1. This appeal is against the judgment and decree of the Principal, Subordinate Judge, Tirunelveli, who allowed an appeal and decreed a suit for partition filed by a daughter as against the purchaser of the property described as a dwelling house of the family. The defence of the purchaser was that the plaintiff as the female member of the family cannot ask for partition of the dwelling house in view of the special provision in Section 23 of the Hindu Succession Act, 1956. This found favour with the trial court which apparently overlooked the fact that it was the male member who was the other half sharer who sold the dwelling house to a third party. The trial court dismissed the suit. On appeal, the Principal Subordinate Judge reversed the judgment and held that the suit was maintainable and granted a preliminary decree for partition.
2. Section 23 of the Hindu Succession Act 1956 appearing in the chain of sections of the codified Hindu Law in intended to respect one of the ancient Hindu tenets which treasured the dwelling house of the family as an impartible asset as between a female member and a male member. In order to perpetuate that memorable intention of Hindu families, Parliament took that auspicious aspect also into consideration while codifying the Hindu Law. It is only in this perspective that Section 23 of the Hindu Succession Act 1956 has to be understood. The section runs thus
"Section 23. Where a Hindu interstate has left surviving him or her both male and female heirs specified in class 1 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 section provides a special provision safeguarding dwelling houses. It puts as it were a statutory interdict on a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. An equitable provision for a female heir has, however, been thought of during the intermission when the above said interdict would operate. During that intermission, the female heir shall be entitled to a right of residence. The proviso to Section 23 slightly waters down such a right in the case of a female heir who is a daughter. Such a female heir who is a daughter 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. A question, however, would arise in a case where the members of a particular family are one female member and one male member. That is the case here. The first defendant and the plaintiff are the surviving members of a Hindu family, who are entitled to the suit property. It. is not in dispute that each of, them, is entitled to a moiety therein. The first defendant under Ex. B 8 sold his half share in the suit property to the second defendant. The question is whether the sale of the property by the only male member of the family when. the other female. Member is alive is a circumstance which has to be taken into consideration to opine whether the property still retains the character of a dwelling house. In my preface I referred to the preservation of a dwelling house by ancient Hindu families -which springs from sentiment and tradition.. In order to respect such sentiment, the statute has made a special provision for that purpose. But if the only male member chooses to introduce a stranger into the dwelling house by parting with his half share in the property, then in my view, it would not be satisfying the usual concomitants which are attached to and integrated with a dwelling house. Once the only male member of the family in the presence of the other. female member chooses to alienate his half share the dwelling house it would no longer be a dwelling house, as mentioned in the special provision made under Section 23 of the Hindu Succession Act. Eo instanti the male member as above parts with his one half share in the property, then the property as a whole should be equated to an ordinary property which does not possess the characteristics of a dwelling house. In that view of the matter, therefore, the interdict contemplated in Section 23 of the Hindu Succession Act, would not apply to a case where the only male member in the presence of a female member, but without her consent, sells his half share in the quondam dwelling house to a stranger by which there is a natural metomorphosis of the dwelling house into an ordinary house. if this was borne in mind as was rightly done by the lower appellate court, the plaintiff would be entitled to institute the suit for possession of her half share in the undivided property. The plaintiffs right to the property is not in question before me. In the circumstances, the judgment and decree of the lower appellate court is upheld and there being no other question of law, the second appeal in dismissed.
3. Appeal dismissed.