Judgment:
K.T. Sankaran, J.
1. The questions of law involved in this Second Appeal are the following:
1) Whether a suit for partition at the instance of a daughter of the deceased could be defeated by invoking Section 23 of the Hindu Succession Act by the legal representatives of a deceased son of the intestate?
2) Whether Section 23 would be applicable in a case where the deceased intestate has left behind him only one male issue and whether it is necessary that there must be more than one male issues to invoke Section 23?
3) Whether the protection in favour of the male heir under Section 23 of the Hindu Succession Act would be available if he inducts a third party in the dwelling house or any portion thereof?
4) Whether omission of Section 23 of the Hindu Succession Act by the Hindu Succession Amendment Act, 2005 would have any impact on a suit for partition or appeal therefrom pending on the date of the commencement of the Hindu Succession Amendment Act, 2005?
2. The property sought to be partitioned is having only an extent of three cents and it is a kudikidappu. It was owned by Ramayi who died on 12.9.1976. Ramayi left behind her four daughters including the plaintiff and a son, the defendant After the death of Ramayi, plaintiff Obtained purchase certificate from the Land Tribunal in her name, but on behalf of the other co-owners as well. The three sisters of the plaintiff released their fractional rights in the property to the plaintiff. Thus the plaintiff claimed 4/5 shares and contended that the defendant has only 1/5 share.
3. The defendant contended that Ramayi was not the kudikidappukari, but her husband was the kudikidappukaran and that the plaintiff and her sisters were married away before the commencement of the Hindu Succession Act and, therefore, they are not entitled to any share in the property. The defendant contended that the building was constructed by him.
4. The plaintiff claimed that the old kudikidappu was demolished by her and a new house was constructed by her. The plaintiff also raised a contention that the defendant unauthorised allowed a stranger to occupy a portion of the house for conducting soda business.
5. Both the courts below found that the property belonged to Ramayi, the mother of the plaintiff and the defendant. It was also found by the lower Appellate Court, on facts, that the rival claim of the plaintiff and the defendant regarding construction of the house cannot be accepted. Therefore, it is to be taken that Ramayi was the kudikidappukari and on her death, the rights devolved on her children, namely, the plaintiff, the defendant and their three sisters.
6. Though the defendant did not put forward a specific contention in the written statement that the suit for partition is not maintainable in view of Section 23 of the Hindu Succession Act, both the courts below considered the same and arguments were advanced before this Court also in respect of the same. Though strictly speaking, the contention raised by the defendant is not liable to be considered as the defence under Section 23 is not supported by sufficient pleadings, I propose to deal with that contention on the merits rather than to reject the contention on the ground that there was no sufficient pleading.
7. The trial court held that the property shall be divided into five shares and that the plaintiff is entitled to get 1/5 share. The claim of the plaintiff on the basis of the release deed executed by the three sisters was negatived on the ground that the document was not proved. The trial court also held that in view of Section 23 of the Hindu Succession Act, the plaintiff cannot claim partition. On appeal by the plaintiff, the Appellate Court held that the plaintiff is entitled to 4/5 shares. The Appellate Court held that Section 23 does not apply since there is only one male heir and that a stranger was inducted by the defendant in a portion of the residential building.
8. I shall first deal with the question whether the intestate should be survived by more than one male heir in order to apply Section 23 of the Hindu Succession Act. In Madhavan Ezhuthasan v. Vellayyappan I.L.R. 1981 Kerala 643, Justice Janaki Amma held that Section 23 would apply even if the deceased is survived by only one male heir along with female heir or heirs. In Sadasivan v. Vasumathi 1987 (1) KLT 592, Justice Varghese Kalliath doubted the correctness of the view taken by Justice Janaki Amma. But, the case was decided on the ground that there was no sufficient pleading to invoke Section 23 of the Hindu Succession Act. The conflict between the aforesaid two decisions, may not be relevant in view of the decision of the Supreme Court in Narashimaha Murthy v. Smt. Susheelabai and Ors. : AIR1996SC1826 . The Supreme Court considered the scope and object of Section 23 and held that the object is to prevent fragmentation or disintegration of the family dwelling house at the instance of the female heir to the prejudice of male heirs.
9. For the sake of convenience, Section 23 of the Hindu Succession Act is extracted below:
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.
