Section 23 of Hindu Succession Act 1956 provides: "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 right of residence therein, provided that where such female heir is a daughter she shall be entitled to 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."
So Section 23 of the Hindu Succession Act says that it would be wrong on the part of the female heirs to ask for partition of the dwelling house unless the male heirs of intestate choose to divide their respective shares therein. Section 23 has provided two safeguards:
(a) Dwelling house should wholly be occupied by the members of the family of intestate.
(b) Female heirs of intestate shall have a right of residence in dwelling house. However, married daughters have no right of residence in the dwelling house.
However if a married daughter becomes widow, separates from her husband or is deserted by her husband, her right of residence revives.
In Narashimha Murthy v. Smt. Susheela Bai and others, AIR 1996 SC 1826, it was observed that when succession of a Hindu intestate is open his/her class I heirs are entitled at a partition to their respective shares. Succession cannot be post-poned. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its disintegration by dividing it by meets and bounds------. A female heir's right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a Court of law. The proviso makes it amply clear 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 a widow. The proviso thus is meant to cover all daughters, the word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter.
It was also observed that, Dwelling house is that house which is in actual, physical inhabited possession of one or more members of intestate's family and if some are absent due to exigencies of service or vacations, the dwelling house remains available to them to re-enter without obstruction or hinderance and on that premise enabling the female heir to assert a right of residence and entery therein. A tenanted house does not fit into this description.
(b) Female heirs of intestate shall have a right of residence in dwelling house. However, married daughters have no right of residence in the dwelling house.
However if a married daughter becomes widow, separates from her husband or is deserted by her husband, her right of residence revives.
In Narashimha Murthy v. Smt. Susheela Bai and others, AIR 1996 SC 1826, it was observed that when succession of a Hindu intestate is open his/her class I heirs are entitled at a partition to their respective shares. Succession cannot be post-poned. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its disintegration by dividing it by meets and bounds------. A female heir's right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a Court of law. The proviso makes it amply clear 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 a widow. The proviso thus is meant to cover all daughters, the word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter.
It was also observed that, Dwelling house is that house which is in actual, physical inhabited possession of one or more members of intestate's family and if some are absent due to exigencies of service or vacations, the dwelling house remains available to them to re-enter without obstruction or hinderance and on that premise enabling the female heir to assert a right of residence and entery therein. A tenanted house does not fit into this description.
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