and the finding of the Court below that it would be 1/18th is not correct. Hence, the judgment and decree of the Trial Court is to and shall stand modified to this extent and the plaintiff-appellant''s share in all the properties is hereby held to be 1/12th and similarly the shares of other female heirs will be 1/12th each in items 1 to 4 of the plaint ''A'' schedule properties and while the share of the sole male heir i.e., respondent 5, the son would be 7/12th. The plaintiff-appellant is no doubt entitled to get her share divided by metes and bounds of items 1 to 3 of the plaint ''A'' schedule properties. The plaintiff-appellant and other female heirs till the male heir choose to divide his share in the dwelling house the female heirs are not entitled to claim division and separation of their 1/12th share each in the dwelling or residential house i.e., item 4 of the plaint ''A'' schedule properties. But, if the plaintiff-appellant and defendants-respondents including defendants 1 to 5 choose to adjust the shares of female heirs in the dwelling house from the other items of the properties i.e., the items other than the dwelling house by adjustment of equity then there can be an adjustment without there being any actual division or partition of item 4 of the plaint ''A'' Schedule properties i.e., the dwelling house. But, if no such adjustment of equities and agreement can be arrived at, then the female heirs'' right to claim partition of their shares with reference to the dwelling house by actual division of the dwelling house can''t be granted as it will remain suspended and in abeyance irrespective of the fact that the female heirs will have to wait till the male heir(s) chooses to partition his share with reference to the dwelling house, but the shares of the parties with reference to Items 1 to 3 of the plaint ''A'' schedule properties no doubt can be partitioned. Thus, the judgment and decree of the Trial Court are modified in the above terms.

The plaintiff-appellant is entitled to 1/12th share in all the plaint schedule properties and entitled to the partition and separation of her share no doubt with reference to items 1 to 3 of the plaint ''A'' schedule properties. As regards item 4 of the plaint ''A'' schedule properties, it may be partitioned where it is possible by way of adjustment of shares i.e., equities arrived at by mutual agreement between the parties, particularly with the male heir as indicated without actual division of the dwelling house otherwise it shall remain suspended and in abeyance as opined by the Trial Court.

The regular first appeal is thus allowed in the above terms. Parties to appeal to bear their own costs of this appeal.