The Supreme Court in Narashimaha Murthy's case held as follows:. Though the words 'the male heirs choose to divide their respective shares,' suggest that at least two such male heirs must exist and decide not to partition the dwelling house in which event the right of the female heir is postponed and kept in abeyance until the male heir or heirs of the Hindu intestate decide to partition it, it does not necessarily lead to the only inevitable conclusion that the operation of Section 23 must stand excluded in the case of the Hindu intestate leaving behind him/her surviving only son and daughter.... 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 heirs 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 begetting 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 heir chooses to separate his share; this right of his being personal to him, neither transferable nor heritable.
In view of the Supreme Court decision in Narashimaha Murthy's case, the decision of this Court in 1987(1) KLT 592 is not good law on the interpretation of Section 23 of the Hindu Succession Act. The view taken by the lower Appellate Court on this point is also erroneous.
10. The next question to be considered is whether the protection available to the male heir under Section 23 would be lost if he inducts a third party in a portion of the dwelling house. It has come out in evidence and it is not disputed as well that a portion of the dwelling house is occupied by a stranger. The expression used in Section 23 of the Hindu Succession Act is 'includes a dwelling-house wholly occupied by members of his or her family'. The Supreme Court in Narashimaha Murthy's case (supra) held that if strangers are inducted into the dwelling house, it must be taken that the male heir had lost his animus possedendi. The Supreme Court held as follows:. Thus it appears to us that if the male heirs derive the right under the provision to resist partition of the dwelling-house unless they chose to divide their respective shares therein, then correspondingly it is incumbent on the male heirs to keep the property well arranged, inhabited or occupied by themselves keeping the property available for the female heirs to enforce the right of residence therein. But if the latter right is frustrated on creation of third party rights or a contractual or statutory tenancy, there remains no right with the males to resist partition.
In Madhavan Ezhuthasan v. Vellayyappan I.L.R.1981 Kerala 643, it was held:
The right ceases if their 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.
11. The protection under Section 23 is not indefeasible. Section 23 curtails the rights of female heirs to claim partition until the male heirs choose to divide their respective shares, only in the contingencies mentioned in Section 23. Section 23 is an exception to the general rule that Class I heirs are entitled to claim partition of their shares in the property of their predecessor. The exception is conditioned with the conditions mentioned in Section 23. Section 23 must be strictly construed. The male heirs can claim the benefit only if they fully satisfy all the conditions laid down in Section 23. The defendant admittedly having inducted a stranger in a portion of the dwelling house wherein that stranger is conducting business, I am of the view that the defendant is not entitled to claim any protection under Section 23 of the Hindu Succession Act. Where a portion of the dwelling house is put in the possession of a stranger, it cannot be said that the dwelling house is wholly occupied by the members of the family of the intestate.
12. Now the question whether a legal representative of the deceased son of the intestate can claim the protection of Section 23 is to be considered. During the pendency of the Second Appeal, the defendant died and his widow was impleaded as his legal representative. The widow of the defendant filed I.A.No. 1491 of 2005 in the Second Appeal seeking to raise the following additional questions of law:
5. Whether the right conferred under Section 23 of the Hindu Succession Act, 1956 on a male member enures to the legal representatives/legal heirs of the said male member?
6. Whether the right conferred under Section 23 of the Hindu Succession Act, 1956 on a male member enures to the benefit of his legal representatives which do not include a male member?
Sri. Varghese C. Kuriakose, learned Counsel for the appellant, contended that the state of affairs as on the date of suit alone is relevant to decide the availability or otherwise of the benefit of Section 23. At the time when the suit was instituted, the son of the deceased was alive and, therefore, the suit was not maintainable as the son did not seek to partition the property. The death of the defendant (son of the intestate) during the pendency of the suit or appeal or second appeal is not relevant in deciding the question whether the suit is maintainable or not. Sri. T.K. Pankajakshan Pillai, learned Counsel for the respondent, contended that the benefit available to a male heir as provided in Section 23 is only a personal right and it would not survive such male heir. In Narashimaha Murthy's case, the Supreme Court held thus:. We accordingly hold 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.' (emphasis supplied)
Sri. Pankajakshan Pillai also relied on the last sentence in paragraph 33 of the judgment of the Supreme Court wherein it was held that 'the right of the male heir is personal to him and it is neither transferable nor heritable
13. In I.L.R. 1981 Kerala 643 it was held thus:. 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 Section 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. 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. (emphasis supplied)
14. The expression 'male heir' in Section 23 does not include the legal representatives of such male heir. It is true that the legal representatives of a male heir would be entitled to the share which such male heir would have inherited. The legal representatives of the male heir could also claim partition and separation of the fractional share of their predecessor. But that does not entitle the legal representatives of such male heir to claim the benefit under Section 23 of the Hindu Succession Act on the premise that their predecessor could have claimed such right or he was claiming such right in the pending litigation. It is true that class I heirs include son, daughter and widow of a predeceased son. Section 23 mentions 'male heirs' which include other male heirs in class I as well. But such other male heirs in class I would be entitled to claim protection only in the event of the son of the intestate having predeceased the intestate. Such protection is not available to the aforesaid class I heirs if the son of the deceased intestate survived the intestate. Moreover, a widow, even of a predeceased son of the intestate, cannot claim the protection of Section 23 since she is not a male heir, to whom alone protection is provided under Section 23. The right of the male heir to resist partition invoking Section 23 of the Hindu Succession Act is absolutely personal to such male heir. Such right to resist partition is not heritable or alienable. Therefore, I hold that the additional appellant, the widow of the deceased, is not entitled to resist the suit for partition, claiming the benefit under Section 23 of the Hindu Succession Act.
15. The Hindu Succession Amendment Act, 2005, Act 39 of 2005, was enacted on the basis of the 174th report of the Law Commission. The representations made by the various women's organizations were considered by the Law Commission. Even at the time when the Hindu Succession Act, 1956 was enacted, women's organizations had voiced the grievance that though the 1956 Act made commendable inroads into the erstwhile Hindu system of inheritance, still the gender discrimination against women was not fully done away with by the 1956 Act. As per Section 4 of the Hindu Succession Amendment Act, 2005 (Act 39 of 2005), Section 23 of the Hindu Succession Act, 1956 is omitted. The question is whether the omission of Section 23 of the Hindu Succession Act in view of the commencement of Act 39 of 2005 during the pendency of a suit for partition or an appeal or second appeal therefrom has relevance in deciding the question whether the male heir or male heirs could resist the salt for partition under Section 23 of the Act. As held by the Supreme Court and this Court, the right to claim the benefit of Section 23 is personal to the male heir of the deceased Hindu intestate. Such a right is not heritable or alienable. Therefore, it cannot be said that cessation of such personal right daring UK pendency of a suit for partition would not entitle the female heir to claim partition taking note of the subsequent events. If the contention that the state of affairs as we site dale of the suit alone would be relevant is to be: accepted, then it would have the effect of indirectly holding that the personal right of the male heir to resist partition could be continued by his legal representatives, in case such male heir dies during the pendency of the suit. 1 have already held that the personal right of the male heir cannot be claimed by his legal heirs. Therefore, whenever the personal right of a male heir under Section 23 comes to an end, the right of the female heir to claim partition cannot be defeated. In other words, a defeasible right of a male heir would get defeated the moment his personal right ceases. Such personal right of a male heir is taken away by the omission of Section 23 of the Hindu Succession Act, 1956, by the Hindu Succession Amendment Act, 2005. The effect of such omission would be retroactive.
16. In Lekh Raj v. Muni Lal and Ors. : [2001]1SCR864 , the Supreme Court held:
The law cm the subject Is also settled. In case subsequent eve-rat or fact having bearing on the issues or relief 'in a suit or proceeding, to which any party seeks to bring on record, the court should not slut its door. All laws and procedures including functioning of courts, are all in aid to confer justice to all who knocks its door. Courts should interpret the law not in derogation off justice but in its aid, Thus bringing on record subsequent event, which is relevant, should be permitted to be brought on record to render justice to a party....
In Pasupuleti Venkateswarlu v. The Motor and General Traders : [1975]3SCR958 it was held by the Supreme Court thus:
If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, its brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy....
In Ramesh Kumar v. Kesho Ram 1992 Supp (2) SCC 623), it was held:
The normal rate is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subseqent events of fact or law which have a material bearing, on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief.
17. The Supreme Court in Lekh Raj's case quoted with approval the decision of the Supreme Court of the United States in Patterson v. State of Alabama, wherein it was held thus:
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or law, which has supervened since the judgment was entered.
The above decisions of the Supreme Court would fortify the conclusion that the omission of Section 23 of the Hindu Succession Act 1956, by the Amendment Act 39 of 2005 would have retroactive effect and the changed law could be taken note of and applied in pending litigations. Therefore, I am of the view that by the omission of Section 23 of the Hindu Succession Act, 1956 as per the Hindu Succession Amendment Act, 2005, the right of the male heir to claim the benefit of Section 23 would get defeated even in pending litigations.
For the aforesaid reasons, I hold that the additional appellant is not entitled to succeed in the Second Appeal. The Second Appeal fails and it is dismissed with costs.